Australia: Preparing for the wet season: releasing excess water in Queensland

Last Updated: 9 December 2012
Article by Karen Trainor and Kathryn Pacey

Key Points:

Queensland's Environmental Protection Act has been amended to provide additional tools to respond to emergency releases of water.

During the 2010/11 wet season, many Queensland mines and other facilities were forced to release excess water, some of it water that was considered contaminated.

With the wet season again approaching, it is appropriate to consider the various mechanisms available under the Environmental Protection Act 1994 (Qld) (EP Act) to authorise the release of excess water from licensed sites, including mines, industrial and manufacturing sites.

Since the 2010/11 wet season, and in response to the Queensland Floods Commission of Inquiry, the State has amended the EP Act to provide additional tools to respond to emergency releases of water. While some of these amendments have taken effect already, others are imminent. Relevant mechanisms to consider for a release include:

  • emergency directions;
  • transitional environmental programs (with or without a program notice);
  • temporary emissions licences; and
  • amending the conditions of an environmental authority (EA) or development approval (DA).

In addition, in some circumstances there will be an obligation to notify serious or material environmental harm in accordance with the EP Act. This may be additional to notification obligations under the conditions of the relevant EA or DA.

Emergency directions

An emergency direction allows for the direct release of a contaminant into the environment. An action that causes serious or material environmental harm will not be unlawful if it is authorised under an emergency direction.

Emergency directions are rarely given, and may only be issued where the chief executive administering the EP Act is satisfied that it is necessary and reasonable because of an emergency and there is no practicable alternative to the release. During the 2010/11 wet season, only two emergency directions were issued and they were issued in response to a dam safety concern.

On assent of the Economic Development Bill 2012, the regulation of emergency directions will change so that "emergency" will be defined to specifically refer to human health and safety, and the direction will be able to be given orally, with a subsequent written confirmation.

Transitional Environmental Program

A transitional environmental program (TEP) is a specific program that, when complied with, achieves compliance with the EP Act. A TEP may be voluntary, or it may be required by the chief executive administering the EP Act. A template for the preparation of a TEP and information requirements is available from the DEHP website.

In some circumstances, it may be appropriate to submit a "program notice" about an act or omission that has caused or threatened environmental harm and declares an intention to prepare for approval a TEP. The giving of the program notice and any documents submitted with it are not admissible in evidence against the person in a prosecution for the original offence. The giving of a program notice may need to be considered concurrently with other notification obligations under the EP Act.

TEPs were commonly used to authorise releases of excess water during the 2010/11 wet season, with over 100 applications for TEPs being lodged with DEHP during this time. Many of these TEPs remain in effect with ongoing discharge and monitoring conditions.

Generally, DEHP has 20 business days from the application date to decide whether to approve a TEP. While that timeframe was significantly compressed during the 2010/11 wet season, in many instances a fast approval timeframe is required in order to take advantage of high flows in discharge areas.

Temporary Emissions Licence

The recently passed Economic Development Bill 2012 will, on assent, introduce temporary emissions licences (TELs) into the EP Act. This is in response to the Queensland Floods Commission of Inquiry report, that recognised in some cases not only quick, but also pre-emptive approvals may be required.

A TEL allows a holder of an EA or a registered operator to apply for a temporary relaxation or modification of the conditions of an EA or DA that relate to the release of a contaminant into the environment. A TEL may be applied for either in anticipation of or in response to an "applicable event". An applicable event is an event or series of events, either natural or caused by sabotage, that was not foreseen when particular conditions were imposed on an EA or DA. Concerns were raised in consultation on the Bill about the extent of the term "not foreseen".

An application for a TEL must be decided within 24 hours. Once granted, the chief executive may amend, cancel or suspend the TEL if he receives information that the effects of releasing a contaminant into the environment will be greater than was originally understood at the time the TEL was issued or the chief executive receives other applications for TELs that would, if granted, affect the same environmental values.

A TEL overrides the conditions of an EA, DA or TEP.

Amending the conditions of an Environmental Authority and Development Approval

One way to pre-emptively approve foreseeable water releases is to incorporate appropriate conditions in the EA or DA that in certain flow situations, water of a specified quality is able to be released. For mines in the Fitzroy Basin, this is provided for in the model conditions, however tailored and site specific conditions are required to ensure that the authorisations are appropriate. Conditions that authorise a release will, provided they can be complied with, avoid the need for other regulatory tools under the EP Act to be considered before a release can be made. Existing approval holders may, in appropriate circumstances, apply for an amendment to their approval to authorise releases.

An amendment to conditions will not be a quick solution, and will not be able to be relied upon in the event that a release is imminent. The amendment may be a result of a TEP or TEL, and is a longer term solution where releases are foreseeable into the future.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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