Keeping abreast of Good Environmental Practice in an evolving regulatory framework – How to keep up

2. Keeping abreast of Good Environmental Practice in an evolving regulatory framework – How to keep up Leonie Paulson29th July 2008

3. Presenter Leonie Paulson, Consultant Mining & Resources Leonie joinedthe team of specialised mining practitioners at Sparke Helmore in February of 2008 and was formerly a partner at Thomson Playford, after many years in practice in public sector law with the Crown Solicitor’s Office (SA). In 1995, Leonie was instrumental in the proclamation of the SA Environment Protection Act, 1993 and completed drafting subordinate legislation linking new environmental and planning laws to revolutionise pollution control in the State. Leonie has prosecuted and defended major corporate environmental criminal conduct. With over 100 years’ experience servicing mining and resource organisations, Sparke Helmore has an in-depth knowledge and understanding of the fundamental issues, risks and legislative framework controlling mining operations Australia-wide.

4. Drivers for RegulatoryCompliance • Best Practice • Community expectation/complaints • Attention of Regulator(s) • Prosecution/licence breach or suspension • Employee and shareholder expectation

5. View of your Business’sEnvironmental Impacts How do you assess impact ? By whole of operation – assess each activity • By requirement imposed under licence/permit/exemption etc. • By important event (e.g. new laws i.e. - greenhouse gas emissions) • External review of systems When do you assess impact ? • Ongoing • Prior to licence or permit renewal • As new laws are introduced or a review event is warranted Why then does conduct fall through the gaps ?

6. Complaint/breach focus Public complaint or breach focus – inevitably means: -ve • “On the back foot” – already in error – hence defensive • Aim to protect reputation and historical environmental performance and limit liability – not focussed on improvement • Inappropriate focus on an event – lessons learnt are hard to translate when obligations to report “up the line” • Internal reports – subject of discovery –often provides the evidence to substantiate company’s failure to have good workplace systems in place +ve • Allows company to re-evaluate how current environmental systems operate form a fresh perspective

7. Key developing issues Land Contamination Transfer of fill material (soil) Industry precincts – buffer zones Noise provisions for construction industry GHG emission trading and 1 July 2008 reporting requirements.

8. Land Contamination Land Contamination – what is it ? • Imposed by amendment to the Environment Protection Act,1993 (SA) • Driven by “changes in use” to land – Development Act, 1993 Retrospective application for civil liability • Who will be deemed to have caused the contamination ? • s103D – occupier – at the time activity occurred on land that caused or contributed to discovered land contamination • Capacity to “contract out of” liability, by way of “arms length” agreement – s103E Practical implications – orders etc • System for assessment and remediation of sites • Site Contamination Assessment Orders (s103H) • Site Remediation Orders (s103J) • Issue against 1 or more persons (s103F) & directors by Court order (s103G)

9. Land Contamination Transfer of fill material (soil) • Draft Environment Protection (Site Contamination) Regulations 2008 • “Importation of soil or other fill originating from a site at which another potentially contaminating activity has taken place” • Regardless as to whether “carried on in course of business” or not Operational • By February 2009 Moving Soil • What will it require ?

10. Neighbourhood issues Industry precincts – buffer zones • Protection of amenity of sensitive land uses (ie residential, hospitals etc) How Imposed ? • Zoning limitations imposed under the Development Act,1993 • Separation Distance Guidelines – EPA(Dec 2007) • Water impact; • Noise impact; • Air emissions – air quality & odour

11. Special Noise ControlProvisions - construction Environment Protection(Noise) Policy, 2007 • Special noise provisions apply for construction industry (rr 21- 23) • Focus on “adverse impact upon amenity” (45dBA – continuous noise & 60dBA maximum noise levels) • 7am to 7pm - noisy activity after 9am • Required to show reasonable and practicable measures re: working method: • Minimising location of noisy equipment away from neighbours • Regular maintenance (otherwise cease use) Obligation imposed upon: • Obligation falls to the ‘responsible person’ -Owner, occupier, contractor and head-contractor Exemptions include: • Where planning approval not required; and • Rail, road and other public infrastructure

12. Mining & Resources – New Infrastructure Environmental licensing • Schedule 1 - licensable activities – s 36 Environment Protection Act,1993 • Mineral works (tailings ?) • Chemical works (tailings ?) • Fuel burning (incl. diesel generation) • Temporary concrete batching plant • S35 – Works Approval – Environment Protection Act,1993 • Required prior to construction of plant & equipment for a licensable activity where development (planning) authorisation is not required.

13. Garnaut Report – emissionstrading scheme Previous obligations - Commonwealth • MRET targetscheme – renewable energy targets for energy retailers • EEO reporting scheme - Energy Efficiency Opportunities Act, 2006 (Cth) • NGER reporting scheme - National Greenhouse and Energy Reporting Act, 2007 (Cth) Fin Year - 1 July 2008 Single Facility Corporate Group Energy consumption 100 TJ 500 TJ Energy production 100 TJ 500 TJ Emission of GHG 25kt CO2-e 125kt CO2-e

14. Garnaut Report – emissionstrading scheme Interim Report findings (4 July 2008 report) – Mining, Transport & Construction • Who is included ? - Emissions from stationary energy, transport, industrial processes & fuel production fugitive emissions – measurable – include by 2010 (cf waste & forestry – later inclusion) • Trading Permits by auction, cap on emissions based on a carbon “budget” • Point of Obligation – point in the supply chain where reporting & monitoring of GHG emissions is required • Carbon leakage - Emissions from trade-exposed, emissions-intensive industry – payment returns from revenue raised, (permit issue likely) & sectoral agreements necessary to achieve comparable treatment with competitors • Offsets – limited use • Mitigation encourages alternative energies – hot rock energy etc • Transfer from MRET to other renewable energies