AGY-1146 | Environment Protection Authority

Full description

The Environment Protection Authority was established by the Protection of the Environment Administration Act, 1991 (Act No.60, 1991). The Act abolished the Pollution Control Commission. On 16 January 1991 the existing members of the Commission became the Board members of the Environment Protection Authority. (1) The Environment Protection Authority was established on 1 March 1992. (2) The new agency consisted of the staff and functions of the State Pollution Control Commission, some staff and functions of the Ministry for the Environment; the staff and waste regulations and licensing functions of the Waste Management Authority, and the staff and functions of the Radiation Control Section of the Department of Health. (3)

The functions of the Authority were as follows: ensuring that the best practicable measures were taken for environment protection in accordance with the environment protection legislation and other legislation; co-ordinating the activities of all public authorities in respect of those measures; inquiring into and reporting on the efficacy of those measures; reviewing the regulatory framework for environmental protection and advising on its rationalisation and simplification [the first of these reviews was to be completed within one year after the commencement of the Authority]; investigating and reporting on the alleged non-compliance with environment protection legislation for the purposes of prosecutions or other regulatory action; establishing a database on the state of the environment; advising persons engaged in industry and commerce and other members of the community on environment protection and advising the Government on methods to ensure the integration of the Authority’s pollution approvals and licensing processes with the development consent process so that the importance of environment protection is recognised. (4)

The Authority had the following general powers:
(a) to formulate and promote plans for environment protection;
(b) to publish reports and information on any aspect of environment protection;
(c) to carry out or commission research into environment protection;
(d) to co-ordinate the collection of information on environment protection which is published or supplied by public or other authorities;
(e) to provide or promote the development of specialist guidance and technical advisory services relating to environment protection;
(f) to invite and consider public submissions when it formulates environment protection plans, when it develops objectives, guidelines or policies under section 9 or when it issues, renews or amends licenses under the environment protection legislation;
(g) to make any register of particulars of any such licences in force available for public inspection and provide (on payment of any reasonable fee demanded by the Authority) copies of or extracts from any such register;
(h) to make grants to industry, commerce, public authorities, educational institutions and such other persons who the Authority considers are acting in the public interest for the purpose of funding projects which assist or advance environment protection;
(i) to make grants to groups of citizens incorporated for the purpose of representing the public interest in environment protection to enable them to obtain technical assistance in making submissions related to environment protection matters. (5)

The Authority was required to develop environmental quality objectives, guidelines and policies and to monitor the state of the environment for the purpose of assessing trends and achievement of these objectives, guidelines, policies and standards. (6)

The Authority was to submit a biennial report on the state of the environment to be tabled in both houses of parliament. The report was to cover the following: an assessment of the status and conditions of the major environmental resources of the State; an examination of environmental trends including the implications for human health; a review of the programs of the public and private sector in regard to environment protection; an examination of the trends in economic analysis and costs and benefits of environmental protection; recommendations for legislative change and any other action that would assist in achieving optimal environment protection. (7)

The Authority could also advise public authorities on performance targets if these related to the protection of the environment and it could report on the targets set by public authorities and was required to do so if the agency had failed to report on its own environmental targets. (8)

The Authority could direct any public authority to do anything within its powers to assist environment protection and to refrain from doing anything that was detrimental to the environment. (9)

The Environment Protection Authority was subject to the direction and control of the Minister except: when making reports or recommendations to the Minister; concerning the State Environment report [although the Minister could direct on the inclusion of additional information]; decisions to institute criminal or related proceedings. (10)

Reports concerning Ministerial direction to the Authority were required to be tabled in both houses of Parliament if they concerned the inclusion of additional information in the state environment report; or the issue, renewal or amendment of a license under the legislation. (11)

The Environment Protection Authority was managed and controlled by the Director-General in accordance with the policies and decisions of the Board and directions of the Minister. (12) The Board consisted of the Director-General and eight part-time members appointed by the Governor on the recommendation of the Minister. These latter members were selected because of their expertise in nature conservation; environment protection; environmental aspects of agriculture, industry or commerce; environmental science; environmental protection policy; regional environmental issues; or environmental law. (13) An Environmental Counsel to the Board was appointed to advise on criminal proceedings and other any other matters referred by the Board. (14)

