The 2013/2014 Queensland wet season is approaching and it is appropriate for mines, quarries and other similar facilities to consider emergency response plans and the duties under the Environmental Protection Act 1994 (Qld) (EP Act).
The State Government continues to prosecute breaches of the EP Act arising out of wet season related activities. Only last month a far north Queensland mine owner was fined $80,000 following the release of mine-affected water during the 2011/2012 wet season. That prosecution is particularly worth noting because the authority holder was liable even though the mine works were operated by another company.1
The maximum penalty which could have been imposed in the above case was $220,000 (or two years' imprisonment for an individual). This, and other penalties associated with breaches of the EP Act, are extremely persuasive.
We suggest the following compliance focused strategies for consideration:
- Identify the potential hazards that may cause or threaten environmental harm.
Heavy rain can lead to issues such as site flooding and compromised water storage infrastructure. One of the first things to think about when considering compliance issues is to identify the potential hazards on a site that may be affected by severe weather events. For instance, any unbunded fuel storage areas or the holding capacity of tailings dams.
If hazards are identified on site, it is essential that any associated risks are managed. Do you have a storm/wet season strategy detailing avoidance and control measures that can be put in place before an incident happens?
- Ascertain the control measures and extent of potentially affected land
Having identified potential hazards, consideration should be given to the associated risks and the control measures that can be adopted to eliminate, avoid or reduce the likelihood of an event, together with ascertaining the extent of potentially affected land. If an event occurred on the site, for example overflow of dams or collapse of bund/dam walls after inundation, what is the likely impact and extent of potentially affected land? The answer is likely to vary depending on the type, amount or location of a release, the pathway of release and weather conditions at the time. Further, consideration should be given to whether an event could have consequences which extend beyond the boundaries of the site, particularly if it could extend to an environmentally sensitive area, waterway or tidal area.
- Considerations for employers
It is important to have appropriately qualified and trained employees, contractors, consultants and agents undertake and supervise activities which have the potential to cause environmental harm or nuisance. A component of the training given to those persons should include information to ensure persons are able to recognise when activities or weather events are likely to cause or threaten environmental harm and education on the duty to notify imposed by the EP Act.2
A checklist along the following lines is worthy of consideration:
- Could an action/event associated with the activity harm the environment?
- If so:
- Is that action authorised? For example, under an environmental protection policy, a transitional environmental program, an emergency direction or environmental protection order?
- If the action is not authorised, are the persons carrying out the activity (including contractors) aware of the duty to notify should it cause or threaten serious or material environmental harm?
- Are there any approval conditions attaching to the activity that require prescribed actions to be undertaken in the event of site flooding, an unauthorised release or other specified situations?
- Are the conditions being coupled with and/or what control measures have been put in place?
- Are the requirements for notification and any prescribed scenario specific actions incorporated into operation and emergency procedures?
We recommend that employers prepare and maintain an emergency response plan that employees and other persons carrying out the activity can resort to in the event of an extreme weather event and/or an actual or possible environmental incident.
This plan should include:
- A copy of any approvals that authorise activities on the site and which prescribe actions to occur in the event of specific scenarios.
- Contact details for the nearest regional office of the Department of Environment and Heritage Protection, including a phone number, fax number and email address. Should the project or activity have a liaison officer within the Department, contact details of that officer should also be included.
- A pro-forma notification from the employee (or contractor) to an employer which meets all the content requirements for the duty to notify under the EP Act (see the section on employees below) should that employee (or contractor) become aware that serious or material environmental harm has been caused or threatened by their own or someone else's act or omission while carrying out the activity or related activity on the site.
- After hour contact details and alternative contact details for employers and supervisors.
- A copy of the standard notice from the Department's website that needs to be completed should the duty to notify arise and the responsibility fall to an employee in circumstances when the employer/supervisor is unable to be contacted within 24 hours.
The duty to notify in the EP Act extends not only to the giving of notice to the Department, but also notice to any occupier or owner of affected or potentially affected land.3 There may be insufficient time to gather this information in the immediate aftermath of an event, particularly if the event occurs after hours or on a weekend. Therefore, for those engaged in higher risk activities, it is recommended that the emergency response plan also include the updated addresses and full contact details of all third parties which could potentially be affected in a worst case scenario (e.g. contact details for all adjoining land owners and occupiers).
Should a release of excess water (which may possibly be contaminated) following a heavy rain event be required, there are a number of mechanisms available under the EP Act which may authorise such a release, such as emergency directions and transitional environmental programs. Having regard to the potential risks involved, we strongly recommend that legal advice is obtained prior to a release. HopgoodGanim's Planning and Environment team is available to provide timely and specific advice as required.
- Considerations for employees
If an employee (or contractor) becomes aware that serious or material environmental harm has been caused or threatened, whether it is caused by their own (or someone else's) act or omission, it is important that the employee is able to consider, in a timely manner, the impact of the event and provide sufficient details of the event.
While most employers would prefer to notify the Department of any event, should the employer not be contactable within 24 hours, the employee is obliged to notify the Department themselves. There are penalties prescribed in the EP Act if an employee fails to do so.
The Department has issued a standard notice for this purpose, it requires the following details:
- The activity that was being carried out that gave rise to the event.
- Details of the event that led up to the incident.
- Incident type.
- Source of release.
- Recovery/likely clean up action.
Compliance with the requirements of the EP Act can be challenging, in particular during the wet season. Taking the time to prepare for an incident through emergency response plans is an essential and prudent step. Preparation of such documents has a real ability to limit exposure to inadvertent breaches of the EP Act, including the duty to notify of actual or threatened environmental harm. Given the serious penalties involved for a breach of the duty to notify of actual or potential environmental harm (a potential maximum penalty of $55,000), compliance with approvals and the duty to avoid and notify environmental harm should be given priority. When in doubt as to whether an event is likely to have caused or threatened serious or material environmental harm, it is better to be cautious and provide notice to the Department.
1'State Government holders far north Queensland mine owner to account', Media Release, MInister for Environment and Heritage Protection, the Honourable Andrew Powell, 12 September 2013.
2Chapter 7, Part 1 Division 2 of the EP Act.
3Affected land means land on which the event caused or threatens serious or material environmental harm.
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