What’s new in law

December 2022

Protection of the Environment Operations (Clean Air) Regulation 2022

The Regulation commenced on 16 December 2022 and replaces the Protection of the Environment Operations (Clean Air) Regulation 2021 with changes to

• require cleaner petrol to be supplied in the low volatility zone for an extra month over summer
• impose stricter emission limits and controls for volatile organic liquids in storage tanks, loading plant and tank vehicles
• require plant and activities in Group 3 and Group 4 - which started operating or were upgraded between 1979 and 1997- to comply more stringent air emission standards of Group 5 by 1 November 2027 and Group 6 by 1 November 2030
• reduce administrative burden by removing or harmonising provisions that are duplicated, outdated or obsolete.

August 2022

Contaminated Land Management Regulation 2022 

The Contaminated Land Management Regulation 2022 has been made and commenced on 26 August 2022.

The Regulation supports the EPA’s ongoing administration of the Contaminated Land Management Act 1997 by

• providing for the recovery of the EPA’s administrative costs associated with orders and proposals made under the Act,
• supporting the administration of the site auditor scheme with new provisions enabling the EPA to waive or refund accreditation fees in certain circumstances,
• updates the particulars for annual returns submitted by site auditors,
• prescribing certain offences as penalty notice offences with amendments to align penalty notice amounts with environment protection legislation, and 
• requiring certain EPA guidelines about financial assurances and a protocol for monetary benefits are observed.

Protection of the Environment Operations (Clean Air) Amendment Regulation 2022

The Protection of the Environment Operations (Clean Air) Amendment Regulation 2022 commenced on 19 August 2022. The Amendment Regulation extends the repeal date of the Protection of the Environment Operations (Clean Air) Regulation 2021 from 1 September 2022 to 16 December 2022. This allows the EPA further time to consider and address issues arising from public consultation on a draft replacement regulation.   

 

The Protection of the Environment Operations (General) Regulation 2022 (the Regulation) commences on 1 September 2022 and replaces the Protection of the Environment Operations (General) Regulation 2021 which will be repealed on that date. For existing licensed activities, changes made by the Regulation to Schedule 1 of the Protection of the Environment Operations Act 1997 will commence 9 months after the commencement date of 1 September 2022, allowing licensees affected by the changes time to take any required action.  

The Protection of the Environment Operations (General) Regulation 2022 continues key provisions of the Protection of the Environment Operations (General) Regulation 2021 and also:

• introduces an application fee for environment protection licences based on the complexity and the scale of the activities proposed to be authorised by the licence in order to recover the EPA’s costs when assessing licence applications and preparing new licences;
• amends the definition of ‘extractive activities’ in Schedule 1 of the Protection of the Environment Operations Act 1997 to ensure that extractive activities that pose a risk to the environment are appropriately regulated and to require a licence where the extractive activity involves, over the period of 1 year, the extraction of:
  • more than 30, 000 tonnes of extractive materials (where 0.65 cubic metres of extractive material that is wet is taken to weigh 1 tonne), or
  • more than 30, 000 cubic metres if the activity is maintenance dredging of a navigation channel for vessels carried out by or on behalf of a public authority;
• introduces two sub-categories of activity within the scheduled activity of ‘petroleum products and fuel production’ and makes corresponding changes to licensing fee thresholds for each, so that regulation is proportionate to the environmental risk of these activities;
• excludes bivalve molluscs and seaweed propagules from the scheduled activity of ‘aquaculture and mariculture’;
• introduces an additional administrative fee based on a new production capacity threshold for the scheduled activity of ‘bird accommodation’, applying to facilities that have the capacity to accommodate more than 3000 tonnes of live weight;
• refines the licensing fee thresholds in Schedule 1 of the Regulation to better align with the definitions of activities requiring a licence in Schedule 1 of the POEO Act;
• clarifies that a pollution incident response management plan is only required to be tested following an incident that caused or threatened to cause material harm to the environment;
• makes changes to certain penalty notice provisions;
• expands the matters that are required to be tested using approved methods to include the presence or concentration of any matter, noise emissions and odour;
• clarifies the National Pollutant Inventory reporting and emissions estimation processes;
• expands the matters prescribed as water pollution to include animal excreta, manure or urine; and
• prescribes the EPA’s Financial Assurance Policy and the Guideline on Estimating Financial Assurance (published in the NSW Government Gazette in June 2022) as the guidelines which the EPA must observe for the content of licence conditions requiring financial assurances and for determining the required amount of financial assurance.

Dangerous Goods (Road and Rail Transport) Regulation 2022

The Dangerous Goods (Road and Rail Transport) Regulation 2022 commenced on 19 August 2022, replacing the Dangerous Goods (Road and Rail Transport) Regulation 2014.

