Amendment Regulation for scheduled activities

The Protection of the Environment Operations Legislation Amendment (Scheduled Activities) Regulation 2019 (the Amendment Regulation) has commenced.

The Amendment Regulation amends Schedule 1 of the Protection of the Environment Operations Act 1997 (the POEO Act) and Schedule 1 of the Protection of the Environment Operations (General) Regulation 2009 (the POEO General Regulation) to include a new scheduled activity of road tunnel emissions and to provide a fee for this activity, and changes the way that railway activities are regulated and update the definitions of other existing scheduled activities.

Specifically, the Amendment Regulation creates:

  • a new scheduled activity to regulate and licence road tunnel ventilation facilities
  • a new scheduled activity to regulate railway rolling stock operation.

It also modifies the descriptions of:

  • cement or lime handling activities to exclude the activity of concrete batching
  • crushing, grinding or separating, so that this activity does not need to be separately listed on an environment protection licence if it occurs as part of railway construction or road construction
  • dairy animal accommodation, a category of livestock intensive activities, so that it relates to milking facilities and areas immediately around those facilities only
  • extractive activities, to abolish the distinction between land-based and water-based extraction, to only require a licence when extractive materials are to be sold, to not require licensing for cut and fill operations or the excavation of foundations ancillary to development with development consent
  • railway system activities which have been split into three separate scheduled railway activities: railway infrastructure construction, railway infrastructure operation and rolling stock operation
  • road construction to include activities ancillary to the construction of roads
  • petroleum products and fuel production, to exclude the blending of additives and petrol at individual service stations.
  • the definition of contaminated soil to include contaminated sediment, and
  • the manner of determining licensing fees for extractive activities, railway infrastructure construction, railway infrastructure operations, rolling stock operations and road construction.

Consultation

A consultation draft of the Amendment Regulation was exhibited from 18 May to 16 June 2016.  Thirty-five submissions were received, the majority supported the proposed amendments. Five submissions expressed opposition to the proposal to licence railway rolling stock operators.

The EPA also undertook additional consultation with target stakeholder groups when developing the road tunnels ventilation stack amendments and the concrete batching amendments.

The EPA carefully considered the issues raised in submissions (and other subsequent consultation with affected stakeholders) and refined the proposed amendments where necessary.

More information

Raised by

Clause

Issue/comment

EPA response / action

Clause 19 – Extractive Activities

Industry (1)

Clause 19 (1) (a)

  • Supports changes in-principle – concerned to ensure that definition is sufficiently explicit to include only material sold, not stored or reused.

 

  • Noted – wording has been tightened to ensure this outcome.

Councils (1), ports (2) and water corporation (1)

Clause 19 (1) (b)

  • Strongly oppose the draft definition including “dredging for any purpose”.
  • This means that maintenance dredging undertaken to keep shipping / boating channels open, for beach nourishment and works to remove debris and silt from stormwater drainage or wastewater systems would now be captured.
  • Dredging for these purposes are already regulated under other legislation and permits.
  • It would be needless red tape to also require an Environment Protection Licence (EPL) for this activity.

The EPA agrees. It has:

  • Deleted 19(1)(b)
  • Amended 19(1)(a) by adding the word “dredging” between the words “quarrying” and “or other methods”.

 

Councils (2)

Clause 19 (2)

  • Need to ensure there are no unintended consequences from excluding cut and fill operations as this might authorise some extractive industry.
  • Changes are mainly administrative and councils can manage short term earthworks and construction.
  • The purpose of this clause was to ensure large subdivisions works, excavation of foundations for buildings etc which are approved under the Environmental Planning & Assessment Act do not require an EPL.
  • Noted – no change required.

Ports (2)

Clause 19 (3)

  • Concerned about change in threshold from 30,000m3 to 30,000 tonnes – this is a lowering of the threshold and will increase costs on councils.
  • Dredging is planned and executed on a volumetric basis – determining density of dredging material would impose additional costs with no environmental benefits.
  • This is now redundant because clause 19(1)(b) was deleted.

