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Australia – Greentape Reduction – An Overview Of Key Changes To The Environmental Protection Act 1994.

31 August, 2012

 

Legal News & Analysis – Asia Pacific – Australia – Environment 

 

In brief

 

  • The Greentape Reduction Act is scheduled to effect significant amendments to the Environmental Protection Act 1994 (Qld) in March 2013.
  • We examine the key amendments that will be delivered by the Greentape Reduction Act and provide an overview of the new framework that will apply to environmentally relevant activities.

 

Introduction

 

On 14 August 2012, the Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 (Qld) ("Greentape Reduction Act") was assented to, with commencement scheduled for March 2013.

 

While the changes introduced by the Greentape Reduction Act are expected by the Queensland Government to deliver time and cost savings for both business and government, it remains to be seen whether the Greentape Reduction Act will actually deliver "greentape reduction" on the ground.

 

This article overviews some of the key mechanical changes to be introduced by the Greentape Reduction Act to the Environmental Protection Act 1994 (Qld) ("EP Act") including:

 

  • important terminology changes and concepts;
  • the mechanics of the new application and assessment framework for environmental authorities ("EAs");
  • adjustments to the Land Court referral system for mining EAs;
  • dealings with EAs including amendments, amalgamations, transfers and annual returns;
  • new provisions relating to the registration of suitable operators and progressive rehabilitation;
  • changes to compliance tools; and
  • the effect of the transitional provisions on existing EAs and development permits for environmentally relevant activities ("ERAs").

 

Key terms and concepts

 

At the outset, it is important to understand some of the key terms and concepts to be introduced by the Greentape Reduction Act.

 

  • ERAs will be divided into three key categories, namely resource activities, prescribed ERAs and agricultural ERAs.
  • All ERAs will be authorised by EAs.
  • "Resource activities" will incorporate both "mining activities" and "petroleum activities" (as well as geothermal and greenhouse gas storage activities).
  • "Prescribed ERAs" will be those other ERAs (other than a mining activity, petroleum activity or agricultural ERA) to be prescribed under the Environmental Protection Regulation 2008 (Qld) ("Regulation").
  • ERAs may be "eligible ERAs" or "ineligible ERAs".
  • "Eligible ERAs" will be ERAs that satisfy certain eligibility criteria (and are not carried out as part of a significant project).
  • "Ineligible ERAs" will be ERAs that do not satisfy eligibility criteria (or for which eligibility criteria are not in effect) or are carried out as part of a significant project.
  • ERAs may be carried out as "single integrated operations" where activities will be carried out at one or more places but will be managed by a single responsible individual, will be operationally interrelated and will be sufficiently close together to facilitate feasible day to day management.
  • The "project" concept for EAs has been retained, with a "resource project" to be all resource activities carried out (under one or more tenures) as a single integrated operation and a "prescribed ERA project" to be all prescribed ERAs carried out as a single integrated operation.
  • Chapter 4 of the existing EP Act is to be omitted. It essentially dealt with development approvals and registration for non-mining/petroleum ERAs.
  • Existing Chapters 5, 5A and 6 will also be omitted, and replaced with new chapters 5 (EAs for ERAs) and 5A (general provisions about ERAs).

 

Mechanics of the new application and assessment framework

 

The new application and assessment framework introduced by the Greentape Reduction Act will involve a four-stage process, with similarities to the existing Integrated Development Assessment System ("IDAS") under the Sustainable Planning Act 2009 (Qld) ("SPA"). Types of applications The Greentape Reduction Act introduces three new types of applications for an EA, namely:

 

  • standard applications;
  • variation applications; and
  • site-specific applications.

 

The application process that will apply depends on the size of a project and the environmental risks posed by the proposed activities.

 

"Standard applications" will be available for eligible ERAs that can comply with the published standard conditions. These applications are likely to apply to smaller projects and are most similar to "code compliant EAs" under the existing framework.

 

A "variation application" will be necessary where a proponent wants to carry out an eligible ERA but requires one or more of the standard conditions to be amended or varied.

 

For all other projects, a "site-specific application" will be required. These applications will be most relevant to larger, higher risk project that are unable to comply with the eligibility criteria.

 

Site-specific applications for coal seam gas ("CSG") activities have additional application requirements largely relating to water management and disposal (similar to those currently required under the environmental management plan provisions of Chapter 5A of the EP Act).

