Laws was not too long ago made in New South Wales that has essentially modified the best way by which chemical compounds are managed within the State. The EPA will now regulate industrial chemical compounds via numerous mechanisms together with requiring Atmosphere Safety Licences for actions involving high-risk industrial chemical compounds like sure PFAS and polychlorinated naphthalenes; issuing of Chemical Management Orders and associated EPLs; and the imposition of common duties and related enforcement powers regarding air pollution incidents regarding listed industrial chemical compounds. On this article, we unpack the thriller behind IChEMS and its latest adoption in NSW.
If listed industrial chemical compounds are a element of your worth chain, learn on….
IChEMS
The Industrial Chemical compounds Environmental Administration Customary (IChEMS) is a nationwide framework developed by the Commonwealth authorities, in cooperation with the States and Territories, to handle and handle dangers posed by industrial chemical compounds throughout Australia.
Beneath federal laws, the Commonwealth Minister of the Atmosphere has the authority to make scheduling selections below which industrial chemical compounds are listed on a publicly accessible register referred to as the IChEMS Register (Commonwealth Register). Industrial chemical compounds could be listed on certainly one of seven schedules, depending on the diploma of regulation required given the potential environmental impacts related to that chemical. The system of classification required by the federal IChEMS laws is illustrated in Determine 1 beneath.
Determine 1 (Supply: DCCEEW1)
The Commonwealth Register facilitates the identification of listed industrial chemical compounds and supplies complete steerage on managing the environmental dangers posed by the manufacture, use and disposal of these chemical compounds by establishing needed danger administration measures for every listed industrial chemical.
As the danger administration measures are geared toward addressing environmental dangers, the extra severe and irreversible these environmental dangers are, the upper the diploma of danger administration intervention required. For instance,
- Schedule 1 chemical compounds are topic to the bottom type of administration intervention, with solely compliance to a common set of minimal requirements for environmental administration (MES) being required. A hyperlink to the MES is supplied on the finish of this text.
- Schedule 2-4 chemical compounds shall be topic to the MES and to progressively stricter danger administration measures which might be applicable to the danger posed by these chemical compounds. These danger administration measures won’t embody prohibitions or restrictions on use, manufacture, import, and export.
- Schedule 5 chemical compounds might, along with tailor-made danger administration measures and the MES, be topic to sure prohibitions or restrictions on use.
- Schedule 6 chemical compounds are topic to prohibitions on the import, export, manufacture, and use aside from specified important makes use of.
- Schedule 7 chemical compounds are topic to common prohibitions on the import, export, manufacture, and use.
Determine 2 beneath illustrates the growing danger administration measures required as environmental danger will increase.
Determine 2 (Supply: DCCEEW2)
Present listed industrial chemical compounds
A number of industrial chemical compounds have already been the topic of scheduling selections and are listed, together with danger administration measures, on the Commonwealth Register. Among the many most well-known chemical compounds at present listed are three PFAS, being PFHxS, PFOS and PFOA. These PFAS are listed on Schedule 7. The PFAS itemizing devices are to come back into pressure on 1 July 2025, with the impact of instantly prohibiting the import, export, manufacture, and use of those PFAS, topic to restricted exceptions like, for instance, analysis or laboratory use, or the place a hazardous waste allow authorises the import or export of the chemical.
desk setting out the at present listed industrial chemical compounds is supplied on the finish of this text. The Commonwealth Division has not but launched its up to date workplan, which can describe the subsequent classes of commercial chemical compounds to be thought of for itemizing, however has indicated that that is in growth and shall be launched quickly.
State and Territory adoption
Importantly, whist federal laws establishes IChEMS and the Commonwealth Register, and scheduling selections are made at a federal stage, no restrictions or obligations are instantly imposed on any particular person throughout the jurisdictions of the States and Territories. Equally, no State or Territory regulator is empowered to implement or implement IChEMS. It’s subsequently needed for every State and Territory to undertake its personal enabling IChEMS laws. The varied Environmental Ministers of the States and Territories agreed to take action, and slowly we’re seeing progress being made in rolling out IChEMS. Queensland was the primary mover and has already carried out the IChEMS regime by incorporating compliance with the Commonwealth Register as a element of the overall environmental responsibility below the Environmental Safety Act 1994 (Qld).
New South Wales
Following carefully behind Queensland, NSW is the second jurisdiction to implement and undertake IChEMS. NSW has carried out so via the passing of the Environmental Laws Modification (Hazardous Chemical compounds) Act 2024 (Act), which was assented to on 25 March 2024.
