ENVIRONMENT PROTECTION ACT 1993 - SECT 51

ENVIRONMENT PROTECTION ACT 1993 - SECT 51

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.