Questions and answers about the amendments

Environment protection licences

1. Who is required to hold an environment protection licence?

Schedule 1 of the Protection of the Environment Operations Act 1997 lists a range of activities that require an environment protection licence. These activities are known as scheduled activities. A licence authorises the scheduled activity to be conducted and includes enforceable conditions which are designs to prevent or minimise the environmental impacts from the activity. 

A licence for a ‘premises-based’ scheduled activity is issued to the occupier of the premises (i.e. the person or company that has overall management or control of the premises). 

A licence for a ‘non-premises based’ activity is issued to the person or company that is undertaking that activity. 

2. How is a licence varied?

A licence variation may be required if there is a change to the scale or type of activity that a licence holder carries out. 
Licence holders can apply to vary their licence at any time by submitting an application to the EPA. The EPA can also initiate a licence variation in consultation with the licensee. The EPA will always consult on any proposed conditions or amendments to a licence

Dairy animal accommodation

3.  Why has the EPA changed the definition of dairy animal accommodation?

The previous definition of “dairy animal accommodation” potentially captured the accommodation of dairy animals at the entire dairy premises, including milking sheds, yards and all pastures owned by the dairy.

The EPA’s regulatory effort is largely focused on hard stand and milking areas in dairies where the concentration of effluent from dairy animals is high and represents the greatest potential for environmental impact.

By amending the definition, the EPA has ensured that only large dairies with the potential for significant environmental impacts are required to hold a licence.

4. What is the impact of this amendment to the definition of dairy animal accommodation?

This amendment is mainly administrative. Refining and clarifying the definition to apply only to milking facilities and surrounds is not expected to change the number of licenses or the EPA’s regulatory costs. As such there will be no additional costs or any increase in regulatory burden for dairy operators.

Extractive activities

5. Why has the EPA amended the definition of extractive activities?

The previous definition potentially captured activities that did not need to be managed by a licence, such as earthmoving works on large subdivisions or building sites; and created unnecessary differences in the thresholds and definitions for land-based and water-based extractive activities.

Construction activities can have dust, water, noise and vibration impacts, but these impacts are short term and can be managed through conditions on development consents and/or prevention or clean up notices. The extracted material from these developments is typically moved around and reused onsite or elsewhere without being sold.

Combining the definitions of land-based and water-based extractive activities will:

  • enable a seamless transition from land-based to water-based activity that often occurs when dredging is introduced during the life of a formerly ‘land-based’ activity
  • capture the circumstance whereby a water-based extractive activity requires storage and processing of excavated material on land
  • remove the administrative burden and costs previously associated with switching between or adding land-based or water-based extractive activities to the licence. 

6. What will be the impact of this amendment?

These amendments are mainly administrative. They will result in:

  • fewer premises potentially requiring a licence
  • clarification about when a licence is required by making it explicit that certain activities are exempt from the requirement to hold a licence 
  • a reduction in the number of licence variations (once the amendments are incorporated into existing licences) – thereafter, licences will no longer need to be varied to allow for transitions from land-based to water-based extractive activities (or visa versa)
  • no increase in environmental impacts
  • no changes to the number of premises required to hold a licence
  • no changes to administrative fees.

7. Why are the administrative fee unit thresholds now expressed in tonnes of material extracted, rather than in cubic metres (as it was previously expressed for water based extractive activity)?

With one extractive activity description (rather than two sub-activities), it is more efficient to have only one threshold to determine when a licence is required and to determine administrative fees. Tonnes is considered a more appropriate measure of the overall amount of materials extracted than cubic metres.

Road construction

8. Why has the EPA amended the definition of road construction?

The amendments provide greater clarity on what constitutes ‘road construction’ and when a licence is required. It recognises that ‘extractive activities’ and ‘crushing, grinding and separating’ are inherent in ‘road construction’.

The definition for the scheduled activity ‘road construction’ has been amended to:

  • make it clear that specific activities such as tunnelling, earthworks and crushing and grinding are regularly undertaken as part of ‘road construction’
  • introduce an ‘extractive’ threshold in addition to the current length threshold to determine if a licence is required.

9. Why has the EPA amended the administrative fee unit threshold for road construction?

The previous administrative fee thresholds for ‘road construction’ in Schedule 1 of the Protection of the Environment (General) Regulation 2009, only accounted for the length of road to be constructed. However, the extraction of material is an integral part of most road construction projects.

This resulted in ‘extractive activities’ being regularly added as a permissible scheduled activity to EPA licences for road construction because:

  • the amount of material excavated for the project is significant and was often reused or sold; and
  • it reflected the full regulatory effort required to manage road construction projects.

The licensee pays the higher of the administration fees for all activities on the licence, which is generally that for extractive activities.

The amendments mean that proponents need to consider the length of road to be constructed and the amount of material to be extracted when determining if a licence is required and the applicable administrative fees.

