Q&As: POEO Amendment Act 2005

1. Why has the EPA changed the Act?

The Protection of the Environment Operations Act 1997 (POEO Act) commenced in July 1999 and, in accordance with the Act, the EPA has undertaken a major review to enable the Minister to assess whether its policy objectives remain valid and the terms of the Act are still appropriate. This review involved an extensive multi-phased consultation program with the public and various stakeholders. The review found that while the Act is operating successfully overall, some changes were necessary to refine and improve its day-to-day operation.

2. What are the main changes proposed by the Protection of the Environment Operations Amendment Act 2005?

The main changes relate to the following areas:

licensing administration
waste regulatory framework
the issuing of notices and related cost recovery
noise
smoke abatement notices
offences and penalties
classified waters
green offset schemes or works
powers of authorised officers
regulation-making powers
evidentiary matters
other miscellaneous matters

3. When did these amendments commence?

The amendments made by the Protection of the Environment Operations Amendment Act 2005 to the POEO Act took effect on 1 May 2006.

4. I understand penalty notices can be issued for four new offences under the POEO Act. What are they?

Contravention of a smoke abatement notice

Where it appears to an authorised officer of an appropriate regulatory authority (i.e. a local council or other local authority) that excessive smoke is being or has been emitted from a residential chimney, the officer can issue a smoke abatement notice to the person whom the officer believes to be the occupier of the premises within 7 days of the smoke being observed. The notice requires the person to ensure that excessive smoke is not emitted from the chimney. The notice also provides a 21-day period of grace for the resident to take action to prevent the emission of excessive smoke from their chimney. Notices can stay in force for up to 6 months.

Failure to comply with a smoke abatement notice is an offence. The POEO (Penalty Notices) Regulation 2004 has been amended to allow an enforcement officer of a local authority to issue a penalty notice for breaching a smoke abatement order, with a prescribed penalty of up to $200 for an individual and $400 for a corporation.

Polluting land

A new Tier 2 offence has been introduced for a person who pollutes land or causes or permits land to be polluted (section 142A). Tier 2 offences are strict liability offences, so no evidence of intent is required. Defences for this offence include:

that the land pollution was regulated by an environment protection licence and the licence conditions relating to the land pollution were not contravened (section 142C)
that the substance that polluted the land was:
- a pesticide placed on the land and used in accordance with the Pesticides Act 1999
- a fertiliser under the Fertilisers Act 1985, which can be lawfully sold as such
- a non-hazardous agricultural or crop waste (including stock feed made solely from such waste)
- manure
- a virgin excavated natural material
- a biosolid (section 142D(1))
that the substances were placed into, onto or otherwise introduced into unlicensed landfills, which the EPA had been notified of in accordance with the regulations (see clause 47 of the POEO (Waste) Regulation 2005) and which were operated in accordance with any requirements of the regulations (section 142E).

Offences for polluting land can be prosecuted by the EPA, local councils and certain other bodies.

A new penalty notice offence has been created in relation to land pollution. A penalty of up to $750 for individuals and $1500 for corporations has been prescribed by the POEO (Penalty Notices) Regulation 2004, with penalty notices for this offence issued by enforcement officers employed by the EPA, local councils and other local authorities.

Providing false and misleading information about waste

A new Tier 2 strict liability offence has been introduced for a person who materially supplies false or misleading information about waste to another person (or causes or permits information to be supplied) in the course of dealing with that waste (section 144AA(1)). Information about waste means information (including records) regarding:

the type, classification, characteristics, composition or quantity of the waste
the actual or proposed storage, transport, handling, deposit, transfer, disposal, processing, recycling, recovery, use or re-use of the waste
the hazards or potential harm to the environment or human health associated with the waste or an activity referred to in the previous point.

It is a defence if the person can establish that they took all reasonable steps to ensure that the information was not false or misleading in a material respect.

Only the EPA can prosecute a person who commits this offence.

A penalty notice for this offence has been created by the POEO (Penalty Notices) Regulation 2004. The penalty for materially supplying false or misleading information about asbestos waste or hazardous waste is up to $1500 for an individual and $5000 for a corporation. For supplying false or misleading information about any other waste, the penalty for an individual is up to $750 and $1500 for a corporation. Only enforcement officers who are officers or employees of the EPA can issue penalty notices for this offence.

Failure to pay the administrative fee for preparing and giving a noise control notice

Section 267A of the Act now allows a regulatory authority to recover the administrative costs of preparing and issuing a noise control notice. When a person is given a noise control notice by a regulatory authority they must pay a fee of $320 to the authority within 30 days (section 267A, clause 61A POEO (General) Regulation 1998). Failure to pay the fee within the required time is an offence (section 267A(7)).

A penalty notice for this offence has been created by the POEO (Penalty Notices) Regulation 2004 with fines of up to $500 for an individual and $1000 for a corporation.

