Environmental Protection Amendment Regulation (No. 1) 1999 (Qld)

Queensland Subordinate Legislation 1999 No. 208 Environmental Protection Act 1994 ENVIRONMENTAL PROTECTION AMENDMENT REGULATION (No. 1) 1999 TABLE OF PROVISIONS Section Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 Insertion of new pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 PART 3A—NATIONAL POLLUTANT INVENTORY Division 1—Preliminary Subdivision 1—General 38A Purpose of pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Subdivision 2—Interpretation 38B Definitions for pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 38C Meaning of “emission” of a substance . . . . . . . . . . . . . . . . . . . . . . . 4 38D Meaning of “facility” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 38E Meaning of “offshore facility” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 38F Meaning of “substance” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 38G General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Division 2—Collecting data for the national pollutant inventory 38H Occupiers of reporting facilities to give information . . . . . . . . . . . . 6 38I Exceeding reporting threshold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 38J Reporting period for facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 38K Estimation technique for emission data . . . . . . . . . . . . . . . . . . . . . . . 11 38L Application for approval of estimation technique . . . . . . . . . . . . . . . 11

2 Environmental Protection Amendment (No. 1) No. 208, 1999 38M Approving estimation technique . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 38N Occupier must keep particular data for 3 years . . . . . . . . . . . . . . . . . 12 38O Exemption on ground of national security . . . . . . . . . . . . . . . . . . . . . 13 38P Claiming exemption on ground of commercial confidentiality . . . . 13 38Q Deciding claim for exemption on ground of commercial confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Division 3—Giving information to Commonwealth 38R Chief executive to give information to Commonwealth . . . . . . . . . . 15 Division 4—Enforcement provisions 38S Noncompliance with reporting requirement . . . . . . . . . . . . . . . . . . . . 15 38T Minister may name occupier in report to council . . . . . . . . . . . . . . . 15 Division 5—Miscellaneous 38U Industry handbooks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 4 Amendment of s 39 (Devolution of powers—environmentally relevant activities) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 5 Amendment of s 62 (Review of decisions and appeal) . . . . . . . . . . . . . . . . 17

s1 3 s3 Environmental Protection Amendment (No. 1) No. 208, 1999 Z˙ Short title 1. This regulation may be cited as the Environmental Protection Amendment Regulation (No. 1) 1999 . ˙ Regulation amended 2. This regulation amends the EnvironmentalProtectionRegulation 1998 . ˙ Insertion of new pt 3A 3. After section 38— insert — ‘ PART 3A—NATIONAL POLLUTANT INVENTORY ‘ Division 1—Preliminary ‘ Subdivision 1—General ˙ ‘ Purpose of pt 3A ‘ 38A. The purpose of this part is to give effect to, and enforce compliance with, the National Environment Protection (National PollutantInventory)Measure made under the National Environment Protection Council Act 1994 (Cwlth), section 14. ‘ Subdivision 2—Interpretation ˙ ‘ Definitions for pt 3A ‘ 38B. In this part— “emission” , for a substance, see section 38C. “emission data” , for a substance, means an estimate of the amount of the substance emitted in a reporting period that identifies—

s3 4 s3 Environmental Protection Amendment (No. 1) No. 208, 1999 (a) the medium to which the substance was discharged, including, for example, air, land and water; and (b) the estimation technique used. “estimation technique” means a method of estimating the amount of a substance emitted to the environment. “facility” see section 38D. “industry handbook” , for a facility, means an industry handbook published under the NPIM. 1 “NPIM” means the National Environment Protection (National PollutantInventory) Measure made under the National Environment Protection Council Act 1994 (Cwlth), section 14. “occupier” , of a facility, means the person in occupation or control of the facility, whether or not the person owns the facility. “offshore facility” see section 38E. “published” means published by the Commonwealth. “reporting facility” means a facility the occupier of which is required to give information to the chief executive under section 38H. “reporting period” , for a facility, means the facility’s reporting period under section 38J. “reporting requirement” , for an occupier, means the requirement for the occupier to give information to the chief executive under section 38H(3). “substance” see section 38F. ˙ ‘ Meaning of “emission” of a substance ‘ 38C.(1) “Emission” of a substance is the substance’s emission to the environment— (a) whether in pure form or contained in other matter; and (b) whether as a gas, liquid or solid. 1 Publication of the handbooks is notified in the Commonwealth of Australia Gazette.

