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.

Greentape Reform

Greentape Reduction Reform

On 6 December 2013 amendments were made to the Environmental Protection Regulation 2008 as part of so-called Greentape Reduction reforms. Amendments include standard conditions for different prescribed environmentally relevant activities (ERAs) and prescribing conditions for small scale mining activities.

Standard Conditions

The Environmental Protection Regulation 2008 has made eligibility criteria and standard conditions for the following eligible ERAs.

·         ERA 2(1)(a) - Intensive animal feedlotting >150 to 1000 standard cattle units

·         ERA 2(2)(a) - Intensive animal feedlotting >1000 to 10,000 standard sheep units

·         ERA 3(1) - Keeping >400 to 3500 standard pig units

·         ERA 4(1) - Poultry farming >1000 to 200,000 birds

·         ERA 7(1) - Chemical manufacturing >200 cubic metres of water based paint in a year

·         ERA 7(3)(a) - Chemical manufacturing >200 tonnes of soap, surfactants or cleaning or toiletry products in a year

·         ERA 13(2) - Retreading tyres

·      ERA 16(2)(a) - Extracting 5000 to 100,000 tonnes of material in a year

·      ERA 16(3)(a) - Screening 5000 to 100,000 tonnes of material in a year

·      ERA 16(3)(b) - Screening >100,000 to 1 million tonnes of material in a year

·      ERA 16(3)(c) - Screening > 1 million tonnes of material in a year

·      ERA 23 - Bottling or canning 200 tonnes or more of food in a year

·      ERA 25(1)(a) - Meat processing, not including rendering, 1000 to 5000 tonnes of meat or meat products in a year

·      ERA 25(2)(a) - Meat processing, including rendering, 1000 to 5000 tonnes of meat or meat products in a year

·      ERA 26 - Milk processing

·      ERA 29(2) - Metal foundry, producing 50 tonnes or more of non-ferrous metal castings using permanent moulds in a year

·      ERA 38(2) - Surface coating, painting or powder coating using >100 tonnes of surface coating materials in a year

·      ERA 57 (V4) - Regulated waste transport

·      ERA 59 - Tyre recycling

·      ERA 63(1)(a)(i) - Sewage treatment works with total daily peak design capacity of 21 to 100 equivalent persons if treated effluent is discharged through an irrigation scheme

·      ERA 63(3) - Sewage pump station

Operators who are able to meet the eligibility criteria can now make a standard application for an environmental authority. If an operator needs to vary one or more of the standard conditions they may do so by making a variation application. Use the online tool to identify the correct application type for your project.

Small scale mining reforms

Small scale mining activities include:

·         a mining claim for 20 hectares or less for opals, gemstones and other precious stones,

·         an exploration permit (minerals) for 4 sub-blocks or less for minerals other than coal.

These activities were deregulated by the Mining and Other Legislation Amendment Act 2013 (MOLA Act) in March 2013.

This change to Qld’s environmental regulation means that small scale mining operators no longer need to apply for an environmental authority.

To support the reforms and ensure environmental standards are maintained, prescribed conditions relating to rehabilitation and financial assurance have been included in Environmental Protection Regulation 2008. The regulation also includes a list of designated environmental areas which are derived from ‘category C environmentally sensitive areas’ and supports the definition of small scale mining activity in the dictionary of the Environmental Protection Act 1994.

Other Changes to ERA regulation

From 2 January 2014 changes to the Environmental Protection Regulation 2008 will remove the devolution of administration and enforcement responsibilities in relation to particular ERAs from the State to certain local governments. A number of local governments that administered 10 or less licenced sites in their local area following the deletion of several ERAs earlier this year elected to have the administration and enforcement of these remaining ERAs returned to the State. A total of 17 local governments listed in Schedule 8A of the regulation no longer have devolved responsibilities, with 20 licences being transferred to the State.

The regulation also prescribes a fee of $2,200 for applications for a Temporary Emissions Licence.

One Stop Shop

Qld is finalising a new agreement on environmental assessments with the Commonwealth Government.  The agreement enables the establishment of a single assessment process that incorporates state and federal requirements to ensure proponents meet the national environmental standards.

The Federal Government will retain control over decisions involving offshore Commonwealth waters, nuclear actions and projects for which state governments are “likely to have a significant conflict of interest” as the proponent. The Qld Government will be able to seek input and advice on assessments from Commonwealth organisations such as the Great Barrier Reef Marine Park Authority  or the Supervising Scientist in relation to uranium mining and exploration.

Premier’s Sustainability Awards

Nominations are open for the 2014 Premier’s Sustainability Awards which recognise the achievements of Qlders who are developing or adopting sustainable practices.

Nominations close on Friday 14 March 2014. Finalists and winners of the 2014 Premier’s Sustainability Awards will be announced at a presentation dinner at the Brisbane Convention and Exhibition Centre on Friday 30 May 2014.  More information about the awards and an online application form can be found at www.ehp.qld.gov.au/premiersawards

Cleaner Environment Plan

The Australian Government's new Cleaner Environment Plan forms an umbrella policy framework for a four pillar approach to National Environmental Management.

·       Clean Air,

·       Clean Water,

·       Clean Land,

·       National Heritage

Clean Air outlines the Australian Government’s aspirations to reach its emissions reduction target (of 5% of Y2000 levels by Y2020) through the Direct Action Plan. 

