New NSW Case on Duty to Report a Pollution Incident

A recent decision of the NSW land and Environment Court sheds new light on the duty to report a pollution incident under section 148 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). In Environment Protection Authority v Bulga Coal Management Pty Limited [2014] NSWLEC 5 Justice Pain held that the duty to report does not arise until the defendant is actually aware that the incident is of a type which should be reported. While section 148 has recently been amended to require ‘immediate’ notification, it is likely to be interpreted in the same way. In practice, this means that:

• if a pollution incident occurs during the carrying on of an activity by a company, the company’s internal processes can be followed to assess whether or not the pollution incident caused or threatened to cause material harm to the environment, and
• the duty to notify the pollution incident to the EPA will only be triggered once the company (by its employees) is in fact aware that the pollution incident caused or threatened to cause material harm to the environment.