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17 Aug 12
Environmental Protection (Greentape Reduction) and Other Legislation Act 2012 (Qld)

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The Environmental Protection (Greentape Reduction) and Other Legislation Act 2012 (Qld) (Act) received assent on 14 August 2012 (and will commence on a date to be fixed by proclamation), with the objective to:

  • develop a licensing model proportionate to environmental risk
  • provide flexible operational approvals
  • streamline the approvals process for mining and petroleum, and
  • streamline and clarify information requirements.

Background

McCullough Robertson has closely followed the government’s streamlining approvals project.  Under the former government, the Environmental Protection (Greentape Reduction) and Other Legislation Bill 2011 (Qld) (2011 Bill) was originally introduced on 26 October 2011.  However, the 2011 Bill lapsed upon the dissolution of the previous Queensland Parliament. 

On 29 May 2012 the Environmental Protection (Greentape Reduction) and Other Legislation Bill 2012 (Qld) (2012 Bill) was introduced by the Liberal National Party, in substantially the same form as the 2011 Bill.

The Queensland Parliament’s Agriculture, Resources and Environment Committee (Committee) examined and reported on the 2012 Bill on 12 June 2012.  Amendments were made to the 2012 Bill primarily as a result of the Committee’s report, which are discussed in more detail below.  On 31 July 2012, the 2012 Bill was passed through Queensland Parliament.

Key points

Proportionate licensing model – types of applications

The Act applies the same proportionate licensing model approach to the 2011 Bill. 

Environmental Authority (EA) application processes will depend on whether the application is for a ‘standard’, ‘variation’ or ‘site-specific’ EA.

‘Standard’ and ‘variation’ applications will be subject to lower levels of assessment.  They will each apply only to ‘eligible ERAs’ (being environmentally relevant activities (ERAs) that satisfy certain criteria – but only where there is no relevant significant project). 

‘Site-specific’ application processes will kick in where the other processes are not available – for example, where tailored conditions are required for a complex mining proposal. 

As the names suggest, ‘standard’ applications will be subject to stock-standard conditions, while ‘variation’ applications will be triggered where the applicant seeks to change the standard conditions.

Each type of application will need to be made in the approved form, and include the following information to constitute a ‘properly made application':

  • a description of all ERAs for the application
  • a description of the land on which each activity will be carried out
  • a declaration that each ERA complies with the eligibility criteria
  • a statement about the type of application
  • a statement as to whether the applicant is a registered suitable operator
  • for ‘variation’ applications only, a statement of the standard conditions for the activity or authority the applicant seeks to change
  • for ‘variation’ and ‘site-specific’ applications only, an assessment of the likely impact of each ERA on the environmental values (unless an environmental impact statement (EIS) process for each ERA the subject of the application has been completed), and
  • for ‘site-specific’ applications for coal seam gas (CSG) proposals, additional requirements relating for example to the anticipated CSG water quality, quantity, flow-rate and management systems.

The assessment process for a ‘standard’ application is set out under the Act as follows:

  • if the application is for a mining activity relating to a mining lease, the applicant must give and publish a notice about the application –the submission period in relation to the public notice will line up with the relevant objection period under the Mineral Resource Act 1989 (MRA)
  • then, within five business days after the submission period ends the applicant must give the Department of Environmental and Heritage Protection (DEHP) a declaration about whether or not the applicant has complied with the public notice requirements
  • finally, the notification stage will end when DEHP receives the declaration mentioned above (or if the declaration has not been provided, if and when DEHP provides a notice that the application may still proceed) and the decision stage will commence where:
    • DEHP will decide that the application be approved subject to the standard conditions for the relevant activity or authority, or
    • if the application is for a mining activity relating to a mining lease, that the applicant be issued an EA on conditions that are different to the standard conditions for the activity or authority.