 

Stage one: Application

 

The application stage requires a proponent to consider the type of application to be made and ensure all application requirements are met. New provisions will allow:

 

  • notices about not properly made applications to be given; and
  • changes to be made to applications (before applications are decided).

 

Stage two: Information

 

The information stage gives the Department of Environment and Heritage Protection ("DEHP") or other relevant administering authority the ability to request further information about an application.

 

The information stage applies only to variation and site-specific applications, but will not apply if an Environmental Impact Statement ("EIS") has been prepared for a project and there have been no significant changes to the project since the EIS was completed.

 

Failure to respond to an information notice from the DEHP within the statutory timeframes will result in the application lapsing.

 

Stage three: Notification

 

The notification stage applies to applications for EAs relating to:

 

  • an application for a mining activity relating to a mining lease; or
  • a site-specific application involving a petroleum activity, geothermal activity or greenhouse gas storage activity.

 

The notification stage obligations contemplated by the Greentape Reduction Act expand on those currently in the EP Act and require, for example, a proponent to keep copies of an EA application notice and application documents available on a website until the application is decided, withdrawn or lapses (for site-specific applications). Similarly the DEHP will be required to keep copies of (or links to) publicly notified applications available on its website.

 

To prevent time delays, the notification stage will run concurrently with the information stage. Again, the notification stage will not apply if an EIS has been prepared for a project and there have been no significant changes to the project.

 

Stage Four: Decision

 

The decision stage involves deciding an EA application and associated conditions. Specific criteria will apply to decisions for the three types of applications: standard applications, variation applications and site-specific applications.

 

An important point to note is that the DEHP must refuse an EA application if the applicant is not a registered suitable operator. As a result, it will be important to make concurrent applications for registration (if registration has not already been attended to) when making EA applications (noting that EA applications will be able to include an application to be registered as a suitable operator).

 

The following default restrictions apply to when an EA can take effect:

 

  • an EA for a resource activity will not take effect before the relevant tenure is granted;
  • if a development permit for a material change of use of premises is necessary under the SPA, an EA will not take effect before the development permit takes effect; and
  • if Coordinator-General approval under the State Development and Public Works Organisation Act 1971 (Qld) is required, an EA will not take effect before that approval is given.

 

New alternative provisions will provide an opportunity for operators to nominate a later date for an EA to take effect (which will defer annual fee requirements).

 

Relationship with the SPA

 

The new approvals regime does not remove the need to obtain a development permit under the SPA. The Greentape Reduction Act proposes a new section 115 which:

 

(a) applies if a development application ("DA") is made for a material change of use of premises under the SPA and the DA relates to a prescribed ERA;

(b) applies if the administering authority is the assessment manager or a concurrence agency for the DA;

(c) allows the DA to be taken to be an application for an EA for the prescribed ERA/s;

(d) provides that submissions under the SPA about the DA are taken to be submissions about the EA application; and (e) removes the application of most of the assessment process under the new provisions, given the application, information and notification stages of the IDAS under the SPA will apply.

 

The proposed new section 120 goes on to prohibit making an application for an EA for a prescribed ERA if, under the SPA, a development permit for a material change of use of premises relating to the prescribed ERA is necessary and a DA has not been made. This is aimed at avoiding two applications being made (one under the EP Act and one under the SPA) for the same activities.

 

The Explanatory Notes go on to state that if a development permit is required for a material change of use of premises under a local planning scheme (ie the DEHP is neither the assessment manager nor a concurrence agency), then an applicant should apply for that development permit first and then apply to the DEHP for the EA. It is difficult to conceive examples of when this scenario might arise, particularly without seeing the proposed new suite of ERAs and proposed changes to key schedules of the Sustainable Planning Regulation 2009 (Qld).

 

Referrals of EA applications to Land Court retained for mining activities

 

The Greentape Reduction Act retains the concept of draft EAs, objections and referrals to the Land Court for EA applications for mining activities relating to a mining lease (via a proposed new Chapter 5, Part 2, Division 3). If a submitter gives an objection notice to the DEHP about the application, the DEHP must refer the notice to the Land Court for an objections decision. In addition, an applicant will also be able to directly request that the DEHP refer the application to the Land Court.

