Pollution incidents and the duty to notify in NSW: how soon is "immediately"?

Pollution incidents must be reported "immediately" under the Protection of the Environment Operations Act 1997 (POEO Act) – a term that is not defined in the Act itself. The NSW Environment Protection Authority (EPA) says on its website that "immediately" means "promptly and without delay" and is likely to change depending on the circumstances of the incident.

We should soon have some clarity on the meaning of "immediately" as the EPA has announced it has commenced proceedings against Cleanaway Equipment Services Pty Ltd in the Land and Environment Court.

The EPA alleges that on two occasions in May 2020, a solvent known as Vivsol 2046 was discharged from Cleanaway's Queanbeyan premises (near the ACT border) into the stormwater system. It is alleged that in one instance the water pollutant flowed in the nearby Molonglo River.

Cleanaway reportedly took five hours to report the first incident to the EPA. This delay, the EPA alleges, meant that Cleanaway failed in its duty to "immediately" notify the EPA of a pollution incident. The EPA's prosecution against Cleanaway includes a charge of this offence, which carries a maximum penalty of $2 million. By comparison, the maximum penalty for a water pollution offence is $1 million.

The key takeaway from the EPA's prosecution of Cleanaway is that anyone undertaking activities that could cause a pollution incident should ensure that there is no delay in reporting pollution incidents. It also underscores the need for adequate procedures (such a pollution incident response management plan) in place for managing pollution incidents that includes a rapid assessment of whether a duty to notify has arisen. This requires a robust process for promptly determining:

• whether there is a risk of "material harm to the environment" under section 147 of the POEO Act;
• the appropriate regulatory authority (ARA) to notify and any other appropriate authorities (such as SafeWork NSW) that need to be notified;
• the information that is required to be provided when notifying; and
• any notification obligations arsing under an environment protection licence.