ERR Extractive Workshop

DR ELIZABETH GIBSON, General Manager of the CMPA.

Background:

The Extractive Workshop was held Thursday 3 December 2020 (Microsoft Teams) to discuss ERR’s regulatory practices for assessing applications for work plans and work plan variations, and administrative changes and where improvements can be made to these processes. A number of deidentified case studies were supplied from the multinational quarries. Note the original Workshop was meant to be an information session to showcase ERR, however, it was made quite clear that there were still improvements to be made and so the format was changed, which was much appreciated by the industry. The Workshop was facilitated by Andrew Tingay, Jacobs.
The following was read out as an introduction by Dr Elizabeth Gibson, CMPA.

RISK-BASED WORK PLANS

Our Extractive Industries sector is overwhelmingly comprised, of honest and responsibly ethical people; almost without exception, those holders of Work Authority’s, operate within and comply with their existing Work Plan documentation; to our knowledge, there is no documented evidence of systemic quarry failures directly attributable to a lack of Work Plan documentation.
Currently, the reference material for developing and/or transitioning to a Risk-based Work Plan stands at over 150 pages and with each review, it grows in size and complexity. There is no financial justification, security of tenure, commercial, or social benefit to support the need for a change to the way in which Work Authority holders without a risk-based Work Plan, currently undertake their business practices.

At the core of this issue, is the fact that legislative change imposed upon our industry sector, initiating this form of documentation:

1. Was not introduced or generated as a result of quarry failures;
2. Was promoted (‘sold’) by the department/regulator as a means to reduce ‘red tape’; and
3. Was never reviewed or tested with an economic impact statement (EIS).

Small to medium, typically regional quarry Work Authority holders across Victoria, are consistently messaging the CMPA, they see no positive future in the industry.

These smaller Work Authority holders are overwhelmed (“crushed”) by the regulatory compliance demands being placed upon them; as a consequence, they are unwilling to communicate with, or to ‘front’ their industry regulator.

Regulatory change is meant to be for the better, to reduce ‘red tape’ and facilitate private investment as a driver of economic and social prosperity in Victoria; it should not generate outcomes that destroy and/or inhibit entry into, or reduce a competitive, well-balanced marketplace, unless there is clearly demonstrable and quantifiable evidence for such a response.

Issues

ERR Performance Statistics: There was a strong focus on statutory timeframes which ERR states they are meeting 97% of the time. It was pointed out that this good figure hides the fact that, in the majority of cases, the work plan application is returned to the proponent for further information.
A request was made for the number of Greenfield sites approved over the last 5 years (separating out those that were submitted prior to the introduction of the risk-based work plan in December 2015) and the additional tonnages for construction material approved per annum. These figures were promised for the end of the Workshop but never materialised. ERR Performance Reports can be found at:

https://earthresources.vic.gov. au/legislation-and-regulations/regulator-performancereporting

The following are a number of deidentified case studies that were discussed during the workshop.

Case study 1 – ERR and proponent interaction:

Overview

• ERR received a proposal for a large expansion to site.
• Issue regarding ERR and proponent interactions / Work Plan Guidelines Pre-submission process.

Example of issue

• Initial application submission was not addressed before a second submission was received.
• First submission received on 1 June second submission received on 10 August.
• ERR liaised with consultant who was provided authorisation to act on the proponent’s behalf.
• ERR provided the Referral Consultation Checklist and contact details for relevant agencies on 7 September and written feedback on the proposal on 6 November.

Outcome: Ongoing

Case study 2 – Work plan variation

Overview

• Proponent seeking a Work Plan variation including an extension to an overburden dump.

Example of issue

• Delay in ERR providing feedback on the work plan variation and feedback resulting in additional technical studies adding further time to the variation process.
• First request for changes to the Work Plan variation received from ERR within the 28 day statutory timeframe.
• Second request for changes to the Work Plan variation from ERR was 42 days outside the statutory timeframe, including significant additional geotechnical work.

Outcome: On-going, with client for changes.

Case study 3 – Technical guidelines

Overview

• Proponent seeking a Work Plan variation for an extension to extraction limit within the Work Authority boundary.
• Single bench operation subject to significant geotechnical scrutiny in regard to long term slope stability.
• Demonstrated long term slope stability of the existing pit which provides evidence of the ‘actual’ stability.

Example of issue

• Uncertainty caused by introduction of the new Geotechnical Guidelines
• ERR’s geotechnical guidelines were ambiguous in regard to acceptable Factors of Safety and Probabilities of Failure.
• Operator believes that ‘actual’ stability should have a significant bearing on geotechnical considerations for long term stability (i.e., above and beyond geotechnical models/calculations).

Outcome: Agreed to use condition to manage risks, and application has now progressed to referral.

Case study 4 – Work plan variation multiple change requests

Overview

• Re-submitted application substantially different to the original document.
• Multiple requests for changes occurred to address the introduction of new issues (as the application evolved).

Example of issue

• Required changes meant the re-submitted plan changed significantly from the original, and a new review of the document is required.
• As the application is so different, new issues arise as part of the review.
• Changes in a re-submission must relate directly to the required changes.
• One way to resolve this is to require a new application (withdrawal of previous application) where the applicant decides to change the operation to address the required changes (or for other reasons).

Outcome: Ongoing, with client for changes.

Case study 5 – Work plan and planning permit

Overview

• Proponent seeking approval for a Work Plan variation to change operating hours.
• No confirmation received from Council on whether further planning approval is required or not.
• Initial submission seeking approval on administrative update for a change of operating hours.
• Uncertainty regarding role of local council and planning permit conditions. Submission was accompanied by
• Correspondence from Council which did not include confirmation whether a change to the Planning Permit is required.
• A Work Plan variation was then requested as ERR were unwilling to treat submission as an administrative update without clear confirmation from Council whether further planning approval was required or not.

Example of issue

• Admin Update or Work Plan Variation (non– statutory) unable to be approved with clear advice from Council.
• Advice from Council was ambiguous.

Outcome: On-going, with client for changes, now a work plan variation.

Case study 6 – Work plan and referral authority

Overview

• The remit of ERR in regards to the MRSDA and the Planning Permit unclear.
• Proponent seeking a Work Plan variation to extend the current extraction boundary within the buffer area and amend existing planning permits.

Example of issue

• ERR response to variation stated it was unclear how the Conditions on the two planning permits, in particular the groundwater management conditions, were considered in the development of the Work Plan variation submission.
• Clarification required on what planning permit conditions the proponent sought to change to accommodate the works outlined in the Work Plan variation.

Outcome: Ongoing, with client for changes.

Thank you to ERR for a well-run workshop and the CMPA looks forward to viewing the outcomes and future improvements to the work authority approvals process.

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