The functions of the Board were to determine policies and strategic plans of the Authority; to oversee the effective, efficient and economical management of the Authority; to develop guidelines relating to the institution of criminal proceedings and to make these publicly available; to determine whether the Authority should commence proceedings in particular cases referred to it; and to advise the Minister on any matter related to environment protection either on its own initiative or at the  request of the Minister. (15)

The Authority established consultation forums to advise it on community concerns and attitudes towards environment protection; (16) an Environment Education Committee to advise it on environmental education and public awareness programs; (17) and advisory committees as required to work on particular issues. (18)

At 30 June 1992, the Authority consisted of the Director-General and Four Executive Directors each with responsibility for an administrative division. The Technical Services division was divided into the following branches: Water and Natural Resources; Air, Noise and Transport; Hazardous Substances; Solid Waste; Laboratories. The Planning, Education and Legal Division comprised Economic Evaluation and Reporting Branch; Policy and Planning Branch; Legal Services Branch and Community Liaison Branch. The Operations and Administration division contained major investigations and licensing branch; Sydney Regions; Northern Regions; South Coast Regions and Western Regions; and the Administration Division included Information Technology Branch, Finance Branch, Human Resources and Corporate Services. (19)

Some of the immediate initiatives of the EPA were to monitor air and water quality, especially Metropolitan air quality, negotiate pollution reduction programs for major industrial licensees; have input into metropolitan land use and integrated transport planning; measure lead levels in the environment; and waste minimisation and regulation. (20) The Environment Protection Authority represented the New South Wales on sundry national bodies in addition to carrying out its role within the State. (21)

In June 1993 the EPA assumed responsibility for regulating the transportation of dangerous goods in New South Wales previously undertaken by the WorkCover Authority. (22) This involved regulating vehicles conveying dangerous goods whether in bulk or in packages, licensing and inspecting vehicles used for this purpose, driver training, registering dangerous goods, and the design of dangerous goods tankers (other than pressure vessels), vehicle components and demountable tanks. The EPA also ensured compliance with the current Australian Code for the Transport of Dangerous Goods by Road & Rail by carrying out random inspections. (23)

By June 1995 some of the achievements that the Authority was able to report were as follows: Reducing saline discharges from coal mines into the Hunter River; 169 Pollution Reduction Programs [PRP’s]; establishment of a State Stormwater Coordinating Committee; water quality monitoring in the Hawkesbury-Nepean River system; comprehensive air quality study in metropolitan Sydney and the production of 12 guidelines for industry. (24)

In 1995 the Environment Protection Authority became responsible for the administration of the Pesticides Act, 1978, and in April of that year commenced a review of the legislation and regulations. As a result of this process the Pesticides Regulation and Regulatory and Impact Statement were revised and the regulations were issued on 1 September 1995. (25) The regulations covered licenses and approvals for the application of pesticides from aircraft; permits to use pesticides; prohibited residues and restricted pesticides.

Changes to pollution control licensing in the year ended 30 June 1996 resulted in two new concepts: Load Based Licensing which referred to the total load of the pollutants, not the concentration of the discharge; and Bubble Licensing which applied to areas receiving multiple pollutants. (26)

The Waste Management Act 1995 was proclaimed and the Authority was responsible for implementing much of the reform introduced by that Act including: preparing guidelines for landfills; establishing a State Waste Advisory Council; commencing industry waste reduction planning and the regionalisation of waste management. (27)

The agency was restructured in 1995-96 to include three major divisions: administration, environmental issues, and management and operations. The administration division covered information technology, finance, human resources and corporate services. The environmental issues and management division comprised environmental policy, legal services, education and community programs, environmental science and economics and environmental reporting. The operations divisions carried out licensing and audit; and contained beach watch and four directors with regional responsibilities. (28)

