Environment Protection Amendment Act 2014 (ACT)
Environment Protection Amendment Act 2014
A2014-52
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Legislation amended 2
Part 2Environment Protection Act 1997
4 ObjectsSection 2 3
5Offences against Act—application of Criminal Code etc
Section 3B, note 1 36 New sections 3C and 3D 4
7 Section 10 6
8 Inspection of documentsSection 19 (1) (q) 6
9 Register of contaminated sitesSection 21A (2) 7
10 Section 21A (3) 7
11 Section 21A (4) (b) 7
12 Section 21A (5) 8
13 Section 38 9
14 Form and terms of agreementsSection 39 (c) (i) and (ii) 9
15 Compliance with authorisationSection 45 (2) (a) (ii) 9
16 Section 45 (2) (b) 10
17 GrantNew section 49 (6A) 10
18 Notification of grantSection 50 (5) 10
19 Section 50 (6) 10
20 Kinds of conditionsSection 51 (a) (vii) 10
21 Notice of intention to vary an authorisationSection 62 (2) (b) (i) 11
22 Suspension and cancellationSection 63 (1) (a) (ii) 11
23 Requests for auditor’s statementsSection 76A (1) 11
24 New section 76A (1) (aa) 11
25 Section 76A (2), new note 12
26 Claim on or realisation of financial assuranceSection 88 (1) (a) 12
27 Notice before claim on or realisation of a financial assuranceSection 89 (1) (a) 12
28 Section 89 (1) (b) 12
29 Recovery of extra costsSection 90 (1) 13
30 Procedure if samples takenSection 102 13
31 Information discovery ordersSection 133 (1) (a) 13
32 Part 14 13
33 New part 14A 16
34 Causing serious environmental harmSection 137 19
35 Causing material environmental harmSection 138 20
36 Causing environmental harmSection 139 20
37 Liability limited to harm caused by excess pollutantsSection 144 20
38 Criminal liability of executive officersSection 147 (6), definition of relevant offence, paragraphs (f) to (h) 20
39 Due diligenceSection 153 21
40 Defence of emergencySection 154 (2) 21
41 Additional court ordersSection 157 21
42 Recovery of clean-up costsSection 160 22
43 Regulation-making powerNew section 166 (7A) 22
44 Activities requiring environmental authorisationSchedule 1, section 1.1, new definition of hazardous component 22
45 Schedule 1, table 1.2, item 30 22
46 Schedule 1, table 1.2, new items 48 and 49 23
47 Schedule 1, table 1.3, new item 8 23
48 Dictionary, definition of development 23
49 Dictionary, new definitions 24
Part 3Environment Protection Regulation 2005
50 Section 44 25
51 Development waste not to enter stormwater system or waterwaysSection 45 (3) 25
52 Areas near development to be kept clearSection 46 (3) 26
53 Entries to and exits from land to be kept stableSection 47 (4) 26
54 Consignment authorisation for controlled wasteSection 58 (1) (b) 26
55 New section 58 (2A) 26
56 New part 8A 27
57 Noise zones, noise standards and conditionsSchedule 2, table 2.3, new item 21 28
58 Dictionary, note 3 29
59 Dictionary, new definition of erosion and sediment control measures 29
Environment Protection Amendment Act 2014
A2014-52
An Act to amend the Environment Protection Act 1997 and the Environment Protection Regulation 2005
The Legislative Assembly for the Australian Capital Territory enacts as follows:
Part 1Preliminary
Name of Act
This Act is the Environment Protection Amendment Act 2014.
Commencement
(1)This Act (other than section 7, sections 9 to 12 and section 33) commences on the day after this Act’s notification day.
NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
(2)Section 7, sections 9 to 12 and section 33 commence on a day fixed by the Minister by written notice.
Note 1A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).
Note 2If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).
Legislation amended
This Act amends the Environment Protection Act 1997 and the Environment Protection Regulation 2005.
Part 2Environment Protection Act 1997
Objects
Section 2omit
Offences against Act—application of Criminal Code etc
Section 3B, note 1substitute
Note 1Criminal Code
The Criminal Code, ch 2 applies to the following offences against this Act (see Code, pt 2.1):
· s 92 (Fuel sales––provision of information)
· s 92A (Confidential commercial information must not be disclosed)
· s 136K (Contravention of enforceable undertakings)
The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).
Certain provisions of the Criminal Code, ch 2 (the applied provisions) apply to all offences against this Act. The applied provisions include geographical application provisions (see Code, s 10).
