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Contents (2009 - 211)
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Protection of the Environment Operations (General) Regulation 2009
Current version for 1 September 2019 to date (accessed 21 September 2019 at 14:32)
Chapter 2
Chapter 2 Environment protection licences
Part 1 Licence fees
Division 1 Preliminary
4   Definitions
In this Part and Schedule 1—
actual load, in relation to an assessable pollutant, means the actual load of the pollutant determined in accordance with clause 15 (1) and (2).
administrative fee, in relation to a licence, means the administrative fee determined in accordance with Division 2, that is payable as part of the annual fee for the licence.
administrative fee unit means the administrative fee unit for a licence period determined in accordance with clause 9.
agreed load, in relation to an assessable pollutant means the load specified under a load reduction agreement as the maximum load that will be discharged during the final licence fee period for the licence that is covered by the agreement.
air pollutant means a pollutant specified as an air pollutant in a Table in Part 2 of Schedule 2.
assessable pollutant means an air pollutant or water pollutant specified in relation to an activity in Schedule 1.
environmental management calculation protocol—see clause 10A.
licence fee period—see clause 5.
load, in relation to an assessable pollutant, means the mass or quantity of the pollutant.
load-based fee, in relation to a licence, means the load-based fee, determined in accordance with Division 3, that is payable as part of the annual fee for the licence.
load calculation protocol means a protocol to be applied in the calculation of load-based fees, as in force under clause 21.
load reduction agreement means an agreement, entered into under Division 4, in which a licence holder agrees that the reported load of an assessable pollutant discharged in the course of carrying out an activity to which the licence applies will not exceed a specified load during the final licence fee period for the licence that is covered by the agreement.
Step, in relation to the calculation of a load-based fee, means a step set out in clause 16.
summer period, in relation to a licence fee period for a licence, means all the days during the licence fee period that occur during the months of December, January and February.
Sydney basin area means the local government areas of Ashfield, Auburn, Bankstown City, Blacktown City, Botany Bay City, Burwood, Camden, Campbelltown City, Canada Bay, Canterbury City, Fairfield City, Hawkesbury City, Holroyd City, Hornsby, Hunter’s Hill, Hurstville City, Kogarah, Ku-ring-gai, Lane Cove, Leichhardt, Liverpool City, Manly, Marrickville, Mosman, North Sydney, Parramatta City, Penrith City, Pittwater, Randwick City, Rockdale City, Ryde City, Strathfield, Sutherland Shire, City of Sydney, The Hills Shire, Warringah, Waverley, Willoughby City and Woollahra.
water pollutant means a pollutant specified as a water pollutant in a Table in Part 2 of Schedule 2.
weighted load, of an assessable pollutant is the actual load of the pollutant, adjusted in accordance with an applicable load calculation protocol.
5   Licence fee period
(1)  Each period of 12 months (commencing from the issue of a licence) is a licence fee period for a licence.
(2)  However, a licence fee period comes to an end if the licence ceases to be in force (but not if the licence is suspended).
(3)  A licence fee period is not affected by any transfer of the licence.
6   Changes in licence fee period
(1)  The EPA may, by notice in writing given to the licence holder, change a licence fee period for a licence to provide common licence fee periods for different licences held by the same person or for other good cause. The notice has effect according to its tenor.
(2)  The EPA may change a licence fee period on the application of the licence holder or on its own initiative. The EPA may decline to deal with an application unless the licence holder pays the EPA such reasonable fee as the EPA determines for dealing with the application.
(3)  If a licence fee period is changed under this clause, the total of the licence fees for the licence in respect of all the periods affected by the change is, despite anything to the contrary in this Regulation, the same as it would have been if the change had not been made.
(4)  The EPA is, because of subclause (3), to make any refunds in respect of fees already paid or require payment of any additional amount of fees for relevant licence fee periods.
(5)  Any such additional amount is to be paid by the licence holder to the EPA not later than 60 days after notice is given of the change in licence fee periods under this clause.
(6)  The provisions of Division 5 relating to the payment of interest on unpaid fees applies to any such additional amount.
