AELERT HUNTER REGION WORKSHOP

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• AELERT HUNTER REGION WORKSHOP
• Kieran Lynch
• Dept of Environment, Climate Change and Water

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Drafting conditions on legal instruments

• A unique form of written communication
• Applying legal and communication principles to
  legal conditions

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Upfront considerations to ensure quality
conditions

• Before you commence to draft a condition you
  should ask the following questions.
• Is a condition necessary to achieve environmental
  outcomes?
• What is the intent of the condition and will
  compliance with the condition achieve the intent?
• What will compliance (and non compliance) with
  the condition look like?
• Will it be possible to accurately assess
  compliance?
• Is the condition legally enforceable?

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1. A condition is a legal requirement and
failure to comply with the requirement is an
offence.

• Stock must not be grazed on the site except for
  biodiversity purposes during summer where the
  landowner must not stock more than 10 cattle for
  more than 10 consecutive weeks.
• All gas collection hoods must be constructed of
  galvanised iron.

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(No Transcript)
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2. A condition should be an instruction
requiring an action to be carried out, or
should set limits on what can be done .
The Department may accept validation of the
surplus fill by another organisation provided
that the validation reports are submitted on a
monthly basis.
Avoid the word MAY use MUST
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Samples of the excavated deposits should be
taken for possible future environmental analysis.
Avoid the word SHOULD use MUST
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3. A condition should be as concise as possible.
The Permit holder must prepare an Annual System
Performance and Review Report containing details
of performance with respect to all operational,
monitoring, administration, reporting,
resourcing, staffing, complaints handling,
pollution studies and other relevant and
appropriate matters undertaken at the premises.
This report must include details of all air
emissions, discharges to water, land application
of effluent and compliance with limits.
If this condition is complied with the report
will contain a wide range of information not
related to the environmental outcome.
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4. A condition should not be ambiguous.
The licensee must retain the utilisation area
A thorough assessment of site contamination
including soil and ground water analysis will be
carried out prior to construction on the site
the holder of the permit must consult with the
local Aboriginal community regarding the work
covered by the permit.
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• All trucks carrying dry bulk material that are
  loaded on the premises must be loaded and
  operated so as to prevent spillage of any
  material from the load which generates dust.

Sampling required twice yearly
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• For the daily visible emissions survey, valid
  results shall be obtained at all times, apart
  from times when the surveys can not be carried
  out due to circumstances beyond the licensees
  control.

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5. The licence/notice holder should be able to
comply with the condition.
Trucks transporting material from the premises
must be covered immediately after loading to
prevent windblown emissions and spillage. The
covering must be maintained until immediately
before unloading the trucks.
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6. A condition should be practical and
reasonable.
Salvage excavation operations should be
consistent with common transect, sample and
procedures already being undertaken by other
similar operations aiming to conduct
investigations of the material.
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7. A condition should not be overly
prescriptive
"Water sprays must be operated to suppress dust
emissions from crushers, screens and material
transfer points.
Why the hell cant we do it the way we want!!!
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• The straw in the dry (deep litter) pig sheds must
  be maintained at a depth of 300 mm at all times.
• All continuous monitoring equipment must be
  operated and maintained with the aim of achieving
  100 availability in each licence year. Where a
  monitoring device does not achieve 95
  availability, the licensee will report reasons
  and corrective actions taken to the EPA.

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8. Requirements should not go beyond our
legislative powers
"All vehicles used to haul coal at the site must
be fitted with reversing cameras and alarms
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9. A condition should not impose an unnecessary
responsibility on a third party
A soil monitoring program must be formulated in
consultation with NSW Agriculture. Audit
requirements The independence of the auditors
must be established to the satisfaction of the
Department of Planning (DoP)
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10. A condition should not re-state legislative
requirements.
The recipient must comply with section 55 and 56
of the Act in relation to the disposal of waste
at the site
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Practical issues to consider

• Issue the document to the correct person/entity
  and premises).
• Check references to other documents or standards
  are accurate.
• Use consistent terminology including the use of
  must. Avoid terms such and/or,
  approximately and etc.
• Ensure all legislative procedures and policy
  requirements are followed in a timely manner.
• Consider natural justice e.g. review of draft
  condition?
• Consider right of appeal and whether you have the
  power to extend/vary the conditions (if needed).

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• QUESTIONS AND WORKED EXAMPLES