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Subject:                          Environmental Manager 1098: Adani board approval a 'game changer': fed minister; Qld Land Court rejects New Acland on groundwater issues; & More ...


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Thomson Reuters Australia

Issue 1098 , Tuesday 6 June 2017

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In this issue

Adani Carmichael board approval a 'game changer': federal minister


Land Court rejects New Acland expansion on groundwater issues


Dyno Nobel fined $460k for toxic wastewater pollution


TransGrid 'entitled' to independent legal rep in asbestos waste case


Reforms planned for chemical regs


'Stringent conditions' needed for Wallarah proposal: NSW PAC


Farm supplier penalised $100k for polluting water, breaching EPL


Orica fined $15k for licence breach


Seafood ban lifted after PFAS spill


NSW Govt calls for biodiversity panel member applications


Fed tender to assess enviro program's effectiveness


Editorial team



Adani Carmichael board approval a 'game changer': federal minister

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.


Land Court rejects New Acland expansion on groundwater issues

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.


Dyno Nobel fined $460k for toxic wastewater pollution

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."


TransGrid 'entitled' to independent legal rep in asbestos waste case

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)


Reforms planned for chemical regs

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.


'Stringent conditions' needed for Wallarah proposal: NSW PAC

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.


Farm supplier penalised $100k for polluting water, breaching EPL

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)


Orica fined $15k for licence breach

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).


Seafood ban lifted after PFAS spill

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.


NSW Govt calls for biodiversity panel member applications

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.


Fed tender to assess enviro program's effectiveness

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. 


Editorial team

Editor: Kim Berry. Email: Phone (02) 8587 7679. Journalists: Peter Angelopoulos, Renee Thompson. Managing Editor: Helen Jones. Twitter: @EnviroManagerTR




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