The new Regulation implements the national Model Laws and:

• makes changes to clarify and strengthen safety, maintenance and incident reporting requirements,
• clarifies the powers of the EPA and Safe Work NSW to make determinations related to the transport of dangerous goods by road or rail,
• prescribes certain offences as penalty notice offences and prescribes penalty notice amounts,
• prescribes minor increases to licence and other fees and provides for adjustment of fees for inflation in accordance with the NSW Consumer Price Index from 2023–24, and
• makes machinery and minor changes to formatting and language.

July 2022

Protection of the Environment Operations (General) Amendment (Thermal Energy from Waste) Regulation 2022

The Protection of the Environment Operations (General) Amendment (Thermal Energy from Waste) Regulation 2022 (EfW Regulation) commenced on 8 July 2022 and inserts a new Part 3A into Chapter 8 of the Protection of the Environment Operations (General) Regulation 2021 (General Regulation).

Offence

The EfW Regulation implements the Energy from Waste Infrastructure Plan by making it an offence to carry out the thermal treatment of waste if

1. It involves or results in energy recovery from the waste, and
2. An environment protection licence is required for any scheduled activity at the premises

The offence extends to any work carried out to enable the thermal energy from waste activity to be carried out at the premises.

The maximum penalties for the offences are

• For a corporation – 400 penalty units, and a further 400 penalty units per day for each day the offence continues
• For an individual – 200 penalty units, and a further 200 penalty units per day for each day the offence continues.

Exceptions

The following exceptions apply to the prohibition on energy from waste

• Eligible waste fuels: the prohibition does not apply to the thermal treatment of a fuel
  • Defined in Part 1 of the Eligible Waste Fuel Guidelines as published by the EPA in the Gazette from time to time, and
  • Listed in section 3 of the NSW Energy from Waste Policy Statement as published by the EPA in the Gazette from time to time.
• Designated precincts: the prohibition does not apply to the following precincts
  • the Parkes Activation Precinct
  • the Richmond Valley Jobs Precinct
  • the Southern Goulburn Mulwaree Precinct
  • the West Lithgow Precinct
• Existing activities: the prohibition does not apply if the activity was lawfully able to be, and was first, carried out before 8 July 2022, and was an established and operating activity immediately before that date.

The prohibition also does not apply in relation to certain types of thermal treatment.

It also doesn’t apply where the thermal treatment of waste is to replace a less environmentally sound fuel (being coal, coal-derived solid fuel or petroleum-based liquid fuel, but excluding liquified petroleum gas, natural gas and liquified natural gas). For this exception to apply, the thermal treatment of waste must also satisfy the following

• the fuel was, or was lawfully able to be, thermally treated immediately before 8 July 2022
• if the fuel was thermally treated at the premises in the 12 month period immediately before 8 July 2022 - at least 90% of the energy recovered from that thermal treatment (including any energy subsequently generated from that energy) was used in, or to power, industrial or manufacturing processes at the premises during that period; and
• at least 90% of the energy recovered from thermally treating the waste (including any energy subsequently generated from that energy) is used in, or to power, industrial or manufacturing processes at the premises annually.

See Part 3A of Chapter 8 of the General Regulation for further information on the prohibition and the exceptions.

See energy recovery facilities.

March 2022

Environment Legislation Amendment Act 2022

The Environment Legislation Amendment Act 2022commenced on 4 March 2022.

The Environment Legislation Amendment Act 2022 varies the following environmental Acts to ensure those responsible for contamination and pollution can be made to clean it up or manage it into the future.

Contaminated Land Management Act 1997 to

• extend existing financial assurance provisions to ongoing maintenance orders and restrictive and public positive covenants as these instruments are used for managing residual contamination
• allow the EPA to issue a clean-up or prevention notice as soon as it is notified of contamination, so that it can take immediate action to prevent further contamination and clean-up of the site.
• increase maximum penalties to align with similar offences and court orders to those available under the Protection of the Environment Operations Act 1997. 

Pesticides Act 1999 to:

• enable the EPA to make a pesticide control order without the Minister’s approval, to support the regulatory independence of the EPA and act quickly to ensure the safe use and disposal of restricted pesticides.
• align the available court orders with those available under the Protection of the Environment Operations Act 1997 so that a broader suite of orders can be utilised in sentencing convicted offenders for pesticides crimes.

Protection of the Environment Operations Act 1997 to:

• extend regulatory requirements and considerations to current and former directors and related corporate bodies to ensure businesses that set up and dissolve companies to deflect accountability can be held responsible.
• extend liability for illegal waste dumping to vehicle owners to ensure illegal dumpers are held to account.
• increase protections for officers investigating environmental offences so that they can carry out their jobs safely.
• expand regulatory powers and tools to ensure those responsible for contamination and pollution can be made to clean it up or manage it into the future, including the ability to act against multiple people that contributed to pollution.
• new and increased maximum penalties to align with similar offences and highlight the severity of those crimes, particularly relating to false or misleading conduct and providing false or misleading information.
• enable conditions of suspended, revoked or surrendered licences to be transferred or enforced through a restriction or public positive covenant on land covered by the licence.

