Updates to the duty to notify pollution incidents in NSW

As a result, businesses should review their current pollution incident response management plans and site procedures to reflect the changes.

The NSW Parliament passed the Environmental Legislation Amendment Bill 2025 on 17 September 2025, which once formally assented to and gazetted, will amend various laws focused on environmental protections.

Kirstie Richards, environment and planning expert at Pinsent Masons, said: “While most of the changes made are relatively minor, the bill makes a long overdue update to the duty to notify pollution incidents under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).”

Section 148 of the POEO Act requires a person carrying on an activity to notify each relevant authority, in line with the NSW Environmental Protection Authority’s (EPA) notification protocol, if a pollution incident causing or threatening material harm occurs.

Prior to these amendments, “material harm” was defined by section 147 of the POEO Act to include all actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or results in actual or potential loss or property damage that exceeds A$10,000 (approx. US$6631) in aggregate.

Richards said: “The A$10,000 monetary threshold has long been criticised as conservative given that it captures property damage as well as clean-up costs. Few incidents on major facilities, no matter how trivial the environmental impact, cost less than A$10,000 when both damage to the plant and clean-up costs are factored in.”

Once the bill becomes law, it will increase the monetary threshold from A$10,000 to A$50,000 and also enable the regulations to prescribe classes of pollution incidents which are not required to be notified, however, no draft regulations have yet been released in this regard.

Richards said: “The increase in the monetary threshold will have the beneficial effect of removing the need to report pollution incidents which do not cause more than trivial actual or potential harm to the health or safety of human beings or to ecosystems, provided that the actual or potential loss arising from damage to plant or other property and clean-up costs are less than A$50,000.”

The ‘duty to notify’ has not changed, and the EPA will continue to enforce the reporting of all non-trivial pollution incidents which cause actual or potential harm to the health or safety of people or to ecosystems.

Richards said: “We recommend that businesses review their current pollution incident response management plans and site procedures to ensure they reflect the updated monetary threshold.”

NSW development consents may include obligations to notify pollution incidents which include a definition of ‘material harm’ which reflects the current A$10,000 threshold. If this is the case, businesses and facilities will need to continue to notify incidents that meet this threshold or apply for a modification to align their development consent with the revised monetary threshold.