5. Can penalty notices be issued for the first time for any existing offences?

Breach of a chemical control order

It is an offence under the Environmentally Hazardous Chemicals Act 1985 to carry on a prescribed activity in relation to a chemical or a declared chemical waste in contravention of a chemical control order (section 26).

The POEO (Penalty Notices) Regulation 2004 has been amended to allow penalty notices to be issued for this offence, with fines of up to $1500 for an individual and $5000 for a corporation.

Breach of licence condition

It is an offence under the Environmentally Hazardous Chemicals Act 1985 to breach the conditions of a licence issued under that Act (section 32(2)).

The POEO (Penalty Notices) Regulation 2004 has been amended to allow penalty notices to be issued for this offence, with penalties of up to $1500 for an individual and $5000 for a corporation.

6. I currently hold an environment protection licence. Is anything happening to the Classified Waters Scheme?

The Classified Waters Scheme (created through the Clean Waters Regulations 1972 and retained through savings provisions in the POEO Act) has been repealed.

As the Clean Waters Regulation is no longer in force, any references to it or the Classified Waters Scheme (such as Class P, Class S, Class C or Class R waters) will need to be removed from an environment protection licence (see Question 8).

When the EPA is making licensing decisions in relation to an activity or work that causes, is likely to cause, or has caused water pollution, it must now consider (if relevant) the 'environmental values of water' affected by the activity or work and the practical measures that could be taken to restore or maintain those environmental values (section 45(f1)).

7. What are the 'environmental values of water'?

The 'environmental values of water' are defined in the POEO Act as those 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. These guidelines are commonly referred to as the 'ANZECC 2000 guidelines'.

8. Will the EPA be varying licences that are affected by the repeal of the Classified Waters Scheme?

The EPA will be sending out variation notices to affected licensees to revoke or vary these conditions. Where the changes affect a pollution reduction program, licence variations may be made in consultation with licensees. Licensees may make an application to the EPA to vary their licence at any time, if they identify any conditions that they believe need to be revoked or varied to reflect these new water considerations.

9. I currently hold an environment protection licence. What other changes have been made?

The Amendment Act also makes a number of amendments to the licensing provisions under the POEO Act. Changes include

The factors used to determine whether a person is a fit and proper person to hold a licence have been expanded to include things such as convictions for fraud and dishonesty offences, and insolvency (section 83).
The interval for review of licences has been increased from 3 to 5 years (section 78(4A)).
Regulation-making powers have been introduced to provide for the independent certification of load-based licences (Schedule 2, clause 9A).
Licence variation applications relating to works that require development consent are not able to be granted until that consent is obtained (section 50).
Licences may be suspended or revoked if the waste contribution has not been paid by the due date (section 79(5)(e1)).
Financial assurances may be required as a condition of approval of surrender, suspension or revocation of a licence (section 70).

10. Has the duty to notify pollution incidents changed?

An employer who is notified of a pollution incident by an employee (or an agent), or who otherwise becomes aware of an incident which is related to an activity of the employer, must as soon as practicable after being notified or becoming aware of the incident, report the pollution incident and all relevant information about it to the appropriate regulatory authority (section 148(3A)).

11. Have any of the defences that directors and managers can rely on changed?

Prior to the recent amendments, section 169(1) provided that a director or person involved in the management of a corporation was taken to have committed the same offence as committed by that corporation unless they could prove one of the three defences set out in the section. One of those defences was that the corporation contravened the provision without the knowledge of the person. That defence has now been removed.

However section 169(1) of the POEO Act still allows directors and managers to use one of the following defences

the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision
the person, if in such a position, used all due diligence to prevent the contravention by the corporation.

12. Have the penalties for polluting changed?

Yes. Maximum penalties that can be imposed by courts

for Tier 1 offences by companies have increased from $1 million to $2 million (negligence) or $5 million (wilfulness), and from $250,000 to $1 million for most Tier 2 offences
for Tier 1 offences by individuals have increased from $250,000 to $500,000 (negligence) or $1 million (wilful conduct), and from $125,000 to $250,000 for most Tier 2 offences.

In addition

daily penalties for continuing offences have also increased
littering offences have doubled from $1100 to $2200 for both corporations and individuals (section 145).

The maximum gaol term for Tier 1 offences committed negligently has been reduced to four years. The maximum gaol term for Tier 1 offences committed wilfully is still seven years.

13. Why has there been an increase in penalties?

The penalties reflect the value that NSW residents place on our environment. The community no longer tolerates pollution by industries or individuals and the changes are in line with those expectations. Increased penalties provide a stronger deterrent to potential environmental offenders.

14. Have the powers of authorised officers changed?

Yes. Authorised officers, appointed to assist regulatory authorities exercise their functions under the POEO Act, have been given the following additional powers. Further information on the powers of authorised officers is available on this site.

Smoke abatement notices

See Question 4.

Disable alarms

Authorised officers from local authorities are now permitted to disable building intruder alarms and motor vehicle intruder alarms which sound in breach of the Act or regulations (section 198A). However, if the alarm is on a residential premises, a search warrant is still required to enter the premises (section 197).

