Clermont Quarries Pty Ltd v Isaac Regional Council [2020] QPEC 18 [2021] QPELR 65

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Clermont Quarries Pty Ltd v Isaac Regional Council [2020] QPEC 18 PARTIES: CLERMONT QUARRIES PTY LTD (ACN 152 941 001) (appellant) v ISAAC REGIONAL COUNCIL (respondent) and ECL DALBY PTY LTD (co-respondent) and CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING (co-respondent by election) FILE NO/S: 423 of 2019 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 22 May 2020 DELIVERED AT: Brisbane HEARING DATE: 1, 2, 3, 4, 8, 9, 10, 21, 22 October 2019, with further written submissions received to 9 March 2020 and a further hearing on 8 May 2020 JUDGE: Rackemann DCJ ORDER: 1. The development application will be approved subject to conditions to be determined after hearing further from the parties. 2. The appeal will otherwise be dismissed. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – submitter appeal – application for a development permit for a material -- 1 of 68 -- 2 change of use for an extractive industry and environmentally relevant activities – where the site is listed on the Environmental Management Register pursuant to the Environmental Protection Act 1994 (Qld) because of notifiable activities having been carried out – where the proposed material change of use and environmentally relevant activities involve the extraction, processing, testing and export of gravel from a heap pile at the site left over from a former gold mine – where there are elevated levels of arsenic and copper in the material – whether the material is contaminated – whether the proposal is likely to cause undue land contamination, human health, ecological and/or environmental impacts – whether adequate controls are available to appropriately safeguard against the risks associated with the inappropriate use of the material once it has been exported from the site – whether conditions of approval can be formulated to address those risks PLANNING AND ENVIRONMENT – EXPERT WITNESSES – where experts remained in disagreement in many respects following the expert meeting and joint report process – where the Court was invited to make adverse findings about the credibility of some experts – whether one or some of the expert witnesses fell short of demonstrating the qualities of a dispassionate and objective expert witness CASES: Esteedog Pty Ltd v Maroochy Shire Council [1991] QPLR 7 GFW Gelatine International Ltd v Beaudesert Shire Council [1993] QPLR 342 Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21 Ward v Rockhampton Regional Council [2015] QPELR 252 LEGISLATION: Environmental Protection Act 1994 (Qld) Part 3, Subdivision 3, ss 440ZD, 440ZF, 440ZG, Sch 3 Environmental Protection Regulation 2019 (Qld) s 65, Sch 10 Mineral Resources Act 1989 (Qld) Planning Act 2016 (Qld) ss 5, 45, 59, 60, 65 Planning and Environment Court Act 2016 (Qld) ss 45, 46, 47 COUNSEL: B Job QC and M Batty for the appellant J Dillon for the respondent D Gore QC and J Ware for the co-respondent A Skoien for the co-respondent by election SOLICITORS: Connor O’Meara Solicitors for the appellant -- 2 of 68 -- 3 King and Company Solicitors for the respondent Thynne & Macartney Lawyers for the co-respondent Corrs Chambers Westgarth for the co-respondent by election -- 3 of 68 -- 4 Table of Contents Introduction .......................................................................................................................... 5 The proposal ......................................................................................................................... 5 The decision framework ....................................................................................................... 7 The issues – An unusual case ............................................................................................... 8 Risk ....................................................................................................................................... 9 Credibility of some experts .................................................................................................. 9 Is the material contaminated? ............................................................................................. 17 NEPM – A Guide ............................................................................................................... 18 Some matters of agreement ................................................................................................ 20 Human health ..................................................................................................................... 21 (i) Testing ........................................................................................................................... 21 (ii) Land use types - HILs................................................................................................... 22 (iii) Bioavailability ............................................................................................................. 23 (iv) Comparison with HILs ................................................................................................ 25 (v) Use of averages ............................................................................................................. 26 (vi) The fines ...................................................................................................................... 28 (vii) Effect of controls ........................................................................................................ 31 (viii) Conclusion on human health ..................................................................................... 32 Environment/ecology ......................................................................................................... 32 (i) NEPM – EILs and ageing factor .................................................................................... 32 (ii) Agriculture .................................................................................................................... 34 (iii) Groundwater ................................................................................................................ 35 (iv) Surface discharge – aquatic ecosystems ...................................................................... 35 (v) Acidity .......................................................................................................................... 42 (vi) Conclusion on environment/ecology ........................................................................... 49 ‘Real world’ experience ..................................................................................................... 49 (i) The road ......................................................................................................................... 49 (ii) The pit water ................................................................................................................. 53 Control – conditions ........................................................................................................... 56 Conclusion .......................................................................................................................... 68 -- 4 of 68 -- 5 Introduction [1] This submitter appeal is against the respondent’s approval of an application for a development permit for a material change of use for an extractive industry and environmentally relevant activities (16(2b) – extraction and 16(3b) – screening) in respect of land at Gregory Development Road, Frankfield (about 90km north west of Clermont). The co-respondent by election was a concurrence agency to whom the development application was referred in relation to matters within the jurisdiction of the Department of Transport and Main Roads (proximity to a State-controlled road) and the Department of Environment and Heritage Protection (the environmentally relevant activities). The co-respondent by election supports approval of the application subject to conditions. The appellant was the only adverse submitter with respect to the development application. The proposal [2] The subject land is “Mazeppa Park”, a former gold mine which ceased operation some 25 years ago leaving behind approximately 4 million tonnes of gravel in a heap pile, together with mining infrastructure. The site is listed on the Environmental Management Register (EMR) because of notifiable activities having been carried out (mine waste and minerals processing). The ‘heap leaching’ mining process involved: (a) excavation of rock from its original location on the subject land, thereby creating a large pit; (b) crushing and placement of the extracted rock into a heap; (c) irrigation of the heap, including the addition of cyanide, together with lime (to prevent the cyanide entering its gaseous state) to encourage the gold to leach out of the rock; (d) collection of the leachate containing the gold in processing ponds; (e) removal of the gold, and (f) use of a drainage system to keep external water out, whilst directing internal water ultimately to the pit. [3] The proposed material change of use and environmentally relevant activities would involve the following: (a) extraction of rock (gravel) from the heap; -- 5 of 68 -- 6 (b) processing of the extracted material by screening, to produce hard gravel of an appropriate size; (c) placement of that screened material into stockpiles; (d) testing of stockpiles to ensure levels of particular elements do not exceed certain threshold levels; (e) export of suitable material for certain limited uses, and (f) discard of unsuitable material into the pit. [4] The material has value for uses which include as road base. Material from the heap has, in the past, been used to supply road base prior to the Council informing the co- respondent that a development approval was required. [5] The material is proposed to be distributed only:1 (a) by vehicles under the control of the owner/operator; and (b) for storage/use within the Isaac region local government area, but excluding: (i) the towns of Clermont and Moranbah2 (however a site is zoned or used); (ii) any area used for residential or rural residential purposes; (iii) roads in, or directly adjacent to, any residential or rural residential subdivision; (iv) as base for, or as course aggregate for erosion control in, public drainage infrastructure, or (v) within, or within 20 m of the boundary of, a matter of State environmental significance3 or an area of ecological significance4; and (c) for the purposes of use: (i) for road or rail infrastructure by government (including government instrumentalities or government owned corporations) or a holder or beneficiary of a mining lease or other tenure under the Mineral Resources Act 1989; (ii) at sites the subject of a mining lease under the Mineral Resources Act 1989, or 1 Ex 24B. 2 And, in the case of Moranbah, its environs as shown on a particular zoning map. 3 As defined under State policy. 4 As defined under NEPM. -- 6 of 68 -- 7 (iii) for building work or operational works on sites zoned and used for industrial purposes. [6] The proposed threshold levels for the stockpile tests set out in Table 205 of a proposed Environmental Management Plan (EMP) were as follows: Units Threshold Acid & Metalliferous Drainage Testing Paste pH None >5.0 NAPP None Negative NAGpH None ≥4.5 Total S mg/kg Not directly relevant. Used to calculate NAPP. Salinity and Sodicity Testing EC (saturated) dS/m <10 CEC cmol(+)/kg <10 ESP % <6 Enriched Metal Testing (As and Cu only) Total As mg/kg <500 Total Cu mg/kg <100 ASLP – As mg/L <50 ASLP – Cu mg/L <50 TCLP – As mg/L <100 TCLP – Cu mg/L <100 EDTA – As mg/kg <100 EDTA – Cu mg/kg <50 PBET – As % <50 PBET – Cu % Not correlated with animal models Cyanide Testing Cyanide mg/kg <500 [7] A register is proposed to be kept, to record the details of all deliveries of material off- site. That is to be provided to the respondent on a regular basis and available for inspection at any time. The decision framework [8] The development application was lodged in January 2015. The Planning Act (PA) and the Planning and Environment Court Act (PECA) commenced on 3 July 2017. 5 Ex 3 pg 937. -- 7 of 68 -- 8 The appeal was filed on 7 February 2019. As confirmed in Jakel Pty Ltd v Brisbane City Council,6 the Court is to determine the appeal on the basis of the statutory assessment regime set out in the PA (rather than the Sustainable Planning Act 2009). [9] The appeal is by way of hearing anew. Pursuant to s 45 of the PECA, the co- respondent bears the onus of establishing that the appeal should be dismissed. The orders which the Court makes on the appeal are governed by s 47 of the PECA. The development application required impact assessment, which is carried out as required by ss 45(5)-(7) of the PA.7 Section 60 of the PA confers a discretion in deciding the application. Where an application is approved subject to conditions, the conditions must:8 (i) be relevant to, but not be an unreasonable imposition on the development or the use of premises as a consequence of the development; or (ii) be reasonably required in relation to the development or the use of premises as a consequence of the development. The issues – An unusual case [10] This is a somewhat unusual case. It does not involve issues concerning the impacts of on-site activities which often arise in cases of proposed extractive industries. Instead, the controversy is about the potential for the material, once it has been exported from the site, to cause environmental and land contamination, human health, ecological and/or environmental issues (including in relation to the control of the material, once it has left the site) elsewhere. The parties agreed9 that resolution of those issues would be determinative. [11] This appeal is also unusual for other reasons. Since the implementation of this Court’s system of expert meetings and joint reports, the extent of disagreement amongst experts appointed in a given case, particularly from scientific fields of expertise, has typically significantly narrowed through that process, leaving the Court to determine a confined range of residual areas of disagreement. Further, disputes about testing regimes and methodology have become rare, since the experts can usually agree on 6 [2018] QPEC 21. 7 Pursuant to s 59(3) of the PA, subject to s 46(2) of the PECA. 8 s 65(1) PA. 9 Ex 39, read with T7-2, 3. -- 8 of 68 -- 9 such matters and carry out testing which satisfies them. This case is an exception. The experts, particularly those who participated in the joint environmental and land contamination report (ELCJR), remained in disagreement in almost all respects, including as to the adequacy of testing. Further, and quite exceptionally, the Court was ultimately invited to make adverse findings about the credibility of 3 of the experts who participated in the ELCJR. Risk [12] The case involves a consideration of the risk, in particular to human health and/or the environment, potentially associated with a proposal. That is not unusual. Whilst the submissions for the appellant pose the question10 “why take the risk?”, the Court has long resisted the attractions of avoiding responsibility for allowing a proposal which has been demonstrated to have some risk unless handled appropriately.11 Consideration needs to be given to the nature and extent of the risk and to the ways and means by which it is proposed to be addressed or managed.12 Whilst, in more recent times, the precautionary principle has received statutory recognition,13 that principle (which the appellant did not invoke) does not call for a nervous approach, or one which is intolerant of any risk under any circumstances. Further, in addressing risk, it must be remembered that whilst the onus lies on the co-respondent to establish that the appeal should be dismissed, the standard of proof remains the civil standard. Credibility of some experts [13] Attacks were made on the credibility of 3 of the 5 experts who participated in the ELCJR. No attacks were made on any of the 4 experts who contributed to the human health, ecological and environmental joint expert report (HHEEJR), including the two (Mr Stuckey and Mr Sutherland) who also contributed to the ELCJR. [14] Attacks were made on the credibility of both Mr Lee (an environmental scientist) and Dr Robertson (a geologist), who were retained by the appellant. It was said, in the submissions for the co-respondent, that the challenge was to the ‘credibility’ of their evidence in the broad sense of it not being worthy of acceptance, although the 10 Para 257. 11 GFW Gelatine International Ltd v Beaudesert Shire Council [1993] QPLR 342. 12 Esteedog Pty Ltd v Maroochy Shire Council [1991] QPLR 7. 