Soon after its establishment the EPA commenced a review of the legislation for which it was responsible. This review culminated in the passage of the Contaminated Land Management Act, 1997 (Act No.140, 1997) and the Protection of the Environment Operations Act, 1997 (Act No.156, 1997) which were both passed by Parliament late in 1997. The former Act set out the role of the Authority in the assessment of contamination and the supervision of the investigation, remediation and management of contaminated sites. (29) The latter act regulated environmental management generally and therefore repealed the Clean Air Act, 1961 (Act No.69, 1961), Clean Waters Act, 1970 (Act No.78, 1970), Environmental Offences and Penalties Act, 1989 (Act No.150, 1989), Noise Control Act, 1975 (Act No.35, 1975) and Pollution Control Act 1970 (Act No.95, 1970) and parts of many other acts. Under the new Act the EPA had the responsibility to prepare Protection of the Environment Policies (PEP’s). The policies were to consist of an environment protection goal, standard, guideline and protocol. (30) In preparing these statements the Authority was to consider: (a) environmental, economic and social impacts of the policy; (b) the ease, effectiveness and efficiency of implementing the policy (c) any existing environmental planning instruments; (d) any current national measures which may be applicable (e) the Intergovernmental Agreement on the Environment (f) regional differences with in NSW (31) The Authority was required to advertise its intension to prepare a PEP and to involve participation from interested public authorities, organisations, persons and the public. (32)

Both the Contaminated Land Management Act, 1997 (33) and the Protection of the Environment Operations Act, 1997 became operational on 1 July 1999 (34) involving the Authority in a huge implementation schedule.

Since taking responsibility for the administration of the Pesticides Act in 1995 the Department had engaged in a comprehensive review of the existing Act. The final stages in legislative development by the agency occurred in December 1999 when the Pesticides Act, 1999 (Act No.80, 1999) was passed by Parliament. The Act established a Pesticides Implementation Committee consisting of a chairman and up to 12 Committee members appointed because of their expertise in the fields of pesticides or environmental control. (35) The role of the Committee was to advise the Minister concerning the use, management and disposal of pesticides; strategies for the reduction of risks associated with the use or disposal of pesticides; and making regulations, pesticide control orders and codes of practice. The Committee was required to report to the Minister concerning the implementation of the Act by 1 July 2003. (36) The Act generally regulated the pesticide industry and its employees to provide a safer environment. Parts of the Act (including the establishment of the Implementation Committee) commenced on 24 December 1999. The Act became fully operational on 1 July 2000. (37)

The agency was restructured again by 30 June 2000. Each main program area was responsible to an assistant director general or an executive director. The program areas were as follows: Operations; Water and Air; Chemicals and Waste; Environmental Science; Economics and Environmental Reporting; Education and Community Programs; Finance and Administration; Legal Services and Strategic Services. (38)

The Environment Protection Authority was abolished as a Department (though not as a statutory authority) by Public Sector Employment and Management (Environment and Conservation) Order 2003. The functions of the former Department together with the former National Parks and Wildlife Service, and the Royal Botanic Gardens and Domain Trust were transferred to the newly-established Department of Environment and Conservation. The Director-General of the EPA became the Director General of the new Department. (39)

In 2003, the EPA was incorporated, with other environment-related agencies, into a new Department of Environment and Conservation, reflecting a shift in government priorities from pollution prevention to conservation. (40)

In 2011, a major pollution incident at Kooragang Island in Newcastle catalysed the NSW Government into re-prioritising pollution prevention and regulation. On 29 February 2012, the Environment Protection Authority was re-established. The Environment Protection Authority was to be governed by a Board and was not subject to the direction of the Minister in any of its functions. (41) The Board was to consist of 5 members, being: (a) the Chairperson, and (b) 4 part-time members appointed by the Governor on the recommendation of the Minister. Of the part-time members: (a) 1 was to have expertise in the area of environmental science, and (b) 1 was to have expertise in environmental law, and (c) 1 was to have expertise in corporate, financial and risk planning and management, and (d) 1 is to have expertise in business. (42)

The Board was also to oversee the effective, efficient and economical management of the Authority. The Board was, on an annual basis, to provide the Minister with a statement that contains or addresses the following matters: (a) an assessment of the success of the Authority in reducing risks to human health and in preventing the degradation of the environment and whether the level of environmental protection achieved by the Authority is satisfactory in comparison with other Australian jurisdictions, (b) an assessment of the performance by those industries regulated by the Authority in reducing risks to human health and in preventing the degradation of the environment, and the impact that those industries have on the environment, (c) recommendations for improving the Authority's performance, and the performance of the industries regulated by the Authority, in relation to the matters referred to in paragraphs (a) and (b), (d) such other matters as may be prescribed by the regulations. Further, the Minister must table a copy of the statement under this section in both Houses of Parliament within one month after the Minister receives it. (43)

