Review of the Protection of the Environment Operations Act 1997

Introduction

The New South Wales government has comprehensive legislation in place to protect public health and the environment from potential harm. A major component is the Protection of the Environment Operations Act (POEO Act) which was enacted in 1997.

The POEO Act has been reviewed and a report was tabled in Parliament. As a result of that review, a consultation draft Bill proposing changes to the POEO Act was issued for public comment in June-July 2005. The draft Bill was revised and introduced into NSW Parliament in September 2005 and the Protection of the Environment Operations Amendment Act 2005 was assented to on 24 November 2005. Detailed information on the changes contained in the Amendment Act are under the POEO Amendment Act 2005 heading. The amendments commenced on 1 May 2006.

Need for the review

Section 327 of the POEO Act requires the Minister to review whether the policy objectives remain valid and the terms of the Act remain appropriate. A review of the POEO Act is to be undertaken as soon as possible five years from the date of assent (December 2002) and the result reported to Parliament in December 2003.

The review process

During the last review process the EPA undertook an extensive multi-phased consultation program.

The review commenced in December 2002 with a call for public submissions on the Terms of Reference for the review as well as a local council questionnaire.

An Issues Paper (PDF 61KB) was then released in June 2003 based on the first round of comments from stakeholders and analysis of the local council survey. A summary of submissions and council survey results is available (PDF 49KB).

Stakeholder input was sought on the issues raised in the paper at eight public consultation sessions held around the State in July and August 2003.

Meetings were also held with key stakeholder groups including various Local and State government agencies, industries and environment and community groups throughout the consultation period.

In total 100 written submissions were received from a variety of organizations and individuals. The local council questionnaire was completed by 98 of the 178 local councils of NSW. Three hundred representatives from the community, industry and government took part in the public consultation sessions providing valuable input to the review.

Outcomes of the review

The consultation process revealed a high level of satisfaction with the framework and philosophy of the Act and agreement from major stakeholders that there is no need for any major change in direction. However, a number of possible areas in which change may be considered appropriate to enhance the Act were identified.

Some concerns were expressed in relation to the complexity and effectiveness of the waste regulatory provisions and there was support to improve this area of the Act.

Feedback from the review also supported some changes to simplify and streamline environmental regulation and to clarify aspects of the Act in the following areas

  • the licensing regime
  • compliance and enforcement
  • economic measures

Report on the Review of the Protection of the Environment Operations Act 1997 (PDF 95KB) requires was tabled in Parliament.

Consultation draft Bill

A consultation draft of the Protection of the Environment Operations Amendment Bill 2005 was tabled in Parliament by the Minister for the Environment, the Hon. Bob Debus, on 23 June 2005 and simultaneously released for public consultation. Comments on the Bill were able to be made to the Department of Environment and Conservation until 22 July 2005. 

POEO Amendment Act 2005

Summary

The Protection of the Environment Operations Amendment Act 2005 ('Amendment Act') was passed by Parliament and assented to on 24 November 2005.  The amendments made to the Protection of the Environment Operations Act 1997 ('POEO Act') include the following areas:

The amendments commenced on 1 May 2006.

Further information about how to obtain a copy of the Act or ask a question about the changes is also provided at the end of this summary.

Background

The Amendment Act implements the recommendations of the review of the Act carried out by the then Department of Environment and Conservation (DEC) in accordance with section 327 of the Act.

What has changed since the draft Bill?

Some amendments were made to the draft Amendment Bill following consultation and passage of the Bill through Parliament. These include the following

