Regulatory Response – Strengthened in NSW and Qld

Resource recovery is a hot issue – pun intended – the problem is most that say they do have methods rarely have solutions at a commercial scale. Often the excuse is the rules are at fault. There may be some truth in that claim even if in the main it is the systems that are at fault for offering concept grants as opposed to solution incentives in Australia that dominates the innovation space. If you think we are saying that at least one iconic institution might have a reason to delay innovation. That is not what is being said: It is being said regulatory response mechanisms are in need of a rethink. In particular we find evidence that regulatory response with policy on reuse, recycling, reprocessing and energy recovery, is not necessarily consistent with the most efficient use of the recovered resources opportunity.

As we seem to doing so regularly lately we can report NSW and Queensland are doing something about the rules around resource recovery that do not weaken the intention of the rules, and at the same time they encourage a more flexible approach to offset harm. It is done with new policy positions being taken that alter the regulatory response to issues. This change means the EPA of both states are responding to solutions that says show me it works and we will listen as opposed to it does not fit the guidelines sort of approach.

It is true some in our society just want to exploit with disregard to good environmental practice and some media might even exploit our emotions in the interest of their own agenda, and strong regulatory responses remain in need to counter same. For example we found a story of a notice that the NSW Environmental Protection Agency (EPA) has issued a clean-up notice to a fuel transport company in relation to environmental issues at its depot. The NSW EPA found “that fuel or a similar material had leaked or been pumped onto the ground” at the site. According to NSW EPA the clean-up notice requires Xpress “to immediately stop receiving or removing any waste and contain any contamination within bunds on site”. Source NSW EPA’s media release on 3rd September 2014. Clearly the regulatory response was appropriate for this matter.

Staying on NSW rules, on 10th September 2014, the Office of Environment and Heritage announced it was rethinking its approach to its major projects policy in NSW. The benefit said is it is a more flexible approach aimed to put an end to case-by-case negotiations by providing a standard method for assessing impacts and determining offset requirements. The new policy is likely to be followed by additional changes to biodiversity protection arrangements in NSW, which are currently undergoing a comprehensive review.

Also related to this policy approach is a Legally-backed accreditation scheme that is the offsets policy for major projects will be accompanied by a new accreditation scheme for consultants who administer the policy’s supporting framework for biodiversity assessment. The accreditation scheme will be developed over the next 18 months, while the new policy is being implemented. The policy will be given formal effect through legislation after the 18-month interim phase, and the accreditation scheme will also have legislative backing. During the interim phase, consultants using the assessment framework must be accredited under the NSW BioBanking Scheme, in accordance with s142B of the Threatened Species Act.

Importantly to above is that it has planning protections that do not allow empowered consent authorities to allow economically significant projects to proceed with watered-down offset obligations if normal requirements would have affected their viability. In other words discounting is not allowed. However, the policy will allow credits to be earned from ecological rehabilitation. The NSW Government’s response to public comments on the draft version says it is also open to allowing “other forms of post-development rehabilitation” to earn biodiversity credits.

NSW biodiversity offsets policy for major projects (NSW Government, September 2014)

Framework for biodiversity assessment

Report of submissions on the draft policy (NSW Government, September 2014)

Individual submissions on the draft policy

 

Now to Queensland where the media reports would have you believe there are no rules. We read that on 2nd September 2014 the Queensland companies are now subject to pay five times more for some infringement notice offences, and the Department of Environment and Heritage Protection can now issue notices for a wider range of infractions. The Queensland Government introduced the changes, which took effect from September 1, through a new State Penalties Enforcement Regulation. Several offences under the Environmental Protection Act will now incur an infringement notice penalty of $11,385, up from $2,277:

  • contravening an environmental protection order;
  • carrying out an activity without an environmental licence (known as an ‘environmental authority’ in Queensland);
  • failing to comply with an environmental authority condition; and
  • failing as the holder of an environmental authority to ensure compliance with its conditions.

That later is most interesting as it makes it much more difficult to outsource your responsibilities.

The report goes on to say: Infringement notice penalties for most other offences have more than doubled, with many rising from $2,277 to $5,692. New Environmental Protection Act infringement notice offences include:

  • failing to provide a financial assurance before undertaking an activity that requires an environmental authority or before engaging in small-scale mining (penalty of $11,385);
  • not complying with conditions of a licence ($11,385);
  • ailing to comply with a notice ($8,538); and
  • unlawfully causing material environmental harm ($8,358).

Failing to comply with a condition of approval in breach of the Waste Reduction and Recycling Act will now incur a penalty of $11,385 (up from $2,277). Penalties have also risen for infringement notices issued under the Water Act and several other acts. In 2012-13, the most recent year for which statistics are available, the Department of Environment and Heritage Protection issued 280 penalty infringement notices for environmental and nature conservation breaches, a big rise on the 76 notices issued in the previous year.

You see, it will not just disappear – the regulatory response continues.

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