LAND & ENVIRONMENT COURT HEARING

  • Date: 10:00 AM, Tuesday to Thursday next week, May 14-16. 
  • Case: 2023/00278997 Maules Creek Community Council Incorporated (INC9894709) v Environment Protection Authority
  • Justice: B Preston Chief Judge 
  • Livestream link: https://youtube.com/live/yfxfgdmz9fM?feature=share 
  • Location: Court 12A, 225 Macquarie Street SYDNEY 2000 

BACKGROUND 

Whitehaven’s coal mine at Maules Creek currently operates without any restriction on how much methane and fine particle (PM2.5s) pollution it can emit under its Environmental Protection Licence (EPL).

As you know, methane is a powerful greenhouse gas and PM2.5s are toxic particles that pose a significant risk to human health. Yet these are not even mentioned in the Maules Creek EPL the EPA issued to the mine in 2013, nor in the licence reviews in 2018 and 2023.

Our client, the Maules Creek Community Council (MCCC), wants the court to rule that the EPA’s review of the Maules Creek EPL last year was invalid because it failed to consider environmental impacts as required by the legislation and the lengthy record of environmental and compliance issues at the site. If MCCC is successful, the EPA would be required to conduct the review again.

MCCC hopes through this case to set a precedent that requires the EPA to address regulation of pollutants such as methane, CO2 and fine particle emissions (PM2.5sand how those harmful pollutants can be reduced.

This case is the first time an EPA review of an EPL has been challenged in court. It is an example of a community group taking action to ensure the EPA does its job as NSWs lead environmental regulator, similar to the Bushfire Survivors for Climate Action v EPA court ruling in 2021.

Here are some docs that may be useful:

BACKGROUND BRIEFING MCCC V EPA 2024

The case

Maules Creek Community Council is asking the L&E Court to set aside the review of the Environmental Protection Licence (EPL) the NSW Environment Protection Authority undertook for the Maules Creek coal mine in early 2023.

MCCC will argue the EPA failed to fulfil its functions under s45 of Protection of the Environment Operations Act (licensing), and s6 Protection of the Environment Administration Act (objectives of the EPA).

These two laws require the EPA to protect the environment and human health, and to consider “relevant” pollutants when issuing or renewing licences and the practical measures that could be used to reduce that pollution.

MCCC will argue the EPA in May 2023 failed these standards when it issued the Maules Creek EPL because it failed to consider the emissions of harmful pollutants, in particular:

  • Methane (CH4) — a powerful greenhouse gas; and
  • PM2.5s — Dust particles so fine that when inhaled they can enter the blood stream and cause cardio-vascular disease.

MCCC will also argue the EPA failed in another of its duties under s45 of the POEO Act, i.e., a requirement to consider whether Maules Creek mine and its parent company Whitehaven Coal was a “fit and proper person” to hold an EPL.

In support of this argument, MCCC will point to a litany of licence breaches by Maules Creek and Whitehaven that have resulted in more than $750,000 in fines and the issuing of at least 11 penalties, cautions, clean-up orders and prevention notices, as well as enforceable undertakings. The EPA only considered one current prosecution for a blast incident at the site in undertaking the review.

Consequences/precedence if the court rules in MCCC’s favour

The review of the EPL would be ruled invalid: If the court agrees with MCCC that the Maules Creek mine’s EPL was not lawfully reviewed, the EPA would be required to undertake the review again to consider the environmental impacts of all the harmful pollutants and ways of reducing those impacts.

Precedence and standards

Pollution: Depending on the nature of the ruling, the court may set a precedent requiring the EPA to undertake more detailed review of harmful pollutants through its licencing functions.  For the Maules Creek Mine, that would include methane (CH4) and fine particle pollution (PM2.5). This would significantly improve regulation of pollutants that are harmful to human health and to the climate.

Fit and proper person: The court may also make a ruling in relation to what level of unlawful behaviour and or non-compliance with licence conditions is sufficient to disqualify a person or a company as “fit and proper” to hold an Environmental Protection Licence under s45 of the POEO Act. It would also require the EPA to turn its mind to the compliance history at the site and determine whether it requires further licence conditions to prevent further environmental issues at the site.

Would the mine have to cease operations while the licence is reconsidered?