13 See s 5(2)(a)(ii) of the PA. -- 9 of 68 -- 10 submissions went on to allege that each showed a lack of true independence and showed signs of being an advocate for their client’s cause. [15] It was submitted, for the respondent, that Mr Lee’s evidence was partisan and should be given little weight.14 The submissions for the Chief Executive did not, in terms, challenge the credibility of Mr Lee or Dr Robertson, but referred to their unco- operative approach and to certain aspects of their evidence. [16] There were some difficulties with both Mr Lee and Dr Robertson’s evidence. The first was that, in the joint report, they purported to give some joint opinions that were, in fact, opinions which were the province of one or the other. That is, they represented that they ascribed, as an expert, to opinions that were not theirs to express in circumstances where Dr Robertson was to deal with acid leachability and Mr Lee with contamination issues otherwise.15 When this became apparent, the joint report was altered after the event, by colour coding, to identify which of the professed joint opinions should, in fact, be taken to be the opinions of one or the other or were, in fact, legitimate joint opinions.16 Dr Robertson’s explanation was to the effect that, at the time, he did not fully understand the limited nature of his brief.17 Mr Lee’s explanation was more perplexing, since he put it down to his enthusiasm to express a view.18 [17] Mr Lee and Dr Robertson did not confine themselves to a dispassionate assessment of the current application, considered on its own merits within their fields of expertise. Instead under the heading ‘undesirable precedent’ in the ELCJR19 they expressed the joint opinion that approval would set an “undesirable precedent” which might encourage some existing mine operators elsewhere to fail to provide for rehabilitation and closure of their sites. Further, they warned that use of the material for infrastructure for a certain specific mining project would justify significant criticism of environmental management in the State, especially having regard to the fact that the specified venture is already under close public scrutiny. Those arguments are 14 Para 52. 15 Ex 3A. 16 Ex 6B. 17 T6-7. 18 T5-63. 19 Ex 6B pg 27. -- 10 of 68 -- 11 more adversarial than evaluative in nature. They were not relied upon in submissions for the appellant. [18] Mr Lee’s enthusiasm for expressing a view did not stop at putting his name to views in the ELCJR which, in fact, were properly those of Dr Robertson alone. He also saw fit to express a view about the necessity for the export of gravel from the stockpile to be authorised by another type of approval as well.20 He went on further to express a negative view about the prospects of obtaining such an approval and what he saw as the legal and practical impossibility of ultimately achieving what the co-respondent proposes. Not content with that, he went on to recommend the return, to the stockpile, of material previously taken from it and the prosecution of those responsible. Those contentions are discussed later, but they are not what one would expect of an expert who is focused on the task of dispassionately and objectively expressing professional opinions about matters within his field of expertise relating to the issues in dispute in an appeal against the Council’s decision on a particular development application. Understandably, it was not relied on in the submissions on behalf of the appellant. [19] Mr Lee’s enthusiasm to express a view perhaps also underlay his contention that the proposal, if implemented, would not only have adverse environmental impacts but also cause serious economic problems for Central Queensland that would be difficult, if not impossible, to ever reverse.21 Mr Lee is not an economist. Understandably, his fear of economic impact was not taken up in the appellant’s case. [20] Mr Lee took some extreme positions and sometimes expressed himself in unnecessarily strong terms. For example, as is discussed later, it was accepted by all of the experts involved in the HHEEJR, including a well-qualified expert engaged by the appellant, that a bioavailability value for arsenic of less than the default 70% assumed in the National Environmental Protection (Assessment of Site Contamination) Measure 1999 amended 2013 (NEPM) could be derived from the data obtained from tests of the on-site gravel material (which suggested a significantly lower percentage).22 Mr Lee, on the other hand, swam against the tide, insisting that there should be no downward adjustment of the 70% at all, notwithstanding the data. 20 Ex 6B pg 15, 16. 21 Ex 6B pg 21 lines 720-724. 22 Although there was a debate about whether the adjusted figure should be on the basis of the average or the maximum from the dataset. -- 11 of 68 -- 12 He said that the approach would not only be unprecedented, undocumented and unproven but potentially dangerous as well. The submissions for the appellant did not invite the Court to accept his view. [21] In dealing with evidence concerning water quality in the pit (discussed later) he not only adopted the position that no stormwater drainage from the stockpile may actually reach the pit23 but, when cross-examined about that choice of words, colourfully said (underlining added):24 “Now I’m saying – I’m still saying the same thing. And I’m saying that – what did I say? Probably doesn’t reach the pit or definitely doesn’t reach the pit or it hasn’t got a snowball’s chance in hell of reaching the pit. Would that be - - - It’s your evidence - - -? --- - - - fairly clear?” Whilst there was room for debate about the extent to which water from the stockpile reaches the pit, given, for example, the poorly maintained condition of the drainage system (discussed later), Mr Lee’s statement about there being not a “snowball’s chance in hell” was overly strong and an overreach. [22] In dealing with the potential for arsenic from the material to be present in runoff from a road, Mr Lee raised the somewhat dramatic prospect of arsenic making its way to the Great Barrier Reef.25 That did not feature in his contribution to the ELCJR or in his trial report. It is, for the reasons given later, unlikely. [23] Whilst Mr Lee was correct to observe that NEPM is not designed to be used for the purpose of assessing the export of material from one site to another, he was out of step with each of the experts who participated in the HHEEJR in being unprepared to acknowledge that it nevertheless provides useful guidance. Senior Counsel for the appellant expressly did not urge the Court to adopt Mr Lee’s position. [24] Mr Lee could not give an adequate explanation for his initial (but later retracted) assertion that certain values under NEPM are not considered appropriate for quarry 23 Ex 19 pg 5, T4-94-98. 24 T5-66. 25 T4-90. -- 12 of 68 -- 13 materials. That, in itself however, would not lead me to make an adverse finding in relation to his credibility generally. [25] Although dismissing NEPM as irrelevant and testifying, in relation to the figures in Table 2 of Mr Stuckey’s report, that “to be honest, I haven’t even hardly looked at them”,26 Mr Lee asserted, in the ELCJR,27 that the material is considered to pose a risk to human health and safety if used in any of the land use scenarios (HIL A, HIL B, HIL C or HIL D) in NEPM. In his testimony however, he had to accept that the material met the criteria for at least one of the land use scenarios (HIL D) and appeared to shift ground by saying that his statement in the ELCJR should be understood as saying that it is not suitable for HIL D because, in his view, there is, in effect, a prohibition on the material being taken off site.28 He said that the relevant criteria is that for HIL A29 if the material was to go off-site, but did not otherwise meaningfully engage in a balanced risk assessment process. He seemed more intent on being critical. [26] Unlike Dr Wright (a human health and environmental toxicologist and risk assessor engaged by the appellant), Mr Lee was loath to make appropriate concessions under cross-examination. An example of his reluctance lies in the cross-examination of him in relation to his reliance on results of a single sediment sample taken from the base of the stockpile and his description of results as being ‘typical’ of the situation in the stockpile. [27] The results to which Mr Lee drew attention showed, amongst other things, an arsenic concentration of 3,100 mg/kg. When cross-examined about whether that was indeed ‘typical’ for the stockpile, or whether, by using a sample from that location he was ‘cherry picking’ data, Mr Lee responded by saying that it would be typical of the fine material. When he was challenged as to whether it was ‘typical’ even on that (altered) basis, he asserted that the figure was fairly close to that of 4,448 mg/kg which he recalled as “an average” figure for fines presented by Mr Short. When taken to the results of that testing, which revealed the 4,448 mg/kg to be the maximum of the 15 26 T4-107. 27 Ex 6B pg 12 l 404. 28 T4-106. 29 T4-102. -- 13 of 68 -- 14 results presented30 (each result being the average of 2 samples at the same location), rather than the average of all samples, Mr Lee again shifted ground by saying that the 3,100 mg/kg was “the same order of magnitude” as all of the results and “there’s some lower, there’s some higher. One higher … the 4448, by the way is an average of two others. I mean, I – you know. It’s similar”. In fact the 4,448 mg/kg is far and away the highest result, with the next highest result being only 1,707 mg/kg and other results then ranging down to just 150 mg/kg. The mean was 1,111 mg/kg. When I observed that the rest of the results were less than half the highest figure, Counsel for the respondent gave Mr Lee an opportunity to further revise the opinion. Mr Lee then gave the following floundering response in which, rather than making a clear concession or correction, he attempted to make a concession of sorts, that the result “doesn’t quite fit into the other range of data”, whilst holding to the contention that it is ‘typical’ of the fine material:31 “---I might have been a bit clumsy with the words there, your Honour. It’s typical of the fine material. I thought it doesn’t quite fit into the other range of data. It’s close to the higher – it’s close to a maximum.” [28] It is, as I have observed, rare for an expert’s credibility to be challenged in this Court. In my experience experts who give evidence in this Court generally show a commendable commitment to their professional objectivity, the proper role of an expert witness, and to the oath they give as witnesses. On this occasion however, I have, after considering Mr Lee’s evidence as a whole, reluctantly come to the conclusion that he fell short of demonstrating the qualities of a dispassionate and objective expert witness. I do not mean to imply that he consciously decided to take on the role of advocate, but for whatever reason, his performance did not always demonstrate the qualities to which I have referred. Whilst that assessment adversely affected the weight of his evidence, I nevertheless gave consideration to the content of what he had to say, to the extent it was relevant to the issues as litigated by the parties. [29] Dr Robertson’s evidence was not free of difficulty either. The difficulties with the ELCJR, including his participation in the ‘undesirable precedent’ section, have 30 Ex 3 pg 778. 31 T5-44. -- 14 of 68 -- 15 already been canvassed. Further, he gave a significant amount of testimony which went beyond the ELCJR or his individual report and he appeared inclined to take critical or negative positions. Having considered his evidence as a whole, I was not however, left with the same level of concern as with Mr Lee. Dr Robertson came across as a person who is very confident about his own expertise and opinions. He appeared keen to assert his experience, managing to work a reference to his 25 years of mining industry experience into his answers on no less than 5 separate occasions. He might struggle to accept different points of view, but I was left short of being prepared to find that he took on the role of a partisan or to otherwise make an adverse finding in relation to his credibility generally. [30] The appellant challenged the credibility of Mr Short (a soil scientist engaged by the co-respondent) and his evidence on the following bases: (a) his endorsement, in his trial report, of condition 11 of the approval and the closure and rehabilitation plan referred to therein, as being “appropriate and achievable” notwithstanding that the document is described as preliminary and conceptual and, as he conceded in cross-examination, he: (i) had no involvement in its preparation and did not know who did; (ii) was unsure of where benches referred to therein would be located, or why there was reference to vegetation or what vegetation would be required under the plan; (iii) was unsure of the proportion of material to be removed from the site in accordance with the plan (or the criteria for its removal) or the volume of material required to go back into the pit to fill the void as contemplated by the plan; (b) his evidence that he was not aware of any natural water bodies in the area, in circumstances where one was demonstrated by Ex 53; (c) his post joint report circulation of relevant material to other experts retained by the co-respondent, but not to Mr Lee and Dr Robertson; (d) his initial reluctance to acknowledge that water in the pit contains copper concentrations in excess of guidelines. [31] Insofar as the closure and rehabilitation plan is concerned, Mr Short’s evidence about condition 11 needs to be read in context. He was, in that part of his report, responding to Mr Lee’s characteristically strong statement that “the stockpile area has no -- 15 of 68 -- 16 potential to be returned to rural production of any value”. In response he pointed to his experience in rehabilitating mine sites that have successfully returned to agricultural land uses. He was forthright in the answers he gave under cross- examination. His point was that he read the document at a conceptual level and saw no reason why the site could not be fully rehabilitated, but he acknowledged that he could not answer as to the ‘finite detail’.32 This response, read in the context of the allegation of Mr Lee to which he was responding, does not give me concern as to his credibility. [32] The post joint report material to which reference was made was that which was produced in the course of the cross-examination of Mr Sutherland (Ex 51). The material was proof of a sale of material to the Department of Transport and was relevant because, in the joint report, Mr Lee and Dr Robertson had questioned whether Mr Short’s roadside samples represented gravel from the site. The document was provided to Mr Sutherland, with a copy to Mr Stuckey, under cover of an email in which Mr Short expressed a hope that there would be another joint expert process. That would appear to be inconsistent with the notion that he was seeking to hide something from Mr Lee and Dr Robertson. When cross-examined about the matter,33 Mr Short said that he did not keep Mr Lee and Dr Robertson in the loop because the conclave process had concluded, but he had hoped there would be another joint meeting “to enable us to talk about it again”. It would have been better had Mr Short provided a copy to Mr Lee and Dr Robertson, but the evidence concerning the circumstances in which he failed to do so does not lead me to doubt his credibility. [33] The criticism of Mr Short’s supposed reluctance to acknowledge that the pit water contains a copper concentration in excess of guidelines is not, in my view, well founded. He simply could not recall the relevant test results and guideline values without being taken to the details which were in the report. The evidence in Ex 53 of referable wetland areas, notwithstanding that Mr Short was not aware of any natural water bodies in the area, does not cause me to make any adverse finding about the credibility of Mr Short or his evidence generally. [34] I reject the attack on the credibility of Mr Short and his evidence generally. 32 T3-33. 33 T8-28. -- 16 of 68 -- 17 Is the material contaminated? [35] In the ELCJR, Mr Lee contended34 that: (i) the material from the site would be contaminated soil for which a disposal permit would also be required before it could lawfully be taken from the site; (ii) such permits are only approved if the material is going to a licensed landfill for final interment or to sites already listed on the EMR; (iii) it will never be legally or practically possible to remove the material from the site (other than to a licensed landfill of which there are none in Clermont); (iv) no permit having been obtained in the past: • illegally removed material should be recovered and returned to the stockpile, and • the parties that removed it should be prosecuted. [36] As was submitted for the co-respondent, the gravel is crushed rock, rather than soil. As was also pointed out on behalf of the co-respondent, consistently with the evidence of Mr Stuckey35 (a contaminated land auditor), contamination involves the addition of something which represents, or potentially represents, an adverse health or environmental impact. In this case, whilst cyanide was added during the gold mining, it is at levels that are of no real concern. Testing has revealed only trace amounts of cyanide in the material and leachate on site. For example, out of 15 samples taken in 2015, cyanide was undetectable in 6 samples and the remaining samples had a mean of only 5.9 mg/kg (ranging from 0.8 to 18 mg/kg).36 The proposed testing regime is to include total cyanide,37 to ensure that it is less than 500 mg/kg (being a third of that for the HIL for the relevant land use under NEPM). Senior Counsel for the appellant disavowed reliance upon any point about cyanide.38 [37] Mr Lee’s point about the need for another approval was not taken up in the submissions for the appellant. In particular, it was not submitted, on behalf of the appellant, that the proposal is a futility for the reasons advanced by Mr Lee, or at all. 34 Ex 6 pg 15, 16. 35 Ex 13 pg 39, T3-68. 36 Ex 45 pg 8. 37 Which can never be exceeded by free cyanide – Ex 45 pg 8. 