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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Protection of the Environment
Operations Amendment Bill 2005
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Protection of the Environment Operations
Act 1997 No 156 2
4 Amendment of other Acts and regulation 2
Schedule 1 Amendment of Protection of the Environment Operations
Act 1997 3
Schedule 2 Amendment of other Acts and regulation 51
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2005
New South Wales
Protection of the Environment
Operations Amendment Bill 2005
Act No , 2005
An Act to make miscellaneous amendments to the Protection of the Environment
Operations Act 1997 and other Acts and a regulation relating to penalties, regulation
of waste, land pollution, water pollution, smoke pollution from residences, green
offsets, environment protection licences, reports and other matters; and for other
purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Protection of the Environment Operations Amendment Bill 2005
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Protection of the Environment Operations Amendment
Act 2005.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Protection of the Environment Operations Act 1997
No 156
The Protection of the Environment Operations Act 1997 is amended as
set out in Schedule 1.
4 Amendment of other Acts and regulation
The Acts and regulation specified in Schedule 2 are amended as set out
in that Schedule.
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Protection of the Environment Operations Amendment Bill 2005
Amendment of Protection of the Environment Operations Act 1997 Schedule 1
Schedule 1 Amendment of Protection of the
Environment Operations Act 1997
(Section 3)
[1] Section 3 Objects of Act
Insert ", recovery" after "re-use" in section 3 (d) (iii).
[2] Section 6 Appropriate regulatory authority
Omit the note to the section. Insert instead:
Note. The regulations have prescribed the Marine Parks Authority and
certain other authorities as the appropriate regulatory authorities for
certain non-scheduled activities in certain areas. By virtue of this Act, the
marine authority is given jurisdiction in connection with noise control
notices and noise abatement directions relating to vessels (see sections
263 and 275).
[3] Section 45 Matters to be taken into consideration in licensing functions
Omit "being or likely to be caused" from section 45 (c).
Insert instead "caused or likely to be caused".
[4] Section 45 (e)
Insert "green offset scheme, green offset works or" before "tradeable emission
scheme".
[5] Section 45 (f1)
Insert after section 45 (f):
(f1) in relation to an activity or work that causes, is likely to
cause or has caused water pollution:
(i) the environmental values of water affected by the
activity or work, and
(ii) the practical measures that could be taken to restore
or maintain those environmental values,
[6] Section 47 Licensing requirement--scheduled development work
Omit the penalty provision at the end of section 47 (1). Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
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Schedule 1 Amendment of Protection of the Environment Operations Act 1997
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[7] Section 48 Licensing requirement--scheduled activities
(premises-based)
Omit the penalty provision at the end of section 48 (2). Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[8] Section 49 Licensing requirement--scheduled activities (not premises-
based)
Omit the penalty provision at the end of section 49 (2). Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[9] Section 50 Timing of licensing of development requiring consent under
EP&A Act
Insert "or varied (other than on the initiative of the EPA)" after "granted"
where firstly occurring in section 50 (2).
[10] Section 50 (4)
Insert ", and includes approval to carry out a project under Part 3A of that Act"
after "1979" in the definition of development consent.
[11] Section 57 Licence fees
Insert "in accordance with the notice" before "an additional amount" in
section 57 (4).
[12] Section 60 Requirement for further information
Omit "(other than an application for the approval of the surrender of a
licence)" from section 60 (1).
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Protection of the Environment Operations Amendment Bill 2005
Amendment of Protection of the Environment Operations Act 1997 Schedule 1
[13] Section 64 Failure to comply with condition
Omit the penalty provisions at the end of section 64 (1). Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[14] Section 66 Conditions requiring monitoring, certification or provision of
information, and related offences
Insert ", required" after "authorised" in section 66 (1) (a).
[15] Section 66 (2)
Omit the penalty provision at the end of the subsection. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000, or
(b) in the case of an individual--$250,000.
[16] Section 66 (3)
Omit "or by another person approved by that authority".
Insert instead ", by another person approved by that authority or by a person
prescribed by the regulations,".
[17] Section 66 (3) (a)
Insert ", or any provisions of the regulations applicable to the activity or work
authorised, required or controlled by the licence," after "licence".
[18] Section 66 (3) (b) and (c)
Insert "or any such regulations" after "conditions" wherever occurring.
[19] Section 69
Omit the section. Insert instead:
69 Conditions relating to tradeable emission schemes, green offsets
and other schemes involving economic measures
The conditions of a licence may implement or otherwise relate to:
(a) tradeable emission schemes, or
(b) green offset schemes or works, or
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Protection of the Environment Operations Amendment Bill 2005
Schedule 1 Amendment of Protection of the Environment Operations Act 1997
(c) other schemes involving economic measures,
as referred to in Part 9.3, 9.3A or 9.3B.
Note. Conditions relating to tradeable emission schemes or green offset
schemes or works may also be attached to licences by the regulations
(see Parts 9.3A and 9.3B).
[20] Section 70
Omit the section. Insert instead:
70 Conditions for financial assurances
The conditions of a licence, including the conditions of the
suspension, revocation or surrender of a licence, may require the
holder or former holder of the licence to provide financial
assurances, as provided by Part 9.4.
[21] Section 75 Conditions relating to waste
Insert "storage," before "handling" wherever occurring in section 75 (1) and
(4) (a).
[22] Section 75 (1)
Omit "reprocessing". Insert instead "processing, recovery".
[23] Section 75 (5) (d)
Insert "recovery," after "re-use,".
[24] Section 76
Omit the section. Insert instead:
76 Post-closure requirements for waste facilities or other licensed
premises
(1) The conditions of a licence, including the conditions of the
suspension, revocation or surrender of a licence, may require:
(a) the holder of the licence to submit to the appropriate
regulatory authority a closure plan in relation to the
premises to which the licence applies or applied, and
(b) the last licensee to implement a closure plan approved by
the appropriate regulatory authority.
(2) A closure plan in relation to premises that is required to be
submitted to an appropriate regulatory authority under the
conditions of a licence must:
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Protection of the Environment Operations Amendment Bill 2005
Amendment of Protection of the Environment Operations Act 1997 Schedule 1
(a) specify the steps taken (or to be taken) in closing,
stabilising or rehabilitating the premises and the
time-frame for doing so, and
(b) provide for a post-closure monitoring and maintenance
program, and
(c) identify any proposed future uses of the premises, and
(d) comply with any other specified requirements relating to
the plan.
(3) The appropriate regulatory authority may approve the closure
plan as submitted to it, or may vary the plan before approving it.
(4) In this section:
last licensee means the person who was the holder of a licence for
any premises immediately before the licence ceased to be in
force.
[25] Section 78 Review of licences
Omit "3" from section 78 (1). Insert instead "5".
[26] Section 78 (4) (a)
Insert after section 78 (4):
(4A) The EPA must audit, on an industry wide or regional basis,
compliance with licence requirements under this Act and whether
such requirements reflect best practice in relation to the matters
regulated by the licences.
[27] Section 79 Suspension or revocation of licence by appropriate
regulatory authority
Insert after section 79 (3):
(3A) A licence may be revoked during the currency of a suspension.
[28] Section 79 (5) (e1)
Insert after section 79 (5) (e):
(e1) the holder is liable to pay a contribution in respect of waste
under section 88 and has failed to pay the contribution by
the due date for its payment,
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Protection of the Environment Operations Amendment Bill 2005
Schedule 1 Amendment of Protection of the Environment Operations Act 1997
[29] Section 80 Surrender of licence
Insert after section 80 (1A):
(1B) Without limiting the grounds for refusal, an appropriate
regulatory authority may refuse an application for surrender of a
licence relating to a scheduled activity if it is of the opinion that:
(a) there will be an ongoing environmental impact arising
from the activity after the activity ceases to be carried on,
and
(b) it is appropriate to manage that impact through conditions
of the licence.
[30] Section 82 Minister may suspend or revoke licence if holder convicted of
major pollution offence
Omit the definition of major pollution offence from section 82 (2).
Insert instead:
major pollution offence means an offence the commission of
which has caused or is likely to cause harm to the environment,
being an offence punishable by a fine of $1,000,000 or more (in
the case of a corporation) or $250,000 or more (in the case of an
individual).
