Amendments to POEO Require Internet Publication of Monitoring Results

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. 

New Requirement for Pollution Incident Response Plans

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.

Amendments to POEO Strengthen Requirement to Notify Pollution Incidents

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.

Defendant Avoids Jail In Prosecution For Killing Cormorants

It is extremely rare that a prosecution for an environmental offence in New South Wales results in a custodial sentence. In fact, there have only been two occasions where an environmental offender has been incarcerated: 1) In Environmental Protection Authority v Charles Anthony Leslie Gardner (1997) NSWLEC 169, the defendant was imprisoned for 12 months for pumping hundreds of thousands of litres of untreated sewage from a concealed system of pipes into the Karuah River; 2) In Environment Protection Authority v Keogh (2000) NSWLEC 273, the defendant was sent to jail for 2 months on a charge of contempt after he failed to comply with Court orders that required him to clean up a site where he had dumped thousands of used tyres.

A recent prosecution brought by the NSW Office of Environment and Heritage under the National Parks and Wildlife Act nearly became the third case to be concluded with a jail term for the defendant. In that case, Lee v Office of Environment and Heritage (2012) NSWLEC 9, the defendant was actually sentenced to a prison term of 6 months in the Maclean Local Court. The prison sentence was set aside, and a monetary penalty was substituted, only following an appeal to the Land and Environment Court. The Land and Environment Court's decision was handed down on 3 February 2012: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=156713.

The offence that was committed by the defendant was surely a serious one. The defendant had been employed as the manager of a commercial tiger prawn farm that was situated on the banks of the Clarence River. A flock of 250 - 300 Little Black Cormorants (a protected species under the Act) roosted in a large tree on a neighbouring property and fed on the prawns, resulting in large financial losses to the owner of the breeding operation. In a misguided attempt to protect the shrimp, the defendant, on two separate occasions in November 2009, fired a shotgun into the roosting tree. Each incident caused the deaths of 6 of the cormorants.

The primary considerations that led the Land and Environment Court (per Justice Craig) to allow the defendant's appeal against the severity of the sentence appeared to be twofold.  First, Justice Craig concluded that the defendant did not derive any direct financial advantage from his actions. On this issue, His Honour departed from the findings of the magistrate in the Local Court, who had determined that the defendant's sole motivation for committing the offence had been to achieve monetary gain. Justice Craig reached his determination on the basis that the defendant had not obtained nay monetary reward from his employer for killing the birds. 

The second principal ground which prompted Justice Craig to vacate the sentence of imprisonment was that the defendant had recently served a prison term for an offence against the Commonwealth Quarantine Act that he had committed in 2006, before the defendant had killed the cormorants (again the killing of the cormorants occurred in November 2009).

The offence against the Quarantine Act involved the illegal importation into Australia of shrimp feed. The defendant served a prison sentence of 6 months for that offence and was released before the prosecution for killing the cormorants was commenced. Justice Craig held that the magistrate in the Local Court proceedings had not accorded sufficient weight to the "rehabilitative effect" that the prison sentence for the Quarantine Act offence would have occasioned.

Additional factors which led Justice Craig to substitute a monetary penalty (of $7,200) for a term of imprisonment in this case included the defendant's subjective circumstances, particularly the fact that he had left the employ of the shrimp farm and taken up employment as an accountant and was thus unlikely to re-offend; that he was a married man with two young children; and that he had entered a plea of guilty at an early opportunity and had expressed remorse for the commission of the offence. Principles of parity were also taken into account in the determination of sentence, as the Court's review of prior prosecutions indicated that the pattern of sentencing for offences involving harm to protected wildlife had generally resulted in fines rather than imprisonment (see e.g. Garrett on behalf of the Director General of the Department of Conservation and Environment v House (2006) NSWLEC 492 (27 Wellcome Swallows fatally poisoned, fine of $9,000).

