On 1 November 2012, the Economic Development Bill 2012 (the Bill) was introduced into Parliament. The Bill amends the Environmental Protection Act 1994 to introduce new Temporary Emissions Licences (TELs).
Key aspects of TELs are outlined below:
- TELs are the Government’s proposed solution to deal with, and allow water releases from, flooded mines. TELs allow temporary relaxation of conditions of Environmental Authorities (EAs) and Development Approvals (DAs) relating to the release of a contaminant into the environment in certain circumstances.
- While TELs may be granted as a result of flood-type events, they may also be used to deal with other ‘emergent events’. An emergent event is an event either natural (such as flood or bushfire), or caused by sabotage, that was not foreseen when conditions were imposed on an EA or DA.
- A TEL application will be assessed against a less strict criteria compared to Transitional Environmental Programs (TEPs) and must be decided within a 24-hour timeframe. This streamlined process makes TELs a more suitable tool for emergent events than TEPs, which were the tool of choice during the 2010-2011 floods.
While the resources industry may welcome the new TELs as a focused solution to a serious issue, it should also note the new trigger for EA condition amendments that will accompany a TEL.
Background and Floods Commission of Inquiry Report
The Queensland mining industry was significantly affected during the 2008 and 2010-11 flood events, as enormous volumes of water accumulated in mine pits. Following the Queensland Floods Commission of Inquiry (FCoI) investigated and reported on actions for dealing with flooded mines included the discharge of water from such mines.
The FCoI noted issues with the water management systems of certain mines which, following years of severe drought, had been designed to catch as much run-off as possible. These issues are being addressed separately by the mining industry.
In addition, the FCoI brought into the spotlight issues with using TEPs under the EP Act to address unforeseen flood-type situations.
While TEPs were used for allowing the release of water from mines after the 2010-11 floods, these were never designed to serve as quick solution to excess water emergencies. Instead, they were designed to enable the transition of an operator’s activities into compliance with an EA (or development approval) over a period of time.
The length of time for processing applications for a TEP and the strict criteria against which TEP applications must be assessed made these an unsuitable tool for addressing unforeseen flood events.
After the release of the FCoI Report, the Government committed to investigating a new tool that would close the regulatory gap in the EP Act.
Temporary emissions licences and the Economic Development Bill 2012
The Bill proposes amendments to the EP Act, including the TELs for dealing with ‘emergent events’, and enhanced emergency powers.
TELs will allow temporary relaxation of conditions of EAs (or DAs) relating to the release of a contaminant into the environment in response to an ‘emergent event’. The Bill differentiates ‘emergent events’ from ‘emergencies’ as follows:
- an emergent event is an event either natural (such as flood or bushfire) or caused by sabotage that was not foreseen when particular conditions were imposed on an EA or DA; whereas
- an emergency exists if either human health or safety is threatened, or serious environmental harm has been or is likely to be caused, and urgent action is necessary.
An event is emergent where the Government could not foresee its occurrence at the time the EA or DA was issued, regardless of the need for urgent action. This allows a person to apply for a TEL both in anticipation of an emergent event, during an emergent event or in response to an emergent event (including after the event has ceased).
Apart from flood events, the types of emergent events that will warrant the issue of a TEL are an open question.
The TEL application may be lodged by email or facsimile and must be decided within a 24 hour timeframe. The TEL application is also assessed against a less strict criteria compared to the assessment criteria for TEPs.1
These streamlined assessment processes make the TEL a better tool to assist the mining industry deal with flooded mines in an expedient manner.
The Bill also enables an emergency direction by an authorised officer to be given orally where it is not practicable to provide the direction in writing. An emergency direction could be used to allow release of excess water held in mine pits for an emergency situation only.
While the TEL and enhanced emergency powers are a positive step in streamlining regulation, the following provisions of the Bill may be of concern to the mining industry.
The Bill allows the EHP to amend, cancel or suspend a TEL without consulting the TEL holder about the proposed action.2 The lack of consultation with the TEL holder prior to such actions taking effect was justified in the explanatory memorandum as necessary due to:
- the limited timeframe and information available for making a decision on a TEL application; and
- the need to ensure that any risk arising from the release of contaminants (e.g. risk to drinking water quality) can be readily avoided or remediated.
The Bill also includes the issue of a TEL as new grounds for adding, changing or cancelling a condition of a DA or EA. These powers may be used where the granting of a TEL may be evidence of a need to modify or update conditions of an EA or DA.
An example could be amendments to water release conditions to make an EA ‘flood-ready’ and thus able to deal with water levels experienced in a previous wet season and for which a TEL was required.
The mining industry has welcomed the proposed TELs. The Queensland Resources Council has pointed out that, if water is able to be released under the TEL, further mining will be allowed to take place resulting in an additional $300 million in state royalties.
However, the use of TELs to release water from flooded mines may be seen by environmental groups as a short-term solution to a problem inherent to certain mines’ water management systems, which were designed to gather rather than disperse water. The Opposition made representations against the Bill.
The Bill was referred to the State Development, Infrastructure and Industry Committee on 1 November 2012.
The committee is holding a public hearing on the Bill on Friday, 9 November 2012. Persons interested in appearing before the committee must express their interest by emailing email@example.com by 2pm Wednesday, 7 November 2012.
Written submissions are being accepted until 5pm Friday, 9 November 2012.
The committee must report back to Parliament on the Bill by 22 November 2012.
Further information about the committee process may be accessed here.