[31] Section 83 Fit and proper persons
Omit section 83 (2) (c) and (d). Insert instead:
(c) the person's record of compliance with the environment
protection legislation,
(d) if the person is a body corporate, the record of compliance
with the environment protection legislation of any director
or other person concerned in the management of the body
corporate,
(e) whether, in the opinion of the appropriate regulatory
authority, the management of the activities or works that
are or are to be authorised, required or regulated under the
relevant licence are not or will not be in the hands of a
technically competent person,
(f) whether, in the opinion of the appropriate regulatory
authority, the person is of good repute, having regard to
character, honesty and integrity,
(g) if the person is a body corporate, whether, in the opinion of
the appropriate regulatory authority, a director or other
person concerned in the management of the body corporate
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Protection of the Environment Operations Amendment Bill 2005
Amendment of Protection of the Environment Operations Act 1997 Schedule 1
is of good repute, having regard to character, honesty and
integrity,
(h) whether the person, in the previous 10 years, has been
convicted in New South Wales or elsewhere of an offence
involving fraud or dishonesty,
(i) if the person is a body corporate, whether a director or
other person concerned in the management of the body
corporate has, in the previous 10 years, been convicted in
New South Wales or elsewhere of an offence involving
fraud or dishonesty,
(j) whether the person, during the previous 3 years, was an
undischarged bankrupt or applied to take the benefit of any
law for the relief of bankrupt or insolvent debtors,
compounded with his or her creditors or made an
assignment of his or her remuneration for their benefit,
(k) if the person is an individual, whether he or she is or was a
director or person concerned in the management of a body
corporate that is the subject of a winding up order or for
which a controller or administrator has been appointed
during the previous 3 years,
(l) if the person is a body corporate, whether the body
corporate is the subject of a winding up order or has had a
controller or administrator appointed during the previous
3 years,
(m) whether the person has demonstrated to the EPA the
financial capacity to comply with the person's obligations
under the licence or the proposed licence,
(n) whether the person is in partnership, in connection with
activities that are subject to a licence or licence
application, with a person whom the appropriate
regulatory authority does not consider to be a fit and proper
person under this section,
(o) any other ground prescribed by the regulations.
[32] Section 84 Date from which decision operates
Omit section 84 (2). Insert instead:
(2) If an appeal is made against a decision of the appropriate
regulatory authority to vary, suspend or revoke a licence, to
approve or refuse the surrender of a licence subject to conditions,
or to attach any new conditions to, or vary any conditions of, a
suspension, revocation or surrender of a licence and the Land and
Environment Court directs that the decision is stayed, the
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Protection of the Environment Operations Amendment Bill 2005
Schedule 1 Amendment of Protection of the Environment Operations Act 1997
decision does not operate until the stay ceases to have effect or
the Land and Environment Court confirms the decision or the
appeal is withdrawn, whichever first occurs.
[33] Section 84 (4)
Omit the subsection.
[34] Section 86 Notice for breach of licensing requirements
Omit section 86 (2). Insert instead:
(2) A notice under this section operates from the day the notice is
given or from such later day as the notice specifies.
(2A) If an appeal is made against a notice under this section and the
Land and Environment Court directs that the notice is stayed, the
notice does not operate until the stay ceases to have effect or the
Land and Environment Court confirms the notice or the appeal is
withdrawn, whichever first occurs.
[35] Section 86 (3)
Omit the penalty provision at the end of the subsection. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[36] Section 87 Putrescible waste landfill sites--licensing arrangements
Omit section 87 (4) (c). Insert instead:
(c) any matters the authority thinks necessary to facilitate the
implementation of a waste strategy in force under the
Waste Avoidance and Resource Recovery Act 2001.
[37] Section 88 Contributions by licensee of waste facilities
Omit "re-using, recycling or reprocessing" from section 88 (1).
Insert instead "re-using, recovering, recycling or processing".
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Protection of the Environment Operations Amendment Bill 2005
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[38] Section 88 (3)
Omit section 88 (3) and (4) and the penalty provision at the end of section
88 (4).
Insert instead:
(3) An occupier who fails to pay the whole or any part of the
contribution payable by the occupier under this section:
(a) in the manner (if any) prescribed by the regulations or as
otherwise directed by the EPA by notice in writing given
to the occupier, or
(b) within the time or at such intervals as prescribed by the
regulations, or within the time or at such intervals as may
be otherwise directed by the EPA by notice in writing
given to the occupier,
is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[39] Section 88 (5) (a)
Omit the paragraph. Insert instead:
(a) provide for contributions to be calculated on such basis
(including such estimates), and in accordance with such
factors, as may be specified or described in the regulations,
and
[40] Section 88 (5) (c)
Omit "or reprocessed". Insert instead "recovered or processed".
[41] Section 88 (7)
Insert "or any unpaid portion of the contribution" after "unpaid contribution".
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Protection of the Environment Operations Amendment Bill 2005
Schedule 1 Amendment of Protection of the Environment Operations Act 1997
[42] Section 91 Clean-up by occupiers or polluters
Omit the penalty provision at the end of section 91 (5). Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[43] Section 94 Fee
Omit section 94 (3). Insert instead:
(3) The regulatory authority may:
(a) extend the time for payment of the fee, on the application
of a person to whom subsection (2) applies, or
(b) waive payment of the whole or any part of the fee, on the
authority's own initiative or on the application of a person
to whom subsection (2) applies.
[44] Section 94, note
Insert at the end of the section:
Note. Section 110 (5) provides that a fee is not payable for the variation
of an environment protection notice under this Chapter.
[45] Section 95 Meaning of environmentally unsatisfactory manner
Insert "(including a condition of a surrender of a licence) or an exemption
given under this Act or the regulations" after "licence" in section 95 (a).
[46] Section 96 Preventive action
Omit section 96 (3) (h). Insert instead:
(h) action with respect to the transportation, collection,
reception, re-use, recovery, recycling, processing, storage
or disposal of any waste or other substance,
[47] Section 96 (3) (j)
Insert after section 96 (3) (i):
(j) reviewing the carrying out of an activity.
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Protection of the Environment Operations Amendment Bill 2005
Amendment of Protection of the Environment Operations Act 1997 Schedule 1
[48] Section 96 (3A)
Insert after section 96 (3):
(3A) Water pollution considerations
The appropriate regulatory authority, when determining the
action to be specified in a notice relating to an activity that
causes, is likely to cause or has caused water pollution, must
consider:
(a) the environmental values of water affected by the activity,
and
(b) the practical measures that could be taken to restore or
maintain those environmental values, and
(c) if the appropriate regulatory authority is not the EPA--any
guidelines issued by the EPA to the authority relating to
the exercise of functions under this section.
[49] Section 97 Offence
Omit the penalty provision at the end of the section. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[50] Section 99
Omit the section. Insert instead:
99 Commencement of operation of prevention notices or variations
(1) A prevention notice, or a variation of a prevention notice,
operates from the day the notice or notice of the variation is given
or from such later day as the notice specifies.
(2) If an appeal is made against a prevention notice or the variation
of a prevention notice and the Land and Environment Court
directs that the notice is stayed, the notice or variation does not
operate until the stay ceases to have effect or the Land and
Environment Court confirms the notice or the appeal is
withdrawn, whichever first occurs.
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Protection of the Environment Operations Amendment Bill 2005
Schedule 1 Amendment of Protection of the Environment Operations Act 1997
[51] Section 100 Fee
Omit section 100 (3). Insert instead:
(3) The regulatory authority may:
(a) extend the time for payment of the fee, on the application
of a person to whom subsection (2) applies, or
(b) waive payment of the whole or any part of the fee, on the
authority's own initiative or on the application of a person
to whom subsection (2) applies.
[52] Section 100, note
Insert at the end of the section:
Note. Section 110 (5) provides that a fee is not payable for the variation
of an environment protection notice under this Chapter.
[53] Section 102 Offence
Omit the penalty provision at the end of the section. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[54] Section 107 Charge on land subject to compliance cost notice
Insert after section 107 (7):
(8) Recovery of costs relating to charge
A regulatory authority or public authority that lodges or registers
a compliance cost notice under section 106 may, by notice in
writing, require the person to whom the compliance cost notice
was given to pay all or any of the reasonable costs and expenses
incurred by the authority in respect of the lodgment or
registration of the compliance cost notice and the registration of
any resulting charge (including the costs of discharging the
charge). The regulatory authority or public authority may recover
any unpaid amounts specified in the notice as a debt in a court of
competent jurisdiction.
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Protection of the Environment Operations Amendment Bill 2005
Amendment of Protection of the Environment Operations Act 1997 Schedule 1
[55] Section 110 Revocation or variation
Insert after section 110 (4):
(5) A fee is not payable for the variation of an environment
protection notice under this Chapter.
[56] Section 112 Obstruction of persons
Omit the penalty provision at the end of the section. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[57] Section 113 False or misleading statements in reports
Omit the penalty provision at the end of the section. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000, or
(b) in the case of an individual--$250,000.
[58] Section 115 Disposal of waste--harm to environment
Omit the definition of waste from section 115 (3).
