Fuelled by the recent Orica pollution incidents and the recommendations in Brendan O'Reilly's report on notification and response issues, the Government introduced the Protection of the Environment Legislation Amendment Act 2011(NSW) (PELA Act) as a bill in the legislative assembly on 11 October 2011. The PELA Act received assent on 16 November 2011. The amendments have not yet commenced but in light of the recent publicity, corporations should ensure they have the necessary procedures in place in order to comply with the amendments. Harsh penalties apply for non-compliance.

Key aspects of the PELA Act include amendments to the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) to (amongst other things):

  • increase the obligations for the reporting of pollution incidents from "as soon as practicable" to "immediately". Difficulties might arise when construing the term "immediately". However, the Second Reading Speech of the PELA bill indicates that the term immediately means "promptly and without delay"
  • expand the list of government authorities which must be notified immediately when a pollution incident occurs to include the EPA, the local authority, the Department of Health, WorkCover; and Fire and Rescue NSW
  • require all holders of Environment Protection Licences under the POEO Act to prepare, test and implement Pollution Incident Response Management Plans. Such plans must include procedures for notifying owners and occupiers of premises in the vicinity of the incident as well as the relevant authorities, and detailed descriptions of actions to be taken after the pollution incident to reduce or control the pollution
  • increase the maximum penalties for failing to notify a pollution incident to the relevant authorities to:
    • A$2 million (previously A$1 million) for corporations and in the case of a continuing offence, a further penalty of A$240,000 for each day that the offence continues
    • A$500,000 (previously A$250,000) for individuals and in the case of a continuing offence, a further penalty of A$120,000 for each day that the offence continues.

Other requirements that individuals, companies, employers and employees should be mindful of in relation to pollution incidents under the existing provisions of the POEO Act include:

  • a pollution incident which occurs in the course of an activity so that material harm to the environment is caused or threatened to be notified to the appropriate regulatory authority. The persons who are required to notify the regulatory authority include a person engaged as an employee, the employer, occupier of the premises and principals and agents of the person carrying on the activity (section 148 of the POEO Act)
  • harm to the environment is material if:
    • it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or
    • it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding A$10,000 (or such other amount as is prescribed by the regulations).
  • loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent, mitigate or make good harm to the environment (section 147 of the POEO Act).

In anticipation of the commencement of the amendments to the POEO Act, directors should ensure their company is in a position to comply with the new notification requirements and to implement Pollution Incident Response Management Plans where necessary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.