Overview

Holders of environment protection licences will be aware of last year's amendment to the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) which now requires the publication of pollution monitoring data.  The manner and form of publication was prescribed in a document published by the NSW Environment Protection Authority (EPA) in March 2012 entitled 'Requirements for publishing monitoring data' (Written Requirements).

As the first anniversary of the Written Requirements approaches, the EPA has commenced a review of those requirements and has invited written submissions from stakeholders until 29 March 2013.

Introduction

During the last year, a suite of highly significant amendments to the POEO Act commenced, which were introduced in response to issues arising from the Orica incident in August 2011.  These amendments have been the subject of previous legal updates.

A particularly controversial amendment was the introduction of a requirement for holders of environment protection licences to publish pollution monitoring data on their websites or, if the licence holder does not have a website, to provide the data when it is requested by any person.

In March 2012, after a period of public consultation, the EPA published Written Requirements, providing detailed information concerning the manner and form of publication of pollution monitoring data.

The EPA has recently announced the commencement of its review of the Written Requirements and has invited public submissions on the review by 29 March 2013.

Publication of results of pollution monitoring

The requirement for licence holders to publish pollution monitoring data under section 66(6) of the POEO Act commenced on 31 March 2012, with a grace period for compliance until 1 July 2012.

The obligation was introduced in an attempt to improve the general public’s access to information regarding the environmental standards of the licensees’ facilities. However, the ongoing nature of the duty, the inequity between the requirements for licence holders who have a website and those that do not, and the timeframes within which data is to be published can make this requirement onerous and expensive for licence holders. Difficulties with compliance may also be especially pronounced for licence holders who have only a global corporate website, rather than a website specific to a single operating entity.

A range of issues were identified by various stakeholders during the consultation period in February 2012. A summary of the issues raised at that time, and the EPA’s response, is available here.

The Written Requirements subsequently published by the EPA are detailed in nature and prescribe the manner and form in which publication is to occur, including:

  • what monitoring data must be published;
  • when the data needs to be published;
  • how the data should be published;
  • how long the data must be kept publicly available; and
  • other information that must be published with the pollution monitoring data.

EPA review

As the first anniversary of the Written Requirements approaches, the EPA has commenced its review of the Written Requirements, stating that the scope of the review is to:

  • “identify and resolve any implementation issues that users have experienced in the first 12 months of operation and to simplify the requirements where appropriate; and
  • get the balance right so they provide the community with timely access to meaningful data whilst not being too onerous or costly for licensees to implement.”

The EPA will be accepting written submissions from stakeholders until 29 March 2013, by email and post.