MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES
Senate Question No.1467
Senator Ludlam asked the Minister representing the Minister for Sustainability, Environment, Water, Population and Communities, in writing, on 14 November 2011:
In regard to the approval under the Environment Protection and Biodiversity Conservation Act 1999 (the Act) for the Olympic Dam expansion:
(1) In granting approval to the Controlling Provision ‘Nuclear actions (sections 21 and 22a)' what limitation has the Commonwealth placed on the magnitude of the approved mining project to correspond to the scale covered by the Environment Impact Statement (EIS) documentation that was accepted by the Minister and the subject of procedural fairness in public consultation, ie for a facility capable of producing up to 750 000 tonnes of copper per annum and the associated environmental impacts - rather than the significantly larger scale of project anticipated in the original 2005 EPBC Act referral of up to 1 000 000 tonnes per annum of copper production.
(2) What were the issues in question in the ‘adequacy test' of the EIS documentation conducted under the Act over the 5 month period from the proposed Supplement to the EIS having been provided by the proponent on 2 December 2010 before public release of an accepted final EIS in May 2011.
(3) What further information, if any, did the department seek from the proponent regarding satisfaction of the ‘adequacy test' applied to the Supplement to the EIS.
(4) In the formal assessment of the final EIS in the exercise of your powers under section 132 of the Act, what further information, if any, did the Minister or delegate seek from the proponent so that sufficient information was before you on the relevant impacts on matters protected by the Act in order to be able to make a decision under section 133 of the Act - including under the ‘Nuclear Action' controlling provisions for the protection of the environment from nuclear actions.
(5) What use, if any, was exercised of the ‘stop the clock' provisions of the Act in the formal assessment period, and if exercised, on what issues was that undertaken and what further information was sought.
(6) In acknowledging that assessment under the Act applied to all environmental impacts of the proposed project and that this approval now also applies to the existing Olympic Dam mining operations (Condition 81 Scope), what new conditions were placed on the existing Olympic Dam operations (other than Condition 21 to ‘phase out the use of evaporation ponds as soon as possible') - operations which were previously assessed by the Commonwealth in the mid 1990's under the Environment Protection (Impact of Proposals) Act 1974 and prior to the EPBC Act.
(7) Will the Minister give a commitment for public release and public consultation on the proposed ‘Environmental Protection Management Plan' which is required from the proponent before substantial works may be commenced before Ministerial assent may be granted to this plan.
(8) Noting that the tailings storage facility (TSF) is to cover some 4 000 ha up to a height of 65 metres and the mining operations set out in the EIS are for a design leakage/seepage rate of up to 8.2 million litres a day with an average leakage rate of 3.2 million litres a day from the TSF over the proposed decades of mining to 2051, what is the design relationship between increasing the area of the tailing storage facility that is lined and the resultant environmental protection outcome in consequent reduction of the proposed leakage/seepage rate.
(9) What is the capital expenditure on the proposed lining of the tailings storage facility - which is arbitrarily limited to that of the central decant area of 400 by 400 metres in each tailings cell, a total lined area of only some 4 per cent of the total area of the tailings storage facility.
(10) What is the required investment in capital expenditure on environmental protection measures to properly line the tailings storage facility to exercise effective control of tailings so as to prevent leakage of liquid radioactive tailings waste from the tailings storage facility.
(11) In the exercise of Ministerial responsibilities under the Act to protect the environment in this assessment process and in this decision, is it the case that the department did not require the proponent to provide capital expenditure estimations on environmental protection measures to further limit or prevent leakage from the tailings storage facility; if there was no requirement, why not.
(12) Does the department consider that the capital expenditure costs of environment protection measures in radioactive waste management is a ‘commercial in confidence' matter for the proponent.
(13) Why did the Minister not apply section 134(1) of the Act, as a necessary condition to be applied for the protection of the environment from nuclear actions a matter protected under section 21 of the Act, to impose the most stringent conditions to guarantee the prevention of leakage of tailings waste, including the requirement of effective mitigation measures such as adequate lining of the proposed tailings storage facility.
