If the risk assessment is not conducted or is found to be lacking, regulator action using enforcement powers would be taken to ensure that the risk assessment is amended to address the issues identified. The control of corrective response timing would then shift from the operator to the regulator.
Whilst lease holders are not required to submit the rehabilitation risk assessment for approval, it is subject to additional formal review under development consent compliance reporting and independent auditing conditions. Lease holders must keep appropriate records that document the rehabilitation risk assessment, including how it has been reviewed and updated over the life of the operation and demonstrate its progressive implementation.
Businesses operating under the Mining Act 1992, Mineral Resources Act 1989, development consents or undertaking a scheduled activity/environmentally relevant activity, are required to periodically report on compliance performance and are subject to external independent/3rd party audits. The scope of these performance reviews typically includes:
- An assessment of compliance with Conditions of Consent and other relevant approvals and licences (i.e. lease, licence and authority conditions);
- An assessment of environmental performance of the development, including:
– An assessment of actual impacts compared to predicted impacts documented in the environmental impact assessment;
– An assessment of incidents, non-compliances and complaints that have occurred on the project;
– An assessment of feedback received from the Department, and other agencies and stakeholders; and
– An assessment of the performance of the development having regard to agency policy and any particular environmental issues identified through consultation carried out when developing the scope of the audit.
- Identification of the status of implementation of previous audit findings;
- A high-level review of the Project’s environmental management system (EMS);
- A high-level assessment of the adequacy of the Project’s environmental management plans and sub-plans; and
- Any other matters considered relevant (e.g. as identified through consultation with relevant agencies and review of complaints registers).
Under these evaluation processes, the findings and any nominated corrective actions are outside of the direct control of the operator. Finding outcomes can include notices/records of breach, enforced undertakings, adjustment to conditions and financial penalties.
To avoid surprises and retain operator control of response actions, performance review outcomes are best managed internally in advance of regulatory review.