PROTECTION OF THE ENVIRONMENT OPERATIONS ACT 1997

New South Wales Consolidated Acts

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- As at 9 August 2024
- Act 156 of 1997

TABLE OF PROVISIONS

Long Title

CHAPTER 1 - PRELIMINARY

1. Name of Act
2. Commencement
3. Objects of Act
4. Definitions
5. Scheduled activities
6. Appropriate regulatory authority
7. General relationship with other Acts
8. Notes

CHAPTER 2 - PROTECTION OF THE ENVIRONMENT POLICIES

PART 2.1 - INTRODUCTION

9. Definitions
10. Purpose of PEPs
11. Contents of PEPs

PART 2.2 - DRAFT POLICIES

12. Preparation of draft PEP
13. General considerations in preparing draft PEP

PART 2.3 - GENERAL PROCEDURE FOR PREPARING DRAFT POLICIES

14. Application of Part
15. (Repealed)
16. EPA to prepare draft PEP and impact statement
17. Public consultation
18. Other consultation during preparation of draft PEP
19. EPA to consider impact statement and submissions
20. Submission of draft PEP to Minister

PART 2.4 - SPECIAL PROCEDURE FOR PREPARING DRAFT POLICIES

21. Application of Part
22. Directions
23. Effect of direction
24. Submission of draft PEP to Minister

PART 2.5 - MAKING POLICIES

25. Recommendation for making PEP
26. Making of PEP

PART 2.6 - INTERIM POLICIES

27. Interim PEPs

PART 2.7 - IMPLEMENTING POLICIES

28. Implementing PEPs--action under this Act and other environment protection legislation
29. Implementing PEPs--action under Environmental Planning and Assessment Act 1979
30. Implementing PEPs--action by public authorities
31. Discretions and functions of public authorities
32. Definition of "public authority"

PART 2.8 - MISCELLANEOUS

33. Amendment or repeal of PEPs
34. Publication and commencement of PEPs
35. Machinery matters for which PEPs may make provision
36. PEPs not to create offences
37. Judicial notice and validity of PEPs
38. Failure to comply with procedural requirements
39. Copies of PEPs to be available to public
40. Abandonment of draft PEP
41. Subordinate Legislation Act 1989 does not apply to PEPs

CHAPTER 3 - ENVIRONMENT PROTECTION LICENCES

PART 3.1 - INTRODUCTION

42. Environment protection licences
43. Types of licences
44. Integration of licensing
45. Matters to be taken into consideration in licensing functions
46. Operation of this Chapter

PART 3.2 - LICENCES REQUIRED FOR SCHEDULED DEVELOPMENT WORK AND SCHEDULED ACTIVITIES

47. Licensing requirement--scheduled development work
48. Licensing requirement--scheduled activities (premises-based)
49. Licensing requirement--scheduled activities (not premises-based)
50. Timing of licensing of development requiring consent under EP&A Act
51. Integrated development
52. Commencement of licensing requirements

PART 3.3 - ISSUE, TRANSFER AND VARIATION OF LICENCES

53. Application for issue of licence
54. Application for transfer of licence
55. Grant or refusal of application
56. Premises to which licence applies
57. Licence fees
58. Variation of licences
59. Restrictions on making applications
60. Requirement for further information
61. Reasons to be given for grant or refusal of certain licence applications
62. Copyright

PART 3.4 - LICENCE CONDITIONS

63. Conditions
64. Failure to comply with condition

PART 3.5 - PARTICULAR LICENCE CONDITIONS

65. Part not exclusive
66. Conditions requiring monitoring, certification or provision of information, and related offences
67. Conditions for mandatory environmental audits
68. Conditions requiring pollution studies and reduction programs
69. Conditions relating to schemes for economic measures and environmental monitoring programs
69A. Chapter extends to licence conditions relating to chemicals
70. Conditions for financial assurances
71. Conditions for remediation work on premises
72. Conditions for insurance cover
73. Conditions to take effect later
74. Conditions for positive covenants
75. Conditions relating to waste
76. Post-closure requirements for waste facilities or other licensed premises