7   Annual licence fee
(1)  For the purposes of section 57 (1) of the Act, the annual licence fee payable by a licence holder is payable in respect of each licence fee period for the licence and comprises—
(a)  the administrative fee for the licence, and
(b)  the load-based fee (if any) for the licence.
(2)  Despite subclause (1)—
(a)  an administrative fee is only payable as part of the annual licence fee in respect of the second and subsequent licence fee periods for a licence, and
(b)  the annual fee for a supervisory licence referred to in section 87 of the Act comprises only the administrative fee for the licence.
Note.
 The administrative fee comprised in an annual licence fee is payable within 120 days after the beginning of the licence fee period to which it relates. The load-based fee comprised in an annual licence fee is payable within 120 days after the end of the licence fee period to which it relates. (See Division 5.)
Division 2 Administrative fees
8   Administrative fee must accompany application
For the purposes of section 53 (2) (c) of the Act, the fee that must accompany an application for the issue of a licence is the administrative fee for the licence.
9   Amount of administrative fee unit
(1)  An administrative fee unit for a licence fee period that begins on a date in any of the following periods is the amount specified in respect of that period—
(a)  before 1 July 2009—$100,
(b)  on or after 1 July 2009 and before 1 July 2010—$105,
(c)  on or after 1 July 2010 and before 1 July 2011—$108,
(d)  on or after 1 July 2011 and before 1 July 2012—$110,
(e)  on or after 1 July 2012 and before 1 July 2014—$113,
(f)  on or after 1 July 2014 and before 1 July 2015—$119,
(g)  on or after 1 July 2015 and before 1 July 2016—$122,
(h)  on or after 1 July 2016 and before 1 July 2017—$125,
(i)  on or after 1 July 2017 and before 1 July 2018—$129,
(j)  on or after 1 July 2018 and before 1 July 2019—$133,
(k)  on or after 1 July 2019 and before 1 July 2020—$136,
(l)  on or after 1 July 2020 and before 1 July 2021—$139,
(m)  on or after 1 July 2021 and before 1 July 2022—$143,
(n)  on or after 1 July 2022 and before 1 July 2023—$146,
(o)  on or after 1 July 2023—$150.
(2)  For the purposes of calculating the administrative fee that must accompany an application for the issue of a licence, the period during which the licence fee period begins is taken to be the date on which the application is made.
10   Calculating amount of administrative fee
(1)  The steps to determine the administrative fee comprised in an annual licence fee are as follows—
Step 1 (Calculation of administrative fee units)
Multiply the amount of one administrative fee unit for the relevant licence fee period by—
(a)  the number of administrative fee units specified in Schedule 1 for the activity authorised or controlled by the licence, or
(b)  if the licence authorises or controls more than one activity, the greatest number of administrative fee units specified in Schedule 1 for any one of those activities.
Step 2 (Determination of environmental management category)
Determine the environmental management category for the licence holder in accordance with the environmental management calculation protocol.
Step 3 (Calculation of administrative fee)
Multiply the amount calculated in accordance with step 1 by the environmental management factor specified in Column 2 of the Table to this clause for the applicable environmental management category specified in Column 1 of that Table.
(2)  Steps 2 and 3 do not apply for the purpose of—
(a)  calculating the administrative fee for a licence fee period that commences before 1 July 2016, or
(b)  calculating the administrative fee for a licence relating to an activity that is declared by clause 48 of Schedule 1 to the Act to be a scheduled activity, or
(c)  calculating the administrative fee that is to accompany an application for a licence relating to premises, if the applicant has not previously held a licence relating to those premises.
Table
Column 1
Column 2
Environmental management category
Environmental management factor
A
0.95
B
1.0
C
1.3
D
1.6
E
2.0
10A   Environmental management calculation protocol
(1)  For the purpose of this Division, the EPA is to issue (and may from time to time vary) a protocol to be applied in the determination of environmental management categories for licence holders (an environmental management calculation protocol) by notice published in the Gazette.
(2)  An environmental management calculation protocol is to provide for the determination of environmental management categories by reference to such matters relating to the licence holder’s performance in managing environmental risks as may be specified in the protocol.
