Protection of the Environment Operations (General) Regulation 2022

Executive summary of update

This update to the Protection of the Environment Operations (General) Regulation 2022 introduces explicit formulas for calculating load-based fees for assessable pollutants, which were previously undefined. It also clarifies the specific paragraph reference for land pollution in the Act’s Dictionary, potentially altering the scope of prescribed matter. Additionally, the update includes future amendments to Schedule 10 definitions related to PFAS firefighting foam and updates to scheduled activities under the principal Act. The primary intent is to enhance clarity and precision in environmental fee calculations and regulatory definitions. The most significant practical consequence is the need for licence holders to re-evaluate their load-based fee calculations using the new formulas.

Impacted parties

This update primarily impacts licence holders subject to load-based licensing schemes, particularly those involved in electricity generation and coal mining, as well as entities whose activities are defined under the Act’s land pollution provisions.

Change Analysis

1. Explicit Load-Based Fee Calculation Formulas

What changed? Previously, Section 42 of the Regulation referred to “Formula 1” and “Formula 2” for calculating load-based fees but did not explicitly define these formulas. The update now provides the precise mathematical expressions for both:

• Formula 1 (when assessable load is greater than the fee rate threshold): Fee = $\frac{(2AL-FRT) \times PFU \times PW \times CZ}{10,000}$
• Formula 2 (otherwise): Fee = $\frac{AL \times PFU \times PW \times CZ}{10,000}$ Similarly, Section 98(1)** and **Section 99(1), which previously referred to generic formulas for calculating the annual levy for Upper Hunter electricity generation and coal mining licence holders, now explicitly define these formulas:
• Section 98(1) (Upper Hunter electricity generation): EGL = (0.9xFxG/H)+(0.1xFxI/J)
• Section 99(1) (Upper Hunter coal mining): CML = (0.9×F×K/H×L/M)+(0.1×F×N/J)

Why it matters? This change provides much-needed clarity and certainty for licence holders regarding the calculation of their load-based fees and annual levies. It removes ambiguity and ensures a standardized approach to fee determination. For businesses, this means a more predictable financial obligation and the ability to accurately forecast environmental costs. It also enables more precise internal auditing and compliance checks against the EPA’s methodology.

2. Clarification of Land Pollution Definition

What changed? Section 133(1), which prescribes matter for the definition of “land pollution” or “pollution of land” in the Act’s Dictionary, has been amended. The reference to the specific paragraph in the Act’s Dictionary has changed from “paragraph (b)” to “paragraph (a)(ii)”.

Why it matters? This is a substantive change to the legal definition of land pollution. By altering the specific paragraph reference, the scope of what constitutes prescribed matter for land pollution under the Act may have shifted. This could impact how certain waste types or activities are classified and regulated, potentially leading to new or altered obligations for waste generators and land managers. It requires a re-evaluation of current waste management practices against the updated definition.

3. Future Amendments to Scheduled PFAS Definitions

What changed? The “Status Information” section notes a future amendment by the Environmental Legislation Amendment Act 2025 No 58, Sch 10[2] and [3]* (not commenced). This indicates that *Schedule 10 (Dictionary) will be amended to include or modify definitions related to PFAS firefighting foam.

Why it matters? Although not yet commenced, this foreshadows future changes to the definitions of combustible accelerant fire**, PFAS firefighting foam, scheduled PFAS, and use in Schedule 10. These definitions are critical for understanding the scope of exemptions and prohibitions related to PFAS firefighting foam in **Chapter 6, Part 1A. Organisations using or storing PFAS firefighting foam will need to monitor the commencement of these amendments closely, as they could alter their legal obligations and exemptions.

Corrective and preventive actions

• Legal

  • Section 42, 98(1), 99(1): Review the new explicit formulas for load-based fee and annual levy calculations to ensure legal interpretation aligns with the EPA’s methodology.
  • Section 133(1): Re-evaluate the definition of “land pollution” in the Act’s Dictionary, specifically paragraph (a)(ii), to understand any altered scope of prescribed matter.
  • *Status Information (Environmental Legislation Amendment Act 2025)**: Monitor the commencement of the Environmental Legislation Amendment Act 2025 and its impact on *Schedule 10 definitions related to PFAS firefighting foam.

• Finance

  • Section 42, 98(1), 99(1): Update financial models and budgeting tools to incorporate the new explicit formulas for load-based fees and annual levies.
  • Section 42, 98(1), 99(1): Conduct a retrospective calculation for recent periods to identify any discrepancies or over/underpayments based on the new formulas.

• Operations

  • Section 42, 98(1), 99(1): Ensure all operational data collection and reporting systems are capable of providing the inputs required for the new load-based fee and annual levy formulas.
  • Section 133(1): Review waste management and land use practices to ensure compliance with the clarified definition of land pollution.
  • Status Information (Environmental Legislation Amendment Act 2025): Prepare for potential changes in PFAS firefighting foam handling and usage protocols once the future amendments commence.

• Health Safety and Environment

  • Section 133(1): Update internal environmental management plans and risk assessments to reflect the clarified definition of land pollution.
  • Status Information (Environmental Legislation Amendment Act 2025): Develop a plan to assess the impact of future PFAS definition changes on safety data sheets, storage, and emergency response procedures.

• Project Management

  • Section 42, 98(1), 99(1): Incorporate the new fee calculation methodologies into project planning and cost estimations for any activities requiring environmental licences or levies.

Risks & opportunities assessment

The explicit definition of load-based fee formulas in Section 42**, 98(1), and 99(1) reduces financial uncertainty and the risk of unexpected environmental costs, allowing for more accurate budgeting and potentially identifying opportunities for cost optimisation through targeted pollution reduction efforts. The clarification of the land pollution definition in Section 133(1), while potentially requiring adjustments to waste management, offers an opportunity to enhance compliance and mitigate legal risks associated with misclassification. The impending changes to PFAS definitions in **Schedule 10 present a risk of future operational adjustments and compliance costs but also an opportunity to proactively adapt to evolving environmental standards and potentially adopt safer alternatives.