Proposed amendments to the Environmental Protection Act 1994 (Qld) introduced

On 12 October 2022, the Environmental Protection and Other Legislation Amendment Bill 2022 (EPOLA Bill) was introduced to the Queensland Parliament.

Snapshot
The EPOLA Bill proposes a suite of amendments to the Environmental Protection Act 1994 (Qld) (EP Act) which aim to improve administrative efficiency and ensure the regulatory framework remains effective and contemporary.

Whilst some of the amendments are minor in nature, a number of the proposed amendments will have significant and wide-ranging implications for all Queensland operators, with particular impacts on the resources sector. The amendments include:

• increasing the threshold amounts for material and serious environmental harm;
• changes to:
  • the environmental impact statement (EIS) process including allowing early refusal of a project; and
  • the duty to notify triggers;
• introducing temporary authorities for emergency situations;
• an overhaul of the contaminated land provisions;
• mandating public notification for all major EA amendments for resource activities;
• resolving implementation issues with estimated rehabilitation cost (ERC) and progressive rehabilitation and closure planning (PRCP) frameworks;
• increased compliance and enforcement powers and expanded executive officer liability; and
• minor changes to the Waste Reduction and Recycling Act 2011 (Qld) including to end of waste codes and approvals.

Important Amendments
Increased environmental harm thresholds
The threshold amounts for material environmental harm and serious environmental harm are proposed to be increased (the first time since introduction of the EP Act in 1994) to $10,000 and $100,000 respectively for the financial year ending 30 June 2023, then increasing by CPI each following year.

Changes to EIS Process
The EPOLA Bill proposes amendments to allow a project to be refused early in the EIS process where:

• the project would directly contravene a law;
• the project would give rise to an unacceptable risk of serious or material environmental harm;
• the project may have an unacceptable adverse impact on a matter of state or national environmental significance or an area of cultural heritage significance; or
• it is evident that it is unlikely the project would be able to gain all necessary approvals.

Additionally, it is proposed that an EIS assessment report lapses after three years and will no longer be valid for the purposes of an EA application for the project. This can be extended at any time by the chief executive. If an application for an EA has been lodged but not yet decided, the EIS assessment report will lapse when the application is approved or when any review/appeal for a refusal is decided or withdrawn.

New EAs for trial activities and emergency situations
The proposed amendments introduce short term EAs for trial/research activities with a maximum duration of four months. An EA issued for a trial/research activity cannot be transferred.

A new EA authorising environmentally relevant activities to be carried out in emergency situations – a ‘temporary authority’ has also been introduced.

Duty to notify
The proposed amendments have sought to clarify when the duty to notify of environmental harm and contaminated land is triggered by removing the requirement for an ‘event’.  This has the effect of broadening the notification requirements.

Contaminated land
The contaminated land provisions are proposed to be overhauled with amendments proposed to the environmental investigations process, voluntary inclusion by landowners of land on the management registers, and changes to the complaint process. The changes would also expand the grounds in which an environmental investigation can be required by removing the need for the contaminant to be in a ‘concentration’ with the potential to cause serious or material environmental harm.

Public notification mandated for all major EA amendments for resource activities
The Department currently has a discretion in determining whether public notification of a major EA amendment for a resource activity is required. The amendments propose to remove the discretion and automatically require all major amendments to a resource activity EA to undergo public consultation. This automatic public notification requirement does not apply to non-resource activities.

PRCP and ERCs
Amendments to the PRCP process are proposed including allowing the Department to approve a PRCP schedule subject to conditions, the application of transitional provisions and setting timeframes for when a public interest evaluation report must be given to an administering authority.

Importantly, the proposed amendments would allow for a current ERC decision to remain in effect until the Department makes the new ERC decision, to ensure that operations do not fall into non-compliance during the processing period for new ERC decisions. New provisions will establish an ERC application change process.

Compliance and Enforcement
Significant changes are proposed to the transitional environmental program (TEP) process, such that the Department will now prepare TEPs, rather than the operator preparing a draft TEP for approval.

Body cameras will be allowed to be worn by Departmental officers during inspections if the Department suspects there has been a breach of the legislation or an EA.

Executive Officers
As a result of a recent court decision, it is proposed that executive officers could be liable for acts or omissions that occurred during their tenure but did not result in the commission of an offence until after they have left office. This expands the existing operation of the legislation to ensure an officer cannot leave office to avoid liability.

Next Steps
The Bill was referred to the Health and Environment Committee with the Committee’s report due to be tabled on 25 November 2022. Submissions close at 9am on Wednesday 26 October 2022 and can be emailed to hec@parliament.qld.gov.au or online here https://qldparlcomm.snapforms.com.au/form/hec---environmental-protection-and-other-legislation-amendment-bill-2022 

Prepared by Kathryn Pacey, Partner and Grace Hicks, Graduate