Issue 1098
, Tuesday 6 June 2017
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In this issue
[1]
Adani Group's board has given its final investment
approval for Adani Mining Pty Ltd's proposed $21.7bn Carmichael coal mine
and rail project. But questions remain as to how the controversial project
will be funded.
On press day Adani Group chair Gautam Adani said:
"The project has final investment decision (FID) approval, which marks
the official start of one of the largest single infrastructure and
job-creating developments in Australia's recent history." It was the
biggest investment by an Indian company in Aust and he believed more
investment and trade deals would come.
Adani said that despite "still facing
activists", the company was committed to the project, regional Qld,
and energy poverty in India.
A 'game
changer': Canavan
Federal resources and northern Aust minister
Senator Matt Canavan said the decision was a "game changer".
"This is a sign of confidence for the resources sector and a sign of
confidence for northern Aust," Canavan said.
On press day Canavan said the final investment
decision was independent of the Northern Australia Infrastructure Facility
(NAIF) assessment of a concessional loan for the north Galilee Basin rail
project. That independent assessment was continuing, he said.
"I am particularly relieved that Adani has
decided to go ahead with the investment, despite the uncertainty created in
the last few weeks with the Qld Government unable to work out royalty
rates," he said.
Canavan and Qld Premier Annastacia Palaszczuk were
in Townsville on press day to officially open the Carmichael project's
regional headquarters.
Palaszczuk said Adani board's FID approval
endorsed the govt's policy to require all greenfield coal, mineral and gas
projects in three basins to pay royalties in full with interest. The state
govt's resource policy for the Galilee and Surat Basins and North West
minerals province put strict requirements on project proponents, Palaszczuk
said.
Palaszczuk had been under pressure in recent weeks
regarding the royalty framework for Adani. On May 27, Palaszczuk said
Adani would "pay every cent of royalties in full. There wil be no
royalty holiday for the Adani Carmichael mine".
Deputy Premier Jackie Trad said any deferred
royalties would be paid with interest and with security of payment in
place.
Adani
investment 'already at $3.3bn'
Aust head of country and chief
executive Jeyakumar Janakaraj said the company had already
invested $3.3bn. That included buying the bulk coal handling port at Abbot
Point. Janakaraj said letters were signed today awarding contracts for
design, construction, operations, supply of materials and professional
services.
Downer Mining was awarded Adani's contract for
constructing and operating the Carmichael mine. Today (June 6), Downer EDI
Ltd informed
the ASX it had received an updated letter of award from Adani regarding the
project's mining services component.
In December 2014 Downer had informed the
exchange it had received two award letters for providing mining services
and construction of mine infrastructure at the Carmichael mine.
On press day Janakaraj said contracts worth
more than $150m had been signed for railway tracks and concrete sleepers
for the 388km rail link between the mine and Abbot Point. Arrium Steel was
awarded $74m for railway tracks and Austrak $74m for sleepers.
AECOM was contracted to survey and design the rail
link.
Pre-construction work was set to start in
the September quarter, Janakaraj said.
[2]
Qld Land Court (LC) has recommended the proposed
expansion of New Hope Group's New Acland mine in Qld's Darling Downs not go
ahead.
LC Member Paul Smith said "beyond
dispute" was the fact that New Acland's numerical groundwater
modelling and the underlying hydrogeological conceptualisation were central
to LC's understanding of the projected impacts of the revised stage 3. As
such, he said it should not proceed.
Noise levels were also an issue. Member Smith
recommended noise levels be set at 35 decibels for evening and night time
operations. But that was inconsistent with noise limits proposed by the Qld
Coodinator-General so the only option for him was to recommend refusal of
the draft environmental authority (EA), he said.
In his mammoth 459-page judgment, Member Smith
said "one may wonder" how a project became subject to
"so much controversy, let alone almost 100 hearing days before this
court, almost 2,000 exhibits containing many tens of thousands of pages of
material, and well in excess of 2,000 pages of submissions".
