Coalpac Coalpac Pty. Ltd. Invincible Colliery, Cullen

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

mailto:[email protected]

Coalpac Consolidation Project

Request for Varied Proposal 24 June 2013

Coalpac Pty Ltd


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 Pty Ltd


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 Pty Ltd


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 Pty Ltd


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,


Koala (Phascolarctos

Cinereus) F,W

Foraging,


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


Latham's Snipe

(Gallinago hardwickii) Grassland

Infrequent


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 Pty Ltd


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 Pty Ltd




Coalpac Pty Ltd




Coalpac Pty Ltd




Coalpac Pty Ltd



Request for Varied Proposal 24 June 2013 24 June 2013

Coalpac Pty Ltd




Coalpac Pty Ltd


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’.

http://corrigan.austlii.edu.au/au/legis/cth/consol_act/epabca1999588/s303bc.html#take

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Coalpac Pty Ltd


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.”


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Coalpac Pty Ltd


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 Pty Ltd


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 Pty Ltd


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.

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Coalpac Pty Ltd


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

Documents

Coalpac Coalpac Pty. Ltd. Invincible Colliery, Cullen