Acts administered by the Environment Protection Authority
- Contaminated Land Management Act 1997
- Dangerous Goods (Road and Rail Transport) Act 2008
- Environmentally Hazardous Chemicals Act 1985
- Forestry Act 2012
- National Environment Protection Council (New South Wales) Act 1995
- Ozone Protection Act 1989
- Pesticides Act 1999
- Protection of the Environment Administration Act 1991
- Protection of the Environment Operations Act 1997
- Radiation Control Act 1990
- Recreation Vehicles Act 1983
- Waste Avoidance and Resource Recovery Act 2001
This Act enables the EPA to respond to contamination that it has reason to believe is significant enough to warrant regulation.
The Act gives the EPA power to
- declare land to be significantly contaminated land
- order a person to undertake a preliminary investigation of land that the EPA suspects to be contaminated
- order a person to take management action in relation to significantly contaminated land
- approve a voluntary proposal to manage significantly contaminated land
- order that land that has been the subject of a management order or approved voluntary management proposal be subject to an ongoing maintenance order
The hierarchy of people that the EPA may direct to take action is as follows
- the person/s responsible for the contamination
- the owner/s
- the notional owner/s
The EPA may also direct a public authority to carry out management action in relation to contaminated land. Those ordered to take management action may appeal against the order. They can also recover costs from the person/s responsible for the contamination in some circumstances.
Duty to notify
The Act requires landowners and persons who carry on contaminating activities to notify the EPA of the contamination of land in certain circumstances.
Site Auditor Accreditation scheme
The Act allows the EPA to accredit people as site auditors. Site auditors must issue a Site Audit Statement indicating the land uses that any site is suitable for.
The EPA is required to keep a record of current and former sites it regulates or regulated. Certain information about current sites is referred to councils, who must record and make such information available using planning certificates.
This Act commenced on 1 May 2009 and appoints the EPA and SafeWork NSW (formerly WorkCover) as competent authorities to administer the legislation. The EPA regulates the on-road transport of dangerous goods while SafeWork NSW regulates activities prior to transport, including correct classification, packaging and labelling. The transport of dangerous goods by rail is regulated by the Independent Transport Safety Regulator on behalf of the EPA.
This Act sets up the Hazardous Chemicals Advisory Committee. Its functions include advising the EPA on the assessment and control of chemicals that are environmentally hazardous. The EPA may assess chemicals under the Act.
The EPA may declare substances to be chemical wastes for the purposes of the Act. Examples of substances that have been declared include dioxin contaminated waste materials and PCB (polychlorinated biphenyl) wastes.
Chemical control orders
The EPA may make chemical control orders (CCOs) with respect to assessed chemicals or declared chemical wastes. These CCOs may regulate activities such as the manufacture, processing, conveying, buying, selling or disposal of the chemical or declared waste. Chemicals for which a CCO has been made are referred to as environmentally hazardous chemicals.
A CCO may prohibit activities in relation to environmentally hazardous chemicals or declared chemical wastes, except under the authority of a licence issued by the EPA.
Parts 5A, 5B and 5C of this Act are administered by the Minister for the Environment. The remaining parts are administered by the Minister for Primary Industries.
Parts 5A and 5B of the Act deal with Forest Agreements and Integrated Forestry Operations Approvals (IFOAs) that were formally established under the Forestry and National Park Estate Act 1998. IFOAs apply to forestry operations in State forests and other Crown-timber lands, except in the national parks estate, and can be granted in areas covered by a forestry agreement. The Act integrates the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation.
Part 5C of the Act deals with private native forestry, which was formerly regulated under the Native Vegetation Act 2003 and the Native Vegetation Regulation 2013. Private native forestry operations are authorised under Part 5C if they are carried out in accordance with a private native forestry plan (PNF plan) and the private native forestry code of practice that applies to those operations.
This Act provides for the establishment of a National Environment Protection Council that has power to make national environment protection measures. The NSW Government will implement national environment protection measures (NEPMs) in NSW in a variety of ways, including via legislation. The EPA is one agency that will administer the implementation of NEPMs in NSW.
NEPMs implemented using EPA legislation include those relating to
- monitoring of ambient air quality
- assessment of site contamination
- used packaging materials
- movement of controlled waste
- national pollutant inventory
This Act provides a broad power to make regulations to control or prohibit the production and use of
- substances that deplete stratospheric ozone when emitted into the atmosphere or are reasonably likely to contribute to the depletion of stratospheric ozone when emitted into the atmosphere
- articles that contain or use those substances in their operation
This Act controls and regulates the use of pesticides in NSW.
The Act prohibits the misuse of pesticides that harms people, property, animals or plants. Under the Act the EPA can issue a person with a clean-up notice, prevention notice and compliance cost notice.