PART 3.6 - DURATION AND REVIEW OF LICENCES

77. Duration of licence
78. Review of licences

PART 3.7 - SUSPENSION, REVOCATION AND SURRENDER OF LICENCES

79. Suspension or revocation of licence by appropriate regulatory authority
80. Surrender of licence
81. Conditions of suspension, revocation or surrender
81A. Variation of conditions of suspension, revocation or surrender to require other persons to carry out works, programs or activities
82. Minister may suspend or revoke licence if holder convicted of major pollution offence

PART 3.8 - MISCELLANEOUS

83. Fit and proper persons
84. Date from which decision operates
85. Death of licensee
86. Notice for breach of licensing requirements
87. (Repealed)
88. Contributions by licensee of waste facility

CHAPTER 4 - ENVIRONMENT PROTECTION NOTICES AND OTHER NOTICES

PART 4.1 - PRELIMINARY

89. Definitions
90. Classification of environment protection notices

PART 4.1A - PRELIMINARY INVESTIGATION NOTICES

90A. Definitions
90B. Issue of preliminary investigation notices
90C. Preliminary investigation notice may be given orally
90D. Content of preliminary investigation notices
90E. Preliminary investigation notices may be given to directors and related bodies corporate
90F. Action by EPA to comply with preliminary investigation notice
90G. Preliminary investigation compliance notices
90H. Recovery of amounts
90I. Recovery of other costs

PART 4.2 - CLEAN-UP NOTICES

91. Clean-up by owners and occupiers of premises and polluters
91A. Clean-up notices may be given to directors and related bodies corporate
91B. Offence
92. Clean-up by public authorities
93. Clean-up directions may be given orally
93A. Development consent and approval not required for clean-up action
94. Fee

PART 4.2A - RECALL NOTICES

94A. Definitions
94B. Issue of recall notice
94C. Content of recall notice
94D. Application of recall notice to supply chain participants
94E. Actions required by recall notice
94F. Publication of recall notice
94G. Recall notices may be given to directors and related bodies corporate
94H. Development consent and approval not required for action under recall notice
94I. Public authority may take action in relation to recall notice
94J. Costs of complying with recall notice
94K. Reviews and appeals
94L. Failure to comply with recall notice
94M. Recall cost notices
94N. Recovery of amounts
94O. Voluntary recalls

PART 4.3 - PREVENTION NOTICES

95. Meaning of environmentally unsatisfactory manner
96. Preventive action
96A. Prevention notices may be given to directors and related bodies corporate
97. Offence
98. Action in event of failure to comply
99. Commencement of operation of prevention notices or variations
100. Fee

PART 4.4 - PROHIBITION NOTICES

101. Prohibition on activities
101A. Prohibition notices may be given to directors and related bodies corporate
102. Offence
103. Action in event of failure to comply

PART 4.5 - COMPLIANCE COST

104. Compliance cost notices
105. Recovery of amounts
106. Registration of compliance cost notices in relation to land
107. Charge on land subject to compliance cost notice

PART 4.6 - MISCELLANEOUS

108. Multiple notices
108A. Single notice for multiple pollution incidents
109. Extraterritorial application
109A. Interaction of notices with proceedings for offences
110. Revocation or variation
111. Power to enter land
112. Obstruction of persons
113. False or misleading statements in tests, environmental monitoring and reports

CHAPTER 5 - ENVIRONMENT PROTECTION OFFENCES

PART 5.1 - CLASSIFICATION OF OFFENCES

114. Classification of offences

PART 5.2 - TIER 1 OFFENCES

115. Disposal of waste--harm to environment
116. Leaks, spillages and other escapes
117. Emission of ozone depleting substances
118. General defence for tier 1 offences
119. Maximum penalty for tier 1 offences

PART 5.3 - WATER POLLUTION

120. Prohibition of pollution of waters
121. Defence of authority conferred by regulation
122. Defence of authority conferred by protection of environment licence or forestry authorisation
123. Maximum penalty for water pollution offences