s3 5 s3 Environmental Protection Amendment (No. 1) No. 208, 1999 ‘ (2) Emission of a substance includes its emission from a landfill, sewage treatment plant or tailings dam. ‘ (3) However, emission of a substance does not include its— (a) release into a landfill, sewer or tailings dam; or (b) removal from a facility for destroying, treating, recycling, reprocessing, recovering or purifying the substance. ˙ ‘ Meaning of “facility” ‘ 38D.(1) A “facility” is— (a) a building or land from which a substance may be emitted; or (b) an appliance, equipment item, implement, machine, plant item, tool or other item used for an activity carried out at the facility. ‘ (2) A facility includes an offshore facility. ˙ ‘ Meaning of “offshore facility” ‘ 38E.(1) An “offshore facility” is a structure or vessel located in an adjacent area for the State under the Petroleum (Submerged Lands) Act 1967 (Cwlth) that— (a) is used or constructed for recovering petroleum, including natural gas; or (b) carries, contains or includes equipment for drilling, or carrying out another operation for a well, from the structure or vessel. ‘ (2) An offshore facility includes a combination of 2 or more related offshore facilities. ‘ (3) However, an offshore facility does not include a vessel engaged merely in site surveys or investigations to a seabed depth of not more than 100 metres. ˙ ‘ Meaning of “substance” ‘ 38F.(1) For the period 1 July 1998 to 30 June 2000, a “substance” is a substance mentioned in the NPIM, schedule A, table 1, column 1.

s3 6 s3 Environmental Protection Amendment (No. 1) No. 208, 1999 ‘ (2) From 1 July 2000, a “substance” is a substance mentioned in the NPIM, schedule A, table 2, column 1 or, if the column is amended after a review mentioned in the NPIM, section 33, the column as amended. ˙ ‘ General ‘ 38G. Unless this regulation provides otherwise, expressions used in it that are defined under the NPIM have the meaning given to them under the NPIM. ‘ Division 2—Collecting data for the national pollutant inventory ˙ ‘ Occupiers of reporting facilities to give information ‘ 38H.(1) This section applies to an occupier of a facility that, under section 38I, exceeds the reporting threshold for a substance in the facility’s reporting period. ‘ (2) However, this section applies only if an industry handbook for the facility is published at least 3 months before the period ends. ‘ (3) Subject to sections 38O and 38Q, 2 the occupier must give the following information to the chief executive within 3 months after the period ends— (a) the occupier’s— (i) name or any other relevant identification, including any name changes in the preceding financial year; and (ii) Australian Company Number (ACN), if applicable; and (iii) postal address; and (iv) contact phone number for public enquiries; (b) the facility’s— (i) street address; and (ii) main activity; 2 Sections 38O (Exemption on ground of national security) and 38P (Deciding claim for exemption on ground of commercial confidentiality)

s3 7 s3 Environmental Protection Amendment (No. 1) No. 208, 1999 (c) for each substance for which the reporting threshold is exceeded in the period— (i) the substance’s name and chemical abstract series registered number, if any; and (ii) emission data; (d) any further information required to assess the integrity of the emission data and stated in the industry handbook for the facility or reasonably requested, by written notice given to the occupier, by the chief executive. ‘ (4) The notice must state— (a) why the further information is required; and (b) that the applicant may, within 14 days after the notice is given, apply for a review of, or appeal against, the decision to issue the notice. ‘ (5) The information must be accompanied by a statement, signed by or for the occupier, that the occupier exercised care in obtaining and giving the information. ‘ (6) In this section— “facility” does not include the following— (a) a mobile emission source, including, for example, an aircraft in flight or a ship at sea, operating outside the boundaries of a fixed facility; (b) a petroleum retailing facility, or part of a petroleum retailing facility, engaged in selling fuel by retail; (c) a dry-cleaning facility employing less than 20 persons; (d) a scrap metal handling facility trading in metal and not engaged in battery reprocessing or metal smelting; (e) a facility, or part of a facility, engaged solely in agricultural production, unless it is engaged in— (i) processing agricultural produce; or (ii) intensive livestock production, including, for example a cattle feedlot or piggery.

