Compliance audits completed during 2013 - Summary of findings

Department of Sustainability, Environment, Water, Population and Communities, 2013

About the summaries

This document is a summary of findings for compliance audits completed during 2013 by the EPBC Act Compliance Auditing Programme.

The projects audited were:

EPBC 2008/4486 – Geelong Ring Road – Section 4A, Victoria

A compliance audit of the Geelong Ring Road – Section 4A, Victoria, was conducted by the department on 21 August 2012.

There are seven particular manner requirements set out in the decision notification.  VicRoads demonstrated compliance with requirements 2, 5, 6 and 7 relating to best practice erosion, siltation and sediment controls being implemented; controls to manage a one in two Year Average Recurrence Interval event being implemented and maintained; construction activities that could potentially impact on the breeding of the Yarra Pygmy Perch and the Growling Grass Frog not being undertaken during September and October in associated habitat; and the construction area being fenced off to ensure that areas outside of the construction area are not impacted.

Non-compliance was found with elements of requirements 1, 3 and 4 relating to the implementation of the Project Environment Protection Strategy and water quality monitoring requirements for the project.

The non-compliances have been addressed to the satisfaction of the department in accordance with the department's Compliance and Enforcement Policy.

EPBC 2009/4930 - Nullagine Iron Ore Project, Western Australia

On 8 June 2012 BC Iron Limited (BC Iron) were directed to undertake an independent compliance audit of the approval conditions for the Nullagine Iron Ore Project. This directive was made in accordance with condition 8 of the approval, and as a component of the department's annual compliance audit program under the Environment Protection and Biodiversity Conservation Act 1999.

The independent audit has addressed the criteria to the satisfaction of the Minister's delegate.

BC Iron was found to be generally compliant with all 12 conditions with the exception of two non-compliances (late submission of notification of commencement of the action, and failure to obtain departmental approval for a change to the Northern Quoll Monitoring Management Plan). The non-compliances have been previously dealt with by the department. Two conditions were found to be not applicable, being condition 9 (relating to substantial commencement of the action) and condition 11 (where the Minister may request specified revisions to approved plans or programs).

EPBC 2007/3297 - Moolarben Coal Mine Project, New South Wales

On 8 June 2012 Moolarben Coal Mines Pty Ltd (Moolarben Coal) were directed to undertake an independent compliance audit of the approval conditions for the Moolarben Coal Mine Project. This directive was made in accordance with condition 5 of the approval, and as a component of the department's annual compliance audit program under the Environment Protection and Biodiversity Conservation Act 1999.

The independent audit has addressed the criteria to the satisfaction of the Minister's delegate.

Although Moolarben Coal was found to be generally compliant with the approval conditions, there were two non-compliances. The non-compliances related to:

Condition 1a: While the transfer of 130ha to the NSW Minister for Climate Change, Environment and Water has been completed, it was not achieved until 16 September 2010 (almost 2 years after the due date).

Condition 2d: This condition requires arrangements to be made (to the satisfaction of the Commonwealth Minister for the Environment) to protect the offset areas from development in the long term. Although the condition does not stipulate a timeframe in which the approval holder must comply, there has been an unsatisfactory delay since approval was granted in October 2007 in making these arrangements, which at the time of the audit, were still in progress.

A small number of non-conformances were noted in relation to the approved Rehabilitation and Offset Management Plan (a requirement of condition 3) but were not considered to be significant, or have potential to result in unacceptable impacts upon EPBC protected matters.

Condition 6 (where the Minister may request specified revisions to approved plans or programs) and condition 7 (relating to substantial commencement of the action) were found to be not applicable at the time of the audit.

The non-compliances did not have any impact on the environment and have since been dealt with administratively in line with the department's Compliance and Enforcement Policy.

EPBC 2007/3575 – Reconstruction, realignment and widening of the Natimuk-Frances Road, Neuarpurr, Victoria

A compliance audit of the reconstruction, realignment and widening of the Natimuk-Frances Road, Neuarpurr, Victoria, was conducted by the department on 11 February 2013.