PART 5.4 - AIR POLLUTION

Division 1 - General

124. Operation of plant (other than domestic plant)
125. Maintenance work on plant (other than domestic plant)
126. Dealing with materials
127. Proof of causing pollution
128. Standards of air impurities not to be exceeded
129. Emission of odours from premises licensed for scheduled activities
130. Provisions prevail
131. Exclusion of residential premises
132. Maximum penalty for air pollution offences

Division 2 - Air pollution from fires

133. Prohibition by EPA of burning in open air or incinerators
134. Directions by authorised officers concerning fires
135. Offence

Division 3 - Domestic air pollution

135A. Definitions
135B. Smoke abatement notices
135C. Contravention of smoke abatement notices
135D. Revocation of smoke abatement notices

PART 5.5 - NOISE POLLUTION

136. Sale of articles emitting more than prescribed noise
137. Sale of articles required to be fitted with noise control equipment
138. Defence--sale of articles
139. Operation of plant
140. Dealing with materials
141. Maximum penalty for noise offences

PART 5.6 - LAND POLLUTION AND WASTE

Division 1 - Preliminary

142. Definition

Division 2 - Land pollution

142A. Pollution of land
142B. Defence of authority conferred by regulation
142C. Defence of authority conferred by licence
142D. Defences relating to pesticides and fertilisers and other substances
142E. Defences relating to unlicensed landfills

Division 3 - Waste offences

143. Unlawful transporting or depositing of waste
144. Use of place as waste facility without lawful authority
144AAA. Unlawful disposal of asbestos waste
144AAB. Re-use and recycling of asbestos waste prohibited
144AA. False or misleading information about waste
144AB. Repeat waste offenders
144AC. Use of approved GPS tracking device required by EPA for waste transportation vehicles

PART 5.6AA - ILLEGAL DUMPING

144AD. Definitions
144AE. Offence of illegal dumping
144AF. Exceptions
144AG. Clean-up of illegal dumping
144AH. Direction to remove litter or waste

PART 5.6A - LITTERING

144A. Definitions
145. Littering generally
145A. Littering dangerous materials
146. Owners and drivers of motor vehicles and trailers involved in littering
146A. Depositing of advertising material
146B. Advertising material not to be placed in or on vehicles
146C. Offence to cause or ask person to commit offence
146D. Littering reports
146E. Restrictions on release of balloons
146F. Application of Part to State waters

PART 5.7 - DUTY TO NOTIFY POLLUTION INCIDENTS

147. Meaning of material harm to the environment
148. Pollution incidents causing or threatening material harm to be notified
149. Manner and form of notification
150. Relevant information to be given
151. Incidents not required to be reported
151A. EPA may require other notification of pollution incidents
152. Offence
153. Incriminating information

PART 5.7A - DUTY TO PREPARE AND IMPLEMENT POLLUTION INCIDENT RESPONSE MANAGEMENT PLANS

153A. Duty of licence holder to prepare pollution incident response management plan
153B. EPA may direct other persons to prepare pollution incident response management plan
153C. Information to be included in plan
153D. Keeping of plan
153E. Testing of plan
153F. Implementation of plan

PART 5.8 - MOTOR VEHICLES

Division 1 - Preliminary

154. Definitions

Division 2 - Sale and maintenance of motor vehicles

155. Sale of motor vehicles
156. Sale of motor vehicles without anti-pollution devices
157. Adjustment etc of anti-pollution devices and motor vehicles
158. Service or repair of motor vehicles
159. Sale of motor vehicles not serviced, maintained or adjusted as prescribed
160. Defences
161. Notices
162. Minister's power to prohibit use of motor vehicles in certain circumstances

Division 3 - (Repealed)
None

Division 4 - Registration of motor vehicles

165. Suspension of registration
166. Prohibition on registration

PART 5.9 - GENERAL OFFENCES

167. Control equipment
167A. False or misleading information
167B. Receiving monetary benefits
168. Ancillary offences
169. Liability of directors etc for offences by corporation--offences attracting special executive liability
169A. Liability of directors etc for offences by corporation--offences attracting executive liability generally
169B. Liability of directors etc for offences by corporation--accessory to the commission of the offences
169C. Evidence as to state of mind of corporation
170. Extra-territoriality

