Watching Out For Our Clients: Fines, Penalties & Environmental Harm

At Simmonds & Bristow, we see it as one of our primary responsibilities (and core values!) to help our clients stay free from harm. That includes things like safety, compliance and avoiding costly fines, penalties and delays that can happen when things go wrong (or aren’t done the right way the first time!). 
  
What is environmental harm?
This is a very broad definition, which is why it is so important to understand. It refers to any adverse effect or potential adverse effect. It doesn’t matter whether the harm is permanent or temporary, very slight or very extensive, very brief of very long lasting, very rare or very frequent.
   
Does it matter whether we caused the harm directly or indirectly?
No, either way it is considered environmental harm.
  
Does it matter whether we caused the harm from one big activity or from many smaller ones?
No, again, the fact that it resulted in environmental harm is the only relevant issue.
  

What if I was not aware that my operation was causing environmental harm? Am I then safe from being fined or prosecuted for causing this environmental harm?

Whether you knew about the environmental harm or have been caught completely by surprise, you are still responsible for what has happened. You will still be subject to fines and penalties. However, the type of penalty or fine that you are assessed will be impacted by whether or not the harm was done wilfully. That means that if you had no idea the harm was happening, you may be subject to a lesser penalty.

What are my responsibilities if I realise my operation is causing environmental harm?

You are expected to:

  1. Notify the DES of environmental harm as soon as you become aware of it and
  2. Take immediate reasonable and practical action to minimise the negative effects

It is important to remember that the timeframe for notifying the DES is very short – you must do so within 24 hours or you could be subject to a penalty (and fine) for ‘failure to notify’. This time period relates to providing verbal notification (which can be done by phone). You have 14 days to follow that up in writing.

Contact the 24/7 Pollution Hotline – 1300 130 372 (option 2) or email pollutionhotline@des.qld.gov.au

What if I’m not sure if I’m causing environmental harm?

Simmonds & Bristow can help with this. We can assess your specific operation and provide confidential advice verbally or in writing on whether you are likely to be considered to be causing environmental harm.

What if I’m causing environmental harm but I don’t know how to minimise it?

If you don’t know what to do to minimise the harm, we can provide you with advice on what to do.

What are the types of Environmental Harm?

  • Environmental Nuisance
  • Material Environmental Harm
  • Serious Environmental Harm

Environmental Nuisance:

Here we are talking about unreasonable interference (or likely interference) with an environmental value as a result of aerosols/fumes/light/noise/odour/particles or smoke OR an unhealthy, offensive or unsightly condition because of contamination.

The DES also considers how much it would cost to prevent this damage or to rehabilitate the environment after this type of harm takes place. For Environmental Nuisance, this amount is less than $5000.

Material Environmental Harm:

If the environmental harm is not trivial or negligible or causes potential or actual damage to property to a value greater than $5,000 but less than $50,000, it is considered Material Environmental Harm.

Serious Environmental Harm:

This refers to harm that is irreversible, of a high impact or widespread, or can be harm that is caused to an area of high conservation value or special significance such as a National Park or World Heritage Area. The threshold value for this type of harm is greater than $50,000 in damage or in costs to prevent or fix damage caused by this type of harm.

How Environmental Authorities Can Help You Plan/Prevent Harm:

Your environmental authority will often dictate what environmental harm your activity might result in and provide conditions to help you prevent harm from occurring, or to help minimise the harm. When you receive your Environmental Authorities (EA) from DES, you will be given conditions that you need to comply with.

What Happens We Don’t Comply with Our EA Conditions?

If you don’t adhere to these conditions, you are considered to be non-compliant or in breach of your Environmental Authority. Unless you have taken reasonable and practical measures and actions, and can show as much, the DES are likely to issue you with an infringement notice, which can include fines and penalties, or they may undertake a prosecution against you.

How are penalties assessed/communicated?

PIN – Penalty Infringement Notices are expressed in terms of penalty units, with different types of breaches having different values of maximum penalty units, or a minimum imprisonment term.

One penalty unit equates to a certain monetary value, which can change from state to state and between federal and state governments.

The legislation is written in terms of penalty units, so that the dollar value can fluctuate without having to rewrite the legislation each time.