  • noise abatement directions to public authorities and licensees can now only be given by authorised officers of the EPA
  • the maximum term of imprisonment for individuals who commit a Tier 1 offence through negligence will be 4 years. The maximum gaol term for wilful Tier 1 offences will remain at 7 years
  • the current notification requirements for licence review will be retained
  • a specific defence to the land pollution offence has been included for stock feed made solely from non-hazardous agricultural or crop waste
  • the EPA must audit on an industry wide or regional basis, compliance with licence requirements and whether these requirements reflect best practice
  • "marine authorities" (NSW Maritime) will remain the ARA
  • ARAs must impose conditions on supervisory licences with respect to any matter the authority thinks necessary to facilitate the implementation of the NSW Waste Strategy
  • a set of criteria and principles that green offset works or schemes must satisfy was added
  • before imposing a green offset condition on a licence, the EPA must be satisfied that the effect and benefit of green offsets are likely to last at least until any impact of the activity is offset
  • further details regarding content of the regulations for green offsets regarding criteria, methodology and reporting have been included
  • the definition of waste has been amended so that the circumstances in which a substance applied to land or used as fill remains a waste may be prescribed
  • a State of the Environment Report is to be submitted by the EPA every three years (as is the current requirement)
  • 'excessive smoke' will be able to be proved by an evidentiary certificate

Overview of the Amendment Act

1. Licensing administration

The Amendment Act makes the following amendments to the licensing provisions under the POEO Act

  • The factors used to determine whether a person is a fit and proper person to hold a licence have been expanded to include things such as convictions for fraud and dishonesty offences, and insolvency (section 83).
  • The interval for review of licences has been increased from 3 years to 5 years (section 78(4A)).
  • The EPA will be required to carry out audits on an industry wide or regional basis of compliance with licence requirements, and whether such requirements reflect best practice (section 78).
  • Regulation making powers have been introduced to provide for independent certification for load-based licences (Schedule 2, clause 9A).
  • The EPA will be able to refuse applications for the surrender of a licence where there will be an on-going environmental impact arising from the activity after it stops (section 80).
  • The provisions about post closure plans have been amended (section 76).
  • A licence will be able to be revoked while suspended (section 79(3A)).
  • Clarification that a licence condition may impose a limit that is more stringent than a regulation and validation of any existing conditions so imposed (section 323 and Sch 5).
  • When issuing a supervisory licence, the EPA will no longer have to impose conditions on the licence with respect to the separation, re-use, reprocessing and recycling of waste received at the facility. Instead, the EPA will be required to impose conditions with respect to any matters the authority thinks necessary to facilitate the implementation of a waste strategy under the Waste Avoidance and Resource Recovery Act 2001 (section 87).
  • Licence variations applications relating to works that require development consent are not able to be granted until that consent is obtained (section 50).
  • Licences may be suspended or revoked if the waste contribution has not been paid by the due date (section 79(5)(e1)).
  • Financial assurances may be required as a condition of approval of surrender, suspension or revocation of a licence (section 70).

2. Green offset schemes or works

The Amendment Act introduces the concept of a green offset to the Act and sets out the following

  • Green offset schemes or works will be able to be required under licence conditions (section 69). A condition of a licence may be imposed in relation to a green offset even though it does not relate to the licensed premises or does not relate to harm arising from the activity controlled by the licence.
  • The EPA must not impose a green offset condition on a licence unless they are satisfied that the criteria and principles set out in section 295N of the Act have been complied with.
  • Green offsets schemes can be developed by Regulation or through licence conditions (Part 9.3B).

3. Waste regulatory framework

The Amendment Act makes the following amendments to the Waste Regulatory framework in the Act

  • The definition of waste has been amended. The new definition allows the regulations to prescribe the circumstances where a substance produced wholly or partly from waste that is used as fill or fuel will remain a waste for the purposes of the Act (Dictionary).
  • A new strict liability offence of supplying (or causing or permitting information to be supplied) that is false or misleading in a material respect about waste has been introduced (section 144AA). An example of information about waste is the type, classification, characteristics, composition or quantity of the waste. Subsequent regulations will allow penalty notices to be issued for this offence.
  • A new strict liability offence of polluting land or causing or permitting land pollution has been introduced under section 142A. The offence focuses on the potential for the substance to cause harm, as opposed to it being a 'waste'. A statutory defence is available if the activity is specifically authorised by an environmental protection licence. There are also defences for common agricultural activities such as the application of fertiliser (sold in accordance with the Fertilisers Act 1985), pesticides (used in accordance with the Pesticides Act 1999) and non-hazardous agricultural waste (including stock feeds made solely from such waste). Subsequent regulations will allow penalty notices to be issued for this offence.
  • The existing waste offences in sections 143 and 144 have been extended to include causing or permitting these offences.
  • The existing waste offence in section 144 has been reworded to remove an ambiguity.
  • The Act clarifies that the underpayment of waste contributions is an offence (section 88(3)).
  • Regulations may be made providing for waste contributions to be estimated (section 88(5)(a)).
  • Minor changes have been made to waste terminology (eg. "reprocessing" is now "processing").

