In brief - An overview of what environment protection licence holders in New South Wales should do if a monitoring condition is attached to their licence
Holders of environment protection licences (EPLs) issued under the Protection of the Environment Operations Act 1997 (NSW) (the Act) need to comply with a large number of requirements contained in their EPLs, the Act and associated regulations. The requirement to publish pollution monitoring data is but one of those requirements.
As the requirement to publish, including what information to publish, applies differently to each EPL holder, it is important to be aware of, and comply with the relevant obligations to ensure compliance with these requirements and to avoid any regulatory action being taken.
Non-compliance with requirement to publish pollution monitoring data remains an issue
EPL holders are subject to many requirements directed to protecting, restoring and enhancing the quality of the environment. One such requirement that generally appears as a condition in an EPL is for licensees to monitor aspects of their activities on a regular basis. Where that obligation arises, there is also a requirement for licensees to publish the results so that they are available to members of the community.
While one of the objects of the Act is to ensure that the community has access to relevant and meaningful information about pollution, the NSW Environment Protection Authority (EPA) has previously shown that a significant number of EPL holders were wholly or partly non-compliant with the requirements for publishing pollution monitoring data in 2012.
Given there are criminal offences associated with failing to comply with the legislated requirements, it is important for EPL holders be aware of and implement requirements for publication.
In this article we identify the requirement to publish pollution monitoring data and discuss how it can apply to EPL holders generally.
Source of the requirement to monitor
The requirement to publish monitoring data is found in section 66 of the Act. As will be seen, the requirement is only triggered where there are conditions in an EPL that require monitoring. Accordingly, if there are no conditions in an EPL that require the holder to monitor (see section 66(1)(a) below), there is no requirement to publish data.
Relevantly, section 66(1) of the Act states:
"66 Conditions requiring monitoring, certification or provision of information, and related offences
(1) Monitoring The conditions of a licence may require—
(a) monitoring by the holder of the licence of the activity or work authorised, required or controlled by the licence, including with respect to—
(i) the operation or maintenance of premises or plant, and
(ii) discharges from premises, and
(iii) relevant ambient conditions prevailing on or outside premises, and
(iv) anything required by the conditions of the licence,…"
Examples of the types of monitoring that an EPL might require a holder to carry out include air quality (such as odour and dust) and water quality (such as ground water and surface water).
It is important to note that the categories of monitoring referred to in section 66(1)(a) above are not exhaustive and include "anything required by the conditions of the licence".
Careful audits should be taken of EPLs to identify any conditions that could be caught.
Source of the requirement to publish
If an EPL contains a condition of the type specified in section 66(1)(a) of the Act, the licence holder is required to comply with section 66(6) which states:
"(6) Publication of results of monitoring The holder of a licence subject to a condition referred to in subsection (1) (a) must, within 14 days of obtaining monitoring data as referred to in that subsection—
(a) if the holder maintains a website that relates to the business or activity the subject of the licence—make any of the monitoring data that relates to pollution, and the licensee’s name, publicly and prominently available on that website in accordance with any requirements issued in writing by the EPA, or
(b) if the holder does not maintain such a website—provide a copy of any of the monitoring data that relates to pollution, to any person who requests a copy of the data, at no charge and in accordance with any requirements issued in writing by the EPA."
We now make a number of observations about the requirement to publish or provide monitoring data to any person who requests a copy.
Written requirements published by the EPA
Section 66(a) of the Act requires monitoring data to be published "in accordance with any requirements issued in writing by the EPA".
In October 2013, the EPA published a guideline setting out the 'Requirements for publishing pollution monitoring data' (2013 Guideline).
This publication explains what is expected with respect to:
Making the data publicly accessible.
The meaning of "publicly and prominently available".
How to provide meaningful information.
What data must be published.
How long the data must be published.
What information must be published with the data.
Requirement to publish on a website or otherwise
The requirement to publish on a website only arises where the licensee maintains a website that relates to the business or activity that is the subject of the EPL. Some companies may have in place complex company structures (e.g., parent and subsidiary companies) with each company operating websites, which means that consideration will need to be given to how the requirement to publish applies to each company.
For holders of EPLs who do not have websites related to the business or activity that is the subject of the EPL, there is no requirement to publish the monitoring data. However, if any person requests a copy of the monitoring data, licensees without websites are required to provide a copy of the monitoring data, free of charge, in accordance with any requirements issued by the EPA in writing, like the 2013 Guideline.
14 day trigger to publish monitoring data
Section 66(6) of the Act requires the publication of the pollution monitoring data within "14 days" of obtaining monitoring data. While that could be interpreted to be calendar days, the 2013 Guideline clarifies that the timeframe for publishing or providing data is 14 working days.
The obvious purpose of the publication requirements, including the short timeframe in which data must be published, is to provide the public with access to information about the environmental performance of licence holders. It is also another way that the EPA can access and assess the monitoring data for the purpose of carrying out its regulatory function.
It is a criminal offence to contravene section 66(6) of the Act with the maximum penalty for a corporation presently being $4,400 and in the case of an individual $2,200. There have been no prosecutions reported under section 66(6) of the Act to date.
A person also must not make available or provide monitoring data in accordance with subsection 66(6) if the monitoring data is false or misleading in a material respect. A separate criminal offence is created by section 66(7) of the Act for providing monitoring data that is false or misleading in a material respect.
While there have also been no prosecutions reported under section 66(7) of the Act, other offences for the provision of false and misleading information under the Act have increasingly been the subject of the EPA's regulatory enforcement.
EPA's powers to publish and provide monitoring data
While section 66 of the Act requires licence holders to publish or provide monitoring data, section 320 of the Act empowers the EPA or other regulatory authority to disclose monitoring data by publishing it in such as manner as it considers appropriate.
In addition, if a written request is made to an appropriate regulatory authority, it is to provide that person with access to the monitoring data in the same form that access is required to be provided under section 72 of the Government Information (Public Access) Act 2009 (NSW).