10. Will the administrative fees for road construction increase?

It depends on the activity scale for extractive activities versus road construction. The higher of the two fees (either the road length-related fee or the fee associated with extraction) will determine the administrative fee. This mirrors the existing approach for determining administrative fees where for example a licensee is authorised for two different scheduled activities.

The new administrative fee regime for road construction has been designed to be consistent with other similar scheduled activities.

11. Will more road construction projects need to be licenced because of the proposed amendments?

The EPA does not expect there will be a significant change in the number of new licences. The approach ensures there is consistency across NSW and that significant road construct projects and extractive activities are appropriately captured under EPA’s licensing framework.

Railway systems

12. What are the changes to rail regulation?

Schedule 1 of the Protection of the Environment Operations Act 1997 has been amended by the Protection of the Environment Operations Legislation Amendment (Scheduled Activities) Regulation 2019, replacing the scheduled activity of ‘railway system activities’ with three new scheduled activities, including ‘railway system operations’, ‘rolling stock operations’ and ‘railway infrastructure construction’. 

 

13. Why has the EPA amended the definition of Railway Systems Activities?

The previous approach was not the most effective for regulating the potential environmental impacts of the NSW operational rail sector, largely because rolling stock operators were not held directly accountable for their environmental performance. As a result, the previous regulatory framework did not achieve the intended level of on-the-ground benefits for the environment and the community. It also created a range of administrative inefficiencies and concerns regarding liability.

Schedule 1 of the Protection of the Environment Operations Act 1997 now requires rolling stock operators and railway system operators to be separately licensed for their respective activities.

The previous approach also included rail construction under ‘railway systems activities’, yet ‘rail construction’ and ‘operation of the rail network’ are distinct activities that have different impacts on the environment and community. The changes have created a standalone scheduled activity for rail construction.

The amendments follow extensive stakeholder consultation on EPA’s position paper “Review of regulation of ‘railway systems activities’ under the Protection of the Environment Operations Act 1997August 2014 and consultation on a draft amendment regulation in 2016.

14. Will the changes improve the environmental performance of the rail sector?

The changes will ensure the EPA regulates operators who have responsibility and control of the operation, management or construction of railway systems and their rolling stock.

This will enable the EPA to more effectively manage potential impacts on the environment and work towards further improving the environmental performance of the rail sector. 

Railway system operations

15. What is railway system operations?

A railway system is defined as a length of railway track that runs continuously for more than 30km. A railway system operator is required to hold a licence that covers the railway system it has responsibility for. In NSW, railway system operators include Sydney Trains, Australian Rail Track Corporation and John Holland Rail Pty Ltd. 

16. What are railway systems operators’ responsibilities under the new definition?

A railway system operator will be responsible for the operation, on-site repair, on-site maintenance and on-site upgrading of their railway system when the railway system runs continuously more than 30 kilometres.

Railway system operators will also be responsible for the environmental performance of any railway vehicles involved in the maintenance of their railway system.

17. What sort of conditions will be attached to railway system operator licences?

Licence conditions for railway system operators will remain similar to existing conditions. The biggest change will be that railway system operators will no longer be responsible for the environmental performance of third-party rolling stock operators (who will now be regulated directly by the EPA). For example, the railway system operators will no longer be responsible for ensuring that noise from locomotives and carriages that are run on their track, that they do not own and operate themselves, are kept within specified noise limits. 

 

18. What are the impacts of the amendments on railway system operators?

Licence fees and the number of licensed railway systems operators will remain unchanged. However, railway system operators will no longer be responsible for the environmental performance of third-party rolling stock operators (who will now be regulated directly by the EPA).

19. When will the changes to licence commence?

The EPA intends to vary existing ‘railway systems activities’ licences to ‘Railway system operations’ licences within 10 months of commencement of the Regulation.

This will include a transitional period of 6 months for rolling stock operators to submit a licence application and for EPA to process the application. The EPA intends to issue all new rolling stock operators with licences and vary existing railway system operator licences on the same date, so the shift of responsibility for the performance of rolling stock from railway system operators to rolling stock operators takes place simultaneously.

Note: During the transitional period railway system operators will continue to be responsible for the operation of track and the rolling stock that uses their track until their licenses are varied.

Rolling stock operations

20. What are rolling stock operations?

Rolling stock describes the locomotives and carriages (for transport of passengers or freight) that use a railway system. 

21. Why will rolling stock operators need to hold a licence?

Rolling stock operators need to be held directly accountable for their environmental performance. When rolling stock is operated on an EPA licensed railway system, it will become a scheduled activity and therefore need to hold a licence. 

The proposed changes will also prevent the possibility of multiple EPA licences being held for the same premises.

22. What are the impacts on rolling stock operators?

Existing rolling stock operators will need to hold a licence as will any new rolling stock operators commencing commercial operations on the NSW rail network.