New sections 3C and 3D
insert
3CObjects of Act
(1)The objects of this Act are to—
(a)protect and enhance the quality of the environment; and
(b)prevent environmental degradation and risk of harm to human health by promoting the following:
(i)pollution prevention;
(ii)clean production technology;
(iii)reuse and recycling of materials;
(iv)waste minimisation programs; and
(c)require people engaging in polluting activities to make progressive environmental improvements; and
(d)achieve effective integration of environmental, economic and social considerations in decision-making processes; and
(e)facilitate the implementation of national environment protection measures under national scheme laws; and
(f)provide for the monitoring and reporting of environmental quality on a regular basis; and
(g)ensure that contaminated land is managed having regard to human health and the environment; and
(h)coordinate activities needed to protect, restore or improve the ACT environment; and
(i)establish a process for investigating and, where appropriate, remediating land areas where contamination is causing or is likely to cause a significant risk—
(i)of harm to human health; or
(ii)of material environmental harm or serious environmental harm.
(2)In this section:
national scheme law means—
(a)the National Environment Protection Council Act 1994 (Cwlth); and
(b)the National Environment Protection Council Act 1994.
3DPrinciples applying to Act
(1)A person administering this Act must have regard to the following principles where relevant:
(a)the principle of a shared responsibility for the environment, including through—
(i)acknowledging environmental needs in economic and social decision-making; and
(ii)public education about and public involvement in decisions about protection, restoration and enhancement of the environment;
(b)the precautionary principle;
(c)the inter-generational equity principle;
(d)the waste minimisation principle;
(e)the polluter pays principle.
(2)In this section:
inter-generational equity principle means that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
polluter pays principle means that polluters should bear the appropriate share of the costs that arise from their activities.
precautionary principle means that, if there is a threat of serious or irreversible environmental damage, a lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
waste minimisation principle means controlling the generation, storage, collection, transportation, treatment and disposal of waste to reduce, minimise and, where practical, eliminate harm to the environment.
Section 10
substitute
Criminal liability of the Territory
The Territory is liable for an offence against this Act.
Inspection of documents
Section 19 (1) (q)substitute
(q)the contaminated sites register;
Register of contaminated sites
Section 21A (2)substitute
(2)The register—
(a)may be in electronic form; and
(b)must contain particulars of land in relation to—
(i)an order under section 91C (1) (Order to assess whether land contaminated), section 91D (1) (Order to remediate land) or section 125 (2) or (3) (Environment protection orders); and
(ii)a requirement to commission an environmental audit under section 76 (2) (Authority may require environmental audit); and
(iii)a notice under section 76A (1) (Requests for auditor’s statements) not relating to an order or requirement mentioned in subparagraph (i) or (ii).
Section 21A (3)
omit
Section 21A (4) (b)
after
125 (2)
insert
or (3)
Section 21A (5)
substitute
(5)The authority must remove an entry from the register—
(a)for an entry made under subsection (2) (b) (i) in relation to an order under section 91C (1)—within 60 days after receiving an environmental audit of assessment under section 91C in relation to the entry unless the authority has, within that period, made an order under section 91D (1) or section 125 (2) or (3); or
(b)for an entry made under subsection (2) (b) (ii) or (iii)—within 60 days after receiving the audit required under section 76 (2) or the site audit statement mentioned in section 76A (2) in relation to the entry unless, within that period—
(i) the authority has entered into an environmental protection agreement under section 38 (Entering agreements); or
(ii)a condition or annotation has been included on the crown lease or title for the land in relation to the environmental audit; or
(c)in any case—if the authority decides, based on advice from an approved auditor under section 75 (Certain auditors to be approved), that ongoing management of the land is no longer required.
(5A)As soon as practicable after entering particulars of land in the register or removing an entry from the register, the authority must give written notice of the entry or removal to—
(a)the planning and land authority; and
(b)if the land is in a designated area—the national capital authority.
Section 38
substitute
Entering agreements
(1)Under section 42 (2) (a) or otherwise giving effect to the objects of this Act, the Authority may enter into an environmental protection agreement in relation to an activity with the person who is conducting, or proposing to conduct, the activity.
(2)The authority must give the person in subsection (1) a copy of the agreement.
Form and terms of agreements
Section 39 (c) (i) and (ii)omit
caused by the activity
substitute
caused or likely to be caused by the activity
Compliance with authorisation
Section 45 (2) (a) (ii)omit
environmental harm was caused
substitute
environmental harm was caused or likely to be caused
Section 45 (2) (b)
after
caused
insert
, or likely to be caused,
Grant
New section 49 (6A)insert
(6A)The authority must give written notice of its decision to anyone who has made a submission in relation to the application under section 48 (1) (c).
NoteSee s 136 for the requirement to notify other people.
