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.

Sustainable Business Weekly QLD Edition [Electricity, Packaging, Compliance, Green & Red Tape]

Qld Electricity Review

An independent review of the QLD Government owned energy corporations has found Qld's electricity network has improved significantly in both security & reliability since it was last reviewed in 2004.

The review headed by Mr Darryl Somerville found network reliability improved 40 per cent over this time & that power outages are now significantly less frequent & shorter in duration.

Over $12 billion has been invested to improve the Qld’s electricity networks since the serious outages experienced prior to the review & in particular during the devastating 2004 storms.

The report also highlighted the importance of the work energy distributors are doing to meet the challenges of ever-increasing peak demand on the Qld network. The review identified a potential $1.5 billion in savings that ENERGEX & Ergon could implement over the current five-year regulatory period (just in time for the next State Election).

The two major areas in which savings can be made are changes to the way the network is planned & lower than forecast electricity demand. These savings will inevitably be passed on & will assist in easing future pressures on electricity bills.

Qld has apparently seen lower than expected electricity demand, perhaps due to the effects of the GFC & because of shifts in customer behaviour due to scare campaigns related to the Carbon Tax.

Packaging & Litter

State Ministers for Environment & Water are looking for feedback about packaging & litter waste.

The Standing Council on Environment & Water has released a Consultation Regulation Impact Statement (RIS) on Packaging Impacts for public comment.

The consultation considers options to improve resource recovery & reduce litter associated with a wide range of consumer packaging, including food wrappers & beverage containers.

The consultation provides the opportunity for an informed debate on options to address packaging waste. An extended consultation period over 16 weeks will allow for the Christmas & summer holidays. The Ministers acknowledged the important input of environment groups & industry groups (like ASBG) in formulating the 7 options in the consultation paper.

These options include container deposit schemes, industry-funded schemes that may be co-regulated under the Product Stewardship Act 2011 (Cwth) & nationally consistent Government initiatives.

The analysis includes a base case which recognises existing packaging recovery & litter reduction systems, including the long-standing South Australian container deposit scheme & the implementation of the Northern Territory container deposit scheme; the servicing of most Australian households by kerbside recycling; & the Australian Packaging Covenant. The Council recognised assessment of the costs and benefits of options has many dimensions & cannot be based on quantifiable matters alone.

DERM’s Compliance update

If environmental incidents are not addressed voluntarily by those responsible, the Department of Environment & Resource Management (DERM) may issue environmental protection orders (EPOs) under the Environmental Protection Act 1994 to ensure that environmental harm is prevented or minimised.

DERM’s Compliance alert 4/2011 includes three case studies demonstrating the significant legal and financial consequences of failing to comply with an EPO, as well as key messages on how to avoid enforcement action.

Red & GreenTape Reduction

The Greentape Reduction project has been established by the Qld Government to streamline, integrate and coordinate regulatory requirements under the Environmental Protection Act 1994 (EP Act) without compromising environmental outcomes. The project will result in savings for business & government of $12.5m each year.

The Environmental Protection (Greentape Reduction) and Other Legislation Amendment Bill 2011 was introduced into Parliament on 26 October 2011. The aim is to achieve key objectives of the Greentape Reduction project.

The Qld State Opposition (led by the Candidate for the seat of Ashgrove) is also targeting red (& green) tape that can be easily removed at no or low cost.

Already Mr Newman has announced that an LNP Government would dump Labor's waste tax & streamline real estate regulations.

One can also have one’s say by emailing suggestions to the Qld Opposition: cutredtape@lnpqld.org.au or join their conversation on Facebook. The results will be compiled & revealed in the new year.

Merry & sustainable Christmas

We wish you a Merry (& Sustainable Christmas). We are currently planning a number of Seminars, Workshops and a Carbon Conference for 2012.

We will kick off the year with a half day seminar on Compliance with Environmental Legislation.

We are also planning a half day seminar on embedding Sustainability into one’s supply chain.

