Orica incident raises right to know

Two polllution incidents at Orica's plant near Newcastle NSW have Premier O'Farrell hopping mad, Erin Brockovich on the way, and a debate about disclosure laws that have been shown to be clearly inadequate.

After the first incident and a controversy about the government's handling of public notification of the matter, the Premier appointed former Director General of the Department of Premier and Cabinet Brendan O’Reilly to conduct what amounts to a short, sharp inquiry to report by 30 September 2011. Much of the focus will be on reporting and disclosure obligations. 
PREMIER ANNOUNCES INDEPENDENT INQUIRY INTO ORICA INCIDENT (PDF)

The Premier said

“I am determined that, in the event of any future similar incident, information should be made public as soon as possible.... I’m determined to improve the procedures surrounding spills to ensure timely and accurate notification.”

A second incident has the locals and others suggesting systemic problems.

Catherine Cusack the Liberal Shadow Minister for Climate Change and Environmental Sustainability for two years prior to the election of the O'Farrell government in March, wrote in the Sunday Telegraph yesterday that Orica's release of a toxic plume "is just the tip of a bigger iceberg of problems in our antiquated pollution laws" and that the Environmental Protection Agency's independence is such that it is "left to a politician to sound the alarm when a pollution event occurs. A credible EPA would have an independent commissioner who would take that decision and immediately alert the public himself." The Greens have foreshadowed an amendment to require companies to notify authorities immediately they become aware of a dangerous incident.

The emphasis in the relevant law at present is on notification to the authorities "as soon as practicable." The public doesn't get much of a look in. While authorities were quick to assure there were no health dangers this time, we should be examining positive disclosure obligations for public or private organisations that hold information of this kind. In the first week of this blog in February 2006, the Sydney Morning Herald reported the government sat on information for years about a serious and urgent public health issue, that dioxin levels in fish in Sydney Harbour were likely to exceed international safety standards and that fishing should be banned”. I said at the time:

In many countries that Australia would compare itself with, governments by law are required to disclose information when there is reason to believe that a danger to public health exists. Have a look at the link on this article to access some of the US, Canadian and UK legal requirements often referred to as “Right to Know laws”. How come we don’t have a right to know of dangers to our health!

Part 5.7 Protection of the Environment Operations Act 1997, Duty to notify pollution incidents, requires reporting to the appropriate regulatory authority of an incident and all relevant information about it as soon as practicable after the person becomes aware of the incident, where material harm to the environment is caused or threatened. Harm to the environment is defined as material if:

(i)  it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or

(ii)  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), and

(b)  loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent, mitigate or make good harm to the environment.

 I can't see in the act any positive duty imposed on officials or the minister to bring such a matter promptly to public attention. Not surprisingly there are plenty of strictures regarding non disclosure, including of "working processes"-just the sort of thing that may have gone awry on this occasion. And disclosure with "the prior permission of the minister" no doubt contributed to the delay before Stockton residents got to hear the news 54 hours after the incident.

319   Disclosure of information

(1)  A person is guilty of an offence if the person discloses any information relating to any industrial, agricultural or commercial secrets or working processes obtained in connection with the administration or execution of this Act or the regulations, unless the disclosure:

(a)  is made with the consent of:

(i)  the person from whom the information was obtained, or

(ii)  if the information relates to premises—the occupier of the premises, or

(iii)  if the information relates to an activity—the person carrying on or proposing to carry on the activity, or

(b)  is made in connection with the administration or execution of this Act or the regulations, or

(c)  is made with the prior permission of the Minister, or

(d)  is ordered by a court, or by any other body or person authorised by law to examine witnesses, in the course of, and for the purpose of, the hearing or determination by that court, body or person of any matter, or

(e)  is made by a member of the staff of the EPA or other regulatory authority to an officer or authority engaged in administering or executing a law of this State, the Commonwealth or of another State or Territory relating to the protection of the environment, or

(f)  is made by a member of the staff of the EPA or other regulatory authority to any person and its disclosure to that person is reasonably related to the prevention or amelioration of harm to the public, to any person or property or to the environment, or

(g)  is made under subsection (3), or

(h)  is made with other lawful excuse.

Maximum penalty: 200 penalty units.

(2)  The Minister is not to grant the permission referred to in subsection (1) (c) unless satisfied that to do so would be in the public interest.

(2A)  A person cannot be required:

(a)  to produce in any court any document or other thing that has come into the person’s possession, custody or control because of, or in the course of, the exercise of the person’s functions under this Act or the Protection of the Environment Administration Act 1991, or

(b)  to disclose to any court any information obtained in the exercise of the person’s functions under this Act,

      if the EPA certifies in writing that it is not in the public interest that the document or thing be produced or the information be disclosed.

(3)  The EPA or other regulatory authority may disclose the following information by publishing it in such manner as it considers appropriate:

(a)  particulars required, or formerly required, to be kept on the register under Part 9.5,

(b)  the particulars of any notice given under any prescribed provision of the environment protection legislation,

(c)  particulars of persons charged with or convicted of offences under the environment protection legislation,

(d)  particulars of a kind prescribed by the regulations for the purposes of this subsection.

(4)  Subsection (3) does not authorise the EPA or other regulatory authority to disclose any information about industrial, agricultural or commercial secrets or working processes obtained from any premises except with the consent of the occupier of the premises.

(5)  Subsection (3) does not limit the information required to be recorded in a public register under Part 9.5.

(6)  A reference in this section to the administration or execution of this Act or the regulations includes a reference to the administration or execution of the Waste Avoidance and Resource Recovery Act 2001 or of any other environment protection legislation prescribed by the regulations.

Terms of reference for the O'Reilly inquiry are "to identify any improvements that could be made to the following to ensure effective processes for responding to serious pollution incidents and for communicating accurate and up-to-date information to affected communities:
(a) The obligations on companies involved in the industrial use of hazardous materials to notify serious pollution incidents to relevant authorities and to the community under relevant NSW legislation, regulations, and licences;
(b) The operational policies and guidelines that companies involved in the industrial use of hazardous materials have, and are required to have, in place to respond to serious pollution incidents;
(c) The information made available to relevant agencies in relation to a serious pollution incident by companies engaged in the industrial use of hazardous materials, including the time frames and thresholds for reporting;
(d) The information made available to affected communities in relation to a serious pollution incident, both by the company involved and by relevant agencies, including what alternative or additional communication channels may be available;
(e) Inter-agency communication and response arrangements in relation to serious pollution incidents; and
(f) The guidance provided to front-line responders to serious pollution incidents, including guidance concerning their communication with the community.
The review is to have regard to approaches taken in other Australian and international jurisdictions and may also consider any other relevant matter."

This OMB Watch submission to the Obama administration in May this year should be somewhere in his in tray.