Notification of grant
Section 50 (5)omit
Section 50 (6)
omit
, and published in a daily newspaper,
Kinds of conditions
Section 51 (a) (vii)after
environmental harm
insert
or likely environmental harm
Notice of intention to vary an authorisation
Section 62 (2) (b) (i)omit
will cause,
substitute
will cause or is likely to cause,
Suspension and cancellation
Section 63 (1) (a) (ii)omit
or is happening
substitute
, is happening or is likely to happen
Requests for auditor’s statements
Section 76A (1)omit
statement (a site audit statement)
substitute
written notice
New section 76A (1) (aa)
insert
(aa)reasons for the person making the request; and
Section 76A (2), new note
insert
NoteIf a form is approved under s 165A for this provision, the form must be used.
Claim on or realisation of financial assurance
Section 88 (1) (a)after
caused
insert
, or likely to be caused,
Notice before claim on or realisation of a financial assurance
Section 89 (1) (a)after
caused
insert
, or likely to be caused,
Section 89 (1) (b)
after
environmental harm
insert
or likely environmental harm
Recovery of extra costs
Section 90 (1)after
caused
insert
, or likely to be caused,
Procedure if samples taken
Section 102omit
Information discovery orders
Section 133 (1) (a)omit
knowledge of
Part 14
substitute
Part 14Notification and review of decisions
Definitions—pt 14
In this part:
internally reviewable decision means a decision mentioned in schedule 3, column 3 under a provision of this Act mentioned in column 2 in relation to the decision.
reviewable decision means—
(a)a decision mentioned in schedule 3, column 3 under a provision of this Act mentioned in column 2 in relation to the decision; or
(b)a decision made on internal review.
Internal review and reviewable decision notices
(1)If the authority makes an internally reviewable decision, the authority must give an internal review notice to each entity mentioned in schedule 3, column 4 in relation to the decision.
(2)If the authority makes a reviewable decision, the authority must give a reviewable decision notice to each entity mentioned in schedule 3, column 4 in relation to the decision.
Note 1The authority must also take reasonable steps to give an internal review notice and a reviewable decision notice to anyone whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A and s 67B).
Note 2The requirements for internal review notices and reviewable decision notices are prescribed under the ACT Civil and Administrative Tribunal Act 2008.
136AApplications for internal review
(1)The following may apply to the authority for review of an internally reviewable decision:
(a)an entity mentioned in schedule 3, column 4 in relation to the decision;
(b)any other person whose interests are affected by the decision.
(2)The application must—
(a)be in writing; and
(b)state the applicant’s name and address; and
(c)set out the applicant’s reasons for making the application.
(3)The application must be given to the authority within—
(a)14 days after the day the applicant is given the internal review notice for the decision; or
(b)any longer period allowed by the authority before or after the end of the 14-day period.
136BApplications not stay internally reviewable decisions
The making of an application for review of an internally reviewable decision does not affect the operation of the decision.
136CReview by authority
(1)The authority must review the internally reviewable decision.
(2)The review must happen within 28 days (the 28-day period) after the day the authority receives the application for review of the internally reviewable decision.
(3)The authority must—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and substitute another decision.
(4)If the decision is not varied or set aside within the 28-day period, the decision is taken to have been confirmed by the authority.
136DApplications for review
The following may apply to the ACAT for review of a reviewable decision:
(a)an entity mentioned in schedule 3, column 4 in relation to the decision;
(b)any other person whose interests are affected by the decision.
NoteIf a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the application, the form must be used.
New part 14A
insert
Part 14AEnforceable undertakings
136EDefinitions—pt 14A
In this part:
enforceable undertaking means an environmental undertaking that has been accepted under section 136G.
environmental undertaking—see section 136F (2).
136FMaking of environmental undertakings
(1)This section applies if the authority alleges that a person has committed an offence against division 15.1 (Environmental offences).
(2)The person may give the authority a written undertaking (an environmental undertaking) in relation to the offence.
(3)The environmental undertaking must—
(a)state that, on acceptance by the authority, it is an enforceable undertaking under this Act; and
(b)acknowledge that the authority alleges that the person has committed an offence against a stated provision of this Act; and
(c)identify the facts and circumstances of the alleged offence; and
(d)include 1 or more undertakings relating to the alleged offence.
Examples—undertakings
1 to stop certain conduct
2 to take particular action to compensate people adversely affected by an alleged offence committed against a stated provision of this Act
3 to take particular action to rectify a state of affairs that arose as a direct or indirect result of the alleged offence
4 to take particular action (including implementing particular systems) to prevent future offences against this Act
5 to implement publicity or education programs
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
136GAcceptance of environmental undertaking
(1)The authority may accept an environmental undertaking by written notice given to the person who gave the undertaking.
