The amendments to the Mining Act 1992 and new Mining Regulation 2010 improve environmental regulation of the mining industry by:

• expanding the Government’s powers to regulate mining activities, to ensure sound environmental and rehabilitation outcomes;
• introducing audit powers to promote compliance;
• requiring a rehabilitation cost estimate and disclosure of an applicant’s environmental performance record in certain applications for authorisations; and,
• enabling consistency of approach with other environmental regulators.

If mining companies do not carry out satisfactory rehabilitation, is the Department has a suite of strengthened powers available to ensure that acceptable rehabilitation outcomes are achieved.

NOTE:  A number of environmental provisions are not commencing on 15 November 2010.  Commencement information is provided under each of the following headings.

Regulatory framework

Along with the Mining Act 1992, there are two main pieces of legislation that regulate different aspects of environmental impacts of mining.  These are:

The Environmental Planning and Assessment Act 1979 (EP&A Act)requires up front environmental assessment of new mining projects and expansion of existing mining projects.  Additional conditions may be imposed on approvals for new projects or expansion of existing projects to minimise potential environmental impacts.

The Protection of the Environment Operations Act 1997 (POEO Act) regulates pollution and waste from mines.

The amendments to the Mining Act 1992 will strengthen the enforcement provisions to be consistent with provisions in other key pieces of environmental legislation.  When fully commenced, the amendments will also streamline environmental regulation by enabling decision makers to have regard to environmental assessments and decisions of other government agencies when considering the environmental impact of exploration and mining activities.  The amendments will benefit industry by providing a clear and streamlined legislative framework in which to operate, and will reduce duplication as explorers and miners should not have to prepare the same or similar material for a number of agencies.
To ensure consistency within NSW legislation, the EP&A Act definition of ‘environment’ will be adopted to broaden the application of the environmental provisions under the Mining Act 1992. This definition includes “all aspects of the surroundings of humans, whether affecting a human as an individual or in his or her social groupings”.  This means that a wider range of possible impacts can be addressed by mining title conditions.

Environmental protection and rehabilitation conditions

Proposed for commencement in 2011

In order to improve environmental management and rehabilitation outcomes for mining and exploration activities, pending amendments to the Mining Act 1992 will broaden the conditioning powers for environmental protection and rehabilitation conditions to be placed on authorisations.  For example, a condition may be imposed on an authorisation that requires the holder to carry out activities for:

• the conservation and/or protection of the environment including off-title land and water management;
• the rehabilitation of land or water;
• afforestation; and,
• environmental offsets.

Conditions can also be imposed which relate to off-title land and water management.

For further information, see Divisions 1 and 2 of Part 11 of the Mining Amendment Act 2008, scheduled to be inserted into the Mining Act 1992   in 2011.

Reporting conditions

Proposed for commencement in 2011

To enhance environmental reporting requirements, pending amendments to the Mining Act 1992 will provide a specific power to impose reporting conditions, with a clear purpose and defined scope.  For example, a condition may be imposed on an authorisation requiring the holder to submit an Environmental Management Report which will provide details about a company’s compliance with conditions.  The frequency of reporting will depend on the nature, complexity and environmental impact of activities being carried out.

Conditions may also be imposed on an authorisation to require the holder to report on the particulars of any non-compliance as well as any action taken, or to be taken, to prevent any recurrence, or to mitigate the effects of that non-compliance.

For further information, see Divisions 1 and 2 of Part 11 of the Mining Amendment Act 2008, scheduled to be inserted into the Mining Act 1992   in 2011.

Rehabilitation

Proposed for commencement in 2011

Pending amendments to the Mining Act 1992 will strengthen the Department’s wide range of powers for regulating rehabilitation. These powers will include:

• a requirement on all mining leases to comply with an approved Rehabilitation and Environmental Management Plan (REMP);
• ability to determine and hold security deposits for rehabilitation of off-title impacts resulting from mining and exploration activities; and,
• enhanced enforcement powers to ensure titleholders comply with their obligations.

Under the amended Mining Act 1992, every mining lease will be subject to the condition that the holder must comply with a REMP approved by the Director-General in carrying out any activities authorised by the lease.  A REMP condition may also be imposed on other authorisations, such as exploration licences, assessment leases and minerals claims, requiring the holder to submit and comply with an approved REMP.  Once commenced, a REMP will replace the requirement for a Mining Operations Plan and Subsidence Management Plan.

The REMP will be the primary regulatory tool of the NSW Government to ensure that exploration and mining operations are carried out in a manner that will enable effective environmental management and rehabilitation of disturbed land and water.

The Department will have the power to issue directions to a titleholder to remediate damage caused outside authorisation areas.  This is particularly relevant for underground coal mining, where the holder of a subsurface title causes subsidence impacts to the surface environment.

For further information, refer to Division 5 of Part 11 of the Mining Amendment Act 2008, to be inserted into the Mining Act 1992   in 2011.

Securities

Commencement from 15 November 2010

Previously, security deposit requirements were located throughout the Mining Act 1992.  From 15 November 2010, the Mining Amendment Act 2008 will consolidate security deposit requirements within a new part (Part 12A) of the Mining Act 1992.

Part 12A clarifies the purpose of security deposit conditions and the form of the security deposit.  It also identifies the circumstances in which a security deposit may be claimed and used by the Department.

The Mining Regulation 2010 requires a rehabilitation cost estimate to be included in certain applications, such as renewals and transfers.  The rehabilitation cost estimate is the estimate of the existing rehabilitation liability arising from exploration or mining activities already carried out and the rehabilitation liability arising from proposed future activities. 

This formalises the previous policy approach.

The Rehabilitation Security Deposit Policy (EDP11) outlines the Department’s requirements for rehabilitation security deposits and rehabilitation cost estimates.  This policy requires titleholders to submit security deposits which cover the full cost of rehabilitation in the event that a titleholder defaults on their rehabilitation obligations.

For more information, see:

• Part 12A of the Mining Act 1992
• Mining Regulation 2010
• EDP11: Rehabilitation Security Deposit Policy
• ESG1: Rehabilitation Cost Estimate Guidelines

Environmental performance records

Commencement from 15 November 2010

Under the Mining Regulations 2010, application requirements for grant or transfer of an authority will require the environmental performance record of the titleholder to be considered to ensure that only those companies with satisfactory environmental credentials are provided with rights to minerals.
For more information, see:

• Mining Act 1992
• Mining Regulation 2010

Derelict mines

Commencement from 15 November 2010

The Mining Amendment Act 2008 for the first time introduces and defines the term “derelict mine site” in the Mining Act 1992.  The amendments also establish a Derelict Mines Fund.  Prior to these amendments, the existence and management of derelict mines was not provided for by statute.
For more information, see:

• Mining Act 1992
• Mining Regulation 2010
• Derelict Mines Program

Auditing

Commencement from 15 November 2010

New provisions will enable mandatory audits of mining operations to be carried out by accredited auditors.  Audits will provide an independent assessment of compliance with mining operations against conditions of an authorisation. The amendments also encourage greater levels of self-regulation via voluntary audits, thus providing a robust regulatory framework to improve industry standards and encourage best practice.

Documents prepared as part of a voluntary audit are considered to be “protected” and ingeneral cannot be used by the Department for enforcement purposes.

For further information, see:

• Mining Act 1992 
• Mining Regulation 2010 
• Frequently asked questions.