Protection of the Environment Operations (General) Regulation 2009
Current version for 1 November 2014 to date (accessed 22 December 2014 at 13:46)
Chapter 2Part 1Division 4

Division 4 Load reduction agreements and fee reductions

25   Definitions

In this Division:

annual return, in relation to a licence fee period, means the annual return that is required to be furnished to the EPA, under the licence concerned, in relation to that period.

reported load means:

(a)  the actual load of an assessable pollutant discharged during a licence fee period that is reported to the EPA by the licence holder in the annual return relating to that period, or
(b)  if a weighted load of the assessable pollutant is reported to the EPA by the licence holder in the annual return—the weighted load.

26   Effect and term of load reduction agreement

(1)  The effect of a load reduction agreement is that the agreed load under the agreement may be treated (subject to this Division) as the assessable load of the pollutant to which the agreement applies for the purposes of calculating load-based fees for each of the licence fee periods covered by the agreement.
(2)  The maximum term of a load reduction agreement is 4 years.

27   Applications for load reduction agreements

(1)  A licence holder or applicant for a licence may apply for a load reduction agreement with the EPA in a form approved by the EPA.
(2)  The EPA may enter into or decline to enter into a load reduction agreement.
(3)  Without limiting the circumstances in which the EPA may decline to enter into a load reduction agreement, it may do so if:
(a)  the agreement is unlikely to produce a load-based fee reduction of at least $2,000 over the term of the agreement, or
(b)  the licence holder or applicant proposes to reduce the discharge under the licence by the end of the agreement only because the licence holder or applicant proposes to close or reduce the scale of operations being conducted at that time.

28   Content of load reduction agreements

(1)  A load reduction agreement must:
(a)  specify the agreed load of an assessable pollutant for the purposes of calculating the load-based fee for each licence fee period covered by the agreement, and
(b)  specify the program proposed to be undertaken in order to attain the agreed load, and
(c)  set out the circumstances in which amounts are to be paid to the EPA on termination or expiry of the agreement, and
(d)  include conditions requiring:
(i)  the licence holder to provide the EPA, with each annual return required under the licence, a report on progress towards attainment of the agreed load during the period to which the annual return relates, and
(ii)  the licence holder to notify the EPA if the licence holder becomes aware that it is likely that the licence holder will not be able to attain the agreed load.
(2)  A load reduction agreement may also include a condition requiring the licence holder to supply a financial assurance to the EPA to secure obligations in the event of termination or expiration of the agreement.
(3)  Any such condition must provide for the following matters:
(a)  the circumstances in which the EPA may make a claim on or realise the financial assurance or part of it,
(b)  that the calling on and use of a financial assurance does not affect any liability of the licence holder,
(c)  the effect of failure to provide a financial assurance.
(4)  A financial assurance may be in one or more of the following forms:
(a)  a bank guarantee,
(b)  a bond,
(c)  any other form of security that the EPA considers appropriate and specifies in the load reduction agreement.

29   Amendment of load reduction agreement

The provisions of a load reduction agreement may be amended only with the consent of both the EPA and the person who has entered into the agreement (or, in the case of a licence that is transferred, the transferee).

30   Agreement of no effect without condition in licence

A load reduction agreement has no effect unless the licence holder’s licence is subject to a condition that, on termination or expiration of the agreement, the reported load of an assessable pollutant, to which the agreement applies, that may be emitted during licence fee periods subsequent to the final licence fee period covered by the agreement is not to exceed:
(a)  the agreed load under the agreement if the reported load for the pollutant for the licence fee period immediately preceding the termination or expiration did not exceed the agreed load, or
(b)  an amount determined by the EPA, after consultation with the licence holder, that is higher than the agreed load if the reported load for that period exceeded the agreed load.

31   Termination of agreement

(1)  Before the end of the term of a load reduction agreement, the licence holder may terminate the agreement in accordance with the agreement.
(2)  If a licence is surrendered by the licence holder or suspended or revoked, the licence holder is taken to have terminated any load reduction agreement relating to licence fees for the licence.
(3)  If, prior to the expiration of a load-based agreement, the licence holder has closed its operations or has otherwise ceased to operate, the licence holder is taken to have terminated the agreement.
(4)  The EPA may terminate a load reduction agreement if:
(a)  the EPA is of the opinion that the licence holder is unlikely to attain the agreed load before the end of the agreement, or that the licence holder is unlikely to meet the costs of repayment on termination or expiration of the agreement, or both, or
(b)  the licence holder fails to comply with a condition of the agreement.

32   Amounts payable on termination or expiration

(1)  A licence holder who is party to a load reduction agreement that expires or is terminated:
(a)  is not liable to pay an amount on expiry or termination in respect of an assessable pollutant if the reported load for the immediately preceding licence fee period did not exceed the agreed load for the pollutant under the agreement, or
(b)  must pay to the EPA the amounts calculated in accordance with this clause if the reported load for the immediately preceding licence fee period exceeded the agreed load for the pollutant under the agreement.
(2)  The amounts payable on termination or expiration are as follows:
(a)  for any licence fee period during the agreement in which the reported load exceeded the agreed load, the difference between the fee that would have been payable for that period if the load had been equal to the agreed load under the agreement and the fee that would have been payable for that period but for the agreement,
(b)  for any licence fee period during the agreement in which the reported load for the pollutant did not exceed the agreed load, no amount is payable,
(c)  the amount of simple interest on an amount payable under this subclause calculated at the rate of 20 per cent per annum from the date that is 60 days after the end of each licence fee period concerned.
(3)  Subclause (1) does not apply with respect to a load reduction agreement entered into before the commencement of this Regulation.
Note. In relation to load reduction agreements entered into before the commencement of this Regulation, see clause 7 of Schedule 8.

33   When amounts must be paid

(1)  An amount payable on termination or expiration of a load reduction agreement must be paid not later than 60 days after a notice requiring payment of the amount is given to the licence holder by the EPA.
(2)  If an amount is not paid (or not fully paid) by the due date for its payment, the amount is to be increased by the amount of simple interest calculated at the rate of 5 per cent per fortnight on the amount unpaid for each whole fortnight that elapses after the due date and before the date of payment.

34   Payment by instalments

(1)  A person by whom an amount is payable on termination or expiration of a load reduction agreement may apply to the EPA for approval to pay the amount by instalments.
(2)  If the EPA grants approval, the amount is to be paid in such amounts and on such dates as the EPA specifies in the approval.
(3)  If an instalment is not paid (or not fully paid) by the due date for its payment, an amount of simple interest (calculated at the rate of 5 per cent per fortnight on the amount of the instalment unpaid for each whole fortnight that elapses after the due date and before the date of payment) is to paid in addition to the instalment.

35   Effect of transfer of licences on load reduction agreements

(1)  If a person who has entered into a load reduction agreement transfers the relevant licence, the transferee is, for the purposes of the agreement and this Regulation, taken to be a person who has entered into the agreement with the EPA.
(2)  A transferee may elect, on the transfer of the licence, to terminate the load reduction agreement and this Division applies to that termination.
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