Exemption under section 158 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was enacted by the Parliament of Australia to provide for the protection of the environment, particularly in relation to matters of national environmental significance. It aims to prevent significant damage to the environment caused by actions that impact listed matters such as endangered species, world heritage properties, and the marine environment. The Act serves as a comprehensive framework to regulate activities that may have adverse environmental effects, ensuring that environmental considerations are integrated into decision-making processes. The policy objective of the EPBC Act is to protect and conserve Australia's biodiversity, ecosystems, and heritage while allowing for sustainable development. In exercising this responsibility, the Minister for the Environment and Water has the authority to exempt certain actions from the Act's provisions when deemed to be in the national interest. This exemption, issued under section 158 of the EPBC Act by the Hon Tanya Plibersek MP, Minister for the Environment and Water, aims to facilitate the Northern Endeavour Floating Production, Storage, and Offtake Facility (FPSO) decommissioning process. The exemption allows the Commonwealth of Australia, represented by the Department of Industry, Science and Resources (Industry department), and other relevant Commonwealth agencies, to undertake limited preparatory topside works and minimal flushing activities on the FPSO and associated infrastructure. These activities include nitrogen purge, gas-freeing, cleaning of topside process equipment and systems, removal of bulk hydrocarbon inventory, and liquid circulation for decontamination. The exemption is in effect until a decision is made on whether to approve Phase 1 decommissioning activities under the EPBC Act. Notably, this exemption does not include subsea flushing through flow lines or any disconnection or decommissioning activities. The Minister's decision to grant this exemption is available for public review via the Department of Climate Change, Energy, the Environment, and Water's website.

Scope and Application

Under section 158 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the Minister for the Environment and Water has exempted the Commonwealth of Australia, as represented by the Department of Industry, Science and Resources, and any other Commonwealth agency acting on its behalf, from the application of most provisions of Part 3 and Chapter 4 of the EPBC Act concerning certain preparatory works and flushing activities on the Northern Endeavour Floating Production, Storage and Offtake Facility. This exemption applies specifically to the taking of limited preparatory topside works and minimal flushing activities, excluding subsea flushing and disconnection or decommissioning activities, until a decision is made on whether to approve Phase 1 decommissioning activities under the EPBC Act. The exemption is intended to allow for these preparatory actions without the full regulatory oversight typically required under the Act, as deemed necessary for the national interest. The exemption applies nationwide and is effective from the date of the notice, with a public statement of reasons available on the Department of Climate Change, Energy, the Environment and Water's website.

Key Provisions

The primary operative sections of this notice under section 158 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) (sections 158) involve exempting the Commonwealth of Australia, as represented by the Department of Industry, Science and Resources (or any other Commonwealth agency), and those acting on behalf of these agencies, from the application of most of Part 3 and Chapter 4 of the EPBC Act. Specifically, the exemption applies to the taking of “limited preparatory topside works and minimal flushing activities” on the Northern Endeavour Floating Production, Storage and Offtake Facility (FPSO) and associated infrastructure until a decision is made on whether to approve Phase 1 decommissioning activities under the EPBC Act. The excluded sections from Part 3 include, among others, those concerning the approval and monitoring of actions that may significantly impact the environment, as well as various reporting requirements. Chapter 4, which deals with the EPBC Act's approval and assessment processes, is also exempted, except for specific sections relating to public notification, assessment, and approval. The obligations and requirements imposed by this Act on the parties or entities it governs are primarily centred around ensuring that the preparatory works and flushing activities are conducted in a manner that does not significantly impact the environment. The notice specifies that these activities will include nitrogen purge, gas-freeing, cleaning of topsides process equipment and systems, removal of bulk hydrocarbon inventory, liquid circulation for decontamination, and testing of solids from the topside equipment and systems. Importantly, these activities must not include any subsea flushing through flow lines or any disconnection or decommissioning activities. Additionally, the Act requires that any actions taken must align with the national interest, as determined by the Minister for the Environment and Water. The notice does not explicitly detail the offences, penalties, or civil/criminal consequences for breach. However, it is implied that any failure to comply with the terms of the exemption notice could lead to legal consequences under the EPBC Act. Given the comprehensive nature of the EPBC Act, breaches could potentially result in civil penalties for non-compliance, which may include fines up to the maximum allowable under the Act, as well as criminal penalties if the breach is deemed to be of a serious nature. The exact penalties would depend on the specific breach and the provisions of the EPBC Act that are contravened. The Minister’s statement of reasons for this decision, available publicly, provides further context and justification for the exemption.