Iluka Resources Limited v Horsham Rural CC [2017] VCAT 107 | Case summary

Keith Fischer, Southern Grampians Shire Council, Kangagulk Landcare Group Inc, Albert & Barbara Miller

Iluka Resources Limited v Horsham Rural CC [2017] VCAT 107 | Case summary | Zoe

[46]

Iluka Resources Ltd (Iluka), undertakes mining, processing, transportation, storage and shipping of mineral sand products at a number of operational sites in the Murray Basin. Within Victoria, mineral sand deposits have been mined at the Douglas and Echo mine sites near Balmoral, at the Kulwin and Woornack, Rownack and Pirro mine sites near Ouyen, and from the Jacinth-Ambrosia site approximately 250 km northwest of Ceduna in South Australia. The ore from these sites is processed to produce heavy mineral concentrate (HMC). Ore is transported to the Hamilton Mineral Separation Plant (MSP) in the Southern Grampians Shire for processing into individual saleable mineral products. Processing involves the extraction of final zircon and titanium oxide products for sale and export. In processing the mineral sands, the Hamilton plant produces waste by-products of sands, clay and gypsum, which contain naturally occurring radioactive materials (NORM) - namely uranium, thorium and radium with low levels of radioactivity.
The by-products of the processing at Hamilton MSP are transported to the Douglas Mine site for disposal. The waste is deposited into a mining void known as 'Pit 23'. An estimated 250,000 tonnes has been deposited in Pit 23 to date, with the current volume of the void estimated to be approximately 2.8 million cubic metres. A layout of the subject land is shown in Figure 1.
The Douglas Mine at Horsham was established in 2004 pursuant to a mining licence[1] and an approved Work Plan (including a Rehabilitation Plan) dated June 2003, which was issued following the preparation and assessment of an Environment Effects Statement (EES). Mining for mineral sands at Douglas commenced in 2005 and continued until 2012. No mining has occurred at the Douglas Mine since then, although rehabilitation of mined areas has been and is being undertaken.
Pit 23 has been used to dispose of MSP by-products from several other mines, as well as the Douglas Mine, since 2009 when a variation was granted to the Work Plan. The 2009 Work Plan Variation permitted disposal on the Douglas land of waste by-products generated by the MSP up to a volumetric limit. This was additional waste by-product over and above the return of waste from sands mined at Douglas, which was already an incidentally permitted activity. The volumetric limit set under the 2009 Work Plan Variation has not yet been reached but is near. For the continuation of the disposal of waste by-product to the site beyond the current limit, a further authorisation is therefore required.

[51]

The council has since accepted that its opposition based on the legal framework governing authorisation of the ongoing disposal of waste by-products at the Iluka mine may not be supportable and that it requires more substantive grounds to support its opposition to the grant of a permit in the event that a planning permit is the correct means of authorisation. Accordingly, by Tribunal order dated 25 August 2016, the responsible authority's grounds of refusal were amended to include the following additional grounds:
1. The application is not consistent with the objectives of the Farming Zone.
2. The application is not consistent with clause 19.03-5 of the Scheme. The proposal is not supported by waste management policy.
3. A higher level of environment protection is required through the design of Pit 23. Council does not support the design of Pit 23 without a modern liner system, or design approved by an environmental auditor, or which would meet the standard in EPA Publication 788.3
4. It is unclear whether the EPA is a referral authority for this application. This question is fundamental to the assessment of the applicant.
5. The proposed arrangements for the long term aftercare, maintenance and environmental monitoring are unclear, unfunded and are not agreed. It is not appropriate to grant a permit before there is an agreement with the applicant and all relevant government stakeholders regarding these matters, including the nature and quantum of security required to secure compliance with rehabilitation requirements.
6. The calculation of a value for the financial security that is required for the rehabilitation of a refuse disposal facility or rehabilitation of a quarry is generally determined in accordance with criteria prescribed under the Mineral Resources (Sustainable Development) Act 1990 and the Environment Protection Act 1970. There is no statutory formula to govern the calculation of the security that is appropriate under the Planning and Environment Act 1987, in the absence of agreement between relevant government stakeholders.
7. There is no agreement regarding the establishment and funding of a Technical Reference Group for the proposal, comprising of representatives from relevant government agencies to oversee the implementation and regulation of the proposal. This cannot be determined by the Tribunal and needs to be resolved before a decision is made in relation to the application for review.

[52]

The Tribunal has determined that the grant of a planning permit in conjunction with a radiation licence issued by the Department of Health and Human Services (DHHS) under the Radiation Act 2005 is the most appropriate means of authorising the ongoing disposal of low level radioactive waste by-products,.
In terms of any responsibility by the EPA, we find that the EPA is not a referral authority for this permit application and the EPA has no responsibility under the Environment Protection Act 1970 (EP Act) to issue a works approval because the EP Act does not apply to a radiation source within the meaning of the Radiation Act 2005.
We will elaborate on our reasons for these conclusions about the legislative framework later.
Based on our conclusion that a planning permit is the correct means of authorisation, we have considered in detail whether a planning permit should be granted having regard to both planning and environmental issues. We have concluded that there are no planning grounds why the permit should not be granted. We find that it is not contrary to the Farming Zone or State Planning Policy. We are satisfied it will have no adverse impacts on its neighbours or the environment and will contribute to significant employment opportunities in regional Victoria.
From an environmental perspective, we are conscious that any proposal concerning the disposal of radioactive waste, even very low level naturally occurring radioactive material (NORM), will arouse concern in the community. A great deal of scientific and technical investigation supports this permit application and the Tribunal heard evidence from various experts, which was subject to extensive cross examination by the council and all other parties. We are satisfied that there is no environmental reason why a permit should not be granted. We examine the various environmental issues and analyse the evidence and submissions made, later in this decision and set out our reasons in detail for reaching this conclusion. We are satisfied that the concerns and apprehensions expressed to us by community members have been appropriately addressed and claims of harmful environmental and community health risks have not been substantiated.
Finally, we are satisfied that there is a commitment on the part of DEDJTR, DHHS and the EPA to support the council in dealing with any technical issues that arise under the permit where the council lacks the necessary expertise to assess or respond to such issues in-house or from its own resources.
Nevertheless, we do not consider that any statutory onus should be placed on agencies such as DEDJTR or the EPA to approve or be satisfied about certain matters by way of conditions in the permit when such authorities are not referral authorities under the planning scheme.
We have carefully considered the various versions of draft permit conditions put forward by the council and other parties and their comments. The conditions we have approved balance the concerns of the council and community with the interests of the applicant, matters which we outline in our discussion about conditions.
Clause 10.04 of the State Planning Policy Framework in the Horsham Planning Scheme provides as follows:

[67]