New Acland mine was set to close this year. The
proposed stage 3 expansion to the open-cut mine would extend its life to
2029. In October 2015, Environmental Defenders Office Qld filed a
formal objection on behalf of the Oakey Coal Action Alliance (OCAA) – a
community group of 60 local farmers and residents opposed to the mine's
expansion (EM
24/01/17).
The hearing was the longest in the LC's 120-year
history. Member Smith said the amount of material before the court could
only be described as "immense".
'Unorthodox
twist' with groundwater matters
For groundwater matters, Member Smith said there
was an "unorthodox twist" to an "already complex key
issue", with disagreement between Queens Counsel about matters on
which the groundwater experts agreed and disagreed.
In April, the parties were back before the court
for a further five days on groundwater evidence requested by New Acland.
Experts from all sides gave evidence at the same time, allowing counsel and
the court to ask a question and then garner the opinion of all present (EM
11/04/17).
Member Smith provided analysis on the five
groundwater expert witnesses' evidence. While critical of some, he had
praise for Andrew Durick, an expert witness for New Acland. He had no doubt
Durick gave truthful testimony and no doubt he understood
"absolutely" that his responsibility was to assist the court, not
the party who called him. "I can say with absolute certainty that
never before in my experience on the bench have I heard an expert witness called
by one party give evidence so telling against that party," he said.
Existing
groundwater evidence 'a muddle'
There was "a huge amount" of evidence
before LC regarding groundwater. Member Smith said in key areas New
Acland's own experts agreed with major shortcomings of the current model.
Member Smith was not satisfied by the draft EA or
the additional conditions proposed for it that a "significant amount
of further reporting and research should be undertaken post approval and,
in some circumstances, before mining commences, and in other circumstances,
after mining commences".
"The risks to the very valuable underground
water resources in the Acland area are simply too great for that approach
to be reasonably taken."
Member Smith said: "To be as blunt as
possible, I find the state of the groundwater evidence before me, save for
the 2016 Independent Expert Scientific Community (IESC) advice and indeed
the 2015 and 2014 IESC advices, as a muddle.
"There are simply too many unresolved
questions; too many issues upon which the experts agree that the current
model in inadequate, and too little of substance in promises and assurances
for the future without the ability to give reasoned views on specific data
at this time of the approval process, for me to be satisfied that groundwater
issues have been properly addressed.
"Hence, I recommend that New Acland's revised
stage 3 project not be approved due to groundwater concerns.
"In short, should New Acland wish to have the
revised stage 3 approved, it should take a corporate deep breath, and have
the expert scientific modelling and other scientific data that it is now
promising to prepare properly undertaken and prepared and
resubmitted."
'Issues' with
New Acland's modelling
OCAA said problems with New Acland's fault
modelling had major implications for the reliability of its model, given
the potential influence on groundwater behaviour both in the real world and
in groundwater modelling. It said the modelling was a matter of concern for
IESC in its 2014 and 2015 advices.
OCAA pointed out four of the five groundwater
experts agreed the conceptualisation of the faulting was inadequate, and
that there were significant concerns about the locations and properties of
the modelled faults.
Modelling was
the 'bare minimum': expert
It also said while New Acland (above) had been
operating for 15 years, it had failed to collect basic data regarding
on-site aquifer properties to inform the conceptualisation that underpinned
its groundwater modelling.
OCAA backed that up by noting it was agreed there
was no reliable on-site data in relation to aquifer storage properties,
vertical connectivity and vertical conductivity.
Where there was available data New Acland's own
expert gave evidence it was the "bare minimum".
New Acland countered OCAA by referring to the
draft EA condition that required modelling and conceptualisation to be
"continually updated over the life of the project" together with
its proposed amended conditions.
Those required an update to occur before mining
started, bore baseline assessment program results to be consolidated and
baseline data collected pursuant to the draft EA, it said.
LC critical of
former CEO's evidence
Member Smith said he was "extremely
troubled" by evidence from former New Hope CEO Bruce Denney and could
afford it "little or no weight".
At the time of swearing his various affidavits
Denney was New Hope CEO. In December 2015 he retired from that
position but continued in the role of strategic advisor to the company.
Member Smith said observations he made "on
numerous occasions" led him to believe Denney may have been
receiving coaching from the gallery. After Member Smith raised his concerns
he said Denney's evidence changed.
