EPBC Act s158 exemption decisions published, 02/08/2021 to 08/08/2021

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was enacted to provide for the protection of the environment, particularly with respect to matters of national environmental significance. This Act was introduced to address the need for a comprehensive framework that enables the Commonwealth to play a significant role in the protection and management of the environment, especially in relation to actions that may have a substantial impact on the environment across Australia. Enacted by the Parliament of Australia, the policy objective of the EPBC Act is to ensure that the environment, biodiversity, and heritage are protected and managed sustainably while allowing for economic and social development. On August 5, 2021, Sussan Ley, the Minister for the Environment, issued a notice of exemption under section 158 of the EPBC Act. The exemption was granted to EnergyAustralia Yallourn Pty Ltd and all persons acting on its behalf from the application of all provisions of Part 3 of the EPBC Act, except for certain specified sections, in relation to emergency and rectification works associated with the potential flooding of the Yallourn coal mine. This exemption was considered to be in the national interest, as it allowed for necessary actions to mitigate the environmental impact of the flooding while ensuring that the activities were conducted in a manner that aligns with broader environmental protection objectives.

Scope and Application

The exemption notice issued under section 158 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies to EnergyAustralia Yallourn Pty Ltd and all persons acting on its behalf, concerning the undertaking of specific activities in relation to the potential flooding of the Yallourn coal mine. The Minister for the Environment, Sussan Ley, has determined that exempting these entities from the provisions of Part 3 of the EPBC Act, excluding certain sections, is in the national interest. This exemption covers activities such as diverting Morwell River flows, channelling water into the disused Hazelwood mine, and completing permanent rectification works to the Morwell River Diversion. The exemption is effective from the date of the notice, 5 August 2021, and applies specifically to the emergency and rectification works described in the request for exemption dated 2 August 2021. The decision and the Minister’s statement of reasons are accessible to the public through the provided internet address.

Key Provisions

The main operative sections of this notice under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) are sections 158 and 158(7). Section 158 of the Act allows the Minister to exempt an entity from certain provisions of the Act if it is in the national interest to do so. In this instance, the Minister has exercised this power to exempt EnergyAustralia Yallourn Pty Ltd from the application of most of Part 3 of the EPBC Act, except for sections 21, 22A, 24B, 24C, 27B, and 27C, in relation to specific activities aimed at mitigating the potential flooding of the Yallourn coal mine (section 158(7)). These activities, termed "Emergency Works and Rectification Works," include diverting river flows, channelling water into a disused mine, and making permanent rectifications to river diversions. The obligations and requirements imposed on EnergyAustralia Yallourn Pty Ltd and any person acting on their behalf under this exemption are primarily to undertake the specified Emergency Works and Rectification Works to manage the potential flooding of the Yallourn coal mine. This involves diverting the Morwell River flows, channelling water into the disused Hazelwood mine, and completing permanent rectification works to the Morwell River Diversion. While most of Part 3 of the EPBC Act is exempted for this specific action, the company must still comply with sections 21, 22A, 24B, 24C, 27B, and 27C, which may include requirements for environmental assessments, public notifications, and other regulatory obligations. Any breach of the conditions set out in this exemption notice could have significant legal consequences. While the notice itself does not specify penalties for non-compliance, the EPBC Act includes various offences and penalties for breaches of its provisions. For example, unauthorised actions that impact matters of national environmental significance can result in civil penalties of up to $666,000 for individuals and $3.33 million for corporations, or criminal penalties of up to $275,000 for individuals and $1.38 million for corporations. Additionally, failure to comply with specific sections not exempted, such as sections 21, 22A, 24B, 24C, 27B, and 27C, could also lead to enforcement actions under the Act, including fines and potential legal proceedings.