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Analysis of Legislation and Policies of Australia on Acid Mine Drainage

For a better understanding, any analysis of Australia's mining laws should also give a brief overview of the nation's system of government (Chambers,

2020). In this regard, Australia's constitution provides for a federal system of government. This results in a division of jurisdiction over mineral resources between two levels: Federal (or Commonwealth) and the State (there are seven states and two territories).

According to Cunsolo and McKenzie (2019), the regulatory framework for the mineral extraction process is divided mainly into the two levels of government, but the local government, which has literally no jurisdiction over mineral resources at all except a few responsibilities, may also be included:

  • 1. Australian Federal Government - Federal involvement in mining regulation is not extensive. It involves indirect policy formulations, such as: taxation, foreign investment law, competition policy, trade and customs, corporation law, international agreements, native title, and national environmental laws. Ideally, the only key interaction with the Australian federal government is in relation to foreign investment approval (through the Foreign Investment Review Board)
  • 2. State and Territories - State/Territory governments are constitutionally vested with the primary responsibility for: land administration, granting mineral exploration and mining titles, regulating mine operations (including environmental and occupational health and safety) and collecting royalties on minerals produced.
  • 3. Local Governments - Operating at city, town or shire/district level, the local governments are responsible for handling community needs. Interaction with local governments is usually in relation to the upkeep of roads and town services for mine staff and their families.
  • 4.2.4.1 Regulatory Frameworks for Assessing and Managing Acid Mine Drainage in Australia

According to the Commonwealth of Australia (2007) and Commonwealth of Australia (2016), the federal (or commonwealth), state and local governments have legislation and guidelines in place that are relevant to mine site AMD management. The aim is to protect environmental aspects such as biodiversity, water resources (quantity and quality), landforms, existing and potential future land uses, and cultural and environmental heritage.

The state and territory governments have primary responsibility for oversight and regulation of mining operations. This is often administered through a mining resources agency, a natural resource management agency and/or a statutory environment authority. The Commonwealth is primarily involved where issues of national environmental significance have been established or where there are agreed national frameworks for managing certain environmental aspects.

The following are key Commonwealth regulations that are relevant to AMD: (1) Environment Protection and Biodiversity Conservation Act, (2) National Environment Protection Measures (NEPM), (3) Australian and New Zealand Mineral and Energy Council (ANZMEC), and (4) ANZECC/ ARMCANZ Water Quality Guidelines. Basically, the ANZECC/ARMCANZ Water Quality Guidelines provide a risk-based approach to the development of site discharge standards.

4.2.4.1.1 Environment Protection and Biodiversity Conservation Act

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the Australian government's key piece of environmental legislation which commenced on 16 July 2000 (EPBC, 2000). The EPBC Act enables the Australian government to create ties with the states and territories in providing a truly national scheme of environment and heritage protection and biodiversity conservation. In addition, the EPBC Act focuses the interests of the Australian government on the protection of matters of national environmental significance, with the states and territories having responsibility for matters of state and local significance.

Amendments to the EPBC Act became law on 22 June 2013, making water resources a matter of national environmental significance, in relation to coal seam gas and large coal mining development (EPBC, 2013).

4.2.4.1.2 National Environment Protection Council

The National Environment Protection Council is a statutory body with lawmaking powers established under the National Environment Protection Council Act 1994 (Commonwealth) and corresponding legislation in other Australian jurisdictions (NEPC, 2015). The National Environment Protection Council Act 1994 (NEPC Act) recognises the importance of communities and businesses in protecting Australia's environment, and that national outcomes are best achieved through regionally tailored approaches.

The NEPC has two primary functions (NEPC, 2015):

  • • to make National Environment Protection Measures (NEPMs)
  • • to assess and report on the implementation and effectiveness of NEPMs in participating jurisdictions

National Environment Protection Measures (NEPMs), created under the NEPC Act, can be used to establish nationally consistent environmental standards, goals, guidelines or protocols in relation to air, water, noise, site contamination, hazardous waste and recycling. A NEPM is a Commonwealth legislative instrument. Once a NEPM is made or varied, its implementation is the prerogative of each jurisdiction. The regulation is just one of a suite of implementation tools a jurisdiction may use.

The NEPMs provide a single national framework that addresses one or more environmental issues, with the flexibility for local implementation to take into account variability between jurisdictions. This provides certainty and consistency for business and the community in the management of these environmental issues, while reducing the need for regulation.

