Proposed Regulatory Guidance Statements – Input Sought

Publication January 2016


Proposed Regulatory Guidance Statements Input Sought

The WA Department of Environment Regulation is currently seeking public and stakeholder input on draft guidance statements, published in December 2015, which will underpin the DER’s assessment process for new works approvals and licence applications. The public consultation period closes on 26 February 2016.

Norton Rose Fulbright has a market leading environment practice and we would be happy to discuss with you the implications of the proposed reforms for your business.

Introduction

The WA Department of Environment Regulation (DER) published a consultation paper on draft regulatory Guidance Statements in December 2015.  The consultation process commenced on 4 December 2015 and is open until 26 February 2016 for members of the public and stakeholders to provide feedback on the following draft Guidance Statements:

  • Guidance Statement: Regulatory Assessment Framework
  • Guidance Statement: Environmental Risk Assessment Framework
  • Guidance Statement: Regulatory Controls

The Guidance Statements are intended to support risk-based decision making for new works approvals and licence applications for prescribed premises under Part V of the Environmental Protection Act 1986 (WA) (EP Act).  They will also apply to licence renewals, amendments and premises inspections.  It is anticipated that the proposed frameworks will improve the structure and transparency of the DER’s assessment and approval processes.  Public consultation on draft DER guidelines on emissions (noise, odour and emissions to air, water and land) will follow in February 2016.

Guidance Statement: Regulatory Assessment Framework

The draft Guidance Statement: Regulatory Assessment Framework (RAF Guidance) outlines the entire assessment process for regulatory decision making under Part V of the EP Act.  The RAF Guidance will complement the principles of good regulatory practice contained in the DER’s Guidance Statement: Regulatory Principles.  These principles guide the DER’s approach to its environment regulation functions and the RAF Guidance will provide specific guidance on the assessment of works approval and licence applications.

The RAF Guidance describes the circumstances in which the DER will refuse an application, the circumstances where a transfer of a works approval or licence may be refused, and where an assessment of existing premises may be initiated by the DER.

The RAF Guidance contains an assessment process flowchart to inform applicants about the various stages that their application will go through prior to determination.  It also explains which interested parties will be consulted and when the DER will refer to other documents to inform the decision making process, such as guidance on environmental siting and principles for clearing native vegetation.

Guidance Statement: Environmental Risk Assessment Framework

The draft Guidance Statement: Environmental Risk Assessment Framework (ERAF Guidance) sets out environmental risk assessment criteria for likelihood and consequence risk categories.  The criteria have been prepared with regard to existing criteria used by a number of State government agencies, including the WA Department of Mines and Petroleum, WA Department of Health, and the NSW Office of Environment and Heritage.

The ERAF Guidance will require the DER to assess the risk of prescribed premises in accordance with a risk assessment framework consistent with AS/NZS ISO 31000:2009.  This includes consideration of identifiable emissions, pathways and receptors, impact and appropriate regulatory controls.  The ERAF Guidance also includes a risk assessment process flowchart and sets out when and why the DER will undertake monitoring and review. Appendix 2 sets out a risk assessment matrix and the criteria to be used to determine the likelihood and consequences of a risk occurring. Appendix 5 contains health and ecosystem criteria, including a useful reference summary of environmental values, and criteria for water and air quality.

Guidance Statement: Regulatory Controls

Following an environmental risk assessment in accordance with the ERAF Guidance, the DER will identify appropriate regulatory controls for prescribed premises.  The draft Guidance Statement: Regulatory Controls (RC Guidance) sets out primary and secondary regulatory controls that will assist the DER to set appropriate conditions on works approvals and licences.

The regulatory controls matrix in Appendix 1 of the RC Guidance illustrates which regulatory controls will be considered appropriate for various emission risks associated with types of activities and categories of prescribed premises.  Table 1 of the matrix contains the identified ‘inherent’ risks for each category of prescribed premises and Table 2 sets out the primary and secondary regulatory controls that apply to each identified risk. However, these risks and controls are not exhaustive because additional risks may be identified as part of the environmental risk assessment process.

Conclusion

The DER will introduce three new Guidance Statements after consideration of responses received during the consultation process. If you are an occupier of a prescribed premises, the proposed Guidance Statements will have implications for your business. You can access the consultation paper here. The consultation period closes on 26 February 2016.

Please contact Charmian Barton for more information about the new Guidance Statements or for assistance in preparing a submission in response to the consultation paper.


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