From 1st July 2015 the value of 1 penalty unit is $137.85.

What kind of penalties are there under the Environmental Protection Act?

 Penalty Units Value of Fine As a Result Of….
100 – 500 $13,785 – $68,925  Failure to notify the DES of environmental harm
 600 $82,710 Unlawfully, but not wilfully causing environmental nuisance OR

Unlawfully, but not wilfully  depositing a prescribed water contaminant or releasing stormwater run-off into waters

 1,655 $228, 141 Unlawfully, but not wilfully causing material environmental harm OR

Wilfully causing environmental nuisance OR

Wilfully depositing a prescribed water contaminant or releasing stormwater run-off into waters

 4,500 $620,325 Contravening a condition (where it is apparent it was not wilful) OR

Unlawfully but not wilfully causing serious environmental harm OR

Wilfully causing material environmental harm.

  6,250  $861,562 or 5 years imprisonment  Wilfully contravening a condition OR Wilfully causing serious environmental harm.

Other Offences/Penalties:

Failing to ensure that everyone acting under the authority complies with the conditions is also an offence. However the penalties for this one are dependent upon the other penalties.

How Can S&B Help You?

Environmental harm is something we should all take seriously. At S&B we know though, that this isn’t your core business and as much as you want to be compliant with your DES environmental authority conditions, it can be confusing. That’s why we’re always here to help. We can work with the DES on your behalf, we can help you understand your EA conditions and we can help you develop action plans and testing methodologies to make sure that you stay compliant.

If you have any concerns, call or email us today and we’ll do what we can to set your mind at ease.

And whatever you do: Don’t forget to notify the DES as soon as you realise that environmental harm is (or might) be taking place (and within the required window to avoid fines and penalties!)

Quiz Answers

Q: Sam operates a resort in far north Queensland. He loves making sure his guests have a fantastic time during their stay. The wastewater treatment plant on the property is a bit of a mystery to him, but he knows it provides an important service. One day though, as he walks around his property, Sam notices water on the ground. When he investigates, he realises that his treatment plant is overflowing with untreated water! Sam knows this can’t be good and that he needs to contact his local state environmental regulator. It looks like a faulty pipe caused the leak. Sam had no idea that was happening and now he’s wondering: When it comes to environmental harm, does it matter if the harm was caused accidentally?

A: No – it is still considered environmental harm. However, the fact that it was an accident and not caused for benefit or profit may make a difference in the fine/penalty assessed.

Q: Sam realised his leaking pipe was causing environmental harm. However, because he was in a panic to get the mess cleaned up, he forgot to call the DES and it is now 3 days since the incident. Now Sam is asking himself, is there a timeframe in which environmental harm must be reported?

A: Yes – the incident must be reported within 24 hours of becoming aware of it

Q: Sam has contacted the DES to report the leaking pipe incident and he is trying to explain the situation. The DES have told Sam the harm will be assessed and fall into one of three categories. What are the three categories?

A: Environmental nuisance, material environmental harm and serious environmental harm

Q: The DEHP DES has assessed the situation and Sam is waiting to find out which category the incident will fall under. Taking into consideration the previous information, and that Sam spent a bit over $5,000 to fix the leak and clean up the contamination, which category would this incident most likely fall under?

A: Material environmental harm

Q: Whilst talking to a colleague, Sam uses the acronym ’DES’. When Sam’s colleague gazes back at him with a confused look, Sam realises he may not know the meaning of ’DES’. Sam then goes on to explain that ‘DES’ stands for –

A: Department of Environment and Science

Q: Sam has reported the incident to the DES, however, he has received a notice to show cause and now he is wondering: why would someone receive a show cause notice?

A: All of the above

Q: After having his situation assessed, Sam has found out he has caused material environmental harm. Due to this category of environmental harm and Sam’s failure to notify the DES within 24 hours of becoming aware of the event, he is facing a fine. What is the maximum fine Sam could incur, with one penalty unit being $137.85?

A: 1,755 penalty units for failure to notify as well as material environmental harm – $241,926.

Q: When dealing with matters relating to the DEHPDES, is it true that you cannot call on outside help to assist and guide you through the process?

A: False