Australia: NSW raises the bar on environmental incident response

Last Updated: 9 December 2011
Article by Jacinta Studdert


On 11 October 2011 the Protection of the Environment Legislation Amendment Bill 2011 was introduced into NSW Parliament. It was assented to on 16 November 2011, but has not yet commenced (Amendment Act).

The Amendment Act was introduced as a result of recent press coverage and concern related to the issue of timely notification of pollution incidents, especially those that may have a public health dimension. The NSW Government announced in relation to this issue that it would strengthen obligations to notify pollution incidents. The former head of the NSW Department of Premier and Cabinet, Brendan O'Reilly, conducted a review of the state's pollution notification requirements, which was released on 30 September 2011 (O'Reilly Report). The O'Reilly Report made nine recommendations designed to ensure that future incidents were notified in a timely and more appropriate manner, which the NSW Government incorporated into the Amendment Act.

What are the changes?

Duty to notify pollution incidents "immediately"

Once amended, section 148 of the Protection of the Environment Operations Act (POEO Act) will state that pollution incidents causing or threatening material harm to the environment must be notified "immediately", rather than "as soon as practicable" as was previously required.

However, "immediately" is not defined within the POEO Act or the Amendment Act. It is uncertain how this will be applied in practice, especially given the competing priorities at the time of an incident, including containment of the pollution and internal notification.

Requirement to notify further information "immediately"

Section 150 of the POEO Act will be amended so that the information required to be notified immediately after the pollution incident occurs is (still) the information known when that report is made; but if subsequently further information becomes known, that further information must also be notified immediately, once it becomes known. The further information to be provided immediately under section 150, once it becomes known, includes:

  • the nature, the estimated quantity or volume and the concentration of any pollutants involved;
  • the circumstances in which the incident occurred (including the cause of the incident, if known); and
  • the action taken or proposed to be taken to deal with the incident and any resulting pollution or threatened pollution.

Increase in Government Authorities to be notified

The Amendment Act also increases the number of Government Authorities required to be notified about the pollution incident. The definition of "relevant authority" under s 148(8) POEO Act will be amended to include the:

  • EPA;
  • Local authority (i.e. Council) for each area in which the pollution incident occurs;
  • Ministry of Health;
  • WorkCover Authority; and
  • Fire and Rescue NSW.

Double the penalties for failing to notify

Failing to notify the relevant information of a pollution incident "immediately" (and failing to subsequently notify when further information becomes known), to the "relevant authorities", will be punishable by increased fines of up to $2,000,000 for a corporation and $500,000 for an individual.

Holders of environment protection licences to make monitoring information public

The Amendment Act also inserts a condition into all environment protection licences (EPL) that requires the results of monitoring carried out under the EPL to be made available on the internet. If the holder of the EPL does not have a website then the results need to be made available to anyone who requests them.

Pollution Incident Response Management Plans

The Amendment Act will also insert a new Part 5.7A into the POEO Act, imposing duties on holders of an EPL, and occupiers of premises (if requested by the EPA) to prepare and implement pollution incident response management plans. Information that must be provided in the plan includes:

  • procedures to be followed in notifying of a pollution incident;
  • detailed description of the action to be taken immediately after a pollution incident;
  • the procedures to be followed for co-ordinating with the authorities; and
  • any action taken in combating the pollution caused by the incident.

However, more details regarding the requirements of pollution incident response plans will be set out in forthcoming regulations.

Additionally, the amendments will impose a requirement to implement the pollution incident response management plans immediately after a pollution incident occurs. The maximum offence for non-compliance in the case of a corporation is $2,000,000 with a further penalty of $240,000 for each day the offence continues and in the case of an individual is $500,000 with a further penalty of $120,000 for each day the offence continues.

Changes to the EPA to increase powers and functions

Another area of recent public concern surrounded a perceived lack of transparency and delay in responding to and investigating incidents by the Government, including notifying potentially affected residents. As a result, the Amendment Act effectively removes the EPA from the Office of Environment of Heritage, making it an independent body. Additionally, the Board of the EPA will annually advise the Minister on how to improve and regulate the performance of the EPA and industry, and there will be significant restrictions on the removal of the Chairperson of the EPA, in order to ensure the EPA's independence. The Amendment Act also gives the EPA powers to undertake an analysis of the environmental risk of a pollution incident and to request a health risk analysis from the Ministry of Health. The occupier of the premises where the pollution incident occurred can be liable to pay the cost of such analyses.

What will stay the same?

Trigger to notify pollution incidents

The same test will continue to apply as to what circumstances require notification, being when a pollution incident occurs, so that "material harm to the environment" is caused or threatened. 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 $10,000.

In practice, this is a fairly low threshold, with only very minor incidents escaping the requirement to notify.

Information to be provided when notifying

Section 150 of the POEO Act will otherwise remain unchanged, regarding the categories of information to be provided with the notification, when a pollution incident occurs.

Notifying the Government Authorities

Although notification is to take place "immediately" the initial notification can still be verbal, with written notification of the incident required within 7 days.

What are the implications?

Primarily, the key implication is the need to notify pollution incidents "immediately" to a broader range of Government Authorities. There is no definition of "immediately" in the Amendment Act, which leaves some uncertainty as applying the requirement in practice. We expect the ordinarily understood meaning of "immediately" to therefore apply.

Failure to comply with this requirement may lead to increased fines of up to $2 million for corporations and $500,000 for an individual. Additionally, the requirement to notify further information "immediately" upon it becoming known may place a significantly increased reporting and administrative burden on companies.

These amendments also highlight the requirement for effective incident response management plans (in accordance with specifications set out in the POEO Act and forthcoming regulations), and their implementation following a pollution incident by holders of EPLs (or anyone directed to do so by the EPA). The recent public attention surrounding this issue, in combination with these amendments, and the significant maximum penalties for non-compliance, demonstrate that the EPA is likely to take action against parties that breach the duty to notify. Companies must ensure that their systems and procedures are reviewed, and if necessary amended, to ensure that pollution incidents are immediately notified to all regulatory authorities. This includes having a clear procedure and chain of responsibility for the notification of pollution incidents in place in advance of such incidents occurring, and appropriate training for officers in order that they can identify pollution incidents that require notification.

Companies would be well advised to have their systems and environmental training programs reviewed for legal compliance with the Amendment Act – once a pollution incident occurs, the systems and training will need to function seamlessly to ensure "immediate" notification.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jacinta Studdert
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions