About the Protection of the Environment Operations Act 1997

Introduction

The Protection of the Environment Operations Act 1997 (POEO Act) is the key piece of environment protection legislation administered by the EPA.

See the EPA Act summaries page for specific information about other Acts administered by the EPA, and for information on the regulations made under those Acts and under the POEO Act.

Commencement of the POEO Act

The POEO Act commenced operation on 1 July 1999.

Repeals

The POEO Act repealed the following Acts with effect from 1 July 1999:

  • Clean Air Act 1961
  • Clean Waters Act 1970
  • Environmental Offences and Penalties Act 1989
  • Noise Control Act 1975
  • Pollution Control Act 1970

The major regulatory provisions of the Waste Minimisation and Management Act 1995 were also repealed by the POEO Act but are now incorporated within the POEO Act.

Major features of the legislation

Protection of the environment policies (PEPs)

The POEO Act enables the Government to set out explicit protection of the environment policies (PEPs) and adopt more innovative approaches to reducing pollution. PEPs are instruments for setting environmental standards, goals, protocols and guidelines. They provide both the framework for Government decisions that affect the environment and the means of adopting Australia-wide environment protection measures set by the National Environment Protection Council. Before a PEP can be made, the POEO Act requires public consultation on the draft PEP, and an analysis of the economic and social impact of the PEP.

Integrated environment protection licensing

The POEO Act provides a single licensing arrangement to replace the different licences and approvals under previous separate Acts relating to air pollution, water pollution, noise pollution and waste management. See Licensing for more detailed information about environment protection licensing under the POEO Act.

Regulation of scheduled and non-scheduled activities

The EPA is the appropriate regulatory authority for scheduled activities, being activities listed in Schedule 1 to the POEO Act, and other matters that require an environment protection licence, such as scheduled development works (section 47 of the POEO Act).

In most cases, a local council is the appropriate regulatory authority for non-scheduled activities in their local area, except:

  • activities carried out by the State or a public authority, which the EPA regulates
  • where a public authority (other than a local council) has been declared the appropriate regulatory authority (see Chapter 2 of the Protection of the Environment Operations (General) Regulation 2022).

In general, local councils can regulate non-scheduled activities through notice and enforcement powers in their local government area. However, the EPA can issue a licence to regulate water pollution from a non-scheduled activity. If it does, the EPA becomes the regulator for all environmental impacts from the activity under the POEO Act instead of the local council.

Granting licences

Factors to be considered when deciding if a licence is to be granted include (see section 45 of the POEO Act):

  • any PEPs
  • the objectives of the EPA in section 6 of the Protection of the Environment Administration Act 1991, including having regard to ecologically sustainable development principles and to reduce the risks to human health and prevent the degradation of the environment
  • the impact on the environment of any pollution likely to be caused by an activity or work
  • any relevant environmental impact statement or other statement of environmental effects prepared or obtained by the applicant under the Environmental Planning and Assessment Act 1979

Licence condition

Licences are usually issued with conditions. Examples of conditions that can be attached to a licence are in the POEO Act. These include requirements to monitor, to provide certification of compliance with a licence, to undertake and comply with a mandatory environmental audit program and pollution studies, reduction programs and financial assurances.

Licence term

Licences remain in force until suspended, revoked or surrendered. The EPA must review the licence at least once every five years and give public notice of its intention to do so.

Integration of licensing and planning processes

Integration of EPA licensing with the development approval procedures under the Environmental Planning and Assessment Act 1979 provides for public participation in the environmental assessment of activities that may be licensed by the EPA.

Environment protection notices and other notices

Preliminary investigation notices, clean-up notices, recall notices, prevention notices and prohibition notices may be issued under the legislation.

  • Preliminary investigation notices can be issued by the EPA if it reasonably suspects that either of the following circumstances may exist or have existed at a premises:
    • circumstances that may pose a potential risk of harm to human health or the environment from a substance or the deposit of waste or substances suspected of being waste, or 
    • a pollution incident.
  • Clean-up notices can be issued by the appropriate regulatory authority (usually the EPA or local council) to direct the recipient to take clean-up action where it reasonably suspects that: 
    • a pollution incident has occurred, or 
    • littering or illegal dumping has occurred.
  • Recall notices can be issued by the EPA, with the approval of the Minister, requiring a supply chain participant to do various things, such as ceasing to supply a substance or recovering a supplied substance, if:
    • a substance, or a particular use or activity involving the substance, poses a potential risk of harm to human health or the environment
    • a substance is required by environment protection legislation or national environment protection measure to comply with a prescribed standard or other specific requirements and does not comply
    • environment protection legislation has been contravened
    • another matter prescribed by the regulations
  • Prevention notices can be issued if the appropriate regulatory authority reasonably suspects that any activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person. Prevention notices require that action specified in the notice be taken. There is a right of appeal to the Land and Environment Court.
  • On the recommendation of the EPA, the Minister can issue a prohibition notice directing that an activity cease for a period specified in the notice because the emission or discharge of pollutants from or within a premises, or class of premises, in which an activity is carried on:
    • is causing or is likely to cause such harm to the environment, or 
    • is or is likely to be so injurious to public health, or 
    • is causing or is likely to cause such discomfort or inconvenience to any persons not associated with the management or operation of the activity.

Fees and recovery of costs for notices

Fees (section 151 of the Protection of the Environment Operations (General) Regulation 2022) are payable for the issuing of clean-up and prevention notices. Local councils retain these fees where they have issued such notices. Fees for clean-up notices and prevention notices issued by the EPA are paid into the EPA Fund, which is set up under the Protection of the Environment Administration Act 1991.

Compliance cost notices can be issued to the recipient of a clean-up, prevention or prohibition notice to recover the reasonable costs and expenses incurred by the authority in monitoring and ensuring that the action required by the notice is carried out.

If the EPA or a public authority takes action related to a recall notice, then they may recover the relevant costs from supply chain participants by issuing a recall cost notice.

If the EPA takes action to comply or require compliance with a preliminary investigation notice, it may recover relevant costs by a preliminary investigation compliance notice.

Environment protection offences and penalties

Offences are classified as Tier 1, 2 or 3 under the POEO Act.

Tier 1 offences

Tier 1 offences are the most serious offences, such as the wilful or negligent disposal of waste in a manner that harms or likely to cause harm to the environment (section 115) or wilfully or negligently causing a substance to leak, spill or otherwise escape in a manner that harms or is likely to harm the environment (section 116).

Tier 1 offences can attract penalties of up to $10 million (for corporations) and up to $2 million and/or 7 years gaol (for individuals).

Tier 2 offences

Tier 2 offences are set out according to the medium involved:

  • Water pollution is prohibited under section 120. It is a defence in any court proceedings for water pollution that an environment protection licence or the regulations regulated the pollution and that the conditions attached to the licence or the regulations were not contravened.
  • Air pollution is prohibited under section 124-126 and offences include operating any plant that causes air pollution from the premises if caused by a failure to maintain the plant in an efficient condition or operate the plant in a proper and efficient manner.
  • Noise pollution is prohibited under Part 5.5 and offences include operating any plant (other than control equipment) in such a manner that causes emission of noise from those premises, if caused by a failure to maintain the plant in an efficient condition, or to operate the plant in a proper and efficient manner.
  • Waste offences include littering, unlawful transporting of waste and permitting land to be used unlawfully as a waste facility.
  • Land pollution is prohibited under section 142A. It is a defence in any court proceedings for land pollution that an environment protection licence or the regulations regulated the pollution, and that the conditions of the licence were not contravened. Other defences include defences related to use of pesticides and fertilisers.

The maximum penalties for certain Tier 2 offences, such as failing to notify a pollution incident, are $4 million in the case of a corporation and $1 million in the case of an individual. The maximum penalties for some other Tier 2 offences are $2 million in the case of a corporation and $500,000 in the case of an individual. Further daily penalties apply to continuing offences.