38 T10-26. -- 17 of 68 -- 18 [38] The submissions for the appellant described the material as ‘contaminated’ and referred to the levels of arsenic and copper in it. There are elevated levels of arsenic and copper in the material, but they occur naturally. Further, the only material to be exported from the site is that which passes the testing regime that includes thresholds for arsenic and copper. That is intended to ensure that, so long as the material is used in accordance with the proposed restrictions, it will not cause environmental harm or cause a site to be listed on the EMR.39 [39] The above does not mean, however, that the chemicals in the material are of no concern. The co-respondent itself acknowledges that the material would not be appropriate for use in some circumstances. What falls for consideration is the evidence about the nature of the material, the risks its export from the site might potentially pose and the adequacy of the proposed testing regime and controls on its distribution, in addressing such risks. NEPM – A Guide [40] The four experts (Professor Ng, Mr Stuckey, Mr Sutherland and Dr Wright) who produced the HHEEJR agreed40 that NEPM provides appropriate guidance, in this case, for the assessment of risk to human health and the environment.41 Two of those four experts (Mr Stuckey and Mr Sutherland) also participated in the ELCJR. No similar agreement was reached in that report. Mr Lee, in particular, did not agree with NEPM being used in relation to the export of material from the subject site, in the absence of a risk assessment being carried out at each of the proposed destination sites.42 In the absence of an individual study of each receptor site, he considers it impossible to quantify the risk.43 [41] NEPM provides guidance in the assessment of a site to determine the human health and ecological risks associated with the presence of site contamination and to inform any remediation or management plan. It does so by, amongst other things, providing a framework for the use of investigation and screening levels, including health 39 Ex 13 para 102(d). 40 Ex 7 para 17. 41 They also saw the Australian and New Zealand Guidelines for Fresh and Marine Water Quality (ANZG) as providing appropriate guidance. 42 Ex 19 pg 3. 43 T4-109. -- 18 of 68 -- 19 investigation levels (HILs) and ecological investigation levels (EILs). That framework is based on a matrix of human health and ecological soil and groundwater investigation and screening levels and guidance for specific contaminants. The selection of the appropriate investigation and site-specific considerations is intended to be guided by development of a conceptual site model. [42] Insofar as the application of the investigation and screening levels is concerned, a ‘Tier 1’ assessment of site contamination involves comparing representative site data with generic investigation levels and/or screening levels to determine whether further assessment is required. Where the Tier 1 assessment shows exceedance of the levels indicative of likely adverse impact then a site-specific health and/or ecological risk assessment (Tier 2 or 3) should be carried out as appropriate. [43] Mr Lee is correct, in that NEPM is directed to a site which is contaminated, rather than to a consideration of whether material can be exported from one site to another. This case is not a contaminated land assessment. NEPM itself states44 that investigation and screening levels should not be used to condone the discharge of waste up to those levels. That is not to say however, that the information contained therein is of no assistance where, as here, the suitability of a natural product (with elevated levels of some chemicals) for use elsewhere falls for consideration. That is particularly so in circumstances where the experts, or at least some of them,45 have sought to carry out a risk assessment process by characterising the material, the purposes for which it is proposed to be used and the exposure pathways to the receptors. I accept the evidence of the other experts, including Dr Wright, who was directly involved in the development of the current NEPM,46 and Professor Ng, who was part of the committee that guided and oversaw development of the HILs, including for arsenic,47 to the effect that it can provide guidance.48 Indeed Senior Counsel for the appellant, in the course of oral submissions, expressly did not go so far as to adopt Mr Lee’s position, but rather accepted that it is quite permissible for the document to be used as a guide.49 That is consistent with the written outline in 44 Ex 5 pg 4 para 2.1. 45 Dr Robertson did not refer to or rely on NEPM. Mr Lee’s approach is discussed elsewhere. 46 T7-34. 47 Ex 44 pg 3. 48 See e.g. Wright T7-73. 49 T9-49. -- 19 of 68 -- 20 which “the Appellant accepts that the NEPM has a role to play in the assessment of the proposal”. I respectfully agree. [44] It was pointed out, on behalf of the appellant, that one of the limitations of using NEPM as a guide in circumstances such as the present, is that there is no conceptual site model for any of the sites which might receive the material. It was observed that conditions may vary on receptor sites in relevant respects. It was submitted that if, for example, the material is used at a site where the soil is acidic, there might be an exacerbation of the potential leachability of metals in the material. Mr Short acknowledged that risk ‘in theory’.50 That evidence should however, be considered with the evidence of Mr Stuckey51 who was asked a similar question about the material being exported to a site which already had a high degree of arsenic. As he explained, if the material is added to the material on site it will never cause the threshold to be exceeded either because the on-site material has a higher level (exceeding the threshold already), the average of which is brought down by the addition of material from the subject site, or the on-site material itself is even lower than the (compliant) imported material, in which case there is no existing issue and the threshold cannot be exceeded by addition of the imported material. The potential for metals to leach from material exported from the site is addressed later. Some matters of agreement [45] Areas of agreement in the HHEEJR include:52 1. It is appropriate to apply risk assessment methods to evaluate the human and environmental health issues and risks associated with the proposed transfer of material to other sites. 2. NEPM and the Australian and New Zealand Guidelines for Fresh and Marine Water Quality (ANZG) are the appropriate guidance documents. 3. The presence of hazard does not necessarily mean that there is a risk. There needs to be a receptor, clearly identified exposure pathways, a time period of exposure of an exposed population and a dose of contaminant at a level high 50 T8-17. 51 T4-15, 16. 52 Ex 7 paras 16, 17, 19-21, 29. -- 20 of 68 -- 21 enough to cause an adverse effect. Risk assessment is the process where the hazards are identified, analysed or evaluated for the potential risk associated with the hazard. 4. The testing regime and sampling rate of 1 sample per 250 m 3 is appropriate.53 I accept each of those points of agreement. [46] It has already been observed that Mr Lee did not agree that NEPM provided guidance in this case. He also took issue with the proposed sampling rate, suggesting that if one were to permit the export of material from the site, the sampling should be much more intense, at least until there was more statistical certainty.54 Dr Robertson similarly wanted more frequent testing. That appears excessive in the circumstances. I prefer the opinions otherwise which, as was pointed out in the HHEEJR,55 are consistent with a publication of EPA Victoria in relation to bulk volumes of greater than 5,000 m 3 . Given an average daily production rate of 1,000 m 3 , it is expected that there would be 4 samples taken for testing each day.56 Human health (i) Testing [47] Testing has revealed that the chemicals in the material which are of potential concern are arsenic and copper. The exposure of potential concern is chronic or long-term exposure, rather than acute or short-term exposure.57 A test of a single sample collected from the site in 201258 yielded a total arsenic concentration of 400 mg/kg and 190 mg/kg of copper, with low concentrations of several other metals and a very low level of cyanide. [48] 16 samples of gravel material were collected and analysed in 2015.59 They had arsenic concentrations ranging from 53 to 1,000 mg/kg (with an average of 513.5 mg/kg). 53 See also T7-45. 54 T5-39, 40. There was reference to a rate of 1 per 25 m3 although even he thought that “would probably be too intense here”, without specifying what he proposed. 55 Ex 7 para 29. 56 Ex 6B pg 11 ll 357, 358. 57 T7-61. 58 Ex 3 pp 217-219. 59 Ex 3 pg 422. -- 21 of 68 -- 22 They had copper concentrations ranging from 21 to 1,500 mg/kg (with an average of 232.75 mg/kg). 60 Ten further samples were subject to acid-base accounting.61 [49] In 2017 fifteen samples were tested for bioaccessibility (BAC) of the finer fractions for arsenic and copper.62 The BAC for arsenic ranged from 4.7% to 49.1%, averaging approximately 23%, with the relative bioavailability (RBA) at approximately 24%.63 The BAC for copper ranged from 12.7% to 94.8%, averaging approximately 66%. Total arsenic concentrations ranged from 100 to 1,730 mg/kg, averaging 495 mg/kg with total copper concentrations ranging from 22 to 294 mg/kg, averaging 97 mg/kg.64 [50] The proposed testing threshold for arsenic is <500 mg/kg and for copper is <100 mg/kg. The bioaccessibility of arsenic (from PBET testing) is to be less than 50%. The testing conducted on the gravel samples taken from the stockpile suggest that there will be some material capable of meeting those thresholds. (ii) Land use types - HILs [51] It is appropriate to consider whether material which conforms with the proposed thresholds will pose a potential risk, in the event that the material is used as proposed. It is in this context that NEPM provides some guidance in relation to generic land use types. [52] The HILs for soil contaminants are contained in Table 1A(1) of NEPM and list health- based investigation levels for various chemicals by reference to the following generic land uses: “HIL A – Residential with garden/accessible soil (home grown produce <10% fruit and vegetable intake (no poultry), also includes childcare centres, preschools and primary schools. HIL B – Residential with minimal opportunities for soil access; includes dwellings with fully and permanently paved yard space such as high-rise buildings and apartments. 60 Affected by 1 sample of 1500. 61 Ex 3 pg 611. 62 Ex 3 pg 735. 63 Ex 7 pg 8 para 40. 64 Ex 3 pg 730, the low point of the range was incorrectly identified as 108 mg/kg in Ex 6 para 5.1(a). -- 22 of 68 -- 23 HIL C – Public open space such as parks, playgrounds, playing fields (e.g. ovals), secondary schools and footpaths. This does not include undeveloped public open space where the potential for exposure is lower and where a site-specific assessment may be more appropriate. HIL D – Commercial/industrial, includes premises such as shops, offices, factories and industrial sites.” [53] The HILs for arsenic and copper are as follows: Health-based investigation levels (mg/kg) Chemical Residential A Residential B Recreational C Commercial/ Industrial D Arsenic 100 500 300 3,000 Copper 6,000 30,000 17,000 240,000 (iii) Bioavailability [54] NEPM provides that the HIL for arsenic is based on a bioavailability of 70% and that a site-specific bioavailability should be considered where appropriate. Bioavailability is the amount of a contaminant that is absorbed into the body following skin contact, ingestion or inhalation. Dr Wright acknowledged65 that it is an accepted methodology to derive a site-specific HIL for arsenic on the basis of a site-specific bioaccessibility, where bioaccessibility is less than 70%. That is what Professor Ng did. The assessment incorporates bioaccessibility data as a surrogate measure of bioavailability of arsenic for the adjustment of the HILs.66 Bioaccessibility is the fraction of a compound that is soluble in the gastrointestinal tract and so available for absorption. The sampling results led Professor Ng to calculate relative bioavailability (RBA) adjusted HILs, based on the average of the samples, as follows: Chemical Residential A Residential B Recreational C Commercial/ Industrial D Arsenic 400 1,000 800 7,000 [55] Dr Wright adopted a more conservative approach of taking a figure of 50%, representing the upper end of sampled results to obtain the following adjusted figures: Chemical Residential A Residential B Recreational C Commercial/ Industrial D Arsenic 200 800 500 5,000 65 Ex 7 para 74. 66 Ex 11 pg 6 para 5.2. -- 23 of 68 -- 24 [56] Dr Wright’s view was that it is appropriate to adopt the upper end of the sampled results having regard to what she saw as the limited dataset and the fact that the stockpile will not be entirely mixed before it goes off-site, so that the higher figure might be applicable to the batch to which people may be exposed at a particular site. Dr Wright also referred to a note in NEPM which cautions against adjusting bioaccessibility between 70 and 100%, so as to preserve a buffer. As Professor Ng pointed out however, that is not the case here, and the proposed testing thresholds are well below the adjusted figures in any event.67 [57] Perhaps unsurprisingly, Mr Lee held a more extreme view, that bioavailability data (or, more accurately bioaccessibility data) should not be relied upon to extend the criteria used to determine the suitability of material for disposal off-site. He claimed that it was impossible to predict the environmental conditions of each receiving site that may affect the bioavailability of the contaminants. He used strong language, saying that use of bioavailability data in this case was unprecedented, undocumented, unproven and potentially dangerous.68 It is difficult to see why, irrespective of the receptor site, no account should be taken of the data derived from tests of samples of the gravel which is to be exported and why that would not provide a better indication of bioavailability than the generic assumption of 70% in NEPM. His view was unsupported and stands in conflict with that of Professor Ng, an internationally recognised expert on arsenic and lead author of BAC guidance,69 and Dr Wright. It is a view that was not urged upon me in the submissions for the appellant and it is one that I reject, in light of the opinions to the contrary. [58] The bioaccessibility testing involved the following: (a) testing 15 samples from a depth of 3-4 metres in the heap pile; (b) the drying and sieving of the samples to obtain 250 micron particles, as these are regarded as the size fraction most likely to stick to hands and could result in exposure via hand-to-mouth; (c) exposing these particles to synthetic gastrointestinal fluid to mimic the human stomach; 67 Ex 44 pg 3. 68 Ex 6 pg 17. 69 Ex 44 pg 3. -- 24 of 68 -- 25 (d) assessing the extracted arsenic and copper in the fluid against the total elemental concentration put into the fluid. [59] Professor Ng defended his use of the average, contending that Dr Wright’s approach goes against sound scientific principle that applies statistics in order to provide a more accurate estimation of the representative concentration of arsenic in the materials. He cited a USEP publication in support of the proposition that an estimate of average concentration is used because relevant toxicity criteria are based on lifetime average exposures and average concentration is most representative of the concentration contacted at a site over time.70 He also considered the dataset to be adequate. [60] Mr Stuckey saw the average in this case as statistically justifiable, based on normally distributed maximum, mean, standard deviation and median values of 49%, 23%, 14% and 19% respectively.71 Mr Sutherland was of the view that use of the average was conservative, given its inclusion of ‘outliers’ in the dataset and the assessment of Australian mine wastes, where the mean arsenic bioavailability is between 1.6% and 8.9%.72 [61] The approach of Professor Ng would appear to be appropriate in estimating the representative bioavailability of arsenic in the material. Dr Wright’s main point however, is that a particular receiving site will only receive material from part of the heap and that part might not be representative of the balance of the material. Her approach of adopting the 50% figure is highly conservative given the results of testing, that some mixing is involved in the process (discussed later) and the large quantities (of ≥20,000 tonnes)73 in which the product is expected to be supplied. On the other hand, the proposed testing threshold is <50%, so that product up to that limit will be able to be dispatched to a receptor site. Whilst I incline to the view that Dr Wright’s approach is overly conservative, ultimately nothing turns on which of the two is adopted. (iv) Comparison with HILs 70 Ex 11 pg 7. 71 Ex 7 para 80. 72 Ex 7 para 87, 88. 73 Ex 46 para 46. -- 25 of 68 -- 26 [62] Even on the basis of Dr Wright’s more conservative approach, all of the tests of gravel from the stockpile reveal maximum and average concentrations of copper that are orders of magnitude below the level for HIL D and very greatly below that for HIL A, B and C as well. They also show maximum and average concentrations for arsenic well within HIL D. Further, the proposed threshold levels are: (a) many times lower than the adjusted74 investigation levels for arsenic for HIL D uses; (b) within the adjusted arsenic levels for HIL B and HIL C, for which the material is not even proposed to be used, (c) a great many times lower than the HILs for copper for all generic land use types. [63] As Professor Ng said,75 this indicates that material from the stockpile, tested as meeting the proposed thresholds, would have minimal, if any, health implications when used at industrial sites, being one of the proposed uses for the materials. Further, as he pointed out,76 use for road infrastructure would carry even lower risk, because the contact time of potential exposure is extremely limited and insignificant even compared with industrial sites. Dr Wright accepted77 that a road (with proposed restrictions) is a satisfactory receiving site. Similar considerations would apply for rail infrastructure. (v) Use of averages [64] Dr Wright took issue with the use of average concentrations in order to characterise the material that will be distributed off-site. She referred to the limited number of samples tested, the proposal to sell the material in varying quantities and her view that there is no indication that the stockpile materials will be well mixed prior to sale. Dr Wright thought that the material sold to one client may contain arsenic at either the lower end or the upper end of the range of concentrations. She considered that the upper end, namely 1,730 mg/kg, would, in the circumstances, represent a reasonable worst case.78 74 Irrespective of whether the adjusted figures are those calculated by Professor Ng or those calculated by Dr Wright. 