 

Dealings with EA Amendments

 

The Greentape Reduction Act retains existing EP Act concepts which provide for EAs to be amended by application or by the DEHP on statutory grounds. However, new provisions will:

 

  • provide for EAs to be amended to reflect new standard conditions (as made from time to time), subject to a 1 year moratorium;
  • expand the statutory grounds for the DEHP to initiate EA amendments, including where a "compliance statement" is given (refer to our comments on compliance statements below) and where an "annual return" is given, which will be required to include an evaluation of CSG water management (refer to our comments on annual returns below); and
  • prohibit the making of amendment applications for Prescribed ERAs where the proposed amendment would require a development permit for a material change of use of premises under the SPA and a development application has not yet been made.

 

Where an amendment application is initiated by the EA holder, the DEHP will be required to make an "assessment level decision" on whether the proposed amendment is a "major amendment" (requiring public notification and a submissions period) or a "minor amendment".

 

The proposed definition for a minor amendment sets out a range of criteria which must be satisfied for a minor amendment to be available (including, for example, that there will be no change to standard conditions, no significant increase in the level of environmental harm or the scale or intensity of activities). A major amendment is essentially an amendment that will not satisfy the minor amendment criteria.

 

We understand the DEHP intends to publish guidelines to assist in the determination of whether a proposed amendment will constitute a minor amendment or a major amendment.

 

Amalgamations

 

Provisions are made in the Greentape Reduction Act for the holder of two or more EAs to apply for a new "amalgamated EA" for all activities for the authorities (noting the holders must be the same entities). Three types of amalgamated EAs will be available, being amalgamated local government authorities, amalgamated project authorities and amalgamated corporate authorities.

 

The concept of amalgamated corporate authorities is new, and (according to the Explanatory Notes) it will enable a company holding EAs at different sites to apply to amalgamate its EAs into a single EA for administrative ease.

 

Amalgamated project authority applications will only be approved if the activities are being carried out as a "single integrated operation".

 

One proposed benefit of amalgamations is to allow, for example, a mining company that also wishes to sell quarry material (which would require a development permit for at least an ERA under the current system) to amalgamate its mining and extractive industry EAs (to receive the benefit of a single set of administrative requirements and fees).

 

Transfers

 

The Greentape Reduction Act provides for transfers of Prescribed ERA EAs only.

According to the Explanatory Notes, the EP Act (once amended) will not provide for the transfer of EAs for resource activities. This approach is based on the EAs attaching to the tenure through the definition of "holder" in the Dictionary to the EP Act (which defines the holder of an EA for a resource activity to be the holder of the relevant tenure). An EA will effectively be transferred (without any formal process under the EP Act) when the tenure is transferred through the relevant resource legislation.

 

Annual fees and returns

 

The Greentape Reduction Act introduces a new provision which requires the holder of an EA for a CSG activity to include, in the relevant annual return, an evaluation of the effectiveness of the management of CSG water. The provision aims to implement policy commitments of the Queensland Government to an adaptive management regime by:

 

  • providing a step to evaluate and identify necessary changes to CSG water management; and
  • providing a trigger for the DEHP to amend an EA (without the EA holder's agreement).

 

Chapter 5A

 

Chapter 5A of the Greentape Reduction Act sets out general provisions for ERAs and addresses the making of eligibility criteria, standard conditions and codes of practice. It also:

 

  • sets out the new framework applicable for the registration of suitable operators; and
  • expands the scope of application of progressive rehabilitation to all resource activities.

 

Registration of suitable operators

 

Consistent with the current EP Act, the Greentape Reduction Act requires persons carrying out ERAs to be registered. However, we note the following key differences.

 

  • The requirement to be registered as a suitable operator will extend to resource activities (not just Prescribed ERAs which is the effect of the current system) to require both an EA and registration.
  • Registration certificates are currently issued for individual activities. Under the new system, applicants will be listed on a publicly available register of suitable operators, which will satisfy registration requirements for present and future activities. (Operators holding current registration certificates at the time of commencement will automatically be listed on the register.)
  • An operator's registration will expire if the operator has not held an EA for a period of 5 years.

 

Progressive rehabilitation

 

The progressive rehabilitation framework under the Greentape Reduction Act is largely consistent with the current EP Act. However, it extends the progressive rehabilitation framework and certification process beyond mining activities to include all resource activities.

 

Changes to compliance tools

 

Statement of compliance

 

Conditioning powers will be expanded to allow a condition to be imposed on an EA that requires the holder to give the DEHP (or relevant administering authority) a "statement of compliance" about a document or work relating to a relevant activity.