It can be seen from these tables that planning permission has been required in each scenario, but has been achieved in different ways.
When the land was used for mining, the pathway specified in the MRSDA provided for planning permission to be given by way of an EES and assessment by the Minister under the Environment Effects Act 1978 (the EE Act).
When the 2009 Work Plan Variation was approved to allow the disposal of waste by-products from the MSP arising from the processing of heavy mineral sand concentrates from Iluka mines other than from Douglas, again the MRSDA provided a pathway for planning approval that did not involve a planning permit.
Whilst the Kanagulk Landcare Group (KLG) was critical of the procedures that resulted in the 2009 Work Plan Variation, we were advised that the procedures under section 42A of the MRSDA were followed and the Minister for Planning was satisfied that "the new work will not cause any significant additional environmental impacts". There were no challenges by anyone to the validity of the 2009 Work Plan Variation when it occurred or since, therefore it is not appropriate for us to question any aspects of it as part of this proceeding, including its rehabilitation obligation.
Mining has now ceased at the Douglas Mine. Iluka still wishes to use Pit 23 to dispose of waste by-products from the MSP. Iluka presently foresees operations at the MSP continuing until 2030 based on feed sources from mine sites other than Douglas. These include Iluka's other current or future Victorian mining activities and one site outside of Victoria.
A critical issue in determining the appropriate authorisation for this is the fact that stockpiles of mineral sands mined from Douglas will shortly be exhausted. This means that in future, the HMC processed at Hamilton will not include any ore mined at Douglas. The waste by-products, which will need to be disposed of, will come from other mines.
According to DEDJTR, which was responsible for issuing the initial Work Plan and the 2009 Work Plan Variation under the MRSDA, it is not possible to continue to authorise disposal of waste by-products at Pit 23 under the auspices of the MRSDA because the MRSDA no longer applies. We agree with this fundamental proposition and endorse the analysis by DEDJTR to reach this conclusion for the following reasons.
The MRSDA regulates "mining" on land (section 14) and requires rehabilitation of land that is being mined under a mining licence (section 81).
Section 14 provides that:
1. Mining licences

[74]

From the terms of the MRSDA, a mining licence is not a general authority to do on land that is the subject of the licence anything and everything faintly connected with the licensee's operations. If the MRSDA is to apply, it is necessary to identify the specific or general words that would authorise or regulate the disposal as planned.
The structure of section 14 is that a mining licence authorises the carrying out of mining on the particular land the subject of ("covered by") the licence. "Mining" includes processing and treating ore (section 4 MRSDA) and the holder of a mining licence with respect to land is authorised to construct on the land any facilities specified in the licence being, in essence, facilities for the purposes of mining (including processing and treating ore) on the land, and to do anything else on that land that is incidental to that mining, processing and treating of ore on that land (sections 14(1)(b) and (c)).
To do work under the licence, a work plan must be lodged and approved (sections 40, 40A) and any variation approved (sections 41, 41AAB). It is axiomatic that a work plan or work plan variation cannot authorise a wider ambit of activity than the mining licence. Within the terms of section 14, disposal on the land of waste generated on-site, or of waste generated off-site from the treatment of material mined on the land, may be taken to be "incidental to that mining" of the particular land within section 14(1)(c). But that does not assist in the present case because the mining has ceased and any stockpile of mined material from Douglas or by-product attributable to it has been or is about to be used up.
The question is whether disposal on the land of waste generated by the processing off-site of minerals mined off-site is incidental to "mining" on the land in question. It is insufficient to say that the land was formerly actively mined or was formerly a place where a stage in the processing or treating of ore occurred. Where the sole future activity on the land is the disposal of waste by-product from elsewhere, then there is no "mining on the land". Accordingly, the MRSDA does not apply.

[79]

Each definition includes processing and would include any activity incidental to the purpose.[2] The disposal of waste by-products from mining or processing minerals and the rehabilitation of land whilst the land is being used for mining would be incidental to or ancillary to its primary purpose for this use.
Whilst the extraction of minerals has ceased at the Douglas Mine, rehabilitation is still being undertaken on the land pursuant to Iluka's obligations under the MRSDA and the work plan. In our view, this must be considered to still constitute use of the land for the purpose of mining or earth and energy resources industry.
While Pit 23 has been used for disposal of waste by-products from the MSP sourced from Douglas and other mines in Victoria for which a mining licence is held under the MRSDA, it has fallen within the ambit of activities permitted under the definitions of mining in the MRSDA and earth and energy resources industry under the planning scheme. However, it is now proposed to use Pit 23 for a different purpose. Its use for disposal of waste by-products from the MSP will no longer be tied to mining or mineral extraction on the land or even other mines in Victoria. In our view, the real and substantive purpose of the use of this land will be for waste disposal of by-products from the Hamilton MSP. This purpose would come within the definition in the planning scheme of refuse disposal[3], although we consider that what the permit allows should be limited to waste-by-products from the MSP to avoid any arguments that other types of waste might also be disposed of.
It does not matter to the characterisation of the use of the land that the activities will largely be the same as activities that have taken place for many years for the disposal of similar waste by-products from the MSP in association with its use for the purpose of mining or earth and energy resources industry. The test when characterising the use of the land for planning purposes is to determine its real and substantive purpose. In our view, the fact that Pit 23 will be used to dispose of waste by-products from the MSP long after the mining licence for the Douglas Mine expires, and the scale of the disposal, indicates that the disposal of this waste constitutes a separate purpose, no longer incidental to the previous primary use of this land for mineral extraction. In other words, the real and substantive purpose of the use of the land comprising Pit 23 will be for waste disposal of by-products from the MSP.

[80]

We do not consider that the ongoing disposal of waste into Pit 23 can be considered to be use of the land for the purpose of rehabilitation. The rehabilitation of Pit 23 following cessation of mining is an important objective, but rehabilitation would not be the real or substantive purpose of the use once mining has ceased.
We consider that conditions governing final rehabilitation of Pit 23 once waste disposal to it ceases should be included in the planning permit. However, a distinction needs to be drawn between the rehabilitation obligations under the planning permit and any current rehabilitation obligations under the work plan approved under the MRSDA.
We support the proposal by DEDJTR that once a planning permit is granted, Pit 23 would be excised from the work plan. This would mean that rehabilitation obligations under the work plan would continue with respect to the remainder of the Douglas mine site to which the work plan continues to apply.
The amendment of the rehabilitation plan under the work plan would recognise the changed use that Pit 23 will be put to. It will mean that the rehabilitation plan would be amended to state that no further rehabilitation work in respect of Pit 23 would be required under the mining licence. Rehabilitation of Pit 23 will then be undertaken in accordance with the conditions of the planning permit.
We do not consider that a variation to the work plan such as this would be contrary to section 81 of the MRSDA and the obligation under it to complete rehabilitation of the land either before the mining licence ceases to apply to the land or thereafter as expeditiously as possible. The objective is to ensure that land is properly rehabilitated. If this will occur satisfactorily under an alternative legislative regime post mining, then this objective will be met. The means of achieving this objective will be by filling Pit 23 with waste by-product, capping it and revegetating it. The actions to achieve this objective will be similar to the actions contemplated under the rehabilitation plan in the work plan - filling, capping and revegetating. However, they will be achieved by using the land for a new purpose - waste disposal - rather than as part of activities that fall under the wider meaning of mining. In practical terms, we do not consider that it matters whether this final outcome is achieved under the control of a planning authorisation or a MRSDA authorisation, so long as it is done satisfactorily to meet the objectives for rehabilitation.
This is the view taken by DEDJTR in supporting this proposal. In other words, the rehabilitation of Pit 23 will occur satisfactorily whether it is undertaken under the rehabilitation obligations of section 81 of the MRSDA associated with the former use of the land for mining or under the operation of a planning permit for a new use - waste disposal.
In our view, no attempt by the council to rely upon the rehabilitation obligations arising under the MRSDA and the rehabilitation plan under the work plan, which would effectively preclude the future use of Pit 23 for waste by-product disposal as proposed by this permit application, should be allowed to frustrate the proposed use. Rather, we support the following sequence of administrative steps proposed by DEDJTR to manage the transition of regulating the use of the land under the MRSDA for the purpose of mining to an alternative regulatory regime governing its use for waste disposal under the Planning and Environment Act 1987 (the PE Act).
We agree that it is an important objective to ensure that there are no gaps in regulatory oversight and that there is no duplication of regulation. The following sequences of steps would address this objective:

