As a result
of an incident at a club last week, the EPA is investigating allegations of
chemical misuse, water and land pollution, and the falsification of records
within the golf industry. The investigation will likely broaden as a result of
information now known to the EPA about alleged practices at many clubs. The
NSWGCSA requested an information alert for their members concerning
the EPA and its investigative powers and attached is a
document that may be of interest to all.
The message
is the vicarious liability issues under the environmental legislation is
clearly aimed at corporate management and e-par want to ensure all GM’s
are comfortable with their environmental and safety due diligence status.
ALERT
e-par Pty Limited
ABN 63 125 454 015 Suite 2, 110-118 Belford Street
BROADMEADOW NSW 2292 Tel. 02 4961 4060
Fax. 02 4961 4021 International Tel. +61 2 4961 4060
TO: GMA NSW DATE: 4 June 2012 TOPIC: EPA investigating alleged breaches of Pesticide Act 1999, Pesticide Regulation and The Protection of the Environment Operations Act.
PREPARED BY: Terry Muir, Managing Director e-par pty Ltd
Background:
The EPA has launched an investigation into the activities of Superintendents, golf clubs and their chemical suppliers in NSW. The investigation is focussing on allegations concerning
- the use of unregistered chemicals by Superintendents and their staff;
- the supply of unregistered products to Superintendents;
- the purchasing of unregistered products by Superintendents;
- the concealment of unregistered products as registered products by Superintendents;
- the lack of training and instruction to staff by Superintendents;
- chemical mixing areas and practices that pollute land and waters;
- wash bay operations and practices that pollute land and waters;
The EPA is likely to focus on the chemical user, their immediate supervisor (the Superintendent), and the chemical suppliers. Information suggests the EPA is aware of an alleged widespread practice of using certain products offlabel. One Superintendent has been formally interviewed by the EPA and subjected to their coercive powers when he was directed to answer questions.
Issue:
Potential breaches under investigation by the EPA include:
1. To wilfully or negligently use a pesticide in a manner:
- that injures, or is likely to injure another person or their property;
- that harms any non-target animal or non-target plant; or
- that materially harms a vulnerable, endangered or protected species.
The maximum penalty for a corporation is $250,000; and for an individual it is $120,000 for each offence.
2. The EPA is also investigating allegations concerning:
- Possess and use products off-label without a permit;
- Fail to read the label on each occasion before using the chemical was used;
- Use chemicals in contravention of the instructions on the label;
- Use chemicals in a manner that injures or is likely to injure another person;
- Cause or permit another person to commit an offence under the Pesticide Act and Regulations
Investigation
The EPA has information alleging the widespread use of off-label products in the industry involving alleged collusion between some chemical suppliers and Superintendents. The allegations involve the purchasing of off-label products is being disguised as registered products for use on turf. We expect the EPA to continue to gather evidence with a view to prosecuting individuals, their managers and their corporation. The EPA has powers under their legislation to:
- Serve Notices on individuals and businesses to supply records.
We expect they will serve Notices for clubs to provide their chemical purchase orders and financial records and for chemical suppliers to provide their sales records to respective clubs. We also expect Notices will be served for Superintendents to supply their chemical application records and their training records. The EPA will most likely then cross reference these records to establish any purchase and use of off-label products or the concealment of off- label products as registered products.
- Direct individuals to answer questions.
The EPA has coercive powers to direct individuals to answer questions. Refusal to answer questions and/or provide misleading information is a serious offence. The EPA has already exercised these powers in their current investigation and we expect they will continue to do so with many clubs should the investigation widen as expected.
Of potential concern to General Managers are the provisions in the environmental legislation for both individual and corporate liability. Under Section 112 -
(i) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:
(a) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(b) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
(ii) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.
Whilst the investigation of the EPA will focus on the environmental breaches, we expect the investigation will also involve Workcover. They are already involved in this enquiry and we believe they will focus on exposure of staff to chemicals; the exposure of staff to polluted rinsate matter; the lack of documented training.
Prosecution Potential
The use of off-label products is not a difficult offence to prove. Cross referencing with purchase orders, supply orders, product names, chemical registers, the cost variation between each product and the spray logs can demonstrate a trend easily identifiable by an investigator. The EPA can also use its coercive powers to demand Superintendents answer questions and this will provide further potential evidence.
Should the investigations proceed to prosecution it will most likely be before The Land and Environment Court (this Court sits in the Supreme Court jurisdiction) in NSW. The outcomes of a successful prosecution include:
- Fines against the individual/s involved – Superintendents, Assistants, Staff, General Managers.
- A criminal record for the individual.
- Fines against the corporation. -
Court Orders to pay the EPA’s investigative costs.
- Court Orders for those convicted to publish by way of notice in a newspaper circulating throughout the
State and in the executive summary of the company's annual report the circumstances of the prosecution and conviction. Also, if an offence has generated significant interest in the immediate locality, the EPA may also decide to seek an order requiring the defendant to carry out a letter drop.
Recommendations and Next Steps
- General Managers must be able to demonstrate that they have committed their staff to a process of environmental and safety compliance. This includes the development AND implementation of documented procedures.
- General Managers must be positioned to demonstrate that they have provided staff with environmental and safety training that includes induction.(For those e-par members an Induction Booklet is in the e-par systemready to download).
- The EPA and Workcover officers will expect to see documented environmental procedures and training records together with your chemical application logs. As a minimum your Superintendent should have procedures in place for – Chemical Mixing, Rinsate Disposal, Operation of Wash Down, Recording of Chemical Applications, Induction of Staff, Spill Response, Chemical Delivery, MSDS Management, IncidentReporting, Environmental Training Catalogue, Emergency Response, Manual Handling, Use of Chemical Mixing Area, In-Field Washing. (those using e-par have these procedures)
- Consider reviewing Position Descriptions of all staff to include reference to environmental compliance and individual accountability. (A template is in the e-par system).
If General Managers require any advice or support concerning an environmental or safety issue contact e-par at any time on 1300 471 175 or contact Terry Muir directly on 0412294514.