"He was much more uncomfortable in answering
questions. He hesitated and corrected himself, particularly when shown
documentary evidence to show that answers he had given were not factually
correct.
"In short, Mr Denney presented quite
differently as a witness after he was unable to take any assistance from
the gallery."
Member Smith said none of the legal
representatives suggested it was necessary for him to take action against
the people sitting in the court room.
He also said he could not be certain what he saw
was not more than a person "showing their own over-excited responses
to questions" rather than deliberate coaching.
Even so, it did not excuse Denney, Member Smith
said.
"Even if he was not looking to the gallery
for assistance as part of a prearranged coaching exercise, at the very
least Mr Denney looked to the gallery to employees of [New Acland] and
observed their responses to questions before giving his own response, which
invariably followed precisely the indication that he had seen. It was
entirely inappropriate of Mr Denney to do this.
When Member Smith considered Denney's evidence as
a whole, "it becomes abundantly clear that much of what is contained
within his affidavit material and quoted in the first person is in fact the
opinions of others which have been passed on to him. In my view, on too
many occasions it is not Mr Denney's own, independent knowledge".
Economics a
'complex subject'
On some aspects of the proposed expansion Member
Smith was satisfied issues could be appropriately managed. Air quality and
dust; lighting; visual amenity; and traffic, transport and roads were
adequately dealt with, he said.
Member Smith said economics was a "complex
subject" but the final analysis showed the mine would provide
"significant economic benefit to the locale region, the state and the
nation".
The issue of agricultural economics was
"likewise complex".
He was concerned about the impact of groundwater
on neighbouring properties, but "on an economic level alone" the
revised stage 3 project was of "greater value than agricultural
pursuits, even over the long term".
Member Smith would hear from the parties on costs.
(New
Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of
Environment and Heritage Protection (No 4) [2017],QLC 24,
31/05/2017)
New Hope
'committed' to mine expansion
In a June 2 statement New Hope Group
said it was working through LC's decision (above).
"It is important to note that the LC provides
a recommendation only and it remains for the Minister for Natural Resources
and Mines to decide whether or not to grant the [mining leases] and the
Department of Environment and Heritage Protection to decide whether to
grant the EA amendment."
The company expected the ministers to make their
decisions based on "all the information" available.
New Hope said it had "listened" to what
LC found and would continue to work towards alleviating the two key issues
it raised. Further updating of groundwater modelling was already under way.
"New Hope remains committed to delivering the
New Acland stage 3 project and will actively progress this project through
the final stages of approval," it said.
[3]
The NSW Land and Environment Court (LEC) has fined
chemical company Dyno Nobel Asia Pacific Pty Ltd $460,000 plus costs after
the discharge of toxic wastewater led to the deaths of several dairy
cattle.
Dyno Nobel is a wholly owned subsidiary of Incitec
Pivot Ltd, an ASX-listed international company. It breached s120(1) of the
Protection of the Environment Operations (POEO) Act 1995, which required it
to perform its activities competently. Dyno Nobel pleaded guilty to the
offence "at the earliest opportunity", LEC said.
A misplaced pipe and a valve failure resulted in
toxic wastewater flowing onto a neighbouring farm, waterlogging a paddock
and killing livestock. The wastewater also flowed towards the Hunter River,
stopping about 200m short from the major waterway.
In a May 31 ruling, LEC Justice
Timothy Moore said "the environmental harm caused by the discharge of
the polluted waters was substantial and, therefore, to be taken into
account as a factor of aggravation in the sentencing process for the water
pollution offence". He found the discharge was "foreseeable"
and "preventable".
Dyno Nobel could have made "regular and
simple" visual inspections of the pumping transfer by the operator.
"Such inspections were not undertaken," Justice Moore said.
Dyno Nobel "has compensated the farmer
($76,000) and taken remedial action on his land concerning soils and
pasture", Justice Moore said.
Contractor
removed pipe, valve failed
The court heard wastewater and stormwater were
captured and stored in two dams at the site, known as the old dam and the
new dam. Water in the old dam could be transferred to the new dam by a pump
that moved water through an above-ground plastic pipe (transfer pipe).
