New WHS Mines and Petroleum regulation comes into effect in NSW

The Work Health and Safety (Mines and Petroleum Sites) Regulation 2022 commenced on 1 September 2022. The Regulation is a remake of the Work Health and Safety (Mines and Petroleum Sites) Regulation 2014, which lapsed on 1 September, in accordance with NSW subordinate legislation laws. Among other things, the Regulation implements some of the recommendations of the 2020 Statutory Review into Work Health and Safety (Mines and Petroleum Sites) Laws by Kim Bills. These are designed to establish a modern work health and safety system that aligns with developments in industry best practice and the features of the mining industry in NSW. The recommendations also aim to improve clarity and transparency for industry and the Resources Regulator, and improve the flexibility of how the regulation is applied.

The remade regulation includes a change in drafting style to reference ‘sections’ instead of ‘clauses’; in addition, the remade regulation also includes a range of reforms. These include exhaust emissions and fuel standards in underground coal mines (Section 56), which standardises emission sampling and analysis requirements across all underground mines, not just coal mines. This is consistent with the MDG29 guideline for managing diesel pollutants in underground environments.

The new regulation also includes reforms to the use of plant in hazardous zones such as coal faces in underground coal mines (Section 81), removing reference to “Departmental approved plant” and enabling a six-year transition to new items of plant.

The new regulation also includes high-risk activity notification requirements in Schedule 3 for the commissioning of winding systems or booster fans that require registration; constructing petroleum wells; and raise bore activities.

The new regulation expands the requirement to sample airborne dust to include non-coal mines where respirable crystalline silica has been identified as a hazard (Section 89 and Schedule 6). The new regulation also changes the coal and non-coal mine minimum worker exposure sampling requirement for airborne dust from “a period of at least five hours” to “minimum of 80% of a shift”. The regulation also captures respirable quartz and requires that air samples be tested for silica at all applicable mines.

The new regulation also requires emergency plans to address recommendations made by the emergency service organisations consulted in the preparation of the plan (Section 92). The regulation also expands the accessible emergency exit requirements to all extraction operations, not just “coal extraction or stopping operations” (Section 99).

The regulation has also introduced additional reporting requirements for exceedances of certain airborne contaminants, including carbon dioxide, diesel particulate matter, and inhalable dust (Section 124). The new regulation also clarifies that obligations to notify relate to exposure of a person to atmospheric concentrations of carbon dioxide, dust and diesel particulate matter with respect to the time-weighted average in Section 42 or the Workplace Exposure Standard for Airborne Contaminants.

Per the new regulation, mine operators must now consider the risk of rock, coal or related pressure bursts in principal hazard management plans to manage risks of ground or strata failure (Schedule 1). The new regulation removes oxygen candles from the list of prohibited equipment in refuge chambers (Schedule 4), and requires that onsite emergency resources include personal protective equipment (PPE) regardless of the incident type (Schedule 7).

The new regulation also includes supervising and monitoring the installation, commissioning, maintenance and repair of electrical plant and installations at the mine (Schedule 10), and includes an alternative requirement for the use of particular cables in hazardous zones where the methane concentration is <1.25% vol (Section 83). Plant in an opal mine must also be registered, per Section 187 of the new regulation, with prescribed safety requirements for winding systems.

The regulation also includes a definition of a “tier-3 quarry”, which provides exemptions from certain provisions for low-risk mining operations. The new regulation also exempts opal mines from needing to prepare a ventilation plan (Sections 178 and 180). Schedule 10 Part 2 of the new regulation provides mine operators with the flexibility to identify appropriate qualifications, skills and experience for a mechanical tradesperson, in accordance with their mechanical engineering control plan.

The new regulation also allows the regulator to exempt a person from a provision of the regulation that requires compliance with an international or Australian standard in certain circumstances and if satisfied that an alternative approach will result in a level of risk that is at least equivalent to or less than the level of risk that would be achieved by compliance with the relevant standard (Section 179).

Per the new regulations, contraventions of health and safety obligation under the legislation are now grounds for suspending or cancelling a practicing certificate or certificate of competence, if the contravention could or could have caused a serious risk to the health and safety of a person (Sections 143 and 151).

Class exemptions

The new regulation includes new provisions that incorporate class exemptions made by the Resources Regulator that were formerly in the NSW Government Gazette:

• Quarry managers (Section 180)
• Tier-3 quarry managers (Section 181)
• Notification requirements for exploration (Section 182)
• Australian and international standards
   

Mining, Exploration and Geoscience (MEG) consulted on the draft Regulation and supporting regulator impact statement earlier this year before finalising.

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