75 Ex 7 para 42. 76 Ex 7 para 43. 77 T7-51. 78 Ex 7 para 73. -- 26 of 68 -- 27 [65] There are a number of things to observe about that. Firstly, 42 samples have been taken over time.79 Professor Ng considers that to be a very good number to get an estimate of the average exposure.80 In support of that proposition he cited the United States Environmental Protection Agency document ‘Supplemental Guidance to RAGS (Risk Assessment Guidance for Superfund): Calculating the Concentration Term” (USEPA 1992). It recommends that a minimum of 10 samples be taken, with increasing certainty if up to 30 samples are taken.81 That publication is referred to and adopted in a more recent Texas Government document which also refers to a minimum data set of 10 samples.82 [66] Dr Wright thought that the documents relied upon by Professor Ng went to whether there were a sufficient number of tests for statistical purposes. She pointed to the size of the heap, the fact that the samples did not extend beyond 4 m in depth and the variability of the results to suggest that “you’d want to have as many samples as – as practicable”.83 Dr Wright’s testimony about the variability of the results should be viewed in the context of her statement in the HHEEJR84 that the reported concentrations are “reasonably consistent for the gravel”. Obviously the more samples, the better the information base, but I accept that a not unreasonable extent of sampling has been done to date. It should be noted that further sampling and testing is proposed as part of the operation of the development. [67] Secondly, the process involved in winning the material before it is exported from the site includes:85 (a) cutting sections of the material from the top of the heap pile so that they fall away down the face; this has the effect of mixing the material as it falls away from top to bottom; (b) the material will then be screened and stockpiled for sale; the material will be loaded into the screening plant and then moved into stockpiles of 250 m2 for testing, and 79 Ex 7 para 71. 80 T5-9. 81 Ex 34. 82 Ex 35. 83 T7-57. 84 Ex 7 para 72. 85 Ex 46 para 44. -- 27 of 68 -- 28 (c) following successful testing, the material in that stockpile will be loaded into trucks and sent onto clients. The above will result in some mixing of the material,86 albeit that the entirety of the heap is not mixed. [68] Thirdly, whilst the material will be placed into stockpiles of 250 m3 , not each stockpile will be a discrete supply to a different site. Whilst the quantity of materials sold may vary, the nature of the uses for which the material is to be distributed are such that the minimum job size is likely to be no less than 20,000 tonnes.87 To suggest that a single maximum sample result be adopted for the assessment in the circumstances described above is, in my view, overly conservative. [69] Fourthly, Dr Wright’s reasonable worst case of 1,730 mg/kg is still very comfortably within the HIL D level, both adjusted and unadjusted, and would appear not to be of concern, for human health, for the uses for which the material is proposed. [70] Fifthly, Dr Wright acknowledged that the debate about the adequacy of sampling and use of averages is unnecessary if effective controls on the use of the material can be implemented.88 That is an issue discussed later. [71] Sixthly, and importantly, it is not proposed to permit all of the material in the stockpile to be exported. There is proposed to be a continuing testing regime. Only that which passes the testing regime will be permitted to be exported from the site. That which does not will be returned to the pit. It is this aspect of the proposal which the appellant’s case tended, at times, to overlook. Material which, upon testing, is revealed to have an arsenic concentration of 1,730 mg/kg will not be permitted to be exported from the site. Ultimately the question is not so much whether the export of the gravel in the stockpile would be attended with unacceptable risk, but whether the export of so much of the gravel that passes the testing regime would, subject to controls, be attended with such risk. (vi) The fines 86 Ex 46 para 46. 87 Ex 46 para 46. 88 T7-56, 57. -- 28 of 68 -- 29 [72] Dr Wright and Mr Lee raised a concern about the higher arsenic concentrations in the finer fractions of the material. In the 15 samples taken in 2017,89 the arsenic concentration in the fine fractions varied from 150 mg/kg to 4,448 mg/kg, with an average of 1,111 mg/kg. Dr Wright regarded the finer fractions as of importance in relation to human health, because of their propensity to stick to the skin and be incidentally ingested or be present in dust which might be inhaled. She thought that more fines may be generated if the material was used on unsealed roads or if it was crushed.90 Mr Lee raised similar concerns regarding compaction. [73] The position in relation to the fines was something of a moving feast during the hearing. Mr Stuckey,91 Mr Sutherland92 and Professor Ng93 were initially of the understanding that the fines would be removed in the screening process. It emerged that was incorrect. The screening process will take out the larger rocks and, with them, some of the fines, but the smaller stones will pass through and will include some fines. The screening equipment has the capability of removing the fines, by washing, but the co-respondent regards it as commercially unviable to wash all fines from all material before it leaves the site.94 If the material is to be supplied for the purposes of road base, then further fines may need to be added. The proposed conditions of approval would require those fines to be sourced from elsewhere,95 with the intent that such material would not itself have elevated levels of arsenic or copper.96 [74] That it is not proposed to remove all of the fines in the screening process removes an element of conservatism, but did not cause the experts retained by the co-respondent to alter their conclusions that the proposal is satisfactory. Further, as Mr Sutherland pointed out,97 the fact that the machinery has the capability of removing fines (by washing) which, in the case of use of the product for road base, can be replaced and/or supplemented by off-site material, provides an additional mechanism which could be used in the event of failures to meet the thresholds. 89 Ex 3 pg 735, 778. 90 Ex 7 para 72. 91 Ex 13 para 81. 92 T4-54, 56. 93 Ex 11 para 6.3, T5-30, 31. 94 Ex 46 para 37. 95 Ex 46 para 37, T4-56, 57. 96 Something which Senior Counsel for the co-respondent observed could be incorporated into a condition of approval, T4-59. 97 T4-60. -- 29 of 68 -- 30 [75] The submissions for the appellant sought to make something of Professor Ng’s statement98 that his conclusions are unaltered if washing is not undertaken to remove the fines because “all of the testing that has been carried out on the material is representative of the entire stockpile, including fines. If the fines are removed, it would only be an added layer of comfort, but not necessary in my opinion.” It was submitted, in effect, that the Professor’s acceptance of the proposal is conditional on the co-respondent proving that its testing is truly representative of the entire stockpile. This, I consider, misses the point. Whilst Professor Ng could have expressed himself more clearly, the point I took him to be making is that the tests were carried out on the entirety of the sampled material, including the fine fraction, such that the fine fraction has been taken into account in the analysis. [76] It is difficult to see that there should be any real concern about the fines. In that regard: (a) the fines are not representative of the material as a whole, which is composed of a fine fraction and a coarse fraction.99 Risk assessment is carried out by reference to the whole <2 mm fraction, not just the fines.100 Different sized fractions are not separated out, save to assess bioaccessibility.101 The fines are accounted for in the calculations;102 (b) even if, contrary to the appropriate approach referred to above, the concentrations of arsenic in the fines were compared with the HILs, the maximum concentration of arsenic found in the 15 samples from 2017 (4,448 mg/kg) still falls within Dr Wright’s adjusted HIL D level, which is the generic land use of relevance; (c) the finer fraction in loose soil at the base of the heap is highly unlikely to be distributed off-site and is not to be added to the material;103 (d) there is little prospect of significant further fines being generated, by crushing, compaction or deterioration after the material leaves the site.104 A petrographic analysis of the suitability of the material in 2017 indicates the material is “very hard”, “very strong”, “very durable”, “considered to be 98 Ex 44 pg 4, 5. 99 Ex 10 ll 403-404. 100 Ex 11 para 5.7. 101 Ex 13 para 80. 102 Ex 13 para 105(b). 103 Ex 46 para 47. 104 Ex 10 pp 17, 18. -- 30 of 68 -- 31 suitable for a source use as rip rap, road base, asphaltic and sealing aggregate”, and “physically suitable for rail ballast”.105 A more recent analysis in 2019 is consistent with that.106 Mr Short was of the opinion that the quarry material is well suited to its intended use as road base because it is highly resistant to breaking down.107 Further, as Dr Wright agreed,108 the further crushing of the material would not alter the concentration of arsenic within the material; (e) there can be no substantial concern about the fine fraction being blown off- site (from, for example, an unsealed road) and ingested over a long period of time so as to cause concern.109 Not only are there to be controls over where the product can be used, but, as Dr Wright accepted in the course of cross- examination,110 direct inhalation would be “a very negligible issue” that “on its own is not something you’d worry about”. It may be noted that the material is well within the dust inhalation pathway specific arsenic Tier 1 human health criteria for all HILs derived by Mr Stuckey.111 Dr Wright further conceded that even if the material were used for a road adjacent to a HIL A area (which is not proposed) and even if account is taken of the prospect of dust being blown onto an adjacent residence, depositing fines onto the roof (that are washed into a rainwater tank) and also deposited on fruit and vegetables in the garden, “it’s unlikely to be high enough to be of concern”.112 Similarly, as Mr Sutherland pointed out113 dust, by definition, must be fine and light and the total mass escaping to the environment would be low and undetectable in any single event and small as a cumulative impact over time. Professor Ng was similarly unconcerned.114 (vii) Effect of controls 105 Ex 6 p 115. 106 Ex 22, document with the footer Q190905, pg 3. 107 Ex 10 pg 18. 108 T7-61. Perhaps unsurprisingly Mr Lee was unwilling to concede that (T5-45) but I prefer Dr Wright’s evidence. 109 It is unlikely that anyone would ingest fines which stayed within or beside a road itself (T7-61). 110 T7-60. 111 Ex 13, Table 3. 112 T7-60, 61. 113 Ex 7 para 86. 114 T5-23, 37. -- 31 of 68 -- 32 [77] Dr Wright’s opinion that, in relation to human health, the stockpile material is not suitable for the proposed use was driven by her general concern in relation to exposing the community to arsenic and her specific concern that there could be no effective control on the end use of the material once sold, to ensure that the material is properly placed and managed over time. Accordingly, she adopted the criteria for HIL A land use, even though it is not intended to supply product for such use. In the course of cross-examination, Dr Wright fairly conceded however, that if the Court was satisfied that the material could be controlled and managed then her concerns will have been addressed.115 (viii) Conclusion on human health [78] For the reasons which have been given, I am satisfied that, subject to the issue of the adequacy of control of the material, the proposal does not represent an unacceptable risk to human health and is unlikely to result in undue impact. Environment/ecology [79] It has been noted that it was agreed, in the HHEEJR, that NEPM and ANZG provide appropriate guidance. Insofar as the environment is concerned, the former provides some guidance in particular for terrestrial ecosystems and the latter for aquatic ecosystems. (i) NEPM – EILs and ageing factor [80] NEPM provides for EILs for various contaminants for the protection of terrestrial ecosystems. They seek to achieve protection levels for generic land use settings as follows:116 • 99% for areas of ecological significance; • 80% for urban residential areas and public open space, • 60% for commercial and industrial land uses. [81] Attention focussed on the guidelines for soil quality for aged arsenic contamination which are as follows: 115 T7-49. 116 Ex 5 pg 13 s 2.5.4. -- 32 of 68 -- 33 Land use As mg/kg Areas of ecological significance 40 Urban residential/public open space 100 Commercial/industrial 160 The concentrations in the subject material exceed those levels. [82] Ageing is the process whereby the longer metals and other charged chemicals are absorbed to soil, the slower and smaller the desorption reaction.117 The significance of the EIL being for ‘aged’ arsenic contamination, is that there is evidence that, over time, the toxicity and extractability of arsenic contamination decreases as the contaminant binds to the soil component.118 One study, cited in NEPM, reported decreases ranging from 2- to 12-fold and concluded that ageing of arsenic should be taken into account during risk assessment. Another study found that ageing did not always occur. The EIL in NEPM expressly takes account of ageing in a ‘conservative manner’ by adopting a factor of 2. Dr Wright thought that should apply in this instance given the uncertainty in the studies and how they apply to this material and the soil types it would be placed in,119 but Mr Stuckey considered that too conservative. [83] NEPM does support taking account of ageing. The issue is to what extent there ought be an allowance for that in the context of the subject material. As Mr Stuckey pointed out, the arsenic (and for that matter copper too) in the material on the subject site is not like an arsenic contaminant freshly added to soil or added only a few years ago. It is a naturally occurring part of the material itself and so has been undergoing the ageing process for a very long period of time. Further, he also had regard to the EDTA leaching results.120 He also considered that the arsenic was likely to be present in the less toxic (for terrestrial ecosystems) pentavalent state, although he conceded that is not yet established.121 Mr Stuckey concluded that a more reasonable ageing factor to adopt for the material would be of the order of 10 to 12.122 That is, I accept, a 117 Ex 13 para 58. 118 Ex 5 para 4.7.1. 119 T7-39. 120 Relevant to the fraction available to uptake by plants. 121 T7-31, 32. 122 T7-29. -- 33 of 68 -- 34 reasonable approach in the circumstances, noting that the co-respondent does not seek to distribute material based on an arsenic concentration up to the resulting adjusted level of 800 – 960 mg/kg for commercial/industrial land uses, but rather only to 500 mg/kg, which is closer to the level which would be produced if an ageing factor of 6 was used.123 Accepting Mr Stuckey’s ageing factor, the 500 mg/kg threshold also complies with the adjusted level for urban residential/public open space of 500 –600 mg/kg.124 [84] The proposed threshold of 100 mg/kg is very comfortably within Mr Stuckey’s adjusted EILs for copper for not only commercial/industrial (460 – 530 mg/kg), but also for urban residential areas and public open space (310 – 360 mg/kg). It is not proposed to distribute the product for use in areas of ecological significance. (ii) Agriculture [85] NEPM does not deal with agricultural areas. The material is not proposed to be distributed for agricultural use, although it may be used for road or rail infrastructure which traverses or abuts land used for those purposes or for sites the subject of a mining lease or on industrial sites adjacent to such land. The evidence of Professor Ng125 establishes that: (i) aside from mining, agriculture is the major industry in the region, with the major terrestrial animals being livestock for human consumption; (ii) the leachate concentration of arsenic (discussed later) is within guideline values for livestock drinking water and short-term (up to 20 yrs) irrigation of plants for human consumption; (iii) the past and current use of phosphate in the agricultural practices and in animal excretion would offer significant reduction of toxicity; (iv) arsenic does not accumulate in vegetables or edible plants to any significant level, with the exception of rice. The region is not a rice cultivation area; (v) the prospect of livestock grazing on unsealed road base or sealed road is very remote, and 123 Ex 13 pg 26 Table 4. 124 See Ex 13 Table 2. 