Enforcement Guidelines

Enforcement Guidelines

The Department of Environment and Heritage Protection (EHP) has updated the Enforcement Guidelines explaining how it determines the enforcement action it may take on the basis of the seriousness of the contravention of legislation.

The effective protection of the environment and heritage, as well as good regulatory practice, calls for EHP to have clear guidelines governing the taking of enforcement action. EHP will sometimes see the need to take enforcement action, in order to build a culture of voluntary compliance, where business and industry take responsibility for ensuring that their activities do not cause unlawful harm to the environment.  Enforcement action is intended to provide a strong deterrent to non-compliance.

The following principles guide EHP in making decision about taking enforcement action:

·       Enforcement action will be proportionate to the seriousness of the breach.

·       Decisions about enforcement action will be impartial, based on available evidence, and on the strategic objectives of EHP.

·       Where enforcement action involves litigation, the department is bound by the Qld Government's Model Litigant Principles, which can be found on the Department of Justice and Attorney General website

·       The principles ensure that, when conducting litigation, the department meets the community's and the courts' expectations that the State conduct itself in a manner which exemplifies the principles of justice, and that State's power be used in the public interest.

The Enforcement Guidelines are written to complement EHP's Regulatory Strategy, Annual Compliance Plan, and other documents which set out the department's approach to its enforcement activities.

In 2012-3 the compliance program specific targets included:

·       Coal seam gas (CSG) to liquefied natural gas (LNG) industry

·       Industry Heavy industry in Gladstone,

·       Registered operators receiving, treating and disposing of hazardous waste.

In 2013-4 the compliance program includes:

·       Movement of waste

·       Concentration of high impact industry in Industrial Estates

·       Conventional oil and gas

·       CSG and LNG industries.

EHP administers a number of pieces of legislation, including:

·       Coastal Protection & Management Act 1995

·       Environmental Protection Act 1994

·       Nature Conservation Act 1992 (with respect to the protection and management of wildlife and World Heritage)

·       Qld Heritage Act 1992

·       Sustainable Planning Act 2009 (with respect to those parts relevant to the department)

·       Waste Reduction and Recycling Act 2011

·       Water Act 2000 (Chapter 3).

Under these pieces of legislation there are also a number of different government authorities that may also have delegated or devolved powers, such as the police or local governments. To ensure consistency and transparency of enforcement actions, these enforcement guidelines apply to all decisions about enforcement action made by EHP in administering its legislation. It is also intended to guide decisions made under this legislation by other authorities, however it does not bind these authorities.

The decision to prosecute is generally made by the Deputy Director-General of the Environmental Services and Regulation division, on behalf of the department.

The decision is based on:

·       whether the available evidence provides reasonable prospects of successfully obtaining a conviction,

·       if so, whether it is in the public interest to exercise the discretion to commence a prosecution.

QAL Prosecuted

Prosecution Bulletin 4/2014 outlines the prosecution of Qld Alumina Limited (QAL) in Gladstone for causing serious environmental harm by releasing alkaline vapour to the atmosphere.  QAL has an environmental authority (EA) to conduct a number of environmentally relevant activities at its refinery. During the processing activities, alkaline slurry is produced at high temperature and pressure.

On the evening of 27 November 2012, Queensland Alumina Limited’s plant unexpectedly released alkaline slurry (containing sodium hydroxide) as a fine spray into the atmosphere from pipe work on its site for a period of up to one hour.

The incident was caused throughout the course of the day by malfunctioning plant and equipment. This malfunction resulted in slurry entering pipe work not designed to contain it; ultimately causing two gaskets to fail.

A shift change meeting was occurring at the time the release was identified by staff; however the meeting was not interrupted to respond to the incident.

On the morning of 28 November 2012, QAL’s employees inspected monitoring pads located outside of the plant and identified that depositionof alkali aerosol droplets had occurred up to 3.5 kilometres away as a result of the incident.