[59] Section 119
Omit the section. Insert instead:
119 Maximum penalty for tier 1 offences
A person who is guilty of an offence under this Part is liable, on
conviction:
(a) in the case of a corporation--to a penalty not exceeding
$5,000,000 for an offence that is committed wilfully or
$2,000,000 for an offence that is committed negligently, or
(b) in the case of an individual--to a penalty not exceeding
$1,000,000 or 7 years' imprisonment, or both, for an
offence that is committed wilfully or $500,000 or 4 years'
imprisonment, or both, for an offence that is committed
negligently.
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Protection of the Environment Operations Amendment Bill 2005
Schedule 1 Amendment of Protection of the Environment Operations Act 1997
[60] Section 123
Omit the section. Insert instead:
123 Maximum penalty for water pollution offences
A person who is guilty of an offence under this Part is liable, on
conviction:
(a) in the case of a corporation--to a penalty not exceeding
$1,000,000 and, in the case of a continuing offence, to a
further penalty not exceeding $120,000 for each day the
offence continues, or
(b) in the case of an individual--to a penalty not exceeding
$250,000 and, in the case of a continuing offence, to a
further penalty not exceeding $60,000 for each day the
offence continues.
[61] Section 132
Omit the section. Insert instead:
132 Maximum penalty for air pollution offences
A person who is guilty of an offence under this Division is liable,
on conviction:
(a) in the case of a corporation--to a penalty not exceeding
$1,000,000 and, in the case of a continuing offence, to a
further penalty not exceeding $120,000 for each day the
offence continues, or
(b) in the case of an individual--to a penalty not exceeding
$250,000 and, in the case of a continuing offence, to a
further penalty not exceeding $60,000 for each day the
offence continues.
[62] Part 5.4, Division 3
Insert after Division 2 of Part 5.4:
Division 3 Domestic air pollution
135A Definitions
In this Division:
chimney means a chimney, flue, pipe or other similar means of
conveying smoke emitted inside residential premises to the
outside.
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Protection of the Environment Operations Amendment Bill 2005
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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.
residential premises means premises used wholly or partly as a
residence.
135B Smoke abatement notices
(1) If it appears to an authorised officer of an appropriate regulatory
authority that is a local authority that excessive smoke is being,
or has at any time within the past 7 days been, emitted from a
chimney on or in residential premises, the officer may give the
person whom the officer believes to be the occupier of the
premises a smoke abatement notice directing the person to ensure
that excessive smoke is not emitted from the chimney at any time
after 21 days following the giving of the notice.
(2) A smoke abatement notice is to be in writing.
(3) A smoke abatement notice ceases to have effect 6 months after
the day on which it is given or when it is revoked, whichever
occurs first.
(4) This section does not apply to a chimney that is in or on an
incinerator or is used only in relation to smoke originating from
outside a residence.
135C Contravention of smoke abatement notices
(1) A person to whom a smoke abatement notice has been given must
not, without reasonable excuse, fail to comply with the notice
while the notice remains in force.
Maximum penalty: 30 penalty units.
(2) A smoke abatement notice does not prevent the emission of
smoke that is not excessive smoke.
(3) In any proceedings for an offence under this section, a document
signed by the authorised officer of an appropriate regulatory
authority who issued a smoke abatement notice certifying that the
officer had, at a specified time and place:
(a) observed a plume of smoke being emitted from a chimney
on or in premises specified in the certificate for a
continuous period of not less than 10 minutes, and
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Protection of the Environment Operations Amendment Bill 2005
Schedule 1 Amendment of Protection of the Environment Operations Act 1997
(b) observed during that period a plume of smoke extending at
least 10 metres from the point at which the smoke was
emitted from the chimney for a period of not less than
30 seconds,
is evidence of the matters so certified, unless the contrary is
proved.
135D Revocation of smoke abatement notices
A smoke abatement notice may be revoked by the appropriate
regulatory authority for which the person who gave the notice is
an authorised officer.
[63] Section 141
Omit the section. Insert instead:
141 Maximum penalty for noise offences
A person who is guilty of an offence under this Part is liable, on
conviction:
(a) in the case of a corporation--to a penalty not exceeding
$1,000,000 and, in the case of a continuing offence, to a
further penalty not exceeding $120,000 for each day the
offence continues, or
(b) in the case of an individual--to a penalty not exceeding
$250,000 and, in the case of a continuing offence, to a
further penalty not exceeding $60,000 for each day the
offence continues.
[64] Part 5.6, heading
Omit "pollution: waste". Insert instead "pollution and waste".
[65] Part 5.6, Division 1, heading
Insert before section 142:
Division 1 Preliminary
[66] Part 5.6, Division 2
Insert after section 142:
Division 2 Land pollution
142A Pollution of land
(1) A person who pollutes land is guilty of an offence.
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Protection of the Environment Operations Amendment Bill 2005
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Maximum penalty:
(a) in the case of a corporation--$1,000,000, and in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000, and in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
(2) In this section:
pollute land includes cause or permit any land to be polluted.
142B Defence of authority conferred by regulation
(1) The regulations may, for the purposes of this Division, regulate
the carrying out of an activity that pollutes land.
(2) It is a defence in proceedings for an offence under this Division
if the person establishes that:
(a) the pollution resulted from an activity regulated by such a
regulation, and
(b) the requirements of that regulation were not contravened.
142C Defence of authority conferred by licence
It is a defence in proceedings for an offence under this Division
if the person establishes that:
(a) the pollution was regulated by an environment protection
licence held by the person or another person, and
(b) the conditions to which that licence was subject relating to
the pollution of land were not contravened.
142D Defences relating to pesticides and fertilisers and other
substances
(1) It is a defence in proceedings for an offence under this Division
if the person establishes that the substance placed in or on, or
otherwise introduced into or onto, land is any of the following:
(a) a pesticide (within the meaning of the Pesticides Act 1999)
placed in or on, or otherwise introduced into or onto the
land, in the course of being used within the meaning of that
Act,
(b) a fertiliser, liming material or trace element product within
the meaning of the Fertilisers Act 1985 that may lawfully
be sold as such,
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(c) non-hazardous agricultural or crop waste, including stock
feed made solely from such waste,
(d) manure,
(e) virgin excavated natural material,
(f) biosolids or any other substances prescribed by the
regulations for the purposes of this section.
(2) Words and expressions used in this section have the meanings
prescribed by the regulations.
142E Defences relating to unlicensed landfills
It is a defence in proceedings for an offence under this Division
if the person establishes that a substance was placed in or on, or
otherwise introduced into or onto, land that was an unlicensed
landfill site notified to the EPA in accordance with, and operated
in accordance with, any requirements of the regulations.
[67] Part 5.6, Division 3, heading
Insert before section 143:
Division 3 Waste offences
[68] Section 143 Unlawful transporting or depositing of waste
Omit section 143 (1). Insert instead:
(1) Offence
If a person transports waste to a place that cannot lawfully be
used as a waste facility for that waste, or causes or permits waste
to be so transported:
(a) the person, and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.
Maximum penalty:
(a) in the case of a corporation--$1,000,000, or
(b) in the case of an individual--$250,000.
[69] Section 143 (4), definition of "waste"
Omit the definition.
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[70] Sections 144 and 144AA
Omit section 144. Insert instead:
144 Use of land as waste facility without lawful authority
(1) A person who is the owner or occupier of any land and who uses
the land, or causes or permits the land to be used, as a waste
facility without lawful authority is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
(2) In any proceedings for an offence under this section the
defendant bears the onus of proving that there is lawful authority
to use the land concerned as a waste facility.
144AA False or misleading information about waste
(1) A person who supplies information, or causes or permits
information to be supplied, that is false or misleading in a
material respect about waste to another person in the course of
dealing with the waste is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation--$250,000, or
(b) in the case of an individual--$120,000.
(2) It is a defence in any proceedings against a person for an offence
under this section if the person establishes that the person took all
reasonable steps to ensure that the information was not false or
misleading in a material respect.
(3) In this section, information is taken to be supplied to a person in
the course of dealing with waste if it is supplied:
(a) in the course of an activity relating to the sale or disposal
of waste, or
(b) in the course of an activity relating to the storage,
transport, handling, deposit, transfer, processing,
recycling, recovery, re-use or use of the waste.
(4) In this section, information about waste means information
about any of the following:
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(a) the type, classification, characteristics, composition or
quantity of the waste,
(b) the actual or proposed storage, transport, handling,
deposit, transfer, disposal, processing, recycling, recovery,
re-use or use of the waste,
(c) the hazards or potential harm to the environment or human
health associated with the waste or an activity referred to
in paragraph (b).
(5) In this section, information includes a record containing
information.