An evaporation spray recirculation system was
connected to the transfer pipe to increase evaporation of the water in the
old dam. The evaporation spray was connected to the transfer pipe by a
butterfly valve. The evaporation spray operated only when the pump was
operating and the valve was closed. The valve being closed while the pump
was operating allowed the water to be forced through the evaporation spray
rather than flowing through the transfer pipe.
In January 2015, Dyno Nobel began a
project to reline and repair the new dam. During the relining, the company
engaged contractors to do certain works such as excavation and relining.
On Jan 15, 2015, an employee from the
relining contractor removed the discharge end of the transfer pipe from the
new dam and placed it on the ground in the field between the dams to enable
machinery to access the new dam. Its removal was not communicated to the
site manager employed by the company at the time, nor to any other company
personnel. A lot of rain fell between Jan 26 and 29, and caused the
water levels in the old dam to rise.
A company mechanic and project manager for the
relining project closed the valve and turned on the pump to operate the
evaporation spray to reduce the old dam water levels.
LEC heard it was known to the company mechanic and
project manager that the discharge end of the transfer pipe was positioned
in the field and not in the new dam. At some stage
between February 18 and 20, and Feb 23 and 25, while the pump was
in operation, the valve failed.
Wastewater contained in the old dam continued to
circulate through the evaporation spray and some of the wastewater escaped
through the valve into the transfer pipe. It flowed out of the discharge
end of the transfer pipe where it lay in the field between the dams.
The wastewater discharge flowed downslope of the
dams into an open ephemeral gully on the site and continued to flow
overland, south-easterly down-slope and into a culvert under Gouldsville
Road.
Offence
'significantly above middle range': judge
Justice Moore said that weighing up the factual
elements on the cause of the pollution he agreed with NSW Environment
Protection Authority (EPA) that the offence should be regarded as
"significantly above the middle range for offences of this type".
Justice Moore said he was satisfied Dyno Nobel was
"genuinely remorseful for its failures" and that should be taken
into account in sentencing.
S21A(3)(e) of the Sentencing Procedure Act
regarding a company's record of previous convictions was a relevant factor,
he said. That Dyno Nobel had no prior convictions for environmental
offences worked in its favour.
For Justice Moore, the POEO Act required his
consideration of "the extent to which the person who committed the
offence could reasonably have foreseen the harm caused or likely to be
caused to the environment by the commission of the offence" – (s241)(1)(c))
in the circumstances of this incident.
"It is clear that not only was the harm
foreseeable but that the company had not taken appropriate steps of a
preventative nature to forestall such harm being realised."
Fined for
offence, licence breach
Dyno Nobel (above)
was fined $400,000 for the water pollution event and $60,000 for breaching
its licence. The total fine amounted to $460,000, plus $72,750 in agreed
legal and investigation costs. The company was also ordered to publish
notice of its breaches in local and national media.
(Environment
Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017], NSWLEC 64,
31/05/2017)
Incident
'avoidable, unacceptable': EPA
LEC's decision (above)
flowed from NSW Environmental Protection Authority's (EPA) prosecution of
Dyno Nobel. EPA chief environmental regulator Mark Gifford said while Dyno
Nobel had pleaded guilty to the charges in the first instance, the
"substantial penalty reflected the EPA's rigorous pursuit of an
appropriate result in court".
"There was significant environmental harm in
this incident and the EPA pursued the case with the appropriate level of
dedication," Gifford said.
"There were no alarms or other systems to
warn Dyno Nobel personnel of the discharge and, as a result, dangerous
chemicals discharged from the facility and a local farmer felt the brunt of
that on his property and his animals," he said.
"This sort of environmental pollution is
avoidable and completely unacceptable."
[4]
In an asbestos contaminated waste materials case
with multiple cross-claims, the NSW Supreme Court has ruled a trustee for
energy company TransGrid is entitled to independent legal representation
rather than that retained by its insurer.
