A succession of witnesses has appeared before the Justice Richard Beasley of the NSW Land and Environment Court in the prosecution of Maules Creek Coal mine for a series of 8 breaches of its Environmental Protection Licence. The charges arose after the Whitehaven Coal-owned mine caused dangerous levels of orange, red and purple nitrogen dioxide (NOx) fumes to be let off during October 2021-March 2022. In a heated exchange with Environment Protection Authority prosecutor Mr Phillip English, the parent company’s Chief Operating Officer Ian Humphris rejected claims that the blasts showed Maules Creek Coal did not blast in a “competent” manner.
For hours Mr Humphris sat in the witness box swivelling in his chair, slouching to his left, cocking one shoulder back in open defiance, sucking his teeth and giving side-eye, all of which gave the strong impression he felt entirely above the proceedings. Answering questions about the tendering process in which South Korean contractor Hanhwa was replaced by explosives company Enaex, he placed blame for toxic blast fumes squarely on inferior blasting materials manufactured by Chilean-based Enaex.
Enaex has an integrated “drill and blast” service contract across all Whitehaven Coal open cuts, some of whose contractors earlier gave evidence to the Court of “bench practices that need improvement” at the mine (“bench” meaning the surface to be blasted) and “there were weaknesses with the skills of the Maules Creek blast crew”. The Court heard of minimal training being given to blasting crew when the transition from Hanwha ammonium nitrate fuel oil gel-based product to Enaex gassed explosives.
Apart from Whitehaven Coal’s prior record of creating blast fumes, which include an EPA warning and official caution at Tarrawonga Coal Mine (2018), and a conviction over NOx fumes at Rocglen (2019), until now blast fume prosecutions are rare in NSW, Wambo Coal Mine (two repeat blast fumes, 2012 and 2014) and Mount Arthur Coal mine (single blast fume, 2015) being exceptions. Whitehaven Coal also has an additional blast-related enforcement history with a blast overpressure penalty notice at its Werris Creek Coal mine (2018), and a clean up notice and conviction for polluting Back Creek, a tributary of Maules Creek (2020, 2021). (Source: “A decade of incidents, fines and breaches of the law by Whitehaven coal”, Lock the Gate Alliance”)
Environmental Superintendent at Maules Creek Coal, Emma Bulkeley, gave evidence around one of seven incidents named Blasts A-G, where she was in the mine office when she was contacted with news that the fume was travelling in a north east direction towards “offsets”. Describing measures in place under the Maules Creek Coal mine’s Pollution Incident Response Management Plan (or PIRMP), Ms Bulkeley told the Court that a “boundary observer” would watch the blast and tell Whitehaven management if it was likely to move offsite. Confirming her affidavit evidence, she said “if available, they will observe and place gas monitors”.
Other than repeatedly telling the Court that the gas monitors were “size of a coke can”, no evidence was presented as to the capability, range and precision of the instruments being referred to.
Although dispersion modelling is undertaken prior to blasts to predict the direction and likely speed of blast impacts, when the modelling is incorrect and workers are in the path of the blast fume, Ms Bulkeley said they should “retreat to their cars and turn on the air recycle function”. Ms Bulkeley’s evidence has revealed serious gaps in explaining the mine’s Pollution Incident Response Management Plan.
Her comments concerning the Maules Creek Biodiversity offsets – directly in the path of blast fumes – were revealing. When Judge Beasley expressed understanding that the offsets being spoken of were “a forest”, Ms Bulkeley corrected him, saying “no, a paddock”. This was a troubling admission from the Environmental Superintendent, as those “paddocks” were supposed to be the offsets for Leard State Forest where the coal mine is situated.
The “no email directive”
However, possibly the most controversial statements of the trial came from an independent blasting engineer of over 30 years experience Mr Ross Burden, who had been charged with the job of overseeing the transition of the Maules Creek mine from Hanwha to Enaex products in 2021. He told the Court that difficulties in adjusting to the new products could have been achieved “with motivation”. A key question in the trial has been whether sufficient trial blasts were undertaken before commencing production blasts with Enaex product.
Even more troubling was an email sent by Mr Burden which was read out, alluding to a “no email directive” made by the Maules Creek team to the blasting contractors, and the mine’s request that all discussions about the failed blasts be in phone calls.
The trial continues during the week commencing Monday, 25th May in Court 13a of the NSW Land and Environment Court, and can be heard by the public live in the public gallery or via livestream.