Environmental Management and Pollution Control (General) Regulations 2017

Environmental Management and Pollution Control (General) Regulations 2017

30 October 2017

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Environmental Management and Pollution Control Act 1994.

These regulations may be cited as the Environmental Management and Pollution Control (General) Regulations 2017.

These regulations take effect on the seventh day after the day on which their making is notified in the Gazette.

In these regulations, unless the contrary intention appears –

Act means the Environmental Management and Pollution Control Act 1994;

approved, in relation to a level 2 activity specified in Schedule 1, means one of the following is in force in respect of the activity:a LUPAA permit; an order in accordance with section 26 of the State Policies and Projects Act 1993; an environment protection notice in accordance with section 27 or section 44 of the Act; an environmental approval, as defined in the Environmental Management and Pollution Control (Waste Management) Regulations 2010;

capacity, in relation to a level 2 activity specified in Schedule 1, means the maximum capacity for processing, production, melting, consumption, application, treatment, receipt, handling, washing or generation that is specified in relation to the level 2 activity in – a LUPAA permit; or an order made in accordance with section 26 of the State Policies and Projects Act 1993; or an environment protection notice issued, or caused to be issued, by the Director in accordance with section 27 or section 44 of the Act; or an environmental approval, as defined in the Environmental Management and Pollution Control (Waste Management) Regulations 2010;

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;

hourly rate means 75 fee units for each hour, or part of an hour, spent by the Board or Director on a matter to which a fee prescribed in these regulations relates;

inert waste means waste that is not – controlled waste; or putrescible waste; or likely to cause, either directly or indirectly, material environmental harm or serious environmental harm or environmental nuisance; or contaminated with controlled waste or putrescible waste;

low-risk activity means an environmentally relevant activity determined by the Board to be a low-risk activity under regulation 10;

LUPAA permit means a permit – granted or taken to have been granted under the Land Use Planning and Approvals Act 1993, with conditions attached by the Board; and in respect of which the Board has carried out an environmental impact assessment;

permissible level 1 activity has the same meaning as in section 24 of the Act;

permissible level 2 activity has the same meaning as in section 25 of the Act;

putrescible waste means waste containing major components that are likely to generate an offensive odour;

wastewater treatment works means works – that are conducted to enable the discharge of treated or untreated sewage, septic tank effluent or industrial or commercial wastewater to land or water; and that have a capacity to treat sewage, septic tank effluent or industrial or commercial wastewater.

The fee payable in respect of a LUPAA permit by the person responsible for a level 2 activity that is not a low-risk activity and is conducted under one LUPAA permit is the total of – the fixed fee in Column 2 of Schedule 1 corresponding to the level 2 activity in Column 1 of that Schedule; and the variable fee in Column 3 of Schedule 1 corresponding to the level 2 activity in Column 1 of that Schedule.

The fee payable in respect of a LUPAA permit, or for the issue and service of an environment protection notice issued in accordance with section 27(6) of the Act, by the person responsible for the level 2 activity that is a low-risk activity and is conducted under one LUPAA permit or one environment protection notice, respectively, is 250 fee units.

The fee payable in respect of a LUPAA permit by the person responsible for the permissible level 1 activity that is conducted under one LUPAA permit, the application for which is referred to the Board under section 24(1) of the Act, is 16 500 fee units plus a variable fee of 12 680 fee units.

The fees prescribed under this regulation are exempt from GST.

The fee payable in respect of an order made under section 26 of the State Policies and Projects Act 1993 by the person responsible for an environmentally relevant activity which is a level 3 activity, and in respect of which the order is made, is – the fee prescribed under regulation 4(1) if the level 3 activity is also a level 2 activity; or 16 500 fee units, plus a variable fee of 12 680 fee units, if the level 3 activity is not also a level 2 activity.

The fees prescribed under this regulation are exempt from GST.

In this regulation – relevant fee, in relation to an environment protection notice, means – in the case of a level 2 activity, the fee prescribed under regulation 4(1); or in the case of an environmentally relevant activity (other than a level 1 activity, level 2 activity or level 3 activity), 16 500 fee units plus a variable fee of 12 680 fee units; relevant period, in relation to an environment protection notice, means – the first 12-month period after the environment protection notice is issued and served on a person; and each 12-month period after the period referred to in paragraph (a).