(14) Why has approval been granted to cause a plume of seepage leachate in groundwater from the tailings storage facility which the EIS documentation cites (draft EIS Ch.12 p.371) will affect groundwater levels for up to 6 km from the tailings storage facility and which Approval Condition No.26 then seeks to regulate so that the plume must not come within 20 m of the surface (80 m AHD) unless otherwise agreed in writing by the Minister.
(15) Why is the proponent being allowed to avoid the needed investment in capital expenditure to control radioactive wastes, to protect the environment and to prevent leakage from the tailings storage facility.
(16) In the Commonwealth's support for the South Australian government's proposed mine rehabilitation bond of some $72 million for the whole of mining operations at Olympic Dam, is it the case that the required investment in capital expenditure for effective lining of the TSF to control and to prevent leakage of these acid liquid radioactive and heavy metal wastes would on its own exceed the value of this proposed bond.
(17) Who does the Federal Department understand is to be the responsible entity for the TSF post mine closure at Olympic Dam given that the South Australian government Assessment Report (Chapter 4 p.41) cites that the ‘Responsible entity post closure'' for the open pit is the South Australian government, however it lists the responsible entity for the tailings storage facility post closure as ‘Not stated'.
(18) Given that tailings storage facility uranium mine tailings present a serious long term hazard to the environment and to health what are the long term responsibilities and liabilities of the proposed ‘responsible entity' under this approval for the Olympic Dam surface tailings storage facility - post proposed closure of mining operations in 2051 and the Approval's cited limited 10 year period of mine rehabilitation conditions up to 2061.
(19) Why has the proponent apparently been granted approval to produce these long term hazardous radioactive tailings, to ‘dispose' of the tailings in largely unlined surface piles, and to then avoid formal legal ongoing responsibility and liability for the tailings and for the potential environmental and health impacts from the tailings post mine closure under the conditions of this approval that apply up to only 2061.
(20) Given the Commonwealth government's statutory required conditions and standards for isolation of uranium mine tailings from the environment at the Ranger mine under the Atomic Energy Act 1953 that: ‘By the end of operations all tailings be placed in the mined out pit...in such a way to ensure that the tailings are physically isolated from the environment for at least 10 000 years', and ‘Any contaminants arising from the tailings will not result in any detrimental impact for at least 10 000 years', what mine closure and rehabilitation assessment, plans and investment costings, if any, were required from the Olympic Dam proponent to achieve these correspondent conditions and standards in the management, storage and long term disposal of uranium wastes at Olympic Dam.
(21) Why was the proponent not required to submit assessment information on the potential to rehabilitate the proposed open pit - at least to the extent of disposing of the tailings into the pit.
(22) Given that the primary objective of the Act is to provide for protection of the environment and that section 136(2)(a) obliges the Minister to take the Principles of the Ecologically Sustainable Development (ESD) into account in making a decision, including the need for a precautionary approach to the avoidance of likely environmental harm, why has the Minister not felt legally compelled to impose the most stringent conditions and standards in this case.
(23) Is it the case in this approval that in failing to rehabilitate this open pit the mining proponent BHP Billiton will effectively avoid some billions of dollars in mine clean up and rehabilitation costs and leave the pit as a permanent feature and scar on the landscape to form a hyper saline lake of some 300 m depth in the base of the 1 km deep pit that will be contaminated by radionuclides and heavy metals.
(24) Following 6 years of the Act EIS assessment process, why does approval condition 32 ‘Mine closure' leave it up to the proponent to: (a) draft a set of environmental outcomes that are to be achieved indefinitely post closure; (b) draft a set of assessment criteria to achieve these outcomes; (c) have yet to decide how to propose to cover the tailings (at 32.c.ii); and (d) conduct a ‘Safety Assessment' to determine the ‘long term (from closure to in the order of 10 000 years) risk to the public and the environment from the tailings storage facility and the rock storage facility'.
(25) Is it the role and the responsibility of the Minister under the Act to set the required environmental outcomes and assessment criteria for mine closure approval conditions and to know the potential extent of the risk to the public and to the environment before granting an approval to the proponent for the proposed mining operations.
(26) Following 6 years of the Act assessment the approval grants the proponent 2 further years from the date of the approval to provide a ‘Mine Closure Plan' for assessment and further approval by the Minister, will the Minister give a commitment to make this proposed ‘Mine Closure Plan' public and to provide public consultation on the proposed plan before further Ministerial assent is to be granted.