Clause 22 Livestock intensive activities – dairy animal accommodation

Council (1)

Clause 22

  • Change may impact on councils if complaints are lodged about effluent from unlicensed parts of a dairy.
  • This change simply clarified the way EPA licences dairies and describes premises currently. It will not result in additional responsibilities for councils.

31A Petroleum products and fuel production

Councils (2) and industry (2)

Clause 31A (2)

  • EPA should provide more information on blending of fuel at service stations and why it is considered low-risk.
  • Fuel refiners and imports must meet strict specification in Fuel Quality Standards Act 2000 (Cwlth). Many brands develop proprietary blends (using specialist infrastructure) containing additives to improve fuel performance.

· Services stations are not designed nor equipped with adequate infrastructure or staff training to manage safety and technical components of blending.

· Councils should be notified by service station operators who intend to blend fuels.

· Note petrol stations are already regulated via Dangerous Goods, Underground Petroleum Storage Systems and Clean Air Regulations.

· Clause should be modified to also exempt blending different grades of fuel, which currently already occurs at petrol stations.

  • Clause 31 is targeted at major fuel production activities such as those that occur at refineries or biodiesel plants. The potential risks and environmental impacts of service stations which blend small amounts of additives to fuels do not warrant licencing under clause 31.
  • Requiring service stations that conduct additive blending to hold an EPL would:
  • have no effect on the standard of fuel delivered by service stations as the Fuel Quality Standards Act 2000 still applies;
  • not change the risk profile of the activity as the licence would be unlikely to have conditions that require anything additional to what the POEO Act and other environmental legislation already requires. For example, other than in exceptional circumstances, licences do not include specific prescriptive requirements around how an activity such as blending is carried out; and
  • increase red tape and the regulatory burden for no improved environmental outcome.
  • The EPA considers that no change is required.

Clauses 33 Railway Infrastructure Construction, Clause 33A Railway Infrastructure Operations, Clause 33B Rolling Stock Operations

Community groups (3), individuals (2), environment group (1), rail industry (3), construction industry (1)

Clause 33, 33A and 33B - general

· Strongly support establishment of three separate scheduled activities.

· Will result in better outcomes for the community.

  • Noted

Railway system operators (3)

Clause 33 (1)(a)

 

  • Unclear how ‘amplification’ differs from extension or widening.

 

  • Should be amended to exclude private sidings.
  • Agreed - the EPA has refined the way railway infrastructure construction and railway infrastructure operations are described.
  • The potential impacts of railway construction projects of 3-5 kms in length (metro/rural) are similar regardless of whether the infrastructure is privately or publicly owned and are significant enough to warrant an environment protection licence. This is consistent with how road construction is regulated in NSW.

Railway system operators (2) and rolling stock operators (1)

Clause 33 (1)(c)-(e)

  • Defines three activities (33 (1) (c)-(e)) that are ancillary to construction as being “for such construction” but clearing of land (33 (1)(b)) is not referred to as being “for such construction”. This could mean this clause also applies to maintenance and therefore railway infrastructure operators may need two EPLs.
  • Expand the definition of railway infrastructure to include those items previously considered as ancillary works using terminology consistent with the definition of rail infrastructure facilities under the Infrastructure SEPP.
  • Agreed - the EPA has refined how activities are described which are inherent to and/or ancillary to the activity of railway infrastructure construction to ensure the definition captures the activity appropriately.

 

 

  • It is not considered necessary to include all items previous considered as ancillary works in new clause 33 – these are captured in clause 33A.