See also 1. Licensing Administration and 7. Offences and Penalties.

4. Notice provisions and related cost recovery

Amendments to the notice provisions and cost recovery provisions are as follows

  • Prevention, licence variation and noise control notices will take effect immediately, so that action may be required within the appeal period (although the recipient of the notice may apply to the Land and Environment Court for a stay) (sections 84, 99, 267, 271, 287 - 290).
  • The definition of 'pollution incident' has been amended to include incidents involving only odour (Dictionary). This means that clean-up notices will be able to be issued for odour incidents. However the duty to report pollution incidents will not extend to odour incidents i.e. the status quo remains (section 148).
  • Regulatory authorities will be able to recover the costs of registering a charge on land in relation to compliance cost notices and restraining orders (section 107).
  • A regulatory authority may waive a fee for a clean-up, prevention, or noise control notice on its own initiative or on the application of the recipient and extend time for payment on its own initiative (sections 94(3), 100(3), 267A).
  • The Act confirms that a fee is not payable for the variation of an environment protection notice under Chapter 4 (section 110(5)).
  • The scope of prevention notices has been broadened by expanding the definition of "environmentally unsatisfactory manner" to include activities carried on in contravention of a condition of a surrender of a licence (section 95).
  • Prevention notices will be able to require a person to review the carrying out of an activity (section 96(3)(j)).

5. Noise

  • Appropriate regulatory authorities (ARAs) will be able to recover the administrative costs of preparing and issuing noise control notices and compliance costs associated with these notices (section 267A and 267B).
  • The scope of noise control notices has been clarified to confirm that persons who propose to carry on, or propose to use or operate an article at any premises can be issued with a notice (section 264(1)(b)).
  • Authorised officers appointed by the EPA will be able to issue noise abatement directions to public authorities and licensed premises (section 278).
  • See also 9. Authorised Officer powers.

6. Smoke abatement notices

  • Authorised officers from local authorities (but not the EPA) will be able to issue smoke abatement notices (SANs) where they observe excessive smoke coming from a residential chimney.  (Excessive smoke means the emission of a visible plume of smoke from a chimney for a continuous period of not less than 10 minutes, including a period of not less than 30 seconds when the plume extends at least 10 metres from the point at which the smoke is emitted from the chimney.)  The notice will provide a 21 day grace period for the resident to take action to prevent excessive smoke emitting from their chimney (sections 135A – 135D).
  • Failure to comply with a smoke abatement notice is an offence.  Council officers will be able to issue penalty infringement notices of $200 to individuals and $400 to corporations.  (These amounts will be prescribed by a subsequent amending regulation).  If the matter proceeds to court, there is provision for the authorised officer to provide an evidentiary certificate in relation to the excessive smoke. Smoke abatement notices are able to be revoked by the local authority if necessary. 

7. Offences and penalties

  • A distinction has been made between the maximum penalties for wilful and negligent conduct in Tier 1 offences (the most serious category) (section 119).
  • Maximum penalties for companies has been increased from $1 million to $2 million (negligence) or $5 million (wilfulness) for Tier 1 offences, and from $250 000 to $1 million for most Tier 2 offences.
  • Maximum penalties for individuals has been increased from $250 000 to $500 000 (negligence) or $1 million (wilful conduct) for Tier 1 offences, and $125 000 to $250 000 for most Tier 2 offences.
  • The maximum penalty which can be imposed by a court for littering offences has doubled from $1100 to $2200 for corporations and individuals (section 145).
  • The maximum gaol term for Tier 1 offences committed negligently has been reduced to four years. The maximum gaol term for Tier 1 offences committed wilfully is still seven years (section 119).
  • The alternative sentencing orders in Part 8.3 of the POEO Act have been expanded to include: ordering attendance by an offender at relevant training courses; ordering an offender to establish a training course; and giving funding to third parties to carry out works (for example the Environmental Trust) (section 250(1)(e)-(h)). Another order that the court can make is for the offender to provide a financial assurance for a specified work or program (but only if the EPA is a party to the proceedings).
  • The EPA will be able to accept court enforceable undertakings (like ASIC and ACCC) (section 253A).
  • The "no knowledge" defence available to directors and managers has been removed (section 169).
  • See also 3. Waste Regulatory Framework.