(27) Noting the South Australian government announced on 12 October 2011 that as part of the proposed Indenture agreement the proponent will be provided with the long term security required to proceed in the project by the grant of freehold over the expanded mining lease at Olympic Dam an area of 49 700 ha (ie of 497 square kilometres) of Crown Land, why was this proposed extensive grant of freehold title over an area of nearly 500 square kilometres of Crown lands not included in the EIS documentation and not addressed in the relevant matters subject to public consultation - including with Aboriginal interests - in the EIS process.
(28) Has the Commonwealth government been a party to this proposed extensive grant of an area of nearly 500 square kilometres of Crown lands to a mining proponent BHP Billiton, the largest and richest mining company in the world.
(29) When did the Commonwealth government learn of this proposed grant of freehold title over the expanded Special Mining Lease.
(30) What are the implications for Native Title rights and interests, and what Native Title Act process may be involved, in this proposed grant of freehold title over Crown lands to the proponent BHP Billiton.
(31) Given the Minister was not provided with assessment information by the proponent in the EIS documentation on the proposed extension of the period of extraction of waters from the Great Artesian Basin for further decades up to 2051 (the period of the approval now granted for all mining operations at Olympic Dam), what further information - if any - was sought from the proponent under section 132.
(32) What assessment, was undertaken by the Minister and the department regarding this proposed extension of the period of extraction of the Great Artesian Basin (GAB) waters in the Minister's responsibilities to the environmental impacts of this mining matter on the community of native species dependent on natural discharge of groundwater from the GAB, the "Mound Spring Community" listed as an endangered ecological community and a matter protected under section 18 of the Act.
(33) Why has the fundamentally important matter of setting of compliance criteria been left to be set by the proponent, in: approval condition 27 and 28 Extraction of water from the Great Artesian Basin to ‘ensure that water extraction from Wellfield A and B in the GAB...does not have a significant adverse impact on groundwater dependent listed threatened species or Ecological Communities' and with the relevant compliance criteria to be set by the proponent in their preparation of the ‘Environment Protection Management Plan' (under Condition No.4).
(34) Why has the Minister granted approval for open pit mine operations, infrastructure, processing and transport predicated on production of a uranium infused bulk copper concentrate for precedent overseas sale and processing and proposed export direct to China - a matter that is not sanctioned under any of Australia's bilateral uranium sales agreements.
(35) Noting that the Commonwealth Assessment Report (dated 13 September 2011, Nuclear Security and Safety at p.57-59) acknowledges that ‘There is not currently in place a bilateral safeguard agreement with China that covers the export of the uranium contained within the copper concentrate. Such an agreement would need to be finalised before any export of copper concentrate can take place. ASNO would determine the accounting arrangements and security measures required' why has this approval pre-empted the potential outcome of a required future new or amended nuclear treaty with China, a matter that has yet to be negotiated with China, or to be put to the Australian Parliament, or to be put to the required Joint Standing Committee on Treaties Inquiry, and that may not be realised.
(36) Why did the Minister not assess the feasible alternative of an expansion of the long standing practice at Olympic Dam to produce a copper product on site, or decide to reject this part of the application for the proposed precedent sale and overseas processing of a uranium infused bulk copper concentrate.
(37) What responsibility does the Minister accept for the consequent environmental and radioactive risks in this proposed precedent sale and overseas processing of a uranium infused bulk copper concentrate of up to 1.6 million tonnes per annum, and in the resultant waste management requirements for some 1.2 million tonnes per annum of Olympic Dam mine wastes to be dumped in China over decades up to 2051.
(38) In assessing the world's largest ever proposed uranium mining project the department's "Olympic Dam expansion assessment report EPBC 2005/2270" (13 September 2011) states at p.10 that: "the department has not recommended conditions in relation to radiation protection for workers at the Olympic Dam mine site', why has the Minister not placed any specific conditions (other than compliance with existing Codes) in relation to radiation protection for workers at the Olympic Dam mine site.
