Focus: Greater environmental notification obligations in Queensland
10 January 2012
In brief: Companies and individuals involved in activities in Queensland that have the potential to impact on the environment should be aware that the duty to notify of environmental harm has been expanded by recent legislative amendments. Partner Bill McCredie (view CV), Lawyer Gobind Kalsi and Summer Clerk Sarah Hampson outline the changes.
- What has changed?
- Impacts on duty to notify for CSG and other Chapter 5A activities
- Program Notices and TEPs
How does it affect you?
- Registered operators, employers, employees, contractors and all other persons that become aware that an event has happened that causes or threatens to cause serious or material environmental harm while carrying out an activity have a broader statutory obligation to notify others, in particular:
- employees must notify their employer within 24 hours;
- employers must give written notice of the event to the Department of Environmental and Resource Management (DERM) within 24 hours; and
- employers must give notice of the event to any affected owners and occupiers, in writing or by public notice, as soon as reasonably practicable.
- Additional obligations are imposed on entities carrying out petroleum (including coal seam gas), geothermal or greenhouse storage activities where these activities cause or threaten to cause certain adverse groundwater impacts.
The relevant provisions of the Natural Resources and Other Legislation Amendment Act (No.2) 2010 (Qld) (the amending Act) commenced on 2 December 2011. The amending Act broadens the scope of the duty to notify an event that causes or threatens to cause serious or material environmental harm under section 320 of the Environmental Protection Act 1994 (Qld) (the EP Act).
The EP Act imposes a duty on persons carrying out an activity to notify their employer (if they are an employee), or in all other cases DERM, of any event that causes or threatens to cause serious or material environmental harm, unless that event is authorised under the EP Act.
The concept of 'environmental harm' includes any actual or potential adverse effect on an environmental value, that is temporary or permanent, whether the harm is caused directly or indirectly, or alone or in combination with other factors.
'Serious' environmental harm includes harm that is high impact or results in property loss or damage of more than $50,000, or would incur costs of more than $50,000 to prevent or minimise the harm or to restore the environment.
'Material' environmental harm includes harm that is not trivial or negligible in nature or results in property loss or damage of more than $5000, or costs of more than $5000 to prevent or minimise the harm or to restore the environment (but is sufficient to constitute 'serious' environmental harm).
The amending Act expands the duty of a person carrying out an activity to notify events that cause or threaten to cause 'serious' or 'material' environmental harm to their employers or DERM.
There are three key changes to the statutory duty that will affect registered operators, employers, employees, contractors and all other persons that become aware that an event has happened that causes or threatens to cause serious or material environmental harm while carrying out an activity.
Duty to notify owners and occupiers
The amending Act introduces an additional requirement to notify 'owners' and 'occupiers' of any land affected by an event that has caused, or threatens to cause, serious or material environmental harm.
An 'owner' includes any registered owner or lessee of land, and an 'occupier' is any person who lives or works on the affected land.
Notice must be given to owners and occupiers on affected land in writing, or by public notice, as soon as is reasonably practicable.
In some circumstances the extent of the environmental harm may be difficult to estimate and the affected land may be indeterminate. When there may be a large number of persons affected, or where there is uncertainty as to whom is affected, public notification to owners and occupiers is likely to be most appropriate. DERM has released a new Guideline on the duty to notify that suggests in such situations a radio or television announcement would be an appropriate means of giving 'public notice'.
Importantly, given the very low threshold of 'material' environmental harm (ie $5000), it is likely that even minor events must be notified to a potentially large number of people and entities.
The amending Act also significantly increases the penalties for failing to notify DERM and owners and occupiers of an environmental harm event.
The amending Act increases the maximum penalty five-fold to $50,000 for an individual and $250,000 for a corporation. This is a significant increase and highlights the importance of complying with the notification requirements.
The third change is the short timeframe for notification to DERM of any relevant event. Previously, an event had to be reported 'as soon as reasonably practicable'.
From 2 December 2011, any person or entity carrying out an activity that becomes aware of an event that causes or threatens serious or material environmental harm, must notify DERM in writing within 24 hours.
The new obligations detailed above are in addition to any notification obligations imposed by any environmental authority or development approval conditions.
The amending Act imposes an additional duty to notify when carrying out a Chapter 5A activity under the EP Act. Chapter 5A activities include petroleum, gas, geothermal or greenhouse storage activities.
Entities conducting these activities must notify DERM and owners and occupiers in writing, or by public notice, where they are carrying out such an activity and they become aware that:
- the activity has negatively affected, or is likely to negatively affect, the water quality of an aquifer; or
- the activity causes the unauthorised connection of two aquifers.
Notification must be given to DERM within 24 hours and to owners and occupiers as soon as is reasonably practicable. Given the complex nature of coal seam gas activities and monitoring of aquifers, it may be difficult to determine precisely when either of the abovementioned events have occurred.
When notifying DERM of actual or threatened serious or material environmental harm, consideration should given as to whether the contemporaneous lodgment of a Program Notice and/or Transitional Environmental Program will also assist in the management of the event and its associated liabilities.
Allens is available to provide assistance and advice when considering such options.
Registered operators, holders of environmental authorities, employers and their employees and contractors undertaking activities with a potential to cause environmental harm should ensure they are aware of the expanded statutory duty to notify environmental harm events, in addition to any notification obligations imposed under any applicable environmental authority or development approval conditions.
- Bill McCrediePartner,
Ph: +61 7 3334 3049
- Paul LalichPartner,
Ph: +61 2 9230 4026
- Jim ParkerPartner,
Ph: +61 2 9230 4362
- Chris SchulzPartner,
Ph: +61 3 9613 8772