Ref: 130642 Coalpac Section 156 Letter.doc Page 1
24 June 2013
The Honourable Tony Burke MP
Minister for Sustainability Environment, Water, Population and Communities
Department of Sustainability, Environment, Water, Population and Communities
GPO Box 787
CANBERRA ACT 2601
Attention: Ms Kate Gowland, NSW Section - South East Australia
Dear Minister,
COALPAC CONSOLIDATION PROJECT CONTROLLED ACTION EPBC No 2010/5776
REQUEST FOR ‘VARIED PROPOSAL’
1. BACKGROUND
Coalpac Pty Limited (Coalpac) is the ‘designated proponent’ in respect of the ‘controlled
action’ (EPBC No 2010/5776) for the Coalpac Consolidation Project proposal (the Project).
Coalpac submitted a Request for Director-General’s Requirements (DGRs) for the Project to
the NSW Department of Planning and Infrastructure (DP&I) in October 2010 for a new
Project Approval under Part 3A of the Environmental Planning and Assessment Act 1979
(NSW) (EP&A Act). This request was supported by a Preliminary Environmental
Assessment prepared in accordance with the requirements of Part 2 in Schedule 2 of the
Environmental Planning and Assessment Regulation 2000. In response to this request,
DGRs were provided by DP&I on 16 December 2010 and the Project was designated
Application Number 10_0178.
As the Project was considered to affect Matters of National Environmental Significance
(MNES) the ‘original proposal’ was submitted to your Department under the Environment
Protection Biodiversity Conservation Act 1999 (EPBC Act) on 22 November 2010 resulting in
the proposal “To extend the existing Cullen Valley Mine and Invincible Colliery operations
and construct and upgrade associated infrastructure northwest of Lithgow New South Wales;
and as described in the referral received under the EPBC Act on 13 December 2010”.
Coalpac Pty. Ltd. Invincible Colliery, Castlereagh Highway, Cullen Bullen, NSW 2790, Australia.
Telephone: +61 2 6359 0600 Facsimile: +61 2 6359 0608 Email: [email protected]
Proprietors of Invincible Colliery
and Cullen Valley Mine
Coalpac
ABN 91 003 558 914
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 2
This proposal was determined by Notification dated 24 January 2011 under Section 75 and
Section 87 of the EPBC Act to be a ‘controlled action’ as it was considered that it was likely
to have a significant effect on:
“Listed threatened species and communities (sections 18 & 18A); and
Listed migratory species (sections 20 and 20A)”.
The Notification advised that the Project was a ‘controlled action’ the consequence being that
“The project will require assessment and approval under the Environment Protection and
Biodiversity Conservation Act 1999 before it can proceed”.
The Notification also advised that it was determined that “The project will be assessed by
accredited assessment under Part 3A of the NSW Environmental Planning and Assessment
Act 1979”.
Supplementary DGRs were issued by DP&I to incorporate the requirements of the
Department of Sustainability, Environment, Water, Population and Communities (SEWPaC)
on 19 April 2011.
The Project was on public exhibition between 10 April 2012 and 1 June 2012 to which
Coalpac, as requested by the NSW Director General of Planning and Infrastructure,
responded as requested by him under Section 75H of the EP&A Act.
On 14 December 2012 the NSW Planning and Assessment Commission (PAC) provided its
report on the Project to the Minister for Planning and Infrastructure as had been requested by
him under Section 23D(1)(b)(ii) of the EP&A Act on 22 July 2012.
On 8 March 2013 Coalpac provided its response to the PAC report to the Department as
requested by the Department on 18 December 2012 and in which Coalpac proposed
variations to the Project (‘varied proposal’) as described in Section 2 of this letter and which
are assessed in the ‘Coalpac Consolidation Project Preferred Project Report’ (Hansen Bailey,
2013).
The ‘varied proposal’ results in changes to the Project and its impacts as compared to the
‘original proposal’ determined by you as a ‘controlled action’ which results in this request to
you by Coalpac under Section 156A of the EPBC Act for you to accept a ‘varied proposal’ for
the ‘controlled action’.
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 3
2. VARIED PROPOSAL
The ‘varied proposal’ involves changes to the ‘original proposal’ associated with a
modification of the Project Disturbance Boundary to reflect a reduction in the proposed open
cut mining footprint.
2.1 PROJECT DISTURBANCE BOUNDARY
Figure 1A and Figure 1B illustrate the revised layout of the ‘varied proposal’. The changes
to the Project Disturbance Boundary were made to reflect the reductions in the open cut
mining footprint sought for the ‘varied proposal’. These reductions were made to reduce
impacts to ecology in key areas and to minimise the potential for indirect blasting impacts to
sandstone pagodas, escarpments and outcrops.
