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Contents (1997 - 156)
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Protection of the Environment Operations Act 1997 No 156
Current version for 20 December 2019 to date (accessed 23 February 2020 at 23:09)
Chapter 4 Part 4.3
Part 4.3 Prevention notices
95   Meaning of environmentally unsatisfactory manner
For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if—
(a)  it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or
(b)  it causes, or is likely to cause, a pollution incident, or
(c)  it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or
(d)  it is not carried on in accordance with good environmental practice.
96   Preventive action
(1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises).
(2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following—
(a)  direct the occupier of the premises,
(b)  direct the person carrying on the activity (whether or not at premises),
to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.
(3) Examples The action to be taken may (without limitation) include any of the following—
(a)  installing, repairing, altering, replacing, maintaining or operating control equipment or other plant,
(b)  modifying, or carrying out any work on, plant,
(c)  ceasing to use plant or altering the way plant is used,
(d)  ceasing to carry on or not commencing to carry on an activity,
(e)  carrying on an activity in a particular manner,
(f)  carrying on an activity only during particular times,
(g)  monitoring, sampling or analysing any pollution or otherwise ascertaining the nature and extent of pollution or the risk of pollution,
(h)  action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance,
(i)  preparing and carrying out a plan of action to control, prevent or minimise pollution or waste,
(j)  reviewing the carrying out of an activity.
(3A) Water pollution considerations The appropriate regulatory authority, when determining the action to be specified in a notice relating to an activity that causes, is likely to cause or has caused water pollution, must consider—
(a)  the environmental values of water affected by the activity, and
(b)  the practical measures that could be taken to restore or maintain those environmental values, and
(c)  if the appropriate regulatory authority is not the EPA—any guidelines issued by the EPA to the authority relating to the exercise of functions under this section.
(4) Occupier’s duty If the occupier who is given a notice is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the action to be taken.
(5) Reports A prevention notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on carrying out the action required to be taken by the notice.
97   Offence
A person who does not comply with a prevention notice given to the person is guilty of an offence.
Maximum penalty—
(a)  in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b)  in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
Note.
 An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.
98   Action in event of failure to comply
If a person does not comply with a prevention notice given to the person, the appropriate regulatory authority may take action to cause the notice to be complied with by itself or by its employees, agents or contractors.
99   Commencement of operation of prevention notices or variations
(1)  A prevention notice, or a variation of a prevention notice, operates from the day the notice or notice of the variation is given or from such later day as the notice specifies.
(2)  If an appeal is made against a prevention notice or the variation of a prevention notice and the Land and Environment Court directs that the notice is stayed, the notice or variation does not operate until the stay ceases to have effect or the Land and Environment Court confirms the notice or the appeal is withdrawn, whichever first occurs.
100   Fee
(1)  The purpose of this section is to enable a regulatory authority to recover the administrative costs of preparing and giving prevention notices.
(2)  A person who is given a prevention notice by a regulatory authority must within 30 days pay the prescribed fee to the authority.
(3)  The regulatory authority may—
(a)  extend the time for payment of the fee, on the application of a person to whom subsection (2) applies, or
(b)  waive payment of the whole or any part of the fee, on the authority’s own initiative or on the application of a person to whom subsection (2) applies.
(4)  The fee is not payable during the currency of an appeal against the prevention notice.
(5)  If the decision of the Court on an appeal does not invalidate the prevention notice, the fee is payable within 30 days of the decision.
(6)  A person who does not pay the fee within the time provided under this section is guilty of an offence.
Maximum penalty—200 penalty units.
Note.
 Section 110 (5) provides that a fee is not payable for the variation of an environment protection notice under this Chapter.