On May 22, in an ex tempore decision
Supreme Court Justice James Stevenson said in the damages case
brought by waste operator Bettergrow Pty Ltd, TransGrid was represented by
solicitors instructed by its insurer, AIG Australia Ltd, under a
contractors pollution liability policy.
On May 8, TransGrid filed a notice of
motion to be allowed to select independent legal representation to defend
Powercor's first cross-claim and prosecute TransGrid's proposed cross-claim
against AIG.
Bettergrow is seeking damages for material contaminated
with asbestos that was delivered to its facility for processing. It was
not, and never had been, licensed to receive asbestos.
The material had come from Beaconsfield West
electrical substation, then owned by TransGrid and managed by Powercor.
NSW Environmental Protection Agency (EPA) closed
the facility for 50 days. Bettergrow's primary claim was for damages for
the loss it claimed to have suffered, Justice Stevenson said.
Bettergrow named NSW Electricity Networks
Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust
t/as TransGrid, Powercor Network Services Pty Ltd, TTR Construction &
Excavation Pty Limited (in liq) and On-Line Pipe & Cable Locating Pty
Ltd as defendants.
Claims and
cross-claims
There were three claims in the proceedings and one
further claim foreshadowed.
But in the first cross-claim, Powercor alleged
TransGrid breached a contractual obligation. It contended TransGrid was
obliged to buy asbestos liability cover to protect Powercor. Powercor made
a claim for indemnity under the AIG policy but AIG denied liability to
indemnify Powercor.
Transgrid made the second cross-claim against
Powercor. It claimed damages for breach of contract for alleged failure to
take appropriate action to prevent the asbestos contamination of which
Bettergrow complained.
The proposed draft third cross-claim prepared by
TransGrid's corporate solicitors named AIG as cross-defendant. Justice
Stevenson said: "As will emerge, TransGrid argues, and AIG disputes,
that the AIG policy does cover Powercor (or at least should be rectified so
as to have that effect)."
Potential for
'numerous practical, unforeseeable difficulties': judge
Justice Stevenson: "Leave is sought because
of the obvious conflict that the solicitors and counsel, retained by AIG
for TransGrid, currently have between their duty to their insurer client
AIG on the one hand and to the insured client TransGrid."
TransGrid argued the solution was for the company
to appoint solicitors "free of any professional duties owed to
AIG" and for AIG to appoint its own solicitors for the proposed
cross-claim.
Justice Stevenson said: "Numerous practical
and likely unforeseeable difficulties may well arise if one party
is represented by two sets of legal representatives. Such difficulties
could arise in relation to the question of which counsel cross-examines
which witness and in what order, and in relation to the question of orders
of addresses and subject matters of addresses. Obviously to permit one
party to be represented by two sets of legal representatives would also
increase the cost of proceedings."
He said he "referred to much authority"
on the question, but none involved a situation such as this.
TransGrid
'entitled' to select legal reps: judge
Justice Stevenson (above) did not agree with AIG's
submissions that TransGrid having its own independent legal representative
was "no solution". AIG argued TransGrid would find itself in a
position of conflict because, for example, it would have "no
interest" in resisting Bettergrow's claim and would be
"unconcerned" about prosecuting its second cross-claim against
Powercor.
But Justice Stevenson said it was not
inherent TransGrid would "run dead" on those issues, nor defend
or prosecute its interests in the proceedings. Justice Stevenson said:
"Indeed, I would think TransGrid's independent lawyers would be
anxious not to behave that way, lest such conduct were to jeopardise
TransGrid's cover under the policy."
He ruled TransGrid was entitled to select its
legal representative for the proceedings. It was ordered to file and serve
a notice of solicitor change by May 26 and was given
until June 1 to submit the third proposed cross-claim. AIG was
ordered to pay costs.
(Bettergrow
Pty Ltd v NSW Electricity Networks Operations Pty Ltd as trustee for NSW
Electricity Networks Operations Trust t/as TransGrid [2017],NSWSC 658,
22/05/2017)
[5]
A new national regulatory scheme designed to
improve risk assessments of industrial chemicals has been flagged to come
into effect next year.
The Australian Industrial Chemicals Introduction
Scheme (AICIS) would replace the existing National Industrial Chemicals
Notification and Assessment Scheme (NICNAS) from July 1, 2018.