[92]

The key issues EPA considered in assessing pollution and environmental hazard regarding Pit 23 were:
- The potential for leaching of radionuclides and other contaminants into groundwater - the independent desktop reviewer concluded that there is low-to-no likelihood of an environmental hazard occurring in groundwater due to the nature of the waste by-product placed or proposed to be placed in Pit 23.
- Potential contamination of surface waters was not an issue as runoff is generally captured in dams on the mine site. Relevantly no current surface or groundwater flow path from Pit 23 towards the Glenelg River in the south was identified; and
- Radiation risks to human health and the environment were assessed by the DHHS, the assessment of which was provided to the EPA. DHHS concluded that continued disposal of waste by-product from the Hamilton Mineral Separation Plant into Pit 23 would not significantly increase the off-site radiation risks to human health or the environment, to a level that would cause a hazard or environmental pollution.
EPA also considered potential impacts related to air, noise and greenhouse gas emissions.
In addition, it assessed how well the proposed disposal practices at Pit 23 demonstrate environmental best practice. EPA concluded that:
- Pit 23 is the most appropriate disposal site - taking into account environmental sensitivity and void space availability in the pit;
- The proposal represents best practice within the mineral sands industry; and
- The proposed containment measures in Pit 23 are appropriate, and the installation of a pit lining material would only achieve short term reductions in leaching to groundwater and would not provide any further protection to the beneficial uses of groundwater, as these are not expected to be affected by the proposal.
The EPA put forward a series of recommendations for environmental protection to be included in the permit conditions. They include:
- The waste disposed of into Pit 23 should be restricted to waste that has originated from Iluka's mining, processing and transporting operations, and is contaminated with naturally-occurring radioactive materials. Records of waste transport and deposition into Pit 23 should also be required.
- Additional groundwater monitoring bores should be installed around Pit 23 and a rigorous groundwater monitoring and management plan should be developed. The monitoring should continue for the duration of disposal activities and beyond, and should be supervised by a hydrogeologist (groundwater expert).
- Regular checks should be done to ensure all existing groundwater bores are fit for purpose and maintained in working order.
- The groundwater monitoring data should be used to ground-truth and refine the groundwater computer models, providing an early warning system for any leachate fronts.
- Additional surface water monitoring should be undertaken along the drainage lines and lakes to the west of the site (when they are flowing) to pick up any potential future surface water impacts.
- Further surveying should be done along the drainage lines and lakes to the west to detect springs where groundwater may emerge.
- Appropriate dust and noise controls should be in place to ensure that amenity impacts do not occur.
- A decommissioning and rehabilitation plan should be developed and implemented.
- The final cap on Pit 23 should be at least 5 meters thick to create an effective barrier above the waste.
- A rehabilitation bond should be required from Iluka.
- Long-term land-use restrictions should be placed on Pit 23.
- Iluka should establish effective Community Engagement strategies.
We have considered these recommendations in determining what conditions should be attached to the permit.
Our overall finding in this proceeding matches the conclusion reached by the EPA, that there is no evidence to show that a condition of pollution or environmental hazard has arisen or is likely to arise from Iluka's proposal. Indeed, it is axiomatic that the grant of a permit or authority under any piece of legislation that contains objectives, policies or principles such as found in the PE Act and planning schemes, the EP Act and State Environment Protection Policy (SEPPs), the MRSDA, the Radiation Act or any other legislation embodying the principles and policy of the COAG Intergovernmental Agreement on the Environment[6] in relation to the management of pollution or environmental hazard will (and should) be consistent.
While we agree that the EP Act does not apply to a radiation source, this does not mean it has no role at all. If a condition of pollution or an environmental hazard does arise or is likely to arise, the EPA will have a role to play through its ability to issue a pollution abatement notice (PAN) to address such matters. The EPA's power to issue a PAN under the EP Act applies irrespective of whether there is a radiation source or whether a works approval or licence is required in these circumstances. This is provided in section 62 of the EP Act which states:
1. Abatement of pollution in certain cases

[98]

The council maintains that the use of the land for disposal of the by-product is inconsistent with the purposes of the Farming Zone. It says this on the basis that one the zone's purposes is to 'ensure that non-agriculture use of the land will not adversely affect the use of land for agriculture'. Because of the environmental and radiation risks the council believes the waste disposal will have, the future use of land for farming, be it the site itself or surrounding land, will be compromised. The proposed rehabilitation with native vegetation and setting the land aside for nature conservation is also said by the council to be contrary to the zone and the commitments under the EES to return the land to farming.
We find no reason to reject the proposal on the basis of the land being in the Farming Zone. This is because in summary and in consideration of the above identified matters:
- Ecological use is not prohibited in the Farming Zone, no evidence has been put that the proposed ecological use is not suitable for the land, and the 2002 EES clearly contemplated that some land rehabilitation will include ecological assets to return a net ecological benefit.
- Pit 23 covers just 20ha (or 2.5%) of the total 800ha of the Douglas Mine licence area. Virtually all of the remaining 97.5% of the land across the area has been restored for agriculture.
- The land will be capable of accommodating the proposed ecological land use that will in turn be sustainable without adversely impacting on soil and land conditions.
- Agricultural land traditionally contains native environmental assets, as was argued by parties to the EES Panel for the review project in 2002. This was particularly regarding the retention of scattered redgum trees, in part due to their habitat for the Red Tailed Black Cockatoo.
- The EES document specifically committed to some lands potentially being returned to native vegetation.
- There is nothing before us to support any argument that the proposed rehabilitated condition of the Pit 23 area will be incompatible with the use of surrounding (including rehabilitated) farming land.
- Our examination of the environmental risks, which we set out below, does not support the council or local landholders' assertions that the proposal will result in adverse environmental and radiation risks to farming activity in the area or of the site.
We expanded on these findings below.
The purposes of the Farming Zone are:

[108]