The Project Disturbance Boundary (shown as an orange line) from the ‘original proposal’ has
been altered to reflect the above changes to the open cut mining footprint (shown as a
dashed blue line) on Figure 2.
In particular, the proposed mining activities within the Project Disturbance Boundary of the
‘varied proposal’ include a reduction in impacts to the following MNES:
Listed threatened species and communities (s18 and 18A); and
Listed migratory species (sections 20 and 20A).
MNES relevant to the varied proposal are summarised below in Table 1 and Table 2, with
the mapping of vegetation communities and threatened flora and fauna species presented in
Figure 3 and Figure 4, respectively.
MNES in Table 3 were noted in the ‘original proposal’ and as being relevant to the
determination of the Project as a ‘controlled action’ and in the Notification dated 24 January
2011. The extent of Critically Endangered Ecological Communities (CEEC) located within
the Disturbance Boundary is illustrated in Figure 3.
The variations to the ‘original proposal’ result in a reduction in impacts to MNES, and as such
that the “character of the varied proposal is substantially the same as the character of the
original proposal”. Generally, the ‘varied proposal’ remains a proposal to extend the existing
Cullen Valley Mine and Invincible Colliery operations and construct and upgrade associated
infrastructure northwest of Lithgow in New South Wales.
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 4
Table 1
MNES of Relevance to the Varied Proposal
MNES Preferred Habitat (Vegetation
Community/ Vegetation Type) Used For Presence
Original Proposal Area of
Impact (ha)
Varied Proposal Area
of Impact (ha)
Change to Area of
Impact (ha)
Ecological Communities
Capertee Rough-barked Apple - Red Gum -
Yellow Box Grassy Woodland - - Known 16.2 15.0 -1.3
Capertee Rough-barked Apple - Red Gum -
Yellow Box Grassy Woodland Derived Native
Grassland
- - Known 0.3 0.3 Nil
Flora Species
Capertee Stringybark (Eucalyptus cannonii) 13, 20, 32, 34, 37, 35, 33 - Known 278.0 204.0 -73.9
Silver-leaved Mountain Gum (Eucalyptus
pulverulenta) 30, 32 - Potential 482.9 370.0 -113.0
Clandulla Geebung (Persoonia marginata) 32 - Known 3.1 0.0 -3.1
Grey Grevillea (Grevillea obtusiflora
ssp. Obtusiflora) F, W - Potential 835.6 682.1 -153.5
Grey Grevillea (Grevillea obtusiflora
ssp. Fecunda) F, W - Potential 835.6 682.1 -153.5
Wollemi Mint Bush (Prostanthera
cryptandroides subsp.
Cryptandroides)
43, 32, 20 - Potential 835.6 682.1 -153.5
Evans Grevillea (Grevillea evansiana) 43, 30 - Potential 370.5 295.2 -75.3
Fauna Species
Swift Parrot (Lathamus discolor) F, W Foraging Potential 834.6 682.1 -152.5
Regent Honeyeater (Xanthomyza phrygia) F, W Foraging Potential 834.6 682.1 -152.5
Large-eared Pied Bat (Chalinolobus dwyeri) S ,F, W Foraging Known 834.6 682.1 -152.5
Spotted-tail Quoll (Dasyurus maculatus) S, F, W Foraging, den,
breeding Potential 445.0 371.1 -73.9
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 5
MNES Preferred Habitat (Vegetation
Community/ Vegetation Type) Used For Presence
Original Proposal Area of
Impact (ha)
Varied Proposal Area
of Impact (ha)
Change to Area of
Impact (ha)
Brush-tailed Rock Wallaby (Petrogale
penicillata) S, F, W
Foraging, den,
breeding Potential 142.2 124.2 -18.0
Koala (Phascolarctos
Cinereus) F,W
Foraging,
breeding Potential 142.16 124.21 -17.95
Broad-headed Snake (Hoplocephalus
bungaroides)
S, F, W (Summer habitat only, winter
habitat being avoided entirely) Foraging Potential 835.6 682.1 -153.5
White-throated Needletail (Hirundapus
caudacutus) S, F, W Flyover only Potential 834.6 682.1 -152.5
Fork-tailed Swift (Apus pacificus) S, F, W Flyover only Potential 834.6 682.1 -152.5
Eastern Great Egret (Ardea alba) Grassland Infrequent
foraging Potential 123.4 79.7 -43.7
Cattle Egret (Ardea ibis) Grassland Infrequent
foraging Potential 123.4 79.7 -43.7
Latham's Snipe
(Gallinago hardwickii) Grassland
Infrequent