(3)  An environmental management calculation protocol takes effect from the date specified in the protocol and from that date any previous protocol ceases to have effect.
(4)  Any environmental management calculation protocol in force under this clause must be made available on the EPA’s website.
10B   Determination of environmental management category—insufficient information provided
(1)  If insufficient information is given to the EPA by a licence holder for the EPA to determine the correct environmental management category for the licence holder within 60 days after the beginning of the relevant licence fee period, the EPA may determine the environmental management category (and the resulting amount of the administrative fee) having regard to such information, if any, as is available to it.
Note.
 A licence holder is required to report this information to the EPA in the annual return, required to be furnished as a condition of the licence, in relation to the licence holder’s performance in managing environmental risks during a licence fee period.
(2)  The amount of the administrative fee so determined is taken to be the correct fee amount unless the contrary is established by the person who is liable to pay the fee in any proceedings for the recovery of the fee or other proceedings relating to the fee.
10C   Change in environmental management category—adjustment of administrative fee
(1)  This clause applies if, at any time during a licence fee period, the EPA receives from the licence holder information that would have resulted in the determination of a different environmental management category for the licence holder had the information been received before the determination was made.
(2)  The EPA may redetermine the environmental management category for the licence holder on the basis of the information provided.
(3)  The administrative fee for the licence fee period is to be adjusted according to the redetermined environmental management category and the adjusted fee (and redetermined category) is to be notified to the licence holder in accordance with section 57 (3) of the Act.
(4)  Any additional amount of any fee adjusted under this clause is to be paid by the licence holder to the EPA not later than 60 days after the environmental management category is redetermined.
(5)  The provisions of Division 5 relating to the payment of interest on unpaid administrative fees apply to any additional amount of any fee adjusted under this clause.
11   Refunds if application refused or withdrawn
(1)  The EPA may refund the payment of all or any part of an administrative fee that accompanies an application for the issue of a licence if the EPA refuses the application or the application is withdrawn.
(2)  The EPA may grant a refund on its own initiative or if a request is made by the applicant within 90 days after the applicant is notified of the refusal or the EPA is notified of the withdrawal, as the case may be.
(3)  The EPA is not to consider a request for a refund made after the time specified in subclause (2) unless the EPA is satisfied that there are exceptional circumstances that justify it doing so.
(4)  In considering whether to refund all or part of a fee, the EPA is to have regard to the administrative costs incurred by the EPA in connection with the application.
12   Refunds and waivers—licence holders
(1)  The EPA may do any one or more of the following if it considers that it is appropriate to do so—
(a)  refund the payment of all or any part of an administrative fee comprised in an annual licence fee,
(b)  refund the difference between the administrative fee paid and any lesser amount that would have been payable if the administrative fee had been calculated on the actual level of the activity during the licence fee period to which the fee relates,
(b1)  refund the difference between the administrative fee paid and any lesser amount payable as a result of an adjustment under clause 10C,
(c)  on approval of an application under section 80 of the Act for surrender of a licence, waive the payment of all or any part of an administrative fee comprised in an annual licence fee for the licence concerned.
(2)  The EPA may grant a refund, or waive payment under subclause (1) on its own initiative or if requested by the licence holder within 90 days after the end of the licence fee period to which the fee relates.
(3)  The EPA is not to consider a request for a refund made after the time specified in subclause (2) unless the EPA is satisfied that there are exceptional circumstances that justify it doing so.
(4)  In considering whether to refund or waive all or part of an administrative fee, the EPA is to have regard to the administrative costs incurred by the EPA in connection with the licence.
Division 3 Load-based fees
13   Objects of load-based licensing scheme
The objects of the load-based licensing scheme are as follows—
(a)  to provide incentives to reduce the load of pollutants emitted based on the polluter pays principle and to do so within an equitable framework,
(b)  to reduce pollution (in particular, assessable pollutants) in a cost effective and timely manner,
(c)  to give industry incentives for ongoing improvements in environmental performance and the adoption of cleaner technologies,
(d)  to provide incentives that are complementary to existing regulation and education programs for environment protection.