CHAPTER 6 - ENVIRONMENTAL AUDITS

PART 6.1 - PRELIMINARY

171. Relationship of this Chapter to other provisions
172. Nature of environmental audit
173. Accreditation and regulation of environmental auditors

PART 6.2 - MANDATORY ENVIRONMENTAL AUDITS

174. Conditions for mandatory environmental audits
175. Circumstances in which mandatory environmental audit can be imposed
176. Certification of audit report
177. Offences
178. Self-incriminatory information not exempt
179. Use of information

PART 6.3 - (Repealed)
None

CHAPTER 7 - INVESTIGATION

PART 7.1 - PRELIMINARY

184. Purposes for which powers under Chapter may be exercised
185. Effect on other functions
186. Extension of Chapter to other environment protection legislation

PART 7.2 - AUTHORISED OFFICERS AND ENFORCEMENT OFFICERS

187. Appointment of authorised officers
188. Scope of authority
189. Identification
189A. Powers of enforcement officers

PART 7.3 - POWERS TO REQUIRE INFORMATION OR RECORDS

190. Application of Part
191. Requirement to provide information and records (EPA)
192. Requirement to provide information and records (other regulatory authorities)
193. Requirement to provide information and records (authorised officers)
194. Manner, time etc for compliance
195. Provisions relating to records

PART 7.4 - POWERS OF ENTRY AND SEARCH OF PREMISES

196. Powers of authorised officers to enter premises
197. Entry into residential premises only with permission or warrant
198. Powers of authorised officers to do things at premises
198A. Power to disable intruder alarms
199. Search warrants
199A. Authorised officers may request assistance
200. Assistance to be given to authorised officers
201. Care to be taken
202. Compensation

PART 7.5 - POWERS TO QUESTION AND TO IDENTIFY PERSONS

203. Power of authorised officers to require answers
203A. Recording of evidence
204. Power of authorised officers to demand name and address

PART 7.6 - POWERS WITH RESPECT TO VEHICLES, VESSELS AND OTHER ARTICLES

205. Definitions
205A. Application of Part
206. Power to inspect and test
206A. Powers relating to vehicles suspected of transporting industrial chemicals or environmentally hazardous chemicals
207. Power to require articles to be tested or inspected
208. Stopping of vehicles and vessels for inspection or testing
209. Power to seize articles (other than vehicles or vessels) to test for noise
210. Power to require information about articles

PART 7.6A - SEIZURE OF MOTOR VEHICLES OR VESSELS USED TO COMMIT REPEAT WASTE OFFENCES

210A. Definitions
210B. Seizure of motor vehicles or vessels used to commit repeat waste offences
210C. Forfeiture of motor vehicles or vessels by order of court
210D. Return of seized motor vehicle or vessel
210E. Forfeited motor vehicles or vessels become the property of the State

PART 7.7 - GENERAL

211. Offences
212. Provisions relating to requirements to furnish records, information or answer questions
212A. Revocation or variation
212B. Extraterritorial application
212C. Actions by incorrect regulatory authority
212D. Appropriate regulatory authority may continue to exercise functions
212E. Extraterritorial exercise of functions

CHAPTER 8 - CRIMINAL AND OTHER PROCEEDINGS

PART 8.1 - PRELIMINARY

213. Application of Chapter and extension of Chapter to other environment protection legislation

PART 8.2 - PROCEEDINGS FOR OFFENCES

Division 1 - Proceedings for offences generally

214. Proceedings for tier 1 offences
215. Proceedings for other offences
216. Time within which summary proceedings may be commenced
216A. Multiple contraventions

Division 2 - Who may institute proceedings for offences

217. EPA or other appropriate regulatory authority may institute proceedings
218. Other authorities who may also institute proceedings
218A. Agents may institute proceedings
219. Other persons may institute proceedings with leave of Land and Environment Court
220. Officers and employees of authorities
221. Penalty notices and related proceedings

Division 3 - Penalty notices (tier 3 offences)

222, 223. (Repealed)
224. Penalty notices
225. (Repealed)
226. Enforcement officers
227. (Repealed)
228. Withdrawal of penalty notice
229. Effect on other provisions

