New requirements for pollution incident response management plans

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In November 2011, the Protection of the Environment Legislation Amendment Act 2011 (NSW) (Amending Act) was passed by Parliament. This Act amends the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) and aims to improve the reporting and management of pollution incidents in New South Wales.

Key changes include stricter notification requirements for pollution incidents and new duties to prepare and implement pollution incident response management plans (PIRMPs). These changes apply to holders of environment protection licences under the POEO Act and appropriate persons who undertake activities resulting in a pollution incident. 

The amendments will be implemented in 2012 as follows:

  • New pollution incident notification requirements commenced on 6 February 2012.
  • The Environment Protection Authority’s (EPA) expanded enforcement powers commenced on 6 February 2012.
  • The duty to prepare PIRMPs commenced on 29 February 2012.
  • Requirements for licensees to publish monitoring results commences on 31 March 2012.
  • Expanded requirements for the disclosure of information in the public registers of appropriate regulatory authorities (such as the EPA and local councils) commences on 31 March 2012.
  • Licensees must have prepared their PIRMPs by 1 September 2012.

Additional pollution incident notification requirements

Under section 148 of the POEO Act, licensees and anyone causing a pollution incident are required to report pollution incidents. The Amending Act makes the following changes to this reporting obligation:

  • the pollution incident must be reported ‘immediately’, rather than ‘as soon as practicable’ which was the previous requirement under section 148;
  • ‘each relevant authority’ must be notified of the pollution incident, not just the appropriate regulatory authority under the POEO Act. Relevant authorities may include, but are not limited to, the EPA, the Ministry of Health, the WorkCover Authority, local councils and Fire and Rescue NSW;
  • the EPA is able to direct the occupier of the premises where the pollution incident occurred to notify any other person of the incident that the EPA considers necessary; and
  • the maximum penalty for failing to notify of a pollution incident in accordance with the requirements of the POEO Act has been doubled to $2 million.

Pollution incidents requiring notification

There is no change to the type of pollution incidents which must be notified, namely where there is a risk of ‘material harm to the environment’. Section 147 of the POEO Act provides that ‘(a)…harm to the environment is “material” if:

(i) it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or
(ii) it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $10,000 (or such other amount as is prescribed by the regulations), and

(b) 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.’

Information requiring notification

Section 150 of the POEO Act provides that the following information about a pollution incident must be notified:

  • the time, date, nature, duration and location of the incident;
  • the location of the place where pollution is occurring or is likely to occur;
  • the nature, the estimated quantity or volume and the concentration of any pollutants involved, if known;
  • the circumstances in which the incident occurred (including the cause of the incident, if known);
  • the action taken or proposed to be taken to deal with the incident and any resulting pollution or threatened pollution, if known; and
  • any other information prescribed by the Regulations.

Notification of the pollution incident must be made immediately after a pollution incident becomes known. The duty to notify is also ongoing and any information that is not known at the time the incident is notified must be provided when it becomes known.

Duty to prepare and implement pollution incident response management plans

The Amending Act also introduces a new Part 5.7A of the POEO Act which requires licensees to prepare PIRMPs in relation to each licensed activity. Licensees must also ensure that the PIRMP is kept at the premises to which it relates, it is tested in accordance with the Regulations and it is implemented when a pollution incident occurs. On 29 February 2012, the Protection of the Environment Operations (General) Amendment (Pollution Incident Response Management Plans) Regulation 2012 (Amendment Regulations) commenced. The Amendment Regulations specify the content to be included in PIRMPs. Penalties for failing to prepare, keep or test the PIRMP are $1,000,000 for a corporation and $250,000 for an individual, while the penalties for not implementing the PIRMP are twice these amounts.

Information to be included in PIRMPs

Section 153C of the Amending Act requires PIRMPs to include the following information:

  • procedures for notifying certain persons of pollution incidents (including to local owners and occupiers);
  • detailed plans of action to reduce or control any pollution immediately after a pollution incident;
  • procedures for combating the pollution from such an incident, including the persons through whom communications are to be made; and
  • any other matters required by Regulations.

The Amendment Regulations require the following additional details to be included in PIRMPs:

  • a description of the hazards to human health and the environment at the licence holder’s premises;
  • the likelihood of these hazards occurring and conditions that may alter this risk, as well as actions that will be taken to control, minimise or avoid these risks;
  • inventories of potential pollutants at the licence holder’s premises and safety equipment and infrastructure that can be used to minimise these risks and contain or control the impacts of pollution incidents;
  • the maximum quantity of any pollutant likely to be stored or held at particular locations;
  • the contact details of key persons responsible for the plan;
  • the contact details of each relevant authority;
  • mechanisms for providing early warnings and regular updates to neighbouring premises, as well as a description of how any identified risks of harm will be reduced;
  • detailed maps of premises and their surrounding areas;
  • the nature and objectives of any staff training program in relation to the plan;
  • the dates on which the plan is updated; and
  • the manner and dates on which the plan is to be tested and maintained.

PIRMPs need to be tested routinely at least once every twelve months and within one month of any pollution incident occurring. Licence holders must also ensure that their PIRMPs are available to the public on their website or in print, free of charge, if the licence holder does not have a website.

Separate Regulations have been made for transporters of trackable waste as these licence holders already have to comply with certain other procedures to minimise the risk of pollution incidents and manage hazardous wastes.

Other changes to the POEO Act

The Amending Act also introduces new conditions for licensees relating to the monitoring, certification or provision of information. Section 66(6) of the POEO Act requires licensees to publish the pollution monitoring data that has been collected as a result of a licence condition within 14 days of obtaining the monitoring data. The publication of false or misleading data may result in penalties of $4,400 for corporations and $2,200 for individuals.

The EPA has now been given expanded powers to place a condition on a licence requiring a mandatory environmental audit and to compel the occupier of premises and any person reasonably suspected of causing a pollution incident to pay for an analysis of the human health and environmental risks arising from the incident. The EPA may also direct the occupier of premises where a pollution incident has occurred to notify anyone the EPA thinks necessary.

The information to be included on the public registers of appropriate regulatory authorities will soon expand to include details of:

  • mandatory audits required to be undertaken in relation to a licence;
  • pollution studies required by a condition of a licence;
  • pollution reduction programs required by a condition of a licence; and
  • penalty notices issued by the regulatory authority.

The public disclosure of this information provides another strong incentive for licensees to rigorously observe their obligations under the POEO Act.

Implications

The above reforms substantially increase the responsibility and accountability of corporations and their officers for reporting and managing pollution incidents in New South Wales. These changes reflect the harsher approach adopted by the EPA since the change of State Government in NSW.

The new offences created by these amendments expose directors and managers of corporations to increased risk of prosecution. Consequently, systems should be put in place urgently to comply with the amendments, ensure foolproof reporting regimes are in place and that staff and contractors are regularly trained in pollution incident response procedures.


The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.


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Christine Covington

Partner. Sydney
+61 2 9210 6428

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