foraging Potential 123.4 79.7 -43.7
Rainbow Bee-eater (Merops ornatus) S,F,W Infrequent
foraging; flyover Potential 834.58 682.09 -152.49
Satin Flycatcher (Myiagra cyanoleuca) F, W Infrequent
foraging; flyover Known 834.6 682.1 -152.5
Rufous Fantail (Rhipidura rufifrons) S,F,W Infrequent
foraging; flyover Potential 834.6 682.1 -152.5
Black-faced Monarch
(Monarcha melanopsis) F, W Flyover only Potential 834.6 682.1 -152.5
S = Shrubland, W = woodland, F = Forest
* = native vegetation only
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 6
Table 2
Vegetation Communities within the ‘Varied Proposal’ Project Disturbance Boundary
Community
Code Community Name
Area of Habitat in ‘Original’ Project
Disturbance Boundary (ha)
Area of Habitat in ‘Varied’ Project
Disturbance Boundary (ha)
Impact
Reduction (ha)
Impact
Reduction (%)
MU11 Tableland Gully Snow Gum - Ribbon Gum Grassy Forest 0.0 0.0 n/a n/a
MU11 DNG Tableland Gully Snow Gum - Ribbon Gum Grassy Forest Low Diversity Derived Native
Grassland 93.9 91.2 2.8
3%
MU13 Tableland Gully Ribbon Gum Blackwood Applebox Forest 15.0 15.0 0.0 0%
MU13a Tableland Gully Ribbon Gum Blackwood Applebox Forest Derived Native Grassland 16.2 15.0 1.3 8%
MU20 Capertee Rough-barked Apple - Red Gum - Yellow Box Grassy Woodland (EPBC) 0.3 0.3 0.0 0%
MU20 DNG Capertee Rough-barked Apple - Red Gum - Yellow Box Grassy Woodland Derived Native
Grassland (EPBC) 0.1 0.1 0.0
0%
MU20a Capertee Rough-barked Apple - Red Gum - Yellow Box Woodland: non grassy 2.0 2.0 0.0 0%
MU20b Capertee Rough-barked Apple Red Gum Yellow Box Woodland Derived Native
Grassland (TSC EEC) 370.4 295.2 75.3
20%
MU30 Exposed Blue Mountains Sydney Peppermint - Silvertop Ash Shrubby Woodland 112.5 74.8 37.7 34%
MU32 Tableland Scribbly Gum – Narrow-leaved Stringybark Shrubby Open Forest 13.0 0.0 13.0 100%
MU33 Tableland Broad-leaved Peppermint - Brittle Gum - Red Stringybark Grassy Woodland 42.7 0.0 42.7 100%
MU33 DNG Tableland Broad-leaved Peppermint - Brittle Gum - Red Stringybark Grassy Woodland
Low Diversity Derived Native Grassland 185.8 182.9 2.9
2%
MU34 Tableland Slopes Brittle Gum – Broad-leaved Peppermint Grassy Forest 50.1 49.2 0.9 2%
MU34 DNG Tableland Slopes Brittle Gum – Broad-leaved Peppermint Grassy Forest Derived Native
Grassland 18.9 18.0 0.9 5%
MU35 Tableland Gully Mountain Gum - Broad-leaved Peppermint Grassy Forest 12.4 12.4 0.0 0%
MGBlP DNG Tableland Gully Mountain Gum Broad-leaved Peppermint Grassy Forest Derived Native
Grassland 0.9 0.9 0.0 0%
MGBlP DNG Tableland Gully Mountain Gum Broad-leaved Peppermint Grassy Forest Low Diversity
Derived Native Grassland 23.7 5.1 18.7 79%
MU37 Cox's Permian Red Stringybark - Brittle Gum Woodland 0.1 0.0 0.1 100%
MU43 Pagoda Rock Sparse Shrubland 0.0 0.0 n/a n/a
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 7
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 8
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 9
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 10
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 11
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 12
Table 3
Impacts to MNES
Vegetation Type Original
Proposal (ha)
Varied Proposal
(ha)
Change in
Impacts (ha)
Capertee Rough-barked Apple - Red Gum - Yellow Box
Grassy Woodland 16.2 14.9 -1.3
Capertee Rough-barked Apple - Red Gum - Yellow Box
Grassy Woodland Derived Native Grassland 0.3 0.3 Nil
Capertee Stringybark (Eucalyptus cannonii) 278.0 204.1 -73.9
Clandulla Geebung (Persoonia marginata) 3.1 0.0 -3.1
Total 297.6 219.3 -78.3
3. ENTITLEMENT TO REQUEST FOR VARIED PROPOSAL
Section 156A (1) states that:
“If:
(a) a proposal (the original proposal) by a person to take an action has been referred
to the Minister under Division 1 of Part 7; and
(b) after the referral is made, the person wishes to change the original proposal;
the person may, subject to subsection (2), request the Minister to accept a variation
(a varied proposal) of the original proposal”.