14   Circumstances in which no load-based fee payable
There is no load-based fee payable as part of the annual fee for a licence if Schedule 1 specifies, in relation to each activity controlled or authorised by the licence, that there is no load-based fee for the activity.
15   Requirement to calculate and record actual load
(1)  To calculate the actual load of an assessable pollutant, the licence holder must use one of the methods provided for the activity in a load calculation protocol.
(2)  If there is no such protocol, or if no method is provided for the activity, the licence holder must take the actual load for each assessable pollutant to be zero.
(3)  A licence holder must, for each assessable pollutant for each activity controlled or authorised by the licence, calculate and record the actual load of the pollutant discharged as a result of the carrying out of the activity.
(4)  A licence holder must also calculate and record the actual load for nitrogen oxides and VOCs discharged in the Sydney basin area, during the summer period of each licence fee period, for each activity controlled or authorised by the licence, but only if the particular pollutant is an assessable pollutant in relation to the activity.
(5)  Subclauses (3) and (4) apply whether or not the pollutants referred to in those subclauses were discharged in accordance with the licence and whether or not the licence holder intends to use a weighted load or an agreed load for the purposes of calculating the load-based fee in respect of the licence.
(6)  The licence holder must carry out all necessary monitoring and other steps to enable the calculations of actual loads required by this clause to be made for each licence fee period and for each summer period (as the case may be).
16   Calculation of load-based fee
(1)  The steps to determine any load-based fee comprised in an annual licence fee for a licence are as follows—
Step 1
Refer to Schedule 1 to determine the classification or classifications of the activity authorised or controlled by the licence during the relevant licence fee period and the assessable pollutants specified in relation to each such classification.
Step 2
Determine the assessable load of each assessable pollutant discharged during the relevant licence fee period.
Step 3
Calculate the fee rate thresholds for each assessable pollutant discharged during the licence fee period.
Step 4
Calculate the fee for each assessable pollutant discharged during the licence fee period.
Step 5
Total the fees for each assessable pollutant.
Step 6
If nitrogen oxides or VOCs—
(i)  are discharged in the Sydney basin area during the summer period of the licence fee period, and
(ii)  are assessable pollutants for the classification or classifications of the activity concerned,
re-apply Steps 2–4 with respect to those pollutants and add the resulting amount to the amount calculated under Step 5.
Note.
 Any discharge of nitrogen oxides or VOCs in the Sydney basin area during the summer period of the licence fee period is to be counted twice. First, as part of the discharge for the whole licence fee period and then in its own right.
Step 7
Subtract the amount of the administrative fee for the licence fee period (other than the amount of any increase in the administrative fee as a penalty for the late payment of the fee).
(2)  A load-based fee is taken to be zero, if the fee, when calculated in accordance with this Regulation, is less than zero.
17   Determining the assessable load—Step 2 of load-based fee calculation
(1)  For the purposes of calculating the load-based fee, the assessable load of each assessable pollutant is whichever of the following is the least—
(a)  the actual load of the pollutant,
(b)  the weighted load of the pollutant,
(c)  if an agreed load under a load reduction agreement applies in respect of the pollutant, the agreed load of the pollutant.
(2)  If more than one classification in Schedule 1 applies to the activity, the assessable load of each assessable pollutant is the sum of the assessable loads of that assessable pollutant for each applicable classification.
18   Fee rate thresholds—Step 3 of load-based fee calculation
(1)  To calculate the fee rate threshold for each assessable pollutant discharged during a licence fee period for a licence, multiply the applicable threshold factor for the pollutant from Schedule 1 by the quantity of activity during the licence fee period (using the units of measure specified in relation to the activity in Schedule 1).
Note.
 For example, if ceramic production produced 20,000 tonnes of bricks, to calculate the fee rate threshold for fluoride, it would be necessary to multiply 0.12 (the threshold factor shown for that activity in Schedule 1) by 20,000 (as the units of measure for ceramic production shown in Schedule 1 is tonnes) giving a result of 2,400 kilograms.