(6) Proceedings for an offence against this section may be instituted
only by the EPA.
[71] Section 145 Littering generally
Omit the penalty provision at the end of section 145 (1). Insert instead:
Maximum penalty: 20 penalty units.
[72] Section 146 Owners and drivers of motor vehicles and trailers involved
in littering
Omit section 146 (7) (b). Insert instead:
(b) if a court is dealing with the offence--the notice must be
given to the prosecutor within 28 days after service of the
summons or court attendance notice for the offence.
[73] Section 148 Pollution incidents causing or threatening material harm to
be notified
Insert after section 148 (3):
(3A) Duty of employer to notify
Without limiting subsection (2), an employer who is notified of
an incident under subsection (3) or who otherwise becomes
aware of a pollution incident which is related to an activity of the
employer, must, as soon as practicable after being notified or
otherwise becoming aware of the incident, notify the appropriate
regulatory authority of the incident and all relevant information
about it.
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[74] Section 148 (7)
Insert after section 148 (6):
(7) Odour not required to be reported
This section does not extend to a pollution incident involving
only the emission of an odour.
[75] Section 152 Offence
Omit the penalty provision at the end of the section. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[76] Section 155 Sale of motor vehicles
Omit the penalty provision at the end of the section. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000, or
(b) in the case of an individual--$250,000.
[77] Section 156 Sale of motor vehicles without anti-pollution devices
Omit the penalty provision at the end of the section. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000, or
(b) in the case of an individual--$250,000.
[78] Section 157 Adjustment etc of anti-pollution devices and motor vehicles
Omit the penalty provision at the end of the section. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000, or
(b) in the case of an individual--$250,000.
[79] Section 158 Service or repair of motor vehicles
Omit the penalty provision at the end of the section. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000, or
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(b) in the case of an individual--$250,000.
[80] Section 159 Sale of motor vehicles not serviced, maintained or adjusted
as prescribed
Omit the penalty provision at the end of the section. Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000, or
(b) in the case of an individual--$250,000.
[81] Section 162 Minister's power to prohibit use of motor vehicles in certain
circumstances
Omit the penalty provision at the end of section 162 (5). Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000, or
(b) in the case of an individual--$250,000.
[82] Part 5.8, Division 3 Unleaded petrol
Omit the Division.
[83] Section 167 Control equipment
Omit the penalty provision at the end of section 167 (4). Insert instead:
Maximum penalty:
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[84] Section 169 Offences by corporations
Omit section 169 (1) (a).
[85] Section 169 (4)
Omit "intention" wherever occurring. Insert instead "state of mind".
[86] Section 169 (5)
Insert after section 169 (4):
(5) In this section, the state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the
person, and
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(b) the person's reasons for the intention, opinion, belief or
purpose.
[87] Section 198A
Insert after section 198:
198A Power to disable intruder alarms
(1) An authorised officer may turn off or otherwise disable a building
intruder alarm or a motor vehicle intruder alarm that is or has
been sounding in breach of this Act or the regulations.
(2) In this section:
motor vehicle intruder alarm means a device that:
(a) incorporates or connects to a sounding device, and
(b) on being triggered, causes the sounding device to emit
sound,
being a device that is attached to or forms part of the motor
vehicle for use as an intruder alarm, whether or not the device is
also designed to be used for any other purpose.
[88] Section 203 Power of authorised officers to require answers
Insert after section 203 (4):
(5) An authorised officer may, by notice in writing, require a person
to attend at a specified place and time to answer questions under
this section if attendance at that place is reasonably required in
order that the questions can be properly put and answered.
(6) The place and time at which a person may be required to attend
under subsection (5) is to be:
(a) a place or time nominated by the person, or
(b) if the place and time nominated is not reasonable in the
circumstances or a place and time is not nominated by the
person, a place and time nominated by the authorised
officer that is reasonable in the circumstances.
[89] Section 203A
Insert after section 203:
203A Recording of evidence
(1) An authorised officer may cause any questions and answers to
questions given under this Part to be recorded if the officer has
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informed the person who is to be questioned that the record is to
be made.
(2) A record may be made using sound recording apparatus or audio
visual apparatus, or any other method determined by the
authorised officer.
(3) A copy of any such record must be provided by the authorised
officer to the person who is questioned as soon as practicable
after it is made.
(4) A record may be made under this section despite the provisions
of any other law.
[90] Section 204 Power of authorised officers to demand name and address
Insert after section 204 (2):
(2A) Proof of name and address
An authorised officer may request a person who is required under
this section to state his or her full name and residential address to
provide proof of the name and address. It is not an offence under
section 211 to fail to comply with any such request.
[91] Section 205 Definitions
Insert after paragraph (c) of the definition of authorised officer:
, and
(d) extends, in sections 206 and 208, in relation to vessels
situated within marine parks, to a marine park ranger
appointed under section 35A of the Marine Parks Act 1997
authorised by the Marine Parks Authority for the purposes
of those sections.
[92] Section 206 Power to inspect and test
Omit "(not exceeding 1 litre)" from section 206 (2) (f).
[93] Section 208 Stopping of vehicles and vessels for inspection or testing
Insert at the end of section 208 (1) (b):
, or
(c) to move the vehicle or vessel to a suitable place for
inspection or testing.
[94] Section 208 (2)
Insert "(other than a direction to move the vehicle or vessel to a suitable place
for inspection or testing at a later time)" after "such a direction".
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[95] Section 208 (2A)
Insert after section 208 (2):
(2A) If a direction is given to move a vehicle or vessel to a suitable
place for inspection or testing and the inspection or testing is not
to take place at the time, the direction must be given by notice in
writing specifying the time, date and place for the inspection or
testing.
[96] Section 211 Offences
Omit the penalty provision at the end of the section. Insert instead:
Maximum penalty (subject to sections 204 and 208):
(a) in the case of a corporation--$1,000,000 and, in the case
of a continuing offence, a further penalty of $120,000 for
each day the offence continues, or
(b) in the case of an individual--$250,000 and, in the case of
a continuing offence, a further penalty of $60,000 for each
day the offence continues.
[97] Section 212C Actions by incorrect regulatory authority
Omit ", in good faith," from section 212C (1).
[98] Section 212E
Insert after section 212D:
212E Extraterritorial exercise of functions
(1) The Minister may enter into an arrangement with a Minister of
another State or Territory providing for the exercise, in another
State or Territory, by authorised officers or by officers of that
State or Territory of functions under this Act or the regulations.
(2) An authorised officer or an officer of another State or Territory
may, in accordance with any such arrangement, exercise
functions under this Act, but only to the extent that the matters
concerned relate to the environment of this State.
[99] Section 213 Application of Chapter
Insert after section 213 (2) (b):
(c) Environmentally Hazardous Chemicals Act 1985 and the
regulations under that Act.
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[100] Section 213 (3)
Insert after section 213 (2):
(3) Limitation
Sections 217 (2) and 218 do not extend to proceedings under the
Environmentally Hazardous Chemicals Act 1985 or the
regulations under that Act.
[101] Section 216 Time within which summary proceedings may be
commenced
Insert after paragraph (c) of the definition of prescribed offence in section
216 (6):
(c1) an offence under section 142A (Pollution of land) or
144AA (False or misleading information about waste), or
(c2) an offence arising under the Environmentally Hazardous
Chemicals Act 1985 to which this Chapter extends by
virtue of section 213, or
[102] Section 218A
Insert after section 218:
218A Agents may institute proceedings
Proceedings that may be instituted under section 217 or 218 may
also be instituted on behalf of an appropriate regulatory authority
or any other authority or person specified in those sections by an
agent of the authority or person appointed for that purpose.
[103] Sections 237A and 237B
Insert after section 237:
237A Recovery of costs of registering charge on land
(1) A person (including a public authority) who registers a charge on
land to which a restraining order applies under section 236 may,
by notice in writing, require the defendant to pay all or any of the
reasonable costs and expenses incurred by the person in respect
of the lodgment and registration of the charge (including the costs
of discharging the charge).
(2) The person may recover from the defendant any unpaid amounts
specified in the notice as a debt in a court of competent
jurisdiction.
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237B Recovery of costs of lodging caveat
(1) A person (including a public authority) who lodges a caveat in
respect of land to which a restraining order applies under
section 237 may, by notice in writing, require the defendant to
pay all or any of the reasonable costs and expenses incurred by
the person in respect of the lodgment and registration of the
caveat (including the costs of withdrawal of the caveat).
(2) The person may recover from the defendant any unpaid amounts
specified in the notice as a debt in a court of competent
jurisdiction.
