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21 Feb 2019

NT offshore petroleum industry gets (some) relief from nuclear waste prohibitions

By Nicole Besgrove, Margaret Michaels

Nuclear waste material incidentally generated from offshore petroleum activities and brought to the Northern Territory to be exempt from storage and transportation prohibitions where the activity provides social and economic benefits for the Territory.

Naturally occurring radioactive materials (NORMs) can be incidentally generated from offshore oil and gas activities, but the industry has never been entirely certain about its obligations when it came to the storage and transportation of nuclear waste in the Territory.

To provide more certainty on what types of nuclear waste are not prohibited in the Territory, on 14 February 2019 the NT Parliament passed the Nuclear Waste Transport Storage and Disposal (Prohibition) Amendment Bill which (amongst other minor redrafting amendments):

  • clarifies the extent of the existing exemptions with respect to nuclear waste, such as NORMs, that may be produced as a natural by-product of petroleum and other energy producing hydrocarbons; and
  • includes a new exemption that nuclear waste derived from pipelines and exploration and recovery activities in the offshore oil and gas industry is exempt, so long as the relevant oil and gas project has a relationship with the Territory and is providing an economic benefit to the Territory.

What are the prohibitions on nuclear waste?

In order to protect the safety, health and welfare of the people of the Territory and their environment, the Nuclear Waste Transport, Storage and Disposal (Prohibition) Act 2004 prohibits:

  • the construction or operation of a nuclear waste storage facility in the Territory; and
  • the transportation of nuclear waste into the Territory for storage at a nuclear waste storage facility in the Territory.

These prohibitions are however, the subject of a range of exemptions.

What sort of nuclear waste will now be exempt

Upon commencement, which is to be the day after it receives assent, the amending Act will apply in relation to all nuclear waste, whether originating inside or outside the Territory, but will not apply to the following:

Lawfully stored before commencement: nuclear waste that was lawfully stored in the Territory before the commencement of the Act (ie. 4 November 2004). This is the same terms as the previous exemption.

Authorised under the Radiation Protection Act: nuclear waste produced in the Territory that is stored or disposed of in accordance with the Radiation Protection Act. A similar exemption previously applied using the term legislative authority (ie. a licence, certificate of registration or other authority issued under the Radiation (Safety Control) Act or Radiation Protection Act), however the definition of "legislative authority" will no longer be used and therefore has been removed.

Mining activities (uranium): mining activity in the Territory related to uranium ores or uranium oxide (U3O8) under the Mining Management Act. This is similar to the previous exemption and only minor drafting amendment have been made.

Radioactive Ores and Concentrates (Packaging and Transport) Act: the possession, packaging, storage or transportation of uranium ores or uranium oxide (U3O8) under the Radioactive Ores and Concentrates (Packaging and Transport) Act. This is similar to the previous exemption and only minor drafting amendment have been made.

Operation or maintenance of a pipeline: nuclear waste produced incidentally from the operation or maintenance of a pipeline in the Territory conveying petroleum or other energy-producing hydrocarbons. Previously the exemptions applied to the conveyance of an energy-producing hydro-carbon under the Energy Pipelines Act and petroleum exploration or recovery operations under the Petroleum (Submerged Lands) Act. This amended captures nuclear waste, such as NORMs, that may be produced as a natural by-product of petroleum and other energy producing hydrocarbons which may accumulate within pipelines and require removal in order to support the efficient operation of the pipeline. It applies to all pipelines which are wholly or partly located in the Territory including those licensed under the Energy Pipelines Act and Petroleum (Submerged Lands) Act.

Exploration or recovery of petroleum or other energy-producing hydrocarbons: nuclear waste produced incidentally from the exploration for, or the recovery or exploitation of, petroleum or other energy-producing hydrocarbons in the Territory. This exemption to some extent was reflected by the intent of the previous exemption for petroleum exploration or recovery operations under the Petroleum (Submerged Lands) Act. However, the amendment clarifies that the exemption includes nuclear waste, such as NORMs, that may be produced:

  • as a natural by-product of petroleum and other energy producing hydrocarbons and which may accumulate on equipment and parts, such as pumps, valves, separators, traps, drill bits and heads, used during exploratory and production activities; and
  • from the use of monitoring, testing or investigative equipment during exploration, recovery or exploitation activities, such as fixed density gauges, multi-phase flow meters and well logging devices using sealed radiation sources as well as unsealed radioactive material used in reservoir tracer studies.

Nuclear waste that originates from outside the Territory: This new exemption provides that nuclear waste transported into the Territory is exempt if the nuclear waste is produced incidentally from:

  • the operation or maintenance of a pipeline conveying petroleum or other energy-producing hydrocarbons into the Territory; or
  • the exploration for, or the recovery or exploitation of, petroleum or other energy-producing hydrocarbons at a project that meets the following criteria (referred to as a prescribed project):
    • delivers significant economic and social benefits to the Territory; and
    • is located within 800 km of the closest point on the Territorial Sea Baseline.

Therefore, an offshore oil and gas project can be licensed under Commonwealth laws but will need to have a sufficient connection to the Territory for the exemption to apply. While the scope of "significant economic and social benefits" is not defined, the Explanatory Statement and Second Reading Speech for the bill say it will include where the project proponent is using the Territory as the base of their operations.

It seems therefore that this new exemption is to apply to nuclear waste, such as NORMs, that may be produced:

  • as a natural by-product of petroleum and other energy producing hydrocarbons and which may accumulate within drilling and exploration wells, pipelines or on other parts and equipment; and
  • from the use of monitoring, testing or investigative equipment associated with the exploration, recovery and exploitation of petroleum and other energy producing hydrocarbons.

For the applicable regulatory controls for the storage, transportation and disposal of those types of nuclear waste that are exempt from the prohibitions as set out above, the applicable legislation must be referred to and companies whose operations will produce these types of nuclear waste need to ensure that their current practices are in compliance.

If you would like any further information about the amendments or how this will affect your operations please contact us.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.