QAL was charged with one offence of unlawfully causing serious environmental harm, being damage caused to property in an amount of over $50,000, contrary to section 437(2) of the Act. QAL was fined $125,000 and ordered to pay costs of $9,237.

Director-General reshuffle

The Qld Government has announced a series of Director-General appointments. Public service appointments include:

·       Andrew Chesterman will move from Department of Environment and Heritage Protection to become Public Service Commissioner,

·       Jon Black will move from the Department of Energy and Water Supply to become Director-General of the Department of Environment and Heritage Protection,

·       Dan Hunt will move from the Department of Natural Resources and Mines to become Director-General of the Department of Energy and Water Supply,

·       Dr Brett Heyward will move from Queensland Health Renewal Taskforce to become the Director-General of the Department of Natural Resources and Mines,

·       Sue Rickerby will move from the Department of Premier and Cabinet to become the Director-General of the Department of Science, Information Technology, Innovation and the Arts.

This week, I received a letter from outgoing Director General of the Department of Environment and Heritage Protection: Mr Andrew Chesterman as follows:

I am writing to advise that I have been asked to take up the role of CEO of the Public Service Commission and so I will be leaving the Department of Environment and Heritage Protection (EHP).  I would like ot thank you for your support over the past 18 months as we put in place a new customer-first approach to the way environment and heritage regulatory activities are undertaken in Queensland.

Since its establishment in April 2012, EHP has significantly changed its philosophy to ensure that its work not only protects and maintains the state’s environment but also helps to create jobs and contribute to a growing economy.

This customer-centric philosophy has become deeply in-grained in all our activities – from developing new regulatory reform policies, to implementing practical on-the-ground best management practice programs, to delivering high quality front-line services, both in Brisbane and right around Queensland.  This approach to business will not change.

Under the stewardship of Minister Powell, the department set out to listen to business and industry needs, particularly the need to cut green tape, streamline processes and reduce processing times. We also set ourselves an ambitious goal – to be the benchmark that all other environment and heritage protection agencies in Australia aspire to reach.

In response we have delivered a new framework for the way environment and regulatory activities are undertaken in Queensland.

We have established clear performance outcomes and have been flexible with environmental assessments, rather than dictating requirements.

We have also worked hard to make it easier and cheaper for you to apply for and obtain environmental approvals and we have reduced the processing time for environmental impact statements for major project proposals.  Last year we completed impact assessments for proposals which will support $5 billion in capital expenditure and 600 jobs if they are developed as approved.

We have also listened to your request to make our performance more transparent and now regularly publish our performance report on the EHP website.

In my new role as head of the Public Service Commission, I will be leveraging from my experience in EHP by instilling this customer-first philosophy across all government public sector agencies.

Meanwhile Jon Black will take over as Director-General of EHP and continue to deliver on the agenda we have set.

Jon has a strong background in water management in Queensland as the former Director-General of the department of Energy and Water Supply.  Previous to this Jon was the CEO of the Northern South-East Queensland (SEQ) Distributor-Retailer Authority, UnityWater, and prior to that the SEQ water and sewerage distribution business.

I can assure you that the co-operative partnership between the Minister and the department will not change.  We are well placed to continue the renewal and reform process the government has requested of us.

Again, I would like to thank you for the support I have received over the past 18 months as we have worked with business and industry towards achieving sustainable development across Queensland.

Yours sincerely

Andrew Chesterman

Director-General 

EHP's Regulation Strategy

EHP’s Regulation Strategy

Back in February 2013, the Department of Environment and Heritage Protection announced fundamental changes to the way it manages and regulates the risks to Qld’s environment and heritage places.

I believe it is prudent to understand how the current regulatory strategy has changed from past practices of the former Department of Environment and Resource Management (DERM).

From the Budget Papers released in June 2013 it would appear that EHP now has less financial and human resources for regulation management than DERM did (apart from an injection of funds for Coal Seam Gas regulation).