8. Regulation-making powers

The Amendment Act introduces regulation-making powers for the following

  • Independent certification of annual licence returns for LBL licences (Schedule 2, clause 9A).
  • Recovery of administrative costs of services provided under the Act by the EPA and other ARAs (Schedule 2, clause 7).
  • See also 2. Green Offset Schemes or Works

9. Authorised officer powers

The following amendments have been made to authorised officer (AO) powers

  • AOs will have the power to require a person to attend at a specified place and time to answer questions if attendance at that place is reasonably required. The place and time is to be nominated by the person being interviewed or if this is not reasonable, by the AO (section 203).
  • AOs may record any interviews conducted under s.203 if the AO informs the person that the interview is to be recorded (even if the person objects). The method of recording is to be determined by the AO. A copy is to be provided to the person questioned as soon as practicable after it is made (section 203A).
  • AOs will have an express power to request a person provide proof of his or her identity (no offence is committed if proof is not produced) (section 204).
  • The Minister may now enter into arrangements with a Minister of another State or Territory so that authorised officers can exercise their powers in that State or Territory and vice versa (section 212E).
  • AOs may turn off building intruder and motor vehicle intruder alarms that are sounding in breach of the regulations (note a search warrant will still be required to enter residential premises) (section 198A).
  • The good faith requirement in section 212C in relation to actions by incorrect regulatory authorities and their AOs has been removed.
  • AOs will be able to require a vehicle or vessel to be moved to a suitable place for inspection or testing (section 208(1)(b)).
  • The one litre limit on the quantity of a substance an AO can remove for testing has been removed (section 206).

10. Evidentiary matters

The Amendment Act introduces the following changes to evidentiary provisions

  • If the EPA certifies in writing that it is not in the public interest to produce a document or thing, or to disclose information to a court that has come into a person's control because of the exercise of functions under the POEO Act or POEA Act, then a person cannot be required to do so (section 319(2A)).
  • Evidentiary certificates are now able to be used as proof that: a person was appointed by the EPA as an analyst; information required to be provided was not received; a document is a copy of part of a register kept under the POEO Act; an amount is payable under the POEO Act or Regulations and it has not been paid; a person has been served with a notice; and a specified function was delegated to a person during a specified period (section 261).
  • The provisions in relation to certification of evidence provided by analysts have been clarified (section 262).

11. Classified Waters

  • The Classified Waters Scheme (created through Clean Waters Regulations 1972 and retained through savings provisions in the POEO Act) has been repealed and replaced by a range of factors ARAs need to consider when issuing licences or prevention notices under the Act in relation to an activity or work that causes, is likely to cause, or has caused water pollution (section 45(f1)).
  • These factors are the "environmental values of water" affected by the activity; the practical measures that could be taken to restore or maintain those environmental values; and (if ARA is not the EPA) any guidelines issued by the EPA to the authority (section 96(3A). Guidelines are currently being developed.
  • Environmental values of water is defined in the dictionary to mean the values specified in the Australian and New Zealand Guidelines for Fresh and Marine Water Quality 2000.