The defendant was indeed fortunate to escape a prison sentence, as it is difficult to imagine a more wanton and deliberate act than firing a shotgun at a large flock of protected birds. As Justice Craig observed in his judgement, it was clearly foreseeable that the defendant's conduct would result in injury or death to a number of birds. If the defendant had killed a larger number of birds - which was certainly a possible outcome of his conduct of firing a shotgun at the tree where the flock of cormorants was roosting - and surely, if he had committed this offence after serving the prison sentence for the Quarantine Act offence - he would almost certainly have received a more severe sentence from the Court.

Concordia Pacific Introduces The Daily Planet!!!!

Concordia Pacific is very pleased to introduce our new environmental law blog, the Daily Planet. We began to publish the blog in early June 2011.

The blog will cover issues of interest to professionals working in the fields of environmental protection and local government.

We will be focusing particularly on noteworthy decisions of the Land and Environment Court, as well as on other news items that may inform and guide the activities of environmental managers, consultants, lawyers, town planners and others who may be involved with compliance issues.

Our initial posts discuss:

* A contempt proceeding brought by Sydney Council against an owners' corporation for failure to comply with consent orders requiring fire safety upgrades.

* A Land and Environment Court prosecution against a chemical company where orders were made requiring the company to fund the costs of an environmental improvement project.

* A prosecution against the NSW Forestry Commission for destroying habitat of a threatened species, the Smoky Mouse.

* A Trees Act case where costs were awarded against an applicant who did not have "reasonable prospects of success".

* A pollution case where fines were imposed on a plant operator even though the spill was caused by the deliberate misconduct of an employee.

* A judgement of the District Court of New South Wales that found a council negligent for failing to issue a dangerous dog declaration.

 

* Two judgements of the Land and Environment Court stating "general principles" that are likely to be applied in future Trees Act litigation.

* Another Trees Act  case where the Land and Environment Court declared its expectations concerning the content of arborists' report.

We look forward to your comments and suggestions concerning the blog, and hope that you will find it to be helpful, informative and engaging!

We would also like you to know that we are running a companion blog on planning law issues here in NSW, which can be accessed at concordiapacificdailyplanner.blogspot.com.

You can also follow us on Twitter at @Concordialaw!

Owners' Corporation Avoids Penalty for Contempt of Court

It is a very rare event when a defendant to an enforcement action in the Land and Environment Court is lucky enough to emerge from the proceedings without having to pay a fine. That is especially so when the charge brought by the prosecutor alleges that a contempt of court has occurred, and the contempt has arisen due to an admitted failure by the defendant to comply with a court order. 

Therefore, when the Court decides not to impose a monetary penalty, an understanding of the circumstances can provide an invaluable learning opportunity: one person's good fortune may not be repeated in the future, particularly if the lessons of past cases are not studied carefully and usefully applied.

Excellent guidance can be taken from Justice Pepper's recent judgement in Council of the City of Sydney v Owners Corporation - Strata Plan 18945 (2011) NSWLEC 79, a case where the council sought to enforce court orders that required compliance with a fire safety order that had been issued under
the Environmental Planning and Assessment Act. The court orders had been made with the consent of the Owner's Corporation, and required them to do 3 things in 3 months time: install a sprinkler system and building occupant warning system in the basement car park of their apartment building; remove security screens from the entry doors to the apartments; and complete a fire safety audit of the building and provide the council with a new fire safety certificate.

Although the consent orders were made in August 2010 and allowed until November 2010 for compliance, the Owners Corporation did not approve a contract for the installation of the sprinkler system until late October - leaving less than a month before the final due date. A series of delays then ensued, which prompted the council to file the contempt proceedings in January 2010. The installation of the sprinkler system was not completed until May 2011, just a few days before the hearing on the contempt action was heard.

Justice Pepper determined that it was sufficient punishment to convict the Owners Corporation of contempt, and to require it to pay the council's professional costs, but did not find it appropriate to impose a fine.  Her Honour gave the following reasons for her decision:

* The principal cause the breach of the court orders was unreasonable delay by the contractors that had been hired by the Owners to carry out the installation of the sprinklers.