  • Extraction or processing of materials should be covered by a railway construction licence where it is clearly ancillary to that activity, but it is unclear how clause 33(1)(e) would apply to extraction and processing activities which are carried out by a third party or some distance away from the construction activity itself.
  • Will require a licence for construction activities that occur on more than 18ha of land in metropolitan and 30ha of land in rural areas – the proposed regulation does not apply the requirement for a licence to similar sized non-rail construction projects.
  • Proposed scheduled activity of railway infrastructure construction appears to duplicate existing regulatory requirements (crushing, grinding and separating and extractive activities).
  • Extraction and processing carried out by a third person will require that person to hold a separate licence if the activity is over the threshold.
  • The amendments to the regulation of railway construction provide a consistent approach across rail construction projects in NSW and align it with road construction (see clause 35).
  • The EPA has always required a licence for rail construction. The amendment separates it from other rail activities with different potential impacts.
  • The EPA has extended the definition of both road construction and rail construction to include activities which are inherent in those projects.

Railway system operators (2) and port (1)

Clause 33 (2) [and Clause 33A (2)(f)]

  • Use of the terms “on-site” and “off-site” – not clear what is meant by the term “site” in each case – assumes this is a reference to the licensed premises.
  • What is meant by “on-site upgrading of infrastructure”?
  • Further clarification is required regarding the relationship between railway infrastructure construction and railway infrastructure operation – potential for confusion about meaning of phrase “to which clause 33A applies” – suggest deleting this phrase and replacing it with a note.
  • These words have been removed from the definition of railways infrastructure construction.

Railway system operators (2)

Clause 33 (5)(a)-(d)

  • “Embankments, bridges, tunnels and over track structures” – interprets these to mean:
  • Bridge structure has tracks, sleepers etc that spans a road etc but not an overbridge that has a road surface
  • Assets such as foot bridges, stanchions, gantries
  • The EPA agrees with this interpretation. The terms are currently already in use in the current clause 33.

Railway system operator (2), community group (1)

Clause 33A

  • Rail system operators need to retain ability to perform construction works below the proposed activity threshold level for construction under its licence – coverage of these below-threshold construction activities under the railway infrastructure operations licence will prevent ambiguity and promote transparency with the community.

 

 

 

 

 

 

 

 

 

 

  • Restricting application to operations of 30 km or more raised concerns in the event that the Sydney rail network is privatised on a line by line basis.

 

  • The activity definition already allows for on-site repair, maintenance and upgrading of railway infrastructure.
  • Conditions can be included on a licence which authorises ‘railway activities – railway infrastructure operations’ to transparently regulate the impacts of below-threshold construction works.
  • Where the construction works do not trigger the threshold for ‘railway activities – railway infrastructure construction’ but are preparatory works needed for activities that will trigger the threshold for ‘railway activities – railway infrastructure construction’, they may still need to be authorised by a licence because they trigger the need for a scheduled development work approval under s.47 of the POEO Act.
  • The EPA has undertaken an analysis of current and past environmental issues relating to operational rail in NSW to determine whether this network-size trigger needed to be amended. It concluded that the proposed framework, with the existing trigger, captures the significant environmental issues and risks associated with rail. If the Sydney rail network is privatised resulting in one or more networks under 30 km, the EPA can at that time consider whether it is necessary to amend the scheduled activity definition to capture those smaller networks.

Railway system operator (1)

Clause 33A (3)

  • The phrase “operated by the same person” should be clarified to exclude private sidings” meaning “a siding that is owned, controlled or managed by a person other than a person who managed the railway infrastructure with which the siding connects or to which it has access”.
  • Private sidings or ‘private railway infrastructure’ below the trigger length do not require a licence. However, private railway infrastructure (whether it is a siding or network) above the trigger length will require a licence because the potential impacts of operational rail are the same whether the infrastructure is privately or public owned.

Environment group (1), community groups (3)

Clause 33A and 33B

  • Does not provide clear emission standards or a timeframe to implement reductions.
  • Lack of positive obligations to measure and manage noise pollution.
  • Regulation should ensure EPA has sufficient powers to effectively regulate, licence and develop Pollution Reduction Programs with shared responsibility.
  • 30 km threshold should be removed – allows tracks associated with mining to remain unregulated.
  • 30 km limit also allows the Regulation to be undermined if locomotives can be re-tasked to operate on tracks less than 30 km in length.
  • Should be no exemption for any class of rail line.

