This article was written by Matthew Austin, Candice Parer and Tamara Akl.
Significant change to rehabilitation requirements for the resources sector is upon us with the commencement of the new Progressive Rehabilitation and Closure Plan ("PRCP") framework on 1 November 2019. While the Mineral and Energy Resources (Financial Provisioning) Act 2018 (Qld) was passed in late 2018, delays to the commencement of the Financial Provisioning framework (which commenced on 1 April 2019) and the PRCP framework were necessary to allow supporting administrative and regulatory frameworks to be created. In this alert we recap on key elements of the PRCP framework, informed by the PRCP Guideline ("Guideline"), which was released in final form on 1 November 2019.
Progressive Rehabilitation and Closure Plans
What is a PRCP?
A PRCP is a new life-of-mine plan that will replace the existing Plan of Operations ("PoO") for all current and new mining activities. There are two main purposes of a PRCP:
- to plan for how and where mining activities will be carried out on land in a way that maximises the progressive rehabilitation of the land to a 'stable condition' (being land that is safe and structurally stable, free of environmental harm, and where a post-mining land use ("PMLU") can be sustained); and
- to ensure the relevant land is rehabilitated before an EA is surrendered.
A PRCP will consist of two parts, a rehabilitation plan and a PRCP schedule. The rehabilitation plan of a PRCP must provide contextual information concerning a mining activity, including:
- general information about the mine and operation;
- information on community consultation;
- analysis and justification of PMLUs and non-use management areas ("NUMA")
- justification of timeframes for land being available for rehabilitation and improvement;
- details of the rehabilitation methodologies and techniques that will be used to develop rehabilitation and management milestones and supporting documentation; and
- any other information the administering authority may consider relevant to approve the PRCP schedule.
The Guideline sets out a list of additional information that the administering authority may consider relevant to a mine when deciding whether to approve a PRCP. This includes: mine typography, climate, geological setting, mine hydrology and fluvial networks, groundwater levels and properties, soil types, land stability, vegetation communities and ecological data, fauna presence and populations, pre-mining land use, and identification of underlying land holders.
What is a PMLU?
All land that is part of a mining operation must have a PMLU outlined in the PRCP. The PMLU is the use of land after a 'stable condition' has been achieved. The PRCP will include an assessment and evidence-based comparison of PMLU options, identification of any approvals required for the proposed PMLU and demonstrate how the proposed PMLU is consistent with local, State and Commonwealth expectations for the land.
According to the Guideline, a PRCP must include a detailed description of the nominated PMLU(s) for the mine. This will require a description of the primary use of the land and any secondary uses, the specific vegetation types or land suitability classification, identification of any permanent infrastructure to be retained as part of the PMLU, and completion criteria for measuring whether the PMLU has been successfully achieved.
What is a NUMA?
A NUMA is an area of land that is the subject of a PRCP which cannot be rehabilitated to a 'stable condition' after the PRCP has been carried out. Land can only be listed as a NUMA if:
- rehabilitating the land would cause greater risk of environmental harm than not carrying out rehabilitation;
- the risk of environmental harm caused by not rehabilitating the land is confined to the resource tenure; or
- not rehabilitating the land is justified with regard to the cost of rehabilitation and the public interest in the activity being carried out.
Areas listed as a NUMA in a PRCP are exempt from the PMLU rehabilitation requirements and are instead to be managed in accordance with best practice measures to minimise risk to the environment.
What is a PRCP schedule?
A PRCP is to be accompanied by a PRCP schedule which will outline the rehabilitation and management milestones for a mine. A PRCP schedule is an enforceable document and must include:
- either a PMLU or NUMA designation for all land within the relevant resource tenure;
- rehabilitation or management milestones to achieve the PMLU or NUMA outcomes;
- a timeline of when land is to become available for rehabilitation or improvement;
- milestone criteria that demonstrate when each milestone has been completed; and
- any conditions considered necessary and desirable.
A PRCP schedule is an essential element of a PRCP, and it is an offence for an EA holder to carry out, or allow the carrying out of, an activity under an EA unless there is a PRCP schedule. EA holders are encouraged to closely examine the requirements in the Guideline before submitting a PRCP schedule, as any amendments to the PRCP schedule may require further assessment, notification and approval.
What conditions are required in a PRCP schedule?
The Guideline outlines a number of steps for developing a PRCP schedule. In particular, environmental authority ("EA") holders will need to include a final mine design showing the maximum disturbance footprint, resource tenure boundaries, any PMLU(s) or NUMA(s) for the land within the resource tenure(s), and the extent of any flood plain. Additionally, the Guideline notes that a PRCP schedule that includes a void situated wholly or partially in a flood plain will not be approved unless the void will be rehabilitated to a 'stable condition'.
There are two main conditions that PRCP schedules must contain:
- to comply with the requirements stated in the EA relevant to carrying out the activity under the PRCP schedule; and
- to comply with each rehabilitation milestone or management milestone and the proposed timeline for land to become available for rehabilitation or improvement.