s3 8 s3 Environmental Protection Amendment (No. 1) No. 208, 1999 Examples of ‘agricultural production’ for paragraph (e)— Aquaculture, horticulture, livestock raising and tree growing. “table 1 substance” means a substance mentioned in the NPIM, schedule A, table 1. “table 2 substance” means a substance mentioned in the NPIM, schedule A, table 2. ˙ ‘ Exceeding reporting threshold ‘ 38I.(1) The facility exceeds the reporting threshold for a substance in its reporting period if— (a) for a category 1 substance, its activities involve using 10 t or more of the substance in the period; or (b) for a category 1a substance— (i) its activities involve using 25 t or more of the substance in the period; and (ii) for a bulk storage facility, its design capacity also exceeds 25 kt; or (c) for a category 2a substance, its activities involve burning— (i) 400 t or more of fuel or waste in the period; or (ii) 1 t or more of fuel or waste in any hour in the period; or (d) for a category 2b substance— (i) its activities involve— (A) burning 2 000 t or more of fuel or waste in the period; or (B) consuming 60 000 MW hours or more of energy in the period; or (ii) its maximum potential power consumption at any time in the period is rated at 20 MW or more; or (e) for a category 3 substance, its activities involve emitting to water, other than groundwater, the scheduled amount, or more, of the substance in the period.

s3 9 s3 Environmental Protection Amendment (No. 1) No. 208, 1999 ‘ (2) Subsection (1)(a) or (b) does not apply to using a substance— (a) already permanently incorporated in an article in a way not leading to its emission to the environment; or (b) if it is an article for sale or use and is handled in a way not leading to its emission to the environment. Example for subsection (2)(a)— An alloy component of metal in a machine. ‘ (3) In working out the amount of a substance used for subsection (1)(a) or (b), the occupier is not required to include an amount that is in a proprietary mixture or any other material unless— (a) for a proprietary mixture—the substance is specified in a material safety data sheet describing the substance’s properties and use, or the manufacturer’s advice; and (b) for any other material—the occupier could reasonably be expected to know the substance is in the material. ‘ (4) In this section— “article” means a manufactured item formed to a specific shape or design during manufacture. “category 1 substance” means a substance for which a threshold category of 1 is stated in the NPIM, schedule A, table 1 or 2, column 3. “category 1a substance” means a substance for which a threshold category of 1a is stated in the NPIM, schedule A, table 1 or 2, column 3. “category 2a substance” means a substance for which a threshold category of 2a is stated in the NPIM, schedule A, table 1 or 2, column 3. “category 2b substance” means a substance for which a threshold category of 2b is stated in the NPIM, schedule A, table 1 or 2, column 3. “category 3 substance” means a substance for which a threshold category of 3 is stated in the NPIM, schedule A, table 1 or 2, column 3. “scheduled amount” , of a substance, means the amount mentioned in the NPIM, schedule A, table 1 or 2, column 4, for the substance.