* The contempt on the part of the Owners was no the product of an intention to defy the Court's authority; while the Owners had a "genuine desire to achieve compliance" they were unable to do so because of their own initial delay in hiring the contractors, and the subsequent delays that were apparently wholly the fault of the contractors.

* By the time that the proceedings were heard by the Court, the installation of the sprinklers had been completed and the Owners had thus purged themselves of contempt.

* The Owners provided an affidavit to the Court in which they apologised for their failure to comply with the orders and expressed contrition.

A number of important morals can be drawn from the outcome of this case. 

First of all, a party that enters into consent orders before the Land and Environment Court must be aware that very serious consequences will attach to any non-compliance. It is therefore critical that the party that accepts obligations under consent orders reviews the practical considerations associated with compliance and ensures that the orders allow sufficient time to carry out any required work. 

Secondly, any contractors that are needed must be engaged at the earliest possible date, informed of the compliance deadlines that are fixed by the court orders and monitored closely to enure that they are making satisfactory progrgress.

Thirdly, the regulator overseeing compliance with the court orders should be informed of any delays, the reasons that they have occurred, the actions that will be taken to cure any non-compliance, and the anticipated date when completion of the required work will occur. Full, frank and open dialogue and cooperation with the regulator may be a successful way to avoid adverse enforcement action if unforeseen circumstances prevent strict compliance with the terms of a court order.

Chemical Company Sentenced to Fund Costs of Environmental Improvement Project

Section 250(1)(e) of the Protection of the Environment Operations Act gives the Land and Environment Court discretion to adopt a "creative" approach to sentencing for environmental crimes. Under this section, the Court can order an offender to pay for the costs of a project to restore or enhance the environment either as an alternative to, or in addition to, a standard monetary fine. 

This approach has long been in use in the United States, where the performance of "environmentally beneficial projects" is often accepted as part of a negotiated settlement for an environmental "violation".  Although not yet commonplace in NSW, the Court has required such projects in a number of cases, and is likely to do so in appropriate circumstances in future prosecutions.

A recent prosecution by the NSW EPA, Environment Protection Authority v Huntsman Corporation Australia Pty Ltd, (2011) NSWLEC 39 was concluded by the making of this type of innovative order. Huntsman was prosecuted for an incident involving the accidental release to the atmosphere of a toxic air pollutant, ethylene oxide from a chemical manufacturing plant in Matraville. The Court determined that a penalty of $28,000 was warranted for the offence. The company was required to pay this amount to Randwick City Council to partially fund a storm water harvesting and recycling project at a council-owned sports reserve.

The prosecution by the EPA was founded on the allegation that the company had breached a condition of its environment protection licence which required it to carry out its operations "in a competent manner". The proceedings were brought following the malfunction of a device that measured the amount of a catalyst that was being introduced into a chemical reactor. The malfunction initiated a series of events resulting in the emission of about 475 kilograms of ethylene oxide directly to the air through a stack. The emissions occurred over a period of several hours on a single night. It was alleged by the EPA that the pollution incident occurred due to the company's failure to have back up systems to alert plant personnel that insufficient amounts of catalyst were being placed into the reactor vessel.

A noteworthy aspect of this case is the relatively low penalty that the company was required to pay.  Although the pollutant that was released into the air from Huntsman's plant has been classified as a carcinogen by the World Health Organisation and is also capable of causing short-term health impacts such as eye and skin irritation as well as headaches and nausea, the penalty of $28,000 represents less than 2.8% of the maximum fine of $1.1 million that could have been imposed under the POEO. 

The amount of the fine reflects the Court's conclusion that the incident was only of "low to moderate" seriousness (due to the fact that the emissions were not caused deliberately and that the company did not gain any commercial advantage by committing the offence).

It seems clear that if the incident had lasted for a longer period of time, or if it had actually caused adverse health impacts to residents of the community that is located near the plant, the penalties that would have been assigned by the Court would have been significantly higher.

The Court's judgement can be found at:

http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2011/39.html