(2)  If the activity has more than one classification in Schedule 1, the fee rate threshold for each assessable pollutant is the sum of the fee rate thresholds for each of those classifications.
19   Calculating the fee for each assessable pollutant—Step 4 of load-based fee calculation
(1)  To calculate the fee for each assessable pollutant discharged during the licence fee period—
(a)  use the formula set out in subclause (2) (Formula 1) if the assessable load is greater than the fee rate threshold, or
(b)  in any other case use the formula set out in subclause (3) (Formula 2).
(2) Formula 1
 
(3) Formula 2
 
(4)  In formulae 1 and 2—
AL is the assessable load of the assessable pollutant discharged, expressed in kilograms.
CZ is the pollutant critical zone weighting for the assessable pollutant determined in accordance with subclauses (5) and (6).
FRT is the fee rate threshold for the assessable pollutant, expressed in kilograms.
PFU is the pollutant fee unit amount for the licence fee period as specified in subclause (7).
PW is the pollutant weighting for the assessable pollutant determined in accordance with subclause (8).
(5)  The pollutant critical zone weightings are as follows—
(a)  for a pollutant shown in Column 1 of a Table in Part 1 of Schedule 2 that is discharged into a zone shown in Column 2 of the Table opposite the pollutant—the weighting specified in Column 3 of the Table opposite the pollutant,
(b)  in all other circumstances—1.
(6)  If a licence authorises or controls the discharge of a pollutant into more than one critical zone, the critical zone weighting factor for the pollutant is the factor applicable to the zone into which the majority of the pollutant is discharged.
(7)  A pollutant fee unit for a licence fee period that begins on a date in any of the following periods is the amount specified in respect of that period—
(a)  before 1 July 2009—$38.61,
(b)  on or after 1 July 2009 and before 1 July 2010—$39.58,
(c)  on or after 1 July 2010 and before 1 July 2011—$40.57,
(d)  on or after 1 July 2011 and before 1 July 2012—$41.58,
(e)  on or after 1 July 2012 and before 1 July 2014—$42.62,
(f)  on or after 1 July 2014 and before 1 July 2015—$44.78,
(g)  on or after 1 July 2015 and before 1 July 2016—$45.90,
(h)  on or after 1 July 2016 and before 1 July 2017—$47.05,
(i)  on or after 1 July 2017 and before 1 July 2018—$48.23,
(j)  on or after 1 July 2018 and before 1 July 2019—$49.44,
(k)  on or after 1 July 2019 and before 1 July 2020—$50.48,
(l)  on or after 1 July 2020 and before 1 July 2021—$51.54,
(m)  on or after 1 July 2021 and before 1 July 2022—$52.62,
(n)  on or after 1 July 2022 and before 1 July 2023—$53.73,
(o)  on or after 1 July 2023—$54.85.
(8)  The pollutant weightings for—
(a)  an air pollutant shown in a Column 1 of Table 1 in Part 2 of Schedule 2 is the weighting specified opposite the pollutant in Column 3 of the Table, or
(b)  a water pollutant shown in a Column 1 of Table 2 in Part 2 of Schedule 2 is the weighting specified opposite the pollutant in—
(i)  Column 3 if the pollutant is discharged into enclosed waters, or
(ii)  Column 4 if the pollutant is discharged into estuarine waters, or
(iii)  Column 5 if the pollutant is discharged into open coastal waters.
(9)  In this clause and Schedule 2—
enclosed waters means all waters other than open coastal waters or estuarine waters.
estuarine waters means waters (other than open coastal waters)—
(a)  that are ordinarily subject to tidal influence, and
(b)  that have a mean tidal range greater than 0.8 metres (being the average difference between the mean high water mark and the mean low water mark over the course of a year).
open coastal waters has the meaning given by Schedule 3.
20   Nitrogen oxides or VOCs discharged in Sydney basin area in summer—Step 6 of load-based fee calculation
For the purpose of any calculation required to be carried out under Step 6 of the load-based fee calculation—
(a)  a reference to the quantity of activity during the licence fee period is to be read as a reference to the quantity of activity during the summer period of the licence fee period, and
(b)  a reference to an assessable pollutant discharged during a licence fee period is to be read as a reference to nitrogen oxides or VOCs discharged during the summer period of the licence fee period, and
(c)  the pollutant critical zone weightings for nitrogen oxides or VOCs discharged during that period is 28.
