Australia: Do you need an Environmental Protection Licence (EPL) with that?

The Protection of the Environment Operations Act 1997 (POEO Act) requires an Environmental Protection Licence (EPL) for certain activities that are likely to impact on the environment or cause pollution.

The POEO Act also makes it an offence for someone to carry out these activities without an EPL. Failure to obtain an EPL may result in fines and potential prosecution.

Recent amendments to the POEO Act have commenced which may impact upon whether or not a person is required to obtain an EPL in order to carry out certain activities.

The recent changes have the potential to affect those involved in quarrying and other extractive industries, or operate underground toll roads, operate railway rolling stock and are involved in road construction, as a failure to comply with the revised requirements will constitute an offence under the POEO Act.

What has changed?

The list of activities that require an EPL (known as scheduled activities) are set out in Schedule 1 to the POEO Act.

That list has recently been amended to introduce new scheduled activities and update the definitions of some existing scheduled activities 1.

This means that for certain scheduled activities you may need an EPL where you had previously not required one and conversely, certain activities may now no longer need an EPL where they fall outside of the amended scope.

What scheduled activities are affected and why?

  • Extractive activities

The scope of "extractive activities" in Schedule 12 has been altered so that there is no longer a distinction between land-based and water-based extraction. It also limits the scope so as to relate only to extraction and processing of material for the primary purpose of selling material.

The rationale for this change was that previously the definition potentially captured activities that did not need to be managed by a licence, such as bulk earthworks on large Greenfield subdivisions or building projects.

It was also thought that the distinction between land-based and water-based activities to have created unnecessary differences in the thresholds.

  • Road tunnel emissions

A new scheduled activity has been introduced to regulate air emissions from ventilation stacks on a number of existing toll roads 3.

This was previously a matter regulated by the Department of Planning, Infrastructure and Environment through conditions of development consent, but will now fall within the jurisdiction of the Environment Protection Authority (EPA).

Tunnel ventilation stack operators 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 which will also be made publicly available.

  • Railway systems activities

Railway systems activities have been replaced and split into three new categories: railway infrastructure construction, railway infrastructure operations and rolling stock operations 4.

Railway construction and operation work have previously required EPLs, however, this is the first time that rolling stock operations will also require an EPL.

The biggest change for railway system operators is that they will no longer be responsible for the environmental performance of third party rolling stock operators (eg. for noise from locomotives and carriages that run on their track that they don't own). Rather, rolling stock operators will now be held directly responsible for their own environmental performance.

  • Road construction

The EPA has amended the definition of road construction to recognise that 'extractive activities' and 'crushing, grinding and separating' are inherent in road construction. It also introduces an extractive threshold as part of the assessment of whether an EPL is required 5.

  • Other amendments

Other amendments to Schedule 1 include:

  • petroleum products and fuel production now exclude the blending of additives and petrol at individual service stations
  • contaminated soil treatment activities has been clarified to include the treatment of 'contaminated sediment'
  • cement or lime handling activities no longer apply to the activity of concrete batching which is generally considered of low environmental risk
  • dairy animal accommodation is included as a category of livestock intensive activities and relates to milking facilities only, noting that only large dairies with the potential for significant environmental impacts are required to hold an EPL.

What does this mean for you?

Compliance with the requirements for scheduled activities is critical as a failure to do so will render a party liable for various penalties including fines and potential prosecution.

Helpfully, the amendments are subject to a savings and transitional regime which allows operators to submit an application for an EPL.

The transitional periods for the below scheduled activities, to apply for an EPL, are as follows:

  • road tunnel ventilation stock operators: six months
  • railway infrastructure construction operators: three months
  • railway infrastructure operators and rolling stock operators: six months
  • road construction operators have three months.

We would advise anyone operating in any of the above mentioned industries to seek legal advice about these changes and any new obligations which may arise.

Footnotes

1 See the Protection of the Environment Operations Legislation Amendment (Scheduled Activities) Regulation 2019.

2 Clause 19, Schedule 1, POEO Act.

3 See clause 35A, Schedule 1, POEO Act.

4 See clauses 33 – 33B, Schedule 1, POEO Act.

5 See clause 35, Schedule 1, POEO Act.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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