125 Ex 7 paras 45-58. -- 34 of 68 -- 35 (vi) even in the case of fully vegetated heap leach pad and intensive grazing to simulate a worst case scenario, the health of animals is sustained and meat is safe for human consumption. (iii) Groundwater [86] Insofar as potential groundwater effects are concerned, Dr Wright referred to generic soil quality guidelines to protect groundwater ecosystems from arsenic leaching set out in Table 33 of NEPM. The criteria are 4.6 mg/kg if no dilution is considered or 91 mg/kg if a 20-fold dilution is considered. Dr Wright said that a dilution factor of more than 20 could not be justified in the absence of information about the receptor sites. The proposal would not meet those limits. [87] Table 33 appears in section 4.6.2 of NEPM which expressly deals with fresh arsenic contamination. As Mr Stuckey pointed out,126 this is not such a case. Rather the arsenic is naturally in the material and is appropriately considered as aged, rather than fresh, with consequent low leachability. Further, Professor Ng expects that leached elements, including arsenic, would bind to the clay layer of the soil profile and be immobilised.127 The documents to which Mr Stuckey refers in the HHEEJR suggest that the concentrations in the material proposed for distribution will be well below the levels (1,600 mg/kg for arsenic and 4,000 mg/kg for copper) necessary to protect freshwater aquatic ecosystems associated with groundwater discharge, even on a 95% species protection basis.128 I accept his evidence and therefore accept that the proposal is unlikely to have an unacceptable impact on aquatic ecosystems by impact on groundwater. (iv) Surface discharge – aquatic ecosystems [88] Another issue is the potential for chemicals in the leachate from the material to impact on aquatic ecosystems via surface discharge, particularly runoff. In order to determine the likely chemical composition and concentration of leachate under normal environmental conditions such as rainfall, ASLP testing, using deionised water, was conducted on 10 samples taken in 2016 and 15 samples taken in 2017. TCLP testing was also undertaken and, predictably, yielded greater concentrations of the chemicals 126 Ex 7 para 83. 127 Ex 7 para 46. 128 Ex 7 para 83, Ex 13 paras 8, 61, 108, T6-62. -- 35 of 68 -- 36 of concern. TCLP testing is designed to simulate relentless acid conditions associated with leaching through putrescible waste landfills.129 The issue of acidity is discussed later. The ASLP test is the more appropriate of the two for use, in this case, as indicative of what might leach out of the material. [89] Dr Robertson raised a concern that ASLP testing uses a higher dilution factor than has historically been used for mining wastes.130 He referred to ESLP testing with which he has experience and which is not as dilute.131 The authors of the HHEEJR however, took no issue with the use of ASLP testing. Dr Wright confirmed132 that it is the test used by her and others with her qualifications for risk assessment. I was not persuaded that the subject material is such as to make ASLP testing inappropriate. I accept that it was the appropriate test to use. [90] The ASLP testing revealed that only a small proportion of the chemicals leached (2.1% for arsenic and 1.6% for copper).133 As for concentrations, testing of the 2016 samples yielded an arsenic mean of 0.30 mg/L (ranging from 0.06 to 0.77 mg/L) and 0.035 mg/L (ranging from <0.01 to 0.09 mg/L) for copper.134 The 2017 samples yielded similar results,135 with a mean of 0.34 mg/L (ranging from 0.024 to 0.998 mg/L) for arsenic and 0.02 mg/L (ranging from <0.001 to 0.23 mg/L) for copper.136 [91] Dr Wright and Mr Lee were of the view that the appropriate criteria, to which regard should be had in this regard, are the concentrations for achieving a 95% species level of protection as set out in ANZG.137 That is the level of protection which is applicable to slightly to moderately disturbed systems. Dr Wright explained138 that it is the default criteria under the guidelines and is adopted in many jurisdictions. [92] The main focus was on the criteria for arsenic, being the ‘contaminant’ of primary concern. The 95% species level of protection concentration is 0.024 mg/L for As III and 0.013 mg/L for As V. As the type of the arsenic in the subject material has not 129 Ex 3 pg 739. 130 Ex 20 pg 5 para 4.1(a)(i). 131 T6-22. 132 T7-67. 133 Ex 13 pg 27 Table 5. 134 Ex 3 pp 624, 625. 135 Ex 3 pp 741, 752-754; Ex 7 para 44. 136 Ex 6B pg 34, Ex 3 pp 752-754. 137 Which is a 2018 online revision of the ANZECC guidelines. 138 T7-39. -- 36 of 68 -- 37 been determined with certainty, Dr Wright and Mr Lee reasonably focused on the lower of the concentrations, being 0.013 mg/L for As V. The level for copper is 0.0014 mg/L. The levels in the leachate are well above those levels. [93] Mr Sutherland thought that the 80% species level of protection concentration was relevant. That applies to highly disturbed systems. Mr Sutherland’s view was that the sites at which the material will be used (roads, railways, mines and industrial sites) will be highly disturbed. The guidelines provide some examples of highly disturbed ecosystems. They are: “Some shipping ports and sections of harbours serving coastal cities, urban streams receiving road and stormwater runoff, or rural streams receiving runoff from intensive horticulture”. It was said, by Mr Lee, that those examples are unlikely to apply to the situation to where the subject material would be relocated. They are however, just examples. [94] The primary difficulty with the proposition that an 80% criterion should be the focus of attention is that the question is not so much whether the land upon which road, for example, is being built with the subject material is highly disturbed, but whether the receiving waters, which support the relevant ecosystem, are highly disturbed. As Mr Stuckey said in his supplementary statement,139 where the drainage pathway is not simply confined to a manmade structure, but extends (including beyond structures) to, for example, a natural watercourse adjacent to the site or road reserve, the relevant level of aquatic species protection is likely to be 95%. Because the precise destination of the subject material is unknown, the 95% level of protection is that to which consideration should be given. Further, whilst initially the co-respondent sought to make something of the fact that the mean arsenic concentration from the ASLP tests are within the 80% species protection level for As III (0.36 mg/L), the evidence does not establish that the material is of that kind. [95] Dr Wright again urged consideration of the maximum results, rather than just the mean, on the basis that the material sold to any one client may be more or less 139 Ex 47. -- 37 of 68 -- 38 leachable than the mean.140 For the reasons given earlier, I consider that to be overly conservative, although the point is not determinative in any event. [96] Mr Lee pointed out141 that the mean arsenic concentration from the most recent ASLP tests (0.34 mg/L) is 26 times higher than the 95% species protection level for As V (0.013 mg/L) and asserted that “therefore” there is a significant potential to contaminate stormwater and sensitive receiving waters that comprise freshwater ecosystems. That is too simplistic. It was rejected by Mr Stuckey.142 It does not give due consideration to the issues of exposure pathways and the dose to which the receptor might potentially be exposed, being matters that Mr Lee accepted are relevant to risk assessment.143 His approach was that those matters were relevant ‘in theory’ but, in practice, if contaminants exceed Tier 1 you get rid of them or cap them over with concrete.144 In my view, an appropriately conservative response to the test results is to acknowledge how they compare with the 95% level of protection values and then to consider matters such as the exposure pathway and likely receptor dose in the course of the risk assessment. [97] The guideline levels are, as Professor Ng explained,145 set by reference to the receptor. In that respect there are at least two things to bear in mind in relation to the results of the ASLP testing. [98] First, as Dr Robertson pointed out,146 the test gives an indication of what will leach out, but not how fast it will do so. Although performed over less than a day, the test mimics leachability over a longer period.147 Whilst no long-term leach testing has been conducted, as Mr Short pointed out148 the fact that the material is still leaching small quantities of metals and metalloids after many years of weathering suggests that the chemicals would leach out over a long period of time, rather than all at once or quickly as Dr Robertson postulated could be possible.149 140 Ex 7 para 75d. 141 Ex 19 pg 4. 142 T6-67. 143 T4-99, 100. 144 T4-100. 145 T5-11. 146 T6-21, 22. 147 T6-67. 148 Ex 45 pp 9, 10. 149 T6-21. -- 38 of 68 -- 39 [99] Secondly, as Mr Stuckey explained,150 runoff will not occur unless the rainfall event is such as to more than fully saturate the material. In such rainfall events however, factors such as dilution, attenuation and dispersion come into play. [100] Whilst Mr Lee stated that the acceptability of the quality of the discharge must be assessed at the boundary of the site,151 Dr Wright gave consideration to, but did not adopt, the 0.013 mg/L As V concentration as the criteria for the leachate. Rather, in formulating criteria for arsenic for use in circumstances where the off-site uses of the material cannot be controlled or managed, she adopted an ASLP concentration of 0.26 mg/L on the basis of it being 20 times the 0.013 mg/L concentration. She suggested using it as an alternative to the 91 mg/kg that she had derived from Table 33. The concentration she adopted is much closer to, although still less than, the mean concentration derived from the ASLP tests. [101] Arsenic is not a chemical likely to stay in solution given an opportunity to bind with soil particles (in soil or sediment). It was common ground that it readily so binds.152 When questioned about material used for roadmaking, Mr Lee accepted that arsenic will absorb into the soil very readily and stay in place and he added “I think if it’s going to move, it’ll move with the soil, with the sediment. It’s erosion”.153 As Mr Sutherland said in relation to a proposition that material used as road base might leach arsenic into a table drain and, from there to the wider catchment, including the Great Barrier Reef, “I had a very significant problem with the hypothesis that the arsenic was going to go into the soil, climb out of it into the table drain, make it down the watercourse into the river and out to the Great Barrier Reef”.154 Where arsenic binds to soil particles that could erode however, the issue becomes one of soil and sediment control (a matter commonly managed in development). [102] Mr Sutherland pointed out that there will be a number of safeguards which apply, in any event, once the material is delivered off-site. There requirements that material not be placed in watercourses or places where it is going to erode into a receiving environment. Further, erosion and sediment control measures need to be 150 T6-63, 64. 151 T5-49. 152 Ng T5-26, Lee T5-50, 79, Sutherland T7-86. 153 T5-50. 154 T7-80. -- 39 of 68 -- 40 implemented. Similarly, Mr Short referred to the statutory and organisational requirements for erosion and sediment management, both during construction and ongoing, likely to apply to projects of the kind to be supplied by the subject development.155 Mr Stuckey likewise pointed out, that there will, in any event, be an obligation on the person or entity using the material to control erosion and sediment so that it does not escape,156 although he conceded that proper controls are not invariably put in place in practice.157 Mr Sutherland saw the additional conditions offered by the co-respondent, in relation to where the material could be placed, as worthwhile, but not all necessary, in the context of other controls.158 [103] Mr Lee, in his testimony,159 raised the spectre of material, if used on the Gregory Development Road, making its way to the Great Barrier Reef. That is unlikely. Mr Stuckey acknowledged the potential for erosion and sediment movement some small distance from where it is placed, but pointed out its favourable characteristics as road base, particularly that it compacts well, and is not dispersive. This, combined with an absence of obvious erosion along the existing road where this material (or at least material of the same mineral composition) was used in the past (discussed later), led him to conclude that the potential for movement of sediment away from the source is very low and that any movement would be for a small distance.160 Whilst there are some uncertainties about the roadside tests (discussed later), Mr Stuckey’s conclusion sits well with the characteristics of the material and is to be preferred. [104] Insofar as the Gregory Development Road in particular is concerned, Mr Lee’s concern was about soil or sediment making its way to and along a table drain beside the road and, from there, to the rest of the catchment. Mr Short’s evidence (which I accept) however, is as follows:161 “…in my view there is no pathway or tangible linkage between the road and the reef. 155 Ex 45 pg 9. 156 T7-12. 157 T7-14. 158 T7-87. 159 T4-90, T5-49, 51, 67. 160 T6-64. 161 Ex 45 pg 10. -- 40 of 68 -- 41 For a start, there are specific geographical issues to consider. There is no formed table drain along much Gregory Development Road [sic] because the terrain is essentially flat. The road is elevated from the natural ground level and this provides passive drainage of incident rainfall which is indiscriminately directed onto the surrounding land. I have travelled hundreds of thousands of kilometres on sealed and unsealed roads in central Queensland over the past 20 years. I have observed that table drains may or may not be formed on the sides of these roads. Where table drains are present, I have observed that these table drains will typically: • Direct road runoff away from the road edge, • Intersect and direct road runoff away from watercourses, and • Discharge road runoff onto the surrounding land. For these reasons, it is my view that there is no pathway linkage between the road and the reef and therefore, the quarry material can not impact the Great Barrier Reef.” [105] Dr Wright accepted that the arsenic is likely to have a very limited mobility unless it is put into a drain. She said:162 “If it’s placed directly next to a – an aquatic system or a drain, or in a drain, there are concerns. If it’s placed further away from those, it’s unlikely that it will reach that at any significant concentrations.” She went on to confirm “it’s unlikely that it’ll travel a long way”163 and that, if used for road base, “the potential for it to leach and reach water bodies that are further away is very small”.164 Similarly, in relation to the potential for it to travel out of a road reserve and into an adjacent environmental area:165 “It’s fairly small, yes. As I say, you need to place this material directly adjacent to or within a water receiving body for it to actually be sufficient to leach out to 162 T7-63. 163 T7-64. 164 T7-64. 165 T7-64. -- 41 of 68 -- 42 actually be of concern. But like I say, my key concern is how you control where this material is placed…” [106] The criteria ultimately developed by Dr Wright166 for ASLP testing were expressly for circumstances in which off-site uses cannot be controlled or managed. In the course of cross-examination she conceded that the debate about the adequacy of the testing carried out to date could be obviated if the co-respondent’s proposed controls could be effectively put in place.167 Further, and more particularly in relation to aquatic ecosystems, she conceded that if there were effective controls to prevent the material from being used in drains or directly adjacent to environmentally sensitive areas which might be exposed in the event of direct runoff from the site using the material, then the need to meet her criteria in relation to aquatic environments is obviated.168 The proposal includes controls to that effect. [107] It is proposed, as part of the testing regime, to conduct ASLP and TCLP testing of the material. There appears to be no explanation for the very high thresholds of <50 mg/L for the ASLP tests and <100 mg/L for the TCLP tests. In the course of further oral submissions, Senior Counsel for the co-respondent acknowledged that the thresholds should be lower. There is, for the reasons given, no need for them to be as low as recommended by Dr Wright. This is a matter about which the parties can be heard prior to setting conditions of approval. [108] I am satisfied that, subject to effective controls, the proposal is unlikely to lead to unacceptable impacts upon aquatic ecosystems. (v) Acidity [109] Dr Robertson was concerned about acidity. In particular, in the ELCJR, he expressed the view that the stockpile contains acid-forming characteristics which render the material unsuitable for the proposed sale and use.169 [110] If leachate from the material is acidic, it will increase the solubility of metals and the ability for them to mobilise. Dr Robertson was concerned that elevated concentrations of metals, such as copper and zinc, will leach out (arsenic is a metalloid rather than a 166 Ex 7 para 78. 167 T7-57. 168 T7-58. 