The Protection of the Environment Legislation Amendment Act 2011 (Amendment Act) introduces significant changes to the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), which aims to improve the way in which pollution incidents are reported and managed. You must review your incident response and notification processes now.
Changes to the POEO Act, which commenced on 6 February 2012, impose strict pollution incident notification requirements upon all persons that undertake activities resulting in a pollution incident. The key changes are:
- Pollution incidents that cause or threaten material harm to the environment must be notified immediately (rather than 'as soon as practicable', as was formerly required).
- The relevant authorities that must be notified of a pollution incident have been expanded and are now the Environment Protection Authority (EPA), the Ministry of Health, WorkCover NSW, the local council and Fire and Rescue NSW.
- If further information becomes known after the initial notification has been made, all of the relevant authorities must also be notified of that further information immediately.
- The EPA can now direct a person who is the occupier of a premise where a pollution incident has occurred to notify such other persons of the incident as the EPA thinks necessary. This allows the EPA to require polluters to contact their neighbours to inform them of the incident and what action is being taken in response to it.
- The maximum penalty for failing to immediately notify a pollution incident or comply with an EPA direction to notify has been doubled to $2 million (for a corporation) and $500,000 (for an individual).
Further changes to the POEO Act, which are yet to commence, impose the following additional requirements on holders of environment protection licences under the POEO Act:
- All holders of Environmental Protection Licences (EPLs) must now provide public access to monitoring data, as recorded under an EPL.
- All EPL holders must now prepare and implement a Pollution Incident Response Management Plan (PIRMP) for each licensed activity.
The PIRMP is to be kept at the relevant premises and must be tested. A failure to prepare, test or keep a PIRMP as required will be an offence and result in maximum penalties of $1 million for corporations and $250,000 for individuals. Failing to implement the PIRMP in the event of a pollution incident will also be an offence carrying a maximum penalty of $2 million for corporations and $500,000 for individuals.
The EPA is preparing a Regulation to specify the content of the PIRMPs. The required content is likely to include the procedures to be followed by the licence holder or occupier of the premises in notifying a pollution incident to the local community in the vicinity of the incident and all relevant government authorities, and a detailed description of the action to be taken immediately after a pollution incident to reduce or control any pollution.
Section 148 of the amended POEO Act provides that, where a pollution incident causes or threatens material harm to the environment, the person carrying on the activity, employers, and occupiers of premises where an incident occurs must notify each relevant authority of the incident immediately after becoming aware of it.
The definitions of 'pollution incident' and 'material harm to the environment' in the POEO Act remain unchanged.
There is no definition of 'immediately' in the amended POEO Act. However, the Second Reading Speech of the Protection of the Environment Legislation Amendment Bill, and guidance on the changes to the POEO Act provided on the Office of Environment and Heritage website, state that the term immediately means 'promptly and without delay'.
The guidance provided on the Office of Environment and Heritage website also states that ensuring the safety of people at a site and containing a pollution incident to the maximum extent possible are critical and that the decision on whether to notify should not delay immediate actions to ensure the safety of people or contain a pollution incident. It is suggested that incident notification should be made as soon as it is safe to do so.
The amount of time that notification actually takes is likely to change depending on the circumstances of the incident. A degree of practicality and common sense will need to be applied in order to ensure that notification occurs promptly and without delay in the specific circumstances of any given pollution incident.
The amendments to the POEO Act impose strict obligations on all companies whose activities have the potential to impact upon the environment. It is therefore imperative that companies review and adjust their pollution incident response systems and notification processes to ensure that they will comply with the newly enacted requirements in the event that a pollution incident occurs.
It is also important that all companies be aware, and make their employees aware, of their legal rights in the event that a pollution incident occurs. For example, if an incident occurs and company premises are attended by the EPA, what are your obligations to cooperate with the EPA, what information are you obliged to provide and what may you be within you rights to decline to provide?
In this regard, it is important to have a communications action plan in place, and to seek legal advice early if a pollution incident occurs or an EPA investigation is anticipated because of a breach of the POEO Act or EPL.
Companies holding EPLs should monitor the introduction of the Regulations and start preparing to implement a PIRMP for each EPL that they hold and establish processes for publishing all monitoring data recorded under each EPL.
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.
While the new pollution incident response laws apply only in NSW, the principles of incident response are relevant in all jurisdictions and these new reporting obligations bring higher expectations and potentially legislative changes in other jurisdiction. The approach taken in the Amendments to the POEO Act may influence and guide the way other states choose to manage their reporting legislation.
If you would like further information about the changes to the POEO Act and the potential impacts on your operations, DLA Piper will be holding workshops on these changes and the practical implications of them in both Sydney and Melbourne. Please register your interest in attending one of these workshops here.
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