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:
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:
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.’
Section 150 of the POEO Act provides that the following information about a pollution incident must be notified:
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.
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.
Section 153C of the Amending Act requires PIRMPs to include the following information:
The Amendment Regulations require the following additional details to be included in PIRMPs:
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.
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:
The public disclosure of this information provides another strong incentive for licensees to rigorously observe their obligations under the POEO Act.
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.
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