Proposed amendments to the Protection of the Environment Operations Act

On 11 October 2011, the Protection of the Environment Legislation Amendment Bill 2011 ("Bill") was introduced to Parliament.

The Bill arose from the Orica Kooragang Island incident which was the subject of an independent inquiry undertaken by Brendan O'Reilly (former Director-General of the Department of Premier and Cabinet) ("O'Reilly Report").

On 5 October 2011, the Premier of NSW, Mr Barry O'Farrell announced new pollutions laws would be introduced to accept all recommendations of the O'Reilly Report.

The Bill contains those new pollution laws.  Some of the key proposed amendments are:

  • The requirement that when a pollution incident occurs that causes or threatens material harm to the environment, an expanded list of Government authorities must be notified immediately rather than "as soon as practicable".
  • The government authorities that now must be notified include the EPA, Council if it is the appropriate regulatory authority under the POEO Act, the Ministry of Health, WorkCover Authority and Fire and Rescue NSW.  The EPA may also direct a person to notify such other persons of the pollution incident as the EPA requires.
  • The information about a pollution incident required to be notified to the expanded list is the information known when the report is made immediately after the pollution incident occurs. If further information later becomes known, that information must also be immediately notified to the same government authorities.
  • Doubling of maximum penalty for failing to report an incident "immediately" to $2 million, for a corporation, and $500,000 for an individual.
  • The requirement for premises with an Environmental Protection Licence ("EPL") to prepare, implement and test a pollution incident response management plan in relation to the activity to which the licence relates within 6 months of the commencement of the amendments.  Such plan must include such details as the procedures to be followed in notifying a pollution incident, the action to be taken following a pollution incident to reduce/control any pollution, and the procedures to be followed for co-coordinating with relevant authorities.
  • Increased power to require EPL holders to conduct mandatory environmental audits where the regulatory authority reasonably suspects that an activity has been or is being carried out by the holder of the EPL in an environmentally unsatisfactory manner.
  • To require public access to be given to monitoring data required to be recorded by the holders of EPLs on their websites, or publicly available to any person who requests it at no charge, within 14 days of that data being obtained.  Monetary penalties in the amount of $4,400 will be introduced for failing to comply or for publishing false/misleading information.  

We will continue to monitor the Bill but expect, given the recommendations in the O'Reilly Report, that it will be passed with little amendment.