As part of its Terms of Reference, the Board of Inquiry has been asked to inquire into and report on the adequacy and effectiveness of the application and administration of relevant regulatory regimes in relation to the risk of, and response to, fire at the Hazelwood mine.

This Chapter discusses the regulatory regime governing mining activities conducted by GDF Suez at the Hazelwood mine and explores the legal requirements applicable to GDF Suez in relation to the risk of fire. This Chapter also examines the responsibility of government agencies in relation to fire risk at the mine, and recommends improvements to the regulatory regime to ensure incidents like the Hazelwood mine fire are avoided in the future.

The principal regulatory mechanisms that govern the risk and prevention of fire at the Hazelwood mine are mine licensing laws, which are administered and enforced by the Earth Resources Regulation Branch of the Department of State Development, Business and Innovation (the Mining Regulator) and occupational health and safety laws, which are administered and enforced by the Earth Resources Unit of the Victorian WorkCover Authority.

The Board heard from senior representatives of the Mining Regulator and the Victorian WorkCover Authority. The Board also received numerous submissions from residents in the Latrobe Valley and community organisations who were concerned about a lack of supervision of environmental and public safety issues, such as fire risk and rehabilitation at the Hazelwood mine.

From 1 January 2008, responsibility for oversight of occupational health and safety matters in Victorian mines was transferred from the Mining Regulator to the Victorian WorkCover Authority. From this date, the Mining Regulator no longer considered itself to have any role in regulating fire risk at the Hazelwood mine. Meanwhile, the Victorian WorkCover Authority has concentrated its resources on monitoring workplace risks that have the greatest potential to cause worker fatalities.

The Board considers that each of the relevant agencies adopted a narrow reading of the statutory regime underlying their respective areas of responsibility. Contrary to arrangements between the Mining Regulator and the Victorian WorkCover Authority, which contemplated collaboration and consultation on areas such as public safety risks, the agencies operated in silos. Both agencies also demonstrated a passive approach to supervision of the Hazelwood mine by shifting complete responsibility for dealing with fire risk to GDF Suez. The Board is concerned that the manner in which the transition for occupational health and safety responsibility to the Victorian WorkCover Authority was effected meant that expertise and knowledge relevant to assessing fire risk at the Hazelwood mine was potentially lost.

The combination of these factors resulted in a gap in regulation of the Hazelwood mine in respect of fire risks with the potential to impact on Morwell and surrounding communities, such as that which manifested in 2014. The Hazelwood mine fire was a foreseeable risk that slipped through the cracks between oversight agencies, and as a consequence this reality must be confronted if similar incidents are to be avoided in the future.

The Board considers that the Mining Regulator and the Victorian WorkCover Authority both have a role in regulating fire risk in the Victorian mining sector. In order to effectively fulfil their shared responsibilities, the Mining Regulator and the Victorian WorkCover Authority need to be adequately equipped with staff that have the necessary fire expertise to monitor and enforce compliance with measures to mitigate fire risk.

The Board affirms the Mining Regulator’s willingness to take on a role in addressing fire risk at Victorian coal mines, and recognises that the commencement of s. 16 of the Mineral Resources (Sustainable Development) Amendment Act 2014 (Vic) and possibly further regulatory reform would assist this process. The Board recommends that the commencement date of s. 16 be brought forward to facilitate the requirement that approved work plans specifically address fire prevention, mitigation and suppression.