Note: Operators of light railway vehicles including trams, inclined railway vehicles, monorail vehicles or railway vehicles that are used solely for heritage purposes will not be required to hold a licence.

23. What sort of conditions will rolling stock operators need to comply with under the new licences?

The licence will cover the operation of rolling stock and will include conditions to manage the potential impacts to air and water and minimise the emissions of waste and noise from rolling stock. Licence conditions will be developed in consultation with industry and other stakeholders.

24. Are locomotive emissions regulated in NSW?

Non-road diesel emissions, including those from locomotives, are unregulated in Australia. 

Rolling stock operations licences will include conditions aimed at reducing air and noise emissions, however, these will be developed in consultation with industry and other stakeholders.

The EPA has completed technical studies with industry partners that identify technically feasible emission limits for diesel locomotive engines and evaluated impacts of available emission reduction technology on locomotive emissions and fuel consumption. 

The EPA is committed to conducting comprehensive consultation before implementing any pollution reduction programs or licence conditions which may impact businesses. 

25. How are rolling stock regulated in other jurisdictions?

South Australia has licensed rolling stock operators and railway system operators to address a particular issue – wheel squeal in the Adelaide Hills.

Emission standards are not applied in Australia, either nationally or by states, to address air emissions from locomotives. The United States of America and the European Union emission standards for diesel locomotives are the most widely referenced and applied standards internationally. 

26. Will licensing import rail transport of freight?

Licensing rolling stock operators is not expected, or intended, to impact rail transport of freight. There are many benefits, including environmental benefits, of moving freights by rail instead of by road.  

27. Will this new licensing arrangement lead to improved environmental performance of rolling stock?

The new licensing arrangement will ensure operators are regulated directly; that is held responsible for the environmental performance of their rolling stock. This will occur through conditions on their licence.

It will enable the EPA to use the licensing framework and its associated tools to effectively and efficiently address environmental concerns as they arise.  

28. When will the changes commence?

There will be a transitional period of 6 months for rolling stock operators to submit a licence application. The EPA will issue rolling stock operators with licences (where they have applied for them) and vary existing railway system operator licences. This will occur on the same date so the shift of licensing responsibility amongst system and rolling stock operators takes place simultaneously.

Note: During the transitional period, railway system operators will continue to be responsible for the operation of track and any rolling stock using it until their licences are varied.

Railway construction

29. What is railway construction?

Railway construction activities include the construction of a new railway track, signalling equipment, crossings and other infrastructure associated with the railway or significant additions or changes to existing railway networks. It often involves earthworks, cuttings, tunnelling and the processing of extracted material. 

30. Why has railway construction been separated from other railway system activities?

‘Rail construction’ and ‘operation of the rail network’ are distinct activities that have different impacts on the environment and community. Railway construction has been separated from other railway system activities.

31. Will the administrative fees for railway construction increase?

Changes have been made to the administrative fee regime for railway construction to account for both the track length and tonnage of material extracted. This approach recognises the additional regulatory effort required when significant extractive activities are carried out and is consistent with the framework for licensed road construction activities.

32. Are existing activities required to have a licence?

Existing railway construction projects that meet the requirements for a railway infrastructure construction licence need to obtain a suitable licence within 3 months of the commencement of this regulation; this is likely to involve a licence variation in most cases.

Operators that carryout activities that meet the definitions of railway infrastructure operations or rolling stock operations will be required to apply for a licence (or licence variation) within 6 months of commencement.

33. What sort of conditions apply to railway construction licenses?

Licence conditions for railway construction will remain similar to existing conditions and will continue to cover noise and vibration impacts.

34. What are the benefits of the amendments for railway construction?

The amendments:

  • provide clarity on who needs to hold a licence
  • acknowledge that ‘extractive activities’ and ‘crushing, grinding and separating’ are inherent parts of railway construction
  • ensure the administrative fee regime is consistent with similar activities such as extractive activities and road construction.

Tunnel ventilation stacks

35. When will road tunnel ventilation stacks be licensed?

The EPA is now the regulator of air emissions from road tunnel ventilation stacks and operators of road tunnel ventilation stacks are now required to hold a licence. Tunnel operators will have a transitional period of 6 months to apply for a licence. However, the EPA also has additional regulatory tools, such as notice powers, that enable it to regulate these operators in the meantime.

36. How were tunnel stack emissions previously regulated?

Tunnel stack emissions were previously regulated by the former Department of Planning and Environment through environmental performance based-conditions of its planning consents. 

37. How will the EPA monitor air emissions?

Consistent with other licences, tunnel ventilation stack licensees will be required to make their monitoring data publicly available on their websites, or on request. They will also be required to provide annual reports to the EPA, details of which will be publicly available on the EPA’s website. 

