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.
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