Division 4 - Restraining orders

230. Application of Division
231. Nature of restraining order
232. Application for restraining order
233. Making of restraining order
234. Undertakings
235. Ancillary orders
236. Charge on property subject to restraining orders
237. Registration of restraining orders
237A. Recovery of costs of registering charge on land
237B. Recovery of costs of lodging caveat
238. Contravention of restraining orders
239. Court may revoke restraining order
240. Time when restraining order ceases to be in force

Division 5 - Sentencing

241. Matters to be considered in imposing penalty

Division 6 - Continuing offences

242. Continuing offences

PART 8.3 - COURT ORDERS IN CONNECTION WITH OFFENCES

243. Operation of Part
244. Orders generally
245. Orders for restoration and prevention
246. Orders for costs, expenses and compensation at time offence proved
247. Recovery of costs, expenses and compensation after offence proved
248. Orders regarding costs and expenses of investigation
249. Orders regarding monetary benefits
250. Additional orders
250A. Prohibiting a person from holding a licence
251. Offence

PART 8.3A - CIVIL PROCEEDINGS TO RECOVER PARTICULAR MONETARY BENEFITS

251A. Recovery of monetary benefits from related persons after offence proved

PART 8.4 - CIVIL PROCEEDINGS TO REMEDY OR RESTRAIN BREACHES OF ACT OR HARM TO ENVIRONMENT OR ENFORCE UNDERTAKINGS

252. Remedy or restraint of breaches of this Act or regulations
253. Restraint of breaches of an Act or statutory rules that harm the environment
253A. Enforcement of undertakings
253B. Prohibition orders

PART 8.5 - EVIDENTIARY PROVISIONS

254. Definitions
255. Evidence of threshold tests for scheduled activities
256. Onus of proof of certain matters
257. Occupier of premises responsible for pollution from premises
258. Evidence relating to occupier of premises
259. Proof of certain appointments not required
260. Documentary evidence generally
261. Certificate evidence of certain matters
262. Evidence of analysts
262A. Evidence from photographs and other images

PART 8.6 - NOISE--SPECIAL PROVISIONS

Division 1 - Noise control notices--regulatory authorities

263. Definition of "appropriate regulatory authority"
264. Noise control notices relating to premises
265. Offence to contravene noise control notice
266. Revocation or variation of noise control notices
267. Commencement of operation of noise control notices
267A. Fee
267B. Compliance costs

Division 2 - Noise abatement orders--Local Court

268. Issue of noise abatement orders
269. Contravention of noise abatement order
270. Restrictions on noise abatement orders
271. Commencement of operation of noise abatement order
272. Revocation or variation of noise abatement orders
273. Costs
274. (Repealed)

Division 3 - Noise abatement directions--police and other authorised persons

275. Definition of "authorised person"
276. Issue of noise abatement directions
277. Contravention of noise abatement directions
278. Restrictions on noise abatement directions
279. Revocation of noise abatement directions

Division 4 - Police powers regarding noise

280. Powers of entry by police by warrant
281. Powers of police after entry by warrant
282. Police powers to seize equipment
283. Other police powers not affected

CHAPTER 9 - MISCELLANEOUS

PART 9.1 - EXEMPTIONS

284. Exemptions by EPA in emergencies and other situations
285. Exemption for fire brigades and other emergency services
286. Exemptions by regulation
286A. Offence regarding resource recovery orders
286B. Records relating to resource recovery exemptions and orders
286C. Information or records under resource recovery exemption or order

PART 9.2 - APPEALS

287. Appeals regarding licence applications and licences
288. Appeals regarding notices under section 86 relating to work at premises
289. Appeals against prevention notices
289A. Appeals regarding notices under section 144AC relating to use of approved GPS tracking devices
290. Appeals regarding noise
291. Appeals regarding decisions under the regulations
292. Determination of appeals

PART 9.3 - ECONOMIC MEASURES

293. Schemes for economic measures
293A. Alteration, suspension or termination of a scheme
294. Liability of Crown
294A. Exercise of functions by Minister and EPA
295. Regulations

