01 Apr 2020

Tools to help you manage environmental compliance in Queensland during COVID-19

By KAREN TRAINOR, KATHRYN PACEY AND NICOLE BESGROVE

A TEP is a specific program that, if approved and complied with, achieves compliance with the EP Act for the activity to which it relates.

As the COVID-19 pandemic develops, operational changes to meet social-distancing and self-isolation protocols for health and safety may have implications for continuity of environmental monitoring and management onsite. Queensland's Department of Environment and Science has not yet issued any guidance with respect to how it will deal with non-compliance and environmental harm issues which occur during the COVID-19 pandemic.

Tools to facilitate necessary changes to environmental authority conditions or to respond to incidents where environmental harm is caused or threatened are a temporary emissions licence (TEL) or transitional environmental program (TEP). The Department of Environment and Science also has emergency direction powers.

What is a temporary emissions licence?

Under the Environment Protection Act 1994 (Qld) (EP Act) a TEL permits the temporary relaxation or modification of specified conditions of an EA or TEP to allow the release of a contaminant into the environment 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; or
  • was foreseen but, because of a low probability of occurring, it was not considered reasonable to impose a condition on the authority to deal with the event or series of events;

When approved, the TEL will apply instead of the specified EA or TEP conditions.

Who can apply for a TEL?

A holder of an EA or TEP can apply for a TEL.

When can you apply for a temporary emissions licence?

A TEL can be applied for:

  • in anticipation of an applicable event (e.g. an application to release a contaminant into water when flood waters are due to reach the site of an activity within hours or days); or
  • in response to an applicable event (e.g. an application to allow a waste transfer station to change the types of material it receives, as part of a flood response after flood waters have receded).

Some other practical examples for when it may be appropriate to apply for a TEL are where a relaxation or modification of conditions in response to the applicable event are needed to:

  • change the monitoring frequency;
  • change operating hours;
  • change the arrangements for waste disposal or types of material received;
  • allow for short term releases or change emission limits where necessary due to resourcing limitations.

Whilst the COVID-19 pandemic is a health emergency event, as opposed a flood emergency event used as an example in the EP Act or bushfire event used as an example in the Department of Environment and Science Guideline - Temporary emissions licence, there is no express wording in the provisions which suggest that a TEL could not be granted in the appropriate circumstances so that an EA or TEP holder can continue to operate during the COVID-19 pandemic.

Given the temporary nature of a TEL, if longer term changes are required, an amendment of the EA or TEP may be warranted.  A TEL can however be issued so that it does not take effect until certain trigger events occur.  It can therefore be used to manage compliance in the event of foreseeable risks.

What is considered when deciding an application for a TEL?

The Department of Environment and Science must have regard to:

  • the extent and impact of the applicable event, including the potential economic impact of granting or not granting the TEL;
  • if the application is for a licence in anticipation of an applicable event:
    • the likelihood of the applicable event happening; and
    • when the applicable event is likely to happen; and
    • what circumstances need to exist before the licence takes effect;
  • the character, resilience and values of the receiving environment;
  • the likelihood of environmental harm and any measures necessary to minimise the harm;
  • the likelihood that the release will adversely impact the health, safety or wellbeing of another person (e.g. a release that adversely impacts another person is a release of an emission that could affect the quality of downstream drinking water);
  • the cumulative impacts of all releases authorised or directed under this Act, including releases under other temporary emissions licences that have been issued or applied for; and
  • the public interest.

When will an application for a temporary emissions licence be decided and what can be decided?

The Department of Environment and Science must decide the application as soon as practicable, but no later than 24 hours after receiving it and may impose conditions or refuse to grant the licence.

When would you use a TEP instead of a TEL?

A TEP is a specific program that, if approved and complied with, achieves compliance with the EP Act for the activity to which it relates by doing one or more of the following:

  • reducing environmental harm caused by the activity;
  • detailing the transition to an environmental standard;
  • detailing the transition to comply with:
    • a condition of an environmental authority;
    • a development condition; or
    • an agricultural ERA standard that applies to an agricultural ERA.

A TEP would be used instead of a TEL when particular actions need to be taken progressively and generally over a longer term to achieve compliance and manage the risks of environmental harm.  The Departmental Guidelines indicate that TEPs are not appropriate where there is non-compliance because of under-investing in pollution controls or persistent non-compliance.

In comparison, a TEL is specifically designed for emergency events and where temporary measures need to be implemented on a more immediate basis.  

More information about TEP's can be found in the DES Transitional Environmental Program - Guideline.

When can the Department issue emergency directions?

Under the EP Act, an emergency direction can be given by the Department of Environment and Science if:

  • either human health or safety is threatened or serious or material environmental harm has been or is likely to be caused; and
  • urgent action is necessary to:
    • protect the health or safety of persons; or
    • prevent or minimise the harm; or
    • rehabilitate or restore the environment because of the harm.

An emergency direction may permit environmental harm which would otherwise be unlawful.  An emergency direction can be initiated by the Department or be requested by an individual or company and would likely be used for one-off releases.  Whether or not all reasonable and practicable measures have been taken to minimise the risk will be relevant to the Department's decision on whether to issue an emergency direction.

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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 communication. Persons listed may not be admitted in all States and Territories.