s 3 10 s 3 Environmental Protection Amendment (No. 1) No. 208, 1999 “using” , a substance, means handling, manufacturing, importing or processing it or producing it as a waste or by-product of an activity or process. ˙ ‘ Reporting period for facility ‘ 38J.(1) The reporting period for the facility is— (a) a financial year; or (b) if the chief executive decides the occupier is required, under section 68 of the Act, to give the chief executive data similar to emission data on the basis of a different annual reporting period, the different annual reporting period. ‘ (2) The chief executive may make a decision under subsection (1)(b) on the chief executive’s own initiative or on a written application made to the chief executive by the occupier. ‘ (3) Immediately after making the decision, the chief executive must give the occupier written notice of it. ‘ (4) If the chief executive refuses the occupier’s application, the notice must state— (a) the application is refused and the reasons for the refusal; and (b) that the applicant may, within 14 days after the notice is given, apply for a review of, or appeal against, the chief executive’s decision to refuse the application. ‘ (5) If the chief executive fails to give the occupier a notice about the chief executive’s decision on an application made by the occupier under subsection (2) within 40 days after the application is made, the failure is taken to be a decision by the chief executive to refuse the application at the end of the 40 days. ‘ (6) Despite subsection (1), the first reporting period for a new reporting facility is the period— (a) starting on the first day of the third month after the industry handbook for the facility is published; and (b) ending at the end of— (i) the financial year in which the handbook is published; or

s 3 11 s 3 Environmental Protection Amendment (No. 1) No. 208, 1999 (ii) if subsection (1)(b) applies to the facility, the annual reporting period mentioned in the subsection. ‘ (7) In this section— “new reporting facility” means a facility for which an industry handbook is published— (a) after 1 July 1998; and (b) at least 3 months before the end of the facility’s reporting period mentioned in subsection (1). ˙ ‘ Estimation technique for emission data ‘ 38K. The occupier of a facility must use 1 of the following estimation techniques for emission data— (a) the estimation technique set out in the industry handbook for the facility; (b) another estimation technique approved by the chief executive for the facility. ˙ ‘ Application for approval of estimation technique ‘ 38L.(1) The occupier of a facility may apply to the chief executive for approval of an estimation technique for emission data. ‘ (2) The application must be in writing, setting out the technique for which approval is sought and giving the information necessary to enable the chief executive to decide the application. ‘ (3) The chief executive may, by written notice given to the occupier, ask the occupier to give to the chief executive, in the reasonable period stated in the notice, further relevant information to enable the chief executive to decide the application. ˙ ‘ Approving estimation technique ‘ 38M.(1) The chief executive may approve the estimation technique, or approve it subject to a modification decided by the chief executive. ‘ (2) In deciding whether to approve the estimation technique, or approve

s 3 12 s 3 Environmental Protection Amendment (No. 1) No. 208, 1999 it subject to a modification, the chief executive must have regard to the accuracy of the technique compared with the accuracy of estimation techniques in the handbook. ‘ (3) The chief executive may refuse to approve the technique if the chief executive has given the occupier a notice under section 38L(3) asking for further information and the occupier does not comply with the request in the period stated in the notice. ‘ (4) Immediately after making a decision under this section, the chief executive must give the occupier written notice of the decision. ‘ (5) If the chief executive decides to approve the technique subject to a modification, the notice must state the modification. ‘ (6) If the chief executive refuses to approve the technique, or approves it subject to a modification, the notice must state— (a) the approval is refused or given subject to a stated modification to the technique and the reasons for the refusal or modification; and (b) that the occupier may, within 14 days after the notice is given, apply for a review of, or appeal against, the chief executive’s decision to refuse the approval or give it subject to the modification. ‘ (7) Subsection (8) applies if the chief executive fails to give the occupier a notice about the chief executive’s decision on an application made by the occupier under section 38L— (a) within 40 days after the application is made; or (b) if the occupier gave the chief executive further information under section 38L(3)—within 40 days after receiving the further information. ‘ (8) The chief executive’s failure to give the notice is taken to be a decision by the chief executive to refuse to approve the technique at the end of the relevant 40 days. ˙ ‘ Occupier must keep particular data for 3 years ‘ 38N.(1) The occupier of a facility must keep the data used in deciding if the reporting threshold for a substance is exceeded in the reporting period for the occupier’s facility for 3 years after the reporting period ends.

