The NSW Environment Protection Authority (EPA) has in recent weeks released information which provides further guidance on the new environmental incident response obligations which commenced in February and March 2012.  This legal update analyses this new material and examines in detail the requirements for incident response plans, and for the publication of monitoring data.

As discussed in previous Norton Rose legal updates "NSW raises the bar on environmental incident response" and "Update: NSW raises the bar on environmental incident response", the Protection of the Environment Legislation Amendment Act 2011 (Amendment Act) recently introduced into the Protection of the Environment Operations Act 1997 (POEO Act) a number of new environmental incident response obligations including:

  • the requirement to notify reportable pollution incidents ‘immediately’;
  • a duty on holders of Environment Protection Licences (EPLs) and potentially other persons to prepare and implement Pollution Incident Response Management Plans (Response Plans); and
  • a requirement for holders of EPLs to make publicly available monitoring data that relates to pollution.

Following a period of consultation, this new information released by the EPA includes: 

  1. written guidelines outlining the required content of Response Plans and the associated testing requirements; and
  2. written requirements concerning the process for making pollution monitoring data publicly available.

Additionally, a new Chapter 7, Part 3A in the Protection of the Environment Operations (General) Regulation 2009 (Regulations) provides guidance on matters relating to the form, content, availability and testing of Response Plans.

Given the penalties that apply for non-compliance with these obligations (up to $2 million), and the detailed transitional provisions which currently apply, it is extremely important that persons affected by these obligations are aware of the new requirements for environmental incident response.

Duty to prepare, test and implement Response Plans

The Amendment Act now requires holders of EPLs to prepare, test and implement Response Plans for each licensed activity, in accordance with the requirements set out in Part 5.7A of the POEO Act.  While this requirement commenced on the 29 February 2012, a grace period of 6 months has been provided so that Response Plans need only be in place within 6 months, that is by 1 September 2012.

As of 29 February 2012, further specific details concerning such Response Plans have been outlined in a new Chapter 7, Part 3A of the Regulations, as well as in written guidelines prepared by the EPA titled “Environmental guidelines: Preparation of pollution incident response management plans” (Guidelines).

The Regulations confirm that Response Plans must be in written form, able to be made readily available and kept at the premises to which the relevant EPL relates or where the relevant activity takes place.

The holder of an EPL who already has an equivalent plan in place is not necessarily required to prepare a new or separate plan, provided that the information required by the POEO Act and Regulations is readily identifiable.

Included in the Regulations and Guidelines is an extensive list of matters that must be addressed in a Response Plan, as well as a requirement that the plan be tested routinely at least once every 12 months and within 1 month of any pollution incident occurring.

If a pollution incident occurs in the course of an activity at the premises so that material harm to the environment is caused or threatened, the person carrying out the activity must immediately implement any Response Plan that was developed to meet the requirements of the POEO Act.  The maximum penalty for failure to comply with this obligation is $2 million for a corporation and $500,000 for an individual.  There are also further daily penalties in the case of a continuing offence.

Requirement to make pollution monitoring data publicly available

Holders of EPLs are also now required by s66(6) of the POEO Act to make publicly available any pollution monitoring data that has been collected as a result of an EPL condition.  The mechanism for making such data publicly available is dependent upon whether the holder of the EPL maintains a website that relates to the business or activity the subject of the EPL.

This obligation commenced on 31 March 2012, and holders of EPLs have 3 months from the commencement date to comply with this requirement, which is by 1 July 2012.

The EPA has released written requirements detailing the process for making pollution monitoring data publicly available, titled “Requirements for publishing pollution monitoring data” (Requirements).   Holders of EPLs must follow these Requirements.  The Requirements address:

  • making the data publicly accessible – which includes a statement that the requirement to publish monitoring data on websites applies to corporate or global websites that relate to the business or activity that is the subject of the licence.
  • providing meaningful information – including that EPL holders who are required to publish their data on a website must include a meaningful summary of the monitoring data on at least a monthly basis in addition to certain other contextual information. Whether the summary is meaningful will depend on the pollutant, the specifics of the monitoring requirement and any related limit conditions that specify the environmental performance the licensee is obliged to meet.
  • what monitoring data must be published – being any data that is obtained as a result of a monitoring condition on an EPL that relates to air, water, noise and/or land pollution.
  • when the data needs to be published.
  • how the data should be published – with examples of formats that are easy for the general public to understand.
  • For how long the pollution monitoring data must be made publicly available - being up to four years of monitoring data where available.
  • other information that must be published with the data.
  • procedures for publication or provision of obtained data collected continuously; and
  • monitoring data not required to be published – including data which is used by the EPA to establish baseline conditions or when investigating noise, odour and dust issues (such as background, weather, complaint data).  Other data not required to be published includes load-based licensing data, National Pollutant Inventory data and national greenhouse and energy reporting data.

The maximum penalty for failure to comply with this obligation is $4,400 for a corporation and $2,200 for an individual.