We find that the disposal of the by-products and other material will make an appropriate use of the existing pit, as it will work to return the land to its original landform and drainage conditions as proposed in the EES. The pit can therefore be viewed as making appropriate use of the existing infrastructure that arose from its permitted mining activity. The longer term capping and revegetation will result in a sustainable outcome that will require limited input to maintain the cap integrity and containment of the by-product material. While this removes this portion of the land from future agricultural use, it will not limit or adversely impact on the ongoing agricultural use of adjoining land or other natural resources such as groundwater. It will also serve to return the land to its original landform and so assist in maintaining the landscape qualities of this rural area, an outcome sought under local planning policy.[10]
We therefore conclude that the disposal and long term capping and revegetation satisfies many of the key decision guidelines and will not frustrate or interfere with the purposes of the zone to support agriculture.
As a response to the commitments made in the Douglas EES, we find that these included but were not limited to the following:
- Stabilise restored surfaces as soon as they become available and ensure they are compatible with the surrounding landscape.
- Restore long-term land use of agriculture, forestry, conservation and recreation.
- Restore and maintain diverse native ecosystems within the agricultural landscape to conserve and enhance biodiversity and maintain evolutionary potential.
- Establish native vegetation in selected areas for stock shelter, windbreaks and valuable ecological habitats and linkages.
- Enhance the regional landscape by appropriate planting of locally native trees.
Other commitments in the EES included:
- To create landforms that resemble pre-mining ones, but may be up to two metres higher.
- Reduce and control wind and water erosion, and dust to an acceptable minimum.
- Several types of vegetation would be established during rehabilitation including native vegetation and pasture on agricultural land.
- Any trees established on restored landforms would be local natives (eg: Buloke; River Red Gum; various Stringybark species) established from locally-collected seed, except for any non-native commercial plantations.
- At least 15 trees, including Bulokes, River Red Gums and Stringybarks, will be established for every tree that has to be destroyed during mining, in areas where they will enhance conservation values and where their survival is likely to be secure.
- A net-gain in native vegetation will be promoted within the Stage-1 region.
Finally, Commitment 8[11] in the EES stated the following:
- Basin [the mining proponent] will rehabilitate agricultural lands to their long-term uses of agriculture, agro-forestry and/or forestry. In some instances they may be returned to native vegetation.

[109]

The above commitments collectively include strong references to long term land use of conservation, restoration and maintenance of biodiversity and native ecosystems (including for ecological linkages) within the agricultural landscape. They also collectively provide for establishment of native vegetation for pragmatic agricultural benefits (stock shelter, windbreaks). On this basis we accept that the designation of the Pit 23 area as 2.5% of the total mine lease site is fully compatible with the EES commitments. Further, when regard is had to the fact that Pit 23 is located adjacent to reserve land containing native vegetation, there is some strategic support for returning the completed and capped pit to native vegetated condition.
As previously identified, Pit 23 covers 20ha (or 2.5%) of the total 800ha of the Douglas Mine licence area, with virtually all remaining 97.5% land across the area having been restored for agriculture. This restoration appears, from the Tribunal's inspection, to be successful to the extent that the final land form and use is visually indistinguishable from the form and use of surrounding land.
Also throughout the duration of the hearing and in all of the associated documentation, it was not put to the Tribunal that the restoration of that land to agricultural use has not been satisfactory in full or in part. The one issue raised by some landholders about rehabilitation of Pit 9 having failed was addressed by Iluka. It advised that a small area where some subsidence had occurred had not received final sign off and rehabilitation was being completed. This was part of its overall rehabilitation process wherein land was not said to be fully restored until its agricultural use had been established and the landform stabilised over several seasons.
While we are not sitting in judgement of these rehabilitation processes of the mining licence areas, we see the outcomes at other areas of the Gouglas Mine site are a practical demonstration of Iluka meeting the commitments made in the EES.
We are confident that Pit 23 can likewise be successfully rehabilitated to support natural systems and with a stable land surface, without any detriment to either the condition or use of surrounding agricultural land.

[111]

A number of assertions are made in the council's submissions about how this proposal should be considered under the umbrella of regional waste planning in Victoria, waste management policies and the waste hierarchy.
These assertions are not supported by the EPA. In part this is because the EPA says that because the EP Act does not apply, the umbrella of waste management policies under that Act similarly don't apply. Further, and perhaps more emphatically, Dr Innes evidence is that the EPA's waste management policies do not address radioactive waste or radiation sources. She has referred to clause 9(6) of the State Waste Management Policy,[12] which prohibits the disposal of radioactive substances in landfills unless there is a specific approval from the EPA or there has been an exemption granted under the Health Act 1958 (the reference to which is now understood to mean the Radiation Act 2005).
No such licence exemption has been granted to Iluka under the Radiation Act and so the regulation of its management of radiation sources falls within the jurisdiction of the Radiation Act and not the EP Act.
Further, as we have set out earlier, we do not consider that this proposal is a landfill in the common language use of the term to mean a putrescible landfill. Nor is it a landfill that is the subject of regional and state wide waste management policies. It is a pre-cursor to the land's ultimate rehabilitation to its original landform and drainage conditions by way of a new use for waste disposal of radiation sources that are by-products of ore processing. While the by-product contains other minerals of potential commercial use, potentially even as clean fill, these are not materials that have a commercial market because they are also a radiation source.
The filter bags, steel and concrete, the latter being a particular focus in the council's submissions, will only be disposed of at Pit 23 if these materials cannot be cleaned to remove NORMs. If the steel and concrete can be cleaned to a level where they are no longer a radioactive source, Iluka indicates that they will be recycled in line with the waste management hierarchy.
Conditions in the permit and the monitoring of deposited material are intended to ensure that only radio-active sources are disposed of in the pit.
We acknowledge that Clause 19.03-5 and various waste management policies establish a hierarchy that seeks to minimise the disposal of waste to landfill. However, a particular fact about this operation is that the disposal is limited to radioactive materials arising from Iluka's mining and process operations. The Grampians Central West Waste and Resources Recovery Implementation Plan (consultation draft)[13] recognises this fact and that this facility lies outside the realm of the any state infrastructure planning and regional waste plans. Any inference to be drawn from the council's submissions that Pit 23 is going to somehow operate as a regional waste centre for the disposal of a wide range of waste materials is therefore rejected.
It follows from the above that we are not persuaded that this proposal is subject to the waste disposal policies given the unusual circumstance of this proposal deals with radiation sources. Even if it were the wider sweep of planning policies about waste management has some relevance, there is nothing that has been put to us by the council as to what diversions or meaningful opportunities exist to divert the by-product from Pit 23. Indeed to do so would limit the potential to achieve other beneficial policy and planning outcomes to restore the landscape and rehabilitate the site.

