Significant changes have been made to the Protection of the Environment Operations Act ("POEO")concerning the duty to notify the government about pollution incidents. These changes relate to when notification must be given; to who must be notified; and to the penalties that may be imposed for failure to comply with the duty to notify.
The amendments to the notification requirements came into force on 6 February 2012, as a result of the enactment of the Protection of the Environment Legislation Amendment 2011. The adoption of the legislation was prompted by public outcry and a storm of media criticism concerning delays in notifying an incident involving a leak of hexavalent chromium into the air from a chemical plant near Newcastle that occurred in August 2011.
The duty to notify applies to all persons who have carried out activities that have either caused or threatened "material harm to the environment" - defined under section 147 of the POEO to mean actual or potential harm to the health or safety of human beings or ecosystems that is not trivial, or that results in actual or potential property loss or property damage greater than $10,000. Consequently, the duty to give notification of pollution incidents extends not only to the holders of environment protection licenses issued under the POEO, but to any person who has caused a spill or release of pollutants involving material harm.
Under the amendments, section 148 of the POEO has been changed to require that notification be given immediately after the reponsible person becomes aware of the pollution incident. Previously, section 148 required only that notification be provided "as soon as practicable". This prior wording of the legislation created substantial ambiguity concerning the time frame within which notice is required. The intent of the amendment is to make clear that the notice must be given promptly and without delay.
The amendments also expand the list of agencies that must be notified about a pollution incident. The former legislation specified only that the "appropriate regulatory authority" - usually either the EPA or the local council - be informed. Therefore, it was previously sufficient to notify only one branch of government. The amendments now specify that notice be given for every incident to each of five "relevant authorities", defined under the new section 148 to include the EPA, the appropriate council, the Ministry of Health, the WorkCover Authority and Fire and Rescue NSW.
The potential penalties that may be imposed for a breach of the notification requirement have been made substantially more severe. The maximum penalty is now $2 million in the case of a corporation, and $500,000 in the case of an individual, double the previous maximums.
In addition to these changes, the amendments introduce a new section to the POEO, section 151A, which empowers the EPA to require the occupier of premises where a pollution incident has occurred to notify other persons - such as commercial, industrial and residential neighbours or the general public - about the event. The EPA can give such a direction orally.
It is indeed noteworthy, in light of the intensity of complaints from the public that they were not appropriately told about the hexavalent chromium leak, that the NSW Parliament did not see fit to require in the amendments that either occupants of neighbouring properties, or the public at large, be notified about every incident involving actual or threatened material harm to the environment. Therefore, as the law now stands, it will remain within the discretion of the EPA to determine whether, and in what circumstances, a person responsible for a spill or leak must provide notice to members of the public who may be impacted by an incident.
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