[104] Section 248 Orders regarding costs and expenses of investigation
Omit the definition of costs and expenses from section 248 (3). Insert instead:
costs and expenses, in relation to the investigation of an offence,
means the costs and expenses:
(a) in taking any sample or conducting any inspection, test,
measurement or analysis, or
(b) of transporting, storing or disposing of evidence,
during the investigation of the offence.
[105] Section 249 Orders regarding monetary benefits
Omit "not exceeding the court's estimation of" from section 249 (1).
Insert instead "the court is satisfied, on the balance of probabilities,
represents".
[106] Section 250 Additional orders
Insert "(including the circumstances of the offence)" after "offence" wherever
occurring in section 250 (1) (a) and (b).
[107] Section 250 (1) (e)-(h)
Insert after section 250 (1) (d):
(e) order the offender to pay a specified amount to the
Environmental Trust established under the Environmental
Trust Act 1998, or a specified environmental organisation,
for the purposes of a specified project for the restoration or
enhancement of the environment or for general
environmental purposes,
(f) order the offender to attend, or to cause an employee or
employees or a contractor or contractors of the offender to
attend, a training or other course specified by the court,
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(g) order the offender to establish, for employees or
contractors of the offender, a training course of a kind
specified by the court,
(h) if the EPA is a party to the proceedings, order the offender
to provide a financial assurance, of a form and amount
specified by the court, to the EPA, if the court orders the
offender to carry out a specified work or program for the
restoration or enhancement of the environment.
[108] Section 250 (1)
Omit "or (d)". Insert instead ", (d), (e) or (h)".
[109] Section 250 (5)
Insert after section 250 (4):
(5) Financial assurances
Sections 302-307 apply to a financial assurance provided by an
offender under an order made under this section in the same way
as they apply to a financial assurance given by a holder of a
licence under a condition of a licence under Part 9.4.
[110] Part 8.4, heading
Insert "or enforce undertakings" after "environment".
[111] Section 253A
Insert after section 253:
253A Enforcement of undertakings
(1) The EPA may accept a written undertaking given by a person for
the purposes of this section in connection with a matter in relation
to which the EPA has a function under this Act.
(2) The person may withdraw or vary the undertaking at any time,
but only with the consent in writing of the EPA. The consent of
the EPA is required even if the undertaking purports to authorise
withdrawal or variation of the undertaking without that consent.
(3) The EPA may apply to the Land and Environment Court for an
order under subsection (4) if the EPA considers that the person
who gave the undertaking has breached any of its terms.
(4) The Court may make all or any of the following orders if it is
satisfied that the person has breached a term of the undertaking:
(a) an order directing the person to comply with that term of
the undertaking,
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(b) an order directing the person to pay to the State an amount
not exceeding the amount of any financial benefit that the
person has obtained directly or indirectly and that is
reasonably attributable to the breach,
(c) any order that the Court thinks appropriate directing the
person to compensate any other person who has suffered
loss or damage as a result of the breach,
(d) an order suspending or revoking any environment
protection licence held by the person,
(e) an order requiring the person to prevent, control, abate or
mitigate any actual or likely harm to the environment
caused by the breach,
(f) an order requiring the person to make good any actual or
likely harm to the environment caused by the breach,
(g) any other order the Court considers appropriate.
[112] Section 261 Certificate evidence of certain matters
Insert after section 261 (2) (o):
(p) that a person was or was not appointed by the EPA as an
analyst under this Act during a specified period,
(q) that information required to be furnished to a regulatory
authority or authorised officer pursuant to this Act or the
regulations was or was not received,
(r) that a document is a copy of part of, or an extract from, a
register kept under this Act,
(s) that an amount is payable under this Act or the regulations
by a specified person and has not been paid,
(t) that a person was served with a notice under this Act or the
regulations,
(u) that a specified function of the EPA or Director-General
was delegated to a specified person under section 21 of the
Protection of the Environment Administration Act 1991
during a specified period.
[113] Section 262 Evidence of analysts
Omit section 262 (3). Insert instead:
(3) A certificate of such an analyst that, on receipt of a container
containing a sample submitted to the analyst by an authorised
officer or any other person, the container was sealed and the seal
securing the container was unbroken is admissible in evidence in
any proceedings under this Act or the regulations as evidence:
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(a) of the facts stated in the certificate, and
(b) that the sample was the same sample as the one obtained
by the authorised officer or other person, and
(c) that the sample had not been tampered with before it was
received by the analyst.
[114] Section 264 Noise control notices relating to premises
Omit section 264 (1) (b). Insert instead:
(b) the person who carries on or proposes to carry on an
activity at any premises or who uses or operates or
proposes to use or operate an article at any premises.
[115] Section 267
Omit the section. Insert instead:
267 Commencement of operation of noise control notices
(1) A noise control notice operates from the day the notice is given
or from such later day as the notice specifies.
(2) If an appeal is made against a noise control notice and the Land
and Environment Court directs that the notice is stayed, the notice
does not operate until the stay ceases to have effect or the Land
and Environment Court confirms the notice or the appeal is
withdrawn, whichever first occurs.
[116] Sections 267A and 267B
Insert after section 267:
267A Fee
(1) The purpose of this section is to enable a regulatory authority to
recover the administrative costs of preparing and giving noise
control notices.
(2) A person who is given a noise control notice by a regulatory
authority must within 30 days pay the prescribed fee to the
authority.
(3) The regulatory authority may:
(a) extend the time for payment of the fee on the application
of a person to whom subsection (2) applies, or
(b) waive payment of the whole or any part of the fee on the
authority's initiative or on the application of a person to
whom subsection (2) applies.
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(4) The fee is not payable during the currency of an appeal against
the noise control notice.
(5) A fee is not payable on the variation or revocation of a noise
control notice.
(6) If the decision of the Court on an appeal does not invalidate the
noise control notice, the fee is payable within 30 days of the
decision.
(7) A person who does not pay the fee within the time provided under
this section is guilty of an offence.
Maximum penalty (subsection (7)): 200 penalty units.
267B Compliance costs
(1) The appropriate regulatory authority that gives a noise control
notice to a person may, by notice in writing (in this section
referred to as a compliance cost notice), require the person to pay
all or any reasonable costs incurred by the authority in connection
with:
(a) monitoring action under the notice, and
(b) ensuring that the notice is complied with, and
(c) any other associated matters.
(2) A regulatory authority may recover any unpaid amounts
specified in a compliance cost notice as a debt in a court of
competent jurisdiction.
(3) If the person given a compliance cost notice complies with the
notice but was not the person who caused the noise, the cost of
complying with the notice may be recovered by the person who
complied with the notice as a debt in a court of competent
jurisdiction from the person who caused the noise.
[117] Section 271
Omit the section. Insert instead:
271 Commencement of operation of noise abatement order
(1) A noise abatement order operates from the day the order is made
or from such later day as the order specifies.
(2) If an appeal is made against a noise abatement order and the Land
and Environment Court directs that the order is stayed, the order
does not operate until the stay ceases to have effect or the Land
and Environment Court confirms the order or the appeal is
withdrawn, whichever first occurs.
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[118] Section 278 Restrictions on noise abatement directions
Insert "(other than a direction given by an authorised officer appointed by the
EPA)" after "direction" wherever occurring.
[119] Section 285 Exemption for fire brigades and other emergency services
Omit "bush fire brigade" from section 285 (1).
Insert instead "rural fire brigade".
[120] Section 285 (1)
Omit "officially".
[121] Section 285 (3)
Insert after section 285 (2):
(3) In this section:
accredited rescue unit has the same meaning as it has in the State
Emergency and Rescue Management Act 1989.
rural fire brigade has the same meaning as it has in the Rural
Fires Act 1997.
[122] Section 287 Appeals regarding licence applications and licences
Insert after section 287 (1):
(1A) The lodging of an appeal does not, except to the extent that the
Land and Environment Court otherwise directs in relation to the
appeal, operate to stay the decision appealed against.
[123] Section 288 Appeals regarding notices under section 86 relating to work
at premises
Insert at the end of the section:
(2) The lodging of an appeal does not, except to the extent that the
Land and Environment Court otherwise directs in relation to the
appeal, operate to stay the notice appealed against.
[124] Section 289 Appeals against prevention notices
Insert after section 289 (1):
(1A) The lodging of an appeal does not, except to the extent that the
Land and Environment Court otherwise directs in relation to the
appeal, operate to stay the notice appealed against.
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[125] Section 290 Appeals regarding noise
Insert after section 290 (1):
(1A) The lodging of an appeal does not, except to the extent that the
Land and Environment Court otherwise directs in relation to the
appeal, operate to stay the notice or order appealed against.
