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Bill 1995
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
(a)
to achieve by the end of 2000 a 60% reduction in the amount of waste
disposed of in New South Wales (being a per capita reduction based
on 1990 disposal rates), and
(b)
to establish a waste management hierarchy of the following order:
*
avoidance
*
re-use
*
recycling and reprocessing
*
disposal.
* Amended in committee--see table at end of volume.
The objects of this Bill are as follows:
to ensure that local government, industry and community
representatives are involved in the development of State wide waste
policy,
to minimise the consumption of natural resources and the final
disposal of waste by encouraging the reduction of waste and the
re-use and recycling of waste,
to ensure that industry shares with the community the responsibility
for minimising and managing waste,
to establish a framework for the regulation of waste facilities and
waste activities,
to promote and ensure the efficient resourcing of waste service
planning and delivery,
to achieve integrated waste planning and services on a regional basis,
to promote and ensure environmentally responsible transporting,
reprocessing and handling o f waste,
to provide appropriate sanctions for unlawful waste disposal.
This Bill replaces the limited licensing and regulatory scheme set out in the
Waste Disposal Act 1970 with a more extensive scheme applying throughout
the State. It also provides for the establishment of public authorities (called
Waste Planning and Management Boards) that will have the responsibility
for planning and managing waste services in certain regions. This Bill also
includes significant new measures designed to reduce the amount of waste
being created in New South Wales.
Preliminary
Part 1 (clauses 15) specifies the name and provides for the commencement
of the proposed Act, sets out the objects of the proposed Act, states that the
proposed Act binds the Crown, and defines certain terms used in the
proposed Act. The term waste has an inclusive meaning (eg it includes any
discarded, rejected, unwanted, surplus or abandoned substance, or any
substance prescribed by the regulations).
Explanatory note page 2
Part 2
State waste planning and policy
Part 2 (clauses 68) establishes the State Waste Advisory Council
("SWAC") for the purpose of ensuring cross-sectoral input in the
development and implementation of State waste planning and policy. SWAC
has the function of advising the Minister and the Environment Protection
Authority (the "EPA") on such matters as waste reduction priorities and the
need for legislative change.
Part 3
Regional waste planning and management
Part 3 (clauses 9-29) provides for the formation of waste management
regions, and for the constitution and functions of statutory corporations
known as Waste Boards. A waste management region is a region that will
comprise certain local government areas, but before a council's area is
included in a region, the council will have the opportunity to make
submissions as to the formation of the region. A council can also seek to be
excluded from a waste management region, but certain criteria must be met
if it is to be excluded.
Once a waste management region is formed, clause 13 provides for the
constitution of a Waste Board in respect of the region. A Waste Board will
have directors appointed by the Minister (a general manager and up to 8
persons nominated by the constituent councils). The directors are to manage
and control the affairs of the Waste Board, and the Minister can give the
directors written directions as to the functions of the Waste Board.
The functions of a Waste Board (clause 18) include establishing
management and charging policies for the waste services provided by the
constituent councils. A Waste Board can also enter into arrangements for the
carrying out of waste and recycling services in the region, and charge fees
for any of the services it provides. A Waste Board can also require
contributions from the constituent councils in order to finance the Waste
Board's arrangements.
A Waste Board must prepare and implement a regional waste plan approved
by the Minister (clause 19). The plan is to include proposed strategies and
targets for managing and reducing waste and an implementation program
identifying the action that is to be taken. A Waste Board must also report to
the Minister on the implementation of its plan. The constituent councils of
the waste management region must comply with the regional plan. Clause
23 provides that a Waste Board commits an offence if it fails to prepare a
regional waste plan or to implement its plan.
Explanatory note page 3
The rest of Part 3 is concerned with general provisions relating to Waste
Boards (eg employment of staff, power to delegate functions to constituent
councils, investment powers, and the requirement to keep money provided
by the government in a separate account). Clause 28 provides for the
removal of directors and for the appointment of an administrator to replace
the directors if the Waste Board has failed to do certain things (including
implementing its regional waste plan). A Waste Board may be dissolved by
an order by the Governor (clause 29).