38. Will the EPA regulate all air quality issues relating to Sydney’s road tunnels?

No, the EPA is responsible for the regulation of air emissions from ventilation stacks only. The Planning Division of the Department of Planning, Industry and Environment will continue to regulate all other operational tunnel and air quality issues via planning consents, including portal emissions (where cars go in and out) and all other environmental issues associated with the operation of the tunnel.

39. Will the EPA set new emission limits for road tunnel ventilation stacks?

No. Licences for tunnel ventilation stacks issued by the EPA will be substantially consistent with the conditions of consent, including stack emission limits and monitoring requirements. However, licensing is a more flexible regulatory approach and performance requirements can be changed (e.g. made more stringent or more tailored) where the EPA has evidence that this is required.

40. Will the EPA require filters to be included in tunnel stacks?

The health impacts of emissions from tunnel ventilation stacks will be assessed during the environmental impact assessment phase and verified by the NSW Chief Health Officer. The need for any filters will be assessed during this process.

41. How will ventilation stack emissions be regulated given that the EPA doesn’t regulate traffic using the tunnel?

The EPA’s regulation will focus on compliance with licence limits, in addition to other licence conditions. These will be substantially consistent with planning consent conditions. It is the licensee’s responsibility to ensure they comply with their licence.

42. What will the EPA do if licence limits are exceeded?

The EPA will follow its Compliance Policy to develop an appropriate response to any non-compliances. Potential responses include fines, pollution reduction programs, and prosecutions.

43. Will the EPA require monitoring of the health impacts of ventilation stacks on local communities and monitoring of ground level concentrations of pollutants from stacks?

The NSW Chief Health Officer will provide advice during the environmental impact assessment phase on whether monitoring of health impacts is appropriate. The need for and validity of ground level concentrations of pollutants will also be assessed during the environmental impact assessment. 

44. What value is EPA licensing if licence requirements are substantially the same as planning conditions?

The licence and the Protection of the Environment Operations Act 1997 requires public reporting of air quality monitoring results. The EPA can also vary licence conditions and impose pollution reduction programs and other requirements in the future, if justified, for example based on monitoring results.

Cement or lime handling

45. Why have concrete batching plants been excluded from the cement or lime handling scheduled activity?

Cement and lime are raw materials for making concrete and handling those materials is an integral part of concrete batching. Many concrete batching plants handle such quantities of cement or lime that they trigger the requirement to hold a licence under the ‘cement or lime handling’ activity in clause 6 of Schedule 1 of the Protection of the Environment Operations Act 1997.

The current method of regulating concrete batching plants is effective. Excluding concrete batching plants from cement or lime handling reduces the administrative burden of reviewing and managing approximately 50-80 additional licences, for the EPA and concrete batching plants.

46. How are concrete batching plants regulated?

Concrete batching plants are considered low environmental risk and are effectively regulated by the EPA outside of the licensing framework by using inspections, clean-up notices, prevention notices, penalty notices and prosecutions. Licencing concrete batching plants would divert EPA regulatory resources from higher risk activities with little improvement in environmental outcomes.

Contaminated soil treatment

47. Why has the definition of contaminated soil treatment changed?

It was unclear whether the previous definition of contaminated soil treatment included the treatment of contaminated sediments. Changing the definition removed this uncertainty and ensures that projects involving the remediation of contaminated sediments can be licensed under the contaminated soil treatment scheduled activity.

48. What is the impact of this change to the definition of contaminated soil treatment?

Clarifying the definition will not result in any change to the current practice of licensing projects involving the remediation of contaminated sediments as contaminated soil treatment projects.

If the definition had not been clarified, the previous level of confusion as to whether sediment remediation projects need to be licensed for contaminated soil treatment or for waste processing is likely to have continued. Contaminated sediment, like contaminated soil, is a result of past activity at a site and the treatment approaches for contaminated sediments are generally different from waste processing activities.

Petroleum products and fuel production

49. Why has the definition of petroleum products and fuel production changed?

The previous definition of petroleum products and fuel production excluded the blending of ethanol or biodiesel at fuel storage terminals. Some operators also blend small quantities of other substances with fuel at locations such as service stations. This is likely to increase.

The storage and handling of fuel and fuel additives at service stations is already governed by existing legislation including the Dangerous Goods (Road and Rail Transport) Act 2008, the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014, and the Protection of the Environment Operations (Clean Air) Regulation 2010.

The EPA considers that blending of fuel additives with fuel at service stations will not result in any appreciable change in the impacts to public health or the environment, that are already present and regulated at fuel service stations.

50. What is the impact of this change to petroleum products and fuel production?

Service stations will not be required to hold licences to blend small quantities of fuel additives with fuel. The EPA expects more service stations may sell fuel blended with additives in the future. Service stations will continue to operate under current regulatory arrangements.

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