(2)On acceptance of the undertaking, the undertaking becomes an enforceable undertaking.
136HWithdrawal from or amendment of enforceable undertaking
(1)The person who gave an enforceable undertaking may withdraw from or amend the undertaking only with the authority’s written agreement.
(2)However, the undertaking may not be amended to provide for a different alleged offence.
136IEnding enforceable undertaking
(1)The authority may end an enforceable undertaking by written notice to the person who gave the undertaking if satisfied that the undertaking is no longer necessary or desirable.
(2)The authority may act under subsection (1) on the authority’s own initiative or on the application of the person who gave the undertaking.
(3)The undertaking ends when the person who gave the undertaking receives the authority’s notice.
136JUndertaking not admission of fault etc
(1)This section applies if a person gives the authority an environmental undertaking in relation to an alleged offence, whether or not the undertaking is accepted by the authority.
(2)Giving the environmental undertaking is not—
(a)an express or implied admission of fault or liability by the person in relation to the alleged offence; and
(b)relevant to deciding fault or liability in relation to the alleged offence.
136KContravention of enforceable undertakings
(1)If the authority believes on reasonable grounds that an enforceable undertaking has been contravened by anyone, the authority may apply to the Magistrates Court for an order under subsection (2).
(2)If the Magistrates Court is satisfied that the enforceable undertaking has been contravened, the court may make 1 or more of the following orders:
(a)an order requiring the person who gave the undertaking to ensure that the undertaking is not contravened;
(b)an order requiring the person who gave the undertaking to pay to the Territory the amount assessed by the court as the value of the benefits anyone derived, directly or indirectly, from the contravention of the undertaking;
(c)an order that the court considers appropriate requiring the person who gave the undertaking to compensate someone who has suffered loss or damage because of the contravention of the undertaking;
(d)any other order that the court considers appropriate.
(3)A person commits an offence if the person fails to take all reasonable steps to comply with an order under subsection (2).
Maximum penalty: 200 penalty units.
136LEffect of enforceable undertaking on other proceedings
A proceeding may not be brought against a person for an alleged offence against division 15.1 (Environmental offences) if—
(a)an enforceable undertaking is in force in relation to the alleged offence; or
(b)the person has complied with an enforceable undertaking in relation to the alleged offence.
Causing serious environmental harm
Section 137after
environmental harm
insert
or likely serious environmental harm
Causing material environmental harm
Section 138after
environmental harm
insert
or likely material environmental harm
Causing environmental harm
Section 139after
environmental harm
insert
or likely environmental harm
Liability limited to harm caused by excess pollutants
Section 144after
environmental harm
insert
or likely environmental harm
Criminal liability of executive officers
Section 147 (6), definition of relevant offence, paragraphs (f) to (h)substitute
(f)section 137 (Causing serious environmental harm or likely serious environmental harm);
(g)section 138 (Causing material environmental harm or likely material environmental harm);
(h)section 139 (Causing environmental harm or likely environmental harm);
Due diligence
Section 153after
environmental harm
insert
or likely environmental harm
Defence of emergency
Section 154 (2)after
environmental harm
insert
or likely environmental harm
Additional court orders
Section 157after
environmental harm
insert
or likely environmental harm
Recovery of clean-up costs
Section 160after
environmental harm
insert
or likely environmental harm
Regulation-making power
New section 166 (7A)insert
(7A)A regulation may make provision in relation to preventing or limiting pollution on development sites, including regulating or prohibiting certain conduct.
Activities requiring environmental authorisation
Schedule 1, section 1.1, new definition of hazardous componentinsert
hazardous component, of electronic waste, means any component of the electronic waste that has chemical, physical or biological properties with the potential to cause harm to a person, property or the environment.
Schedule 1, table 1.2, item 30
substitute
| 30 | the storage of petroleum products in a facility designed to store more than 50m3 of products |
Schedule 1, table 1.2, new items 48 and 49
insert
| 48 | the operation of a waste transfer station receiving 30 000t or more of waste each year |
| 49 | the operation of a commercial facility for the treatment of the hazardous components of electronic waste |
Schedule 1, table 1.3, new item 8
insert
| 8 | the operation of a commercial facility for the storage and dismantling of electronic waste |
Dictionary, definition of development
substitute
development means the following:
(a)building, altering, repairing or demolishing a building or structure on land;
(b)disposing of waste materials generated by altering or demolishing a building or structure on land;
(c)carrying out earthworks or other construction work on or under land;
(d)carrying out work that would affect the landscape of land.
