There is a duty to report pollution incidents under section 148 of the Protection of the Environment Operations Act 1997 (POEO Act). This is a guide to the duty, in simple terms. Consult the POEO Act for details.
Important changes have been made to the duty to notify provisions as a result of the Protection of the Environment Legislation Amendment Act 2011 (Amendment Act). Those changes commence on 6 February 2012, and are designed to ensure that appropriate authorities have the information they need to respond within an appropriate time.
Contact numbers - For contact numbers regarding concerns about pollution, regardless of whether there is a duty to report pollution, see Reporting Pollution.
Why notify?
Leaks, spills and other pollution incidents can harm the environment. Each of the following response agencies needs to be informed of pollution incidents quickly, so action can be coordinated to prevent or limit harm to the environment and human health generally
- appropriate regulatory authority (ARA)
- Environment Protection Authority (EPA) if they are not the ARA
- Ministry of Health
- SafeWork NSW (formerly WorkCover)
- local authority, if they are not the ARA
- Fire and Rescue NSW
What must be notified?
Pollution incidents causing or threatening material harm to the environment must be notified.
A 'pollution incident' includes a leak, spill or escape of a substance, or circumstances in which this is likely to occur. 'Pollution incident' is defined in the Dictionary to the Act and is reproduced at the end of this document.
'Material harm to the environment' is defined in section 147. Material harm includes on-site harm, as well as harm to the environment beyond the premises where the pollution incident occurred.
Licensed premises
If the EPA licenses the activity causing the incident, the licence conditions may include incident notification requirements that apply in addition to the duty under section 148.
Emergency response
If a pollution incident occurs, all necessary action should be taken to minimise the size and any adverse effects of the release. If the incident presents an immediate threat to human health or property, Fire and Rescue NSW, the NSW Police and the NSW Ambulance Service should be contacted first for emergency assistance - phone 000. The other response agencies must still be contacted after that to satisfy notification obligations.
Contaminated land
Persons whose activities have contaminated land and owners of land who become aware, or ought reasonably to be aware, that the land has been contaminated must notify the EPA as soon as practicable after becoming aware of the contamination, if the contamination meets certain criteria. The duty to notify is a requirement under section 60 of the CLM Act. A person has a duty to notify if that person ought reasonably to have been aware of the contamination.
For more information please use the following link - Contaminated Land regulation
Who must notify?
Under the POEO Act, the following people have a duty to notify a pollution incident occurring in the course of an activity that causes or threatens material harm to the environment
- the person carrying on the activity
- an employee or agent carrying on the activity
- an employer carrying on the activity
- the occupier of the premises where the incident occurs
Notification must be given immediately, i.e. promptly and without delay, after the person becomes aware of the incident.
You do not have to report if you know that all relevant authorities have already been notified by the licensee: section 151.
Only persons engaged in the activity resulting in the pollution incident, and occupiers of the land where the incident occurs, have a duty to report the incident.
If you are concerned about pollution, and an approach to the person causing the problem is not possible or is unlikely to be successful, please raise the concern with the relevant authority.
Who do you tell (relevant authorities)?
Pollution incidents posing material harm to the environment should be notified to each 'relevant authority' as defined in section 148(8) of the POEO Act. 'Relevant authority' means:
- the appropriate regulatory authority (ARA)
- the Environment Protection Authority (EPA) if they are not the ARA
- the Ministry of Health
- SafeWork NSW (formerly WorkCover)
- the local authority, e.g. the local council, if this is not the ARA
- Fire and Rescue NSW.
For more guidance on ways in which to contact these authorities, see the notification protocol.
What information must you provide?
In general terms, sufficient detail of the incident must be reported to enable appropriate follow-up action. The information required is listed in section 150. Any required information that is not known when the incident is notified must be notified immediately once it becomes known.
Incriminating information
A person must notify even though the notification might incriminate the person. However the notification is not admissible in evidence against the person for an offence. This qualification does not relate to any evidence obtained following or as a result of the notification. The relevant provision is section 153.
Checklist
Could a spill or leak associated with your activity harm the environment? If so
- are the people carrying out the activity, including casual or shift workers, or contractors, aware of their duty to notify?
- do they know who to notify?
- is the need for notification signposted or otherwise incorporated into operation and emergency procedures?
Penalties
If you fail to report a pollution incident posing material harm to the environment as required under Part 5.7 of the Act, you commit an offence. The maximum penalty is $2,000,000 for corporations, or $500,000 for individuals.
Examples
Effluent overflow
Part of your job is to manage an effluent treatment works. The works fail, resulting in an overflow likely to have an adverse affect on the ecosystem of a creek. You have a duty to notify your employer and the appropriate regulatory authority (ARA), the EPA if they are not the ARA, the Ministry of Health, the SafeWork NSW (formerly WorkCover), the local authority if this is not the ARA and Fire and Rescue NSW.
Chemical leak
A by-product of your company's manufacturing activity is a liquid chemical waste, which is stored in drums in a shed prior to collection by a waste contractor. There is no sign on the shed stating what to do if a leak occurs. A neighbour complains to the EPA about offensive odours and damage to vegetation near the shed. The EPA investigates, and finds leaking drums. The employees who knew about the leak believed that the waste contractor would attend to the problem, and did not advise company management and the relevant authorities. Your company is prosecuted for failure to notify the incident, in addition to other offences in relation to waste management. It is no defence that the relevant employees were ignorant of the duty to notify. Employers must take all reasonable steps, for example erecting a sign, to ensure that employees will notify them of incidents.
Further information
Phone EPA's Environment Line on 131 555.
Relevant legislative provisions
Protection of the Environment Operations Act 1997
- section 147: Meaning of material harm to the environment
- section 148: Pollution incidents causing or threatening material harm to the environment
- section 149: Manner and form of notification
- section 150: Relevant information to be given
- section 151: Incidents not required to be reported
- section 152: Offence for breaching duty to notify pollution incidents
- section 153: Incriminating information
Definition of 'pollution incident'
Pollution incident means an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise.