Pollution incident response in 2025: Are your plans up to date?

10 February 2025

5-10 min read

A new year provides a great opportunity to take stock of your organisation’s pollution incident response plans. Often these are the most important compliance policies to get right because so many offences for environmental breaches typically flow from incidents. Along with notification and management of contaminated land, pollution incident response is an important part of environmental protection laws in all Australian jurisdictions.

This Environment Express Post explores some of the key facets of legal requirements and considerations for developing and updating pollution or environmental incident response policies.

Overview

There are a range of legal requirements that apply with respect to pollution incidents.

Handling incidents in a legally compliant and risk aware manner requires preparation.

Here are a few basic considerations:

• Each state and territory has different environmental laws. Offshore areas are also subject to different environmental laws. This means that legal requirements differ between jurisdictions and consequently developing a national approach to incident response can be challenging. Often it will be necessary to ensure that policies are prepared on a jurisdiction-by-jurisdiction basis.

• Particular industries have different legal requirements for handling incidents, this includes shipping, ports and maritime operations, mining and minerals, gas transmission and distribution, and a range of other sectors. It is always necessary to ensure that the particular compliance requirements for your industry are well understood, including the extent to which other “standard” environment protection laws would apply to a particular situation. There will be some cases where there is potential to be overlapping legal requirements, or for different requirements to apply at different sites.

• Organisations that hold environmental licences typically have additional requirements relating to notification of incidents and non-compliances to the regulator. This may mean that specific sites have different (and potentially more onerous requirements) to other non-licenced sites.

• Whilst pollution incident notification laws generally apply to all organisations, it may also be necessary (depending on your business) to consider whether the scope of internal policies and procedures should also include handling other types of environmental incident. For example, those that are not related to pollution, but might relate to biodiversity or cultural heritage, where there may also be strict legal requirements for notification of harm.

Pollution incident notification

All States and Territories have pollution incident notification requirements mandating who has to report incidents, when, and how and specifying what types of pollution and environmental incidents must be reported to the environment regulator.

Compliance with notification requirements is critical. Non-compliance with reporting requirements risks exposure to potentially high penalties and director liability.

Example:

In NSW, the maximum fine for failing to notify pollution incidents under section 148 of the Protection of the Environment Operations Act 1997 is $4 million for a corporation (and, for a continuing offence, a further penalty of $480,000 for each day the offence continues).

In addition, this offence is a “special executive liability” offence, meaning that each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision. NSW EPA may proceed against that person (in addition to, or as an alternative to, a proceeding against the corporation).

Handling pollution incidents appropriately, however, takes more than just compliance with notification requirements. Some jurisdictions have particular requirements requiring restoration of the environment to the condition it was in before the incident.

Example

In Victoria, under section 31 of the Environment Protection Act 2017, there is a duty for a person engaging in an activity to take action to respond to harm caused by pollution incident and restore the affected area to the state it was in before the pollution incident occurred.

Response plans

Preparedness is key. Most organisations typically require a procedure to be drafted that can be followed in the event of an incident. It may be called a “policy” or “plan”. It may consist of several documents.

Certain jurisdictions require formal preparation of pollution incident response management plans (PIRMPs) (including as part of environmental licence conditions). These jurisdictions prescribe the form and content of incident response plans. They can also provide a useful starting point for developing response plans in other jurisdictions.

The types of matters that are usual to consider are:

• The applicable law of the particular State or Territory;

• What types of incidents have to be reported?

• By whom, how, and when?

• The contact details for the specific regulators that must be contacted;

• Procedures for internal communication and reporting of incidents by employees to management and by management to regulators, as well as provision for situations where the person(s) responsible for notification cannot be reached and employees themselves hold the duty to report;

• Procedures for determining whether an incident is reportable and recording that information;

• Details of specific reporting arrangements at each site;

• Processes for liaising with contractors, including how they will report to you (and vice versa); and

• Emergency response procedures more broadly, such as required actions to control an incident.