[113]

The council asserts variously that:
- The Tribunal should satisfy itself that the design meets relevant policy obligations or is otherwise satisfactory in the absence of relevant policy standards.
- The proposal falls within classification AO5 of the Schedule Premises regulations and as such EPA Publication 788.3, Best Practice Environmental Management for Siting, Design, Operation and Rehabilitation of Landfills[14] applies.
- A precautionary approach is warranted and council should not be required to 'make up' appropriate design standards in the absence of clearly articulated policy standards.
- In the absence of jurisdiction under the EP Act, a position that it disputes, a suitably qualified environmental auditor (appointed under the EP Act) should verify the design of the pit just as if it is said to occur for declared mines under the MRSDA.
- The guidelines relied on by DHHS and Mr Wain in his evidence do not set out specific design standards for waste management facilities.
Such assertions follow from the council's position that the pit falls short of a proper design it says is necessary to respond to the range of environmental risks that the proposal introduces. In particular, the council says that the pit should include a liner and not just a cap to avoid the risks to groundwater and adverse impacts on future land use and human health.
The council asserts that Mr Mulvey's evidence identifies inadequacies in the assessment and he agrees that:
- Further survey of water quality emanating from springs is required.
- A 6% increase in discharge to McGlashin swamp is possible and there has not been an assessment of ecological impacts associated with this altered hydrology.
- There has been no dispersion modelling of non-radio-active dust impacts.
- No assessment of impacts from radioactive dust or other impacts on the commercial viability of crops or farming land with the area that a dust dispersion plume would cover.
- There are differences in the scope between Mr Mulvey's assessment and that by Mr Hoxley.
The council asserts that it is necessary to benchmark the environmental risks to air quality of this proposal against the 2002 EES.
For reasons that we will set out shortly, we find that much of what the council held to be of concern either misconceives the evidence, takes it out of context, or otherwise fails to acknowledge the clear evidence before us about the very low level of risk to the environment and human health. It follows that in addressing the substantive issues of environmental (and health) risks against the operations at Pit 23, many of the more intricate details of these assertions fall away. We have therefore not sought to address the many and varied assertions made by the council on such matters. In our view the following risks that have been put to us through the course of submissions and calling of evidence are the central matters:
- Leaching of soluble fractions and groundwater impacts.
- Leaching of soluble fractions and impacts from bio-accumulation in vegetation and associated food chain.
- Radon gas emissions.
- Emissions of dust containing radionuclides being inhaled, falling on crops/vegetation (and so entering the food chain) and contaminating roof top sourced water supply.
The council also made various assertions about the application of the EPA's guidelines, particularly but not confined to the application of landfill design guidance, in what it says is an absence of clear design guidance in the codes and guidelines relied on in the DHHS and Johnston radiation risk assessments. Such assertions may have some validity if the EP Act and its subordinate legislation applied to this matter. However, as we have discussed already, because of the operation of section 2(2) of the EP Act, and having been satisfied that there is no risk to the environment or environmental hazard, for reasons that we will come to, that is not the situation here.

[115]

The KLG and other landholders raise many issues and concerns about the past, current and future operations of the Douglas Mine and Pit 23. We have drawn these together under two main themes, i.e. one about the non-radiation risks of pollution or physiochemical environmental risks and the other about the radiation risks. The two themes are of course, interrelated in that the landholders fear:
- Pollution or contamination of the groundwater from the leaching of heavy metals, salts and radioactive substances, which will in turn impact interconnected surface water systems and beneficial uses of the groundwater such as stock water supplies.
- Increased and unacceptable exposure to radon gas emissions.
- Unacceptable levels of exposure to metals and radiation from the emission of dust from the pit through inhalation of such dust, dust washing into roof sourced water supplies and food products grown on neighbouring land.
- Contamination of commercial crops and meat because of dust conveying radioactive substances onto adjoining land or the uptake of radionuclides in plants grown over the site or on adjoining land.
- Similarly, because of the uptake of radionuclides in plants, a risk to firefighters and the general community if there is a bushfire which they say will result in exposure to radioactive ash and smoke.
These issues are said to arise because of the increased amount of monazite being put into Pit 23 in comparison to the volume that would have been placed in the pit if its rehabilitation was limited to the monazite bearing by-product derived from the Douglas ore body and the stockpiled overburden.
Throughout this proceeding, the landholders have expressed what we can only describe as a high level of distrust in the various expert assessments undertaken by DHHS or commissioned by the EPA and Iluka. We perceive various reasons for this distrust, but rather than deal with these it is more appropriate for us to focus on our evaluation of these assessments and satisfying ourselves about the veracity of the conclusions that have been reached about the range of risks that this proposal is said to present.

[119]