There are four particular manner requirements set out in the decision notification and VicRoads demonstrated compliance with requirements 2, 3 and 4 relating to the clearance of native vegetation not extending beyond six metres from the edge of the road, safety barrier guard fencing being installed to allow for 2,115m2 of native vegetation to be retained, and the action being undertaken in accordance with the West Wimmera Shire Council Planning Permit.   Requirement 1 relating to vegetation removal not exceeding 77 Buloke trees and 509m2 of Buloke saplings was unable to be determined at the time of audit.

A minor non-conformance was found in relation to a condition of the West Wimmera Shire Council Planning Permit where an Offset Plan was not approved within the required timeframe.  No further action was considered necessary as the non-conformance has been addressed in accordance with the department's Compliance and Enforcement Policy.

EPBC 2001/214 – Dendrobium Coal Mine, New South Wales

A compliance audit of the Dendrobium Coal Mine was conducted by the department from June – December 2012.

There are 5 approval conditions attached to the approval. BHP – Illawarra Coal has demonstrated compliance with the requirements of the approval conditions 1, 2, 4 and 5 relating to survey requirements for Cryptostylis hunteriana and Caladenia tessellata, Macquarie Perch monitoring programme, and measures to minimise impacts on the Giant Burrowing Frog and the Broad-headed Snake.

Condition 3 relating to the clearance and progressive rehabilitation of habitat containing the hairy Geebung (Persoonia hirsuta), was not applicable at the time of audit as rehabilitation had not commenced.

EPBC 2009/5155 – Lot 9049 Marmion Avenue, Butler, Western Australia

On 8 June 2012 the Satterley Property Group (Satterley) were directed to undertake an independent compliance audit of the approval conditions for the residential development at Lot 9049 Marmion Avenue, Butler, WA. This directive was made in accordance with condition 9 of the approval, and as a component of the Department's annual compliance audit program under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The independent audit has addressed the criteria to the satisfaction of the Minister's delegate.

Satterley were found to be generally in compliance with the approval conditions, with the exception of two non-compliances (condition 3b and condition 8) and two non-conformances relating to the implementation of the Black Cockatoo Habitat Conservation and Restoration Project plan (Appendix A of the EPBC approval).

The audit found that Satterley did not consult with this Department in relation to a change to Public Open Space area 4 (condition 3b), and two non-conformances associated with the implementation of the plan at Appendix A of the EPBC approval. Satterley were also found to be non-compliant with condition 8 because it did not seek the Department's approval for the revision of the plan at Appendix A of the EPBC approval.

The non-compliances and non-conformances did not result in any environmental harm and have been addressed to the satisfaction of the department in accordance with the department's EPBC Act Compliance and Enforcement Policy.

Pilot Offshore Artificial Reef located off Sydney, NSW - EPBC 2008/4176 and Sea Dumping Permit SD2008/882

On 20 November 2012 the NSW Department of Primary Industries (NSW DPI) were directed to undertake an independent compliance audit of the approval conditions for a Pilot Offshore Artificial Reef (OAR) located off Sydney, New South Wales. This directive was made in accordance with condition 8 of the approval under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and as a component of the annual compliance audit program.  As a Sea Dumping Permit was required for this project under the Environment Protection (Sea Dumping) Act 1981 (Sea Dumping Act), the Sea Dumping Permit conditions were also within the scope of this audit.

The independent audit has addressed the criteria to the satisfaction of the Minister's delegate.

Although the audit found that NSW DPI had satisfactorily implemented the majority of procedures, actions and activities to meet the conditions of the EPBC Act approval and the Sea Dumping Permit, there were the following non-compliances with the implementation of conditions or with measures prescribed in the Environmental Management and Monitoring Plan (EMMP).

