Duty to Notify: How soon is as soon as reasonably practicable ? - PowerPoint PPT Presentation

Duty to Notify: How soon is “as soon as reasonably practicable” ? ACLCA 4 August 2010 Andrew Pruszinski Principal Adviser Site Contamination

Summary • Legislation • Guideline • Issues identified by the EPA • Issues identified by auditors / consultants / owners / occupiers • Open forum

83A Duty to notify • duty applies to owner or occupier or auditor or consultant • “A person to whom this section applies must notify the Authority in writing as soon as reasonably practicable after becoming aware of the existence of site contamination at the site or in the vicinity of the site (whether arising before or after the commencement of this section) that affects or threatens water occurring naturally under the ground or introduced to an aquifer or other area under the ground”. • penalty $120k (corporation) or $60k (individual)

Consultant definition • “site contamination consultant means a person other than a site contamination auditor who, for fee or reward, assesses the existence or nature or extent of site contamination”

83A Duty to notify For the purposes of this section— (a) a person is not required to notify the Authority of a matter if the person has reason to believe that the matter has already come to the notice of the Authority or an officer engaged in the administration or enforcement of this Act; but (b) a person is required to notify the Authority of a matter despite the fact that to do so might incriminate the person or make the person liable to a penalty.

Notification details • The notification must— (a) describe the location of the site contamination sufficient to identify it; and (b) include the information known to the person about the nature and extent of the site contamination. • See EPA publication: “Site contamination: Notification of site contamination that affects or threatens underground water pursuant to section 83A of the Environment Protection Act 1993” issued December 2008 – specifically Attachment 1

Notification details

Why is notification important? • one way that the EPA can identify site contamination of underground water which may pose a risk to human health and/or the environment. • groundwater is utilised extensively throughout SA for a wide variety of purposes ranging from potable use to the restoration of ecosystems. Contaminated groundwater also has the potential to impact on human health through direct use or indirect vapour exposure. • Groundwater flows through an aquifer over time. As a result of this natural movement, any chemical substances present within an aquifer may also migrate over time from the source site. This has the potential to impact on the surrounding properties.

Prosecution: s83 (ERD Court) • “This is a serious offence, and carries a maximum penalty, for a body corporate, of $120,000. I am satisfied that there is clear evidence that the defendant not only failed to notify the EPA of the incident, as soon as reasonably practicable after becoming aware of same, but attempted to mislead the Authority, by notifying it on 31 March 2000, that "a potential environmental incident exists" when it knew, on the previous day , that a reportable incident had occurred. These facts are relevant to the determination of the appropriate penalty for the offence”. • “The offence of failing to notify of an incident likely to give rise, or having given rise to, serious or material environmental harm, is serious”. • “A conviction will be recorded and the defendant fined in the amount of $66,000”.

When to notify? From the guideline: • There is no requirement to notify the EPA until site contamination that affects or threatens underground water has been identified. • The EPA considers that if a non aqueous phase liquid (NAPL) is identified, that notification should occur as soon as that stage of the field investigations has been completed.

When to notify? From the EPA letter to auditors and consultants dated 25 May 2010: • an expectation that the consultant’s client, as site owner, would notify the EPA is not an acceptable reason in the event that the site owner does not provide notification. Consultants need to follow this up. • In the case of a Non-Aqueous Phase Liquid (NAPL), as soon as NAPL is detected and visually confirmed a section 83A notification should be provided to the EPA as soon as reasonably practicable. • In the case of dissolved phase contaminants, as soon as laboratory reports are provided and compared to appropriate guidelines a section 83A notification should be provided to the EPA as soon as reasonably practicable.

Awareness • The Act says “as soon as reasonably practicable after becoming aware of the existence of site contamination” • awareness may not just be through site work • awareness may also result from a due diligence review, an audit, the review of a new client’s historical reports

Why the ‘sudden’ change? • the legislation is new and the EPA has made reasonable effort to educate consultants and auditors and some owners/occupiers (large sites/multiple sites) • the EPA has allowed a reasonable period of time for organisations to develop and implement systems for this section of the Act and has given reasonable education on its expectations for compliance. • the EPA has become aware of site owners, occupiers and consultants with holding information, overlooking notification and late (months) notification

Where are the issues…. • How soon is as soon as reasonably practicable? – 10 working days after receipt of the lab reports • What about internal QA/QC/peer review processes? – see above • What if the background concentration is unknown – is it site contamination? – the EPA assumes background to be zero unless demonstrated otherwise. If the consultant wishes to use background as a reason not to report, the EPA expects that the consultant will properly consider this within the 10 working days. • What if the secondary lab results indicate harm but the primary lab results are less than the criteria? – the consultant must decide which result to rely on • What if the results could be erroneous and the consultant would like to run a second round of sampling - notify, the EPA will remove the notification at a later date if the results are found to be erroneous

Where are the issues…. • Is there an obligation to notify of new information gained from ongoing assessment ie as the detail of the extent of contamination increases? – yes, this is harm that was not previously known to the EPA • Is there an obligation to notify the EPA again if dissolved phase has been notified and NAPL is later identified? – Yes, previously there was harm to water, there is now potential harm to human health as well • Is there a duty to notify if the consultant is reviewing a report as part of a proposal (ie not engaged)? – No, because the Act says that this section only applies to a consultant/auditor engaged for the purposes of making determinations or assessments in relation to site contamination on or below the surface of a site. The consultant has not yet been engaged.

Changes? • The EPA will revise the guideline based on feedback and tonight’s discussion • Probably about 3-4 months away

Open forum… what do you think?