Update: NSW raises the bar on environmental incident response

February 2012 Author: Jacinta Studdert

Contacts

Introduction

In our previous legal update, NSW raises the bar on environmental incident response, published on 6 December 2011, we outlined the significant amendments made to the Protection of the Environment Operations Act 1997 ( POEO Act). These included new requirements that will require parties to notify pollution incidents immediately (rather than as soon as practicable), and for holders of environment protection licences and occupiers of premises (if requested by the EPA) to prepare and implement pollution incident response management plans.

The Office of Environment and Heritage (OEH), and the EPA, have now published additional material which provides further information on how the amendments are proposed to operate in practice.

Commencement

The Commencement Proclamation has now been made. Most of the amendments to the POEO Act are due to commence in three tranches, between 6 February 2012 and 31 March 2012. However, the amendments relating to the preparation of a Pollution Incident Response Management Plan still do not have a commencement date.

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Duty to Notify Immediately

The OEH recently released a protocol for industry notification of pollution incidents, to be complied with when there is a duty to notify a pollution incident immediately. The protocol states that if the incident presents an immediate threat to human health or property, 000 should first be called.

Following that, or if there is no an immediate threat to human health or property, there is a hierarchy of various government authorities that must be notified. There may also be requirements to notify Workcover, if there are OH&S aspects to the incident.

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Pollution Incident Response Management Plans

The new requirement for Pollution Incident Response Management Plans (PIRMP) has been the subject of a fair amount of discussion and debate. The EPA recently published draft guidelines on the new requirements for PIRMPs, including details of proposed regulations to complement the amendments to the POEO Act. Some more notable aspects include requirements to:

  • detail hazards to human health and the environment, the likelihood of such hazards occurring, and the actions to be taken if such hazards occur in the PIRMP;
  • identify potential pollutants at the premises, including quantity and location of such pollutants and safety equipment available;
  • publish names and contact details of various employees or parties with responsibilities under the PIRMP;
  • detail the safety equipment and infrastructure to be used to minimise risk to human health and environment and to contain or control the impacts of a pollution incident;
  • set out the procedures for notification in response to any incident;
  • publish monitoring data on the licenseeā€™s website for two years, including emission limits and details of sampling;
  • include a detailed map of the premises and surrounding area; and
  • provide training on and test the PIRMP.

As waste transportation is not premises-based, there are some different requirements proposed for PIRMPs in respect of waste transportation.

Concerns have been raised that the requirements to publish certain information, including the location and nature of potential pollutants, combined with plant layout and contact details, could cause security, privacy and commercial in confidence issues. The EPA advised on 1 February 2012, that it is consulting with NSW Police in respect of any security issues that the requirement to publish such details may cause.

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What next?

Public submissions on the draft PIRMP guidelines have been invited by the EPA. The period for submissions closes on 24 February 2012.

For those who hold environment protection licences, it is important to understand how the PIRMP requirements will work in practice, and to consider whether to make a submission by 24 February 2012.

Companies must also be aware that as some of the amendments have commenced, they now have a duty to notify pollution incidents immediately. Procedures and training should be updated to ensure compliance.

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