None of the circumstances referenced in section 156 A (2) have occurred.
Under Section 156A (1) of the EPBC Act, Coalpac requests that the Minister accept that the varied
‘original proposal’ as determined in the Notification dated
24 January 2011 be accepted as a ‘varied proposal’.
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 13
4. LEGISLATIVE PROVISIONS FOR VARIATION
Section 156A (3) of the EPBC Act states that
“A request under subsection (1) must:
(a) be made in a way prescribed by the regulations; and
(b) include the information prescribed by the regulations.”
Section 156B (2) of the EPBC Act states that:
“The Minister must not decide to accept the varied proposal unless the Minister is satisfied
that the character of the varied proposal is substantially the same as the character of the
original proposal. This subsection does not limit the matters the Minister may consider in
deciding whether or not to accept the varied proposal.“
Section 156B (3) of the EPBC Act states that:
“In considering, for the purposes of subsection (2), whether or not the character of the
varied proposal is substantially the same as the character of the original proposal, the
Minister must have regard to the change (if any) in:
(a) the nature of the activities proposed to be carried out in taking the action; and
(b) the nature and extent of the impacts (if any) the action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each provision of Part 3”.
Regulation 5.08 of the Environment Protection and Biodiversity Conservation Regulations 2000
(EPBC Regulation) states that:
“For paragraph 156A (3) (b) of the Act, a request under subsection 156A (1) of the Act
must contain the following information:
(a) details of the proposed variation to the action;
(b) the reasons for the proposed variation;
(c) how the impacts of the proposed variation on matters of national environmental
significance compare with those of the original proposal;
(d) if applicable, the impacts of the proposed variation on matters of national
environmental significance not considered in the referral or assessment of the
original proposal;
(e) if applicable, alternatives, mitigation measures and offsets to compensate for
additional impacts on matters of national environmental significance.”
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 14
5. CONSIDERATION OF REQUEST
The information supporting compliance with the Regulation 5.08 of the EPBC Regulation to
support the application for the ‘varied proposal’ is described below.
5.1 NATURE OF THE ACTIVITIES
The “character of the varied proposal is substantially the same as the character of the original
proposal. The proposed action remains open cut and highwall coal mining using the same
methods, at the same rate, over a similar (albeit smaller) area and over the same timescale.
5.2 NATURE AND EXTENT OF THE IMPACTS
The nature of the impacts of the ‘varied proposal’ is unchanged from the nature of the impacts from
the ‘original proposal’.
The extent of the potential impacts of the ‘varied proposal’ is decreased by the areas indicated in
Table 1.
The character of the ‘varied proposal’ is substantially the same as the character of the proposal as
originally referred to the Minister being open cut and highwall coal mining using existing and new
infrastructure.
The scale of operations, overburden/coal ratios, nature of the resource, environmental and
economic considerations and all other features of the ‘varied proposal’ are similar to those of the
‘original proposal’.
The ‘varied proposal’ continues as an open cut and highwall coal mine in the northwest of Lithgow
NSW, extracting up to 3.5 Million tonnes per annum Run of Mine coal.
The indicative layout of the ‘varied proposal’ for the Project as shown in Figure 1 is generally
consistent with that presented in the ‘original proposal’.
The environmental impacts remain the same in character but would be reduced in extent due to
the reduction of the Project Disturbance Boundary and reduced total coal extraction.
The ‘varied proposal’ will result in reduced impacts to MNES as summarised in Table 3.
5.3 DETAILS OF THE PROPOSED VARIATION TO THE ACTION
The ‘varied proposal’ includes the following changes by Modification to the Project Disturbance
Boundary reducing the total area to be impacted for the ‘varied proposal’.
The ‘varied proposal’ will result in a reduction of the total area of impacts by 196.1 ha, including a
reduction of 1.25 ha of critically endangered woodland (Capertee Rough-barked Apple - Red Gum
- Yellow Box Grassy Woodland) as shown on Table 3 and Figure 3.