Pesticide control orders
The EPA may make pesticide control orders under the Act which prohibit or control the use of pesticides, or which permit the use or possession of restricted pesticides.
The Act provides that certain pesticides may only be used by a person who has obtained a certificate of competence authorising such use. There are also provisions to regulate foodstuffs that contain prohibited residues of pesticides, and to prescribe methods of controlling the application of pesticides from aircraft, with the EPA being required to licence pilots and aircraft operators that conduct aerial spraying.
The Act gives the Pesticides Implementation Committee a role in matters relating to the implementation of the Act, for example, for formulating regulations, pesticide control orders and pesticide codes of practice dealing with issues such as training of pesticide users and record keeping.
- establishes the EPA, the Board of the EPA (including Chairperson), two community consultation forums, and the NSW Council on Environmental Education
- requires the EPA to make a report on the state of the environment every three years
Objectives of the EPA
These are listed in section 6 of the Act. The overriding objective of the EPA is to protect, restore and enhance the quality of the environment in NSW, having regard to the need to maintain ecologically sustainable development.
Control of the EPA
The EPA is a statutory body representing the Crown and is generally subject to Ministerial control, but not in relation to
- the making of a report or recommendation to the Minister
- the release of a state of the environment report (although the Minister can require more information in the report)
- the making of a decision to institute criminal or related proceedings
If the Minister gives any direction or makes any determination concerning a licensing function, a report of the direction must be tabled in Parliament.
Role of the Board
- determines the policies and long-term strategic plans of the EPA
- oversees the effective, efficient and economical management of the EPA
- develops and makes available for public information, guidelines relating to the institution of criminal and related proceedings
- determines whether the EPA should institute proceedings for serious environment protection offences
- advises the Minister on any matter relating to the protection of the environment (at the request of the Minister or on its own initiative)
The affairs of the EPA are to be managed and controlled by the Chairperson of the EPA in accordance with the policies determined by the Board and any other decisions of the Board, but subject to any directions of the Minister under the Act.
Community consultation forums
There are two community consultation forums established by the Act
- a regional forum representing the Hunter region
- a regional forum representing the Illawarra region
The purpose of these forums is to advise the EPA on community concerns and attitudes about environmental protection.
NSW Environmental Education Council
The Act also establishes the NSW Environmental Education Council to advise the EPA on environmental education and public awareness programs.
The Act allows the EPA to establish advisory committees from time to time to advise the EPA on matters which it determines. See for example, the Upper Hunter Air Quality Monitoring Network Advisory Committee.
The object of the Act is to achieve the protection, restoration and enhancement of the quality of the NSW environment. The Act repealed and consolidated a number of existing Acts to rationalise, simplify and strengthen the regulatory framework for environmental protection in NSW.
Allocation of responsibility
There is a broad allocation of responsibilities under the Act between the EPA, local councils and other public authorities. The EPA is made the regulatory authority for
- activities listed in Schedule 1 to the Act and the premises where they are carried out
- activities carried out by a State or public authority
- other activities in relation to which a licence regulating water pollution is issued
In nearly all other cases, the regulatory authority is the relevant local council.
Protection of the Environment Policies
The Act has a scheme for the making of policy instruments called Protection of the Environment Policies (PEPs). PEPs set environmental standards, goals, guidelines or protocols. The EPA, planning authorities and any other authorities specified in a PEP must take a PEP into account when making decisions that affect the environment.
The procedure for making a PEP includes public consultation on the proposed PEP and analysis of potential impacts.
Environment protection licences
The activities listed in Schedule 1 to the Act (broadly, activities with potentially significant environmental impacts) require a licence. Licenses are issued in respect of scheduled development work (i.e. development of a site that would require a licence), premises based activities and non-premises based activities. Licences can also be issued to regulate water pollution from activities that are not in Schedule 1. Such licences can provide protection against prosecution for water pollution if the licence conditions are complied with.
The EPA will issue all licences and are usually subject to conditions.. Licences can control the air, noise, water and waste impacts of an activity. Licences are ongoing but subject to review at least once every five years and can be varied, suspended or revoked.
Environment protection notices
The Act provides for the issuing of three types of environment protection notices: clean-up, prevention and prohibition notices.
Clean-up notices can be issued to deal with pollution incidents (e.g. a spill of pollutants). Prevention notices can be issued where an activity is being carried out in an environmentally unsatisfactory manner. Clean-up and prevention notices are issued by the regulatory authority for the activity or premises concerned. In emergencies, the EPA can issue a clean-up notice even though it is not the regulatory authority in the circumstances.
A prohibition notice requires an activity to be stopped and can only be issued by the Minister.
The EPA or another public authority (either voluntarily or on a direction from the EPA) can also carry out a clean up.
