By McCullough Robertson Lawyers
The management of contaminated land continues to be a complex issue in Queensland.
Recent changes to the legislation governing environmental protection in the state aims to strengthen and clarify requirements related to contaminated land.
This includes:
- the actions required to restore or rehabilitate environmental harm;
- the duty to notify of environmental harm;
- the grounds for an environmental investigation; and
- requirements for contaminated land auditors.
The changes to the Environmental Protection Act 1994 (Qld) (EP Act) were made in amendments to the Environmental Protection (Powers and Penalties) and Other Legislation Amendment Act 2024 (Powers and Penalties Act) and the Environmental Protection and Other Legislation Amendment Act 2023 (Qld) (EPOLA Act).
Significantly, the Powers and Penalties Act introduces a “duty to restore”, which requires that, if a person causes or permits unlawful environmental harm (e.g. through contamination), the person must take appropriate action, as soon as reasonably practicable, to rehabilitate or restore the environment.
The duty to restore the environment places an obligation for the proactive remediation of environmental harm on the person responsible for the harm.
The purpose of the new duty is to clarify that a person should not wait for the administering authority to issue a notice to commence clean-up or remediate.
Notification requirements
Previously, the EP Act requirement for notification was triggered when the operator became aware of “the happening of an event involving a hazardous contaminant”.
The recent amendments expand the duty to notify to a broader range of potential circumstances.
This duty previously required a person to notify once they ‘became aware’ of ‘an event’ causing environmental harm.
Now, the duty to notify is enlivened where a relevant person becomes aware or ought reasonably to have become aware of an event or the presence of a hazardous contaminant.
This means there no longer has to be a trigger “event”, but rather, the consideration of the possible consequences of the potential presence of contaminants. This is a much stronger burden on operators.
Investigations
The EPOLA Act and the Powers and Penalties Act have expanded the scope of when environmental investigations might be required by the regulator.
The EPOLA Act amended the EP Act to clarify that an investigation notice can be given to a prescribed responsible person to conduct an environmental investigation of contaminated land where it is satisfied, or suspects on reasonable grounds, the hazardous contaminant contaminating the land has the potential to cause serious environmental harm or material environmental harm.
The previous investigation power was only triggered when the Department of Environment, Science and Innovation (DESI) was satisfied of the contamination, rather than having a mere suspicion, and required consideration of the concentration of the hazardous contaminant.
Contaminated land investigation documents
Contaminated land investigations are notoriously complex. The EPOLA Act amendments to the EP Act provide greater clarity as to the reporting and evidence requirements for investigations. The requirement now separates the content requirements into reports, and, separately, draft site management plans.
This amendment aims to clarify the requirements for each document to ensure the efficient function of the investigation.
Auditors
Contaminated land auditors provide an important function by conducting environmental audits and preparing environmental reports.
Some of the legislative changes impact on the declaration that is required to accompany an auditor’s certificate, and the ability to place additional conditions on an auditor’s certification. DESI will also be able to amend the conditions of an auditor’s approval. These changes aim to provide greater clarity regarding offences related to an auditor making fake or misleading declarations, reports, or certifications.
Key takeaways
These amendments aim to achieve the overall principles of prevention of environmental harm and adherence with the general environmental duty.
The introduction of a duty to restore signifies a proactive stance towards environmental remediation. However, a significant challenge will be determining who is deemed responsible to restore in each circumstance. This is particularly difficult, for example, in situations of water quality or discharge events.
Balance must also be struck between the duty to restore and the potential financial burden on operators. Regardless, operators will need to ensure that their systems, processes and budgets anticipate the need to monitor and restore environmental harm.
The broadening of notification triggers may burden landowners, occupiers and auditors with increased reporting obligations, potentially leading to regulatory complexities and compliance challenges.
The following information provides further insights into the environmental protection changes.
Changes to notice of proposed amendment
The Environmental Protection (Powers and Penalties) and Other Legislation Amendment Act 2024 introduces some important changes to the decision-making process for a ‘notice of proposed amendment’ (NOPA) to environmental authorities and Progressive Rehabilitation and Closure Plan schedules. Changes to the forced EA amendment process (mccullough.com.au)
Environmental enforcement order – New compliance tool
The new Environmental Enforcement Order introduced by the Environmental Protection (Power and Penalties) and Other Legislation Amendment Act 2024 consolidates previous compliance tools into one statutory notice and broadens powers to prevent environmental harm. Introducing the Environmental Enforcement Order: A new compliance tool (mccullough.com.au)
Key changes to the compliance and enforcement provisions of the EP Act
The Powers and Penalties Act, passed on June 11 2024, strengthens the compliance and enforcement provisions of Queensland’s Environmental Protection Act 1994. Key changes include new offences for breaching environmental duties, enhanced inspection powers, stricter penalties for repeat offenders, and expanded executive officer liability. Environmental protections strengthened with new Powers and Penalties Bill (mccullough.com.au)
The following McCullough Robertson partners and lawyers contributed to this article – Sarah Hausler, Stuart Macnaughton, Troy Webb, Madeline Simpson, Kate Swain and Katie Piper.
A longer version of this article is available on the McCullough Robertson website.
This article covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It 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.
