Div 5Special conditions

Division 5—Special conditions 50B—Special conditions not exhaustive This Division does not limit the requirements that may be imposed as conditions of environmental authorisations. 51—Conditions requiring financial assurance (1) Subject to this section, the Authority may, by conditions of an environmental authorisation, require the holder of the authorisation to provide the Authority with a financial assurance in the form of any 1 or more of the following: (a) a bond; (b) a specified pecuniary sum; (c) a policy of insurance; (d) a letter of credit or a guarantee given by a bank; (e) any other form of security approved by the Authority, to be used, realised or claimed against by the Authority for costs or expenses, or for loss or damage, incurred or suffered by the Authority or any other person in the event of— (f) the holder of the authorisation contravening a requirement imposed by or under this Act; or (g) a failure by the holder of the authorisation to take specified action within a specified period to achieve compliance with this Act. (2) The Authority may impose or vary a condition under this section at any time. (3) The Authority must, in determining whether to impose or vary a condition under this section or the nature, term or any other particulars of, a financial assurance, have regard to the following: (a) if there is a risk of— (i) environmental harm; or (ii) unauthorised stockpiling or abandonment of waste or other matter, associated with the activity authorised under the environmental authorisation or any activity previously undertaken at the place to which the authorisation relates—the degree of that risk; (b) the likelihood of action being required to make good any resulting environmental damage, to decommission, dismantle or remove stockpiled or abandoned plant or equipment or to deal with any other stockpiled or abandoned waste or other matter; (c) the nature and cost of such action and the length of time such action is likely to take (including following cessation of the activity so authorised); (d) whether the holder of the authorisation has previously contravened this Act (whether or not in connection with the activity authorised under the environmental authorisation) and if so, the nature, number and frequency of the contraventions; (e) the Authority's reasonable estimate of the total of the likely amounts involved in satisfaction of the purposes for which the financial assurance is required; (f) the depreciation of the value of the financial assurance over time; (g) any other matters considered relevant by the Authority or prescribed by regulation. (4) The Authority may (without limitation) require a financial assurance to extend to such time as it is satisfied that no clean up or remediation will be required as a result of the activity undertaken under the environmental authorisation (including following cessation of the activity). (5) The following provisions apply in relation to a condition requiring a financial assurance in the form of a bond or pecuniary sum: (a) the Authority may not require the lodgement of a bond or pecuniary sum representing an amount greater than the Authority's reasonable estimate of the total of the likely costs, expenses, loss and damage that might be incurred or suffered by the Authority or other persons as a result of failure by the holder of the authorisation to satisfy the conditions of discharge or repayment of the bond or pecuniary sum; (b) a pecuniary sum lodged with the Authority must be paid into the Environment Protection Fund and the amount of the pecuniary sum that has not been repaid or forfeited to the Fund must, on satisfaction of the conditions of repayment, be repaid to the holder of the authorisation together with an amount representing interest calculated in accordance with the regulations; (c) if the holder of an authorisation fails to satisfy the conditions of discharge or repayment of the bond or pecuniary sum, the Authority— (i) may determine that the whole or part of the amount of the bond or pecuniary sum is forfeited to the Environment Protection Fund; (ii) may apply from the Fund any money so forfeited in payments for or towards the costs, expenses, loss or damage incurred or suffered by the Crown, a public authority or other person as a result of the failure by the holder of the authorisation; (iii) may, in the case of a pecuniary sum, on the expiry or termination of the authorisation and when satisfied that there is no reasonable likelihood of any or further valid claims in respect of costs, expenses, loss or damage incurred or suffered as a result of the failure of the holder of the authorisation, repay any amount of the pecuniary sum that has not been repaid or forfeited to the Fund. (6) The following provisions apply in relation to a condition requiring a financial assurance in the form of a policy of insurance: (a) the Authority may require that it be a joint insured or a beneficiary of the insurance; (b) the Authority will be taken to have an insurable interest in the subject matter covered by the insurance policy. 52—Conditions requiring tests, monitoring or audits (1) Subject to this section, the Authority may, by conditions of an environmental authorisation, require the holder of the authorisation to do either or both of the following: (a) to carry out specified tests and environmental monitoring relating to the activity undertaken pursuant to the authorisation, or activities previously undertaken at the place to which the authorisation relates, and to make specified reports to the Authority on the results of such tests and monitoring; (b) to comply with the requirements of an environmental audit and compliance programme to the satisfaction of the Authority. (2) An environmental audit and compliance programme may contain requirements of the following kinds: (a) requirements for a comprehensive evaluation of the performance of the holder of the authorisation in endeavouring to achieve compliance with this Act, including evaluation of the management practices, production processes and technical systems and equipment adopted or used by the holder of the authorisation; (b) requirements as to the qualifications of the person undertaking the evaluation process; (c) requirements as to reporting of the results of the evaluation process to the Authority; (d) requirements as to implementation of changes to management practices, production processes, technical systems or equipment or other matters recommended by the person undertaking the evaluation process or otherwise determined by the Authority to be appropriate in light of the results of the evaluation process. (3) The Authority may not impose conditions requiring the conduct of an environmental audit and compliance programme unless the Authority is satisfied— (a) that the holder of the authorisation has on one or more occasions contravened this Act in relation to the activity undertaken pursuant to the authorisation; and (b) that the imposition of the conditions is justified in view of the nature of the contravention, or the nature, number or frequency of the contraventions. 