A person issued and served, in accordance with section 27(6) of the Act, with an environment protection notice that is in force, is liable to pay the relevant fee for all the actions taken by the Director or an authorized officer, during a relevant period, to ensure compliance with any conditions or restrictions contained in the notice.

The person liable to pay the relevant fee under subregulation (2) is to pay that fee within 30 days after – the day on which the environment protection notice is issued and served on the person; and each 12-month anniversary of the day on which the environment protection notice is issued and served on the person.

The fees prescribed under this regulation are exempt from GST.

The person liable to pay the fee under regulation 4 in respect of a LUPAA permit is to pay that fee within 60 days after – the day on which the LUPAA permit is granted; and each 12-month anniversary of the day on which the LUPAA permit is granted.

The person liable to pay the fee under regulation 4(2) in respect of an environment protection notice is to pay that fee within 30 days after – the day on which the environment protection notice is issued and served on the person; and each 12-month anniversary of the day on which the environment protection notice is issued and served on the person while the notice remains in force.

The person liable to pay the fee under regulation 5 in respect of an order made under section 26 of the State Policies and Projects Act 1993 is to pay that fee within 60 days after – the day on which the order is made; and each 12-month anniversary of the day on which the order is made.

The Board, at its own discretion, may exempt a person from liability to pay all or part of a variable fee referred to in regulation 4(1)(b), regulation 4(3), regulation 5(1) or regulation 6(1) – by notice in writing provided to the person; and with effect from a day specified in the notice; and for a period specified in the notice; and with or without any conditions specified in the notice that the Board considers appropriate.

The Board may vary or revoke an exemption granted under subregulation (1) if the Board considers it appropriate to do so.

Within 14 days after varying or revoking an exemption, the Board is to provide notice in writing of the variation or revocation to the person granted the exemption specifying the day on which the variation or revocation takes effect.

Not less than 12 months after the day on which a person became liable to pay a variable fee referred to in regulation 4(1)(b), regulation 4(3), regulation 5(1) or regulation 6(1), the person may apply in writing to the Board for an exemption from liability to pay all or part of the variable fee.

An application is to – be made not less than 90 days before the next 12-month anniversary of – the day on which the LUPAA permit to which the variable fee relates was granted or taken to have been granted; or the making of the order under the State Policies and Projects Act 1993 to which the variable fee relates; or the day on which the environment protection notice to which the variable fee relates was served; and be in a form approved by the Board; and be accompanied by any documents that the Board considers appropriate; and contain any additional information that the Board considers appropriate.

On receipt of an application, the Board may – refuse to grant the exemption; or grant the exemption with or without any conditions that the Board considers appropriate.

In considering an application, the Board must consider the following matters:the measures taken by the applicant to reduce any environmental harm caused by, or likely to be caused by, the environmentally relevant activity; the applicant's history of compliance with any provision of the Act or these regulations; whether or not the applicant has substantially complied with any conditions imposed in respect of the LUPAA permit, the order or environment protection notice to which the variable fee relates; any other matter that the Board considers appropriate.

Within 14 days after determining an application, the Board, by notice in writing provided to the applicant, is to notify the applicant of the following:whether it has granted or refused to grant the exemption; the day on which the exemption takes effect; the period during which the exemption has effect; the conditions, if any, that are imposed on the exemption.

The Board may vary or revoke an exemption granted under subregulation (3) if the Board considers it appropriate to do so.

Within 14 days after varying or revoking an exemption, the Board is to provide notice in writing of the variation or revocation to the person granted the exemption.

Notice of the variation or revocation of an exemption is to specify – the details of the variation or revocation; and the day on which the variation or revocation takes effect; and for a notice of the revocation of an exemption, the period during which the person may not re-apply for the exemption to which the revocation relates.

Not less than 12 months after the day on which a person became – responsible for a level 2 activity conducted under a LUPAA permit; or subject to an environment protection notice issued in accordance with section 27(6)(a) of the Act – the person may apply in writing to the Board for a determination as to whether or not an environmentally relevant activity that is a level 2 activity to which the permit or notice relates is a low-risk activity.

An application is to – be made not less than 90 days before the next 12-month anniversary of – the day on which the LUPAA permit to which the application relates was granted or taken to have been granted; or the day on which the environment protection notice to which the application relates was served; and be in a form approved by the Board; and be accompanied by any documents that the Board considers appropriate; and contain any additional information that the Board considers appropriate.

On receipt of an application or at its discretion, the Board may determine that an environmentally relevant activity – is a low-risk activity; or is not a low-risk activity.