The new Federal Government has changed Australia's response to climate change from a financial issue (through a liability for a price on carbon emissions) to an Engineering problem.  The Coalition Government seeks to source low cost emissions reductions and improve Australia's environment. This will be done primarily through the Emissions Reduction Fund.

The Emissions Reduction Fund is a central element of the Australian Government's Direct Action Plan. The Fund will provide financial incentives for emissions reduction activities across the Australian economy.

Some of the activities which may receive incentives for abatement activities include:

• re-vegetation and land management
• soil carbon
• forestry
• energy efficiency
• recycling
• cleaning up power stations
• cleaning up waste coal mine gas
• cleaning up landfill.

The Government invites public comment on Terms of Reference on the design of the Emissions Reduction Fund by 5pm (AEDT) Monday 18 November 2013.

The Government is seeking business and community views on the design of the Emissions Reduction Fund including:

·         the likely sources of low cost, large scale abatement to come forward under the Emissions Reduction Fund;

·         how the Emissions Reduction Fund can facilitate the development of abatement projects, including through expanding the Carbon Farming Initiative and drawing on the National Greenhouse and Energy Reporting Scheme;

·         the details of auction arrangements to deliver cost effective outcomes;

·         the governance arrangements that will support the Emissions Reduction Fund, including the role of key institutions such as the Clean Energy Regulator;

·         the details of the monitoring, verification, compliance and payments arrangements for successful bidders at auction;

·         transitional issues relating to the existing Carbon Farming Initiative; and

·         the design and operation of a mechanism applying to emissions above the business as usual baseline.

One stop shop for Environmental Approvals

Environment Ministers sign a Draft MOU

The Queensland and Federal Governments have signed a Draft memorandum of understanding (MOU) giving the state more powers to conduct environmental assessments and approvals for major projects.

In March 2013, a senate committee (under the former Labor Government) confirmed the Federal Department of Environment was backing away from handing over responsibilities for biodiversity approvals to the States.

The Draft MOU (which has not been publically released) addresses ''the key principles of maintaining environmental standards, streamlining processes, the removal of duplication and the offer of federal staff to be embedded with the state if required''.

The Draft MOU is being review by Prime Minister Tony Abbott for approval and the changes will need to be passed through Federal Parliament and the Senate. The aim is to achieve a one-stop shop to reduce red tape and provide certainty to business while maintaining the rigorous federal environmental standards.

This would include:

·           Creation of a single approvals process for environmental assessment and approvals under the Environmental Protection and Biodiversity Conservation Act via the state system, as part of long-term agreements with each state and territory.

·           Development of the ability and incentive for local government to be part of the one-stop-shop single assessment process.

·           Creation of a single lodgement and documentation process. The single documentation and assessment process could also be expanded to make a single entry point and one-stop-shop for all government approvals across portfolios.

State Environment Minister Andrew Powell says there will be less duplication and quicker decisions - but Commonwealth oversight will not disappear.

Some of the things proposed include embedding Commonwealth officers into the Qld Co-ordinator General's Department.

Approval Processes for Coal and Mineral Exploration

There have been recent changes to the approvals process for coal and mineral exploration allowing for earlier engagement and faster approvals.

Minister for Natural Resources and Mines Andrew Cripps said the new process had the potential to halve the time taken for companies to be granted exploration permits, while maintaining rigorous environmental, native title and land access assessments.

Mining companies no longer need to wait until an exploration permit is granted before engaging with landholders about their proposed exploration activities.

Exploration activities still cannot begin in an area prior to a permit being granted.

Applications to explore will still be subject to the same stringent assessment process to ensure they meet strict environmental, technical and commercial viability, community interest, native title and land access requirements.

A granted exploration permit is not a right to mine, and the Queensland Resources Council estimates that approximately only one in every 200 granted exploration permits ever goes on to become a mine.

Under the new process:

·       companies will now be formally advised within 90 days of lodgement whether their proposed exploration works program for a project has been approved or rejected.

·       For successful applications not subject to native title, once a work program has been approved and an environmental authority has been issued, a permit can be granted after annual rent has been paid.

·       For applications subject to native title, it means companies can start required native title processes and engage landholders about conduct and compensation arrangements a lot sooner.

·       These permit applications can then be finalised within 30 days of the native title process being concluded.

More information about exploration in Qld is available at www.dnrm.qld.gov.au or at www.mines.industry.qld.gov.au

Fees for Petroleum and Gas

In another example of the Qld Government’s approach to regulation and fees: The Qld Government will amend the Petroleum and Gas (Production and Safety) Regulation 2004.

Key changes include:

·       Replacement of the requirement for industry to report quarterly with a new annual reporting requirement

·       A capping mechanism for upstream operators to ensure revenue collected from some fee categories is not in excess of the calculated costs to conduct compliance activities

·       Amending the Category 10 fee to three-tiers and applied based on the size of the LPG delivery network. Small and medium sized operators will have a flat fee relative to their size and larger operators will remain at a fee per unit basis with a maximum charge retained

·       Abolition of the Category 9 fee category for the LPG delivery network

·       Removal of the fee for biogas users and exemptions for some biogas producers

More information is available at: www.mines.industry.qld.gov.au/safety-and-health/petroleum-gas-safety-health-fee.htm

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