Abbot Point, coal & Caley Valley Wetlands: what’s the legal situation?
9 June 2017
UPDATE: EHP beach sediment testing results
On 31 May, EHP issued a media release about sediment samples taken from Dingo Beach, below the discharge point that recorded significant exceedance of the temporary emissions licence sediment limits. While EHP stated that “trace amounts of coal of between one and two percent were found”, it concluded that naturally occurring minerals and magnetite were “the most likely reason for the dark colouration observed at Dingo Beach” after the cyclone, and that those trace amounts “would be unlikely to cause environmental harm to the surrounding area”.
EHP took the sediment samples on 20 April, some 21 days after Adani returned to site after the cyclone on 30 March and discovered the discharge exceedance. In the release, EHP does not address the effect of this delay in its sampling, in what is likely to be in an area affected by tidal processes.
EHP stated that its investigation into the discharge of stormwater and assessment of any impacts into the Caley Valley wetlands is ongoing.
8 MAY 2017
UPDATE: Adani reports exceedance to EHP
Last week, EHP published a media statement that Adani Abbot Point Bulkcoal had advised it that:
- an exceedance of the water discharge limits in the temporary emissions licence occurred on 30 March 2017;
- the discharge contained 806 mg/L of sediment;
- the non-compliant discharge did not enter the Caley Valley wetland, but was from a licenced discharge point on the northern side of the terminal; and
- further investigations by ‘port management’ indicated that ‘no coal-laden water entered any marine environment’.
EHP stated that it will prepare an investigation report to inform what compliance action it will take, if any, in accordance with its enforcement guidelines. On 20 April, EHP took sand samples on the beach to check for coal in the discharge, with results “expected to be available by the week beginning 8 May 2017.” There is no explanation offered as to what contaminants caused the high sediment levels, or what total volume of water over the 100mg/L limit was discharged.
It also stated that “There are serious penalties for corporations whose non-compliance with their environmental authorities or temporary emissions licences causes environmental harm…”. While this is true, causing environmental harm (which includes potential adverse effects) is not strictly required for serious penalties for contravening a licence condition. However, any harm or potential harm is one factor that EHP will consider under section 3 of its enforcement guidelines in choosing any compliance action. It is not a certainty that EHP will elect to prosecute Adani and seek penalties, given the range of enforcement tools available to it.
Since EHP’s statement, Adani posted on its Facebook site a refute to assertions that it had discharged contaminated water, and that it had advised EHP of “a high sediment level in a sump pond inside the Abbot Point designated area”. Adani has also been reported in the media as stating that “no water was discharged or released into any marine environment” (ABC News). This reply is somewhat perplexing given that the TEL (and EA) limits relate to discharge, and required Adani to monitor discharge during a release from site. Those requirements did not require Adani to notify EHP of contaminant levels in stormwater simply being held onsite, such as in a sump pond. Instead, condition A9 of Adani’s EA requires Adani to notify EHP within 24 hours of a spill or release that, amongst other things, ‘may result in any observable environmental impact’.
EHP’s statement does not address any discharge that occurred to the Caley Valley Wetlands. As such, there is not yet any departmental explanation of the apparent contamination in the aerial photographs initially published in the media, and whether environmental harm was caused by a discharge there.
11 APRIL 2017
Environmental regulation of T1 coal terminal
You may have seen news reports of what looks like spillage from the Abbot Point coal terminal into the Caley Valley Wetlands in the aftermath of Cyclone Debbie. What Environmental regulation applies to the T1 coal terminal?
- Abbot Point Bulk Coal Pty Ltd (APBC) were required to obtain an environmental authority (EA) under the under the Environmental Protection Act 1994 (Qld) (EP Act) to conduct the environmentally relevant activities (ERAs) of bulk material handling (ERA 50-(1a)) and sewage treatment (ERA 63(1)(b)(i)) on land adjacent to the Caley Valley Wetlands at Abbot Point. Abbot Point Bulk Coal Pty Ltd (APBC) currently holds an environmental authority for the T1 coal terminal at Abbot Point.
- Under the EP Act it is an offence to unlawfully cause serious or material environmental harm.However, an act causing environmental harm won’t be ‘unlawful’ if it is authorised under an environmental authority (EA).
- APBC’s EA for coal stockpiling only permits discharges to waters at two locations if it meets certain water quality criteria including, for example, that suspended solids are below 30mg/L.
- It is an offence to contravene a condition of an environmental authority.
- APBC obtained a temporary emissions licence (TEL) to increase the release limits for total suspended solids from 30 mg/L to 100 mg/L during a 4 day period from 27 March 2017 to 30 March 2017 at two locations.
- It is an offence to contravene a condition of a TEL.
- It is also an offence to place a contaminant where serious or material environmental harm may be caused.
Want to know more? Click here for more detailed information with footnotes and links.