(39) The Minister's approval condition radiation No.14 requires a Dose Constraint for Members of the Public for radiation exposure from Olympic Dam operations to be no more than 300 micro-Sieverts in a year unless otherwise agreed by the Minister, noting that the correspondent South Australian government Radiation Condition No.34 states that this reference level is to be specific to public doses at Roxby Downs and at the proposed Hiltaba Village, will this Commonwealth Dose Constraint also apply to non-designated uranium mine workers at the Olympic Dam mine site.
(40) What is the proportion of workers and the actual numbers of workers and of any contractors at the proposed expanded Olympic Dam mine site that are proposed to be formally designated as uranium mine workers and fall under the current International Commission on Tasiological Protection (ICRP) regulatory limit of 20 mSv a year, rather than the current public exposure limit of 1 mSv a year.
(41) Will train drivers transporting the uranium infused copper concentrate and truck drivers transporting uranium oxide be given the protection of the Minister's new approval condition radiation No.14 to require a Dose Constraint for Members of the Public for radiation exposure from Olympic Dam operations to be no more than 300 micro-Sieverts in a year.
(42) Given that projected ionising radiation exposure levels for key categories of designated uranium mine workers at Olympic Dam are far in excess of the independent European Committee on Radiation Risk (ECRR) recommended total ionising radiation permissible dose standard of 5 mSv a year for designated nuclear and uranium mine workers, what assessment if any did the Minister and the Department undertake in consideration of the independent ECRR recommendation, a matter that was put to the Minister to take into account in public submissions and a matter that he is able to legitimately consider under section136(2)(e) ‘any other information' that he has relevant to impacts of the action, as an example standard relevant to the impacts of the proposed nuclear action at Olympic Dam.
(43) Noting that the department's ‘Olympic Dam expansion assessment report EPBC 2005/2270' states that an ‘expert review by Australian Radiation Protection and Nuclear Safety Agency concludes that the total radiation dose to pit workers under unlikely worst case conditions may be up to 12 mSv/y' and then says that this may be expected to be reduced to below 10 mSv/y, and that ‘The predicted average doses to hydrometallurgical and refinery workers were stated to range from 3 mSv/y to 5 mSv/y and up to 9 mSv/y for smelter workers' (p.7), what commitment can the Minister provide for the Commonwealth government to conduct a health study of past, current, and future uranium mine workers, and when will that study start.
(44) Why does the Minister and the department's Assessment Report place no Conditions on greenhouse gas emission issues given that the proposed project involves a significant increase in greenhouse pollution of some 4.1 (Gas electricity option) to 4.7 Mt Co2e per annum, and that it is within the Minister's powers to do as the project involves a nuclear action sec.21 and the matter protected under s.34 is ‘the environment' and that sec.134 allows the Minister to impose conditions on an approval that are necessary or convenient for protection of this matter.
(45) Why has the Minister not required the Federal government's current climate change policy for an 80 per cent cut by 2050 on 1990 greenhouse gas emission levels to be applied in this case, instead of the proposed SA government condition of a now out dated policy setting in BHP Billion's 2009 draft EIS commitment to a 60 per cent cut by 2050 on 1990 levels - which was then the South Australian State Strategic Plan Target.
(46) Why has the Minister not required the proponent to use Renewable Energy (RE) for electricity generation, other than the South Australian government condition to only require use of RE to power the desalination plant (35 Mw) and for pumping of desalinated water to the mine site (22 Mw), when the use of RE presents the most effective greenhouse mitigation measure to limit and manage emissions from the project's proposed additional 650 Mw electricity demand. (Noting that an on-site heat recovery cogeneration energy efficiency measure is also said to provide up to 250 Mw at full production levels).
(47) Why has the Commonwealth allowed a perverse outcome in a massive public subsidy to the world's largest mining company through the diesel fuel rebate with BHP Billiton to receive an annual rebate of up to $85 million at an average diesel use of 480 million litres a year at full production levels, for a total subsidy to BHP Billiton of over $3.2 billion for the proposed use of approximately 17 900 million litres of diesel from the start of open pit construction throughout Olympic Dam mining operations up to 2050 - a long term perverse disincentive to adopt other cleaner options.
Senator Conroy: The Minister for Sustainability, Environment, Water, Population and Communities has provided the following answer to the honourable senator's question.