The Act implements the nationwide IChEMS framework by incorporating it throughout the current Safety of the Atmosphere Operations Act 1997 (POEO Act). The amendments to the POEO Act are predominately discovered throughout the new Half 9.3E, which was inserted by operation of the Act. As well as, the Act establishes at Schedule 1 of the POEO Act, new premises based mostly and non-premises based mostly scheduled actions for an “environmentally hazardous exercise”. An environmentally hazardous exercise contains:
- an exercise in Schedule 1 of the POEO Act, which includes using a chemical listed in Schedule 6 or Schedule 7 of the NSW IChEMS Register; and
- an exercise regulated by a chemical management order (CCO) in relation to a chemical.
The Act subsequently requires that any particular person engaged in an exercise involving an industrial chemical listed on Schedule 6 or 7 of the NSW IChEMS Register should acquire an setting safety licence (EPL).
As well as, the brand new Half 9.3E of the POEO Act:
- establishes the NSW IChEMS Register, which mirrors the Commonwealth Register. The impact of that is that every one federal scheduling selections itemizing industrial chemical compounds on the IChEMS Register will routinely be listed on the NSW IChEMS Register and can apply inside NSW. NSW reserves the power to switch the Commonwealth Register, together with by including, various, or omitting any matter. Due to this fact, it’s attainable for NSW to listing industrial chemical compounds not listed federally, or to not listing chemical compounds which might be listed federally. Additionally, NSW might modify the danger administration measures described on the Commonwealth Register in order that extra or fewer measures will apply in NSW than in different states or territories.
- creates an obligation on all customers and producers of chemical compounds listed on the NSW IChEMS Register to stick to the desired danger administration measures (i.e., these measures specified within the Commonwealth register, as modified by NSW). Failure to adjust to a danger administration measure is taken to be a ‘air pollution incident’ below the POEO Act. Because of this, the EPA will be capable to implement compliance with danger administration measures via the present enforcement mechanisms akin to clean-up notices and prevention notices. As well as, customers and manufactures could have an obligation to inform related authorities about any non-compliance with danger administration measures that causes or threaten to trigger materials hurt to the setting.
- creates an obligation on individuals to not do something that’s prohibited within the NSW IChEMS Register, until authorised by an EPL. Contravention of this obligation is an offence, with firms dealing with penalties of as much as $2,000,000 and $120,000 for every day the offence continues. The offence additionally attracts particular government legal responsibility for a director or different particular person concerned within the administration of the company.
- empowers the EPA to publish a chemical use discover. The aim of a chemical use discover is to allow to the EPA to acquire info relating to the prevalence and use of commercial chemical compounds in NSW. A chemical use discover might solely be made in relation to:
- a chemical which is listed within the NSW IChEMS register,
- a chemical for which a chemical management order is in pressure, or
- a chemical which, within the EPA’s opinion, has the potential to current a danger of hurt to human well being or the setting.
Failure to adjust to a chemical use discover is an offence, with firms dealing with penalties of as much as $2,000,000 and $120,000 for every day the offence continues. The offence additionally attracts particular government legal responsibility for a director or different particular person concerned within the administration of the company,
- empowers the EPA to challenge chemical management orders prohibiting or regulating numerous actions in relation to a chemical, together with manufacturing, processing, protecting, storing, distributing, transporting, utilizing, promoting, disposing, or associated actions. A CCO might solely be issued the place needed to forestall or minimise an opposed impact on the setting that will outcome from carrying on the exercise in relation to the chemical. Failure to adjust to a CCO is an offence, with firms dealing with penalties of as much as $1,000,000 and $120,000 for every day the offence continues. The offence additionally attracts particular government legal responsibility for a director or different particular person concerned within the administration of the company,
The Act additionally repeals the Environmentally Hazardous Chemical compounds Acts 1985 (NSW) (EHC Act) and the Environmentally Hazardous Chemical compounds Regulation 2017 by transferring key provisions to the POEO Act – as is clear via the continued operation of CCO’s now below the POEO Act.
Industrial Chemical compounds listed on the Commonwealth Register
| Schedule | Industrial Chemical |
| Schedule 7 |
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| Schedule 6 |
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| Schedule 5 | |
| Schedule 4 | |
| Schedule 3 |
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| Schedule 2 |
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| Schedule 1 |
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Helpful hyperlinks:
The IChEMS Minimum Standards – DCCEEW
IChEMS Online Register – DCCEEW
