[authors: Andrew Beatty, Jennifer Hughes]
The Protection of the Environment Legislation Amendment Act 2011 (the Act) received assent from the New South Wales State Parliament on 16 November 2011. The Act is the government's response to the issues arising from the Orica industrial complex incident at Kooragang Island near Newcastle and other recent incidents involving major hazardous facilities. The Act has been passed but has not yet come into force. It will do so on a day appointed by proclamation.
This client alert looks at:
• the new obligations imposed on licence holders to report a "pollution incident";
• who must prepare Pollution Incident Response Management Plans and what they involve;
• permitted audits and investigations under the Act; and
• requirements on the publication of monitoring data.
Reporting a "Pollution Incident"
• increases the number of regulatory authorities that must be informed of an incident;
• increases the maximum penalty for failure to report an incident.
What is a "pollution incident" that must be reported to an authority?
ces the timeframe in which the report of the incident must be made; and
The Act does not provide any further clarification of what constitutes a pollution incident that must be reported to the relevant bodies beyond that which already exists in the Protection of the Environment Operations Act 1997. That definition is that a pollution incident is "an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise".
Which regulatory authorities that must be informed of an incident?
The Act requires that a person must now notify the pollution incident to the following authorities:
the appropriate regulatory authority;
• the Environment Protection Authority (EPA)(whether or not it is the appropriate regulatory authority);
• if the EPA is the appropriate regulatory authority – the local authority for each area in which the pollution incident occurs;
• the Ministry of Health;
• the WorkCover Authority; and
• the Fire and Rescue NSW.
What is the timeframe in which report of the incident must be made?
The Act reduces the timeframe for the reporting of incidents from "as soon as practicable" to "immediately". "Immediately" is not further defined under the Act, however, the following provisions in the Act point to the fact that that reporting of the incident must occur as soon as a person has notice of the incident:
• the incident is required to be notified "verbally" and notification in writing must follow within 7 days. This indicates that "immediately" is to occur by phoning the EPA environment line as soon as the incident occurs. Indeed, in the Agreement in Principle Speech, the Minister for the Environment and Heritage, Ms Parker, says that "immediately" means that entities need to "immediately pick up the phone"; and
• notice to the EPA is not to be delayed because a person is waiting for further facts. One of the amending provisions provides that immediate notice of the incident must occur as soon as the incident occurs, and that subsequent details are to be immediately relayed to the EPA as they become known.
What is the Penalty for Failure to Report Incidents?
The Act increases the penalty for failing to notify authorities of a pollution incident immediately from:
• $1,500 to $5,000 for a corporation; and
• $750 to $1,500 for an individual.
Pollution Incident Response Management Plans
A Pollution Incident Response Management Plan must (Response Plan) now be prepared by:
• all holders of Environment Protection Licences; and
• occupiers of premises that are not licensed but are nevertheless specifically required by the EPA to formulate a Management Plan.
A Response Plan must be:
• kept at the premises;
• tested; and
What must be included?
A Response Plan must:
• detail the procedures to be followed in notifying a pollution incident to:
1. the owners or occupiers of premises in the vicinity of the premises;
2. the local authority for the area in which the premises are located and any area affected, or potentially affected, by the pollution;
3. any other relevant authority; and
4. in the case of persons engaged by the employer or occupier – the employer or occupier.
• provide a description of the action to be taken immediately after a pollution incident to reduce or control any pollution;
• set out procedures for coordinating with the authorities or other nominated persons any action taken in combating the pollution caused by the incident.
What is the penalty for failing to prepare a Response Plan?
The failure of either a licence holder or a non-licensed occupier of premises to prepare such a plan will result in a maximum penalty of:
• in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues; or
• in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
Permitted audits and investigations
The Act provides that a mandatory environmental audit can now be imposed on an environment protection licence if the appropriate regulatory authority reasonably suspects that an activity has been or is being carried out in an environmentally unsatisfactory manner.
Human health and environmental risk investigations
After a pollution incident has occurred:
• the Chief Health Officer of the Ministry of Health may conduct an analysis of the pollution incident from the perspective of risk to human health; and
• the EPA may conduct an analysis of the pollution incident from the perspective of environmental risk.
Those responsible for the pollution incident will be required to pay the reasonable costs and expenses of the investigations.
Publication of Monitoring Data
The holder of an Environment Protection Licence that has a condition that provides that monitoring of an activity or work is authorised, required or controlled by the licence must now make the monitoring results that relate to the pollution publicly available:
• on the internet; or
• if the licence holder does not have a website – the holder must provide the monitoring results to any person who requests a copy of them.