21   Load calculation protocol
(1)  For the purpose of this Division, the EPA may from time to time issue or vary a protocol to be applied in the calculation of load-based fees (load calculation protocol) by notice published in the Gazette.
(2)  Without limiting the matters that may be dealt with in a load calculation protocol, a load calculation protocol may do any of the following—
(a)  set out the means for calculating actual loads and weighted loads, including by the use of monitoring programs, emission factors and other methods,
(b)  provide for load weighting measures, such as—
(i)  ceasing or reducing discharges during particularly unfavourable conditions, and
(ii)  reusing waste water (whether by the licence holder or another person),
(c)  provide for a reduction in the actual load of a licence holder, for the purpose of the calculation of load-based fees—
(i)  where any assessable pollutants are transferred, without being discharged, from the licence holder’s premises to another person’s premises with the consent of the other person, or
(ii)  where a licence holder receives onto the licence holder’s premises naturally occurring loads of assessable pollutants,
(d)  provide for any reduction in the actual load of a licence holder, for the purpose of the calculation of a load-based fee, arising from the transfer of assessable pollutants to another person’s premises to be subject to arrangements for the payment by that other person to the EPA of the amount of any reduction in the load-based fee payable by the licence holder as a result of the transfer,
(e)  provide for a reduction in the actual load of a licence holder, for the purpose of the calculation of a load-based fee, by permitting a notional reduction of the amount of an assessable pollutant discharged in a licence fee period by reference to a reduction in the discharge of that pollutant (elsewhere than at the premises where the activity is carried on) as a result of action taken by the licence holder in connection with that activity.
Note.
 An example of such a reduction may relate to the emission of VOCs by a petroleum refinery. In addition to action to reduce those emissions from the refinery, action can be taken to produce fuel that will emit less VOCs when in use off the premises of the refinery and this could be taken into account for the purposes of the reduction.
(3)  A load calculation protocol takes effect in relation to an activity from the date specified in the protocol and from that date any previous protocol in relation to the activity ceases to have effect.
(4)  A copy of any load calculation protocol in force under this clause must be available for inspection and purchase by members of the public at the principal office of the EPA. The purchase price may be any reasonable amount that the EPA determines.
22   Determination of load-based fee—insufficient information provided
(1)  If insufficient information is given to the EPA by a licence holder for the EPA to be able to confirm the correct amount of a load-based fee within 60 days after the end of the relevant licence fee period, the EPA may determine the amount of the load-based fee having regard to such information, if any, as is available to it.
Note.
 A licence holder is required to report this information to the EPA in the annual return, required to be furnished as a condition of the licence, in relation to the discharge of assessable pollutants during a licence fee period.
(2)  The amount so determined is taken to be the correct fee amount unless the contrary is established by the person who is liable to pay the fee in any proceedings for the recovery of the fee or other proceedings relating to the fee.
23   Aggregation of licences—“bubble licence arrangements”
(1)  This clause applies to a scheme involving economic measures of the kind referred to in this clause that is developed and implemented by the EPA under Part 9.3 of the Act.
(2)  The EPA may, under a scheme to which this clause applies, approve of load-based fees payable for 2 or more licences (whether or not held by the same person) being calculated by aggregating the assessable pollutants discharged in the licence fee periods concerned.
(3)  The EPA may terminate any such scheme at any time, whether because of a failure by the licence holders to pay the load-based fees or otherwise. If it does so, the load-based fees for the relevant licence fee periods are to be re-calculated and become payable for those periods as if the scheme had not been established.
(4)  This clause has effect subject to the terms of the scheme.
(5)  This clause does not limit any other scheme that may be developed and implemented under Part 9.3 of the Act.
24   Refunds—errors in calculations
(1)  If a person, in payment of a load-based fee, pays an amount that is greater than the load-based fee because of an error in calculation of an assessable load, the person is entitled to a refund of the amount overpaid.