 

 

 

 

 

 

 

 

  • The legislation does not deal with increases in rail noise from increased rail traffic (e.g. impact of Northwest Rail Link on pass-by traffic at other locations).

 

  • Add load fees for fine particulates, nitrogen oxides and nitrogen (summer) oxides.

 

 

  • Every track operator should have an EPL that covers all activities within and discharges from the corridor – and should include all operational bases and activities that are remote form the corridor but that are an integral part of the corridor operation.

 

 

 

  • All rolling stock operators should have an EPL which lists all locomotives and wagons used by the operator with appropriate fees for each and every locomotive and wagon.

 

 

  • Quarries and other railway support ventures should hold their own EPL.
  • The track operator’s EPL should extend to cover the services of all contractors, subcontractors, labour and equipment providers used for construction and/or maintenance services.
  • The cost-benefit analysis does not consider or place a value of railway emissions on neighbouring land or water courses and aquifers and cost of human health is not assessed.

 

 

  • The cost-benefit analysis shows considerable costs incurred by the EPA which should be recovered and a poll of funds established to cover major investigation, research and fund regulatory infrastructure.
  • Schedule 1 definitions do not contain emission standards – they define the activity which requires a licence .
  • New legislation provides the basis for tougher regulation of air and noise pollution from the operators of the state’s railways, providing further protection for the community and environment.
  • Rolling stock operators, such as operators of freight and passenger trains including locomotives, wagons and carriages will now need to hold an environment protection licence issued by the EPA; this is in addition to licences that need to be held by railway infrastructure operators.
  • The rolling stock operator licences will contain strict conditions for the operation of rolling stock and will over time, include conditions to manage the impacts of air emissions and noise from rolling stock.
  • Licence conditions will be developed in consultation with industry and other stakeholders
  • Conditions relating to monitoring and managing noise pollution will also sit on the licences.
  • The EPA will be able to develop Pollution Reduction Programs were required.
  • Load fees for particulates, nitrogen oxides and nitrogen (summer) oxides will be considered in the EPA’s review of the load-based licensing scheme.
  • The EPA has undertaken an analysis of current and past environmental issues relating to operational rail in NSW to determine whether this network-size trigger needed to be amended. It concluded that the proposed framework, with the existing trigger, captures significant environmental issues and risks associated with rail.
  • The potential for increased rail traffic from new rail projects is considered through the planning and assessment system. Projects that generate rail traffic are covered, in part, by the Rail Infrastructure Noise Guideline.
  • Direct regulation of rolling stock operators by the EPA is expected to have flow-on effects to all areas of the NSW railway system, including networks of less than 30 km. For example, any improvements made to the noise and emissions performance of the rolling stock fleet will result in benefits wherever the rolling stock operates.
  • Quarries and other railway support activities that are scheduled activities would require a separate licence. Only works directly associated with the railway construction project on the premises would be included on the rail construction licence.
  • The licence will capture the activities of contractors and subcontractors undertaking works for or on behalf on the licensee when on the licensed premises.
  • The amendment regulation moves from the indirect regulation of rolling stock operations’ environmental performance to direct regulation via a licence. The costs and benefits of this change have been costed.
  • The EPA currently charges an administrative fee for each rolling stock operating licence (about $5950) which goes some way towards recovering the EPA’s cost of regulation.

