Queensland Floods Commission of Inquiry Report and the resources industry - Releasing water from mine sites and dams without breaching Environmental Authority conditions

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Introduction

Hopefully both the resources industry and the DERM will applaud the Commission’s recommendations about how best to manage early planning for possible mine flooding from heavy rain.

To anyone with experience of the impacts of the 2010/2011 heavy rain on water balance issues at mine sites, and the DERM response to those difficult circumstances, the Commission’s recommendations make perfect sense.

The particular problem the Commission dealt with in Chapter 13 of its Report, was how to quickly prepare for and deal with excess water accumulated on a mine site and how to permit releases of that water without breaching environmental authority conditions.  The Commission’s examination of current arrangements available under the Environmental Protection Act 1994 to deal with the problem quickly and effectively, and the administration of those arrangements found them wanting.

Examples

In the course of its discussion, the Commission made reference to seven case examples involving Fitzroy basin coal mines and the Arrow Energy coal seam gas project situated on the Isaac River near Moranbah.  The history of the Fitzroy, model environmental authority conditions was also examined, both in terms of their being a contributor to the problem (in their early iteration) and eventually, as part of the solution, (in their later iteration, which contains Table 4 allowing for the release of mine water to receiving waters in low flow, medium flow and high flow conditions).

Typically, what was occurring in December 2010/January 2011 was described in the Report as follows:

“By 28 December 2010, Anglo American advised DERM that heavy rainfall meant that it was no longer able to comply with the conditions of its environmental authority at Dawson Mine relating to the management of mine affected water.  Authorisations to release water were given in December, January and February.”

And:

“By 13 December 2010 water storage facilities at Arrow Energy’s Moranbah coal seam gas project were reaching capacity.  Arrow Energy was concerned about the structural integrity of one of its dams.  Between 13 and 14 December 2010, 2.6 mega litres of coal seam gas water was released in breach of Arrow’s environmental authority to prevent any failure of the dam.”

Mechanisms available under Environmental Protection Act 1994

The Commission examined the very limited mechanisms available to the industry and the DERM under the Environmental Protection Act 1994 to allow water discharges in these circumstances without mine operators breaching their environmental authority conditions.  The Commission focussed in particular on Transitional Environmental Programs (TEP’s) and Emergency Directions under the Environmental Protection Act 1994 as ways in which environmental authority conditions could be relaxed to allow for necessary discharges.

The Commission noted that in total, over 100 TEP’s were approved by the DERM after 1 December 2010 to deal with the problem.  The DERM had indicated in November 2010 that its mechanism of choice to deal with excess water at mines was TEP’s.  The dominant consideration for the DERM in this regard was the cumulative environmental impact of releases from different mines.

Evidence to the Commission indicated that during December 2010 the DERM process of approving TEP’s was “excellent” but by January 2011 the rains had stopped and the TEP’s approved in December 2010 were of little use to mine operators with storages and pits full of water when flows in nearby waterways were too low to permit discharges.[1]

The Commission was critical of DERM internal procedural guidelines developed to assist expeditious decision making in relation to TEP’s.  It also recommended that some internal Departmental aids to decision making be made publicly available.

The Commission also considered the possible use of the DERM emergency powers under section 467–468 of the Environmental Protection Act 1994 in this context.  It noted that during the 2010/2011 flood, the DERM used this power to authorise a release just once, for one of the dams at the Anglo American Moranbah North coal mine which was in danger of overtopping and possibly, of failing.

While the Commission was firmly in favour of orderly and timely processes for the relaxing of environmental authority conditions to allow for releases in these circumstances, it did not favour emergency directions as the preferred means of achieving this.

The Commission also recognised that mine owners/operators have a responsibility to properly inform themselves of predictive weather forecasting and to plan mine infrastructure accordingly.

Key recommendations

Its key recommendations focussed on improving the regulatory regime surrounding TEP’s.  Importantly the Commission also left open the possibility of investigating other means by which the Environmental Protection Act might be amended to allow for the relaxation of environmental authority conditions in appropriate circumstances, without necessarily resorting to transitional environmental programs or emergency directions.

Of the existing legislative provisions the Commission said:

“For any particular application, these instruments – the standard criteria, the regulatory requirements and the documents referenced in them – set out well over 100 criteria to be taken into account.  The legislative scheme is convoluted and not conducive to consistent decision making.  The procedural guide does not assist.  The criteria should be rationalised, and if possible prioritised, to assist both DERM officers and mine operators regulated by them.”

The Commission’s key recommendations in this regard are as follows:

13.9 - The Queensland Government should legislate to clarify the purpose for which a transitional environmental program can be granted.  In particular, if the government considers the transitional environmental program the appropriate regulatory mechanism to deal with the discharge of water from mines during flood, section 330 of the Environmental Protection Act 1994 should be clarified to make it clear that it extends to that use.

13.10 - The Queensland Government should refine the criteria which must be considered in assessment of applications for relaxation of environmental authority conditions, by a transitional environmental program or otherwise, in response to flood.

13.11 - The Queensland Government should consider amending the Environmental Protection Act 1994 so that it allows for the relaxation of environmental authority conditions, by transitional environmental program or otherwise, as to discharge of water:

  • pre-emptively, in advance of rainfall or flooding events, or

  • for all mines in a catchment that is flooding.

13.12 - The Queensland Government should prepare a procedural guide for officers deciding whether to grant a relaxation of environmental authority conditions, by transitional environmental program or otherwise, with guidance as to:

  • the meaning of each criterion;

  • examples of the type of things that may be relevant to each criterion;

  • the priority, if any, to be afforded to different criteria.

13.13 - The Queensland Government should make public the procedural guide used by Department of Environment and Resource Management officers to decide whether to grant a transitional environmental program.

13.14 - The Queensland Government should consider amending the Environmental Protection Act 1994 to provide a definition of the term “emergency” for the purposes of section 468 of that Act.

13.15 - The Queensland Government should make public the procedural guide used by Department of Environment and Resource Management officers to decide whether to grant an emergency direction.

13.16 - The Queensland Government should amend the Environmental Protection Act 1994 so as to permit an emergency direction to be given orally where it is not practicable to provide the direction in writing, with provision for its subsequent confirmation in writing.”

Possible other solutions

In terms of what other legislative measures might look like there are no doubt a variety of options that could be considered.  The Commission did not go so far as to suggest a range of other options.

The Commission’s examination of this issue highlights the inflexibility of the current legislative system and its inability to react quickly to circumstances that justify a temporary relaxation of environmental authority conditions.  It would be beneficial if the examination of options, other than those currently existing and recommended by the Commission, took place in the context of recognising that inflexibility generally, and not just in connection with flood events.


[1] Report p62.


The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.


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