Federal assistant health minister Dr David
Gillespie introduced six Bills
into parliament last week as part of a package of industrial chemicals
reforms.
The package included the: Industrial Chemicals
Bill 2017; Industrial Chemicals (Consequential Amendments and Transitional
Provisions) Bill 2017; Industrial Chemicals (Notification and Assessment)
Amendment Bill 2017; Industrial Chemicals Charges (General) Bill 2017;
Industrial Chemicals Charges (Excise) Bill 2017; and Industrial Chemicals
Charges (Customs) Bill 2017.
It included a plan to ban cosmetic testing on
animals from July 2018.
Gillespie said
the new Bills would reduce regulatory burden and better reflect "the
level of risk to human health and safety of the environment".
Regulatory effort would focus on chemicals with a
higher risk profile, with reduced costs to businesses and consumers using
lower risk chemicals. The regulator would have greater powers to impose
stricter conditions on higher risk chemicals.
The federal Department of Health said
it expected a faster regulatory pathway for new lower risk chemicals would
see the number of industrial chemicals subject to a pre-introduction
assessment by the regulator decrease by 70%. Pre-introduction assessments
would drop from around 3% of all new chemicals to 0.3%, the health dept
said.
A consultation
paper about the reforms is open until July 12.
[6]
NSW Planning Assessment Commission (PAC) says
water-related concerns are still the biggest issue for assessing the merits
of the proposed Wallarah 2 coal project on the NSW Central Coast.
The cmn said: "The application of stringent
standards is necessary for the mine to effectively coexist in a catchment
with acknowledged water supply constraints and the projected population
growth of the region."
Wyong Areas Coal Joint Venture's (WACJV)
controversial underground longwall coal mine would be developed about 5km
north-west of Wyong. It would sit under Wyong state forest and operate
across two water catchment areas.
In March the NSW Department of Planning
and Environment (DPE) recommended the project go ahead with 78 "strong
conditions" and referred it to PAC.
PAC reconfirms
2014 recommendations
WACJV's original proposal was rejected in 2011. It
submitted a new development application (DA) in 2012, which DPE approved
with 35 recommendations and referred to PAC.
PAC's 2014 report said if the recommendations were
not adopted, or adopted only in part, its position would probably change in
favour of a precautionary approach. That would particularly apply to
water-related impacts, it said.
WACJV then submitted an amended DA
in July 2016. DPE referred its assessment to PAC
in February and said it considered the project was approvable (EM
07/03/17).
PAC said it supported the cmn's 2014 review on the
significance of water resources and subsidence. "These recommendations
must be maintained for the project to meet the public interest test of s79C
of the Environmental Planning and Assessment Act 1979. Otherwise a
precautionary approach should be adopted," it said.
Greater clarity
needed on benefits: PAC
PAC (above)recommended
draft conditions be updated to reflect the cmn's 2014 review
recommendations of no net impact on catchment yield. And the preferred
compensatory mechanism was by the return of suitably treated water to the
catchment side of the water supply system. "The burden of proof of any
impact less than predicted rests with the applicant," PAC said.
It recommended DPE provide greater clarity on the
project's net economic benefits for the consent authority's consideration.
Predicted emissions from the project would be
within relevant criteria, it said. WACJV's proposed six-metres-wide all
weather access road and easement was an acceptable solution to address the
issue of access to adjacent private lands, PAC said.
The cmn made additional recommendations on
potential noise impacts, road closures and community engagement, bushfire
management and potential future mining areas.
It said there was a need for an integrated
environmental monitoring and public reporting management plan for the
consent authority to consider.
[7]
Unlawfully irrigating about 200,000 litres of
waste water that polluted a creek and breaching an environment protection
licence (EPL) condition have resulted in a NSW judge penalising a mushroom
farm supply business $100,000.
NSW Land and Environment Court (LEC) Justice
Terry Sheahan last week convicted Elf Farm Supplies Pty Ltd of breaching
s64 and s120 of the state's Protection of the Environment Operations Act
1997.
