The Protection of the Environment Legislation Amendment Act 2011 (Amendment Act) introduces several changes designed to improve the way pollution incidents are reported and managed. The changes apply to
all holders of an environment protection licence (licensees) under the Protection of the Environment Operations Act 1997 (POEO Act)
appropriate persons that undertake activities resulting in a pollution incident
What are the changes to the POEO Act?
The changes are to
make the duty to notify of a pollution incident immediate (instead of ‘as soon as practicable’ under section 148)
notify all relevant authorities, not just the appropriate regulatory authority (ARA) under the POEO Act. All relevant authorities comprise the ARA, the Environment Protection Authority (EPA) if they are not the ARA, the Ministry of Health, the SafeWork NSW (formerly WorkCover), the local authority such as the local council if they are not the ARA and Fire and Rescue NSW. As ‘immediate’ is not defined in the legislation, it has its ordinary meaning, that is, licensees need to report pollution incidents promptly and without delay to ensure that the appropriate agencies have the information they need to respond within an appropriate time
double to $2 million the maximum penalty for failure to notify of a pollution incident in accordance with the requirements of the POEO Act
allow the EPA to formally direct a person who is the occupier of a premises where a pollution incident has occurred to notify such other persons of the incident as the EPA thinks necessary
These changes commenced on Monday 6 February 2012.
Will the changes to the POEO Act apply to all industry in NSW?
All industry will be required to adhere to the duty to notify sections of the POEO Act, and report immediately to the appropriate regulatory authority and other response agencies if they have a pollution incident that triggers the reporting requirements in the Act.
All environment protection licence holders have been informed of their new responsibilities in writing; individual letters were sent on 16 January 2012.
How will industry know when to notify pollution incidents?
The type of incidents required to be notified have not changed. A pollution incident is required to be notified if there is a risk of ‘material harm to the environment’, which is defined in section 147 of the POEO Act
“(a)…harm to the environment is material if:
(i) it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or
(ii) It results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $10,000 (or such other amount as is prescribed by the regulations), and
(b) loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent, mitigate or make good harm to the environment.”
The changes to the notification requirements are not expected to increase the number of incident notifications; only the timing of the notification will change and the need for the polluter to notify all the designated response agencies.
It is the responsibility of the person with the obligation to notify to ensure that they comply with their notification requirements in accordance with the Act.
Should licensees continue to prioritise the safety of people and protecting the environment from further harm during a pollution incident?
Yes, ensuring the safety of people at a site and containing a pollution incident to the maximum extent possible are critical. The decision on whether to notify should not delay immediate actions to ensure the safety of people or contain a pollution incident. However, incident notification should be made as soon as it is safe to do so.
The planning that each licensee is required to do in preparing their pollution incident response management plan will assist licensees to ensure that they have the appropriate procedures in place to allow the incident to be notified promptly, depending on the nature of the incident and the site circumstances (e.g. if the incident happens on the night shift when there are fewer people on duty).
Who must be notified of a pollution incident?
Where the pollution incident causes or threatens material harm to the environment or human health, all the following authorities must be notified
The appropriate regulatory authority (ARA) for the activity under the POEO Act (usually the EPA or local council)
The EPA if they are not the ARA
The Ministry of Health (via Public Health Units)
SafeWork NSW (formerly WorkCover)
The local authority if it is not the ARA – a ‘local authority’ is a local council (being the council of an area under the Local Government Act 1993), or the Lord Howe Island Board for Lord Howe Island, or the Western Lands Commissioner for the Western Division, except any part of the Western Division within the area of a local council
Fire and Rescue NSW.
If I have an incident and I ring Fire and Rescue on 000, do I still need to ring the other five agencies?
Yes. Whenever you make an incident notification you must contact all five relevant authorities. These are the five authorities listed under Who must be notified of a pollution incident? above.
How else will licensees know who to contact and how?
All licensees are required to prepare pollution incident response management plans (PIRMPs) that include response agency and community notification protocols. The requirement for these plans commenced on 29 February 2012. Licensees have been provided with 6 months to complete these plans, so they will need to be in place by 1 September 2012.
The plans must include incident and emergency contact details for incident notification purposes. Licensees will have to
test their pollution incident response management plans to check they work effectively
maintain and regularly update the incident contact details
The plans must include the information contained in section 153C of the Amendment Act and the details prescribed by regulation. View the Regulation.
