As of 1 July 2012, all holders of Environmental Protection Licences (EPLs) in NSW must provide public access to monitoring data recorded under each EPL that they hold.
The requirements for complying with this new obligation are set out in the Environmental Guidelines: Requirements for publishing pollution monitoring data (EPA Guidelines), which were recently issued by the NSW Environment Protection Authority (EPA). The overall emphasis is on providing the data in a meaningful way that is easy for the general public to understand. Assessing how best to do this will vary for each licence holder and will require careful consideration.
The new obligation
The recent Protection of the Environment Legislation Amendment Act 2011 (NSW) introduced several changes to the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) (see our update dated 7 March 2012), including the new requirement that all holders of EPLs must make the monitoring data recorded under their EPL publicly available either by:
- Publishing the monitoring data in a prominent location on the licensee's website; or
- If the licensee does not have a website, providing the pollution monitoring data at no charge to any person who requests it.
There are penalties for not publishing or making available monitoring results and for making available or providing false or misleading results. The penalty for supplying false or misleading information about asbestos waste or hazardous waste is up to $1,500 for an individual and $5,000 for a corporation. For any other waste the penalty is up to $750 for an individual and $1,500 for a corporation.
The reporting obligations came into force on 31 March 2012. However, the POEO Act provides for a three-month transition period, meaning that holders of EPLs have until 1 July 2012 to comply.
What must be reported?
The EPA Guidelines specify that the monitoring data that must be published and/or made available on request is "any data that is obtained as a result of a monitoring condition on an EPL that relates to air, water, noise and/or land pollution. ...limited to data that relates to pollutants generated, discharged or emitted from the licensed premises." It must be based on the sampling or monitoring points identified in the EPL.
The data published must include:
- A meaningful summary of the monitoring data (for each monitoring location and pollutant) on at least a monthly basis
- If applicable, information regarding when and to what extent the pollutant discharge or emission limits specified in the EPL were not met and why.
Additional information such as the EPL number and licensee's name and address must also be published with the pollution monitoring data to provide appropriate context and ensure that the data can be understood and correctly interpreted by the general public. A complete list of this additional information is set out in the EPA Guidelines.
When must it be reported?
The requirement to publish or provide monitoring data commences on 31 March 2012. However, there is a transitional period for complying with this requirement in the POEO Act. This provides that data obtained for monitoring conducted from 31 March 2012 must be published or provided as specified in the EPA Guidelines by 1 July 2012. The data must be made available for four years (for data obtained after 31 March 2012).
The POEO Act requires that publication of the monitoring data must be made within 14 days of the licensee obtaining monitoring data. This allows 14 days for all of the results to be collated into a meaningful summary for publication on a website, or provision to any person who requests it.
How must it be reported?
The POEO Act provides that monitoring data must be either published on a prominent location on the licensee's website or provided to any person who requests it in writing in the form preferred by the requester.
The EPA Guidelines require that the data must be published or provided in a format that is easy for the general public to understand and that table formats must be used. The EPA Guidelines offer various examples of the way in which monitoring data can be presented in table form.
The new requirements impose strict obligations on all holders of EPLs.
A failure to comply with these obligations will be an offence under the POEO Act and could result in the imposition of hefty fines as well as adverse publicity and reputational impacts.
It is therefore important that companies holding EPLs review and consider the EPA Guidelines, and establish processes for publishing all monitoring data recorded under each EPL that comply with both the POEO Act and the requirements of the EPA Guidelines. The EPA is welcoming questions and comments on the Guidelines, and will be reviewing them in 12 months. You should let the EPA know of any practical problems you encounter so it can be considered in the review.
If you would like further information about the potential impacts of the new reporting requirements on your operations, please contact us.
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