Environment protection licences
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
What are the changes to rail regulation?
Schedule 1 of the Protection of the Environment Operations Act 1997 was 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’. This means that rolling stock operators, in addition to railway infrastructure operators, are now required to hold environment protection licences.
The change allows the EPA to directly regulate operators who have responsibility and control of the operation, management or construction of railway systems and their rolling stock, more effectively manage potential impacts on the community and the environment and work towards further improving the environmental performance of the rail sector.
How were the new licence conditions for the rail industry developed?
The EPA engaged extensively with the industry, community and other relevant stakeholders in the development of the licences. This feedback shaped the focus and content of the licences.
Feedback received related to the protection of the environment and the amenity and health of the community, along with the economic stability of the rail freight industry and the agricultural sector, already impacted by bushfires and drought.
Railway infrastructure operations
What is railway infrastructure operations?
A railway system is defined as a length of railway track that runs continuously for more than 30km. A railway infrastructure operator is required to hold a licence that covers the railway system it has responsibility for. In NSW, railway infrastructure operators include Sydney Trains, Australian Rail Track Corporation and John Holland Rail Pty Ltd. Private sidings and maintenance yards generally do not form part of a railway system and are not subject to the provisions of an environment protection licence for railway infrastructure operations.
What are railway infrastructure operators’ responsibilities under the new definition?
A railway infrastructure operator is responsible for the operation, on-site repair, on-site maintenance and on-site upgrading of their railway system when the railway system runs continuously for more than 30 kilometres.
Railway infrastructure operators are also responsible for the environmental performance of any railway vehicles involved in the maintenance of their railway system.
What sort of conditions are attached to railway infrastructure operator licences?
Many of the conditions in the railway infrastructure operators’ licences remain unchanged unchanged. Conditions relating to rolling stock have been removed from the licence in recognition that railway infrastructure operators are no longer responsible for the environmental performance of third-party rolling stock operators (who are now regulated directly by the EPA)
In recognition that railway infrastructure operators may influence the noise and air impacts associated with the operational railway network, operating conditions and/or pollution studies relating to wheel squeal, idling, braking, bunching and stretching and horn use have been included on the licence.
Railway infrastructure operators are still required to operate a complaints telephone line and provide an electronic avenue for complaints to be made. They are also required to assist in identifying rolling stock operating on their infrastructure that may be subject of a complaint to assist in resolving complaints.
Rolling stock operations
What are rolling stock operations?
Rolling stock describes the locomotives and carriages (for transport of passengers or freight) that use a railway system. Operators of light railway vehicles including trams, inclined railway vehicles, monorail vehicles or railway vehicles that are used solely for heritage purposes are exempt from the requirement to hold a licence.
Why do rolling stock operators need to hold a licence?
Rolling stock operators need to be held directly accountable for their environmental performance. Rolling stock operated on an EPA licensed railway network is a scheduled activity and therefore needs to be licensed.
What are the impacts on rolling stock operators?
Existing rolling stock operators are now required to hold, and comply with the conditions of a licence as will any new rolling stock operators commencing commercial operations on the NSW rail network.
What sort of conditions are on the rolling stock operators new licences?
The licences seek to reduce air and noise impacts on the community:
- by requiring new locomotives in NSW to comply with noise and air emission limits;
- through operating conditions and pollution studies relating to wheel squeal, idling, braking, bunching and stretching and horn use; and
- through monitoring and reporting requirements to allow the progress of the rail industry in reducing emissions to be determined over time.
How will the EPA measure compliance with the new licences?
The licences include monitoring and reporting requirements to allow the EPA to assess the progress of the rail industry and compliance with licence conditions.
Will licensing impact rail transport of freight?
Licensing rolling stock operators is not expected, or intended, to impact rail transport of freight. The EPA has considered a range of factors in developing the conditions for the new rolling stock operator licences. This includes the economic stability of the rail freight industry as well as the broader agricultural sector and current NSW Government incentives to encourage increased freight transport by rail.
Will this new licensing arrangement lead to improved environmental performance of rolling stock?
The new licensing arrangement ensures rolling stock operators are regulated directly; that is held responsible for the environmental performance of their rolling stock through the conditions on their licences.
The licences provide a framework for progressively reducing the impacts from the NSW operational rail network over time. The EPA will continue to work with the rail industry to progressively reduce air and noise emissions from rolling stock. To this end, the EPA has established an industry Rail Noise Reference Group.
When will the changes commence?
New licences for rolling stock operators and amendments to the existing licences for railway infrastructure operators were issued on 05 August 2020.
Tunnel ventilation stacks
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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
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.
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.