Proposed amendments to environmental legislation

Last month, the Queensland Government introduced into parliament the Environmental Protection and other Legislation Amendment Bill 2022 (EPOLA Bill 2022) which sets out changes to the Environmental Protection Act 1994 (EP Act), and other legislation, and has potential implications not only for those organisations who hold environmental approvals but also for the general community more broadly

When presenting the EPOLA Bill 2022 to parliament, the Government stated that it ‘will support industry and streamline administrative processes, better protect the environment and improve community input and transparency and provide for a stronger, more effective and environmental regulator.’¹

In preparing the amendments set out in the EPOLA Bill 2022, the Department of Environment and Science undertook engagement with stakeholders over a period of more than 12 months to identify what amendments were required, and then discuss and refine those proposed amendments.

Proposed changes  

There are many proposed amendments in the EPOLA Bill 2022 which apply across the EP Act. Some of the most relevant changes proposed include:

Investigations

• increased investigator powers for authorised persons, including the ability to use drones and body-worn cameras;

Environmental Authorities

• public notification of major amendments to an environmental authority (EA) for a resource activity will be mandatory;
• the introduction of EA’s for trial, research or innovative activities which require reduced information and have a maximum term of 3 years;
• allowing amendment of EA’s in more situations;
• the introduction of temporary authorities for emergency situations;

Contamination

• clarification of the notification requirements for contaminated land;
• the introduction of a process for voluntarily including land on the environmental management register (EMR) or the contaminated land register (CLR);
• the removal of concentration thresholds for some contaminants, such as asbestos and biologically infectious substances, for land recorded in the EMR or CLR;

Environmental Impact Statement (EIS)

• changes to the EIS process including:
  • the requirement for submission of a summary of potential negative environmental impacts and measures undertaken to avoid or minimise these;
  • an early EIS refusal if it is unlikely to gain the required approvals;
  • a 3-year life of the EIS which may be extended prior to lapsing;

Specific to the Resource Industry

• allowing information request period to be extended in an estimated rehabilitation cost (ERC) decision making process;
• introducing a process for changing an ERC application;
• allowing approval by the administering authority of a progressive rehabilitation and closure plan (PRCP) with an amendment;
• amendments to transitional provisions to remove uncertainty for PRCP’s and allowing an application to be made within 5 years;

Other

• doubling of threshold amounts for serious and material environmental harm offences, with further CPI increases moving forward;
• transitional environmental programs (TEP) will be drafted by the Department rather than the proponent and the Department will have the power to refuse a TEP if it allows or may cause serious environmental harm;
• executive officer liability has been expanded to not only include those officers actually in office at the time of the incident but also those no longer in office but who were when the acts or omissions occurred; and
• the introduction of temporary authorities for emergency situations.

Impacts of changes

The proposed changes have implications for resource proponents and holders of EA’s. However, as a result of the EP Act’s general environmental duty, the changes have the potential to impact all businesses as well as individuals. The new thresholds for material and serious environmental harm, while double what they were, are still not significant and it is unlikely that these increased thresholds will have any significant impact.

The expansion of the executive officer liability provisions is also concerning in that significant time may pass between an executive officer taking action and the actual offence. Does this mean executive officers will indefinitely be liable? What about actions undertaken in the interim period, changes in technology, understanding and information?

For resource proponents, there are also concerns around the stronger public notification requirements and the impact those changes will have on the time and cost of making applications to amend EAs.  There are also concerns about the early EIS refusal provisions as the criteria set for refusal of an EIS are generic, highly ambiguous and have no specific grounds. The Queensland Resources Council (QRC) have advised that the criteria are too broad ‘and could easily be misused or misinterpreted by any government for political reasons, which is not acceptable’.²

The Queensland Parliament’s Health and Environment Committee is due to table its report regarding the EPOLA Bill 2022 on 25 November 2022. At this time, we will know the extent to which the proposed changes are supported in their current form. 

If you require further information regarding the EPOLA Bill 2022 and any possible implications, please contact our experienced Planning & Environment Team.