EA holders will need to ensure they, and persons acting under the PRCP schedule, comply with the conditions to avoid liability. Any breach of a PRCP schedule will be an offence and attract penalties.
What public notification and community consultation requirements apply?
When preparing a PRCP, EA holders may be required to comply with the public notification requirements under the Environmental Protection Act 1994 ("EP Act"). This will be dependent on the circumstances of each mine, in particular, whether an environmental impact statement ("EIS") has already been completed and the status of existing rehabilitation requirements under Land Outcome Documents ("LODs"). For example, a mine that has a current EIS will only be required to comply with the public notification requirements if there is a change proposed to an outcome for land or to a date to achieve rehabilitation as stated in a LOD. Should public notification of a PRCP be required, a submitter may object to a PRCP and request for the matter to be referred to the Land Court.
Separate to whether public notification is required, a proposed PRCP must include details of the consultation undertaken by the applicant in developing the plan. The Guideline provides further detail on the community consultation expectations of government, including consultation on the PRCP for the mine, PMLUs, NUMAs, rehabilitation and management methods, progressive rehabilitation and closure timeframes. The Guideline also suggests that ongoing community consultation should be undertaken throughout the life of the mine.
For existing mining operations transitioning into the PRCP regime, the level of community consultation expected may be dictated by the extent of prior consultation undertaken to inform land outcomes. The Guideline recommends that applicants discuss the level of any further expected consultation in pre-lodgement meetings with the administering authority.
When will a public interest evaluation report be required?
A public interest evaluation report ("PIER") is a new assessment report that will be required after submission of an EIS or site-specific EA for a resource project proposing to classify land as a NUMA.
Land can only be classed as a NUMA if a PIER concludes that the classification is in the public interest. A PIER assessment of a NUMA considers any:
- benefits provided to the community;
- environmental and community impacts; and
- alternative options available with regard to costs and consequences of maintaining a NUMA.
The relevant EA holder or a submitter may appeal the PIER decision within 15 business days of receiving the decision if there are justifiable doubts surrounding the impartiality or independence of the assessing entity or a substantive error has been made.
How will land with an existing management outcome be treated in the PRCP framework?
Land that is recognised in an existing 'land of outcome document' ("LOD") at the time of the commencement of the PRCP framework as having a management outcome the equivalent of a NUMA management outcome, will be exempt from certain rehabilitation requirements.
For example, if an EA condition authorises a void in a flood plain, the EA holder is not required to comply with the new requirement to rehabilitate the void to a 'stable condition' and is not required to justify why the land cannot be rehabilitated in a PRCP.
Common LODs include a condition imposed by an EA, an EIS assessment report and a current agreement with the State.
What if the mine has vacant land?
A PRCP schedule only applies to land that is considered 'available for rehabilitation', being land that is no longer mined. Land that has not been materially affected by mining activities (or vacant land) may not be subject to the PRCP framework.
Timeline for PRCP Transitioning
How will a mine with an existing PoO transition to the new PRCP framework?
From 1 November 2019, there will be a 3 year transitional period where the administering authority will progressively give each current holder of an EA associated with a mining project a transition notice. All mining activities with a pre-existing PoO in effect upon commencement of the PRCP framework will continue until the earlier of the expiry of the PoOs, a submitted PRCP schedule is approved or the date a new estimated rehabilitation cost decision for an EA is made.
When must a PRCP and PRCP schedule be submitted under the new framework?
The transition notice will allow EA holders 6 months from the date of receipt to provide to the Department of Environment and Science a proposed PRCP and PRCP schedule that complies with the EP Act. The order of notices will be issued at the discretion of the administering authority, principally by (in no defined order) self-nomination, mine size and mineral type, rehabilitation complexity, environmental risk and operational risk.
Transitional Tips & Practical Considerations
The new PRCP framework represents a step change in how rehabilitation and closure planning will be regulated in Queensland. When transitioning to the PRCP framework, EA holders will need to keep these transitional tips and practical considerations in mind:
- Whether outcomes for land under LODs are consistent with PMLUs or NUMA's proposed in a PRCP schedule, which will determine whether public notification of a PRCP is required.
- Definitive planning and strategic milestone setting in the PRCP is vital – subsequent amendments will be subject to further approval and may require public notification.
- Diligent compliance with the final PRCP is required – the PRCP will be subject of audits for reviewing compliance of a resources' operation with EA conditions.
- Progressive rehabilitation and closure obligations can be used strategically – consider the timeframes for rehabilitation and how activities may benefit the mine and PMLU.
The Guideline is a statutory document that must be considered by the administering authority when approving a PRCP schedule. EA holders should read the Guideline closely with the PRCP provisions as it will support compliance with the new PRCP framework. Should you have any questions regarding the Guideline and transition process, please do not hesitate to contact us.