169 Ex 6B l 36, 37. -- 42 of 68 -- 43 metal) and, at the same time, further lower the pH. Dr Robertson considered both acid and mineral (latent acidity) contributions. His ultimate concern was for aquatic ecosystems170 which might be affected by such leachate. The observations previously made about the need for an exposure pathway from the leachate to aquatic ecosystems and the difference between the leachate and the dose at the receptor are relevant to this concern, but will not be repeated. [111] Mr Short conducted 2 sets of testing for acidity on a total of 25 samples and classified them in accordance with AMIRA 2002, which is a recognised approach. The results were as follows: Classification AMIRA (2002) criteria used by TS Barren 8 32% Not acid forming (NAF) 5 20% Uncertain 3 12% Potentially acid forming (PAF) – low capacity 9 36% TOTAL 25 100% [112] Mr Short’s work proceeded on the conservative basis of using total sulfur to estimate maximum potential acidity, even though not all sulfur will occur as pyrite (that oxidises to form acid). The testing included pH tests. All of the first batch of 10 samples171 and 10 of the 15 subsequent samples172 (ranging 5.9 to 9) had a pH paste exceeding 7. Mr Short used the average of the samples as an indication of the inherent alkalinity of the stockpile. [113] Mr Short saw the mean net acid producing potential (NAPP) and net acid generation (NAG) pH of all samples as indicating a geochemical classification of NAF. He saw this and the extent to which the operation would involve mixing of the material as justification for classifying the stockpile, as a whole, as non-acid forming.173 He did not consider that any long-term testing was required in the circumstances. 170 T6-19. 171 Ex 3 pg 621. 172 Ex 3 pg 728. 173 Ex 3 pp 727-728. -- 43 of 68 -- 44 [114] Dr Robertson took issue with Mr Short’s investigations, methodology and interpretations. Dr Robertson’s evidence was to the effect that the stockpile is likely to be geochemically heterogeneous. He considered the sampling regime to date as inadequate, in terms not just of the number of samples, but the depth to which they were taken. Dr Robertson considered that there is a strong possibility that the material that has been sampled will be geochemically different (better quality) than that in the core of the pile.174 He referred to the absence of dynamic testing with the consequence that the long-term leaching behaviour remains unquantified. [115] The samples were taken to a depth of no more than 4 m. Sampling to greater depth was not done because of what Mr Short saw as practical difficulties,175 although, as Dr Robertson pointed out,176 sonic drilling could have been employed. Mr Short thought that 4 of his sampling locations were from areas exposed by excavation. In those places samples were taken variously at 2 or 3 metres. Senior Counsel for the appellant sought to cast doubt on that by comparing the mapped sample sites to Mr Dobson’s indication, on an aerial photograph attached to his statement, of where material was taken from in 2012. There is no great discrepancy having regard to the fact that Mr Dobson’s exercise is obviously indicative. In any event, whether up to 4 of Mr Short’s samples were from areas previously excavated in 2012 does not explain the difference between he and Dr Robertson in terms of the sampling regime. [116] Dr Robertson’s experience is with mining waste, including closing heap leach operations. In that context it is important to understand the material as a whole, its variability and how it functions over time, in order to plan for the closure of operations, including, for example, by designing the capping that might be required.177 The subject situation is different. What is of concern is the suitability, for its intended purpose, of that part of the material which is to be exported from the site. The sampling and testing has been done to support an application for an approval which would be subject to an ongoing sampling and testing regime for each 250 m 3 of material exported from the site. As Mr Short said, while defending his testing: 174 Ex 6B pg 22. 175 T8-21. 176 T6-29. 177 T6-29. -- 44 of 68 -- 45 “I believe that we’ve taken adequate samples to – to provide a – an opinion on the quality material. We also recognise that it’s a large pile and hence the ongoing testing regime proposed in the environmental management plan.”178 [117] This is not a case where there is once and for all “upfront” investigations prior to execution of a particular final action (such as closure). It is a proposal which integrates continuing ongoing sampling and testing throughout its operational life. Whilst Dr Robertson would have preferred greater “upfront” investigation, it is difficult to see why that is, in the circumstances, essential. As he conceded,179 it is the material going off-site, from individually tested stockpiles of 250 m 3 , which must be characterised, rather than the whole of the 4 million tonnes in the heap. Whilst greater testing, particularly at depth, would have provided a more complete set of data, the testing which has been performed is, I am satisfied, adequate in giving a sufficient understanding of the material in the context of the proposed ongoing testing regime. The co-respondent (or any successor who exercises the approval) will bear the risk in relation to the proportion of the material that will fail the testing regime and so not qualify to be exported from the site. [118] I have already found that despite the absence of long-term testing, chemicals are likely to leach from the material over a longer, rather than shorter, timeframe. Insofar as the interpretation of the existing testing results is concerned, whilst Dr Robertson had criticisms of Mr Short’s work, including his reliance on mean figures and the mixing of material, he: (i) accepted180 that most of the results showed neutral or alkaline pHs; (ii) acknowledged181 that the goal of gold extraction using cyanide was to increase pH to 14 or thereabouts and so make the material strongly alkaline; (iii) further acknowledged182 that, while he had some concerns, it would be fair, on the available information, to characterise the stockpile as largely alkaline, but with pockets of acidity, and 178 T3-37. 179 T6-31. 180 T6-31. 181 T6-31. 182 T6-32. -- 45 of 68 -- 46 (iv) says that, in the second set of samples, 9 of the 15 samples were PAF but had only a low capacity.183 [119] Large quantities of lime were added to the heap pile during the heap leach process to keep the pH high (alkaline) to stop the cyanide forming gas. Mr Sutherland took comfort that any acid forming material “is probably going to have probably some buffer there”.184 The current presence of lime on the top of the heap pile is significant in the opinion of Mr Short as it has been there since mining ceased 25 years ago and has not been consumed by any acid on the site (the inference is that if the heap pile was acid, that lime would have been consumed).185 [120] The concern about the potential for metals to move into solution in the leachate also needs to be put into context. It was a point of agreement in the ELCJR186 that sampled materials did not contain relative enrichment of any other metal or metalloid included in the test program apart from arsenic and copper. As Mr Short pointed out,187 the copper concentration in the most recent (15 sample) tests was low (mean <100 mg/kg) with only 1.6% of that being leachable by rainfall over what would likely be a long period. Zinc was undetectable in 11 of those 15 samples and present in only minute concentrations in the 4 others (ranging from 5 to 9 mg/kg).188 The total concentration of zinc is significantly below all Tier 1 levels for human health and ecological impacts in NEPM.189 Aluminium:190 • is not listed for testing in NEPM; • has not been added to the material and is a major component of all soils and geological material,191 and 183 Ex 6B pg 24 para (iv), T6-47. 184 T4-49. 185 T3-11. 186 Ex 6B l 342. 187 Ex 45 pg 6. 188 Ex 45 pg 6, Ex 3 pg 730. 189 Ex 45 pg 7, see also Sutherland T7-88. 190 Ex 45 pg 7. 191 T7-7 ll 39-46. -- 46 of 68 -- 47 • is tightly bound in the soil solid phase at slightly acidic and higher pH levels,192 and so will be addressed by ensuring that conditions do not become strongly acidic.193 I do not accept Dr Robertson’s proposition that the testing regime should include tests for leachable aluminium and zinc. [121] It is unnecessary to traverse the detail of all of the issues raised by Dr Robertson. Ultimately his concerns related to latent acidity and sulfides.194 I am satisfied that the potential for acidity to cause an undue impact on the quality of the leachate can be appropriately managed through the proposed testing regime. Dr Robertson argued for more than 1 test per 250 m 3 . As previously observed, I am satisfied that the testing rate is appropriate. Attention ultimately focused on the testing thresholds. [122] The EMP proposed 4 testing thresholds of relevance to acid and metalliferous drainage testing. The fourth, total sulfur, was “not directly relevant. Used to calculate NAPP”. Mr Stuckey recommended that the chromium reducible sulfur (CRS) method be used as a more accurate means of quantifying reduced inorganic sulfur,195 being that which has the potential to generate acid.196 The threshold should be <0.1%. That was uncontroversial. Material which passes that test can be described as barren.197 [123] Another threshold is Net Acid Generation (NAG) pH. It is used in conjunction with Net Acid Producing Potential (NAPP) – discussed below – to classify acid generating potential. The proposed threshold of ≥4.5 is uncontroversial. [124] NAPP is a theoretical calculation which represents the balance between the capacity of a sample to generate acid (MAP) and its capacity to neutralise acid (ANC), so NAPP = MAP – ANC. The proposed threshold is “negative”, such that, to meet the threshold, the material’s capacity to neutralise acid (ANC) must exceed its capacity to generate acid (MAP). Dr Robertson contended for a threshold of -5 on the basis of there being some uncertainty in the ±5 range.198 Mr Sutherland saw that as more 192 Mr Short said at ≥ pH 4.5 (Ex 45 pg 7), Mr Stuckey said at ≥ pH 5.5 (T7-7). 193 T7-8. 194 T6-35. 195 Ex 13 para 71. 196 T7-9. 197 T6-36. 198 T6-34. -- 47 of 68 -- 48 conservative, but unnecessary.199 Mr Stuckey pointed out that any negative result was indicative of a greater buffering capacity than potential to generate acid.200 Notwithstanding Dr Robertson’s desire for greater conservatism, the evidence of Mr Sutherland and Mr Stuckey persuaded me that the proposed threshold is appropriate. [125] The proposed threshold for pH is >5.0, which is slightly acidic. Because acidic conditions increase the solubility of metals, Dr Robertson considered that, to be acceptable, the testing regime should either include tests for leachable aluminium and zinc or require a paste pH of at least 6.5201 to deal with latent acidity.202 His evidence was that metals will still come into solution between pH 5 and 7 and sometimes higher.203 Mr Short’s view204 is that the concern for latent acidity is misplaced, because the testing to date does not suggest that the material will generate AMD conditions and the fractions of leachable copper and zinc are, in any event, minor. [126] Mr Sutherland acknowledged that latent acidity is generally controlled at or near neutral pH.205 Whilst he saw a change to 6.5 as introducing added conservatism, he was also content with the proposed threshold.206 Mr Sutherland considered that material which passes the other tests would, in any event, be benign as far as AMD and acid sulfate is concerned. Mr Stuckey also saw the other thresholds as of significance. He attested207 that it is not until there are acidic conditions, caused by the oxidation of sulfur, that metals may come into solution and then potentially drive the acidity higher by latent or metalliferous acidity. Accordingly, application of the other thresholds, to screen out material that could drive the pH down, will also address the risk of latent acidity or metalliferous acidity. [127] As for the pH level to be used for the testing threshold, Mr Stuckey’s view is that the proposed threshold is “appropriately conservative”, although the 6.5 suggested by Dr Robertson is clearly more conservative. He attested that 6.5 is often used as an acceptable pH for water, but that he regarded it as “a very conservative” criteria to 199 T7-84. 200 T6-57. 201 Ex 20 pg 6. In his testimony, Dr Robertson also took some issue about using the paste test, but that was answered in the testimony of Mr Stuckey (T6-58, 59), which I accept. 202 T5-97, 6-19,33. 203 T6-19. 204 Ex 45 pg 4-5. 205 T7-83. 206 T7-84. 207 T6-59, 60. -- 48 of 68 -- 49 adopt in relation to solid material, such as crushed rock or soil, because of the inherent buffering capacity associated with it. His evidence was that “a slightly lower pH” is often used as an acceptable level in such circumstances.208 I accept his view that a pH of >6.5 is more conservative than required, and that something ‘slightly lower’ would be acceptable, but not that 5.0 would be appropriately conservative. There was no particular justification put forward by Mr Stuckey for supporting the specific level of 5.0 and I note his later testimony209 that aluminium starts to come into solution in soil around a pH of 5.5. Mindful of the desirability of some conservatism, I am not persuaded that the ‘slightly lower’ (than 6.5) threshold should be lower than 6.0. [128] For the reasons given, I accept that acidity issues can be appropriately addressed by the testing regime. This reinforces my conclusion that, appropriately controlled, the proposal will have no undue adverse environmental impact and, in particular, no undue adverse impact on aquatic ecosystems. (vi) Conclusion on environment/ecology [129] For the reasons given, I am satisfied that, subject to appropriate controls, the proposal does not represent an unacceptable risk to the environment/ecology and is unlikely to result in an undue impact. ‘Real world’ experience [130] It has been observed that material from the site has previously been used to supply road base. There is a dispute about whether an examination of the road where the material is said to have been used provides support for the co-respondent’s case. There was also debate about whether the co-respondent can obtain any comfort from evidence that the water in the pit is alkaline. The co-respondent’s case does not depend upon obtaining support from these ‘real world’ demonstrations. The question is whether it can derive added comfort from them. (i) The road [131] In the early 1990’s in excess of 100,000 tonnes of material was sold to the Department of Transport for use in the construction of road pavement on a section of Gregory 208 T6-57. 209 T7-7. -- 49 of 68 -- 50 Development Road that is thought to be approximately 80 – 100 km in length.210 In 2012 another company, of which Mr Dobson (a director of the co-respondent) is a director, supplied 25,000 tonnes of the material to construct/repair the road pavement on various sections of the Gregory Development Road.211 With regard to the 2012 supply his evidence is that: (i) none of the material had fines removed nor added; (ii) material was removed from an entire section of the heap pile – not just the outer layer; (iii) no testing or auditing was carried out, and (iv) gravel from the stockpile met the specifications for both ‘gravel’ and ‘lot fill’ and was supplied for both purposes. [132] Mr Short took a total of 60 samples from 4 sites (including 2 adjacent to national parks) within an 80 km stretch of the Gregory Development Road. One of the sites was a control site, where none of the material from the subject site was identified. Of the 15 samples taken at each site, 5 were taken at 3 different locations, and at each location: (a) one sample at the shoulder of the road was taken at a depth of 0 –10 cms; (b) two samples were taken at 5 metres from the road, one at a depth of 0 – 10 cms and one at 20 – 30 cms, and (c) two samples were taken at 25 metres from the road, one at a depth of 0 –10 cms and one at 20 – 30 cms. [133] Testing of the samples revealed that whilst there was detectable arsenic in the road base at the road shoulder and in road base leachate testing results, arsenic was typically212 not found in the soil or in soil leachate testing results at 5 m and 25 m distances from the road. Those results provided no evidence of arsenic having migrated into the surrounding environment at those locations. It was submitted for the appellant that the evidence in relation to the samples is entirely unpersuasive. That was said to be so for a number of reasons. 210 Ex 6B pg 39, Ex 46 para 27 and Ex ARD 4 and ARD 5. 211 Ex 46 paras 10-21. 212 Some minor concentrations were found in a minority of samples. -- 50 of 68 -- 51 [134] The appellant submitted that there remains doubt about whether the material tested from 2 of the locations was from the stockpile. Mr Lee expressed a doubt about that.213 The third site, known as Mazeppa National Park #1, was supplied in 2012 by the co-respondent in circumstances where Mr Dobson was present, including as a driver of trucks taking the material to its destination at the road. The appellant accepted that the material at the site is “more reliably indicated to have been removed from the stockpile”. [135] Mr Sutherland conceded214 that there is no “absolute train of evidence to say, beyond all reasonable doubt”, that the material otherwise is from the stockpile, although he thought that, on the balance of probabilities, it is. Mr Short conceded that “potentially”215 the material could come from elsewhere, but he went on to say why he thought that it did not. [136] That part of the road base which came from the subject stockpile was initially identified by visual observation. Most of the crushed quarry products in the area are basalt and so are darker in colour than the lighter colour of the predominantly quartz- based material from the subject stockpile.216 Mr Short described the subject site, in this regard, as a geological anomaly in the landscape, in the sense that there are not many hills in the region that contain the gold-bearing quartz that came from the subject site.217 [137] Petrographic testing of the sampled material has shown it to have the same mineral composition (i.e. 80 – 90% quartz and <1% pyrite) as the material from the subject site. That is not so for the control site, the material from which was not identified as coming from the subject stockpile. It was pointed out, on behalf of the appellant, that the arsenic concentrations in the material sampled at the 2 sites where the source of the material has been questioned are considerably lower than for the other site, which had an arsenic concentration closer to the mean of the tests at the subject site. The concentrations at the other sites however, fall within the range of results obtained from the subject site. 213 T4-89. 