A determination made under subregulation (3)(a) may be made with or without any conditions that the Board considers appropriate.

In making a determination, the Board may take into consideration any one or more of the following matters:whether or not the applicant has substantially complied with any conditions imposed by the Board on the LUPAA permit or environment protection notice; the size, scale, nature and character of works conducted as part of the environmentally relevant activity; whether or not emission limits or emission monitoring requirements are conditions of the LUPAA permit or environment protection notice in respect of the environmentally relevant activity; the proximity of the environmentally relevant activity to any land the use of which, in the opinion of the Board, is sensitive; any other matter that the Board considers appropriate.

Within 14 days after determining whether or not the environmentally relevant activity is a low-risk activity, the Board is to notify the applicant – of its determination; and if the Board determines the activity to be a low-risk activity, of the day on which the determination takes effect.

If the Board determines that an environmentally relevant activity is a low-risk activity but is later satisfied that it is no longer a low-risk activity, the Board may revoke the earlier determination.

Within 14 days after revoking a determination, the Board is to provide notice in writing of the revocation to the person who is responsible for the level 2 activity conducted under the LUPAA permit or the person subject to the environment protection notice.

Notice of the revocation of a determination is to specify – the day on which the revocation of the determination takes effect; and the period during which that person may not re-apply for low-risk status for the environmentally relevant activity; and the reasons for the revocation of the determination.

The fee payable in respect of the assessment by the Board, under section 25A(1A) of the Act, of a permissible level 2 activity referred to the Board under section 25 of the Act is – the fee in Column 4 of Schedule 1 corresponding to that activity in Column 1 of that Schedule; and payable by the person proposing the activity to which the permit application under the Land Use Planning and Approvals Act 1993 that gave rise to the assessment relates.

The fee payable in respect of the assessment by the Board, under section 25(2)(a) of the Act, of a permissible level 1 activity referred to the Board under section 24(1) of the Act is – the hourly rate or 41 322 fee units, whichever is the lesser; and payable by the person proposing the activity to which the permit application under the Land Use Planning and Approvals Act 1993 that gave rise to the assessment relates.

The fee payable in respect of the assessment by the Board, under section 25(2)(a) of the Act, of a use or development that is, under section 25(1A) of the Act, not ancillary to an existing level 2 activity is – the hourly rate or 41 322 fee units, whichever is the lesser; and payable by the person proposing the activity to which the permit application under the Land Use Planning and Approvals Act 1993 that gave rise to the assessment relates.

The fee payable in respect of the assessment by the Board under section 25(2)(a) of the Act, of a permissible level 2 activity referred to the Board under section 25(1) of the Act, other than a use or development that is, under section 25(1A) of the Act, on the same land as, and not ancillary to, an existing level 2 activity, is – the fee in Column 4 of Schedule 1 corresponding to that activity in Column 1 of that Schedule; and payable by the person proposing the activity to which the permit application under the Land Use Planning and Approvals Act 1993 that gave rise to the assessment relates.

The fee payable in respect of the assessment by the Board, under section 25(1A) of the Act, of a permissible level 1 activity referred to the Board under section 24 of the Act is – the hourly rate or 41 322 fee units, whichever is the lesser; and payable by the person proposing the activity to which the permit application under the Land Use Planning and Approvals Act 1993 that gave rise to the assessment relates.

If a notice of intent is lodged under section 27B(1) of the Act, the fee referred to in subregulation (4) is to be calculated from the day on which the notice was lodged.

The fee payable in respect of the assessment by the Board under section 27(3) of the Act, of a level 2 activity referred to the Board under section 27(1) of the Act by the person proposing the activity, is the fee in Column 4 of Schedule 1 corresponding to that activity in Column 1 of that Schedule.

The fee payable in respect of the assessment by the Board under section 27(3) of the Act, of an environmentally relevant activity referred to the Board under section 27(2) of the Act by the person proposing the activity, is the hourly rate or 41 322 fee units, whichever is the lesser.

If, in the course of undertaking an assessment under subregulation (1), (2), (3), (4), (5), (7) or (8), the Board considers it necessary to consult with a person outside the Department or advertise in a newspaper circulating nationally, in addition to the fee payable under those subregulations, the Board may, by written notice provided to the person liable to pay that fee, require that person to pay the cost of any such consultation or newspaper advertisements.

The fees prescribed under this regulation are exempt from GST.