Under section 66 of the Protection of the Environment Operations Act, the NSW EPA has been empowered to include conditions in licenses that require environmental monitoring. This monitoring can include sampling and testing of discharges to the air and to receiving waters, ambient conditions either at or outside a licensed premises, and operating and maintenance practices.
The recently adopted Protection of the Environment Legislation Amendment Act 2011 included additions to section 66 which will require licensees to publish any monitoring data that "relates to pollution" on their Websites. Those licensees that do not maintain Websites that relate to the business or activity that is the subject of the Website will be required to provide copies of this monitoring data to any person who asks for it, and to do so at no charge.
The monitoring data will have to be published within 14 days of the time that the monitoring data is obtained by the licensee.
The requirement to publish the data (or to provide it on request in cases where the licensee does not have a Website) will come into force for existing licensees on 1 July 2012. Monitoring data that is collected prior to 31 March 2012 will not be subject to the publication requirement.
The EPA has indicated that it intends to provide final guidelines with respect to the publication of environmental monitoring data by 30 March 2012.
The amendments to section 66 of the POEO make it an offence either to fail to publish the monitoring data, or to provide data to the public that is false or misleading in a material respect.
The penalties for a breach are $4,400 for companies and $2,200 for individuals; it is a separate offence, and one that is subject to substantially more severe penalties ($1 million in the case of a corporation) to provide false or misleading monitoring data to the EPA.
It can be anticipated that the monitoring data that is published as a result of the amendments to section 66 will be carefully scrutinised by members of the public who live in close proximity to industrial premises, as well as by environmental advocacy organisations. Further, data that is made public due to these new requirements may be relied on as the basis for citizen lawsuits under section 219 of the POEO. Such lawsuits may be brought either to seek the imposition of monetary penalties, or to restrain or require the clean up of pollution. Consequently, the introduction of the publication requirement should prompt licensees to exercise particularly strong vigilance to avoid committing a breach of the POEO.
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