Part 4
Industry waste reduction
Part 4 (clauses 30-43) provides for the preparation and implementation of
industry waste reduction plans ("IWRPs") and for other industry/producer
responsibility schemes. An IWRP is to be prepared and implemented by
certain industries and applies to the industry members (eg persons who
manufacture, import or sell products or items that create waste or result in
the creation of waste). An IWRP may set waste reduction targets and
provide that certain requirements must be met (clause 31).
The Minister will determine whether an IWRP is to be prepared, but an
industry can nominate itself for an IWRP (clause 32). The EPA must give
public notice that an IWRP is to be prepared, and it can require industry
members to provide certain information to the EPA (eg what the member has
done about waste management and reduction in the past) (clauses 3334).
The EPA then provides a report to the Minister on the scope of the proposed
IWRP (clause 35).
An IWRP is to be prepared either by the industry concerned based on a
negotiation process (clause 36) or by the EPA without negotiation (clause
37), and comes into force when it is approved by the Minister and notice of
approval is published in the Gazette (clause 38). The EPA can direct an
industry member to rectify the contravention by the member of an IWRP,
and it will be an offence not to comply with the direction (clause 39).
Part 4 also enables regulations to be made prohibiting or restricting the sale
of prescribed products in prescribed circumstances, and requiring the
implementation of recycling, re-use or take-back and utilisation schemes
(clauses 4043).
Explanatory note page 4
Part 5
Licences
Part 5 (clauses 4462) establishes a licensing scheme that will require
occupiers of waste facilities, persons who carry out waste generating or
handling activities and persons who transport waste to be licensed under the
proposed Act. The regulations will specify the waste facilities, waste
activities and types of waste affected by the licensing scheme.
The EPA may require an application for a licence to be accompanied by an
environmental management plan. The regulations may also provide for the
remittal, reduction and refunding of the prescribed application fee (clause
47). With respect to putrescible landfill sites, clause 48 provides special
licensing arrangements requiring a public authority to exercise control over
the facility in relation to environmental matters.
The EPA is to take certain matters into consideration in determining licence
applications (clause 49). Licences are in force for a period of one year and
may be renewed from time to time. The applicant may request a shorter
period, and the EPA may approve the transfer of licences (clause 50). The
EPA is required to maintain a register of licences that is to be made available
for public inspection. Clause 52 enables the EPA to revoke or suspend a
licence.
The EPA can grant licences subject to conditions or unconditionally and it
will be an offence to contravene the conditions of a licence (clauses 5354).
The conditions that may be imposed on a licence include the matters referred
to in clauses 5557, and the EPA can amend the conditions attached to a
licence.
Clause 59 requires the last licensee of a controlled waste facility to submit
to the EPA a post-closure plan for approval by the EPA. Such a plan is to
provide for such matters as a post-closure monitoring and maintenance
program.
Clauses 6062 authorise the EPA to require a controlled waste facility
licence holder to provide a financial assurance for the purpose of ensuring
that site remediation work is carried out either during or after the licence
period. A financial assurance can be imposed as a condition of the licence,
and it can be called on by the EPA if licence conditions relating to site
remediation work are contravened or if the EPA incurs costs in taking action
covered by the financial assurance.
Explanatory note page 5
Part 6
Waste disposal offences
Clause 63 prohibits a person from disposing of waste on land without lawful
authority. The owner of the waste also commits an offence unless the owner
can prove that the owner had no control over, and took reasonable
precautions to prevent, the disposal of the waste without lawful authority.
Clause 64 makes it an offence for the owner or occupier of land to cause,
permit or allow the land to be used as a waste facility without lawful
authority.