12. Miscellaneous

The Amendment Act also includes the following miscellaneous amendments:

  • When a contractor or employee notifies a principal in accordance with s.148, then the principal has a duty to notify the ARA of a pollution incident (section 148(3A).
  • The EPA is able to require a licence holder to provide an independent assessment of the cost of the relevant work or program for which a financial assurance is required (section 300).
  • Information disclosure may be made to a person engaged in administering another law of this State and ARAs are permitted to disclose information formerly required to be kept on a register (section 319).
  • The offences of pollute land, give false or misleading information about waste, and those that arise under the Environmentally Hazardous Chemicals Act may be commenced within 3 years of the date on which the offence is alleged to have been committed (section 216).
  • Extra material is included on the public register (for example load data and details of court enforceable undertakings) (section 308 and clause 63 POEO (General) Regulation).
  • Breaches of the Environmentally Hazardous Chemicals Act 1995 or Regulations are able to be dealt with by the issuing of a penalty notice under the POEO (Penalty Notices) Regulation (section 213). Subsequent regulations will made to prescribe offences subject to penalty notices.
  • Proceedings for offences under the Environmentally Hazardous Chemicals Act 1995 or Regulations are to be taken under Chapter 8 of the POEO Act (and as a result some duplicate provisions of EHC Act have been repealed) (section 213).

Commencement

The amendments commenced on 1 May 2006.

A copy of the Act can be obtained from the NSW legislation website.

You can also email questions to poeo@environment.nsw.gov.au.

Protection of the Environment Operations Amendment (Scheduled Activities and Waste) Regulation 2008

The Protection of the Environment Operations Amendment (Scheduled Activities and Waste) Regulation 2008 has made changes to the following waste-related legislation

  • Schedule 1 of the Protection of the Environment Operations Act 1997 (POEO Act)
  • Schedule 1 of the POEO (General) Regulation 1998
  • POEO (Waste) Regulation 2005

The amendments were gazetted on 24 April 2008 and took effect on 28 April 2008.

In a press release, the Minister for Climate Change and the Environment, Verity Firth, said that the changes were 'demonstrative of the NSW Government's commitment to create regulation that is easy to understand, enforceable, innovative and flexible.'

Aim of the amendment regulation

  • To simplify and clarify the waste regulatory framework in NSW
  • To better align all licensed activities with environmental risk
  • To provide more equitable licensing thresholds and requirements
  • To reduce duplication with related Regulations and Acts
  • To provide a clear relationship between scheduled activities and fees payable

Overview of the amendment regulation

Waste amendments

  • Streamlines waste licensing with fewer and more appropriate categories
  • Simplifies the waste classification system by changing the number and names of the waste classes and the wastes assigned to those classes
  • Introduces resource recovery exemptions to recognise the bona-fide reuse of wastes for land application and thermal treatment

Non-waste amendments

Most of the proposed amendments have minor impacts: for example the majority of scheduled activity names have changed to better reflect the nature of the activity.

Specific changes include

  • introduction of a new activity 'sterilisation' facilities that use more than 1 tonne of ethylene oxide per year
  • a lowering of the licensing threshold for 'ceramic works' activities to better control emissions of particles, fluoride and oxides of nitrogen in the metropolitan region
  • an expansion of the geographical coverage of medium and large-scale 'electricity generating works' to include the Port Stephens area
  • better targeting of 'road construction works' with the greatest potential for environmental impacts
  • changing 'petroleum works' to 'petroleum and fuel works' and extending its definition to include alternative fuels
  • introducing a licensing threshold of 'manufacture 1 tonne per year' to several chemical industries to ensure that licensing only applies to facilities that manufacture significant quantities of toxic substances classified in the Australian Code for the Transport of Dangerous Goods by Road and Rail

Fees payable

The definitions in the previous version of Schedule 1 of the POEO Act (which lists activities requiring a licence) were sometimes worded differently from the definitions in Schedule 1 of the POEO (General) Regulation 1998 (which lists activity definitions against which fees are set).

Definitions in both schedules are now consistent with Schedule 1 of the Act listing all licensed activities and Schedule 1 of the Regulation listing activities where fees are payable and any assessable pollutants that apply.

The changes will ensure consistency and legislative simplicity, and provide a clear relationship between scheduled activities and fees payable.

Further information

If you have any questions on the new requirements for waste, please contact OEH's Waste Management Section, while for all other inquiries related to non-waste licensing or fees, contact the Licence Administration and Revenue Unit. Both can be reached by phoning 131 555 or (02) 9995 5000.

Questions and answers on the Amending Regulation.

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