Rolling stock operators (5)

Clause 33B - general

  • Generally oppose the proposal to licence rolling stock operators.
  • Use of overlapping EPLs covering system operators and rolling stock operators is inefficient and the best way to managing environmental issues is through the railway system operators.
  • Any environmental performance standards for rolling stock should be subject to rigorous cost-benefit analysis and not restrict the transitions towards more freight being moved by rail.
  • Amend clause 33B to exclude “railway vehicles used, or intended to be used, that were constructed and approved to operate in the jurisdiction of NSW prior to 1 July 2016.
  • Concerned about issuing licences conditional upon complying with as yet undefined requirements.
  • The growth of the NSW rail freight and passenger networks brings many benefits to the environment and wider community. However, this growth also increases the risk of adverse local impacts, which need to be appropriately managed to protect the environment and health and amenity of the community.
  • The EPA disagrees that existing rolling stock should be exempted from the requirement to hold a licence. The existing rolling stock is a significant contributor to the potential environmental impacts associated with the rail network.
  • The EPA will develop the environmental performance and other requirements that it will place on the rolling stock operator environment protection licences with interested stakeholders, especially rolling-stock operators. When determining licence requirements, the EPA prioritises high risk issues and always considers what is feasible and reasonable.
  • The EPA has modelled the costs in moving from indirect regulation to direct regulation via licencing of rolling stock operators in the first instance as this is what the amendment regulation will do. It has not modelled the cost of compliance with licence conditions as these have not yet been negotiated with the industry.

Railway system operators (2)

Clause 33B

  • Should specify refuelling as an activity as it is an integral component of rolling stock operations
  • Refuelling of rolling stock can be captured by the rolling stock’s licence.

Railway system operators (2)

Clause 33B (2)(a) and (b)

  • Loading and unloading of freight from rolling stock should be included in the scheduled activity of rolling stock operations where they are carried out on licenced railway infrastructure operations.
  • The EPA amended the Regulation to remove the exemption for load and unloading of freight. In general, the EPA consider the entity that has the highest level of control over freight loading and unloading operations should be the entity responsible for managing the environmental risks and impacts associated with the loading and unloading of freight, where it is practical to do so.
  • The EPA already regulates these types of activities via a licence for some goods such as coal (coal mines and coal loaders), quarries and bulk shipping goods. Loading and unloading activities undertaken at unscheduled facilities are regulated by the local council under the general provisions of the POEO Act.
  • However, the EPA considers that where loading and unloading of freight takes places on a licenced network, conditions should be included on a rolling stock operator’s licence.

Railway system operators (2), maintenance service supplier (1)

Clause 33B (5)

  • Should exclude railway vehicles which are used to construct railway infrastructure (as well as those used to maintain railway infrastructure).
  • Should also exclude rolling stock workshop operators
  • The EPA amended the regulation to incorporate this suggestion.
  • 33A(j)(ii) specifically excludes railway workshops from requiring a licence and, by extension, any rolling stock operating at these workshops.

Clause 35 Road Construction

Government agency

Clause 35 (1)(a)

  • Suggest deletion of the words “installation, amplification, extension” as these are not words commonly understood with reference to road construction – may cause confusion.
  • The EPA generally agrees that these words are not commonly understood with reference to road construction. The EPA has amended the wording to revert to “road construction, meaning the construction, widening or re-routing of roads”.

 

Clause 35 (1)(b)

  • The activities of tunnelling, earthworks and cuttings are inherent and integral to “the construction of roads” and does not add anything to cl33(1)(a)
  • Tunnelling, earthworks and cuttings were included to avoid having to add “extractive activities” to a road construction licence as is currently the practice.

 

Clause 35(1)(c) and (d)

  • Suggests these be limited to those activities occurring within the premises boundary. Sites outside the premises boundary where those activities are occurring would either not need licensing unless they separately trigger the requirements of Clause 16.

· Agree

Government agency and council (1)

Clause 35(1)(d)

  • Clarify if receiving material in excess of 30,000 tonnes trigger a licence
  • Suggest adding the word “extractive” before materials to clarify that this is referring to the processing of extractive materials.

· The redraft has resulted in the removal of this sub-clause.

Council (1)

Clause 35 (2)(a)

  • Clarify the term “maintenance or operation of any road” and how it differs to “construction” as both activities could involve “the extraction or processing of more than 30,000 tonnes of materials over the life of the construction”.
  • Clause 35 specifically states that it does not apply to maintenance or operation without the need to define these terms. The EPA does not consider this needs to be amended.

