Extractive Industry Work Plan Guideline Update

Preparation of Work Plans and Work Plan Variations – Guideline for Extractive Industry Projects October 2020 version 1.2.

Extractive Industry Work Plan Guideline Update

“Earth Resources Regulation (ERR) have released (30.10.20) the revised Preparation of Work Plans and Work Plan Variations – Guideline for Extractive Industry Projects (Guideline) after consultation with the extractive industry.

Preparation of Work Plans and Work Plan Variations – Guideline for Extractive Industry Projects provides guidance to help meet the requirements of the Mineral Resources (Sustainable Development) Act 1990 and associated regulations.

The guideline was updated in October 2020 in consultation with industry.
The key updates provided in this version include:

• renaming ‘notification’ to ‘administrative update’ to more accurately reflect what the pathway is intended for
• making updates to reflect new regulations
• adding flowcharts, templates and examples to aid understanding of different approval processes
• making adjustments to and simplifying risk assessment guidance by restructuring and consolidating tables and templates
• added descriptions of key co-regulators
• restructuring the guideline to reduce repetition and more clearly set out options for changing work plans.”

From the Guideline

“Before land can be developed for extractive industry, in most cases:

• a work plan must be statutorily endorsed under the Mineral Resources (Sustainable Development) Act 1990 (MRSDA);
• a planning permit must be issued under the Planning and Environment Act 1987; and
• the final work plan must be approved, and a work authority granted, under the MRSDA.

Exceptions to these requirements are explained in Section 2 of this guideline.

Approval processes under the MRSDA are administered by Earth Resources Regulation (ERR) within the Department of Jobs, Precincts and Regions (DJPR). Further information about ERR, work plans, work authorities and other related matters is available on the ERR website at earthresources.vic.gov.au/legislation-and-regulations”

CMPA submission (in part)

Thank you to all the CMPA Members who provided input into this submission.

The risk assessment process used is fundamentally flawed:

• All inherent risk, where no controls are in place, will lead to catastrophic outcomes. (p.19)
• Effective risk management requires that all unacceptable risks are eliminated or reduced as far as reasonably practicable. (p.20, 32).
• The consequence and likelihood tables have not been validated against the risk matrix. (p.39)

The Guideline is fundamentally flawed:

1.Risk assessment process

• All inherent risk, where no controls are in place, will lead to catastrophic outcomes and so is a moot exercise. (p.19)
• The consequence and likelihood tables have not been validated against the risk matrix. (p.39).
• Effective risk management requires that all unacceptable risks are eliminated or reduced as far as reasonably practicable. (p.20, 32). The process as described aims to eliminate all risk which is unattainable, for example:

“Although government interventions are often aimed at reducing risk to the community, there are no circumstances which are entirely risk-free and it is not possible to for governments to eliminate all risks.” https://www.vic.gov.au/how-to-prepare-regulatory-impact-assessments

“The National Law does not require services to eliminate all risk and challenge from children’s play or environments.” https://www.acecqa.gov.au/nqf/about/guide

Speaking to The Australian this week, the Treasurer sent a firm message to ASIC: “You cannot, and you should not, seek to eliminate all risk from financial transactions. People need to take personal responsibility for their own financial circumstances, and banks in turn have to undertake the necessary due diligence.”

“A challenge for both government and the community, and therefore regulators, is acknowledgement that not all risks can be eliminated through regulation and that sometimes trade-offs must be made between risk reduction and costs.” Queensland Productivity Commission REGULATORY ADVICE Red Tape Reduction Advisory Council Recommendations 2017

2.That which is proposed must be practical and achievable and not result in regulatory creep. The resultant work plan and attached documents must be able to be read and implemented by those on site, contain itself to those matters related to the MRSDA, and not require frequent revisions on the basis that management plans are living documents. It must be able to be used by ERR Inspectors and those on site as an auditing tool.

3.The regulator needs to address how it will manage and disseminate the ever-increasing risk register it holds whilst at the same time ensuring that the approvals process is not excessively complex and costly.

4.The Guideline does not consider proportionality for lower risk sites: it is essentially the same as that for the much higher and different risk Mining Industry and accompanying Work Plan Guideline. Additionally, at the information session held in August 2020, it was noted by a participant that the requirements are effectively the same as for an Environment Effects Statement.

5.The excessive financial cost and threat of new risks being presented by third parties with clear self-interest have no ceiling to the outcomes occurring over time and ensure future entry into the sector is further restricted and has a financial impact on the site’s viability.

6.Pre -submission communication does not appear in the flowcharts as a step in the process.

7.Since the new format risk work plan journey started, good or informative/helpful communication with ERR has been removed from the process – the opportunity to discuss grey areas is now not encouraged by ERR.

8.There seems to be added complexity with the original idea of simplicity gone. The low medium risk should be simple/standard and not the focus of more and more detail and/or requirements.

9.The split in layout for Work Plan – Administrative Update – Work Plan Variation sections is a sensible approach but the way it has been presented comes over as repetitive.

10.Administrative Update – the information provided (p2425) is at least allowing the industry to see ERR commit to their policy but the language still shows the arbitrary nature of their decision process and timelines.

11.The “Initial Proposal Information Request” has more “requirements” in the “Site context Plan” elements – generally, ERR have virtually required most of the design/proposal work to done before proponents receive feedback from the site consultation where potentially many proposals are altered – a cart before the horse issue. This added information seems to be for the benefit of officers “assessing” from their computer/desk.

12.Risk Register – the amended table is a debacle. The original intention and function being a simple summary that concisely shows the risk assessment for each hazard. This version would be very cumbersome (assuming all management controls are added which can be numerous) and again increases complexity.

13.Risk Treatment Plan(RTP) – this seems to be rearranging of the deck chairs. Most benefit would be gained from more representative examples and including the more difficult areas such as groundwater, water discharge, slope stability (hard rock and soft rock) simple and concise for small or low risk sites.

14.Performance standards (RTP) – Terminology is becoming confusing i.e. performance standards can be objectives or compliance standards and seems also at odds with “acceptance criteria”.

15.Generally, the document seems to be less well organised than the 2018 Guideline, and contains just as many if not more repetition, which is disappointing given that these “improvements” were meant to be one of the primary drivers in the review.

16.Definitions: Some key definitions seem to be missing, i.e. risk, extraction area, depth of extraction, buffer, ancillary operations, significant increase to name a few.

17.There is an overlap of “flow charts” and an inconsistent referencing to the actual, specific requirements of the MRSD (Extractive Industry) Regulations.

18.Pre-submission steps: There is no commitment or time frame associated with this process. (Turnarounds have been reported of only days, to in excess of 20 weeks)

19.The sections dealing with Community Engagement (2.4.9 and 3.3.12) does not list the MRSDA requirements accurately and introduces the suggestion that ERR are notified following every community complaint/feedback. It also adds “determining agreed environmental outcomes” to the objectives of a Community Engagement Plan.

20.Concerning Rehabilitation (2.4.10 and 3.3.13) a new post closure objective of “visually acceptable” has been added without any corresponding change in the Regulations (which require “landscaping to minimise the visual impact”). In Section 3.3.13 a completely new requirement of “if water is to be used as the final rehabilitated closure (ie lake, dam) provide details of how the water is secured”.

The full CMPA submission is available at https://cmpavic.asn.au/

The CMPA is committed to working with DJPR to find a practicable and less costly way forward to ensure that small to medium quarries will continue to exist and contribute to Victoria’s economic growth.

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