Jurisdiction - Australia
Environment
Ashurst
Australia – Proposed Amendments To Emergency Provisions In The Environmental Protection Act.

8 December 2012

 

Legal News & Analysis – Asia Pacific – Australia – Environment

 

In brief

 

  • The Economic Development Bill 2012 (Qld) proposes amendments to the Environmental Protection Act 1994 (Qld) that will introduce “temporary emissions licences”, being a new statutory tool to respond to emergency events.
  • Temporary emissions licences would, in certain circumstances, authorise the release of a contaminant into the environment not otherwise permitted under an environmental authority or development approval.
  • The Bill also proposes to make minor adjustments to existing emergency direction provisions in the Act.
  • While temporary emissions licences are a potentially useful tool, there are additional factors that industry should be aware of before making use of them.

 

Introduction

 

The Economic Development Bill 2012 (Qld) (“the Bill“) sets out (among other things) proposed amendments to the Environmental Protection Act 1994 (Qld) (“EP Act“) which will give effect to temporary emissions licences (“TELs“). The Bill also sets out proposed adjustments to existing emergency direction provisions in the EP Act.

 

The Bill is expected to be passed before the end of 2012.

 

Proposed amendments to introduce Temporary Emissions Licences

 

The policy intent of TELs is to allow temporary, short term relaxations or modifications of environmental authority (“EA“) or development approval (“DA“) conditions in order to respond to an “emergent event”.

 

TELs could be granted either in preparation for or in response to an emergent event. The explanatory notes to the Bill give examples such as discharging water in anticipation of a flood, or allowing a waste transfer station to accept additional materials as part of a flood response once waters have receded.

 

While in effect, a TEL will effectively override conditions of an EA or DA (relevant to the activity approved by the TEL) and will temporarily authorise the release of a contaminant into the environment not otherwise permitted under an EA or DA.

 

TELs are intended to be flexible, in that they will be able to be granted at short notice using limited information. However, they will also be able to be quickly cancelled, suspended or amended. The explanatory notes indicate TELs are intended to be effective for a short period only, ranging from a few hours to a term not exceeding a number of months.

 

The Bill proposes the introduction of TELs via a new Part 4A to Chapter 8 of the EP Act, the key provisions of which are summarised below.

 

  • “Emergent event” is defined as an event or series of events that were not foreseen at the time conditions were imposed on the EA or DA. Emergent events may be naturally occurring or caused by sabotage.
  • An application for a TEL may be made by the holder of an EA or a registered operator in person or via email or facsimile to the Department of Environment and Heritage Protection (“DEHP“). The application must be supported by sufficient information to allow the DEHP to decide whether to grant a TEL.
  • The DEHP must decide the TEL application no later than 24 hours after receiving it.
  • The DEHP must have regard to several factors in making its decision. These include (among others) the extent, impact, likelihood and timing of the event, the nature of the receiving environment, the cumulative impact of releases under the EP Act, the effect of the release on other persons, and public interest considerations.
  • A TEL must state its term, details of permitted releases, the conditions overridden by the TEL, and new monitoring conditions to control the environmental impact of the release.
  • While in effect, a TEL authorises the holder to take actions approved by the TEL despite any conditions of an existing EA, DA or transitional environmental program.
  • Non-compliance with a TEL condition is an offence.

 

The DEHP may amend, cancel or suspend a TEL in certain circumstances, for example when it receives information that the impact of the release is greater than initially predicted.

 

Proposed amendments to emergency direction provisions

 

The Bill also proposes to amend the EP Act to clearly define “emergencies” and simplify the existing emergency direction provisions. A new section 466B will define an “emergency” as a situation which:

 

  • threatens human health or safety; or
  • causes or is likely to cause serious or material environmental harm; and
  • urgent action is necessary to protect persons, prevent or minimise harm or rehabilitate the environment.

 

Sections 467 and 468, currently separate provisions dealing with emergency powers and directions for release, will be combined into a single section 467 which will allow an authorised person to (either orally or by written notice):

 

  • give an emergency direction to a person to take a stated reasonable action within a stated reasonable time (including to release a contaminant into the environment); or
  • take the action, or authorise another person to take it.

 

Factors to be aware of

 

A TEL will provide a trigger to amend conditions of an EA or DA

 

The issue of a TEL will allow the DEHP to seek an amendment to existing EA or DA conditions. According to the explanatory notes, the grant of a TEL “may demonstrate that the conditions of the [approval] were not sufficient to plan for an emergent event” and an amendment would seek to adjust conditions to exclude the need for future TELs.

 

We query the reasoning given in support of this approach given that emergent events are, by their nature, unforeseen and uncommon. In discussing the policy intent of TELs in the context of the 2011 Queensland floods, the explanatory notes recognise that “it is not possible to predict what the next emergency event may be…”. More pragmatic drafting would simply involve making TELs available for legitimate use during emergent events without the threat of having EA or DA conditions unilaterally amended by the DEHP (a process which often involves protracted negotiations or disputes with the DEHP) for an event or circumstances that may never actually be replicated.

 

A drafting error regarding the unlawfulness of particular acts?

 

As a final point, we note the Bill does not propose to amend section 493A of the EP Act. Section 493A provides that particular acts (including acts that cause serious or material environmental harm) are unlawful unless they are authorised to be done under an EA, a DA or a transitional environmental program (among others). The Bill does not, in its current form, propose the inclusion of TELs as a mechanism for making particular acts lawful. This appears contrary to the intention of making TELs available in emergency circumstances where a level of environmental harm can be justified.

 

 

 

 

 

 

 

 

 

 

 

 

For further information, please contact:

 

Caroline Ammundsen, Partner, Ashurst

[email protected]

 

Tessa Rainbird, Ashurst

[email protected]

 

Comments are closed.