Operations at Maules Creek would continue. The company would likely be given time to adapt its operations to meet any new standards that may apply under a revised EPL.

About the Maules Creek EPL

EPLs need to be reviewed every five years. The EPA issued Maules Creek’s first EPL in 2013 and has been reviewed twice: in 2018 and 2023.

Under the current EPL, Whitehaven Coal’s Maules Creek mine is licenced to process, handle and produce 12 million tonnes of coal year. Pollutants regulated by the EPL include:

  • Metals, metalloids (zing, chromium, cadmium, mercury, nickel, lead, copper, arsenic and selenium);
  • Oxides of nitrogen (NO2 and NO);
  • Sulphur dioxide (SO2);
  • Carbon monoxide; and ozone (O3);
  • PM10 – coarse fine particles

Pollutants NOT regulated by the Males Creek EPL include:

  • Methane (CH4) — a powerful greenhouse gas; and
  • PM2.5s — Fine dust particles so fine that when inhaled they can enter the blood stream and cause cardio-vascular disease.

MAULES CREEK COAL MINE — RECORD OF NON-COMPLIANCE — 2015-2022   

The EPA failed to properly assess whether the company was a “fit and proper person” to hold an environmental pollution licence.   

Our client argues that the EPA was required to consider whether Maules Creek Coal Mine and its related body corporates are “fit and proper persons” to hold an Environmental Protection Licence under the Protection of the Environment Operations Act because it has frequently and flagrantly breached various environmental laws and licence conditions.   

These have resulted in more than $750,000 in fines and the issuing of at least 11 penalties, cautions, clean-up orders and prevention notices, as well as enforceable undertakings.  

SIGNIFICANT FINES — 2019-2022  

Offences   Fine date  Entity   Fine  
Three water pollution offences  Apr 2022  Maules Creek Coal mine  $158,750  
Unlawfully taking 1 billion litres of water without a licence   Nov 2021   Maules Creek Coal mine  $187,500  
19 breaches of mine licence conditions   Aug 2021  Narrabri Coal Pty Ltd and Narrabri Coal Operations  $372,500  
Blast fume event   Mar 2019  Whitehaven Coal Ltd  $38,500  
    TOTAL FINES  $757,250  

 Maules Creek coal and related entities have a very poor record of compliance. Since 2015 they have been issued with at least 13 orders and penalties of various types.   

 ENFORCEMENT ACTIONS — 2015-2021  

Type of action   No.  
Penalty notices  6  
Clean-up notices  2  
Prevention notices   1  
Official cautions  2   
Enforceable undertakings to improve performance  2  
TOTAL ACTIONS  13  

 RECORD OF COMPLIANCE — 2015-2021  

2021  
Nov 2021. Prevention notice issued by EPA that was subsequently varied 9 times between December 2021 and October 2022 until it was revoked in December 2022.  Aug 2021. Enforceable Undertaking with NRAR dated August 2021 to rectify offences under Water Management Act 2000 by ensuring diversions and dams were dismantled to ensure water is returned to Back Creek  Aug 2021. Official caution issued by EPA for burying waste tyres on the mine site without being licenced to do so.   
2020  
Aug 2020. Enforceable Undertaking with Resource Regulator in August 2020 over serious work health and safety incident at the mine site.   Apr 2020. Clean-up notice issued by EPA due to water pollution incident which was varied in May 2020  Mar-Feb 2020. Clean-up notice issued by EPA due to release of polystyrene balls into local water way.   Feb 2020. Penalty notice issued by DPE for failing to seek consent for construction of two water pipelines.  
2018  
May 2018. Penalty notice issued by EPA for failing to minimise dust pollution from truck movements on haul roads.  April 2018. Official caution issued by DPE for exceeding sound power levels of fixed plant in 2016 and 2017 in contravention of development consent.  
2017  
Mar-May 2017. Penalty notice issued by EPA for exceed standards of air impurities for failing to provide the government and with information and records during blast investigation.  Feb 2017. Penalty notice issued by EPA for failing to provide the government and with information and records during blast investigation.    
2015  
Aug 2015. Two penalty notices issued by DPE to the mine and neighbouring Tarrawonga mine for failure to implement proper weed and feral management control as per Biodiversity Management Plan