30 October, 2014

Legal News & Analysis – Asia Pacific – Australia – Environment

In Brief

The Environmental Protection and Other Legislation Amendment Bill 2014 (Qld) (EPOLA Bill) was introduced into the Legislative Assembly on 28 August 2014, and proposes to amend the Environmental Protection Act 1994 (Qld) (EP Act) and theWaste Reduction and Recycling Act 2011 (Qld) (WRR Act) to:

• significantly restructure the contaminated land framework,
• expand the existing duty to notify environmental harm,
• establish a new framework for the beneficial re-use of waste products,
• clarify that prescribed environmentally relevant activities (ERAs) may be included on environmental authorities (EAs) for resource activities,
• introduce enforceable undertakings as a form of administrative action, and
• increase the maximum penalty for a range of offences.

Contaminated Land

The EPOLA Bill proposes to significantly streamline and restructure the contaminated land provisions of the EP Act. Chapter 7, Part 8 of the EP Act, which deals with contaminated land, is to be completely repealed and replaced.

The overall framework, including criteria for the listing of land on the environmental management register (EMR) and contaminated land register (CLR), remains largely unchanged. The administering authority may record land on the EMR where:¹

• a notifiable activity has been,² or is being, carried out on the land, or
• the land is contaminated land.

Land may be recorded on the CLR where the administering authority is satisfied:

• the land is contaminated land, and
• it is necessary to take action to remediate the land to prevent serious environmental harm.

The EPOLA Bill introduces a requirement that contaminated land investigation documents (site investigation reports, validation reports or draft site management plans) be certified by an approved auditor prior to submission to the Department of Environment and Heritage Protection (DEHP). Detailed requirements regarding what must be included in all contaminated land investigation documents have also been introduced.

The EPOLA Bill also clarifies the approvals necessary to dispose of contaminated soil under the EP Act. Where contaminated soil is transported to a waste facility under the existing framework, both a soil disposal permit (SDP) under the EP Act and compliance with the regulated waste tracking framework established under the Environmental Protection Regulation 2008 (Qld) may be required. The EPOLA Bill removes the requirement for a SDP when transporting contaminated soil to a waste facility.

Expanded Duty To Notify

A key obligation imposed by the EP Act is a duty to notify DEHP of:

• actual or threatened environmental harm,³ and
• a notifiable activity being carried out on the land, or the contamination of land.⁴

The EPOLA Bill expands and restructures these requirements, consolidating all notification obligations into a single section in the EP Act.

The duty to notify environmental harm is to be expanded to include situations where an owner, occupier or auditor becomes aware of any event, or a change in the condition of contaminated land, that is causing or is reasonably likely to cause environmental harm.⁵ The owner, occupier or auditor will be required to notify DEHP within 24 hours of:

• the nature of the event or change in condition, and
• the circumstances in which the event or change happened.

Beneficial Use Approvals

The EPOLA Bill amends the WRR Act to replace the beneficial use approvals framework with an ‘end of waste’ framework.

The WRR Act currently promotes the re-use of leftover materials and byproducts by allowing them to be approved for a ‘beneficial use’. The effect of a beneficial use approval is that the waste is no longer considered a ‘waste’ for the purposes of the EP Act (and accordingly is not subject to waste management requirements). Such approvals are used where a leftover material or byproduct has some kind of beneficial use available other than disposal (eg coal seam gas water, biosolids or concrete washout wastes).

The EPOLA Bill replaces the existing beneficial use framework with a system of ‘end of waste codes’ (EOWC) and ‘end of waste approvals’ (EOWA).⁶ The effect of these are similar to that of general and specific beneficial use approvals under the current system. A waste becomes a ‘resource’ (and similarly is not subject to waste management requirements) when it meets the conditions of an EOWC or EOWA.

Interaction Between Prescribed ERAs And Resource Activities

The EPOLA Bill retains the existing categorisation of activities into agricultural ERAs, resource activities and prescribed ERAs, but clarifies that a prescribed ERA may be undertaken as part of a resource activity, and be included on an EA for a resource activity.⁷ This is a common occurrence where, for instance, chemical storage or treatment is carried out as part of a resource activity.

Enforceable Undertakings

The EPOLA Bill introduces enforceable undertakings, which are already available under other legislation including the Environment Protection and Biodiversity Conservation Act 1999 (Cth),⁸ into the EP Act as an additional form of administrative action.⁹ Enforceable undertakings are binding agreements between an alleged offender and DEHP, requiring the offender to take specified actions to ‘make good’ on identified non-compliance.

DEHP may accept an enforceable undertaking in response to a contravention of the EP Act, provided that the undertaking will secure compliance and enhance the protection of the environment.¹⁰

Increased Penalties

The EPOLA Bill significantly increases the maximum penalty for a range of offences under the EP Act.

The increased penalties for a number of major offences are set out in the table below.

End Notes

1. Environmental Protection and Other Legislation Amendment Bill 2014 (Qld) cl 135.
2. Notifiable activities are activities that cause or are likely to cause contamination. They are listed in Schedule 3 of the EP Act.
3. Environmental Protection Act 1994 (Qld) ss 320A-320D.
4. Environmental Protection Act 1994 (Qld) s 371.
5. Environmental Protection and Other Legislation Amendment Bill 2014 (Qld) cl 125.
6. Environmental Protection and Other Legislation Amendment Bill 2014 (Qld) cl 167.
7. Environmental Protection and Other Legislation Amendment Bill 2014 (Qld) cl 20.
8. Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s 486DA.
9. Environmental Protection and Other Legislation Amendment Bill 2014 (Qld) cl 102.
10. Environmental Protection and Other Legislation Amendment Bill 2014 (Qld) cl 102(4).
11. The penalties listed are for a corporation. The maximum penalty for an individual is 20% of this amount.

For further information, please contact:

John Ware, Partner, Herbert Smith Freehills
[email protected]

Madeline Simpson, Herbert Smith Freehills

[email protected]