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:
- 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.
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