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02 Feb 2012

Save the date(s): toughened pollution incident legislation to commence in February

by Claire Smith, Nicholas Allan

NSW's tough new pollution laws come into force soon, and businesses will have to move swiftly to ensure they comply

In November last year we reported on the passage of the Protection of the Environment Legislation Amendment Act 2011 (NSW). We warned that organisations whose activities risk causing pollution incidents should prepare to comply with the changes brought in by the Act, including increased reporting obligations and penalties, and requirements to prepare pollution incident response plans and publish environmental monitoring data.

The dates upon which most of these changes will take effect have now been announced and they leave little time for further preparation, with the first raft of amendments commencing on 6 February 2012, including the requirement for organisations to "immediately" notify of pollution incidents. Other key changes, set out below, will come into force on 29 February 2012 and 31 March 2012.

Pollution incident changes commencing 6 February 2012

On 6 February 2012, the following amendments will commence:

Changes to notification requirements following pollution incidents, including:

  • reduction in the time frame for notification of pollution incidents from "as soon as practicable" to "immediately";
  • introduction of continuous disclosure obligations requiring "immediate" disclosure of new information to the authorities as and when it comes to light;
  • increase in the number of authorities to be notified, potentially up to six; and
  • increases in the maximum penalties for breaches of these requirements, from $1 million to $2 million for corporations and $500,000 for individuals.

Widened scope for regulatory authorities to require Environment Protection Licence (EPL) holders to undertake mandatory environmental audits.

A new power of the Environment Protection Agency (EPA) to conduct a risk analysis of the impact of a pollution incident upon the environment, or to request the Ministry of Health to perform a risk analysis of the impact upon human health, and to recover the costs of such analyses from the suspected polluter or the occupier of the premises.

Pollution incident changes commencing 29 February 2012

On 29 February 2012, amendments to the Protection of the Environment Administration Act 1991 (NSW) will take effect, reconstituting the board of the EPA and changing its structure to promote greater independence and accountability.

Pollution incident changes commencing 31 March 2012

On 31 March 2012 the following amendments will commence:

  • the requirement for EPL holders to publish online (or provide copies upon request at no charge) any environmental data which the EPL holder is required to monitor and collect as a condition of its EPL, including authorised discharges from premises. This must be done within 14 days of obtaining the data. Also commencing on this date are related offences of failure to comply with this requirement, and publication of false or misleading results, both carrying a maximum penalty of $4,400 (for a corporation) and $2,200 (for an individual); and
  • expansion of the list of data that the EPA must publish on its public register in relation to EPL holders, so that the list will include details of any mandatory environmental audits undertaken, pollution studies or pollution reduction programs required to be undertaken and/or penalty notices issued to an EPL holder.

Existing EPL holders will have a three-month window after 31 March 2012 before which failure to publish environmental monitoring results will constitute an offence, and the requirement will not extend to monitoring conducted prior to 31 March 2012.

On 1 February 2012 the EPA released draft guidelines for the publication of environmental monitoring data, and has invited written comments and submissions on the draft by 24 February 2012. These guidelines deal with logistical issues such as the presentation of data, the length of time for which it should be publicly available, and how to deal with data that is collected continuously.

Pollution Incident Response Management Plans – watch this space

Notably, no commencement date has yet been announced for the new requirement for EPL holders to prepare, test and implement pollution incident response management plans (PIRMPs). EPL holders will have six months from the date of commencement to implement PIRMPs before an offence is committed.

However, on 23 January 2012 the EPA released a consultation paper on proposed regulations which will prescribe further detail on the content of PIRMPs. The proposed regulations are open for public comment until 8 February 2012.

Some of the details that the EPA has proposed should be included in PIRMPs (except those prepared by waste transporters) are:

  • an outline of hazards to human health and the environment at an EPL holder's premises;
  • action that will be taken to control, minimise or avoid those hazards;
  • an inventory of potential pollutants at the premises, and details of their quantity and location at the premises;
  • a detailed map of the premises and the surrounding area likely to be impacted by a pollution incident;
  • the names, positions and 24 hour contact details of key person(s) who are responsible for activating the PIRMP and are authorised to liaise with the relevant authority and manage the pollution incident;
  • the names and contact details of the owners and occupiers of premises (including private residences) in the vicinity of the EPL holder's premises, and mechanisms for providing early warning and regular updates to those parties; and
  • training that will be provided to staff to ensure that they can effectively implement the PIRMP.

These proposals have been criticised by organisations who argue that the requirement to disclose the quantity and location of hazardous pollutants could give rise to security risks and commercial confidentiality concerns.

Waste transporters will, according to the consultation paper, need to prepare PIRMPs covering transport of trackable waste including, amongst other things, provision of contact details, procedures for notification of each relevant authority and procedures to prevent pollution incidents.

The EPA has proposed that copies of a PIRMP must be made public within 14 days of its finalisation. PIRMPs are likely to require review once every 12 months and within one month of any pollution incident.

Watch this space for further updates once the regulations are finalised and the commencement date for implementing PIRMPs has been announced.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.