ICAG Inc. Vs Planning Dept & Gloucester Coal/Duralie Coal/Stratford Coal



On 10 November 2011, Justice Preston handed down judgment in this Class 1 Merits Appeal against the approval of the Duralie Extension Project, a new open cut coal mine 10 kms North of Stroud in the Gloucester-Stroud Valley, was approved to continue till 2021. 


ICAG Inc. continue to state since 2006 that the valley is being destroyed by Government approved mining, now we can sadly say the Land & Environment Court is also responsible for approving the destruction of this valley and river systems to Taree.  Duralie affecting the Port Stephens area via creeks that flow into Mammy Johnsons River/Karuah River.  The authorised killing of millions of wildlife being felled from their nests or unable to fly, run or jump away from falling trees or mining equipment, ALL go undocumented!


His Honour upheld the appeal by Ironstone Community Action Group (ICAG Inc.), and granted approval for the open cut coal mine till 2021, with revised conditions addressing three of the four issues raised by ICAG during the hearing - water, biodiversity and the Giant-Barred Frog. ICAG also made submissions with respect to fine particulate matter PM2.5, however his Honour declined to impose any specific criteria with respect to PM2.5.  Though he did state that trucks carrying coal along the road would need to be covered.


BIODIVERSITY Increased offset areas
The areas that must be maintained and enhanced for conservation purposes have increased from 444 ha to 680 ha, and the conditions include closer correlation with vegetation communities that are being cleared.


Greater correlation between clearing and offsets
Each of the native vegetation communities in which threatened species were identified have now been included in the vegetation offsets to be provided. The offset area now includes additional areas of three endangered ecological communities that were not previously included (Cabbage Gum Floodplain Forest, Riparian Close Forest and Freshwater Wetlands).

Increased obligations to maintain and enhance offset areas

The conditions of consent now provide completion criteria for enhancement of offset areas, and set out specific requirements for habitat resources of the threatened species in the clearing area. The consent also now sets out more explicit requirements for developing the implementing the Biodiversity Management Plan, for example it must include provision for the checking of vegetation to be cleared for threatened species and reporting to NPWS, and a program to monitor and report on the effectiveness of the measures implemented under the Plan.  (which have been burnt in a bush fire in October 2012, which ICAG Inc. see as extremely suspicious).


A "precautionary" approach
The revised conditions now require an evaluation of the biodiversity values of the vegetation in the offset area and development area to be carried out, in consultation with the Office of Environment and Heritage (OEH), and actions to be developed to directly offset the loss of biodiversity values from the development area.


Integration between management plans
The Court has added a condition that requires the Biodiversity Management Plan to describe how the offset strategy and its implementation will integrate with the other plans and their implementation (specifically, the Giant Barred Frog Management Plan, Water Management Plan and Rehabilitation Management Plan).


Offsets to be protected in perpetuity
Importantly, the conditions of approval require Duralie to either enter into a conservation agreement for the offsets under s69B of the National Parks and Wildlife Act 1974, or register a public positive covenant in favour of the Director-?General of Planning over the offset area, to remain in force in perpetuity. The agreement or covenant must also record Duralie's obligations under the conditions of approval to maintain and enhance those areas. The previous approval merely required payment of an unspecified amount as a conservation bond (which is also included in the revised conditions). The Minister had proposed a condition which merely required Duralie to "make suitable arrangements" for the long term security of the offset, which was rejected by the Court.  As stated large areas of this bushland have been burnt from a suspicious fire that started in October 2012, on both sides along Johnsons Creek Road and in the Giant Barred Frog habitat area, many of the fires started in the paddock and burnt 1/2 metre from the road, it appears that the fires in the majority have started on privately owned property.  The mining company surely must be alarmed about this, yet has said nothing of course to ICAG Inc., nor publicly?


The Court found that there would be no adverse impact on water flows or groundwater resources. With respect to surface water quality, his Honour made a number of changes to the conditions of approval for controlling discharge to Mammy Johnsons River (MJR) and monitoring of contaminants.  With no trigger levels, they are discharging into the unnamed creek and have been doing so since their exploration drilling in 2009 to 2012.