(2)  The EPA may grant a refund on the application of the person who paid the fee or on its own initiative.
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.
Division 5 Time for payment and penalties for late payment
36   Administrative fee
(1)  The administrative fee for any licence fee period of a licence must be paid not later than 120 days after the beginning of that licence fee period.
(2)  If an administrative fee is not paid (or not fully paid) by the due date for its payment, the administrative fee is to be increased by the amount of simple interest calculated at the rate of 5 per cent per fortnight on the amount of the fee unpaid for each whole fortnight that elapses after the due date and before the date of payment.
(3)  The amount of any such increase is prescribed as a penalty for the purposes of section 57 (4) of the Act.
(4)  This clause does not apply to an administrative fee that is required to accompany an application for the issue of a licence.
37   Load-based fee
(1)  The load-based fee for any licence fee period must be paid within 120 days after the end of that period.
(2)  If a load-based fee is not paid (or not fully paid) by the due date for its payment, the load-based fee payable is increased by the amount of simple interest calculated at the rate of 5 per cent per fortnight on the amount of the fee unpaid for each whole fortnight that elapses after the due date and before the date of payment.
(3)  Any such increased amount is prescribed as a penalty for the purposes of section 57 (4) of the Act.
38   Refunds and waivers—penalties for late payment
(1)  The EPA may refund, or waive the payment of, all or any part of the amount of any increase of a fee payable under this Division if—
(a)  in the case of an increase in the amount of a load-based fee, the EPA is satisfied that the licence holder was unable to calculate and pay the fee by the due date because of circumstances beyond the control of the licence holder, or
(b)  in any case, the EPA considers that it is appropriate to do so.
(2)  Subclause (1) (a) does not excuse the licence holder from calculating and paying the load-based fee in respect of some of the pollutants concerned in so far as that calculation is not beyond the control of the licence holder.
(3)  In considering whether to refund the payment of, or waive, all or any part of the amount of any increase of a fee, the EPA is to have regard to the administrative costs incurred by the EPA in connection with the licence.
Division 6 Change in activity classification or scale
39   Application of Division
This Division applies if an activity changes to an activity of a different classification or scale under Schedule 1 during the licence fee period.
Note.
 This clause does not confer authority on a licence holder to alter the classification or scale of an activity.
40   Adjustment of administrative fee
(1)  The administrative fee for the licence is to be adjusted proportionately according to the parts of the licence fee period occurring before and after the change in the classification or scale of the activity.
(2)  No adjustment is to be made unless the resultant administrative fee is greater than or less than the unadjusted fee by at least the amount of 2 administrative fee units.
(3)  Any additional amount of any fee already paid or due for payment is to be paid by the licence holder to the EPA not later than 60 days after the change in classification or scale occurs.
(4)  Any reduction in the amount that is in excess of the amount of at least 2 administrative fee units is to be offset against any amount owed by the licence holder to the EPA or otherwise refunded to the licence holder by the EPA.
(5)  The provisions of Division 5 relating to the payment of interest on unpaid administrative fees apply to any additional amount of the fee under this clause.
41   Adjustment of load-based fee
The load-based fee for the licence comprises the sum of the load-based fee calculated for the part of the licence fee period occurring before the change in the classification or scale of the activity and the load-based fee calculated for the part of the licence fee period occurring after the change.
Part 2 Load-based Licensing Technical Review Panel
42   Constitution
There is constituted by this Regulation a body corporate to be called the Load-based Licensing Technical Review Panel.
43   Members
(1)  The Review Panel is to have 7 members appointed by the Minister.
(2)  Of the members—
(a)  2 are to be members of staff of the EPA or the Office of Environment and Heritage nominated by the Chairperson, and
(b)  5 are to be persons having appropriate scientific or technical qualifications or experience—
(i)  2 of whom are to be representatives of industry, and
(ii)  one of whom is to be a representative of environment groups, and
(iii)  one of whom is to be a representative of local government, and
(iv)  one of whom is to be nominated by, and be a representative of, the Chairperson (being a person who is not a member of staff of the EPA or the Office of Environment and Heritage or a representative of industry, environment groups or local government).