[126] Section 293 Schemes for economic measures
Insert ", or a green offset scheme, as referred to in Part 9.3B" after "Part 9.3A"
in section 293 (4).
[127] Section 294A Exercise of functions by Minister and EPA
Omit "Part 9.3A". Insert instead "Parts 9.3A and 9.3B".
[128] Section 295 Regulations
Omit "are set out in Part 9.3A" from the note to the section.
Insert instead "and green offsets are set out in Parts 9.3A and 9.3B,
respectively".
[129] Part 9.3B
Insert after Part 9.3A:
Part 9.3B Green offsets
295M Definitions
In this Part:
licensed activity means an activity authorised or controlled by a
licence.
participant in a green offset scheme means:
(a) a person who holds a green offset credit created under the
scheme, or
(b) a person who holds a licence that is subject to a condition
that requires or authorises the person to participate in or
contribute to the scheme, or a licence of a prescribed kind,
or
(c) a person (other than the holder of a licence) who arranges,
implements or manages the scheme.
participant in green offset works means:
(a) a person who holds a licence that is subject to a condition
that requires or authorises the person to implement or
arrange the works, or
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(b) a person (other than the holder of a licence) who
implements or manages the works.
295N Licence conditions
(1) A condition of a licence may be imposed in relation to a green
offset scheme or work even though:
(a) the scheme or work does not relate to the licensed
premises, or
(b) the scheme or work does not relate to harm arising from
the activity authorised or controlled by the licence,
so long as the harm arises from the same kind of licensed
activities and relates to the same types of pollutants or impacts
that arise from the activity authorised or controlled by the licence.
(2) The appropriate regulatory authority may not impose any such
condition on a licence unless it is satisfied of the following:
(a) that the pollutants or impacts of the activity may not be
otherwise prevented, controlled, abated or mitigated in a
cost effective way by other measures under the licence,
(b) that the proposed green offset scheme or work is likely to
result in at least the same or a more beneficial effect on the
environment than the use of such other measures,
(c) that the effects and benefits of the proposed green offset
scheme or work may be reliably estimated or ascertained
by the authority,
(d) that the effects of the proposed green offset scheme or
work are likely to occur wholly or partly in an area affected
by the pollutants or impacts that arise from the activity,
(e) that the effects and benefits of the proposed green offset
scheme or work are likely to last at least until the relevant
impact of the activity is offset.
(3) The regulations may, for the purpose of giving effect to a green
offset scheme or works, impose conditions on licences.
(4) Conditions of a licence that are imposed by the regulations for the
purposes of this Part cannot be substituted, omitted, amended or
revoked by a regulatory authority.
(5) This section does not prevent a condition from being attached to
a licence by an appropriate regulatory authority in the manner
provided by Chapter 3.
Note. Under section 69, conditions may be imposed on licences
implementing or otherwise relating to green offset schemes and green
offset works.
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295O Green offset schemes
(1) A green offset scheme is a scheme established for any or all of the
following purposes:
(a) to carry out a specified program for the restoration or
enhancement of the environment that is related to a
licensed activity,
(b) to prevent, control, abate, mitigate or otherwise offset any
harm to the environment arising (wholly or partly) from
any licensed activity,
(c) to make good any environmental damage arising (wholly
or partly) from a licensed activity.
(2) A green offset scheme may include any or all of the following
elements:
(a) contractual agreements or other arrangements between the
person who arranges or implements or manages a green
offset scheme and other participants in the scheme,
(b) the creation of a market for entitlements to participate in a
green offset scheme,
(c) the creation of green offset credits,
(d) the initial sale or allocation and further sale or allocation of
green offset credits,
(e) provision for the holding of green offset credits by
participants,
(f) the payment of contributions to the scheme for works
under the scheme,
(g) the implementation of works by participants in the scheme,
(h) the payment of administrative costs relating to the scheme,
(i) the rights and duties of participants in the scheme,
(j) the trading of green offset credits or of any entitlements
conferred by them (including restrictions on trading and
any other dealings),
(k) safeguards against anti-competitive behaviour by
participants in the scheme,
(l) the alteration, suspension, cancellation or forfeiture of
green offset credits, or other rights or entitlements under
the scheme,
(m) provision for a register of green offset credits and
participants and for the circumstances in which register
information may be disclosed.
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(3) A green offset scheme may include elements other than those
mentioned in this section.
(4) A green offset scheme may, subject to any applicable licence
conditions:
(a) be arranged or implemented or managed by the holder of a
licence or another person, and
(b) involve both participants who are licence holders and who
are not licence holders.
295P Green offset works
(1) Green offset works are works established by or on behalf of the
holder of a licence for any or all of the following purposes:
(a) to prevent, control, abate, mitigate or otherwise offset any
harm to the environment arising (wholly or partly) from
any licensed activity,
(b) to make good any environmental damage arising (wholly
or partly) from a licensed activity.
(2) Green offset works may include any or all of the following
elements:
(a) contractual agreements or other arrangements between the
holder of a licence and a person who implements or
manages the works,
(b) the implementation or arrangement of works by
participants,
(c) the payment of administrative costs relating to the works,
(d) the rights and duties of participants in the works.
(3) Green offset works may form part of a green offset scheme.
(4) Green offset works may include elements other than those
mentioned in this section.
(5) Green offset works may, subject to any applicable licence
conditions, be implemented or managed by the holder of a licence
or another person.
295Q Regulations relating to green offsets
(1) The regulations may make provision for or with respect to green
offset schemes or works, including provision for or with respect
to the following matters:
(a) any of the elements referred to in section 295O or 295P,
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Protection of the Environment Operations Amendment Bill 2005
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(b) requirements for agreements or other arrangements
relating to green offset schemes or works,
(c) criteria for activities that may be covered by a green offset
scheme or works,
(d) inspection of premises at which a green offset scheme or
works are carried out,
(e) the functions of a manager of a green offset scheme or
works and accountability requirements for managers.
(2) The regulations must make provision for or with respect to the
following matters:
(a) if appropriate criteria and methodologies are available, the
criteria and methodologies for determining whether green
offset schemes or works meet required outcomes specified
in licence conditions,
(b) evaluation, on a periodic basis, of green offset schemes or
works and publication of such evaluations.
(3) A green offset regulation is not repealed by the operation of
Part 3 of the Subordinate Legislation Act 1989.
(4) A green offset regulation may be periodically reviewed by the
Minister, in accordance with a timetable set out in the regulation.
Any such review must include a review of the operation of the
elements referred to in section 295O or 295P.
(5) The Minister is to ensure that the public is given an opportunity
to make submissions with respect to the review, and that any
submissions with respect to the review that are received within
the period allowed for the receipt of submissions are
appropriately considered.
(6) In order to give the public an opportunity to make submissions
with respect to the review, the Minister must:
(a) cause notice of the review to be published in the Gazette
and in a newspaper circulating throughout the State or in
the locality in which any relevant green offset scheme
operates or relevant green offset works are located, and
(b) in that notice, invite the public to make submissions with
respect to the review, and
(c) allow a period of not less than 21 days for the receipt of
those submissions.
(7) For the purposes of this section, a green offset regulation is a
regulation that contains only the following provisions:
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Protection of the Environment Operations Amendment Bill 2005
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(a) provisions that relate to green offset schemes or works
(including any ancillary, consequential, savings or
transitional provisions),
(b) provisions that deal with the citation and commencement
of the regulation, or other provisions of a machinery
nature.
(8) This section does not limit the generality of section 295.
295R Action that may be taken by EPA in relation to green offset
schemes or works
(1) The regulations may authorise the EPA, or a person exercising
functions under a green offset scheme on behalf of the EPA, to do
any or all of the following, in the circumstances set out in the
regulations:
(a) cancel or suspend green offset credits, or any entitlement
that they confer,
(b) order the forfeiture of green offset credits to the EPA,
(c) cancel or suspend a person's right to participate in a green
offset scheme, or impose conditions or other restrictions
on the right.
(2) The EPA may appoint a person to manage a green offset scheme
or works on behalf of the EPA.
(3) The EPA may manage or participate in a green offset scheme,
including by holding, creating and trading in green offset credits,
and may manage or participate in green offset works.
295S Administrative costs
(1) The regulations may require participants in a green offset scheme
to pay to the EPA a contribution towards the following:
(a) the costs of management and administration of the scheme
(including payment for services provided by any person or
body exercising functions under the scheme),
(b) the costs of ensuring compliance with the scheme,
(c) any other costs relating to the scheme.
(2) The regulations may require participants in green offset works to
pay to the EPA a contribution towards the following:
(a) the costs of management and administration of the works
(including payment for services provided by any person or
body providing or managing the works),
(b) the costs of ensuring compliance with the works,
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Protection of the Environment Operations Amendment Bill 2005
Amendment of Protection of the Environment Operations Act 1997 Schedule 1
(c) any other costs relating to the works.