The Board's composition was again amended from 4 March 2022 by the Environment Legislation Amendment Act 2022 (Act No.3, 2022). The Board was to consist of at least 5, but not more than 7 members, being (a) the Chairperson, and (b) the Chief Executive Officer, and (c) at least 3, but not more than 5, part-time members appointed by the Governor on the recommendation of the Minister. The Board was collectively to have skills and experience in (a) environmental science or engineering, (b) environmental law, (c) corporate, financial and risk planning and management, (d) business, (e) human health, (f) compliance and regulation, (g) Aboriginal cultural values, (h) other skills or experience determined by the Minister and published on the Authority's website. (44)

From 1 January 2024 the Department of Climate Change, Energy, the Environment and Water was established and the Environment line team in the Corporate Services Group were transferred from the Department of Planning and Environment to the Environment Protection Authority Staff Agency, and the Environment Protection Authority then reported to the Department of Climate Change, Energy, the Environment and Water. (45)

Endnotes
1. NSW Government Gazette No.176, 13 December, 1991, p.10527.
2. NSW Government Gazette No.26, 21 February 1992, p.1043.
3. Report of the Environment Protection Authority for the period 1 March 1992-30 June 1992, p.8.
4. Ibid. s.7 (1).
5. Ibid. s.8.
6. Ibid. s.9.
7. Ibid. s.10.
8. Ibid. s.11.
9. Ibid. s.12.
10. Ibid. s.13(1) and (2).
11. Ibid s.13(3).
12. Ibid s.18.
13. Ibid s.15.
14. Ibid s.17.
15. Ibid s.19.
16. Ibid. s.25.
17. Ibid. s.26.
18. Ibid. s.29.
19. Report of the Environment Protection Authority for the period 1 March 1992-30 June 1992, pp.6-7.
20. Report of the Environment Protection Authority for the year ended 30 June 2003, p.3.
21. Ibid., pp.12-14.
22. Annual Report of the Environment Protection Agency for the year ended 30 June 1993, p.13.
23. Ibid., p.28.
24. Report of the Environment Protection Authority for the year ended 30 June 1995, p.6.
25. NSW Government Gazette, 1 September 1995 No.105, pp.5694-5699.
26. Report of the Environment Protection Authority for the Year ended 30 June 1996, p.6.
27. Ibid.
28. Ibid., pp.7, 10-11.
29. Contaminated Land Management Act 1997 ss.6-10.
30. Protection of the Environment Operations Act 1997 ss.10-11.
31. Ibid. s.13.
32. Ibid. ss.15, 17-18.
33. NSW Government Gazette No.66, 4 June 1999, p.3774.
34. NSW Government Gazette, 24 December 1998, p.9952.
35. Pesticides Act 1999, s.67.
36. Ibid. s. 68.
37. NSW Government Gazette No.144, 24 December 1999, p.12189.
38. Environment Protection Authority annual report, 1999-2000, pp.8-9.
39. NSW Government Gazette No.152, 24 September 2003, pp.9506-9509.
40. NSW EPA website, https://www.epa.nsw.gov.au/about-us/our-organisation/about-nsw-epa (accessed 17 November 2022).
41. Ibid.; Protection of the Environment Administration Amendment Act 2011 (Act No.63, 2011), Sch. 1 [4] and [5]; Commencement Proclamation (2012 No 13), NSW Legislation Website, 29 February 2012.
42. Protection of the Environment Administration Act 1991, s.15 (as amended).
43. Ibid. s.16 (as amended).
44. Ibid. ss.15 and 16 (as amended by the Environmental Legislation Amendment Act 2022 (Act No.3, 2022), Sch.3 [8]).
45. Administrative Arrangements (Administrative Changes—Miscellaneous) Order (No 6) 2023 (2023 No 648) Sch.1 cl.21(3), NSW Legislation Website, 6 December 2023, amending Administrative Arrangements (58th Parliament) Order 2023, (2023 No 137), NSW Legislation Website, 5 April 2023.