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News // Risk to Great Barrier Reef from Tailings Dam: New Legislation Forces Executives to Clean Up Sites

Date // 27th May 2016

Risk to Great Barrier Reef from Tailings Dam: New Legislation Forces Executives to Clean Up Sites

The mine has since been in liquidation, and the owner of the failed mine, millionaire Clive Palmer, threatened to walk away from the AU $100 million clean-up costs.

As a result, the Environmental Protection (Chain of Responsibility) Amendment Act 2016 (EPCR Act), was voted into law in the Queensland state parliament on 22 April 2016. The EPCR Amendment Act, which commenced on 27 April, ensures that Queensland taxpayers will no longer be left to clean up the mess of failed industrial ventures, and instead will hold executives responsible for the clean-up costs.

The new legislation, dubbed the "get Clive Palmer Act", will amend the Environmental Protection Act (EP Act), and will not only ensure that people responsible for causing environmental harm are held accountable, but will also ensure that elaborate corporate arrangements cannot be used to avoid responsibility. The EPCR Amendment Act applies to all activities that require an environmental authority and is not just limited to resource projects.

The Department of Environment and Heritage Protection (DEHP) can issue Environmental Protection Orders (EPOs) to persons who have a relevant relationship to the company carrying out the environmentally relevant activity. The DEHP may then issue a cost recovery notice to recipients of EPOs. Furthermore, EPOs may apply retrospectively in that they can apply to activities prior to commencement of the EPCR Amendment Act.

The EPCR Amendment Act amends the EP Act by inserting Section 363AB, to specify that a person is related if:

a) The person is a holding company of the company; or b) The person owns land on which the company carries out, or has carried out, a relevant activity [I don't know how this can be enforced for mining, where the landowner may not have any control over what is happening on their land for mining purposes]; or c) The administering authority decides under this section the person has a relevant connection with the company.

The administering authority may decide a person has a relevant connection with a company if satisfied:
a) The person is capable of benefiting financially, or has benefited financially, from the carrying out of a relevant activity by the company; or
b) The person is, or has been at any time during the previous 2 years, in a position to influence the company's conduct in relation to the way in which, or extent to which, the company complies with its obligations under this Act.

It is very important that environmental consultants are aware of the changes to the EP Act, especially in regard to S363AB 2(b) above.

The EPCR Amendment Act can be found here: https://www.legislation.qld.gov.au/LEGISLTN/ACTS/2016/16AC014.pdf

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