(3) The regulations may:
(a) require a person to continue to make a contribution
referred to in this section in respect of a green offset credit
that has been forfeited until the credit is sold or
re-allocated, and
(b) exempt any person or class of persons from payment of a
contribution referred to in this section.
(4) The EPA is not required to pay a contribution referred to in this
section.
(5) This section does not apply to contributions for works under
green offset schemes.
295T Payment of contributions
(1) A contribution payable under this Part is recoverable by the EPA
as a debt in a court of competent jurisdiction.
(2) The regulations may provide for matters concerning the payment
of a contribution payable under this Part.
(3) The regulations may authorise the payment of a contribution
payable under this Part by instalments. If an instalment is not paid
by the due date, the balance then becomes due and payable
(together with any interest or other penalty for late payment
prescribed by the regulations).
295U Green Offsets Fund
(1) There is to be established in the Special Deposits Account an
account called the Green Offsets Fund.
(2) Money in the Fund is under the control of the EPA and can be
expended by the EPA only for the purposes authorised by this
section.
(3) There is to be paid into the Fund:
(a) all contributions for green offset schemes paid by the
holders of licences, and
(b) all contributions paid by participants in a green offset
scheme or works under a regulation referred to in section
295S, and
(c) the proceeds of any auction or other sale of credits, or any
entitlement conferred by them, under a green offset
scheme, and
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Protection of the Environment Operations Amendment Bill 2005
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(d) the proceeds of investment of money in the Fund, and
(e) any gift or bequest of money for the purposes of the Fund,
and
(f) any other money appropriated by Parliament for the
purposes of the Fund or required by law to be paid into the
Fund.
(4) There may be paid out of the Fund:
(a) the costs of green offset schemes, including management
and administration of schemes and payment for works
under the scheme and services provided by any person or
body exercising functions under the scheme, and
(b) the costs of green offset works, including management of
works and payment for services by any person or body
providing or managing the works, and
(c) the costs of ensuring compliance with green offset
schemes or the provision of green offset works, and
(d) such other costs relating to green offset schemes or works
as the EPA directs to be paid out of the Fund.
(5) There may be paid out of the Fund to the Consolidated Fund any
amount in the Fund that, in the opinion of the EPA, is in excess
of the amounts required to meet the costs referred to in
subsection (4).
(6) A separate account is to be established in the Fund for each green
offset scheme.
(7) If more than one account in the Fund is established under this
Part, money in the accounts may be invested as a common pool.
The proceeds of investments are to be distributed rateably among
the accounts that contributed money to the common pool
according to the amount contributed.
(8) This section does not apply to or in respect of contributions,
proceeds, money or costs payable in respect of a green offset
scheme implemented or managed by a public authority and
approved for the purposes of this subsection by the EPA.
(9) The EPA may not approve a green offset scheme for the purposes
of subsection (8) unless it is satisfied that appropriate provision
is made for managing and auditing the funds of the scheme.
295V Exercise of scheme functions by other persons and bodies
(1) The EPA may enter into agreements and other arrangements with
a person or body in respect of the exercise of the functions of the
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EPA under a green offset scheme or in relation to green offset
works by the person or body on behalf of the EPA.
(2) The regulations may provide for the constitution of committees
(as incorporated or unincorporated bodies):
(a) to provide advice on green offset schemes, and
(b) to exercise any other functions conferred on them by the
EPA or by the regulations in connection with green offset
schemes or works.
(3) A matter or thing done or omitted to be done by such a
committee, a member of the committee or a person acting under
the direction of the committee does not, if the matter or thing was
done or omitted to be done in good faith for the purpose of
executing this or any other Act or the regulations, subject a
member or a person so acting personally to any action, liability,
claim or demand.
295W Liability for operation of scheme
(1) The Crown does not incur any liability (including liability for
compensation) in respect of anything done or omitted to be done
in good faith by the EPA, or by a person exercising functions on
behalf of the EPA, in connection with the operation of a green
offset scheme or works.
(2) Without limiting subsection (1), that subsection applies to
anything done or omitted to be done in connection with the
operation of any register or other system by which green offset
credits, or other entitlements, are traded under a green offset
scheme.
(3) This section does not limit the generality of section 294.
(4) In this section:
compensation includes damages or any other form of monetary
compensation.
the Crown means the Crown within the meaning of the Crown
Proceedings Act 1988, and includes any officer, employee or
agent of the Crown.
295X Application of Duties Act 1997
A green offset credit, or any other entitlement, created under a
green offset scheme is not dutiable property for the purposes of
the Duties Act 1997.
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Protection of the Environment Operations Amendment Bill 2005
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[130] Section 300 Amount of financial assurances
Insert after section 300 (2):
(3) Costs of assessment
The appropriate regulatory authority may require the holder or
former holder of a licence who is required to give a financial
assurance to provide to the authority an independent assessment
of the cost of the relevant work or program for which the
assurance is required.
[131] Section 301 Guidelines about financial assurances
Insert "and in relation to the calculation of the amount of financial assurances
required" after "assurances".
[132] Section 308 Public register
Omit "the following" from section 308 (2).
Insert instead "such of the following matters as are applicable to the regulatory
authority".
[133] Section 319 Disclosure of information
Insert "this State," before "the Commonwealth" in section 319 (1) (e).
[134] Section 319 (2A)
Insert after section 319 (2):
(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.
[135] Section 319 (3) (a)
Insert ", or formerly required," after "required".
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Protection of the Environment Operations Amendment Bill 2005
Amendment of Protection of the Environment Operations Act 1997 Schedule 1
[136] Section 319A Continuing effect of notices and conditions
Insert ", or a condition of a licence imposed," after "notice given" in section
319A (1).
[137] Section 319A (1)
Insert "or condition" after "the notice" wherever occurring.
[138] Section 319A (3) and (4)
Insert "or a condition of a licence" after "notice" wherever occurring.
[139] Section 320A False representations as to EPA approval, use or
recommendation and licences
Insert "or represents that the person holds a licence that permits certain
activities" after "EPA" in section 320A (1).
[140] Section 323 Regulations
Insert after section 323 (5):
(5A) Despite subsection (5), a condition of a licence may be
inconsistent with a requirement of the same kind in a regulation,
but only to the extent that the condition imposes a more stringent
requirement than the regulation.
[141] Schedule 1 Schedule of EPA-licensed activities
Omit "Composting and related reprocessing" from Part 1.
Insert instead "Composting and related processing".
[142] Schedule 1, Part 1
Omit ", processing or reprocessing" from the item relating to mineral
processing or metallurgical works.
Insert instead "or processing".
[143] Schedule 1, Part 2
Omit ", processing or reprocessing" from the item relating to mobile waste
processing.
Insert instead "or processing".
[144] Schedule 1, Part 3, Division 2 (1)
Omit the definitions of recycling and reprocessing.
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Protection of the Environment Operations Amendment Bill 2005
Schedule 1 Amendment of Protection of the Environment Operations Act 1997
[145] Schedule 2 Regulation-making powers
Omit "reprocessing, recycling" from clause 5 (1) and (3) wherever occurring.
Insert instead "processing, recovery, recycling, re-use".
[146] Schedule 2, clause 5 (6)
Omit the subclause. Insert instead:
(6) Prohibiting or regulating the storage, processing, recovery,
recycling, re-use or disposal of any waste.
[147] Schedule 2, clause 7
Insert "and other appropriate regulatory authorities (including, but not limited
to, the administrative costs of services provided under this Act and the costs
associated with the functions of the EPA and other appropriate regulatory
authorities under this Act)" after "EPA".
[148] Schedule 2, clause 9A
Insert after clause 9:
9A Establishment of scheme for independent certification of
load-based licences
(1) Requiring a person who holds a licence which requires the
payment of a load-based fee to obtain independent certification of
compliance with this Act, the regulation or licence conditions
where the licence requires the holder of the licence to submit an
annual return.
(2) Prescribing a scheme for any such independent certification and
in particular (but not limited to):
(a) the persons or classes of persons who may provide
independent certification for the purposes of the scheme
and the qualifications or experience that those persons or
classes of persons are required to have, and
(b) the standards or methods to be used, or other requirements
in respect of, determining compliance, and
(c) the information to be provided to the EPA following
independent certification and the manner or form in which
it is to be provided, and
(d) the general nature, requirements and operation of the
scheme.