214 T4-67. 215 T3-13. 216 T3-13, 14; Ex 46 para 22; T4-67. 217 T3-14. -- 51 of 68 -- 52 [138] Mr Sutherland gave evidence that there are 2 registered quarries with quartz within a 150 km radius and that the subject site is the only other site with quartz that he is aware of. It is known that in excess of 100,000 tonnes of material from the site was sold to the Department of Transport in 1992. [139] In the circumstances it can be said with confidence that the material from 1 of the 3 testing sites was from the subject site. Whilst proof of that for the other 2 sites is not as strong, it is probable that the material from those sites also came from the subject stockpile. In any event, as was submitted for the co-respondent, that material is at least of the same mineral composition and so is at least an analogue of the subject material such that the results of the testing are not devoid of relevance. [140] It was also submitted, for the appellant, that a number of things are unknown, which affect the utility of the results of the testing. In particular it is unknown: (i) whether the material was blended with other material from other sites; (ii) where the material came from within the stockpile (other than for the Mazeppa National Park #1 site to which Mr Dobson spoke) and so whether it was from the more weathered material; (iii) what the concentrations were at the time the material was first placed as road base (as no testing or auditing was then carried out), so as to compare with the current concentrations to see what has been released over time and to, for example, understand whether the relatively low levels now recorded at the 2 sites where the roadworks occurred at an earlier time are the result of leaching or whether the concentrations in that material were always low, and (iv) how the material on the roadside compares with that protected under the sealed section of the road. [141] Mr Sutherland pointed out that the white quartz is visually quite unusual, but even if, notwithstanding its visual identification, the material had been blended (of which there is no evidence),218 it would retain an arsenic signature.219 The other points do not rob the exercise of utility. It is not necessary to know the detail of how much arsenic was initially in the material or how much has leached out since its placement. The exercise establishes that, at each of the sites, the material used: 218 And about which Mr Dobson was not questioned. 219 T4-65. -- 52 of 68 -- 53 (i) conforms to the mineral composition of the material in the stockpile; (ii) contains arsenic which is leachable, but (iii) has not resulted in arsenic at any significant concentration at distances 5 m and 25 m from the road. That is, as Mr Sutherland put it,220 there is an arsenic signature at the shoulder and less away from the road. Given that arsenic contamination in soil does not disappear,221 the results, which show typically no arsenic at 5 and 25 m from the road, suggest that so much of the arsenic that has leached out of the material has not travelled far. That is as expected,222 given the tendency of arsenic to readily bind to the soil.223 [142] The utility of the tests was also questioned on the basis that there might have been an intervening table drain between the shoulder of the road and the sampling point. In that case Mr Sutherland would have expected any arsenic to be in the bottom of the drain. Mr Lee contended that judgmental sampling, rather than grid sampling (i.e. at fixed distances) should have been used.224 This is a more valid criticism. It appears that any drain would have been located between the shoulder of the road and the 25 m samples. Whilst Mr Short said that the 5 m sample was commonly in the drain,225 he could not recall whether it was along the centre line or the edge and noted that the drain moves around.226 This uncertainty reduces the extent to which comfort can be taken from the exercise, although the inspections did not reveal any obvious signs of erosion or evidence of significant arsenic migration. My ultimate conclusion is not reliant on the tests of the roadside material. (ii) The pit water [143] Tests on water in the pit show that it is not acidic.227 The co-respondent contends that this supports its contention that the material on site is not acid forming. The appellant contends that the evidence is inconclusive. 220 T4-67. 221 Ex 10 ll 519, 520. 222 T4-67. 223 T7-86. 224 T4-88. 225 T3-53. 226 T3-64. 227 Ex 6B pg 38. -- 53 of 68 -- 54 [144] The site is exposed to rainfall and leaching in ‘real world’ conditions.228 Mr Short saw the alkalinity of the pit water as significant on the basis that the entire site, including rainwater that percolates through the stockpile, drains to the pit. In that regard, the stockpile sits on top of a base liner, designed to prevent leachate seeping into the ground. There is currently around 250 million litres of water in the pit that Mr Short believes is likely to be a combination of site surface drainage, including seepage through the stockpile, and groundwater that is itself in contact with the host rock. [145] The evidence establishes that the drainage in the vicinity of the pit was designed so as to keep out external water sources whilst directing internal water ultimately to the pit.229 [146] There were a number of matters upon which the appellant relied including: • the condition of the liner underlying the stockpile is unknown;230 • water is directed to evaporation ponds, before the pit, and there is no visible lining in the evaporation ponds;231 • the surface flow within the site picked up by the drainage comes not just from the part of the site with the stockpile; • there might be groundwater interaction in the pit;232 • the relative contributions of groundwater, leachate from the stockpile and other surface runoff is unknown;233 • the drainage system is poorly maintained,234 and 228 Ex 6B pg 37 l 1245. 229 Ex 25, Ex 29 and Sutherland T4-46, 47, 48. 230 Short T1-42, T3-23, Sutherland T4-74. 231 T4-78. 232 T3-23. 233 T4-75. 234 T4-79. -- 54 of 68 -- 55 • there is evidence of blockage in the drain which would impede the flow in the drain and result in the liner material tending to help water overflow to an area outside of the bund intended capture flow.235 [147] However: • there is no significant intrusion of surface water into the pit from outside the mine area;236 • while the condition of the liner under the stockpile cannot be known, it is evidently still functioning, at least to a significant extent, because fluid is still observed to flow out from the base of the stockpile at a significant rate even in dry conditions;237 • runoff from the northern side of the heap reports directly to the pit, rather than via the drainage system; • as Mr Short observed,238 water flowing from the bottom of the heap pile must go somewhere. It does not flow across the landscape. It enters the drainage system which ultimately reports to the pit. There is no other body of water to which the water reports. Mr Lee’s suggestion that the greater part of the water may go into the ground was not based on any tests or other information obtained by him.239 His statement that the water “hasn’t got a snowball’s chance in hell of reaching the pit” is an overreach; • Mr Dobson subsequently gave evidence of observing runoff from the stockpile reporting to the pit via the drainage system in the directions shown on Ex 29 during and after a particular 50 mm rainfall event. He also gave evidence of building a bund which causes water in the drainage system to bypass the ponds.240 The submissions for the appellant described Mr Dobson’s evidence about the bund as “belated” and “curious” given that none of the experts had noted the bund and that there was no photographic evidence 235 Ex 32, T4-74. 236 T4-53. 237 T4-75, 76. 238 T3-25. 239 T5-68. 240 Ex 46 paras 29-33. -- 55 of 68 -- 56 of some sign of water in the evaporation pond. Mr Dobson was not however, challenged on this part of his evidence nor was I specifically asked to reject that evidence. Further, his evidence appears to be consistent with the directions of flow shown on Mr Sutherland’s plan.241 I accept it; • the blockage in the drainage system is in one location, towards the ‘upstream’ part of the stockpile catchment and would result in a reduction of flow rather than a complete blockage;242 • even if some of the water in the pit is groundwater and even putting to one side Mr Short’s experience that the quality of mining voids is typically influenced more by what is on the surface than groundwater flows243 and Mr Sutherland’s view (which I accept) that any groundwater is likely to be in a perched condition (and not a reflection of the regional groundwater system), the water in the pit is nevertheless in constant contact with the source rock.244 [148] I find that that the pit receives water by runoff from the stockpile and that its waters are in contact with the host rock. Dr Robertson took issue with the sampling, contended that the pit water does not represent acid leachate quality and pointed to its low arsenic concentration and elevated copper concentration.245 The pit water may not be just a collection of leachate, but given my findings, some comfort can be taken from the alkaline nature of the pit water as established in recent testing, the results of which are consistent with a 2015 report which found a pH of 7.6 and recorded that the pit water had been neutral to alkaline, and never acidic, since 1993.246 That nature of the pit water may not establish, but at least sits comfortably with the conclusion that is otherwise justified, that the material is typically non-acid forming. My ultimate decision does not however, depend on the evidence of the pit water. Control – conditions [149] The co-respondent’s case is that the material is appropriate for export from the site for use in some, but not all, circumstances. It submits that adequate controls are 241 Ex 29. 242 T4-73, 74. 243 T3-29. 244 Ex 6B pg 37, T4-80, 81, T3-24. 245 Ex 20 pp 7, 8. 246 Ex 6B pg 38. -- 56 of 68 -- 57 available to deal with any risk that the material or its use would be inappropriate. Iterations of proposed draft conditions of approval were tendered during the hearing. It was submitted, on behalf of the appellant, that there had been a failure to demonstrate that the material would be adequately controlled once it leaves the boundary of the site and that lawful and effective conditions could not be imposed to achieve adequate control. [150] Adequate measures to appropriately safeguard against the risk of the material being misused are important. Dr Wright’s opposition to the proposal owes much to her concern that there is no way to adequately control or manage what happens to the material, over its life, once it has been sold for use off-site.247 Conversely, those who supported approval of the proposal took account of the restricted intended use. Mr Sutherland, in particular, expressed his views on the basis that the proposed use of the material is certain and can be regulated and controlled.248 [151] One aspect of proposed control is that over the quality of the material that is permitted to be exported from the site. That is proposed to be controlled by a condition of approval that requires the development to be carried out generally in accordance with a specified EMP that includes Table 20 that, in turn, sets out the various testing thresholds. That is, in general terms, an appropriate regime, although there are matters which ought be attended to before conditions of any approval are finalised. [152] The EMP states that it is subject to change and review, albeit that the conditions of approval granted by the respondent made proposed ‘updates’ subject to Council approval. Adaptive management is a familiar approach, but matters of importance to the acceptability of the proposal, as discussed in these reasons, should not be subject to relaxation. [153] The EMP provides, in clause 7.1, for a testing rate of 1 per 250 m 3 . That is the rate which was accepted as appropriate in the HHEEJR and which I have also accepted. In clause 7.3, however the EMP also provides for an audit of every 5,000 m 3 , the purpose of which is said to be to discuss trends in levels of naturally occurring mineral enrichment. It is then said that “once trends are established and if they show that all 247 Ex 7 pg 22 para 77(e). 248 Ex 7 pg 28 para 95. -- 57 of 68 -- 58 material has been suitable then the frequency of testing lessens over time”. A rate of 1 per 500 m 3 is then referred to, but only as an example. The evidence suggests that there is sufficient variability in the material that the prospect of it all complying with the thresholds is low. Whilst Mr Stuckey was prepared to accept a varying rate of testing depending upon results, in my view the frequency of testing should not be permitted to be less than the rate of 1 per 250 m 3 in the circumstances of this case. [154] The EMP contains a process whereby stockpiles will be marked so as to signify whether they have yet been tested and cleared for loading and export. Subject to some amendment to the EMP, an appropriate regime can be conditioned to ensure that the material which leaves the site is suitable. [155] The appellant raised issues about the level of detail in the EMP about the identity of the person responsible for clearing the product, the qualifications and experience of the persons who are to conduct the tests, how it will be established that the various thresholds have been tested for and the details of the qualifications and independence or otherwise of the person who carries out the audits and how the audits are to be administered. Those are matters of detail which can be the subject of consideration in formulating a revised EMP prior to approval being finalised. [156] The EMP should expressly provide that the results of the tests and the audits should be retained in the operator’s records. The EMP already provides that the records are to be available for inspection by the Council and the Department of Environment at any time. The conditions imposed by the respondent included that stockpile testing data be provided to the Council for review on a quarterly basis and for the Council to be supplied with the audit reports. [157] Another issue is the use to which the material is, in fact, to be put. The respondent’s approval provided that material from the site could only be received by sites zoned for industrial uses and roads. The proposed restrictions are now different, as has been recorded in paragraph 5 of these reasons. [158] Whilst the conditions as to use of the material may not be able to bind the recipient of the material (who is not exercising the development approval), the appropriate use of the material by the recipient is proposed to be secured by placing the following obligations on the operator: (i) to give written notice to the recipient: -- 58 of 68 -- 59 • of the limited suitability of the material and restrictions on its use, • that the material may not be used for any other purpose (which should be accompanied by an explanation of the reason, namely that the material contains elevated concentrations of some chemicals), and • of a summary of the test results for each batch of material delivered, (ii) only to supply material on the basis249 that it will be used consistently with its restricted suitability and, in particular, subject to conditions that the recipient/purchaser: • acknowledges the limited suitability of the material, and • agrees to abide by restrictions as to its storage and use, (iii) only to permit material to be transported off-site by vehicles under the control of the owner/operator of the development (which should be supported by an obligation to only transport the material to a location which is consistent with the restrictions). [159] Further, there are also to be controls over the range and identity of potential recipients. The material will not be distributed indiscriminately, in small quantities, to thousands of recipients through the community at large. Rather, the material is to be distributed within a limited area and for limited purposes, and, in the case of road or rail infrastructure, it may only be distributed to the following entities (including their agents, employees or contractors): (i) the Commonwealth, State or local government (or any government instrumentality or government owned corporation); or (ii) the holder or beneficiary of a mining lease or other tenure or approval under the Mineral Resources Act 1989. The only other proposed purposes are for use otherwise on sites the subject of a mining lease under the Mineral Resources Act 1989 or by those carrying out building or operational works on sites zoned and used for industrial purposes. [160] In the circumstances it is reasonable to assume that the material will be distributed to fulfil supply orders in relation to a more limited number of significant projects. It has 249 There would appear to be the need to revisit the proposed