EPBC Condition 1: requires the action to be undertaken in accordance with the conditions of the EPBC Act approval and in accordance with an approved Artificial Reef Permit issued in accordance with the Sea Dumping Act.  As the audit found non-compliance with both the EPBC Act approval and Sea Dumping Act permit conditions (see below) by default there is non-compliance with this condition

EPBC Condition 2 (c) v:  requires measures for assessing the influence of the OARs on the hydrology within the Management Area.  The Management Area is a zone of a 500m radius around the Sydney OAR Unit however the EMMP states that hydrology is assessed within a 10m radius of the OAR only.

Note:  Although the audit identified this discrepancy in the EMMP, the auditors were satisfied that in practice the influence of the hydrology was being appropriately assessed within a 500m radius of the OAR.

EPBC Condition 2 (d) ii:  requires contingency measures in the event that OAR Units are deemed structurally unsound and require modification, repair or removal.  Although reference is made in the EMMP to contingency measures should the OAR Unit be considered structurally unsound, no contingency measures are explicitly noted should the Sydney OAR require modifications or repair.

EPBC Condition 2 (e):  the EMMP (page 22) contains a commitment to make the OAR Annual Environmental Management Report (AEMR) available on the NSW DPI website.  This report was not available on the website.

EPBC Condition 2 (e) i:  requires within 12 months of the deployment of the OAR and annually for the first 10 years, or as agreed by the Minister, a report to be submitted to the department.  The deployment date of the Sydney OAR was 13 October 2011 however the first annual report was submitted on 3 December 2012, which was not within 12 months of deployment.

Sea Dumping Condition 8:  requires the department to be advised of both the planned commencement date and time of transport for placement of the first OAR unit for each OAR no less than 24 hours in advance of commencing the transport.  Although the department was advised of the planned date of transport this notification did not include details of the planned time of transport.

Sea Dumping Condition 12:   requires a report to be provided to the department within 5 days of the placement of each OAR.  The report did not include details of the timing of the measures taken to verify the OAR units are upright and stable within 24 hours of placement as required by Sea Dumping Condition 12 (d).  Further, the report did not include verification from an independent observer, as agreed by the department in writing, of the highest point of each OAR unit prior to the exclusion zone being removed as required by Sea Dumping Condition 12 (e).

Sea Dumping Condition 13:  requires a report to be provided to the Australian Hydrographic Office within 5 days of the placement of each OAR that includes details as specified in Sea Dumping Condition 12 (a), (b) and (c).  The date and time of the observed depth measurement of the OAR unit was not provided as required by Sea Dumping Condition 12 (c).

Sea Dumping Condition 15:  requires a report to be provided to the department by 31 January each year to facilitate annual reporting to the International Maritime Organisation.  A report was not provided to the department for the January 2012 deadline due to an oversight on the part of NSW DPI.

The non-compliances have since been addressed in accordance with the department's Compliance and Enforcement Policy.

EPBC 2004/1805 – Angel Gas and Condensate Field, North West Shelf

A compliance audit of the Angel Gas and Condensate Field, North West Shelf, was conducted by the department on 29 July 2013.

There are seven approval conditions attached to the approval.  As an independent audit of this project was conducted in January 2010, as required by Condition 3 of the approval, and the independent audit found that Woodside Energy Limited (Woodside)  demonstrated compliance with the approval conditions, this audit was scoped accordingly and limited to conditions 1 c, 2, 4, 6 and 7.

Condition 1 c requires an Angel Commissioning and Operations Environment Plan (the Plan).  Woodside demonstrated compliance with condition 1c with the exception of a non-conformance relating to a reporting requirement specified in the Plan.  Condition 4 relating to the submission of annual certificates of compliance was found to be non-compliant.  Conditions 2, 6 and 7 relating to a Decommissioning Plan and variations to approved plans were not applicable at the time of the audit. 

The non-compliance and non-conformance  have been addressed to the satisfaction of the department in accordance with the department's EPBC Act Compliance and Enforcement Policy.

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