PART 9.3A - TRADEABLE EMISSION SCHEMES

295A. Definitions
295B. Tradeable emission schemes
295C. Regulations relating to tradeable emission schemes
295D. Licence conditions
295E. Imposition of penalties for contravention of scheme
295F. Other action that may be taken by EPA
295G. Participation in scheme by EPA
295H. Cost recovery
295I. Tradeable Emission Schemes Fund
295J. Exercise of scheme functions by other persons and bodies
295K. Liability for operation of scheme
295L. Application of Duties Act 1997

PART 9.3B - GREEN OFFSETS

295M. Definitions
295N. Licence conditions
295O. Green offset schemes
295P. Green offset works
295Q. Regulations relating to green offsets
295R. Action that may be taken by EPA in relation to green offset schemes or works
295S. Administrative costs
295T. Payment of contributions
295U. Green Offsets Fund
295V. Exercise of scheme functions by other persons and bodies
295W. Liability for operation of scheme
295X. Application of Duties Act 1997

PART 9.3C - ENVIRONMENTAL MONITORING

295Y. Environmental monitoring programs
295Z. Environmental monitoring levies
295ZA. Environmental Monitoring Fund

PART 9.3D - POLLUTION INCIDENTS--ANALYSIS OF RISK

295ZB. Definition
295ZC. Conduct of health risk analysis
295ZD. Conduct of environmental risk analysis
295ZE. Recovery of costs of analysis
295ZF. Recovery from responsible persons
295ZG. General provisions

PART 9.3E - CHEMICALS

Division 1 - Industrial chemicals

296. Definitions
296A. NSW Industrial Chemicals Environmental Management Standard Register
296B. Users and manufacturers to comply with risk management measures
296C. Person must not do things prohibited by NSW IChEMS register
296D. Licence conditions
296E. Failure to comply with phase-out conditions

Division 2 - Chemical use notices

296F. Chemical use notices
296G. Use and disclosure of information
296H. Chemical use notice fees

Division 3 - Chemical control orders

296I. Grounds for making orders
296J. Making orders
296K. Date orders come into force
296L. Person must comply with orders
296M. Licence conditions

Division 4 - Assessment of technology

296N. Application for assessment of technology
296O. Requirement for assessment of technology

Division 5 - Forfeiture of chemicals

296P. Forfeiture of substances and containers by order of court
296Q. Retention and disposal of seized property
296R. Disposal of forfeited property

PART 9.4 - FINANCIAL ASSURANCES

297. 297A. Purpose of this Part
297B. Definition of "conditions" of licence
298. Requiring financial assurances
299. Restriction on requiring financial assurance
300. Amount of financial assurances
301. Guidelines about financial assurances
302. Carrying out of work or program when licensee fails to do so
303. Claim on or realising of financial assurance
304. Lapsing of financial assurance
305. Liability of appropriate regulatory authority, State and others
306. Financial assurance not to affect other action
307. Disputes regarding call on or use of financial assurance

PART 9.4A - RESTRICTIONS AND COVENANTS ON LAND

307A. Ongoing maintenance--restrictions and covenants

PART 9.5 - PUBLIC REGISTER

308. Public register
309. Public availability of register

PART 9.6 - FORMAL INQUIRIES

310. Conduct of inquiries
311. Person or body conducting inquiries
312. Procedures at inquiries
313. Public nature of inquiries
314. Report of inquiry

PART 9.7 - OTHER MISCELLANEOUS PROVISIONS

315. Act to bind Crown
316. Resolution of disputes between EPA and public authorities
317. Appointment of persons to exercise certain functions
318. Exercise of local authority's licensing functions by EPA
319. Disclosure of information
319A. Continuing effect of notices and conditions
319B. Public warning statements
320. Disclosure of monitoring data
320A. False representations
321. Service of documents
322. Effect of this Act on other rights, remedies and proceedings
323. Regulations
324. Repeals
325. (Repealed)
326. Savings, transitional and other provisions
327. Review of Act
SCHEDULE 1
SCHEDULE 2
SCHEDULE 2A
SCHEDULE 3
Schedule 4 (Repealed)
SCHEDULE 5
SCHEDULE 6

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