As the Queensland government comes to terms with the challenges presented by the COVID-19 public health crisis, the Department of Environment and Science (DES) has commenced communications with EA holders to address ongoing concerns.
DES has reminded regulated industries that the requirement to be appropriately licensed is ongoing.
Compliance with the general environmental duty (contained in s319 of the EP Act) is still required.
Operators should take stock of their EA conditions, and consider the potential impact of the pandemic on their ability to comply. For example, impacts to supply chain, workforce, or expert contractors may make compliance with EA conditions, legislative requirements and timeframes problematic.
Should that be the case, having done what they can to comply, operators should consider the avenues available to mitigate the impact, communicate appropriately with DES, and ultimately bring themselves into compliance.
DES's letter to operators notes that:
"operators should be assured that the department will consider these difficult circumstances as part of its existing discretion when making enforcement decisions and that it will continue its risk-based regulatory approach focussing on environmental harm and serious non-compliance".
A working group was formed in mid-April with representatives of industry, DES and the Department of Natural Resources, Mines and Energy to work through potential compliance concerns because of COVID-19.
On 22 April, DES released a proforma for resources industry EA holders to consider, to identify circumstances where compliance will become difficult or impossible due to COVID-19 restrictions. The pro forma is relatively narrow in its scope. It states:
'The administering authority will not take enforcement action in circumstances where an environmental authority holder is able to demonstrate to the satisfaction of the administering authority that:
Operators staring down the barrel of non-compliance should carefully consider the benefits and risks of completing the proforma. A completed proforma may constitute evidence of an admission of non-compliance, and could become publicly available through right to information processes.
DES is empowered to make agreed amendments to EAs quickly and easily under s215 of the EP Act. For example, an approach to DES may state why the health risks of compliance outweigh the environmental benefits of retaining the current EA conditions, and request an appropriate amendment. DES may then agree without further process to amend the conditions – resolving the non-compliance concerns. It may be agreed that the changes will fall away after a specified period of time.
Use of the pro forma is a tricky issue, and we recommend operators give it careful thought and take advice before proceeding.
DES confirmed in its correspondence that all individuals and companies must comply with the Chief Health Officer's directives. As such, DES has activated its business continuity plan so that it will be able to continue to deliver its core services. It has also expressed its understanding of the difficulties and challenges that the community is currently facing.
DES has advised it will continue to respond to environmental incidents and deal with new applications (although pre-lodgement discussions are encouraged prior to electronic lodgement of any application). The following services will also continue:
DES has its pollution hotline available for anyone with compliance concerns (email to email@example.com, or the pollution hotline on 1300 130 372 and select option #2, leaving a message with the operator stating you are calling to report a possible non-compliance as a result of the COVID-19 event).
If you have any questions about how your business will be able to continue to achieve compliance with its EA or the general environmental duty in these unprecedented times, please contact us to discuss. We are ready to assist your business with any environmental law issues. Reach out if you would like any further guidance or assistance.