According to the Explanatory Notes, one intention of the provision is to essentially allow the grant of an EA despite the absence of some technical information about particular aspects of the application that are immaterial to the decision to grant the EA. Technical aspects (eg relating to landfill liners or containment structures) could be considered at a later stage by the applicant, at which point the applicant would need to demonstrate compliance with a relevant code or industry standard prior to commencement of an ERA.

 

A compliance statement will be available for use by the DEHP as a trigger to amend an EA (without the EA holder's agreement). The concept of a compliance statement will replace and expand upon the existing concept of audit statements, which can be required in various circumstances (including, for nexample, accompanying a plan of operations or in deciding the discharge of a financial assurance).

 

Environmental evaluations – audits and investigations

 

While the concept of environmental audits and investigations is retained by the Greentape Reduction Act, provisions in relation to environmental audits will be expanded to:

 

  • apply additional audit provisions which are currently limited to mining activities, to all activities;
  • allow the DEHP to require audits to be conducted by an approved auditor (which must be a third party auditor with no interest in the business being audited, not the operator); and
  • alternatively allow the DEHP to conduct audits and recover costs.

 

Transitional environmental programs

 

Again, the concept of transitional environmental programs ("TEPs") is retained, with noteworthy changes including new statutory provisions that will allow the DEHP to:

 

  • formally request further information in relation to submitted draft TEPs; and
  • seek advice, comment or information from any person in any way about a draft TEP.

 

Where a draft TEP relates to an EA, the new provisions require the DEHP (or relevant administering authority) to include a note in the EA stating the details of the TEP and that it is an offence to contravene a requirement of a TEP.

 

Suitably qualified persons and auditors

 

Additional provisions in the Greentape Reduction Act:

 

  • will compile, in one location in the EP Act, provisions about "suitably qualified persons" and the documents that can be prepared by them (relating predominantly to contaminated land reports);
  • set out a new framework for third party "auditors" to be approved to undertake certain functions under the EP Act, including on the administering authority's behalf.

 

In relation to auditors, functions will include, for example, conducting environmental audits (discussed above) and evaluating contaminated land reports.

 

Transitional provisions

 

Transitional provisions in the Greentape Reduction Act deal with the range of existing approvals relevant to ERAs. Transitional provisions will have the following effects on some of the more common approvals:

 

  • conditions of existing development permits for chapter 4 activities will essentially take effect as an EA for a Prescribed ERA (and will be called a "transitional authority") while the holder of the registration certificate for the activity the subject of the development permit will become the EA holder;
  • for development applications lodged but not decided before the commencement of the new provisions, the application will be decided under the old (ie currently existing) framework, with the resulting development permit then transitioned in accordance with the point immediately above;
  • existing registration certificate holders and existing EA holders (mining/chapter 5A activities) will become a registered suitable operator on commencement;
  • existing EAs (mining activities or chapter 5A activities) will transition to an EA for mining activities or resource activities respectively and will be called "transitional authorities";
  • for EA applications (mining activities or chapter 5A activities) lodged but not decided before the commencement of the new provisions, the application will be decided under the old framework, with the resulting EA then transitioned in accordance with the point immediately above;
  • "conversion applications" will be available to convert conditions of appropriate "transitional authorities" to standard conditions (where the relevant activity can comply with available eligibility criteria);
  • while the requirement for environmental management plans will be removed, transitional provisions will allow the DEHP to amend a transitioned EA (for certain EA types relating to resource activities) to impose conditions consistent with the environmental management plan; and
  • with requirements for a plan of operations to be extended to both mining leases or petroleum leases, the transitional provisions allow the holder of an EA for a petroleum lease 6 months to give the DEHP a plan of operations.

 

Lessons

 

  • The mechanics of the new assessment and approval framework proposed by the Greentape Reduction Act convey at least an intention to streamline the EP Act approval framework for ERAs. However it remains to be seen whether the changes will deliver any real time and cost savings to industry and projects.
  • Associated changes to other operating components of the legislation (for example relating to EA amendments, the registered operator system, changes to compliance tools and expanding the scope of existing concepts) will at least maintain, if not increase, the regulatory burden on industry rather than bring about any streamlining or additional efficiencies. 

 

 

For further information, please contact:

 

Caroline Ammundsen, Partner, Ashurst

caroline.ammundsen@ashurst.com

 

Sarah Stoddart, Ashurst

sarah.stoddart@ashurst.com

 

 

 

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