44   Functions
(1)  The Review Panel is to advise the EPA about the current or desirable contents of such load calculation protocols as the EPA may refer to the Review Panel.
(2)  The Review Panel may also advise the EPA on such other matters in connection with licences as the EPA may refer to the Review Panel.
(3)  For the purpose of providing any such advice, the Review Panel may seek, receive and consider submissions from interested persons and may gather relevant information from any source.
(4)  In this clause—
load calculation protocol has the same meaning as in Part 1.
45   Membership and procedure
Schedule 4 contains provisions relating to the membership and procedure of the Review Panel.
Part 3 Miscellaneous licensing provisions
46   Scheduled development work
Pursuant to section 47 (3) of the Act, the following is specified as scheduled development work for the purposes of the Act—
Work at any premises at which scheduled activities of a class listed in Schedule 1 to the Act are carried on that is designed to enable scheduled activities of a different class listed in that Schedule not authorised by a licence to be carried on at the premises.
47   Commencement of licensing for existing activities
For the purposes of section 52 (1) (a) of the Act, the prescribed period is 9 months.
47A   (Repealed)
48   Exclusion of Part 5 of EPA Act
Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to the issue of an environment protection licence referred to in section 52 (1) of the Protection of the Environment Operations Act 1997 so long as the licence authorises only the same or substantially the same work or activity, and level of work or activity, as was being carried out immediately before the application for the issue of the licence was made.
49   Statement of reasons for grant or refusal of licence
(1)  A statement provided by a regulatory authority, under section 61 or 80 of the Act, of the reasons for the grant or refusal of a licence application must set out the following matters (in addition to any other matters the authority considers appropriate)—
(a)  the significant environmental or other issues that the authority took into account in making its decision on the licence application,
(b)  any significant environmental outcomes, standards or requirements (if relevant) that the authority considered applicable to the activity the subject of the application and that the authority took into account in making its decision on the application.
(2)  A statement of reasons may set out any of the above matters by reference to information set out in a document that is available to the person requesting the statement of reasons or that is otherwise publicly available.
50   Fee for transfer of licence
For the purposes of section 54 (2) (c) of the Act, the fee that must accompany an application for the transfer of a licence is 2 administrative fee units.
51   Refusal of certain licence applications
(1)  An application for the issue, transfer or variation of a licence, or for approval of the surrender of a licence, may be refused by the appropriate regulatory authority—
(a)  if any fee or other amount due and payable under the Act or this Regulation in relation to the application or licence is unpaid, or
(b)  if the applicant has previously defaulted in the payment of any such fee or other amount in respect of that or any other licence and the default continues.
(2)  This clause does not limit any other grounds on which an application may be refused.
51A   Fit and proper persons
For the purposes of section 83 (2) (o) of the Act, the appropriate regulatory authority may take into account whether the person has, within the previous 3 years, failed to pay any fee or other amount payable under the environment protection legislation or has paid any such fee or amount late.
52   Other relevant legislation
Pursuant to section 83 (5) of the Act, the following repealed Acts, provisions of Acts and Regulations are declared to be other relevant legislation for the purposes of section 83—
(f)  Pollution Control Act 1970,
(h)  the provisions of the Ozone Protection Act 1989 omitted by Schedule 4.14 to the Act,
(i)  regulations made under the above Acts or provisions.
53   Application of payments
If a person who makes a payment under this Chapter to the EPA does not identify the nature or purpose of the payment, the EPA may apply the payment towards any liability of the person under this Chapter in such manner as it thinks fit.
54   Preservation of records
(1)  A licence holder must retain all records used by the licence holder to calculate the amount of a licence fee under Part 1 for a period of not less than 4 years from the date on which the fee was paid or payable, whichever is the later.
Maximum penalty—
(a)  in the case of a corporation—200 penalty units, or
(b)  in the case of an individual—200 penalty units.
(2)  A licence holder is liable to a penalty under subclause (1) in addition to the licence fee.