In brief - Holders of environment protection licences should be aware of legislative requirements regulating the preparation, implementation, testing, keeping, and publication of a PIRMP to manage risks of non-compliance
In 2021, a number of waste operators who hold environment protection licences (EPLs) were subject to an audit carried out by the NSW Environment Protection Authority (NSW EPA) that included an examination of their Pollution Incident Response Management Plans (PIRMPs).
While that audit process provided an opportunity for PIRMPs to be amended without penalty, those responsible for the preparation and implementation of PIRMPs need to be aware of the statutory requirements relating to such plans, because non-compliance can give rise to criminal offences.
Those who hold EPLs are required to prepare and maintain a PIRMP that complies with the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) and the Protection of the Environment Operations (General) Regulation 2021 (NSW) (POEO General Regulation).
The relevant legislation regulates the preparation, implementation, content, keeping, testing and publication of PIRMPs.
While it is a relatively untested area of case law, there are criminal offences for EPL holders and corporate executives where there is non-compliance with the legislative requirements relating to PIRMPs.
There are usually a number of management plans prepared for facilities which are regulated by EPLs. For example, air quality management plans, ground water management plans and noise management plans to name but a few. Management plans generally contain information about how a facility is to operate to reduce environmental impacts on the surrounding community.
A PIRMP is another type of management plan. But unlike other types of management plans, there are a number of legislative requirements regulating the preparation, implementation, testing, keeping, and publication of a PIRMP. We have briefly identified some of these requirements in this article.
Requirement to prepare a Pollution Incident Response Management Plan
Firstly, holders of EPLs have a duty to prepare a written PIRMP under section 153A of the POEO Act. It is a criminal offence for a corporate or individual EPL holder to fail to comply with the duty to prepare a PIRMP.
It is also an offence that attracts executive liability which can be charged in addition to an offence against a corporation. The executive liability offence provisions are found under section 169A of the POEO Act.
An executive who could be held criminally liable for an executive liability offence is:
a director of the corporation; or
an individual involved in the management of a corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the offence.
An executive liability offence occurs where the executive:
Definition of "reasonable steps" under the Protection of the Environment Operations Act
"Reasonable steps" is defined (although not exhaustively) to include taking action towards:
assessing the corporation's compliance and ensuring regular professional assessments of compliance;
ensuring relevant persons are trained, instructed and supervised appropriately; and
creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with an executive liability offence.
To assist EPL holders and executives, the NSW EPA's website provides a template PIRMP which can be amended to suit individual operations.
What must be included in a PIRMP?
The POEO Act and the POEO General Regulation set out what must be contained in a PIRMP.
Information that needs to be included in a PIRMP includes:
Procedures to be followed to notify a pollution incident to owners and occupiers in the vicinity of the facility and any authority that needs to be notified.
The actions that are to be taken immediately after a pollution incident.
The likelihood of hazards occurring.
An inventory of potential pollutants on the premises, including the maximum quantity likely to be stored.
The names, positions and 24-hour contact details of key individuals who are:
responsible for activating the plan;
authorised to notify relevant authorities; and
responsible for managing the response to a pollution incident.
A detailed map of the facility and surrounding area which also shows the location of potential pollutants and any stormwater drains.
The above list is not exhaustive, and reference should be given to the legislation when preparing or reviewing a PIRMP to ensure that all the necessary information is included.
Requirement to implement the PIRMP
If a pollution incident occurs in the course of an activity so that material harm to the environment is caused or threatened, the person carrying on the activity must immediately implement any PIRMP: section 153F of the POEO Act.
Section 147 of the POEO Act provides that harm to the environment is material if:
it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial; or
it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $10,000 (or such other amount as is prescribed by the regulations).
The obligation on the person carrying out the activity is to "immediately" implement any PIRMP. There is no legislative definition of "immediately". However, in the context of the duty to "immediately" notify a pollution incident which arises under section 148 of the POEO Act, the NSW EPA's website says that "immediately" means "promptly and without delay". To avoid any assertion that a PIMRP has not been immediately implemented, best practice would be to ensure that the plan is operationally understood by all relevant employees through training and to ensure through policies and communications that it is to be followed in case of a pollution incident. It goes without saying, but it also means the PIRMP should be followed as soon as any incident is identified.
It is a criminal offence to fail to comply with the duty to implement a PIRMP.
This is not an area that has been widely litigated and so there are limited examples of how the obligation has arisen and been applied in the common law.
Keeping and testing a PIRMP
EPL holders must also keep the PIRMP at the premises to which the relevant EPL relates and ensure that it is tested in accordance with the POEO General Regulation: sections 153D and 153E of the POEO Act. Best practice is to ensure it is physically printed and stored safely in a known location to all employees at the relevant site.
Clause 133 of the POEO General Regulation requires a PIRMP to be tested:
Failure to comply with the above requirements is also a criminal offence.
Records of the testing of a PIRMP (including the date and name of the person responsible for the testing) are required to be included in a PIRMP. Annual reminders should be diarised to ensure the test date does not pass unnoticed.
Requirement to publish a PIRMP
There also exists a requirement for specific parts of the PIRMP to be made publicly available.
Clause 132 of the POEO General Regulation identifies the parts of a PIRMP that must be made publicly available within 14 days after it is prepared. Those parts of the PIRMP must either be:
placed in a prominent position on a publicly accessible website of the person required to prepare the plan; or
in the event where there is no such website, the PIRMP must be provided, without charge, to any person who makes a written request for a copy.
Personal information is not required to be included in the publicly available part of the PIRMP, except if an authorised officer requests a copy. Accordingly, redactions to remove personal information may be necessary for the publicly available copy.
NSW EPA's Guidelines
In March 2020, the NSW EPA published 'Guideline: Pollution Incident Response Management Plans' to assist holders of EPLs to comply with their PIRMP obligations. In addition to the legislation, the guideline may be useful to EPL holders who are required to prepare and implement PIRMPs in avoiding any enforcement action being taken, which includes the issue of penalty notices.
EPL holders must manage risk by keeping and testing their Pollution Incident Response Management Plan in accordance with the Protection of the Environment Operations Act
There is information readily available to assist EPL holders to prepare PIRMPs that comply with the legislative requirements which are not overly burdensome.
Generally, once prepared, where EPL holders can become exposed is where administrative measures fail and PIRMPs are not properly kept or tested in accordance with the POEO Act. These are executive liability offences and so individual and corporate EPL holders, as well as those executives responsible for the conduct of the business, must ensure compliance.
While it may be tempting to focus on the practical side of business operations, it is equally important to stay on top of the administrative side of business operations so that in the event an incident does occur, there are up-to-date procedures in place ready to be actioned, and this can be demonstrated to the relevant authorities to avoid any allegation of non-compliance.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.