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 15
5.4 REASONS FOR THE PROPOSED VARIATION
These changes for the ‘varied proposal’ are required:
To reflect modifications to the Project Disturbance Boundary for the ‘varied proposal’ which
were made to reduce impacts to ecology, and sandstone pagodas, escarpments and
outcrops.
5.4.1 How the impacts of the proposed variation on MNES compare with those of the
original proposal
The changes in impacts to MNES predicted for the ‘varied proposal’ are summarised in
Table 3.
5.4.2 If applicable, the impacts of the proposed variation on MNES not considered in the
referral or assessment of the original proposal
The variation of the proposal will not result in impacts to MNES not considered in the ‘original
proposal’. It will result in a reduction in impacts.
One species has been detected within the Project Boundary since the submission of the Referral
(2010); Clandulla Geebung (Persoonia marginata). A total of 3.1 ha of habitat for the Clandulla
Geebung (Persoonia marginata) occurred within the Project Disturbance Boundary of the ‘original
proposal’. The Project Disturbance Boundary for the ‘varied proposal’ has been modified to avoid
all known individuals and habitat for this species within the Project Boundary, representing a
100% reduction in impacts to this species.
As shown in Table 3 a total of 15.2 ha of critically endangered Box Gum Woodland (comprising
the Capertee Rough-barked Apple - Red Gum - Yellow Box Grassy Woodland and Capertee
Rough-barked Apple - Red Gum - Yellow Box Grassy Woodland Derived Native Grassland
vegetation communities) is proposed to be impacted by the ‘varied proposal’.
As a result of the modification of the Project Disturbance Boundary in the ‘varied proposal’, this
area has been reduced by 1.3 ha from impact area of 16.5 ha of critically endangered vegetation
in the ‘original proposal’.
The ‘varied proposal’ will result in a reduction of impacts to threatened and migratory species
known and with a potential to occur within the Project Boundary. The ‘varied proposal’ will result
in a reduction of impact of 196.1 ha. A total of 761.9 ha of vegetation will be impacted by the
‘varied proposal’, reduced from 958 ha associated with the ‘original proposal’.
This constitutes an overall reduction in impact area of 20.5%. This reduction in the Project
Disturbance Boundary for the ‘varied proposal’ has been undertaken to reduce impacts to
threatened species utilising habitat within the Project Boundary.
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 16
5.4.3 If applicable, alternatives, mitigation measures and offsets to compensate for
additional impacts on MNES
As the area of impact for the ‘varied proposal’ has been decreased, it is not considered necessary
to modify the proposed mitigation and offset measures.
A summary of the currently proposed mitigation measures and offsets can be found within the
Coalpac Consolidation Project Preferred Project Report (PPR). Chapter five of the ecological
impact assessment appended to that report (Cumberland Ecology, 2013) lists mitigation measures
proposed to be implemented for threatened species and communities known or considered likely
to occur within the Project Boundary. Chapter six of the Cumberland Ecology report details the
Biodiversity Offset Strategy. The PPR can be sourced at
http://majorprojects.planning.nsw.gov.au/index.pl? action=view_job&job_id=4332.
The Biodiversity Offset Strategy has been prepared to account for all impacts to threatened
species and ecological communities listed under the EPBC Act and NSW Threatened Species
Conservation Act 1995 (TSC Act). The Biodiversity Offset Strategy has been devised to comply
with the current principles for offsetting set out by SEWPaC (DEWR, 2007) and by OEH (DECC
(NSW), 2008a).
6. REQUEST AND CONCLUSION
The Minister can be “satisfied that the character of the varied proposal is substantially the same as
the character of the original proposal”.
Coalpac seeks that the Minister accept the ‘varied proposal’ being satisfied that the character of
the varied proposal is substantially the same as the character of the ‘original proposal’ as is
required by Section 156B (2).”
7. DETERMINATION
It is noted that Section 156B (1) of the EPBC Act states that:
“Within 20 business days after receiving a request under subsection 156A(1) to accept a varied
proposal to take an action, the Minister must decide whether or not to accept the varied
proposal”.
Please advise if any further information is required.
Coalpac Consolidation Project
Request for Varied Proposal 24 June 2013 24 June 2013
Coalpac Pty Ltd
Ref: 130642 Coalpac Section 156 Letter.doc Page 17
8. NOTICE
It is also noted that Section 156E of the EPBC Act requires the Minister to give a Notice of
Decision as therein provided. Coalpac looks forward to your determination.
Should you have any queries in relation to this letter, please contact me on 02 6359 0600.
Yours faithfully
COALPAC PTY LIMITED
Bret Leisemann
Chief Development Officer
cc Mike Young, NSW DP&I