Require attendance at a time and place for an interview

Authorised officers are able to require a person to attend at a specified time and place to answer questions if this is necessary to allow questions to be properly put and answered (section 203(5)). The time and place is to be nominated by the person. If the person does not nominate a time and place, or their nomination is not reasonable in the circumstances, an authorised officer can specify the time and place, which must be reasonable in the circumstances (section 203(6)).

Recording interviews

Authorised officers are able to record interviews compelled under Part 7.5 of the Act, even if the person being interviewed objects, provided that the authorised officer informs the person that the recording is to be made before they are interviewed. The record can be made by any method, such as tape or videotape. The authorised officer must provide a copy of the recording to the person questioned as soon as practicable after it is made (section 203A). A recording can be made under section 203A despite the provisions of any other law, including the Listening Devices Act 1984.

Proof of name and address

Authorised officers are able to request a person, who has been asked to state their full name and address under section 204, to provide proof of their name and address. However it is not an offence under section 211 to fail to comply with this request (section 204(2A)).

Moving vehicles and vessels

Under Part 7.6 (section 208(1)(c)), an authorised officer is able to request a driver or person in charge of a vehicle or vessel that is being used in any place to move that vehicle or vessel to a place suitable for inspection or testing by the authorised officer. If the inspection is not to take place at that time, the direction must be given by written notice, specifying the date, time and place for the inspection or testing (section 208(2A)).

15. How do the changes further help councils to recover their costs?

An appropriate regulatory authority, such as a local council, will be able to recover the administrative costs of preparing and issuing noise control notices and compliance costs associated with these notices (sections 267A and 267B). They will also be able to recover the costs of registering a charge on land in order to secure payment of compliance cost notices and any resulting charge, including the discharging of the charge (section 107). Compliance cost notices can already be given in relation to clean-up notices, prevention notices and prohibition notices (section 104).

The costs and expenses of investigations that are able to be recovered following successful prosecution have been expanded. They include the costs and expenses of taking any sample or conducting any inspection, test, measurement or analysis during the investigation of an offence, as well as the costs and expenses of transporting, storing or disposing of evidence during the investigation of an offence (section 248).

Regulations can also be made with respect to the payment of fees for services provided by appropriate regulatory authorities. This includes (but is not limited to) the administrative costs of services provided under the Act, and the costs associated with the functions of the EPA and other appropriate regulatory authorities under the Act (Schedule 2, clause 5(7)).

16. Will there be any change to the provisions relating to noise?

Yes, a number of changes have been made in relation to noise

Appropriate regulatory authorities are able to recover the administrative costs of preparing and issuing noise control notices and compliance costs associated with these notices (sections 267A and 267B).
The scope of noise control notices has been clarified to confirm that persons who propose to carry on an activity or propose to use or operate an article at any premises can be issued with a notice (section 264(1)(b)).
Authorised officers appointed by the EPA are able to issue noise abatement directions to state public authorities and in relation to licensed premises (section 278).
Authorised officers are able to turn off building and motor vehicle intruder alarms that are sounding in breach of the Act or regulations (section 198A).
Penalties for noise are now the same as for water and air.

17. What changes will be made to the public register?

Additional information will be included on the public register, for example pollution load data, details or summaries of load reduction agreements and details or summaries of court-enforceable undertakings (section 308 and clause 63 of the POEO (General) Regulation 1998). These changes also make it clear that regulatory authorities are required to keep details of the specified matters on the public register that are applicable to them (section 308).

18. The POEO Amendment Act allows green offsets schemes and works to be implemented. What is a 'green offset'?

'Green offsets' are a way of balancing both economic development and environment protection. A green offset is action taken outside a licensed premises (but near to it) to reduce pollution. A green offset scheme ensures that there is 'no net impact' from development. Pollution (or part of it) that is generated by a licensed premises is offset by action taken off-site that reduces at least that amount of the same pollutants. For example, installing a sedimentation dam and water recycling system at a market garden to stop sediment and nutrient-rich runoff flowing into waterways could offset impacts from a licensed sewerage treatment system.

The EPA will now be able to impose conditions on environment protection licences, which allow participation in green offset schemes or works (section 69).

Where a scheme is established, a licensee might choose to install the offset themselves or pay for someone to do it on their behalf by making a contribution into an offset fund in accordance with a contribution schedule.

A green offset condition can only be imposed by a licence if the EPA is satisfied that the pollutants or impacts of the activity cannot otherwise be prevented, controlled, abated or mitigated in a cost-effective way by other measures under the licence. Schemes may be established by Regulation. The EPA would consult when developing any such scheme by Regulation.

19. Where can I get the most updated information?

The following guidelines will provide more information relating to the POEO Amendment Act

DEC 2006/350
ISBN 1 74137 943 1

Questions and answers about the POEO Amendment Act 2005