We cannot emphasise enough that all the information before us supports the position of the experts that the mineral sands by-product from the Hamilton MSP have a relatively benign chemical nature.
At a first principles level, the ore bodies that provide the source material for processing at the Hamilton MSP are mineral sands derived from strandline deposits emplaced under ancient coastal processes.[15] Over substantive geological periods of several million years the material making up these deposits has been subject to alluvial and coastal processes that will have removed soluble and environmentally mobile constituents. Because of these processes, the remnant, strandline mineral deposits are largely comprised of sand sized grains of various minerals that have a very low reactivity in the environment. Though the actual mineral composition may vary, the physical and chemical properties of these deposits, and so the risk of interaction in the environment, does not.
The chemical testing of the by-products contained in the various analytical reports included in the application materials and the expert assessments, particularly by Mr Mulvey, confirm these properties.
Indeed, it is the evidence of Mr Mulvey that with two exceptions, if this by-product material were to be classified under the EPA's regulatory regime for industrial waste management and scheduled premises, it would be classified as clean fill. This is because the by-product material is composed of natural minerals. This is a key point that has ramifications about the environmental risks, which we will return to shortly.
The first of the two reservations Mr Mulvey put forward arises from the fact that the over-size material and by-products contain elevated concentrations of naturally occurring arsenic in a mineral form. These concentrations of mineralised arsenic sometimes exceed the level applicable to fill as set out in the EPA's contaminated soil classification guidelines.[16] Mr Mulvey's evidence is that in situations similar to this, such as in the gold provinces of Stawell and Bendigo, such material is managed as fill because the arsenic has low leachability and hence bio-availability. Because of these properties the naturally occurring arsenic compounds do not present an environmental risk.
Mr Mulvey's evidence about the arsenic being naturally occurring mineralisation of low bio-availability is supported by the leach test results. All of these results demonstrate a very low solubility or leaching potential for arsenic even under the aggressive acidic and alkaline test environments.
A perusal of the EPA's guidelines for the classification of wastes confirms that naturally elevated metal elements can indeed occur in fill material.[17] These guidelines also confirm Mr Mulvey's evidence about how fill containing naturally elevated arsenic is managed if it has a low leachability and bio-availability.
We therefore accept Mr Mulvey's evidence given his extensive professional experience in assessing and development management plans for mineral sands. His explanation about the risk posed by naturally occurring arsenic in soil and rock accords with the Tribunal's understanding about the risks accords with the EPA guidelines on solid waste management.
In reaching this conclusion, it is of course obvious that this material would not be used as fill because of the levels of radiation activity. The point here however, is to outline why the EPA, DHHS[18] and others consider that but for the radiation issues, the by-product material[19] presents no substantive chemical or toxicological risk to the environment or human health.
The processing of the ore at Hamilton does not change the inert status of this material. The plant uses a combination of dry and wet physical, magnetic and electro-static separation techniques and processes to separate commercial mineral fractions from non-commercial fractions. These separation techniques rely on the inherent properties of the minerals. The by-products of these separation processes are fines (clay and silt) and sand sized particles of non-commercial minerals. They have not been subject to chemical alteration or treatment that would cause a departure from their native mineral properties. Indeed the wet processes aid in the removal of salts and oxide coatings on the mineral grains.
The conclusions in the expert evidence about the low risk of the mineral components of the by-product is supported by the chemical and leachate testing of the material which has been placed in Pit 23 already (and which is derived from the range of source ore bodies proposed to continue supply to the Hamilton MSP). The testing reports were included in the permit application materials.[20]
The results of this leach testing is that across the board the various metals (and radioactive elements) present in the by-product have very low solubilities under the aggressive leach testing conditions. The same results were reported for the oversize and screen materials that will form the overburden and cover materials to be placed over the by-product.
Such results support and provide substantive weight to the expert evidence that because of the nature of the by-product mineral materials there is a negligible risk to the environment and human health.
Gypsum is an additional product that would be placed in the pit. It is a by-product from the wet-acid cleaning of commercial mineral fractions. It too is non-toxic and but for the limited volume and the risk of radiation would be saleable as a commercial product.
As per the evidence of Dr Gardner and Mr Mulvey, gypsum is mildly soluble. Accordingly leaching of this product and the migration of calcium and sulphate from the deposited material is both possible and likely to occur. The impacts of gypsum's solubility were addressed in Iluka's application and we address the outcomes of this assessment shortly.
We are also aware from the evidence of Mr Hoxley that the by-product streams, being native sand deposits will contain some natural concentrations of soluble mineral salts, such as sodium chloride, potassium, calcium, sulphates and the like. If present in sufficient concentrations, such salts present a possible risk to beneficial uses by raising the salinity of local groundwater, a point pursued with some earnest by the council. We will explain later in these reasons why we are satisfied by the information presented to us about this risk that there will not be an adverse impact to the beneficial uses of the groundwater.
Thus at first instance we find that the overwhelming evidence is that the nature of the mineral components of the by-product to be placed in Pit 23 present an inherently low risk of pollution or environmental hazard.
We recognise that small volumes of concrete, steel and the bag house filters are proposed to be buried in Pit 23. This is proposed only on the basis that the items have been determined to be radioactive sources. In terms relevant to the potential for chemical and toxicological impacts, we recognise that if not for their status as radiation sources these items would be solid inert wastes. These are also wastes that chemically present an inherently very low risk of pollution or environmental hazard.
While we are drawn to a broad conclusion about the inherently low risk to the environment arising from this mineral and processing by-products, we have nevertheless considered the range of chemical characteristics and the evidence of each of the expert witnesses in responding to the issues and concerns raised by the council and landholders. We now turn to our findings on each of these matters.

[121]

Council asserts that:
- There will be a 6% increase in flow to springs and discharge into the northern drainage line and they may be an associated risk of generating acid sulphate soils;
- Leaching of salts (gypsum and others) changes the segments of groundwater applying under the SEPP, constituting a state of pollution; and
- Because of the risks of impact to groundwater, Pit 23 needs to be redesigned and retrofitted with a liner.
The KLG and landholders say there is a high risk of preferential recharge because of the unlined nature of the disposal pit and presence of gypsum in the by-product. Because of this perceived increase in recharge it is asserted that groundwater flows will be altered from the predicted flows to the north-west and in fact there will be flows to the east or south-east toward the Glenelg River. They point to groundwater mounding around the tailings storage facility and freshwater dam as examples of changes that can occur from the mine's previous activities.
In support of these concerns the Tribunal inspected a groundwater discharge seep on the Glenelg River, to demonstrate the nature of shallow groundwater interaction with this river.
It is apparent to us that the landholders have little confidence in the groundwater assessment programs and modelling undertaken by the various specialist consultants. We understand that this is based in part on advice from Dr Mudd that insufficient groundwater monitoring bores are located in the area to properly define the groundwater flow patterns and that the groundwater model used in the assessment is not suitable for the local scale of groundwater flow that he says operate in this area.
Dr Mudd's evidence before the Tribunal seeks to support this advice. He suggests that the local scale pattern of groundwater flow behaviour that might occur due to local variations in the geological conditions including the presence of preferential pathways could not be accounted for in the modelling or from the broad nature of the monitoring regime established in and around the Douglas mine site.
We have considered these submissions and the evidence of Dr Mudd. Overall it can be seen that the various grounds, cross examination of the witnesses and submissions made by the council and KLG have focussed on what they consider to be uncertainties about the groundwater flow regime and the behaviour and migration of pollutants derived from the materials being placed in Pit 23. In particular, these two parties collectively raise concerns about:
- The sufficiency of groundwater monitoring and the levels of confidence about the location of inferred groundwater divides and hence the migration of pollutants;
- How additional recharge generated from the tailings storage facility (the TSF) and the unlined pits might influence groundwater flow paths;
- A failure to adequately consider impacts from groundwater migration on the Glenelg River, Lake Kanagulk and drainage lines to the north and west of Pit 23 which might be intersected by raised groundwater levels; and
- Eventual migration of groundwater pollutants to McGlashin Swamp and White Lake.
The groundwater conditions have been the subject of various assessments prior to and during the development of the Douglas mine. We are well aware from this information about the significance that changes to the hydrogeological conditions may have on the local area. The evidence before us is quiet clear that groundwater systems in this area feed into and support surface water environments that have high environmental values. These include the Glenelg River and various wetland and groundwater fed lake systems within the Douglas depression to the northwest of Pit 23. There are also groundwater fed lake and wetland systems to the north east. This does not include Lake Kanagulk. A range of background information and hydrogeological studies referred to in the material indicates that that this is not a groundwater dependant system.
Under this proposal the groundwater conditions and potential impacts have been the subject of extensive assessment that has included defining the geological and hydrogeological conditions and numerical modelling of future groundwater flow behaviour during and after disposal at Pit 23. The latter has include modelling of advective[21] movement of groundwater (termed particle tracking) to reflect the movement of water particles rather than migration of chemicals by such transport or by diffusion and dispersion. Iluka has also commissioned further studies to define the groundwater chemistry around Pit 23, in-pit dissolution modelling and solute transport modelling of the key elements of sulphate (derived from gypsum), salinity and radionuclides that may be leached from the by-product deposits.[22] These assessment have been directed to defining risks to groundwater from chemical and radiological pollution and consequential impacts, if any, on groundwater dependant ecosystems and other groundwater beneficial uses identified in the 2014 assessment.[23]
Having considered the evidence of the experts and the supporting material provided by Iluka in its permit application and works approval, we do not hold or consider the concerns put forward by council and KLG are sustained. We have arrived at this conclusion for the following reasons.