The amendments align powers across the Contaminated Land Management Act 1997, the Pesticides Act 1999, the Protection of the Environment Operations Act 1997 and the Radiation Control Act 1990 to recover monetary benefits from current and former directors and related corporate bodies of a company convicted of an environmental offence, where those related entities have benefitted financially from the offence.

The amendments also amend and align powers across the Contaminated Land Management Act 1997, the Protection of the Environment Operations Act 1997 and the Radiation Control Act 1990 to require the EPA to consider the financial capacity of a person when determining if a financial assurance is required.

November 2021

Plastic Reduction and Circular Economy Act 2021

The Plastic Reduction and Circular Economy Act 2021 was assented to on 29 November 2021. The Act creates legislative frameworks to prohibit the  supply of problematic and unnecessary plastics,  set design standards for items for environmental, human health or economic reasons, and set product stewardship requirements for brand owners of regulated products.

The Act will commence in the following phases:

• From 1 June 2022, the supply of lightweight plastic bags will be banned
• From 1 November 2022, the supply of plastic single-use straws, cutlery, stirrers, plates and bowls, and cotton buds, and expanded polystyrene food service items will be banned
• From 1 November 2022, the first design standard will prevent the supply of rinse-off personal care items containing microbeads. 

The Act contains a range of new offences, including offences for:

• supplying a prohibited plastic item or an item that fails to comply with a design standard, while carrying on a business
• providing false or misleading information in connection with the supply of a prohibited plastic item or an item to which a design standard applies.

The Act also contains offences relating to the product stewardship framework, however, these will have no work to do until regulations are made.

The offences for supplying a prohibited plastic item or an item that fails to comply with a design standard only applies in the course of ‘carrying on a business’. This term is defined in the Act and includes carrying on an activity for commercial, charitable, sporting, educational or community purposes, as well as carrying on a not-for-profit business, a partnership or a sole trader.

There are a range of enforcement tools and investigation powers under the Act for the EPA as the regulator. A broad exemption framework is provided under the Act to address both specific and general circumstances, including exemptions for the supply of single use plastic drinking straws for a disability or other medical reasons.

Regulations to support the administration of the Act and prescribe regulated products under the new Product Stewardship scheme are yet to be implemented.

For more information on the Act and the NSW Plastic Action Plan, see NSW Plastics Plan.

September 2021

Protection of the Environment Operations (Clean Air) Regulation 2021

The Protection of the Environment Operations (Clean Air) Regulation 2021 commences on 1 September and remakes the Protection of the Environment Operations (Clean Air) Regulation 2010 with minor administrative changes to

• repeal provisions dealing with cruise ship fuels. Air emissions from cruise ship fuel are now controlled by the Commonwealth’s Protection of the Sea (Prevention of Pollution from Ships) Act 1983,
• update agency names, clause numbering and repeal ‘spent’ provisions.

The Protection of the Environment Operations (General) Regulation 2021

The Protection of the Environment Operations (General) Regulation 2021 commences on 1 September 2021 and remakes the Protection of the Environment Operations (General) Regulation 2009 with minor administrative changes such as updates to agency names, clause numbering and repeal of spent provisions.

March 2021

The Protection of the Environment Operations (General) Amendment (PFAS Firefighting Foam) Regulation 2021

The Protection of the Environment Operations (General) Amendment (PFAS Firefighting Foam) Regulation 2021 amends the Protection of the Environment Operations (General) Regulation 2009 to introduce new measures to minimise and manage the potential risks to human health and the environment posed by PFAS firefighting foam, including:

• banning the discharge of PFAS firefighting foam for the purposes of firefighting training or demonstration;
• restricting the discharge of PFAS firefighting foam from a portable fire extinguisher and prescribed long-chain PFAS firefighting foam unless discharged by a relevant authority to respond to a catastrophic or potentially catastrophic fire, or by a person to respond to a fire on a watercraft; and
• restricting the sale of portable fire extinguishers containing PFAS firefighting foam unless sold to a relevant authority, the owner or master of a vessel, or a person with an exemption to discharge PFAS firefighting foam from a portable fire extinguisher.

The EPA may grant exemptions from a requirement in the Regulation, if necessary.

The commencement of the requirements will be staged over a 19-month period, starting with the ban on the discharge of PFAS firefighting foam for training and demonstration purposes on 1 April 2021. The other requirements will take effect from 26 September 2022.

For more information about the changes made by the Regulation, please visit the Regulation of PFAS firefighting foams page on the EPA website.