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Members of the McCullough Robertson Projects team attended a briefing by the Department of Environment and Heritage Protection last week on the progress of its Greentape Reduction Project.
The changes to the Environmental Protection Act 1994 (EP Act) under the Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 (Greentape Reduction Act) are set to commence on 31 March 2013.
There will be significant changes to the Environmental Authority (EA) application process, and we highlight below some of the points discussed by the Department.
It is important to note there have been some changes to terminology under the new regime.
Specifically, what is currently known as a:
- level 2 code compliant EA, will be known as a ‘standard authority’;
- level 2 non-code compliant EA, will be known as a ‘variation authority’;
- level 1 EA, will be known as a ‘site-specific authority’.
Rather than the current detailed provisions that make up the EA assessment process, the new process is much more modular.
There will be four stages – application, information, notification and decision. Which stages apply will depend on what level of EA (outlined above) is sought.
Environmental management plans
Of note, under the new regime environmental management plans (EMPs) will no longer be a requirement of the EA application process (although if the EA application is a variation or site specific application, it will need to include similar information – including the likely impact of each relevant activity on the environmental values).
Changes to EIS requirements
Under the new regime, the EA application process under the EP Act is amended and in some cases may reduce the steps required. Where the assessment of an application is coordinated by the Coordinator-General under the State Development and Public Works Organisation Act 1971, the process will generally remain unchanged.
- an environmental impact statement (EIS) under the EP Act has been completed before an EA application is made;
- an assessment of the environmental risk of each of the relevant activities is included in the EIS; and
- the environmental risks of the activities and the way the activities will be carried out has not changed,
both the information stage and the notification stage of the EA application assessment will not apply.
EAs for mining lease applications receive some additional attention. Public submissions made during the EIS process will be deemed to be submissions for the purpose of the EA application (making those people ‘submitters’ for the decision stage of the EA application). Submitters will then be given the opportunity to object to the draft EA. Assuming the objectors and proponent are unable to agree that the objection be withdrawn, the proponent would then request that the Department refer the matter to the Land Court.
The new regime will see existing EAs transfer automatically with the transfer of a related mining tenement. This is in contrast to the current process, under which a separate transfer application needs to be lodged for each EA and mining tenement.
Single Integrated Operation
Where a proponent has a number of EAs relating to numerous contiguous tenements that form part of a single project, the new regime will allow for an amalgamation of those EAs into a single EA. We expect this will result in less administrative burden for the EA holder – with only a single anniversary date per project, and a single annual fee payable.
Amalgamated Corporate Authority
Corporations will also be able to amalgamate non-contiguous project EAs into a single Amalgamated Corporate Authority. EA holders will need to carefully consider this option however, as there is an associated risk that if one of the sites is in breach of an EA condition, the entire EA (and all of the projects impacted) could be affected.
From 31 March 2013, once an application reaches its decision stage, the Department will have 20 business days in which to make a decision to grant or refuse an EA. However, this decision period can be extended by another 20 business days by written notice. While this extension can only occur once, the applicant can also agree to additional extensions if it wishes.
Depending on the type of application, if the Department is not able to meet its time limits, there will be the following automatic decisions for EAs:
- for standard applications, EAs will be automatically granted;
- for variation applications, an EA with standard conditions will be automatically granted; and
- for site specific applications, applications will be deemed to be refused.
The Department has confirmed there is significant internal pressure from the Minister’s office to ensure applications are decided within the timeframes. In reality, where for whatever reason the Department is unable to meet the timeframes for a variation or site specific application, the proponent will be forced to agree to an extension.
Registered suitable operator
From 31 March 2013, to obtain an EA an applicant must be a ‘registered suitable operator’.
Under the new regime, an electronic public register will be kept of suitable operators – which will include all current EA holders. This register will ensure that an EA applicant’s suitability is not assessed each time an application is lodged.
Where an EA application is made, the first annual fee will not be required to be made until 20 days after the decision date to grant the EA.
Importantly however, a proponent will not be permitted to operate under a granted EA until its financial assurance has been lodged with the Department.
This article provides only a highlight of all the changes coming into effect on 31 March.
One of the important concepts reiterated by the Department on the Greentape Reduction Project is that it is not designed to reduce the integrity of environmental outcomes. The changes are designed to streamline application and assessment processes, and avoid double handling throughout the process.
We expect to see significant publication by the Department of guidelines and policies on the new regime in coming months.
This 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.