Regulating

New regulatory policy

Our new Regulatory Policy, published in December 2021, sits under the EPA Regulatory Strategy and replaces the former EPA Compliance Policy. It covers all types of regulatory work the EPA does, not just compliance and enforcement actions.

The policy sets out the different tools we may use and regulatory actions we may take and describes these tools and actions under each of the eight elements of our regulatory approach: listen, educate, enable, act, influence, require, monitor and enforce.

We are now incorporating the Regulatory Policy into our work, focusing on using a full suite of tools to achieve better outcomes.

The policy also explains how we make decisions. It covers:

• decision-making principles – the values that guide our regulatory decision-making
• what we consider when we make a regulatory decision.

In developing the policy we considered feedback from the EPA Roadshow sessions in 2021, online consultation about the Regulatory Strategy, best-practice research, and input from across the EPA.

We are now incorporating the Regulatory Policy into our work. We are focusing on using a full suite of tools to achieve better outcomes, and rolling out initiatives that will support our staff when they make regulatory decisions.

Together, the Regulatory Policy and Regulatory Strategy outline how we regulate and inform the actions we are taking under the EPA Strategic Plan 2021–24.

To implement them over the next two years we’ll:

• develop partnerships, education and behaviour-change programs
• work with Aboriginal communities and other communities across NSW
• engage the science and research sector
• use data, evidence, intelligence and insights to inform our decisions across all aspects of our work.

Closing loopholes

In March 2022, the Environment Legislation Amendment Act 2022 was passed. This strengthened existing environment protection legislation to ensure that those responsible for contamination or pollution can be made to clean it up or manage it into the future.

So, what’s changed?

More individuals can be targeted

The EPA can now target directors, managers and related companies where a company fails to comply with a clean-up, prevention or prohibition notice. Also, it is now an offence for related persons to receive monetary benefits as a result of a company committing an offence. The EPA can recover monetary benefits from related persons after an offence is proved.

The owners of vehicles used for illegal dumping are also now liable. Previously the EPA could only prosecute the driver of the vehicle or the owner of the dumped waste.

Clean-up notices can be used more widely

The EPA can now issue a clean-up notice to someone who contributed to a pollution incident. We can also issue a clean-up or prevention notice as soon as we are notified of contamination. Previously we had to wait until the land had been assessed and declared to be significantly contaminated.

Authorised officers are better protected

For authorised officers investigating environmental crimes under our legislation, there are new protections. Before, when an EPA officer was threatened, the relevant offence in the Protection of the Environment Operations Act 1997 required proof of intent. A newly created offence no longer requires this.

There are also expanded protections that cover different behaviours. These will make it safer for our officers when responding to environmental issues and assisting the community.

‘These amendments are hugely exciting for the legal team and other teams too,’ says Mai Nguyen, Principal Legal Officer from Legislation and Legal Advice. ‘Some of these ideas have been on our legislation wish list for a while. Seeing them become a reality gives us a great sense of satisfaction.’

Plastic Reduction and Circular Economy Act 2021

Working closely with the Department of Planning and Environment, we developed the Plastic Reduction and Circular Economy Act 2021. This is expected to prevent nearly 2.7 billion pieces of plastic from entering the rivers, ocean and bushland of NSW over the next 20 years and will help deliver on the NSW Plastics Action Plan and the NSW Waste and Sustainable Materials Strategy 2041. We will be responsible for the enforcement of the Plastic Reduction and Circular Economy Act 2021, which creates legislative frameworks to:

• prohibit the supply of problematic or unnecessary plastics
• set design standards for items for environmental, human health or economic reasons
• set product stewardship requirements for brand owners of regulated products.

A ban on the supply of lightweight plastic bags started on 1 June 2022. On 1 November 2022 prohibitions will be extended to the supply of other problematic plastic products, including expanded polystyrene food-service items and plastic single-use straws, cutlery, stirrers, plates, bowls and cotton buds. Design standards preventing the supply of rinse-off personal care products containing microbeads will also commence on 1 November 2022.

The bans on the supply of problematic plastic items exclude integrated packaging (plastic items integrated or attached to packaging by a machine-automated process: for example, sealed straws attached to juice boxes) and barrier bags (lightweight plastic bags designed and intended to be used to contain waste, items for medical purposes or unpackaged food). The Plastic Reduction and Circular Economy Act 2021 provides for the EPA to grant exemptions from the bans and the EPA has been working closely with stakeholders, including disability groups, to ensure that appropriate exemptions are in place.

Legal context

The EPA:

• issues and reviews environment protection licences
• issues statutory notices, such as clean-up and prevention notices
• issues penalty notices
• prosecutes individuals and companies that are alleged to have committed environmental offences
• enters into enforceable undertakings.

See Appendix A for the full list of Acts administered by the EPA in 2021–22.

New and amending legislation

The following new Acts and Regulations were made in 2021–22:

• Plastic Reduction and Circular Economy Act 2021
• Protection of the Environment Operations (Clean Air) Regulation 2021
• Protection of the Environment Operations (General) Regulation 2021

The following amending Acts and Regulations were made in 2021–22:

• Environment Legislation Amendment Act 2022
• Radiation Control Amendment Regulation 2021
• Protection of the Environment Operations (General) Amendment (Kooragang Island Premises) Regulation 2021
• Protection of the Environment Operations (Waste) Amendment Regulation 2022
• Pesticides Amendment Regulation 2021.

The amending Regulations continued the diverse and involved work of the EPA as the primary environmental regulator in NSW. The amendments were facilitated by public engagement and stakeholder consultation with the objective of reducing risks to human health, preventing degradation of the environment and providing exemptions where appropriate. The amending Regulations furthered the development of a simpler and more efficient regulatory framework across EPA-administered legislation.