New changes to Scheduled Activities under the POEO Act are already operational: Do you need an EPL?

Introduction

Last Friday afternoon the Minister for Energy and Environment made broad changes to a number of the scheduled activities listed in Schedule 1 of the Protection of the Environment Operations Act 1997 (the POEO Act). 

These changes alter the way a number of key scheduled activities are regulated in NSW. 

This means that some activities which previously needed an Environment Protection Licence (EPL), may no longer need one, and other activities now do require an EPL to be undertaken.  These changes, among other things, impact railway systems activities, crushing, grinding and separating activities, and extractive activities.

What amendments were made and how?

The changes to Schedule 1 of the POEO Act have been introduced by the Protection of the Environment Operations Legislation Amendment (Scheduled Activities) Regulation 2019 (the Amendment Regulation).  The EPA exhibited a consultation draft of the changes to the public back in 2016.

Key amendments include:

• Contaminated soil treatment activities has been clarified to apply to contaminated sediment; 
• Railway systems activities has been replaced with three new separate activities, being:
  • Railway infrastructure construction activities;
  • Railway infrastructure operations activities; and
  • Rolling stock operations activities;
• Extractive activities has been revised, removing the distinction between land-based and water-based activities, and limiting the scope of application to the extraction and processing of extractive materials, for the primary purpose of selling that material;
• Road construction activities has been extended to include ancillary activities;
• Crushing, grinding or separating activities no longer apply to activities that form part of railway infrastructure construction activities or road construction activities;
• Road tunnel emissions has been introduced as a scheduled activity, limited to emissions into the air for ventilation stacks; and
• Cement or lime handling activities no longer apply to concrete batching activities.

Other amendments include modifications to definitions within Schedule 1 and also relate to dairy animal accommodation, petroleum products and fuel production activities. 

Changes to fees

The Amending Regulation also provides changes to fees in connection with the new and amended scheduled activities.

Grace periods for implementing the amendments

Obviously, these amendments may mean projects now need to organise an EPL when they had not previously operated with one.  These relate to the railway and road activities as amended by the recent changes.

As such, for those who do not currently hold an EPL relating to applicable railway and road activities, the Amendment Regulation has provided a grace period for people to obtain an EPL. 

Depending on the circumstances and the applicable scheduled activity, in some cases this grace period ranges between three to six months, or even up to 10 months, following 5 July 2019. Projects that are impacted by the recent changes should seeking legal advice as appropriate.

Further inquiries

Please contact Anneliese Korber or Elizabeth Wild in our Environment and Planning Team if you would like further information about how this update may impact you.