(1) The scope of the approved project is that described in the referral (2005/2270) under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) as varied on 24 October 2008 and 9 June 2010. This indicates an approximate production rate of 750,000 tonnes per annum of refined copper equivalent.
(2) The issue in question in the ‘adequacy test' was whether, in accordance with section 104(3) of the EPBC Act, as it applied to the project (i.e. pre-February 2007 version of the Act), the Minister had adequate information for the purposes of making an informed decision on approving under Part 9 of the EPBC Act (for the purposes of each controlling provision) the taking of the action.
(3) Further information was sought from BHP Billiton relating to: the stability of the open pit and rock storage facility; stability of the tailings storage facility under earthquake loading; infiltration modelling in relation to the closure strategy for the tailings and rock storage facilities; progressive rehabilitation; capacity for neutralisation of acidic seepage from the tailings and rock storage facilities; geochemical modelling of seepage from the tailings storage facility; workforce exposure to radon, post closure radiation doses; groundwater modelling; hydrodynamic modelling; operation of the desalination plant under different flow regimes; construction of the intake pipe for the desalination plant; dissolved oxygen in receiving waters; ecotoxicity testing for the desalination plant; noise and dust impacts; and the gas pipeline.
(4) No further information was sought by the Minister or his delegate under section 132 of the EPBC Act.
(5) The clock was not stopped in the formal assessment period. However, the Minister wrote to BHP Billiton on 21 December 2010 advising that the statutory timeframe in the EPBC Act was unlikely to be met due to the complexity of the project and the need to align with state/territory processes.
(6) Schedules 1 and 7 of the approval conditions also apply to the existing operation and, as such, can be regarded as ‘new' conditions. Condition 28, however, reflects the existing environmental requirements on BHP Billiton under their uranium export permit.
(7) The Minister will consider the need for public consultation on the Environmental Protection Management Plan when it is submitted for approval.
(8) The department's assessment was that, taking into account the poor quality of groundwater below the tailings storage facility and the natural attenuation of seepage from the tailings, increasing the area of lining in the tailings storage facility would not result in improved environmental protection and may lead to geotechnical instability in the tailings storage facility.
(9) Questions about capital expenditure should be addressed to BHP Billiton.
(10) See answers to questions 8 and 9.
(11) No capital expenditure estimates were required as the environmental protection measures proposed by BHP Billiton were considered to be adequate.
(12) Where capital expenditure costs are relevant to the Minister's decision making, the Minister, or the department, will consider whether this material is commercial in confidence, if required.
(13) The Minister applied the conditions necessary to protect the environment.
(14) Condition 26 regulates the height of the groundwater mound below the tailings storage facility to ensure there is no interaction with surface vegetation. Conditions 22, 24 and 25 regulate lateral movement of seepage.
(15) The proponent must make the capital expenditure necessary to comply with the approval conditions.
(16) Questions about capital expenditure should be addressed to BHP Billiton.
(17) These matters are governed under State law. Subclause 24(10) of the Schedule to the Roxby Downs (Indenture Ratification) Act 1982 provides that freehold land granted over the area of a special mining lease will revert to the State at the expiration of the period ending two years after the termination of the relevant lease.
(18) The approval condition for the mine closure plan includes requirements on the approval holder to ensure that the mine tailings do not present a serious hazard to the environment and public health. This includes a comprehensive safety assessment to determine the long-term risks to the public and the environment from the tailings storage facility. The approval holder will be required to achieve the environmental outcomes in the approved mine closure plan. If the outcomes are not achieved prior to the expiry date of the approval under the EPBC Act, the approval holder may be in breach of the approval conditions, unless the approval is extended. Conditions 34 and 35 of the approval allow the minister to impose a bond up to the full cost of implementation of the mine closure plan.
(19) BHP Billiton must dispose of tailings in a properly constructed facility and meet the environmental outcomes in the mine closure plan as required under condition 32 of the approval.
(20) BHP Billiton was required to provide a summary mine closure plan in the environmental impact statement. Condition 32 of the approval requires the proponent to prepare a mine closure plan within two years of the date of the approval, or prior to construction of the tailings storage facility, whichever date is the earliest. This plan must be approved by the Minister. The condition requires the plan to contain a comprehensive safety assessment to determine the long-term risk to the public and the environment (from closure to in the order of 10,000 years) from the tailings storage facility and rock storage facility.