Government agency

Clause 35 (2)(b)

  • Suggest adding “and road base” after “including a road pavement” to clarify that this includes the full road profile.
  • The wording of this clause has been amended – there is no need to include the words “road base”.

Government agency and council (1)

Clause 35(3)(b)

· Request that the EPA consider

  • Removing the 30,000 threshold for projects outside the “regulated area” (as defined in Schedule 1)
  • increasing the threshold to 150,000 tonnes over the life of the road construction project for other road projects.
  • The proposed threshold of 30,000 tonnes will capture a larger portion of road projects than is necessary and increase the cost of regulation on those projects which already are subject to environmental controls.
  • Consider:
  • deleting the words “or processing” – extraction of materials carries greater environmental risk than the processing – also the word ‘processing’ will capture a significant number of projects that would not otherwise be caught by the extraction threshold
  • adding the word “extractive” before “materials”
  • adding in the definition of “extractive materials” from clause 19 for consistency and clarity
  • The EPA has amended clause 35(3)(b) along the following lines:

 

(3)(b) if it involves the extraction or processing of:

i) more than 50,000 tonnes of materials in the case of premises in the regulated area and the local government areas of Bega Valley, Eurobodalla, Goulburn Mulwaree, Queanbeyan-Palerang or Snowy Monaro Regional, or

ii) 150,000 tonnes of materials in any other case.

  • The EPA’s intention is that road construction is a scheduled activity if it meets one or both of the length trigger or the extractive trigger. Road projects that exceed the extractive trigger but not the length trigger will need a licence.
  • The EPA does not consider it is necessary to add the word ‘extractive’ before material or to add in the definition of ‘extractive material’ from clause 19.

Schedule 1 of the POEO (General) Regulation

Community group

Fees for railways activities

  • Licence fees for railway infrastructure operators should be based on the length of track under control of an operator with additional fees of 10% above previous years’ fees if issued a penalty notice.
  • Licence fees for locomotives should be based on the locomotive maximum power and fuel use on an annual basis with a simple registration fee for wagons.
  • Noted, however, at this stage the EPA will only be charging a standard administrative fee of 50 fee units.

Provisions consequent upon comments of the Amendment Regulation

Railway system operators (2)

Part 6 – 18 and 19

  • Operator’s licences should be varied as soon as possible after commencement to delineate responsibilities and assist in allocating appropriate responsibility to rolling stock operators.
  • The EPL for rolling stock operators should include a description of the relevant part of the rail corridor on which they are operating.

The amended railway infrastructure operator’s licences and the new rolling stock operator’s licences will be issued on the same day, ten months after the commencement of the regulation. This will ensure that there is an accountable licensee for issues associated with the operational rail network at all times.

  • The EPA does not support licences for rolling stock operators specifying the rail corridor on which they operate. This would result in multiple licences having overlapping premises, which has the potential to create confusion about each operator’s responsibilities.
  • The framework enables the EPA to hold rolling stock operators accountable for pollution events (and clean-up) from their premises (i.e. the rolling stock) onto adjacent premises (i.e. the rail corridor).

Other issues

Petroleum industry (1)

Clause 31A

· Requests amendments to the Annual Production Capacity to reflect a higher trigger production output and lift the annual production capacity for the load based fee – this will reduce red tape for a small group of minimal polluters.

  • Remove certain monitoring requirements
  • Introduce a solvent and volatility factor for LBL monitoring.
  • These matters are beyond the scope of this Amendment Regulation. However, the EPA will consider these issues for inclusion in a future amendment to Schedule 1 and/or as part of the review of Load Based Licensing it is currently undertaking.

Contaminated Land Consultant (1)

Clause 15, contaminated soil treatment

  • Requests clarification of the wording related to treatment and storage of contaminated soil.
  • This matter is beyond the scope of this Amendment Regulation, however, the EPA is considering this issue for inclusion in a future amendment to Schedule 1.

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