s 3 13 s 3 Environmental Protection Amendment (No. 1) No. 208, 1999 Maximum penalty—20 penalty units. ‘ (2) The occupier must keep the data used in calculating emission data given to the chief executive for 3 years after the emission data is required to be given. Maximum penalty—20 penalty units. ˙ ‘ Exemption on ground of national security ‘ 38O.(1) This section applies if the occupier of a facility gives the chief executive written evidence that— (a) the occupier has made a claim to the Commonwealth under the NPIM that information required to be given by the occupier under section 38H(3) should be treated as confidential on the grounds of national security; and (b) the claim— (i) has been granted; or (ii) has not been assessed before the occupier is required to give the information to the chief executive. ‘ (2) Subject to subsection (3), the occupier is exempted from giving the information to the chief executive. ‘ (3) If the exemption is given under subsection (1)(b)(ii) and the Commonwealth refuses the claim after the occupier is required to give the information to the chief executive, the occupier must give the information to the chief executive within 3 months after receiving notice of the Commonwealth’s decision to refuse the claim. ˙ ‘ Claiming exemption on ground of commercial confidentiality ‘ 38P.(1) The occupier of a facility may, by written notice given to the chief executive, claim information required to be given by the occupier under section 38H(3) should be treated as confidential on the grounds of commercial confidentiality. ‘ (2) The notice must contain the information necessary to enable the chief executive to decide the claim.

s 3 14 s 3 Environmental Protection Amendment (No. 1) No. 208, 1999 ‘ (3) The chief executive may, by written notice given to the occupier, ask the occupier to give the chief executive, in the reasonable period stated in the notice, further relevant information to enable the chief executive to decide the claim. ˙ ‘ Deciding claim for exemption on ground of commercial confidentiality ‘ 38Q.(1) The chief executive may grant the claim only if the chief executive reasonably believes the information would be exempt matter under the Freedom of Information Act 1992 , section 45. 3 ‘ (2) If the chief executive grants the claim, the occupier is exempted from giving the information to the chief executive. ‘ (3) The chief executive may refuse to grant the claim if the chief executive has given the occupier a notice under section 38O(3) asking for further information and the occupier does not comply with the request in the period stated in the notice. ‘ (4) The chief executive must give the occupier written notice of the chief executive’s decision on the claim. ‘ (5) If the chief executive refuses to grant the claim, the notice must state— (a) the claim is refused and the reasons for the refusal; and (b) that the occupier may, within 14 days after the notice is given, apply for a review of, or appeal against, the chief executive’s decision on the claim. ‘ (6) Subsection (7) applies if the chief executive fails to give the occupier a notice about the chief executive’s decision on the claim— (a) within 60 days after the claim is made; or (b) if the occupier gave the chief executive further information under section 38P(3)—within 60 days after receiving the further information. ‘ (7) The chief executive’s failure to give the notice is taken to be a 3 Freedom of InformationAct 1992 , section 45 (Matter relating to trade secrets, business affairs and research)

s 3 15 s 3 Environmental Protection Amendment (No. 1) No. 208, 1999 decision by the chief executive to refuse to grant the claim at the end of the relevant 60 days. ‘ Division 3—Giving information to Commonwealth ˙ ‘ Chief executive to give information to Commonwealth ‘ 38R.(1) This section applies to information given to the chief executive under section 38H by 30 September in a year. ‘ (2) The chief executive must ensure the information is given to the Commonwealth under the NPIM by 30 November in the year. ‘ Division 4—Enforcement provisions ˙ ‘ Noncompliance with reporting requirement ‘ 38S.(1) The occupier of a reporting facility must comply with the occupier’s reporting requirement, unless the occupier has a reasonable excuse for not complying with it. Maximum penalty—20 penalty units. ‘ (2) Subsection (1) does not apply to the occupier’s reporting requirement— (a) for the period 1 July 1998 to 30 June 2000; and (b) for substances mentioned in the NPIM, schedule A, table 2 and not mentioned in that schedule, table 1—for the period 1 July 2000 to 30 June 2001. ˙ ‘ Minister may name occupier in report to council ‘ 38T.(1) This section applies to the occupier of a facility who the Minister is satisfied has failed to comply with section 38S. ‘ (2) If the Minister is satisfied it is appropriate in the circumstances, the Minister may, in the Minister’s report to the council under the NationalEnvironment Protection Council (Queensland) Act 1994 , section 23, name the occupier as a person who the Minister is satisfied has failed to comply

