Pollution & Waste
EDO NSW has assisted community groups in their efforts to enforce pollution offences, including water and air pollution and waste dumping, and has assisted clients to ensure the remediation of contaminated land.
Mullaley Gas and Pipeline Accord Inc v Santos
Coal seam gas (CSG) company Santos agreed on 1 September 2014, in the NSW Land and Environment Court, to provide water monitoring data after legal action by farmers seeking information relating to the contamination of water bores on a property in the Pilliga Forest, near Narrabri, in north-west NSW.
On 21 May 2014, the local farming group, Mullaley Gas and Pipeline Accord Inc (MGPA), represented by environmental legal centre, EDO NSW, applied to the Land and Environment Court for a preliminary discovery order for any relevant information held by Santos. The company had previously refused to provide all these documents.
The action followed the contamination of freshwater bores on the property of a farmer, whose land adjoins a site used for exploratory CSG drilling. He was advised by Santos in 2012 that the bore water was unfit for drinking and domestic use. Another bore, closer to the CSG site, has also shown effects of possible contamination.
The Land and Environment Court order, agreed by both parties, was for Santos to provide a range of documents including;
- all test results from sampling of bores on the property with the contaminated bore, and expert advice to Santos about this testing;
- all test results from water and soil samples from a group of pilot CSG drilling sites, part of Santos’ Dewhurst CSG site, which are to the north of the property;
- all water quality testing results for groundwater samples and monitoring held by Santos taken from stock and domestic bores within a 4km radius of these CSG drilling sites; and
- All documents detailing the history of storage of wastewater produced at the Dewhurst CSG, site including reports on any leaks, spills or overflows.
Santos deny any responsibility for the contamination but the MGPA have said water testing and expert scientific advice identifies CSG activities as a possible source.
The information provided by Santos will assist the farmers group to decide whether to launch civil enforcement proceedings against the company for water pollution under the Protection of the Environment Operations Act 1997 (NSW).
Blue Mountains Conservation Society v Delta Electricity
On behalf of the Blue Mountains Conservation Society, EDO NSW ran civil enforcement proceedings in the NSW Land and Environment Court against Delta Electricity under the Protection of the Environment Operations Act 1997(POEO Act), for water pollution into the Coxs River which is part of Sydney’s drinking water supply.
The litigation ran for over two and a half years, and was finally settled out of Court by the parties in October 2011. There were a number of judgments on various aspects of the case in that time, including:
• On 9 September 2009, EDO NSW successfully obtained a maximum costs order in the amount of $20,000, limiting the Society’s liability to pay Delta’s costs if unsuccessful. Justice Pain of the Land and Environment Court made the order on the basis that the case was brought in the public interest, was likely to raise novel questions of law and that the applicant could not continue unless an order capping costs was made. Justice Pain also ordered BMCS to provide security for Delta's costs in the amount of $20,000.
• On 18 October 2010, the Court of Appeal (Beazley JA, Basten JA and Macfarlan JA) dismissed Delta’s appeal against the orders made by Justice Pain, confirming that the litigation may be characterised as being in the public interest.
• On 26 August 2011, Justice Pepper of the Land and Environment Court dismissed Delta’s application to have the Society’s case struck out of Court, on the grounds that the Society had the right to bring civil enforcement proceedings for a breach of s.120 of the POEO Act, and that stopping the continuing pollution would be a practical remedy that could be imposed in respect of the past breaches. The Court awarded costs in favour of the Society.
Following the Court’s rejection of Delta’s strike-out motion, the parties agreed to try to resolve the issues through voluntary mediation. On 11 October 2011, the Society agreed to discontinue the proceedings on the following grounds:
1. Delta admits that it has discharged waste waters containing the pollutants between May 2007 and August 2011, and that it polluted waters within the meaning of s. 120 of the POEO Act, without authorisation under its licence, except in relation to salt; and
2. Delta submits an application to the EPA to vary its licence to specify maximum concentration levels for copper, zinc, aluminium, boron, fluoride, arsenic, salt and nickel; and
3. Delta submits an application to the EPA to include a condition in its licence requiring the implementation of a program of works for the full treatment of cooling tower blow down water from Wallerawang power station.
Delta has agreed that it will do the works necessary to stop the pollution, and that in the interim, it will apply for limits to be set on those pollutants. What those limits will be is a matter to be determined by the EPA, and must include input from the community. The admission from Delta is important in this case because it is an acknowledgment that unless there is express authorisation under an environment protection licence to discharge pollutants, any such discharge is unlawful, even where the company is required to monitor the discharge of those pollutants. This has implications for many other licences in NSW that may have similar conditions.
EDO NSW is grateful to barrister Tom Howard who appeared on behalf of BMCS throughout the various proceedings, and for his ongoing assistance in this matter.