Post-incident plans

In addition to compliance with emergency response and notification requirements, there will typically be a need to develop a broader policy or procedure around post-incident management.

The types of matters that generally need to considered here, include:

• Post incident clean up operations and the extent to which obligations under health and safety legislation to preserve the scene apply;

• Processes for internal communication with health and safety managers as required;

• Ongoing communication, reporting and liaison with the regulator(s) as required (which is commonly needed if verbal notifications are to be followed up with detailed written reports);

• Provision for the engagement of legal advisers to obtain advice on liability and related matters in relation to the incident itself (and any pollution or other offences) or the handling of the incident. This will be particularly important if the incident is significant for the organisation (due to the size and scale of the incident, any corporate history of offending, or nature of the incident having regard to contracts and risk-exposure) or there is a likelihood of a regulator-led investigation;

• Having pre-screened or appointed suitably qualified environmental consultants and engineers to assist with an incident response so that you always know who to call;

• Obligations with regard to environmental restoration; and

• Notification to insurers, if applicable.

Training, drills and updates

Once your organisation has developed its response plans, some worthwhile next steps may include:

• Having the plan legally reviewed by a suitably qualified environmental lawyer to ensure that what is captured in the plans is consistent with legal obligations (particularly important for organisations that operate in multiple jurisdictions or in specific industry sectors have complexity in the regulatory requirements). It is not uncommon for lawyers to be brought into matters where a client’s procedures are not consistent with the law and would, if followed, result in non-compliance. This can occur for a range of reasons, including legal requirements being superseded by new laws, or not accurately being captured in the plan due to complexity. Sometimes, plans don’t go far enough and leave a business risk-exposed (e.g. by failing to consider reasonably foreseeable situations). On other occasions, plans may be overly complicated and difficult to comply with, or very lengthily, potentially including too much prescription on what is required without sufficient flexibility for a real-world response;

• Having the plan formally approved for use and rolled out to operational sites;

• Making sure that the plan and any related documents are accessible;

• Training all relevant personnel on the contents of the plan and their obligations. This is particularly important for remote and regional teams, but also operations with jurisdictions that have laws requiring individual employees to report;

• Checking that the plan is being used by having conversations with personnel on a regular basis about what they remember they need to do, as well as monitoring whether plans were followed as incidents and near misses are reported throughout the year;

• Running drills or “mock incident” training so that people have an opportunity to put their understanding of the procedure into practice;

• Setting a specific date for review and update of the plans at least annually to ensure that if legal requirements or site conditions change, the plan is regularly updated.

Starting 2025 on the front foot

If you would like help ensuring that your organisation’s policies and procedures are up to date, or you would like professional help developing policies, please contact Guthrie Legal.

We have experience:

• Developing pollution incident response plans with our clients across multiple industrial and utility sectors including, utilities transmission (electricity and gas), manufacturing and extractive industries;

• Legally reviewing policies and procedures to ensure compliance with legal requirements;

• Delivering high-quality training to boards, management teams, and field personnel on legal requirements and your policies;

• Running mock incident workshops to bring to life the issues that might be experienced by employees, using real-life cases as examples;

• Advising on environmental incidents and conducting post-incident investigations; and

• Defending clients in relation to environmental offences and regulator-led investigations.

Emergency Incident Response

If you have had or are experiencing an environmental or pollution incident and need urgent legal assistance, please telephone Gabrielle Guthrie – Principal Lawyer on 0450 266 779.

The legal stuff

Environment Express posts aim to provide high-level and thought-provoking information about contemporary environmental law issues.

All the information in this article and on this website and any downloads are intended only to provide a summary and general overview on matters of interest.  They are for general educational purposes only.

The information is not intended to be comprehensive, nor does it constitute legal advice, strategic advice or consulting advice. It does not establish a lawyer - client relationship. 

If you are interested in any of the information, please always seek specific advice on your circumstances from a suitably qualified legal advisor.

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