52A—Conditions requiring closure and post-closure plans (1) The Authority may, by conditions of an environmental authorisation granted in relation to an activity, require the holder of the authorisation— (a) to prepare, in accordance with specified requirements and to the satisfaction of the Authority, a plan for the cessation of the activity; and (b) to prepare, in accordance with specified requirements and to the satisfaction of the Authority, a plan for the management and monitoring, after cessation of the activity, of any land on which the activity was carried out; and (c) to comply with any plan so prepared to the satisfaction of the Authority. (2) The Authority may only impose conditions under this section on an environmental authorisation if satisfied that the conditions are reasonably required for the purpose of— (a) preventing or minimising environmental harm; or (b) dealing with stockpiled or abandoned waste or other matter, that may result from the activity undertaken pursuant to the authorisation after the activity has ceased. (3) The regulations may limit the circumstances in which conditions may be imposed under this section or make any other provisions relating to the imposition of conditions under this section. (4) If the Authority imposes any conditions on an environmental authorisation granted in relation to an activity requiring the holder of the authorisation to prepare a plan described in subsection (1)(b), the following provisions apply: (a) the Authority must specify the period during which compliance with the plan will be required (which may be until a specified day or until the holder of the authorisation satisfies the Authority that a specified event has occurred or that compliance with specified standards has been achieved); and (b) at the end of the specified period, the Authority must notify the holder of the authorisation, in writing, that compliance with the plan is no longer required; and (c) if the Authority has notified the holder of the authorisation that compliance with the plan is no longer required, the Authority may not issue an environment protection order under section 93A for the purpose of preventing or minimising environmental harm or dealing with stockpiled or abandoned waste or other matter that may result from the activity. 53—Conditions requiring preparation and publication of plan to deal with emergencies The Authority may, by conditions of an environmental authorisation— (a) require the holder of the authorisation to prepare, in accordance with specified requirements and to the satisfaction of the Authority, a plan of action to be taken in the event of emergencies that might forseeably arise out of the activity undertaken pursuant to the authorisation, or activities previously undertaken at the place to which the authorisation relates, and involve the risk of material or serious environmental harm; and (b) specify the inquiries to be made prior to the preparation of the plan; and (c) specify the qualifications of the person who may be appointed or engaged by the holder of the authorisation to conduct the inquiries and prepare the plan; and (d) require the holder of the authorisation to publish the approved plan or an outline of the plan in a manner specified in the conditions. 54—Conditions requiring environment improvement programme (1) The Authority may, by conditions of an environmental authorisation, require the holder of the authorisation— (a) to develop, in accordance with specified requirements and to the satisfaction of the Authority, an environment improvement programme containing requirements of a kind specified by the Authority in accordance with this section; and (ab) to undertake public consultation, in accordance with specified requirements, in the course of developing the proposed environment improvement program; and (b) to comply with the requirements of the environment improvement programme as developed by the holder of the authorisation and approved by the Authority. (2) An environment improvement programme may contain requirements of the following kinds: (a) requirements specifying action to be taken within specified periods by the holder of the authorisation to achieve compliance with the general environmental duty under Part 4 in relation to the activity undertaken pursuant to the authorisation; (b) where mandatory provisions of an environment protection policy that apply to the activity undertaken pursuant to the authorisation are to come into operation on a specified future day—requirements specifying action to be taken within specified periods by the holder of the authorisation to achieve compliance with the mandatory provisions on or before that day; (c) requirements specifying action to be taken within specified periods by the holder of the authorisation to give effect to non-mandatory provisions of an environment protection policy. 54A—Conditions requiring training of employees etc The Authority may, by conditions of an environmental authorisation, require the holder of the authorisation to provide such information, instruction, training and supervision as is reasonably necessary to ensure that employees and agents of the holder of the authorisation and any other persons involved in carrying out the activity undertaken pursuant to the authorisation understand, and are able to comply with, any requirements imposed by or under this Act (including any conditions of the authorisation). 54B—Conditions requiring certificate of compliance (1) The Authority may, by conditions of an environmental authorisation, require the holder of the authorisation to supply to the Authority certificates of compliance that include any of the following information: (a) the extent to which the conditions of the authorisation have or have not been complied with; (b) particulars of any failure to comply with the conditions and the reasons for such failure; (c) any action taken, or to be taken, to prevent any recurrence of that failure or to mitigate the effects of that failure. (2) A certificate of compliance must, if required by the Authority, be certified as correct by a person approved by the Authority. (3) It is not an excuse for a person to refuse or fail to provide information required to be included in a certificate of compliance on the ground that to do so might tend to incriminate the person or make the person liable to a penalty. (4) If compliance by a person with a requirement to include information in a certificate of compliance might tend to incriminate the person or make the person liable to a penalty, then the information included in compliance with the requirement is not admissible in evidence against the person in proceedings for an offence or for the imposition of a penalty (other than proceedings in respect of the making of a false or misleading statement). 54C—Conditions requiring approval of certain works and processes (1) The Authority may, by conditions of an environmental authorisation, require the holder of the environmental authorisation to seek the Authority's approval in relation to— (a) the construction or alteration of a building or structure, or the installation or alteration of plant or equipment, for use for an activity carried on under the environmental authorisation; or (b) a change in a process undertaken under the environmental authorisation. (2) If conditions of an environmental authorisation (whether imposed before or after the commencement of this section) require the holder of the environmental authorisation to seek the Authority's approval in relation to a matter of a kind referred to in subsection (1)(a) or (b), an application for such approval must— (a) be made in a manner and form determined by the Authority; and (b) be accompanied by the prescribed fee. (3) If the Authority requires further information to determine the application, the Authority may, by notice in writing served on the applicant no later than 2 months after the application is made, require the applicant to furnish further specified information in writing. (4) If further information is required in respect of an application, the application is to be taken not to have been duly made until the information is furnished as required by the Authority.