Currently, there are seven NEPMs as follows (NEPC, 2015):

  • 1. Air Toxics - Sets out a nationally consistent approach to collection of data on toxic air pollutants (such as benzene) in order to deliver a comprehensive information base from which standards can be developed to manage the air pollutants in order to protect human health.
  • 2. Ambient Air Quality - Establishes a nationally consistent framework for monitoring and reporting on air quality, including the presence of pollutants such as carbon monoxide, lead and particulates. Work commenced in 2013-2014, towards making a variation to this NEPM, which included a public consultation. The final variation of the framework was completed in 2015-2016, with the compilation prepared on 25 February 2016 (NEPM, 2016).
  • 3. Assessment of Site Contamination - Provides a nationally consistent approach to the assessment of site contamination so as to ensure sound environmental management practices by regulators, site assessors, environmental auditors, landowners, developers and industry. It has been highly effective in providing authoritative guidance to practitioners in this field.
  • 4. Diesel Vehicle Emissions - Supports reducing pollution from diesel vehicles. Several jurisdictions operate a suite of programs to reduce exhaust emissions from diesel vehicles.
  • 5. Movement of Controlled Waste - Operates to minimise potential environmental and human health impacts related to the movement of certain waste materials, by ensuring that waste that is being moved between states and territories is properly identified, transported and handled in ways consistent with environmentally sound management practices.
  • 6. National Pollutant Inventory - Provides a framework for collection and dissemination of information to improve ambient air and water quality, minimise environmental impacts associated with hazardous wastes and improve the sustainable use of resources.
  • 7. Used Packaging Materials - Operates to minimise environmental impacts of packaging materials, through design (optimizing packaging to use resources more efficiently), recycling (efficiently collecting and recycling packaging) and product stewardship (demonstrating commitment by stakeholders).
  • 4.2.4.1.3 Australian and New Zealand Mineral and Energy Council

In 1995, the Australian and New Zealand Mineral and Energy Council (ANZMEC) published a baseline environmental guideline for operating mines in Australia, which required the need for acid generation to be predicted and incorporated in the mine closure plan (ANZMEC, 1995, 2000). To better understand the impact of AMD in Australia and to provide the basis for assessing long-term management options, the Office of the Supervising Scientist and the Australian Centre for Minesite Rehabilitation Research initiated the preparation of a status report on AMD. Results from the survey (Harries, 1997) suggested that about 54 sites in Australia were managing significant amounts of potentially acid-generating wastes, where "significant amounts" means that more than 10% of the waste is potentially acid generating or there is more than 10 million metric ton (mt) of potentially acid-generating wastes. About 62 additional sites were managing some potentially acid-generating wastes, but less than 10% of the total wastes and less than 10 mt.

4.2.4.1.4 Water Quality Guidelines

The new ANZECC/ARMCANZ Water Quality Guidelines were introduced in 2000, and represent a major shift in the way surface water quality is managed in Australia (Batley et al., 2003). The guideline package consists of several large volumes of information and provides a complete outline of how the guidelines should be applied, together with a lengthy discussion of the underpinning science. The new guidelines represent world's best practice in water quality management, and adherence to their principles and philosophy is clearly desirable. It is important to note that, whereas the role of regulatory agencies is to protect or improve ambient water quality through managing effluents, they also need to consider cumulative impacts, total loads and contaminant cycling through sediments, biota and water, as well as temporary or permanent storages of contaminants and their ultimate fate and impacts. This means that both a spatial and temporal view is required along with recognition that pollutants can and will move downstream and downwind and change over time. This means that regulatory issues have a broader, whole of catchment focus, rather than the more localised concerns that industries might have.

The new guidelines provide guidelines for water quality in relation to a number of environmental values (previously termed "beneficial uses"). These are somewhat altered from those in the 1992 guidelines and now comprise the following (Batley et al., 2003):

  • Aquatic Ecosystems - This is the primary focus of the new guidelines.
  • Primary Industries - The new guidelines have amalgamated agriculture, aquaculture and human consumption of aquatic foods into one environmental value.
  • Recreation and Aesthetics - New guidelines are still under review. Until these are revised and released, the ANZECC 1992 Guidelines still apply.
  • Drinking Water - The Australian NHMRC and ARMCANZ Drinking Water Guidelines (NHMRC/ARMCANZ 1996) apply.
  • Industrial Water - No specific guidance is given because the requirements for industrial waters are so varied.
  • Cultural and Spiritual Values - No specific guidance is given in the new guidelines, but it is recommended that they should be considered during the planning phase of water resource management.

Note: According to Batley et al. (2003), guidelines for aquatic ecosystem protection are usually the most stringent. For the most part, these are the major focus of management actions, the greatest source of contention amongst the stakeholders and, therefore, the values that determine the acceptability of water quality. As a consequence, the guideline volumes devote the greatest effort dealing with aquatic ecosystem protection.

4.2.4.2 Summary

In Australia, the state and territory have primary responsibilities for oversight and regulation of mining operations (Commonwealth of Australia, 2007), with an overlay of Commonwealth (federal) regulation (Herbert Smith Freehills, 2012). In other words, mining activities in each of the states are governed by their respective Mining Acts and Mining Regulations. The primary means by which state and territory governments regulate AMD is through the standard authorisations required for a mining project, including mining leases, EIAs and water resources (Commonwealth of Australia, 2007). Although the exact structure, legislation and regulatory regime applicable to AMD vary somewhat between jurisdictions, in general, they all seek to minimise environmental impacts during operations and achieve sustainable landforms following rehabilitation through the minimisation of pollutant release.

According to Commonwealth of Australia (2007), the key considerations under state and territory legislation include: (1) identification and assessment of AMD risks in the environment and social impact assessment, (2) determination of financial bonds based on adequate management of AMD issues post closure, (3) management of compliance with national water quality guidelines and (4) availability, quality and use of local and regional water resources.

 
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