Dictionary, new definitions
insert
electronic equipment means equipment that requires an electric current or electromagnetic field to function.
Examples—electronic equipment
televisions, fridges, computers, mobile phones, drills, remote control cars
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
electronic waste means waste electronic equipment.
enforceable undertaking, for part 14A (Enforceable undertakings)—see section 136E.
environmental undertaking, for part 14A (Enforceable undertakings)—see section 136F (2).
internally reviewable decision, for part 14 (Notification and review of decisions)—see section 135.
waste transfer station means a facility that sorts, consolidates or temporarily stores solid waste (including municipal waste) for transfer to another site for disposal, storage, reprocessing, recycling, use or reuse.
Part 3Environment Protection Regulation 2005
Section 44
substitute
Pollution of waterways
(1)A person commits an offence if the person pollutes a waterway.
Maximum penalty: 10 penalty units.
(2)An offence against this section is a strict liability offence.
(3)In this section:
pollutes a waterway—a person pollutes a waterway if the person—
(a)allows, causes, or fails to prevent the discharge, emission, depositing, disturbance or escape of a pollutant into or on a waterway; or
(b)places a pollutant in a position where it is likely to pollute a waterway by entering a stormwater system or other entry into a waterway.
Development waste not to enter stormwater system or waterways
Section 45 (3)omit
Areas near development to be kept clear
Section 46 (3)omit
Entries to and exits from land to be kept stable
Section 47 (4)omit
Consignment authorisation for controlled waste
Section 58 (1) (b)substitute
(b)does not have a consignment authorisation for the movement of the waste.
New section 58 (2A)
insert
(2A)A person in charge of a facility commits an offence if the person—
(a)accepts a consignment of controlled waste; and
(b)does not have a consignment authorisation for the movement of the waste.
Maximum penalty: 10 penalty units.
New part 8A
insert
Part 8AErosion and sediment control measures for development sites
66AMeaning of erosion and sediment control measures—pt 8A
In this part:
erosion and sediment control measures means measures to prevent or limit pollution on a development site.
Examples—erosion and sediment control measures
· diversion structures
· dust suppression
· geotextile sediment and control barriers
· sediment control ponds
· stabilised access or egress points
NoteAn example is part of the regulation, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
66BDevelopment sites 0.3ha or greater
A person who is in charge of development on a development site commits an offence if—
(a)the site is 0.3ha or greater; and
(b)the person does not install and maintain on the site erosion and sediment control measures required under the environmental protection agreement that is in effect in relation to the development.
Maximum penalty: 10 penalty units.
66CDevelopment sites less than 0.3ha
A person who is in charge of development on a development site commits an offence if—
(a)the site is less than 0.3ha; and
(b)the person does not install and maintain on the site erosion and sediment control measures approved by a building certifier.
Maximum penalty: 10 penalty units.
Noise zones, noise standards and conditions
Schedule 2, table 2.3, new item 21insert
| 21 | noise emitted in the course of— (a) building work that requires a building approval under the Building Act 2004, division 3.3; or (b) development | (a) all of the following: (i) the noise is emitted from a place in noise zone A or B; (ii) all relevant noise reduction measures mentioned in AS 2436, as in force from time to time, are implemented; (iii) the noise is emitted between 6 am and 8 pm; or (b) all of the following: (i) the noise is emitted from a place other than a place in noise zone A or B; (ii) the building work or development will be finished within 2 weeks after the day it started; (iii) all relevant noise reduction measures mentioned in AS 2436, as in force from time to time, are implemented; (iv) the noise is emitted— (A) between 7 am and 8 pm on Monday to Saturday; or (B) between 8 am and 8 pm on Sunday or a public holiday; or (c) all of the following: (i) the noise is emitted from a place other than a place in noise zone A or B; (ii) the building work or development will not be finished within 2 weeks after the day it started; (iii) all relevant noise reduction measures mentioned in AS 2436, as in force from time to time, are implemented; (iv) the noise is emitted between 7 am and 6 pm on Monday to Saturday, excluding public holidays |
Dictionary, note 3
insert
· development
Dictionary, new definition of erosion and sediment control measures
insert
erosion and sediment control measures, for part 8A (Erosion and sediment control measures for development sites)—see section 66A.
Endnotes
Presentation speech
Presentation speech made in the Legislative Assembly on 18 September 2014.
Notification
Notified under the Legislation Act on 11 November 2014.
Republications of amended laws
For the latest republication of amended laws, see certify that the above is a true copy of the Environment Protection Amendment Bill 2014, which was passed by the Legislative Assembly on 30 October 2014.
Clerk of the Legislative Assembly
© Australian Capital Territory 2014
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