The Commonwealth Department of Industry, Innovation and Science (DIIS) has released draft changes to the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (Environment Regulations). These include the full publication of an environment plan (EP) on submission by the titleholder and on acceptance by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), and a formal public comment period on EPs for exploratory seismic and drilling activities.
The proposed amendments to the Environment Regulations1 (available here) are open for public comment until 16 November 2018.
Background to reform
The proposed changes are aimed at improving transparency in environmental decision-making in order to strengthen community confidence in the offshore regulatory regime. They follow a review by DIIS in 2016 of the consultation requirements under the Environment Regulations, and feedback received by NOPSEMA that the current transparency of its decision-making processes and practices is not meeting community expectations.2
To further improve transparency, National Energy Resources Australia (NERA) is developing reference cases which capture common EP content. A project initiated by NOPSEMA, the transition to reference cases is intended to provide approval certainty for titleholders while increasing transparency for stakeholders. The first reference case developed in 2017 considers the management of sewage, grey water and putrescible wastes and the impacts to water and sediment quality.3
Publication of environment plans
A titleholder is currently required to submit an EP to NOPSEMA for every proposed petroleum or greenhouse gas activity, and have the EP accepted by NOPSEMA before commencing the activity. The EP must set out how operational impacts and risks to the environment will be reduced to as low as reasonably practicable and an acceptable level. Failure by a titleholder to conduct operations in accordance with the approved EP may attract criminal and civil penalties.
It is proposed that the complete EP will be published on NOPSEMA’s website on two occasions. Publication will occur on submission by the titleholder and also on acceptance by NOPSEMA. Currently, only a summary of the EP is published on NOPSEMA’s website after the EP is submitted. The requirement for an EP summary will be removed if the proposed changes are enacted as the full EP will be published on submission and acceptance.
Completeness check
As part of the proposed changes, NOPSEMA will be required to undertake a ‘completeness check’ within 5 business days of receiving the EP to determine whether the content requirements in Division 2.3 of the Environment Regulations have been broadly addressed. NOPSEMA will not publish the EP upon receipt of the document unless it is satisfied that there is material apparently addressing each of the content requirements. It will be possible for the titleholder to modify the EP and resubmit the document to NOPSEMA if the titleholder is advised by the regulator that the EP does not satisfy this threshold. There is no limit on the number of times that a titleholder may submit an EP and no additional fee will be imposed.
Exploration activities
The proposed changes will introduce a public comment period for EPs in relation to exploratory seismic and drilling activities. These activities are defined in the draft changes as activities relating to:
- Drilling (including drilling undertaken on an appraisal basis) for the purposes of exploration for petroleum, exploration for a potential greenhouse gas storage formation, or exploration for a potential greenhouse gas injection site; or
- A seismic survey for any purpose.
It follows that an EP will be caught by the new public comment requirement if one or more of the proposed petroleum or greenhouse gas activities include exploration drilling, drilling on an appraisal basis or a seismic survey. The definition does not extend to small scale activities, such as geotechnical surveys.
It is proposed that a 30 day public comment period will commence from publication of the EP on NOPSEMA’s website (following the completeness check). The public comment period will be in addition to the existing requirement to undertake consultation with relevant stakeholders during the development of an EP for exploratory seismic or drilling activities.
A public comment period already exists in relation to EPs for petroleum development, production, construction or infrastructure activities that form part of an offshore project proposal (OPP). An OPP accepted by NOPSEMA (which assesses potential environmental impacts and risks over the life of large-scale projects) must be in place for the project as a whole before the submission and assessment of individual EPs for the component activities.
Sensitive information
When seeking feedback during the development of an EP, it is proposed that titleholders will be required to provide stakeholders with the opportunity to indicate if there is any sensitive information that should not be published. As a result, not all information in an EP submitted by a titleholder will be published by NOPSEMA. Information that is proposed to be excluded from publication includes:
- Correspondence and transcripts of consultation conducted during stakeholder consultation prior to the submission of the EP;
- Any information that has been identified during the development of the EP as inappropriate to be published due to the sensitive nature of the information; and
- Personal information.
The above information must be provided to NOPSEMA as a confidential attachment to the EP.
Time-frame for environment plan assessment
Currently, NOPSEMA is required to make a decision in relation to acceptance of an EP within 30 calendar days from the date the EP is submitted. Under the proposed changes, the 30 day assessment period will commence:
- For an EP for exploratory or drilling activity – on the day NOPSEMA receives both the EP and the statement of response to comments received during the public comment period; and
- For all other EPs – on the day NOPSEMA publishes the EP on the website following the completeness check.
Complete EP to be submitted
Following changes to the Environment Regulations in 2014, NOPSEMA is able to request additional information from a titleholder during the assessment of an EP. A titleholder may provide this information to NOPSEMA as a supplement to the EP without the need to amend the EP. Under the proposed changes, the titleholder must submit an amended EP with the additional information included, whether or not the titleholder also provides the information separately. This means that NOPSEMA will have the most recent version of the EP which, on acceptance, is in a form suitable for publication.
Transitional arrangements
In order to minimise regulatory burden during transition to the new requirements, DIIS has proposed the following arrangements:
- An EP that has been accepted prior to the commencement of the changes, will continue in force and will not be subject to the new requirements;
- An EP that is revised under regulation 17, 18 or 19 of the Environment Regulations after the changes are introduced, will be subject to the publication and public comment requirements; and
- An EP that has been submitted to NOPSEMA for assessment before the changes have commenced, where the titleholder has not received a decision from NOPSEMA, will continue to be assessed under the requirements previously in force.
Please contact Charmian Barton if you would like assistance with preparing a submission to NOPSEMA in relation to the proposed changes. The deadline for submissions to DIIS is 16 November 2018.
This article was written by Charmian Barton, Partner.
| Charmian Barton
P: +61 8 9420 1573 E: cvbarton@hwle.com.au |
1See Offshore Petroleum and Greenhouse Gas Storage (Environment) Amendment (Consultation and Transparency) Regulations 2018 (Cth).
2https://www.nopsema.gov.au/environmental-management/stakeholder-engagement-and-transparency/ (visited 17 October 2018).
3https://referencecases.nera.org.au/ (visited 17 October 2018).