Justice Sheahan ordered Elf to pay a total
$100,000 to Hawkesbury City Council as a contribution towards the South
Creek riparian restoration project.
He also ordered Elf to pay NSW Environment
Protection Authority (EPA) its prosecutor costs that were estimated at
$50,000. And he ordered that Elf pay for and place a notice about its
conviction and offences in the first five pages of two newspapers
by June 30.
Elf supplies and sells mushroom substrate to
farmers around Australia. It pleaded guilty to the two strict liability
environmental offences before a sentencing hearing was held
on November 21, 2016.
In the LEC, EPA relied on an amended statement of
facts (SAF) to which Elf agreed. The s64(1) charge said Elf breached its
EPL by failing to perform its licensed activities in a competent manner.
Elf had caused a pump to be switched on and operated
to transfer "process water" containing ammonia from a dam,
through a hose, onto a paddock. The hose's discharge end was placed in an
open field that sloped down towards waters.
The paddock's surface was waterlogged or otherwise
unable to receive the water when it was discharged, the SAF said. Water
didn't infiltrate the paddock surface for disposal and "was not
otherwise captured".
'No procedures
or checks': judge
No one monitored the hose's discharge end between
about May 12 and 21, 2015, to check that all the pumped process
water was infiltrating the paddock surface, the SAF said. Nor did anyone
monitor areas downstream or downslope of the paddock to ensure the pumped
water was not present at those locations.
There were "no written procedures or checks
to be followed when operating the pump" or to ensure the pumped water
didn't flow over the paddock surface.
The SAF said staff involved in switching on the
pump "had not been adequately trained".
EPA described the offending liquid as "an
odorous browny/black liquid high in ammonia".
The s120 offence involved discharging the liquid
along a water channel, and into South Creek between May 19 and
21. The process water mixed with stormwater was "potentially harmful
to aquatic organisms living in the creek".
Elf 'failed to
monitor saturation levels': EPA
As prosecutor, EPA submitted Elf, after choosing
"a suitable location" for the pump to disperse the waste liquid
onto the inundated area, "allowed the pumping to continue until the
pump ran out of fuel".
It said the anticipated results of pumping the
liquid at the rate of 400 litres per minute to a previously unused
irrigation field at the premises "must have been largely unknown"
to Elf.
To mitigate against the prospect of subsequent
environmental harm, EPA said "it would have been logical" for Elf
to "thoroughly monitor the saturation levels at the inundated
area" to reduce the risk of a pollution event caused by water logging.
That was not done, EPA said.
EPA submitted Elf could have installed a more
adequate pump, implemented a system of continual checking or "paid for
waste water to be trucked off-site to an appropriate, presumably licensed
facility", Justice Sheahan said.
Mgmt now
'instructed' to act as needed
Elf director and shareholder Rob Tolson in an annexed
letter said the board had "instructed management to take whatever
actions are needed to ensure that such an event does on (sic) occur
again".
'Suitably
qualified' enviro manager hired
Tolson also said Elf (above) had developed "improved and
properly documented" procedures for disposal of dam waters by field
irrigation, and implementing "comprehensive training of staff involved
in such activities".
The board had authorised a suitably qualified
environment manager be engaged and he had started work, Tolson said.
"His role encompasses oversight of all the company's operations from
an environmental point of view," he said.
It "specifically includes ensuring that our
practices of irrigation of dam water to paddock will never again allow
unauthorised waters to enter South/Wianamatta Creek, but will always be
conducted to a level of competence required by our EPA licence and the
health (sic) the creek".
Justice Sheahan said no case was "directly
comparable" to Elf's but there were several among other cases relied
on where s120 and s64 offences resulted in fines or orders in favour of
worthy projects.
His findings suggested Elf's penalty should sit
just above or just below 10% of the maximum $1m penalty for each offence.
