NSW tightens environmental incident reporting requirements

Late last year, the New South Wales Parliament rushed through changes to the Protection of the Environment Operations Act 1997 (POEO Act) regarding pollution incident reporting requirements.

The proposed amendments to the legislation were prompted by an incident at a Newcastle Ammonium Nitrate plant where a release of hexavalent chromium into the atmosphere occurred in August last year. The plant has only recommenced operation this month.

The changes are yet to be gazetted, but are on the way, so I would suggest now would be a good time for companies to review their Emergency Response Procedures, especially if they have business interests in NSW.

In my experience, this is an area where the majority of industrial sites are highly exposed in both a practical and legal sense. Major Hazard Facilities are already required to routinely test their Emergency Response Procedures. Other organisations are not compelled to adopt this level of due diligence, but I believe it is prudent to do so.

The second major aspect of these proposed changes is the increased emphasis on providing information to the general community. This marks a milestone in the adoption of the “Community Right To Know” in Australia. This has previously been associated with United States’ laws. I have consistently advocated an open, transparent and proactive approach by industry when dealing with neighbours. These proposed changes to NSW environmental legislation codify that type of approach.

The details are as follows:

1. The proposed changes to incident reporting requirements include:

• Reduction in the timeframe for notification to “immediately”. Most other jurisdictions allow less defined time periods
• The requirement to notify up to six separate authorities of pollution incidents including the Environmental Protection Authority (EPA); the relevant local authority; the Ministry of Health; Workcover and Fire & Rescue NSW and
• Increased penalties for breaches of notification requirements.

2. In addition there is a proposed requirement  for more thorough record-keeping and increased public disclosure on a “ community right to know” basis:

• Environmental Protection Licence (EPL) holders must publish environmental monitoring data on their websites and make them available to the public upon request and
• The EPA must make available details of mandatory environmental audits, pollution studies, pollution reduction programs and any penalty notices issued to EPL holders.

3. Stronger investigatory and auditing powers including:

• Ministry of Health to conduct a health risk analysis if requested by the EPA
• EPA to conduct environmental risk analysis of the nature and extent of any pollution incident; and
• EPA to impose mandatory environmental audit conditions if the EPA reasonably suspects that such conditions are warranted.

4. A requirement for EPL holders to prepare, test and implement a pollution incident response management plan (PIRMP):

• There is a range of offences regarding failure to comply with these obligations
• The EPA may also require occupiers of unlicensed premises to prepare PIRMP.

These proposed changes in NSW legisation should be an incentive to all Australian companies to both review and test their Emergency Response Procedures to ensure that they are effective and that staff know how to respond to an emergency situation in an appropriate manner.

*Some of the information in this blog was originally published by Clayton Utz