Holders of environment protection licenses in New South Wales will be required to prepare and implement "Pollution Incident Response Management Plans" as a result of recent amendments to the Protection of the Environment Operations Act. Plans must be prepared for every licensed facility in the State by 1 September 2012. Licensees who fail to prepare these contingency plans, and those that fail to implement them may be subject to severe monetary penalties.
The requirement that licensees adopt Pollution Incident Response Management Plans was introduced to the POEO through the Protection of the Environment Legislation Amendment 2011. This amendment added several new sections to the POEO (153A - 153F). These sections specify the information that must be included in the Plans (153C), require that copies of the Plans be kept at the facilities to which they relate (153D), mandate that the Plans be tested for effectiveness annually (153E) and direct that the remedial measures that are detailed in the Plans be carried out when incidents occur that cause or threaten material harm to the environment (153E).
Similar types of emergency preparedness, management and response plans have been required by laws in the United States for many years. It is simply good environmental practice for facilities to have these plans. The process of preparing a plan can prompt the operator of an industrial premises to identify possible causes of spills and accidental releases of pollutants, and to take measures to prevent these incidents from occurring in the first place. Advance planning for environmental emergencies can also enable plant operators to minimise the extent of harm that is caused by an incident (and thus possibly to reduce the likelihood that a penalty action will be brought by regulators).
Section 153C of the POEO requires that Pollution Incident Response Management Plans must contain details concerning the steps that the facility will take to provide notice about an incident to regulators and to the owners and occupiers of properties in the area; regarding measures that will be taken to contain and remedy any pollution that occurs; and procedures for coordinating clean-up and response actions with the relevant governmental authorities. In addition, the EPA has adopted new regulations, through an amendment to the Protection of the Environment Operations (General) Regulation 2009, which describe with particularity the type of information that must be included in a Plan. A link to these new regulations is provided below:
http://www.legislation.nsw.gov.au/sessionalview/sessional/sr/2012-54.pdf
Additionally, the EPA has adopted a set of guidelines that licensees can refer to as a resource when they prepare their Pollution Incident Response Management Plans. These guidelines are available at the following link: http://www.environment.nsw.gov.au/resources/legislation/201200227egpreppirmp.pdf
Licensees will need to act scrupulously to comply with their obligations in regard to Pollution Incident Response Management Plans. While the courts of NSW have always considered whether a person responsible for a pollution incident has taken practical measures to prevent, control or mitigate environmental harm when determining the amount of a penalty (under section 241 of the POEO), licensees can now be fined directly for failing to have a Plan in place, or for failing to implement a Plan. The penalties for such breaches are severe - up to $1 million for not having a Plan and up to $2 million for not implementing a Plan.
It can be anticipated that in future pollution prosecutions the EPA will pursue charges both for the underlying pollution incident and for any additional offences relating to the requirements pertaining to Pollution Incident Response Management Plans. There are therefore powerful incentives for companies that wish to avoid substantial penalties to comply strictly with their obligations with respect to these Plans.
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