Part of the rationale for the change in strategy includes:

·       speed up the time it takes for clients to get an approval,

·       increase the number of inspections of high-risk activities, and

·       make sure EHP are taking strong enforcement action where needed.

I have noticed a trend towards a lot less regulation and so-called “light handed regulation”, however what regulation remains is being enforced with vigour.

A selection of the department’s enforcement actions are summarised in prosecution bulletins outlining the facts and outcomes of finalised prosecutions.

The department’s annual compliance plan informs the Qld community of EHP’s planned compliance activities for the coming year.

The department monitors and reports on EHP’s compliance activities as part of its annual compliance plan program through a mid-year report and an end-of year report. The mid-year report  provides an update on the progress achieved in meeting the targets outlined in the annual compliance plan during the first and second quarters of the reporting period (July to December).

I have yet to see he end-of-year report which details all activities undertaken during the reporting period (July to June) and the outcomes of the compliance projects undertaken.

The reports provide information on the number of incidents and complaints the department has responded to as well as the enforcement actions taken during the reporting period.

EHP has also put together a short presentation about the changes to the way it manages and regulates environmental risks and how they will affect you as their client.

Since February 2013 there has been a new focus on the environmental outcomes a client must achieve.

For example, if one is required to ensure that no pollutants are released into the air, or that wastewater released to a river must meet certain quality standards, EHP will no longer assess whether a client can meet those outcomes, or how they propose to achieve them.  The responsibility now sits with you as EHP’s client.

This will now be the responsibility of the client and not the role of the department.

EHP still provide some guidance and examples on acceptable ways of managing environmental risks, but the decision on how those risks will be managed will sit with the client.

So when EHP grant a licence, the department will impose conditions that set out outcomes that the client must achieve.

EHP no longer impose conditions that tell the client how to achieve those outcomes.

For example, the department may impose a condition that contaminated stormwater must not leave a site, but it will not impose conditions that set out the design of the stormwater system needed to achieve this. The responsibility now sits with you as EHP’s client.

If you as an EHP client cannot meet the outcomes set by the department, one may face enforcement action.

Another major change, one may have noticed is be more frequent site inspections to ensure clients are complying with your licence conditions.

If one can demonstrate that one is consistently meeting the department’s requirements, EHP will inspect them less often.

I recommend one preempt EHP inspections and conduct in-house “pre-audit” inspections and provide EHP with a report.  If one is not meeting licence conditions, EHP is much more likely to carry out more frequent inspections until one lifts one’s performance to a better level.

EHP’s Clients who fail to comply with their licence, may face strong action to ensure the problem is fixed quickly.

EHP has already started making these changes to how we work to better regulate business and industry. Since February 2013 one may have noticed faster turnaround times for licences, fewer conditions, more site inspections, and tougher enforcement action.

For more information on these changes, please read the department’s regulatory strategy now available on the EHP website.

Wandoan Coal

Glencore Xstrata has officially shelved the $7b Wandoan thermal coal project in Qld amid a slump in the coal price, over-supply “and other challenges in the global coal market”.

Back in August 2011, the Mining giant was taken to the Land Court by the community based activist organisation – Friends of the Earth.  Glencore Xstrata was asked to defend the greenhouse impacts of its proposed Wandoan coal mine.  A variety of experts gave evidence concerning the impacts of Wandoan Coal mine on Qld's environment & the global climate. 

EHP's Performance Assessment

EHP’s Performance Assessment

The June 2013 Public Performance Report is available and provides an overall overview of Department of Environment and Heritage Protection’s self assessment of performance.

Information on the department’s assessment of its current and trending levels of performance in assessing and approving resource and development projects will be regularly published on the EHP website.

Last month, the Qld Government released the 2013–14 State Budget.