[123]

Firstly, the evidence prepared by Dr Mudd and it would appear the advice he has provided to KLG is of a general nature that raises broad concerns that might apply to any mineral sand mining and or by-product disposal project, including the disposal of heavy mineral concentrate in relatively shallow pits. Having raised such issues however, we find that Dr Mudd's evidence is deficient in the particular circumstances of this proposal and the materials proposed for disposal. This includes but is not limited to the details provided in the various testing of the by-product streams for its leaching properties as well as the historical groundwater monitoring and groundwater modelling.
Nor does his evidence point to substantive deficiencies in the understanding of the hydrogeological setting of Pit 23 and local and regional groundwater flow.
Those points he has raised about an inability to have conceptualised and accounted for very localised groundwater behaviour, such as perched water tables in the shallow formations (the Shepparton Formation in particular) may be correct, but his evidence fails to disclose how this detail relates to the overall risks to the environment and groundwater in particular.
Similarly Dr Mudd asserts that another study in 1995[24] identifies the possibility of shallow groundwater preferential pathways. Such evidence fails to acknowledge the sensitivity testing of the groundwater modelling that included amongst other steps, applying higher values of hydraulic conductivity and other adjustments to the model's parameters to assess the outcome of a much higher rates of recharge and groundwater flow through the Parilla Sand aquifer.[25]
This sensitivity modelling indicates only small percentage changed in groundwater behaviour. In cross examination, Dr Mudd acknowledged that he was not aware of this analysis.
Indeed it was acknowledged by Dr Mudd that he was not aware of the various assessments completed for this proposal during the works approval and permit application process.
We find that there these assessments provide sufficient evidence to be able to have confidence in the assessment of the hydrogeological conditions and the possible pathways for interaction between the materials to be placed in Pit 23 and the surrounding groundwater environment.
It is highly relevant that the by-product material is to be placed over and within the Parilla Sand formation, which is the same formation which from which the original Douglas ore was sourced from. There is thus no opportunity for interaction in the overlying Shepparton Formation as postulated by Dr Mudd. Seepage pathways between the placed fill and groundwater are limited to this formation.
The general hydrogeological parameters such as the hydraulic conductivity, storage coefficients and chemistry of the Parilla Formation are well known. What is less well known are some site specific parameters such as the capacity of the formation to attenuate radionuclides such as U238. However it is Mr Mulvey's independent assessment that where such site specific details are lacking, the adopted values have been conservative, i.e. producing over estimations of potential impacts.
We agree with this evidence. Having reviewed these assessment studies we find that where various assumptions were made about key parameters, the assessors also completed sensitivity testing to determine what impacts variations to these parameters would have on the assessment outcomes. The consistent findings were that the conservative nature of the assumptions ensured that worse case scenarios had been evaluated.
In respect to Dr Mudd's concerns about preferential pathways, the assessment of pollution impacts applied the upper range, more conservative values for hydraulic conductivity.
We are satisfied therefore that the worst case scenarios have in fact been accounted for and the worst case risks have been assessed, including any uncertainty about groundwater flow paths.

[124]

As we have noted earlier, comprehensive assessments of the solubility of the by-product materials have been undertaken by Iluka. A range of scenarios have been assessed involving the leaching of gypsum, total dissolved solids (salinity as TDS) and the more soluble species of radionuclides of uranium and radium. Thorium was also assessed but this assessment indicated that it would be so attenuated the very low levels of thorium that might be leached would not migrate beyond the pit's base. We therefore confine our reasons to addressing the outcomes of the uranium and radium studies.
In respect to impacts from increased salinity, the assessment indicates a possible maximum increase in local groundwater salinity of approximately 1,500 mg/L measured as Total Dissolved Solids (TDS). This increase would in part be due to the leaching of gypsum and in part due to leaching of natural salts present in the by-product streams.
We agree with the evidence that in an area where the measured salinities are variable, due in part to the hydrogeological regime for this area where localised recharge occurs from rainfall and water storages. Down gradient of the Douglas Mine site where groundwater interacts with surface water systems, such as the series of wetland and lakes within the Douglas depressions, groundwater salinities are shown to naturally increase. In the predicted northerly flow path from Pit 23, the data demonstrates a consistent increase in salinity from 3,000 mg/L TDS to more than 10,000 mg/L TDS. Ultimately very high saline conditions are encountered under White Lake.[26] The maximum predicted increase in salinity of 1,500mg/L TDS would be inconsequential in such an environment.
The regional monitoring also indicates an area of locally lower salinity occurs to the west of Pit 23, where salinity is indicated to be less than 3,500 mg/L TDS. The council says that beneficial uses of this locally fresher water may be at risk by a rise of 1,500 mg/L in TDS and hence beneficial uses will be impacted. It also says that this variation in the salinity points the fact that it is wrong to ascribe the groundwater salinity to Segment C of the SEPP (Groundwaters of Victoria).
However these statements overlook the fact that the historical and more recent monitoring of groundwater levels clearly indicate that groundwater migrates northward from Pit 23 and not westward toward this apparent area of lower salinity. The modelling indicates that this northward movement is maintained even with some preferential recharge occurring under Pit 23 coupled with the mounding around the TSF.
The salinity along the groundwater flow path from Pit 23 has a salinity range that places it in segment 'C' of the SEPP (Groundwaters of Victoria). Beneficial uses under this segment are stock water, ecosystem support, recreation (contact with skin) industrial water use and building and structures. Because of the low yields and depth to the regional groundwater in the Parilla Sands aquifer, the latter two uses are not considered viable or relevant. The EPA concurs with this view. At the higher end of the segment 'C' range of salinity, even stock watering is marginal.
We have had regard to the KLG assertions that while brackish to saline, some use is made of the groundwater in drier periods as a form of supplemental supply for stock water.
Overall we are satisfied from the evidence that the substantive groundwater beneficial uses for the region are the interaction of groundwater with surface water ecosystems and stock water use. The other uses relevant to Segment C of the SEPP (Groundwaters of Victoria) are at a lesser risk given the depth to groundwater, the limited capacity to extract groundwater for non-potable uses and it's brackish to saline nature.
In respect to recreational contact we observe that there is very limited exposure pathways for people to conduct recreational activities at local lake and swamp systems, especially White Lake with its saline conditions. There is therefore a very limited risk of impact on direct contact or ingestion during recreational activities.
In respect to these beneficial uses if the increase in salinity that has been modelled reaches the maximum of 1,500 mg/L, we find that these uses would not be precluded. As such a condition of pollution, as defined within the EP Act is not expected to occur.
The assessment of radionuclide leaching and migration similarly identified very low risks of impact to groundwater beneficial uses.
The assessments indicate long migration times of over thousands of years for migration of leached radionuclides U238, Ra226 and Ra228. However, attenuation of U238 would occur within 10m to 20m of its source point resulting in concentrations only marginally above the Groundwater SEPP objective concentration. After 100 years even this concentration of U238 would fall to below this level and indeed detectable levels, comparable to current background concentrations around Pit 23. There would thus be no impact to surrounding groundwater beneficial uses, including receiving surface water bodies.[27]
The results for both species of radium radionuclides identified that migration outside the pit would be negligible and so presented no risk of adverse impacts to beneficial uses.[28]
Thus Mr Hoxley and Mr Mulvey both conclude that if there were to be any leaching of elements from the body of the by-products placed in Pit 23 there will be no off-site impacts to groundwater and hence to groundwater dependant eco-systems. Their starting points are however that the testing of leaching potential indicates inconsequential levels of leaching at first instance.
This evidence about leaching and the very low risks to groundwater beneficial uses is consistent with the leaching tests results that indicated the by-product materials to be chemically inert with the metals and radionuclide having been found within these mineral assemblages to have extremely low susceptibility to leaching.
We are satisfied that the work undertaken by Iluka to assess these risks groundwater beneficial uses support the conclusions drawn by Mr Mulvey and Mr Hoxley that this risks are low.