The EPA is also developing guidance to assist licensees in preparing their plans. Where licensees must meet existing requirements set by other State Government agencies, such as under SafeWork NSW (formerly WorkCover) legislation, the plan requirements have been designed to be complementary.
If I do not think that Fire and Rescue (or another response agency) needs to attend the incident, what do I do?
You should call 000 if the incident presents an immediate threat to human health or property. Fire and Rescue NSW, the NSW Police and the NSW Ambulance Service are the first responders. You must then notify the other four authorities listed under the question Who must be notified of a pollution incident?.
However, as detailed in the notification protocol, if the incident does not require an initial combat agency, you must still notify all of the response authorities (including Fire and Rescue) in the order given under the question Who must be notified of a pollution incident?.
If, at the time of making the notification, you believe that some of these authorities do not need to attend the incident, you may provide that advice. However, you must still provide all the information you have regarding the incident to each authority. It is the responsibility of each authority to decide whether they need to attend the incident.
Where authorities decide not to attend, the incident notification enables each authority to respond to enquiries about the incident and provides them with initial information in the event that the incident escalates or their involvement in managing the incident is required at some later stage.
How long do I have before I need to notify the incident?
You are required to notify ’immediately‘ if there is an incident that causes or is likely to cause material harm to the environment. Material harm is defined in the POEO Act.
’Immediately‘ simply means promptly and without delay. The amount of time that this actually takes is likely to change depending on the circumstances of the incident. You should satisfy yourself that you have acted promptly to notify the response authorities. This information is crucial for ensuring that the impact of the incident is minimised and contained as quickly as possible, and that all appropriate action is being taken.
Do I need to notify all incidents that I am required to report to the EPA under my licence?
No. Incident notification in accordance with Part 5.7 of the POEO Act is required for incidents that present an actual or likely risk of material harm to the environment (as defined in the Act). Licensees will need to determine which types of incident require notifying all six response agencies under Who must be notified of a pollution incident? and which require reporting only.
For example, for sewage treatment systems that are required to report overflows to the EPA, only a subset of sewage overflows are likely to present a risk of material harm to the environment.
When preparing their pollution incident response management plan, licensees will be required to consider the potential hazards and risks related to their operations and the types of pollution incident that they may need to notify.
What information do I need to provide to authorities when notifying them of a pollution incident?
Under section 150 of the amended POEO Act, the information about a pollution incident that must be notified is
the time, date, nature, duration and location of the incident
the location of the place where pollution is occurring or is likely to occur
the nature, the estimated quantity or volume and the concentration of any pollutants involved, if known
the circumstances in which the incident occurred, including the cause of the incident, if known
the action taken or proposed to be taken to deal with the incident and any resulting pollution or threatened pollution, if known
other information prescribed by the regulations
Notification is required immediately after a pollution incident becomes known. Any information required that is not known at the time the incident is notified must be provided when it becomes known.
Why have a power to direct a person to notify neighbours?
The EPA can now formally direct a person to notify others. This direction aims to require polluters to contact their commercial, industrial and residential neighbours to inform them of the circumstances of the incident and what action is being taken in response to it.
It will be an offence not to comply with such a direction.
Why does the Government not limit the notification requirement to incidents that involve hazardous chemicals?
It is not practical to limit the requirement for immediate reporting to a set of hazardous chemicals. That list would need to be amended from time to time and industrial facilities would need to keep up-to-date with any materials that are added or removed from the list. Adopting this alternative approach would mean delays could occur as companies determine the different types of chemicals involved in the incident and whether any of those substances are on the list before they can work out what their reporting obligations are.
Substances that may not be formally classified as hazardous can still have significant human health or environmental effects if released into the environment, for example, into sensitive environments such as waterways. There are too many possible scenarios that would warrant immediate notification and if the Government attempts to specify them, it is highly likely that some important types of incidents will be overlooked.
It is more appropriate and efficient to require immediate reporting of any incident that has the potential to cause material harm to human health or the environment, where that harm is not trivial.
Was the failure to comply with notification requirements not already an offence under the POEO Act?
Yes, it was. The changes are meant to increase the efficiency of the notification process. Doubling the existing maximum penalty provides a greater incentive to comply. Requiring immediate notification, expanding the number of agencies that must be notified and providing other powers will mean these incidents can be dealt with faster and more effectively because response agencies will have the information they need to assess the incident and determine their response to it.
These changes and increased penalties will send a strong signal to the regulated community about the seriousness of the notification requirements.