No direct discharge
The Court imposed a Condition requiring that there be "no direct discharge into Mammy Johnsons River". This means that there can be no runoff from the mine site, and the only places where water may enter MJR from the mine site is by the Unnamed Tributary to the north, and Coal Shaft Creek (CSC) to the south.


No water pollution
Any water leaving the mine site (ie from the Unnamed Tributary and CSC) must not constitute water pollution within the meaning of s120 of the POEO Act. This means that unless the mine is licensed to pollute by OEH, it cannot discharge dirty water into the river system at any point beyond the mine site. This is important, because under Part 3A, any licence must be consistent with the Part 3A approval.

Performance criteria and trigger levels must be set
The Water Management Plan must now include performance criteria and trigger levels (80th percentile in accordance with ANZECC guidelines) for investigating potentially adverse impacts on water quality of watercourses including CSC, MJR and Unnamed Tributary. In addition, the mine is required to test for contaminants other than just salt, including heavy metals, sediment load, pH, hardness and biological oxygen demand.

The triggers levels are to be set for controlling discharge from the additional irrigation areas into the Unnamed Tributary using ANZECC guidelines, being trigger levels that represent the 80th percentile of the data set for the Unnamed Tributary, and MJR, into which the Unnamed Tributary flows.


Additional monitoring requirements
The conditions now include a requirement for monitoring of surface water flows and quality in Unnamed Tributary, CSC and MJR, and an additional monitoring site in MJR immediately downstream of the mixing zone of the confluence between MJR and CSC. Ecotoxicity testing is now required in water storages onsite as well as in MJR and macroinvertebrate sampling is now required in MJR.


The Court did not impose a "no impact" condition for the GBF, as submitted by ICAG, and therefore the conditions require only "no more than a negligible impact". The Commonwealth approval imposes further limitations on release of water from the mine where a 20% decline or more in the local population has been detected.
One of ICAG's key criticisms of the current approvals was that it was not clear what constituted the "local population", therefore determining whether there has been an impact is almost impossible. Accordingly, the Court included an additional condition proposed by ICAG, requiring a detailed longitudinal study of the life cycle and population of the GBF to be carried out over the life of the mine, and 5 years after it ceases to operate. The study must be prepared in consultation with the OEH.

This longitudinal study will help to determine what constitutes the "population" of the GBF for the purposes of monitoring, to determine whether there has been any impact on that population for the purposes of the Commonwealth and State approvals.


DUST (PM2.5)
The original approval required only that Duralie take "reasonable and feasible avoidance and mitigation measures" with respect to air quality and dust. The Court has amended the revised approval to require that Duralie ensure that particular matter emissions do not exceed the criteria set in the approval for dust (Total Suspended Particulate Matter and PM10). Accordingly, the Court has now set enforceable criteria for dust (including PM10).
His Honour determined that the evidence did not establish a sufficiently likely risk to human health from levels of PM2.5 likely to be generated from the project to set criteria for PM2.5 specifically. His Honour noted that the criteria set for PM10 necessarily include PM2.5.



Noise from trains
The Court imposed additional conditions requiring noise mitigation measures to apply to land that is affected by rail noise between the Duralie and Stratford mines (as coal is to be transported between the two mines on trains). Train movements are now limited to between 7.00am and 10.00pm, whereas under the previous approval, Duralie had the option of applying for these times to be expanded. Now, any such application could only be submitted as a modification of the existing approval, which would require public consultation.


Dust from laden trains
The Court has added a condition that requires a study of dust from laden trains to be submitted to the Director-?General within three months of the date of the approval. This study must be used to update the Air Quality and Greenhouse Gas Management Plan, and the Director-General may direct Duralie to implement additional mitigation measures as a result of the study. The Court noted that it would make sense for the trains to be covered (as trucks are required to be), however declined to make a specific condition requiring this.