In certain circumstances the appropriate regulatory authority can issue a compliance cost notice which provides for the recovery of costs associated with monitoring under the notice or determining compliance with the notice. A cost compliance notice can also be issued where a public authority has undertaken a clean up action.
Environment protection offences
The Act has a three tier regime of offences.
Tier 1 offences are the most serious offences and cover certain disposals of waste, leaks, spillages and other escapes, and ozone depleting emissions. Tier 1 offences can be categorised as offences where there is:
- proof of wilfulness or negligence
- harm or likely harm to the environment.
These offences carry maximum penalties of
- $5 million for corporations and $1 million and/or 7 years imprisonment for individuals where the offence is committed intentionally, and
- $2 million for corporations and $500,000 and/or 4 years imprisonment for individuals where the offence is committed negligently
Tier 2 offences consist of all other offences under the Act and regulations, including water pollution, air pollution, land pollution and noise pollution offences. These offences are generally categorised as 'strict liability' offences, that is, the prosecution is not required to prove intent.
Tier 2 offences carry a maximum penalty of $1 million for corporations and $250,000 for individuals, and for continuing offences, further daily penalties of up to $120,000 and $60,000 respectively. The maximum penalty for the general littering offence is 20 penalty units ($2, 200).
The following offences were introduced by this Act
- the emission of offensive odour from scheduled activities
- the unlawful transport of waste
- the failure to comply with a duty to notify certain pollution incidents
Tier 3 offences are not separate offences. They are Tier 2 matters that have been designated in the Regulations as being capable of being dealt with by way of penalty notice. The amount of the penalty is set by the Regulations and may not exceed the maximum penalty that can be imposed by a court for the offence. The Protection of the Environment Operations (General) Amendment (Fees and Penalty Notices) Regulation 2014 substantially increased the amount of penalty notices for a number of the most serious Tier 3 offences.
EPA officers and the staff of certain other public authorities have been authorised to issue penalty notices. However, the EPA may direct that a penalty notice be withdrawn if it considers it appropriate to do so.
The EPA may institute proceedings for any offence under the Act or Regulations. Certain other authorities such as local authorities, Water Supply Authorities, the Maritime Authority of NSW or police officers may also institute proceedings for certain offences. Any person may institute proceedings for an offence against the Act or the Regulations in the Land and Environment Court if the Court grants the person leave to do so. Any person may bring proceedings in that Court for an order to remedy or restrain a breach of the Act or Regulations.
The EPA Board determines whether the EPA should bring proceedings for Tier 1 offences after receiving advice from the 'Environmental Counsel'.
Proceedings for offences
Tier 1 offences may be dealt with before the Land and Environment Court or the Supreme Court. If proceedings are brought in the Land and Environment Court, the maximum period of imprisonment the court can impose is two years.
Proceedings for all other offences may be dealt with before a local court or the Land and Environment Court. If proceedings are brought in a local court, the maximum penalty that can be imposed is $110,000.
The Act sets out a number of orders that the court can make where an offence is proved. For example, the court can require the guilty party to publicise their offence or to carry out an environmental project for the public benefit.
A licence can, in some circumstances, require an environmental audit to be undertaken. The information in the audit can be considered by the authority and used for the purposes of the Act. The Act also protects documents produced for the sole purpose of a voluntary audit.
The Act provides for the appointment of authorised officers and enforcement officers to investigate compliance with environment protection legislation. There are also detailed provisions concerning the inspection and testing of vehicles, vessels and articles.
Miscellaneous features of the Act include
- the EPA may grant exemptions from the Act
- provision for the development and implementation of schemes involving economic measures to bring about cost-effective environmental regulation, including tradeable emission schemes
- a requirement that regulatory authorities keep a public register containing details of all licences and notices - the public will be able to inspect and obtain copies of its contents. The EPA must also keep, in its public register, details of convictions in prosecutions it brings under the Act and the results in civil proceedings by or against the EPA
- provision for the holding of inquiries into any matter relating to environment protection, at the instigation of the EPA or the Minister
This Act provides for the regulation and control of radioactive substances, radioactive sources and radiation apparatus. The Act does not apply to radioactive ore while it is being mined or treated. The Act also creates the Radiation Advisory Council. Its functions include advising the Minister on the administration of the Act and measures to prevent or minimise the dangers arising from radiation.
This Act provides for the regulation of recreational vehicles on restricted land (i.e. land that is not a public road nor a recreational vehicle area) and also establishes a system of recreational vehicle areas. It is an offence under this Act to use vehicles on restricted land in wilful contravention of a direction given by the occupier of that land.
This Act promotes waste avoidance and resource recovery to achieve a continual reduction in waste generation. The Act provides for the development of a state-wide Waste Strategy and introduces a scheme to promote extended producer responsibility for the life-cycle of a product.