Tier 3 offences

Tier 3 offences are dealt with by penalty notices (sometimes known as ‘on-the-spot fines’ or ‘penalty infringement notices’). These notices impose a fine that can be paid or can be defended in court.

The maximum possible penalty that a penalty notice can impose may not exceed the maximum penalty that can be imposed by a court for the offence. The Protection of the Environment Operations (General) Regulation 2022 lists the Tier 2 offences that can be dealt with by penalty notice.

Duty to notify pollution incidents

There is a duty to immediately notify 'relevant authorities as specified in section 148(8) of the POEO Act (including the EPA, local authority, Ministry of Health, SafeWork NSW and Fire and Rescue NSW) of pollution incidents where material harm to the environment is caused or threatened. Material harm includes actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial or that results in actual or potential loss or property damage of an amount over $10,000. Failure to immediately notify is an offence.

However, any notification is not admissible in evidence against the person for an offence or for the imposition of a penalty. The duty to notify applies to the person carrying on the activity, an employee carrying on the activity and the occupier of premises where the incident occurs.

Duty to prepare and implement pollution incident response management plans

Licence holders have a duty to prepare, test, implement and keep pollution incident response management plans in accordance with Part 5.7A of the POEO Act. The EPA may direct other persons to prepare pollution incident response management plans.

Environmental audits

The POEO Act provides that mandatory audits may be required as a condition of a licence if the EPA reasonably suspects that:

  • the holder of the licence has on one or more occasions contravened the POEO Act, the regulations or the conditions of the licence, and the contravention has caused or is likely to cause harm to the environment, or
  • an activity is being carried out in an environmentally unsatisfactory manner as defined in section 95 of the POEO Act.

Powers of investigation

Authorised officers' powers include powers to require information or records, powers of entry and search of premises, powers to question and identify persons, power to seize things in certain circumstances, powers to disable intruder alarms and powers with respect to vehicles and vessels.

Enforcement officers (i.e. officers who can issue penalty notices for environmental offences) may also exercise these powers in respect of their functions as enforcement officers under the Act.

A person cannot be guilty of failing to comply with a requirement to furnish records or information or answer questions unless the person was warned at the time that a failure to comply is an offence.

Potential self-incrimination is not an excuse for failing to answer questions or provide information. However, information provided cannot be used in prosecution against a person if that person, when giving the information, objected on the ground that it might incriminate the person, or if no warning of the possibility of so objecting was given. This does not apply to corporations or to prosecutions for an offence against Chapter 7 of the Act.

Civil enforcement

The civil enforcement provisions of the legislation are available to third parties. Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the POEO Act or the regulations, regardless of whether there is any environmental harm. The EPA is also able to accept court enforceable undertakings given by a person in connection with a matter in relation to which the EPA has a function under the Act.

Sentencing options

The Court has wide powers to make orders including to require:

  • payment of costs, expenses and compensation to a public authority or person suffering loss
  • payment of the costs of investigation incurred by a regulatory authority
  • payment of an amount equal to the monetary benefits acquired by an offender or other related persons from the offence
  • prohibition of a person from involvement in scheduled activities or from holding or applying for a licence indefinitely or for a specified period of time
  • publication of the offence
  • notification to certain people of the offence and its consequences (for example in an annual report of a company to its shareholders)
  • carrying out a specified project for the restoration or enhancement of the environment in a public place
  • an audit of its activities
  • payment of a specified amount to the Environmental Trust or other environmental organisation
  • attendance at a relevant training course or to establish a relevant training course for employees or contractors.

Economic measures

Using regulations, the EPA may develop and implement schemes involving economic measures for environment protection.

Public register

There is provision for a public register to be kept by all regulatory authorities, which must include a range of specified information on licences, review of licences, prosecutions, notices and the conclusions of any mandatory audit report. The register must be available for public inspection and copies provided on request. See the EPA's public register.

Public warning power

Enables the EPA to make or issue public warning statements about activities, persons, substances, or complaints of concern.

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