Please let rowan@asbg.net.au know if you have any suggestions for future seminars or newsletter topics.

Waste Levy, Green Tape, Compliance, Gas

The Waste Levy

Last week the Waste Reduction and Recycling Bill 2011 including a land fill levy was passed by the Qld State Parliament. The aim is to halve the amount of rubbish directed to landfill within a decade. After a slow start due to floods & a cyclone, the levy will kick in on 1 December 2011.

Qld has lagged behind NSW & Vic in introducing a Land Fill Levy on non-recycled commercial waste. Municipal domestic waste is exempt from the levy, adding a layer of complexity & an administrative nightmare. The waste levy will discourage waste generators in the southern states to cross the border to dump their waste in Qld. However, there still may be perverse incentives to export waste overseas.

Qld generates about 32m tonnes of waste every year. Materials that are recovered, reused or recycled won’t attract the levy. The wastes generated from recycling will still attract the levy but at a discounted rate. The majority of funds raised from the levy will feed directly into the four year $159m Waste Avoidance and Resource Efficiency fund to help companies avoid producing waste, sort their waste & recycle it.

Councils throughout Qld will this year receive an $11m boost for waste management facilities, following earlier assistance totaling $4.1m to help establish or improve infrastructure such as weighbridges and fences at landfills. Councils will also benefit from the $100m Sustainable Futures Fund to help them better manage waste.

New programs will:

· encourage recycling of organic waste

· a renewed litter prevention program will commence to catch and prosecute illegal dumpers.

Qld’s waste levy will commence at $35/t for Commercial & Industrial (C&I) and Construction and Demolition (C&D) wastes. There is a brief levy FAQ on the DERM website.

Green Tape Reduction

The environmental approvals system has been overhauled by legislation introduced into Qld State Parliament this week. The amendments to the Environmental Protection Act aim to increase the efficiency of the environmental approvals system & cut green tape.

ASBG has been campaigning for the reduction of unnecessary regulatory burdens, such as the time wasted in lengthy application processes & onerous reporting.

The introduction of standard applications aims to reduce costs & increase certainty in application processes for low environmental risk operations. The new regulations will corporate licensees to manage their environmental authorities for multiple sites in an integrated way. The reforms will simplify the relationship between environmental licenses & development permits meaning an operator will only need to pay for their annual fees once their development permit is approved.

DERM’s Compliance Plan

It would be prudent for businesses to review the Department of Environment & Resource Management (DERM) regulatory compliance program. The Annual Compliance Plan 2011–12 sets out proactive and planned compliance priorities in some of the following areas:

· Environmental recovery

· Indigenous heritage conservation

· Queensland heritage conservation

· Place names

· Land management,

· Quarry management

· Commercial native forests

· Vegetation management

· Water use and supply

· National Framework for Compliance and Enforcement Systems for Water Resource Management

· Environmental management

· Waste reform

· Energy resources, including minerals & minerals and mining, coal seam gas/liquefied natural gas, underground coal gasification

While the compliance plan provides an overview of DERM’s strategic compliance priorities; it does not represent all compliance activity to be undertaken in 2011–12.

Gas

The Qld State Government & TRUenergy have announced a multi-billion investment in two new gas fired power stations in Ipswich and in Gladstone, powered with gas from the Qld's south west gas fields.

The Qld State Government is still claiming gas power stations will emit up to 50% less CO2 than a coal-fired station, as if this acceptable.

TRUenergy have commenced the development application process for the two high-efficiency gas-fired power stations. The proposed power stations will be developed in stages with the initial units sized at around 500MW & have a total capacity of up to 1500MW each depending on energy demands.

The Ipswich Power Station will be located within an industrial park, near the existing Swanbank B coal fired power station which will close in April 2012. The Aldoga Power Station, will be located in the Gladstone State Development Area on land already zoned for heavy industrial use.

The permitting process will occur over the next 12 months. Subject to the receipt of all permitting & development approvals, construction could begin as early as 2013. Each power station will involve investment of approximately $1.8b.