(21) This information was provided in section 4.1 of the Supplementary Environmental Impact Statement 2011.
(22) The Minister has imposed the most stringent conditions needed to protect the environment.
(23) The open pit will remain as a permanent feature.
(24) The environmental impact statement demonstrated conceptually, to the Minster's satisfaction, how the mine could be closed and that the long term environmental risks could be acceptably managed. Condition 32 requires the proponent to prepare a detailed comprehensive closure plan for the Minister's consideration and approval. The Minister will determine the adequacy of the plan and the environmental outcomes and assessment criteria to be used.
(25) In approving the proposal, the Minister was satisfied that he had adequate information on the long-term risk to the public and the environment to make a decision.
(26) The Minister will consider the need for public consultation on the mine closure plan when it is submitted for approval.
(27) The tenure of the mining lease is a matter for the South Australian Government.
(29) When the Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Bill 2011 was introduced to the South Australian Parliament on 18 October 2011.
(30) In accordance with the Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Act 2011, freehold title will not be granted until the South Australian Minister is satisfied that native title is or will be extinguished. The South Australian Government, BHP Billiton and the native title parties have negotiated a proposed Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993 for the surrender of native title rights and interests in return for significant benefits for the native title parties as well as Indigenous people in the broader region. Authorisation of the ILUA is not expected until February/March 2012, with execution of the ILUA, including registration, to follow.
(31) The Minister's approval of the Olympic Dam expansion did not extend the period of extraction of water from the Great Artesian Basin. This extraction was assessed under the now repealed Environment Protection (Impact of Proposals) Act 1974. The period of extraction remains the same as approved by the Australian and South Australian governments following that assessment.
(32) See answer to question 31.
(33) The Minister will set the compliance criteria, not the proponent. The proponent will propose criteria for the Minister's consideration and approval.
(34) The decision to approve the project under the EPBC Act is separate to any other regulatory requirements that may apply to the project. BHP Billiton will need to have all relevant regulatory approvals in place to proceed with the project.
(35) See answer to question 34.
(36) The proposal the Minister was required to assess was that referred (and as varied) under the EPBC Act.
(37) The EPBC Act applies only to impacts of the action on the environment within the Australian jurisdiction.
(38) As noted on page 10 of the department's assessment report: ‘The requirements for protection of workers are extensive and comprehensively regulated and monitored by the South Australian Government'.
(39) A dose constraint is a target for the optimisation of radiation protection, however, it is not a dose limit. It is a way of encouraging good practice and ensuring doses are as low as reasonably achievable. The Code of Practice and Safety Guide, Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing (ARPANSA 2005) notes that it is common practice in Australia to designate occupationally exposed employees who are likely to receive doses that are a significant fraction of the dose limit (for example, more than 5 millisievert per year). Designated workers are monitored more intensively and work to a higher dose constraint than non-designated employees who receive low doses and are monitored less intensively. Depending on the situation, non-designated workers may be occupationally exposed at sufficiently low levels that a dose constraint similar to the case for a member of the public dose constraint can be applied.
(40) This question should be addressed to BHP Billiton.
(41) Truck driving, where the load is uranium oxide, and train driving, where the load is copper concentrate, would be classified as an occupational exposure situation and the occupational dose limit applies.
(42) The assessment was informed by advice from the Australian Radiation Protection and Nuclear Safety Agency, as Australia's pre-eminent body on radiation protection matters. The approval conditions require compliance with the Code of Practice for Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing developed by the Agency and used by state/territory agencies. The code takes account of recommendations from the International Commission on Radiological Protection. The Commission is an international non-governmental body of leading experts that issue radiation protection recommendations based on current best scientific understanding.
(43) This question should be addressed to the Minister for Health and Ageing.
(44) The Australian Government has a national market-based approach to address greenhouse gas emissions, including the introduction of a carbon price. In addition, greenhouse gas emissions will also be subject to a plan to be approved by the South Australian Government.
(45) See answer to question 44.
(46) The Australian Government has a market-based policy that will encourage companies such as BHP Billiton to move to renewable energy sources.
(47) Questions relating to taxation rebates should be addressed to the Treasurer.