Part 7
Enforcement provisions
Part 7 (clauses 65-71) contains provisions enabling authorised officers to
give directions with respect to certain matters relating to waste and to
require information to be given, enabling the EPA to give directions to
occupiers of unlicensed waste facilities, enabling the EPA to require a person
to provide certain information about waste related matters, enabling the EPA
to inquire into and make a report and recommendation to the Minister on
matters relating to waste, and to require a person to provide information in
relation to such an inquiry and to attend before the EPA to give evidence,
and enabling authorised officers to conduct investigations, to enter waste
facilities and certain other premises, to make inquiries and to exercise certain
other powers. Clause 71 provides for the issue of search warrants
authorising the entry of certain premises for the purpose of investigating
alleged contraventions of the proposed Act.
Part 8
Financial provisions
Clause 72 requires the occupier of a controlled waste facility (other than a
facility used solely for the purposes of reprocessing waste) to pay the EPA a
contribution prescribed by the regulations in respect of the waste received at
the waste facility.
Clause 73 establishes the Waste Management and Planning Fund and
provides for how money in the Fund is to be allocated. Clause 74 enables
the EPA to invest the money in the Fund.
Part 9
Appeals and disputes
Part 9 (clauses 7578) provides for appeals to the Land and Environment
Court regarding licensing decisions by the EPA or notices to rectify
contraventions of industry waste reduction plans and for the resolution of
disputes between the EPA and public authorities with respect to licensing
decisions by the EPA.
Explanatory note page 6
Part 10 Miscellaneous
Part 10 (clauses 7990) contains provisions enabling the Minister to
delegate certain functions to the EPA, relating to the appointment of
authorised officers, providing for certificate evidence of certain matters
under the proposed Act, enabIing the EPA to charge for services supplied by
it under the proposed Act, providing for the service of notices to persons
under the proposed Act, prohibiting the making of false statements,
restricting a person from disclosing information obtained in connection with
the administration or execution of the proposed Act and enabling the
Governor to make regulations for the purposes of the proposed Act. The
remainder of Part 10 contains machinery provisions that give effect to
Schedule 5 (Savings and transitional provisions) and Schedule 6
(Amendment of Acts), repeal the regulations made under the Waste Disposal
Act 1970 and provide for the proposed Act to be reviewed by the Minister
after 5 years.
Schedule 1 contains provisions relating to the members and procedure of
the State Waste Advisory Council.
Schedule 2 will contain the descriptions of waste management regions
formed under Part 3 of the proposed Act.
Schedule 3 will contain the names of Waste Boards constituted under Part 3
of the proposed Act.
Schedule 4 contains provisions relating to the directors of a Waste Board.
Schedule 5 contains savings and transitional provisions, including a power
to make regulations of a savings and transitional nature consequent on the
enactment of the proposed Act.
Schedule 6 contains amendments to Acts that are mainly consequential on
the enactment of the proposed Act. The Acts to be amended consequentially
are the Clean Waters Act 1970, the Environmental Offences and Penalties
Act 1989 (the "EOP Act"), the Land and Environment Court Act 1979, the
Local Government Act 1993, the Pollution Control Act 1970, the Protection
of the Environment Administration Act 1991, the Public Finance and Audit
Act 1983 and the Search Warrants Act 1985.
Explanatory note page 7
The EOP Act is amended to provide that the penalty for offences arising
under the proposed Act will be a maximum of $125,000 for corporations and
$60,000 for individuals. However a number of offences specified in
Schedule 2 to the EOP Act will provide for a lower penalty, and some can
be dealt with by way of penalty notices. The EOP Act is also amended to
provide that the new offences relating to unlicensed waste facilities,
unlicensed waste activities, disposal of waste without lawful authority and
allowing land to be used as a waste facility without lawful authority may be
commenced not later than 3 years after the date of the alleged offence (for
other offences the period is 12 months).
The Waste Disposal Act 1970 (to be renamed the Waste Recycling and
Processing Service Act 1970) is substantially amended as a result of the
regulatory controls being replaced by the proposed Act. That Act will now
only deal with the constitution, functions and operations of the Waste
Recycling and Processing Service ("WRAPS"). The amendments make it
clear that WRAPS can undertake commercial activities in relation to waste.
The provisions constituting the Metropolitan Waste Disposal Region are
repealed, as are the provisions relating to the high temperature waste
incineration facility.
Explanatory note page 8