draft condition (which permits notice at the time of delivery) to ensure that the agreement to purchase is on the stated basis. -- 59 of 68 -- 60 already been noted that the minimum job size is likely to be no less than 20,000 tonnes. Consequently, the range and number of entities with which the arrangements in relation to the restrictions will have to be put in place are likely to be more limited than might otherwise be the case. Further, it should not be assumed that those responsible for such projects, which include government projects, would be so lacking in professionalism and integrity as to knowingly misuse material in the face of the notice which is to be given or to fail to take steps to abide by the obligations that have been agreed. [161] The significance of a site being the subject of a mining lease or other tenure under the Mineral Resources Act 1989 is that it is highly likely to be on the EMR under the EPA. That is because sites are listed on the EMR if the administering authority of the EPA is satisfied that a notifiable activity is being carried out on land. A notifiable activity is defined in Schedule 3 of the EPA and includes a range of activities which are typically, if not always, carried out on land the subject of a mining lease. Such a site would be subject to the contaminated land regime, which, as Dr Wright confirmed, “is a good process for enforcing those sorts of controls”.250 [162] Whilst the conditions of approval may not bind the recipients, there are, as Mr Sutherland pointed out, other controls. It has already been observed that Dr Wright’s concerns in relation to potential impact on the environment focussed upon the material, with its arsenic, being placed within or directly next to an aquatic system or drain. The proposed restrictions address that, but as was pointed out for the co- respondent, some protection is, in any event, also provided by s 440ZG of the EPA which provides as follows: “A person must not– (a) unlawfully deposit a prescribed water contaminant– (i) in waters; or (ii) in a roadside gutter or stormwater drainage; or 250 T7-50. -- 60 of 68 -- 61 (iii) at another place, and in a way, so that the contaminant could reasonably be expected to wash, blow, fall or otherwise move into waters, a roadside gutter or stormwater drainage; or Example of a place for subparagraph (iii)– a building site where soil may be washed into an adjacent roadside gutter (b) unlawfully release stormwater run-off into waters, a roadside gutter or stormwater drainage that results in the build-up of earth in waters, a roadside gutter or stormwater drainage.” [163] Prescribed water contaminants include (underlining added); (a) earth (meaning sand, soil, silt or mud); (b) a chemical, or chemical waste containing a chemical; (c) ashes, clay, gravel, sediment, stones and similar organic or inorganic matter; (d) a substance that has a pH outside the range 6.5 to 8.5; (e) building and construction materials, including bitumen, brick, cement, concrete and plaster; (f) building, construction and demolition waste, including bitumen, brick, concrete cuttings, plaster and waste water generated by building, construction or demolition.251 [164] The material would be a prescribed contaminant irrespective of its chemical composition and so could not be unlawfully deposited in places described in s 440ZG(a), including in waters or where it might reasonably be expected to move into waters or stormwater drainage. The usual requirements to contain erosion and sediment have been referred to earlier. [165] More generally, the EPA creates offences of environmental harm and nuisance252 of which a recipient otherwise minded to misuse the material, notwithstanding having been put on notice as to its limited suitability and the results of its testing, should be mindful. The above leaves out of account obligations otherwise upon the recipient as a consequence of any approval applicable to its development. 251 EPA ss 440ZF, 440ZD, EP Regulation s 65, Sch 10. 252 Subdivision 3 of Part 3. -- 61 of 68 -- 62 [166] Dr Wright spoke of her experience, in rural areas, of a manager or employee taking some material from an industrial site or a mine home or selling it to others.253 There will, in this case, have been notice that the material is unsuitable for other purposes and an agreement about re-use. It is possible that individuals could, without authority, take some material from a stockpile in order to put it to their own use, but theft is not a scenario to which I am prepared to attach significant weight. [167] The combination of obligations on the operator to: (a) give notice of the limited suitability of the material, the restrictions on its use (and why) and of its testing results; (b) obtain acknowledgement and contractual obligations from the recipient, and (c) control the means of delivery of the material to ensure its distribution consistent with the restrictions, in circumstances where (d) the range (and identity) of the recipients is relatively confined and fewer in number than would otherwise be the case; (e) the recipients will be subject to contractual obligations, and (f) there are relevant statutory controls and offence provisions will, I am satisfied, provide a reasonable and adequate response to the risk of the material being put to an inappropriate use by the recipient. [168] Concerns were raised about the prospect of the material being later re-used, in an uncontrolled way, after its first use. The proposed conditions of approval address that by requiring the operator to give the recipient notice that the material is not to be re- used for another purpose and only to distribute the material to a recipient on a condition to that effect. [169] At a practical level, the narrow range of purposes for which the product is authorised to be used in the first instance and the expected minimum quantity means that the likelihood of re-use is low in any event. The supply of material would be likely to be in relation to sizeable permanent developments. It was acknowledged by Dr Wright that material used for a railway, for example, would not be expected to be later re- used. 253 T7-36, 37. -- 62 of 68 -- 63 [170] A possible example of re-use that was postulated was a road which, over time, may deteriorate such that it, or a section of it, is dug up. One would expect that, in such circumstances, a road authority which obtained the material on the basis of its restricted suitability and unsuitability for re-use otherwise, would respect that. [171] It was also pointed out, for the co-respondent, that future excavation of the material and its re-use as fill may be assessable as such or on the basis that the excavation may require a development approval as a form of extractive industry. There was some debate about whether it would fall under the definition of ‘extractive industry’ under the current planning scheme. The better view is that it does, for the reasons advanced on behalf of the co-respondent, but it is unnecessary to pause on that because the position under the current planning scheme does not take the matter very far. It is the scheme in force at the time of the potential re-use which would be relevant. It is sufficient to note that there is, at the very least, the possibility that future re-use could itself be the subject of planning control, that would result in the question of the suitability of the material being dealt with in any event. [172] It is theoretically possible that the material could be: (i) supplied to an entity that does not use it for a permanent development; and (ii) later re-used or made available for re-use; and (iii) despite the notice previously given about the suitability of the material and despite the material having been supplied on the agreed basis which limits its re-use, the material is nevertheless re-used for something else; and (iv) that something else is not one of the specified uses for which the material is suitable; and (v) that the product is not to be used for that other purpose or is otherwise regarded as unsuitable is not detected by reason of the prior notice by, and agreement with, the co-respondent, any application and approval process required for the site from which the material is to be excavated or the site to which it is to be deposited by way of re-use or by any enquiry as to its suitability by the person or entity proposing to re-use it or, if detected, is ignored. That is however, in the circumstances, an unlikely scenario, the possibility of which is not something that I am prepared to give decisive weight. -- 63 of 68 -- 64 [173] It should be observed that re-use, in the unlikely event of the above scenario, would not necessarily lead to adverse impact. Using NEPM as a guide, it has already been observed that material which meets the testing thresholds (such that it was able to be exported from the subject site) will have chemical concentrations which are well within all HILs for copper and within the adjusted arsenic HILs for B, C and D land use types. Roads have extremely limited direct exposure and dust (fines) is unlikely to lead to a dose at levels of concern even in HIL A areas.254 The exclusion of this material from HIL A areas was explained by Dr Wright on the basis of a cautious approach.255 Re-use for a railway is unlikely to cause any greater impact. Insofar as terrestrial ecosystems are concerned, it has already been observed that material that meets the thresholds would be within Mr Stuckey’s adjusted EILs not just for commercial/industrial, but also for urban residential/public open space land uses. Insofar as aquatic ecosystems are concerned, groundwater is not of concern, even on a 95% species protection basis. Adverse impact by reason of surface flows (run off) depends upon dose at the receptor and an exposure pathway (as earlier discussed). That is not to say that a broader use of the material ought be permitted, but rather to recognise the consequence of the extent of justifiable conservatism in the proposed restrictions. [174] It was pointed out, for the appellant, that the proposed regime involves conditions that: (i) are continuing conditions, rather than those that can be complied with once and for all; (ii) seek to control the activities of persons or entities other than the operator of the development, and (iii) seek to control activities beyond the site boundary. Those are matters which call for scrutiny of the proposed conditions and how they are proposed to operate, in the relevant circumstances, to achieve the desired outcome. 254 T7-60. 255 T7-72. -- 64 of 68 -- 65 [175] Reference was made to the decision in Ward v Rockhampton Regional Council256 where a proposed private airstrip was refused. One of the difficulties with that proposal lay in what would have been the difficulties in enforcing the operational controls which were proposed in order to reduce potential amenity impacts. Those included controls over: (i) the number of flights, expressed as maxima, for certain days and otherwise for months, quarters or years,257 and (ii) designated flight paths. As the reasons explain,258 those are controls compliance with which the local residents (the likely complainants in relation to amenity impacts) would find difficult to monitor and establish. Whilst the subject situation shares the three features referred to, it does not have the same level of difficulty with potential enforcement that accompanied the proposal in Ward v Rockhampton Regional Council (supra). [176] Whilst it is correct to observe that continuing conditions generally have greater potential for enforcement issues to arise, it is also true, as was observed in Ward v Rockhampton Regional Council,259 that it is not unusual for approvals to be subject to conditions of that kind. The potential difficulty involved with having conditions directed to the use of the material off-site by third parties has been acknowledged, and discussed. For the reasons given, I am satisfied that the obligations placed upon the operator will, in the circumstances, deal with that risk. [177] The residual risk lies in the risk of a failure to achieve compliance with the conditions on an ongoing basis. That is a risk common to all continuing conditions. It can be exacerbated, in a given case, by onerous complexity or by another feature of the particular conditions or the context in which they operate. In this case the proposed conditions would require the operator to do a number of things, but there is no sufficient basis to conclude that any are impractical or would impose burdens which would generate a practical likelihood of non-compliance. 256 [2015] QPELR 252. 257 Para [123]. 258 Paras [139]-[141]. 259 At [133]. -- 65 of 68 -- 66 [178] The respondent does not raise any concern in relation to enforcement. Further, it is proposed to impose obligations on the co-respondent which will facilitate enforcement. In that regard: (i) the testing of each batch of material and the regular audits will be recorded and made available to the Council and the Department of Environment, so that there is an evidence trail in relation to any non-compliant material; (ii) a register is to be maintained which records, amongst other things, the destination of all deliveries of material. That register is both to be available to the Council at all times and provided to it at regular intervals. This will create an evidence trail in relation to non-compliant delivery of materials; (iii) there is to be an obligation to self-report non-compliance. [179] It has already been observed that the material is likely to be supplied in large quantities for significant sized projects. No doubt the appellant or commercial competitors will be able to acquaint themselves with the restrictions placed upon the permitted purposes for which the co-respondent’s material may be supplied and whether a project that is in the market for material may lawfully be supplied from the material at the subject site. [180] It was submitted, on behalf of the appellant, that the Court would not assume that the co-respondent will abide by conditions of approval and that the Court would be slow to accept that the use was appropriate subject to conditions in circumstances where: (a) ECL and related companies have previously not complied with conditions of approval;260 (b) both of the existing quarries operated by ECL commenced the use of the land without complying with conditions of approval;261 (c) the Eureka quarry operated for 4 years without being compliant with conditions of approval.262 Compliance only occurred when action was taken by the Council;263 and (d) the non-compliance at the Eureka quarry related to “turning lanes” which Mr Dobson agreed relates to matters of “safety”.264 260 T8-37, l 20. 261 T8-38, l 5-10. 262 T8-38, l 30-35. 263 T8-38, l 30-40. 264 T8-38, l 40. -- 66 of 68 -- 67 [181] Further, in its earlier communications with Council, it was indicated on ECL’s behalf that: “ • ECL Dalby does not rely upon the “appropriate usage of the material by others”. • ECL Dalby does not “assume those procuring the material will have the professional skills to determine appropriate and inappropriate usage of the material pursuant to NEPM”. • ECL does not agree that an “absence of reliable environmental controls” exists or then, it follows, that this “increases the potential for environmental harm as a result of the proposal”.”265 and “It is unreasonable for Council to suggest that ECL Dalby should be responsible for ensuring the correct use of its quarry products by other entities”.266 [182] The quoted passages are from documents generated during the development approval process. Not all appear to be inconsistent with the co-respondent’s present position. For example, there is no assumption that the recipient will determine the appropriate usage of the material pursuant to NEPM. They will be given notice of the suitability of the material by the co-respondent. On the other hand, the co-respondent clearly now accepts that it should take reasonable steps to appropriately address the need for recipients to put the material to an appropriate use. When questioned about these passages, Mr Dobson said that he did not write the passages but that they did not still represent the position of the company. That the company has altered its view in this respect is unsurprising. [183] Mr Dobson was forthright in his admission of past breaches of conditions of approval. That is of some concern although none related to environmental controls or continuing conditions. In this case it is not proposed simply to rely on the co- respondent to be a good and responsible corporate citizen. As has been observed, measures are proposed to facilitate enforcement. In the circumstances I do not consider that reliance on conditions is inappropriate. 265 Ex 52, p 590, first 3 bullet points. 266 Ex 52, p 592, first bullet point. -- 67 of 68 -- 68 Conclusion [184] For the reasons given, I am satisfied that, subject to the imposition of appropriate conditions of approval, the material does not pose an unacceptable risk and is unlikely, once exported from the site, to cause undue human health, ecological/environmental or environmental and land contamination impacts. I am satisfied that the risk of the material being used inappropriately can, in the circumstances, be reasonably and appropriately addressed by the imposition of conditions. The conditions will differ from those imposed by the respondent and the EMP, to which the conditions refer, will also require amendment. Orders will, in due course, be made approving the development subject to conditions, the content of which will be determined after hearing further from the parties. I will, at that time, hear from the parties as to the appropriate minutes of order.267 267 Including whether orders should be made under s 47(1)(b) or (c). -- 68 of 68 --