Macarthur Bushwalking and Cycling Club v Endeavour Coal and Illawarra Coal Holdings

EDO NSW filed civil enforcement proceedings on behalf of Macarthur Bushwalking & Cycling Club, seeking orders to stop pollution of the George’s River in the Illawarra Region.

The case was filed on 16 July 2012 against Endeavour Coal and Illawarra Coal Holdings, subsidiaries of BHP Billiton. Illawarra Coal owns and operates BHP’s underground coal mine West Cliff Colliery, near Appin, and Endeavour Coal holds the environment protection licence for the mine. MBCC was concerned that a range of chemical toxicants including arsenic, zinc, copper, aluminium and nickel are being discharged into the George’s River from the West Cliff Colliery via Brennans Creek at levels well above the Australian and New Zealand Environment Conservation Council (ANZECC) Guidelines for healthy river systems.

The George’s River falls within the Botany Bay Catchment, and its headwaters are 60km south-west of Sydney in the town of Appin. It flows past the West Cliff Colliery north towards Liverpool, then east towards Sydney before discharging into Botany Bay. The pollution is alleged to have occurred over an extended period of time, since January 2002, in contravention of s120 of the Protection of the Environment Operations Act 1997 which prohibits the pollution of waters.

Shortly after the proceedings were commenced, on 26 July 2012, the EPA issued a media release advising that it was looking to place limits on BHP’s licence with respect to salt and metals being discharged into Brennans Creek. In September 2012, BHP applied to vary its licence seeking limits for a number of key pollutants alleged in this case including aluminium, nickel, zinc, copper, arsenic, lead and salinity. The variation, if granted, would effectively authorise much of the pollution alleged in this case.

On 24 April 2013, the EPA determined BHP’s application by issuing a licence variation notice setting limits for a range of pollutants, but importantly also requiring BHP to carry out a program of works to ensure 95% species protection in Brennans Creek and the George’s River by December 2016. In reaching its decision, the EPA consulted with the public on BHP’s application, accepted public submissions, including from independent experts and met with community representatives on two occasions about the variation.

On 31 May 2013 the case was dismissed by the Court by agreement of both parties as the ultimate issue for determination in the case had been resolved by administrative action and to the satisfaction of the applicant, the Macarthur Bushwalking & Cycling Club.

EDO NSW is grateful for the assistance of James Johnson who is acting as counsel for MBCCC in the litigation.

Media - Sydney Morning Herald