What are the changes to the POEO Act 1997 that relate to pollution incident response management plans?
Changes to the POEO Act
- require licensees to prepare, implement and test pollution-incident management plans (that include community notification and communication protocols) for each of their licensed activities according to the requirements set out in part 5.7A of the POEO Act and details contained in a regulation Protection of the Environment (General) Amendment (Pollution incident response management plans) Regulation 2012 which amends the Protection of the Environment Operations (General) Regulation 2009. (This commenced on 29 February 2012.)
- enable the EPA to prepare a regulation that requires specified non-licensed activities to prepare, implement, test and report on pollution incident response management plans that include community notification and communication protocols.
- introduce new penalties for not complying with the requirements to prepare and implement pollution incident response management plans.
When will I need to have a plan in place?
The dates for having a plan in place will depend on whether you are an existing environment protection licence holder or a new licensee:
- existing licensees will be given six months from the regulation commencement date to prepare their plan. The commencement date was 29 February 2012, so an existing licensee will need to have a plan in place by 1 September 2012.
- for new licensees, the six-month transitional period will not apply, so they will need a plan in place prior to becoming operational.
What should be in a pollution incident response management plan?
The plans must include the information contained in section 153C of the Protection of the Environment Legislation Amendment Act 2011 and the details prescribed by the POEO (General) Regulation 2009.
These requirements are explained further in the Environmental guidelines: preparation of pollution incident response management plans.
Each plan will be required to specify the relevant local emergency response agencies, their precise contact details and how and when they will be contacted.
The guideline contains further detail on the information that must be included in the plan. Specifically, there is information on
- description and likelihood of hazards
- pre-emptive actions to be taken
- inventory of pollutants
- safety equipment
- communicating with neighbours and the community
- minimising harm to persons on the premises
- actions to be taken during or immediately after a pollution incident
- staff training
Will the changes to the POEO Act apply to all industry in NSW?
At this stage, the requirements for pollution incident response management plans apply to licensed facilities only. However, the EPA now has the ability to develop a Regulation to apply these requirements to non-licensed activities if needed.
How did the EPA respond to the issues raised in the public consultation process on the Regulation for the plans?
In addition to the feedback received at the public information sessions on the proposed contents of the draft Regulation, the EPA received over 40 written submissions.
All issues raised during consultation were considered in finalising the Regulation and guidelines.
For example, changes have been made in terms of security and privacy issues. The Regulation now requires only a limited component of the plan to be made publicly available and any personal information within the meaning of the Privacy and Personal Information Protection Act 1998 is excluded. Also, the proposal to include the names and contact details of neighbours in the vicinity of a premises was removed.
Some issues are addressed through the guidelines rather than the Regulation, such as providing clarification around the options available to notify the community of an incident. This allows for greater flexibility.
View detail on the public consultation outcomes
How will licensees know who to contact and how if an incident occurs?
All pollution incident response management plans will need to include response agency and community notification protocols.
Licensees have been provided with the guideline protocol for industry notification of pollution incidents. It contains the information and procedure for those responsible to report a pollution incident to authorities. This information will form part of the licensees’ plan.
What if I already have an emergency response plan, can I use this to meet my requirements under the POEO Act?
Where licensees must meet existing requirements for similar plans required by other legislation, such as a dangerous goods transport emergency plan, or set by other state government agencies such as SafeWork NSW (formerly WorkCover), the pollution incident response management plan (PIRMP) can form part of another emergency plan. However, the information in the other plan must clearly indicate that it meets the requirements of the PIRMP. Alternately, the PIRMP may be an index document that refers to the other plans that meet the requirements of the PIRMP.
Doesn’t the EPA already require licensees to prepare pollution incident response management plans?
Yes, the EPA could require the licensee to prepare such plans via a licence variation. However, as there are over 2,600 environment protection licences, it would be a time-consuming and resource-intensive task to individually amend the licences that currently do not require the licensees to prepare and implement such plans.
How often will the pollution incident response management plans need to be tested?
The plans - and the contact details especially - will need to be tested and maintained to ensure that the information in the plan is accurate and up to date and the plan can be implemented in a workable and effective manner.
Under the Regulation, a plan will need to be routinely tested at least once every 12 months.
Plans will also need to be reviewed within one month of any pollution incident occurring. This should address any issues with implementing the plan that become known during or following an incident. For example, incorrect contact details or an inaccuracy in a map.
Why should non-licensed facilities also be required to prepare plans?
Serious pollution incidents can also occur at non-licensed premises. The EPA has a regulation-making power to specify the types of non-licensed industrial premises that are required to prepare similar plans and protocols. These plans will also include community notification and communication protocols.
In practice, this requirement would be applied to higher-risk polluting facilities where ongoing regulation via an environment protection licence is not required and the risks associated with a pollution incident can be addressed by appropriate response planning.
What information will be made available to the public and how?
The feedback received during public consultation highlighted security issues related to making the whole plan publicly available. In response, only certain parts of the plan need to be made publicly available. These include issues relating to the procedures to notify and provide information to neighbours and relevant authorities in the event of an incident.
Under the Protection of the Environment (General) Amendment (Pollution Incident Response Management Plans) Regulation 2012, only certain parts of the plan need to be made available either on the licensee’s website. These parts are outlined in the POEO Act under section 153C(a) and clause 98C(1)(h) and (i) or (2)(b) and (c). If the licensee does not have a website, then they must provide a copy of the plan to any person who makes a written request.
How will privacy issues be addressed if the plan is made available to the public?
Under the Regulation, personal information within the meaning of the Privacy and Personal Information Protection Act 1998 is not required to be included in the parts of the plan that are made available to the public.
Do I need to submit my plan to the EPA for approval?
You do not need to submit your plan to the EPA for approval. The EPA does not approve of or endorse the plans. The role of the EPA is to set objectives for environmental management, not to be directly involved in the development of strategies to achieve those objectives.