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Protection of the Environment Operations Amendment Bill 2005
Amendment of Protection of the Environment Operations Act 1997 Schedule 1
[149] Schedule 5 Savings, transitional and other provisions
Insert at the end of clause 2 (1):
Protection of the Environment Operations Amendment Act
2005--to the extent it amends this Act
[150] Schedule 5, clause 6
Omit the clause.
[151] Schedule 5
Insert at the end of the Schedule with appropriate Part and clause numbering:
Part Provisions consequent on enactment of
Protection of the Environment Operations
Amendment Act 2005
Definition
In this Part:
amending Act means the Protection of the Environment
Operations Amendment Act 2005.
Review of licences
(1) This clause applies to licences in force at the commencement of
the amendment to section 78 (1) by the amending Act, being
licences that had been reviewed under that section before that
commencement.
(2) A licence is to be reviewed under section 78 not later than 5 years
after the date of the last review before that commencement and,
after that, at intervals not exceeding 5 years after each review.
Appeals
Sections 84 (2), 86 (2), 99 (1), 267 (1) and 271 (1), as substituted
by the amending Act, and sections 86 (2A), 287 (1A), 288 (2),
289 (1A) and 290 (1A), as inserted by the amending Act, apply
only to appeals in respect of which a decision was made, a notice
was issued or an order was made after the commencement of
those subsections.
Recovery of costs
(1) Section 107 (8), as inserted by the amending Act, applies only
where a compliance cost notice is issued after the commencement
of that subsection (whether or not the compliance cost notice
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Protection of the Environment Operations Amendment Bill 2005
Schedule 1 Amendment of Protection of the Environment Operations Act 1997
relates to costs and expenses incurred before that
commencement).
(2) Section 237A, as inserted by the amending Act, applies only
where the restraining order to which the charge relates was made
after the commencement of that section (whether or not the
restraining order relates to proceedings commenced before that
commencement).
(3) Section 237B, as inserted by the amending Act, applies only
where the restraining order to which the caveat relates was made
after the commencement of that section (whether or not the
restraining order relates to proceedings commenced before that
commencement).
(4) Sections 267A and 267B, as inserted by the amending Act, apply
only where the noise control notice is issued after the
commencement of those sections.
Proceedings instituted by agents
Any proceedings instituted under section 217 or 218 by an agent
of, or a person appointed by, an appropriate regulatory authority
or any other authority or person before the commencement of
section 218A are as valid as they would have been if instituted
after that commencement.
Continuing licence conditions
Section 319A, as amended by the amending Act, extends to
conditions of a licence in force on the commencement of the
amendments.
Existing licence conditions
Section 323 (5A), as inserted by the amending Act, extends to a
condition that was attached to a licence before the
commencement of that subsection.
[152] Dictionary
Insert in alphabetical order:
environmental values of water means the environmental values
of water specified in the Australian and New Zealand Guidelines
for Fresh and Marine Water Quality 2000, published by the
Australian and New Zealand Environment and Conservation
Council and the Agriculture and Resource Management Council
of Australia and New Zealand, as in force from time to time.
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Protection of the Environment Operations Amendment Bill 2005
Amendment of Protection of the Environment Operations Act 1997 Schedule 1
[153] Dictionary
Insert in alphabetical order:
green offset scheme--see section 295O.
green offset works--see section 295P.
Green Offsets Fund means the Fund established under
section 295U.
[154] Dictionary, definition of "land pollution"
Omit the definition. Insert instead:
land pollution or pollution of land means placing in or on, or
otherwise introducing into or onto, the land (whether through an
act or omission) any matter, whether solid, liquid or gaseous:
(a) that causes or is likely to cause degradation of the land,
resulting in actual or potential harm to the health or safety
of human beings, animals or other terrestrial life or
ecosystems, or actual or potential loss or property damage,
that is not trivial, or
(b) that is of a prescribed nature, description or class or that
does not comply with any standard prescribed in respect of
that matter,
but does not include placing in or on, or otherwise introducing
into or onto, land any substance excluded from this definition by
the regulations.
[155] Dictionary
Insert in alphabetical order:
marine park has the same meaning as in the Marine Parks Act
1997.
[156] Dictionary, definition of "pollution incident"
Omit the definition. Insert instead:
pollution incident means an incident or set of circumstances
during or as a consequence of which there is or is likely to be a
leak, spill or other escape or deposit of a substance, as a result of
which pollution has occurred, is occurring or is likely to occur. It
includes an incident or set of circumstances in which a substance
has been placed or disposed of on premises, but it does not
include an incident or set of circumstances involving only the
emission of any noise.
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Protection of the Environment Operations Amendment Bill 2005
Schedule 1 Amendment of Protection of the Environment Operations Act 1997
[157] Dictionary, definition of "waste"
Omit the definition. Insert instead:
waste includes:
(a) any substance (whether solid, liquid or gaseous) that is
discharged, emitted or deposited in the environment in
such volume, constituency or manner as to cause an
alteration in the environment, or
(b) any discarded, rejected, unwanted, surplus or abandoned
substance, or
(c) any otherwise discarded, rejected, unwanted, surplus or
abandoned substance intended for sale or for recycling,
processing, recovery or purification by a separate
operation from that which produced the substance, or
(d) any processed, recycled, re-used or recovered substance
produced wholly or partly from waste that is applied to
land, or used as fuel, but only in the circumstances
prescribed by the regulations, or
(e) any substance prescribed by the regulations to be waste.
A substance is not precluded from being waste for the purposes
of this Act merely because it is or may be processed, recycled,
re-used or recovered.
[158] Dictionary, definition of "waste facility"
Omit "reprocessing". Insert instead "processing".
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Protection of the Environment Operations Amendment Bill 2005
Amendment of other Acts and regulation Schedule 2
Schedule 2 Amendment of other Acts and regulation
(Section 4)
2.1 Environmentally Hazardous Chemicals Act 1985 No 14
[1] Section 55 Power to order contravention to be remedied
Omit the section.
[2] Section 56 Proceedings for offences
Omit the section.
[3] Section 57 Restraint etc of breaches of this Act
Omit the section.
2.2 Pesticides Act 1999 No 80
[1] Section 116 Exemption for fire brigades and other emergency services
Omit "officially" from section 116 (1).
[2] Section 116 (3)
Insert after section 116 (2):
(3) In this section:
accredited rescue unit has the same meaning as it has in the State
Emergency and Rescue Management Act 1989.
[3] Section 118A
Insert after section 118:
118A Continuing effect of notices, orders and conditions
(1) A notice given or order made, or a condition of a licence or
certificate of competency, under this Act or the regulations that
specifies a time by which, or a period within which, it must be
complied with continues to have effect until it is complied with
even though the time has passed or the period has expired.
(2) A notice or order that does not specify a time by which, or period
within which, the notice or order must be complied with
continues to have effect until the notice or order is complied with.
(3) This section does not apply to the extent that any requirement
under a notice or order is revoked or a condition of a licence or
certificate of competency is revoked.
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Protection of the Environment Operations Amendment Bill 2005
Schedule 2 Amendment of other Acts and regulation
(4) Nothing in this section affects the powers of the Environment
Protection Authority with respect to the enforcement of a notice
or order.
(5) This section extends to a condition of a licence or a certificate of
competency in force on the commencement of this section.
[4] Schedule 2 Savings and transitional provisions
Omit "this Act" from clause 1 (1). Insert instead:
this Act and the following Acts:
Protection of the Environment Operations Amendment Act 2005
(but only to the extent that it amends this Act)
[5] Schedule 2, clause 1 (2)
Omit "this Act". Insert instead "the Act concerned".
2.3 Protection of the Environment Operations (General)
Regulation 1998
[1] Clause 30 Penalty for late payment of administrative fee
Omit ", and the increased amount becomes payable when notice is given under
section 57 (4) of the default in payment and the requirement to pay the
increased amount" from clause 30 (2).
[2] Clause 32 Penalty for late payment of load-based fee
Omit ", and the increased amount becomes payable when notice is given under
section 57 (4) of the default in payment and the requirement to pay the
increased amount" from clause 32 (2).
[3] Clause 63 Additional matters to be included in public register: sec 308
Insert after clause 63 (d):
(e) any information relating to actual load, agreed load or
weighted load of an assessable pollutant reported by a
licensee in an annual return to the appropriate regulatory
authority,
(f) details or summaries of undertakings given under
section 253A of the Act,
(g) details or summaries of load reduction agreements entered
into in accordance with clause 25.
(2) In this clause actual load, agreed load and weighted load have
the same meaning as in Part 2.1.
Page 52
Protection of the Environment Operations Amendment Bill 2005
Amendment of other Acts and regulation Schedule 2
2.4 Sydney Olympic Park Authority Act 2001 No 57
Section 47 Appropriate regulatory authority
Omit the section.
Page 53
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