Paul Hawken

Paul Hawken is in Australia over the next 2 weeks for a number of public & private events. There are seats still available at 3 public events in NSW and QLD. There are also places available at the Sustainability Leadership Masterclass events in Sydney & Melbourne aimed more at business/government/NGO's.

Click here for a list of all Paul Hawken events in Australia

Sustainable Business Weekly QLD Edition [SOTFY, Training, Water Politics, Coal Seam Gas]

SOTFY

Today is the start of the new financial year (SOTFY). Finance is an artificial impost of our complex society that does not correlate to anything in our natural environment.

However, one should note that it is good time to think about registering for a Research & Development Tax Concession.

It is an ongoing scheme designed to increase the level of R&D being conducted by Australian companies. It is broad-based, not industry specific, and market-driven with the applicant entity deciding upon the scope and timing of the research and development. The scheme allows companies to claim a tax deduction in their income tax return of up to 125% (and in some cases up to 175%) of eligible expenditure incurred on R&D activities. Under the R&D tax concession small companies can claim an R&D tax offset (that is, a refundable tax offset) equivalent to the value of certain deductions available under the R&D tax concession instead.

DERM’s Compliance Alert on Training

Recently, Omar Ameer presented at an ASBG workshop on “How to stay out of trouble with your regulator”

Omar noted that DERM develops compliance alerts to highlight commonly occurring areas of non-compliance, and outline the steps that can be taken to improve performance and avoid enforcement action.

The alerts include a description of problems that are regularly encountered, the strategies that can be implemented to address those problems, and case studies that provide practical examples of the consequences of those problems.

An analysis of DERM's litigation activities has highlighted that two common reasons for operators to breach the Environmental Protection Act 1994 – are failure to:

• adequately train staff
• develop and implement adequate systems to manage environmental risk.

Compliance Alert 2/2011 provides case studies that illustrate how this failure can result in significant environmental damage, and prompt enforcement action by DERM.

The National Water Resources Framework

The State and Federal Governments have agreed to implement a national compliance and enforcement framework for water resource management to help protect the environment and secure water users entitlements. The Commonwealth will provide over $10 million for this program, and this funding will be used to enhance or develop: · additional stakeholder and public education tools about compliance · best practice regulatory tools · a nationally consistent range of water offences and penalties · appropriate compliance programs · risk prioritisation of water resources · increased levels of monitoring of high risk water resources · public reporting of compliance statistics. The framework moves all jurisdictions towards a nationally consistent approach to managing water resource compliance. This national initiative has been tailored to the Queensland context within the State's implementation plan, with the aim to ensure fair and equitable use of water resources in Queensland.

Read more on the Commonwealth Department of Sustainability, Environment, Water, Population and Communities website... This national initiative has been tailored to the Queensland context within the Queensland's Implementation Plan for the National Framework for Compliance and Enforcement Systems for Water Resource Management.

Coal Seam Gas

This week the Society of Sustainability and Environmental Engineering held a panel discussion on Coal Seam Gas (without fear or favour).

The session was held in front of a live audience at Engineering House, filling the Hawken Auditorium to capacity. People who had not registered for the event were turned away at the door.

A Web cast of the event will be available on the Engineers Australia website shortly.

The Water Price Blame Game revisited

SEQ Councils have rejected the QLD State Government's offer to take back their water entities.

The Councils had until midnight last night to decide whether to split from the distributor-retailers (Allconnex, UnityWater and Queensland Urban Utilities) and take back control of water, sewerage and sewage treatment services.

The State Government is currently selling bulk water at a loss - in 2010-11 that loss was nearly half a billion dollars. Ironically the majority of the $7b worth of water assets including the Gold Coast desalination plant, the water grid and the water purification plants are sitting idle because the State Government refuses to allow indirect potable reuse of purified sewage effluent.

It would appear that the SEQ Council’s have decided to keep the current distributor-retailer model. However, the political blame games on water pricing continue unabated.