Judgment - Summary dismissal refused
Media release - Delta remediation
Brown v Environmental Protection Authority
EDO NSW represented Mr AJ Brown in proceedings against the EPA and North Broken Hill Limited. The proceedings challenged the EPA policy of “prosecutable reality” (where pollution licence levels were raised to accommodate existing levels of pollution) and also sought a declaration that a licence to use the river for waste disposal should be accompanied by an Environmental Impact Statement. Importantly, the case also tested the right to bring proceedings in pollution matters. Following on from this, the Government passed laws exempting the EPA from the need to undertake environmental assessment when reviewing licences to pollute.
Coalcliff Community Association v Minister and Kembla Coal and Coke (Court of Appeal)
EDO NSW acted for the Association to stop the dumping of coal waste and seek remediation on a site on the Illawarra Escarpment. The initial court proceedings found that the dumping of coal waste by Kembla Coal & Coke had not complied with the conditions under a development consent granted in 1983, which had since lapsed, and was therefore illegal.
In further proceedings, the parties reached an agreement that provided for the remediation of the site by the new owner.
Greenpeace Australia Limited v Redbank Power Company Pty Limited
EDO NSW acted for Greenpeace challenging the approval of a power station in the Hunter Valley. Despite the claims of the company, it was argued that the power station would result in a net increase of carbon dioxide emissions. The approval was further challenged on the bases that that there was no demand for the new power station and that it contradicted both Australian and international policies to reduce greenhouse gas emissions. The Court held that at present the law did not restrict the building of new power stations and the appeal was dismissed.
Ironstone Community Action Group Inc v Minister for Planning & Duralie Coal Pty Ltd
EDO NSW acted for the Ironstone Community Action Group (ICAG) in Class 1 merits appeal in the Land and Environment Court against the approval of Duralie Coal's extension project for an open cut coal mine between Stroud and Stratford in the Barrington Tops area. ICAG was concerned about the impact of the mine on water quality in the Mammy Johnsons River , the endangered Giant Barred Frog, dust impacts from the mine on human health, and impacts on biodiversity in the region.
This merits appeal was heard by Chief Justice Preston, with Acting Commissioner Smith, during an eight-day hearing held on 9-13 and 18 May, 27 June and 1 July 2011. The case was heard in Sydney , but the Court attended a site visit in Gloucester on Thursday, 12 May 2011, followed by the hearing of objector evidence in the Gloucester Court House that afternoon.
On 10 November 2011, Justice Preston upheld ICAG's appeal, but granted approval for the open cut coal mine, with substantially revised conditions. With regards to dust, his Honour declined to impose any specific criteria for fine particulate matter (PM2.5), but required Duralie to make public all management plans, studies and reports on its website to increase transparency and accountability. Duralie must also protect biodiversity offset areas in perpetuity by either entering into a conservation agreement under the National Parks and Wildlife Act 1974 , or creating a public positive covenant over the land. The Court imposed a “no direct discharge” condition for water, and stronger monitoring requirements for the GBF. There are also a number of conditions that deal with dust and noise, which was a response to evidence submitted by residents during the hearing.
EDO NSW and ICAG are grateful to barrister Ashley Stafford who appeared for ICAG during the proceedings.
Judgment - Final orders
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
Tomsy's Timber Pty Ltd v Clarence Valley Council & Elland Preservation Organisation Inc
Tomsy's Timbers planned to place a major sawmill development and operation on environmentally significant rural land in the Clarence Valley.
EDO NSW Northern Rivers acted for the Elland Preservation Organisation Inc (EPO). EPO was concerned about the impacts a proposed major sawmill development would have on the natural rural environment. The development was proposed on environmentally constrained land and at the top of a water course that feeds directly into a significant wetland before feeding into the Orara River.
Clarence Valley Council refused the development application lodged by Tomsy's Timbers (the sawmill company) on three separate occasions on a number of legal and environmental grounds. Further, Clarence Valley Council has a sustainability initiative and Industrial Lands Strategy that when applied concludes that this type of major industrial development should only be considered on lands appropriately zoned industrial. Tomsy's Timbers appealed to the Land and Environment Court challenging Council's refusal.
As the proposal was designated development, EPO joined the proceedings and raised a number of environmental matters that Council was not raising in its case. The main arguments put to the Court by EPO were that the proposal would have an unacceptable impact on water quality and cause water pollution and it would adversely affect threatened species. Further the Environmental Impact Statement prepared by the proponent was substantially inadequate and did not comply with the statutory requirements relating to EIS.
The proceedings were initiated by Tomsy's Timbers in April 2008. After the EPO filed its expert evidence in the matter, only 2 weeks before a 5 day hearing was scheduled, Tomsy's Timbers argued in Court to discontinue the proceedings. EPO had no alternative to settle its objection to the discontinuance, however, it did so on the basis that Tomsy's pay its costs incurred to date.