He applied 25% discounts for Elf's guilty pleas,
10% for procedural and training reforms and 15% off each fine as a further
adjustment for the principle of totality. That left a $45,000 (s120) and
$55,000 (s64) fine translated into orders that favoured the nominated
environmental project. (Environment
Protection Authority v Elf Farm Supplies Pty Ltd [2017], NSWLEC 60,
30/05/2017)
[8]
Orica Australia Pty Ltd has been fined $15,000
after high concentrations of heavy metals, including zinc and arsenic, were
discharged from a pipe at its Kooragang Island ammonia plant near
Newcastle. NSW Environment Protection Authority (EPA) issued
the fine after it found a pipe discharge in March contained
concentrations of suspended solids and heavy metals at levels higher than
permitted under Orica's environment protection licence.
NSW EPA director Hunter Karen Marler said the
incident was likely caused by a build-up of algae inside a pipe due to a
lack of regular cleaning.
Marler said while it was "not the first
time" such a discharge had happened at Kooragang, it was
"positive" the company had agreed to more frequent pipe cleaning
to prevent a repeat. The authority has previously taken action against
Orica for exceeding effluent concentration limits and other serious
pollution incidents.
Orica was fined $768,250 in July 2014
for nine breaches of its licence at two of its sites, including Kooragang,
after it pleaded guilty to seven pollution charges (EM
29/07/14). The company has also worked to deal with legacy
contamination at its Kooragang site, the result of arsenic waste that
remained in a pit on the site between 1969 and 1994 and migrated into
groundwater and nearby landholdings (EM
12/08/14).
In August 2011, the NSW Government
announced an audit of Orica's Kooragang operations after a hexavalent
chromium emission (EM
16/08/11). The handling of the spill triggered a NSW Upper
House inquiry. Its findings were scathing of the company, the Office of
Environment and Heritage, EPA and then state environment minister Robyn
Parker (EM
28/02/12).
[9]
Qld authorities have lifted a ban on fishing and
eating seafood from the Brisbane River after a spill in April.
On April 10, 22,000 litres of firefighting foam containing per-
and poly-fluoroalkyl substances (PFAS) spill from a Qantas hangar into
waterways around Brisbane Airport, including Brisbane River. Authorities
were criticised for how long it took to inform the public (EM
25/04/17).
Qld Department of Environment and Heritage
Protection (DEHP) conducted a month-long investigation,
including testing water, seafood and sediment samples, since the incident.
Consumers were told to avoid eating seafood from the area until the results
of investigations on seafood samples were known.
Last week state chief health officer
Dr Jeannette Young advised
Brisbane seafood consumers to "limit their consumption of
seafood" from the investigation area to "two or three"
servings a week. The advice was in line with the total dietary intake for
seafood generally, Young said.
Eight of 82 samples of seafood taken over a
three-week period were above investigation trigger levels.
Environment minister Dr Steven Miles said further
lab results were still to be released, and that Qantas was also conducting
tests as required. "Qantas will continue to carry out testing for as
long as is necessary, as a safeguard against any future bioaccumulation in
the food chain over time," Miles said.
[10]
Applications are open for the NSW biodiversity
conservation advisory panel. Established under the Biodiversity
Conservation Act 2016, the panel would provide expert advice to the
environment minister and chief executive of the Office of Environment and Heritage
(OEH).
Appointments
for 18 months to three years
The advisory panel (above) would provide the minister with
advice on the management of biodiversity conservation in NSW. It would
advise the OEH CEO on proposed declarations of areas of outstanding biodiversity
value.
Panel appointments would be for an initial
18-month to three-year term; the chair will be paid $40,000 a year, and
members $20,000.
Applications
close on June 18.
[11]
The federal Department of the Environment and
Energy is seeking tenders for ecological monitoring and evaluation of the
environmental condition of contracted environmental stewardship program
(ESP) properties in NSW and Qld.
The successful tenderer would assess the
effectiveness of actions to improve the ecological condition of threatened
community remnants on ESP sites. They would also support adaptive
management on ESP properties to ensure the programs addressed local and
contemporary environmental conditions and challenges. There would also be
outreach and communications.
Submissions
close on June 26.
[12]
Editor:
Kim Berry. Email:
kim.berry@thomsonreuters.com.
Phone
(02) 8587 7679. Journalists:
Peter Angelopoulos, Renee Thompson. Managing
Editor: Helen Jones. Twitter: @EnviroManagerTR
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