The assessment process for a ‘variation’ application is similar in part to that for a ‘standard’ application, and is set out below:

  • the information stage gives DEHP the opportunity to ask the applicant for further information needed to assess the application (an administering authority will not request that an EIS be provided for a variation application) – the information response period will be at least six months after the giving of the information request (the period will be provided when the information request is given) and the information stage will end once the applicant has provided the requested information
  • as above, for ‘standard’ applications, if the application is for a mining activity relating to a mining lease, the applicant must give and publish a notice about the application –the submission period in relation to the public notice will line up with the relevant objection period under the MRA
  • as above, for ‘standard’ application, then, within five business days after the submission period ends the applicant must give DEHP a declaration about whether or not the applicant has complied with the public notice requirements
  • finally, the notification stage will end when DEHP receives the declaration mentioned above (or if the declaration has not been provided, if and when DEHP provides a notice that the application may still proceed) and the decision stage will commence where:
    • DEHP will decide that the application be approved subject to conditions that are different to the standard conditions for the activity or authority, or
    • that the applicant be issued an EA subject to the standard conditions for the activity or authority.

The assessment process for a ‘site-specific’ application is set out under the Act as follows:

  • again, the information stage gives DEHP the opportunity to ask the applicant for further information needed to assess the application (which may include a requirement that an EIS be provided for the application) – the information stage will end once the applicant has provided the requested information
  • if an EIS is required, the information response period will be for at least two years from the date the terms of reference are given to the applicant to allow the applicant to undergo the EIS process in accordance with the Environmental Protection Act 1994 (Qld) (EP Act)
  • if no EIS is required, the information response period will be at least six months after the giving of the information request (the period will be provided when the information request is given)
  • the applicant must give and publish a notice about the application which can be made at the end of the application stage as well as keep copies of the public notice and application documents available on a website from the start of the submission period until the application is decided, withdrawn or lapses – the submission period in relation to the public notice will end for an application for:
    • a mining activity on the last objection day under the MRA, or
    • any other resource activities on a day fixed by DEHP or 20 business days after the public notice is published
  • within five business days after the submission period ends, the applicant must give DEHP a declaration about whether or not the applicant has complied with the public notice requirements
  • finally, the notification stage will end when DEHP receives the declaration mentioned above (or if the declaration has not been provided, if and when DEHP provides a notice that the application may still proceed) and the decision stage will commence where DEHP will decide that the application will be:
    • approved subject to conditions, or
    • refused.

Integrated approvals

Under the Act, the opportunity to apply for a new type of ‘amalgamated authority’ has been introduced (referred to as an amalgamated corporate authority), with one set of conditions.  A single legal entity that holds two or more EAs may, apply to combine approvals into a single EA. 

A parent company will not be able to amalgamate the EAs owned by its subsidiary companies.

Information requirements

The Act establishes standard criteria in decision making for third party certification.  The Government has stated that this should reduce information requirements for assessment and will form part of a ‘user friendly’ online system aimed at providing a more transparent process for public participation in a project.

The Act would also introduce a formal framework for third party certification (as opposed to Government approval) forming part of certain approvals processes (e.g. conducting a site investigation or preparing a validation report for contaminated land) as follows:

  • firstly, the applicant would work with a suitably qualified person to ensure that the relevant plan or construction meets environmental standards, and
  • this would then be assessed by a third party auditor who would provide certification if the standards are met.

Further developments

Features of the new regime will include:

  • the ability for an EA and the relevant tenure to be transferred together without the need for a separate transfer under the EP Act
  • combining the documentation that is submitted as part of the EIS process with the application documents, including the environmental management plan requirements being merged in the application process
  • eliminating the duplication of the notification process so that the information and notification stages will be undertaken during the EIS process and not repeated during the environmental authority application process
  • the ability to advertise the application documents without having to advertise the draft EA
  • the removal of the ‘plan of operations’ requirements for mining operations operating under standard conditions, and
  • the removal of the public notification requirements under the EP Act for mining claims.

Conclusion

Minister for Environment and Heritage Protection Andrew Powell has indicated that this new framework is intended to commence in March 2013 to allow time for more detailed information to be made available to industry and the wider community.

The passing of the Act is a step in the right direction towards reducing the administrative requirements towards obtaining environmental approvals for industry. 

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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