The Department of Environment and Heritage Protection’s $171.1m operating budget allocation and $30.1m capital budget includes a number of funding commitments including:

·       $11.7m to continue to increase koala habitat,

·       $10.7m for the protected land acquisitions program.

·       $4m for funding to community groups,

·       $3.7m for the regulation of the coal seam gas industry.

·       $2.5m, as part of a two year $4m commitment, to the Gladstone Healthy Harbour Partnership.

·       $2m as part of a four year $8m commitment, for the SEQ Healthy Waterways program.

The stated objectives for EHP in 2013–14 include:

·       continued measures to cut red tape,

·       implementation of practical programs that uphold environmental standards,

·       funding for grassroots environmental projects across the state.

Further to reforms to the current planning and development, the Qld State Government believes it has made further significant cuts to red tape. The Newman Government’s Resources Cabinet Committee has made it even easier to gain approvals for resources projects.

The Changes aim to streamline the environmental impact statement (EIS) process, which all large resource projects need to complete.

As part of the changes, the Coordinator-General and Department of Environment and Heritage Protection formulated new risk-based, generic terms of reference for EIS processes conducted under the State Development and Public Works Organisation Act 1971.

In practice, the EIS process should identify the same environmental values and propose the same environmental protection commitments that would be found in the Environmental Management plan, but an EIS typically goes into greater detail. The EIS is used by the proponent to develop an EM plan.

At an early stage, terms of reference are developed that provide the minimum expectations for the scope of the EIS. EHP publishes generic terms of reference to assist the development of project-specific draft terms of reference. The draft terms of reference are made available for a minimum period of 30 business days so that stakeholders and any member of the public can review the document and comment on what values, impacts and commitments should be considered in the EIS.

When the proponent has produced the EIS, it too is made available for a minimum period of 30 business days for stakeholders and the public to review the document, and to submit comments on the quality of the proponent’s assessment and commitments.

The aim of the process is to identify all significant impacts and propose all reasonable and practicable measures to protect the environment, before EHP develops the draft environmental authority.  A framework titled Managing the Impacts of Major Projects in Resource Communities, outlines a package of initiatives to assist local government, communities and industry work together to manage the impacts of resource development on regional communities.

A new suite of guidance and support material for applicants developed by EHP aims to help clients complete their application and avoid further information requests from the department. Fully completed applications allow EHP to complete the assessment process more quickly.

The reforms also include a government case management role with industry, state and local government and Local Area Infrastructure Programs (LAIPs) to prioritise community infrastructure investment.

EHP is still involved with the assessment and approval of resource and development projects under the Environmental Protection Act 1994.

During 2012–13 EHP completed environmental impact assessments on projects that, if they progress, will contribute $5 billion in capital expenditure.

In addition, EHP is also conducting assessments for more than 30 major resource project proposals, which will contribute up to $18 billion in capital expenditure.

Enhancements to EHP’s environmental assessment system in 2013 have also resulted in a significant reduction in assessment and approval times for environmental authorities.

In 2012–13 the average assessment timeframe for petroleum, geothermal and greenhouse gas activities was 28 business days, down from 56 business days in the previous financial year.

Waste Management Review

The Environmental Protection (Waste Management) Regulation 2000 expires on 1 September 2013. A review of the regulation has been undertaken and a discussion paper outlining several options is now available for comment.

Submissions close on 22 July 2013. You can email submissions to: Epact.Policy@ehp.qld.gov.au

EHP’s New Regulatory Strategy

EHP’s New Regulatory Strategy

The Department of Environment and Heritage Protection (EHP) has released a new Regulatory Strategy. This strategy sets out how EHP will carry out its role as the state’s environment and heritage regulator.

The new strategy is a significant change to the department’s approach to regulation, and all clients and their advisors are encouraged to read it. There is also a short video to help explain the changes.

I note a wholesale move towards “A light-handed regulatory model”.  I shall be analyzing and unpacking the implications of this in future posts to this blog.