s 3 16 s 3 Environmental Protection Amendment (No. 1) No. 208, 1999 with section 38S. ‘ (3) In deciding whether it is appropriate in the circumstances to name an occupier in the report, the Minister must have regard to the following relevant matters— (a) any mitigating or aggravating circumstances; (b) whether the occupier has previously failed to comply with the section and any action taken against the occupier for the noncompliance; (c) whether naming the occupier would be unreasonably harsh or oppressive. ‘ (4) Before naming the occupier in the report, the Minister must give the occupier a written notice stating the following— (a) that the Minister proposes naming the occupier in the report as a person who the Minister is satisfied has failed to comply with section 38S; (b) the grounds for the proposed action; (c) that the occupier may make, within a stated period (the “show cause period” ) written representations to show why the proposed action should not be taken. ‘ (5) The show cause period must end not less than 28 days after the notice is given to the occupier. ‘ (6) The Minister must consider the written representations, if any, made by the occupier during the show cause period. ‘ (7) If, after considering the representations, the Minister still believes it is appropriate to name the person in the report, the Minister may do so. ‘ (8) The Minister must give the occupier written notice of the decision stating the following— (a) that the Minister has decided to name the occupier in the report as a person who the Minister is satisfied has failed to comply with section 38S, and the reasons for the decision; (b) that the occupier may, within 30 days after receiving the notice, appeal against the Minister’s decision to name the occupier in the report.

s 4 17 s 5 Environmental Protection Amendment (No. 1) No. 208, 1999 ‘ (9) In this section— “council” means the National Environment Protection Council under the National Environment Protection Council (Queensland) Act 1994 . ‘ Division 5—Miscellaneous ˙ ‘ Industry handbooks ‘ 38U. A person may, free of charge, inspect or obtain a copy of an industry handbook at the department’s head office 4 when it is open to the public.’. ˙ Amendment of s 39 (Devolution of powers—environmentally relevant activities) 4. Section 39— insert — ‘ (4) To remove any doubt, it is declared that the administration and enforcement of parts 3 and 3A are not devolved to a local government, regardless of whether an activity dealt with in the parts is an environmentally relevant activity.’. ˙ Amendment of s 62 (Review of decisions and appeal) 5.(1) Section 62(1)— insert — ‘(c) a decision of the chief executive, under part 3A, to— (i) request information for assessing the integrity of emission data given by an occupier of a reporting facility; or (ii) request information to decide an application for approval of an estimation technique; or (iii) refuse to approve an estimation technique, or approve it 4 The department’s head office is at 160 Ann Street, Brisbane.

s 5 18 s 5 Environmental Protection Amendment (No. 1) No. 208, 1999 subject to a modification; or (iv) request information to decide a claim for an exemption on the ground of commercial confidentiality; or (v) refuse to grant a claim for exemption on the ground of commercial confidentiality; (d) a decision of the chief executive, under part 3A, about an annual reporting period for a reporting facility.’. (2) Section 62— insert — ‘ (1A) Chapter 6, part 3, divisions 1 and 3 of the Act apply to a decision of the Minister, under part 3A, to name an occupier of a reporting facility in the Minister’s report to the Council as if the Minister’s decision were a review decision and the occupier were a dissatisfied person.’. (3) Section 62(2), ‘For subsection (1)’— omit, insert — ‘For subsection (1) or (1A)’. (4) Section 62(2)— insert — ‘(c) for a decision mentioned in subsection (1)(c) or (d) or (1A)—the occupier of the facility concerned.’. ENDNOTES 1. Made by the Governor in Council on 9 September 1999. 2. Notified in the gazette on 10 September 1999. 3. Laid before the Legislative Assembly on . . . 4. The administering agency is the Environmental Protection Agency. © State of Queensland 1999