[126]

While not included in its grounds, the council cross examined Mr Mulvey about increases in discharge to the northern drainage line and other water bodies to the north of the site, including McGlashins Swamp. The council put to Mr Mulvey that the modelling indicated a 6% increase in discharge, and that this discharge could affect the ecology of these water bodies, possibly be generating acid sulphate soil conditions. It was put to us that Mr Mulvey's oral responses supported the now expressed concern of the Council about such impacts.
Our records of this evidence are however substantively different to that of the council's. Mr Mulvey agreed he had not looked in detail at the ecological impacts from groundwater conditions generated by the Pit 23 proposal. It was his evidence that this was because the changes would be immaterial to the environment, evidence which we have referred to above. It was also his evidence that the 2014 modelling assessment did not indicate a 6% increase in groundwater discharge. We have reviewed the evidence and accept this point.
The 6% referred to by the council in fact arises from an assessment of the tailings facility in the EES. We have no evidence before us that would point to such an increase in discharge to the wetlands, though there is an indication that there may be some discharge to the northern drainage line. We deal with these groundwater flow matters in more detail below.
Finally, we record here that Mr Mulvey did not agree with the council that the discharges would lead to acid sulphate soil conditions being generated. In fact it was his evidence that the environmental conditions at the wetlands and waterways were not conducive to the formation of acid sulphate soils. He agreed with the council that future monitoring of waterways, springs and the like that he had recommended in any case could include monitoring for such conditions. However we do not take this to mean he agreed that it was a real risk.
Mr Mulvey's evidence about the ground and environmental conditions of in the area not being conducive to acid sulphate soil conditions is consistent with the Tribunal's understanding of such risks. Typically such conditions are associated with wetlands where soils are anaerobic and permanently submerged and they contain sulphide mineralisation that, when disturbed and oxidised generate acid conditions. The mineral deposits and ground conditions at Douglas are not consistent with any of these parameters.
No-one other than the council raised issues about acid sulphate conditions being generated as a consequence of Pit 23 operations. The council advanced no evidence of such conditions being a risk and no landholders or the KLG witnesses raised this as an issue. The propositions that were put to Mr Mulvey about increased groundwater discharge and acid sulphate soil conditions have, in our view, been no more than speculation rather than being founded on any evidence or firm basis of risk.

[128]

The modelling assessment proceeds on the basis that while Pit 23 remains open there will be enhanced recharge at this locality. This is a result of the pit being open to and allowing infiltration of rainfall more rapidly through the mass of the by-product deposits and into the Parilla Sand aquifer. No liner or clay base was assumed to be present or included in the model. The moist condition of the by-product material would also be an additional factor in increasing the recharge, in as much as a moist soil will become saturated faster for a given level of rainfall than a dry soil profile. Therefore the percentage of rainfall that contributes to recharge may increase.
It does not follow however that the increased recharge associated with an open Pit 23 will lead to particular adverse risks to the environment.
Firstly we note that the modelling indicates that the level of mounding dissipates within a short distance of the pit. This is consistent with observations made of raised water tables around the TSF and freshwater storage also dissipating rapidly and is consistent with the hydrogeological conditions of the area. Thus the changes in groundwater levels will be confined to a very local area around the pit.
Secondly, the understanding of the site's physical conditions places Pit 23 to the west of a groundwater divide that is controlled by underlying shallow basement rock. This ridge of shallow rock acts as a groundwater barrier (an aquitard) to local eastward groundwater flow in Parilla sand aquifer and is a major influence in controlling groundwater flow. The various groundwater assessments conducted during the EES and now for this proposal all indicate that the ridge of shallow basement rock directs groundwater flow in the vicinity of Pit 23 to the north or north-west.
Thus, because of this location and the dissipation of the groundwater mound through the permeable Parilla Sands aquifer, the local change groundwater levels and gradients around Pit 23 are not expected change the wider groundwater flow behaviour.
The hydrogeological modelling supports this conceptual understanding. Predicted groundwater levels demonstrates that the mounding under Pit 23 will not change the regional groundwater flow behaviour. The groundwater moving beneath this pit will thus continue to flow in north westerly directions.
The additional particle tracking models, which incorporate the mounding effects of an open Pit 23 similarly predict the same flow behaviour. Even seepage from the southern end of the pit, where the base is reported to be at or slightly below the present day water table, is demonstrated to flow north to north-westerly from the pit.
We are satisfied from this evidence that there is no risk of seepage from the pit interacting with groundwater flows from the wider location that migrate to the west, south, east or south-east. As a consequence there will be no interaction at Pit 23 with groundwater flows and discharges to Glenelg River.
As we understand the hydrogeological evidence, Lake Kanagulk is not a groundwater fed system. Accordingly there is no risk of impact to this from groundwater flows from the site even if a gradient to the north-east were to be established. However, the evidence from the assessment of groundwater conditions and the modelling indicate that there would be no groundwater gradient from Pit 23 in this direction.
Over the course of cross examination of witness and in its submissions, the council raised a particular concern about raised groundwater levels intersecting a drainage line to the north-west of the site. Local landholders have also raised this as an issue.
We understand that this northern drainage line flows to the Glenelg River and that historically seasonal (i.e. intermittent) springs have formed along this drainage line well before any mining occurred at the Douglas.
We also understand from the evidence that within this area, the Shepparton Formation overlies the Parilla Sands. The Shepparton Formation is said to be a complex system of interbedded shoestring sands embedded within widespread clay deposits. Local infiltration of rainfall can recharge these sands and form localised groundwater flow systems.
Similarly within the Parilla sands the evidence indicates that there may be clayey and laterite layers. If these layers lie above the regional water table, local recharge events can form perched groundwater systems.
This evidence indicates to us that the flows of intermittent springs along the northern drainage line may well be a result of local perched groundwater systems within the complex layers of the Shepparton and Parilla Sand formations as it may have to do with regional groundwater flow.
We do understand however from Mr Hoxley's evidence that the groundwater assessment indicates that with the increased recharge while Pit 23 is open, there is a possibility the groundwater levels will rise sufficiently high enough within the basal Parilla Sand aquifer to intersect and generate base flows in this stream.
Without further investigation of the possible sources of the springs along the northern drainage line, Mr Hoxley and Mr Mulvey agree that the best course of action to respond these possible groundwater discharge routes is to monitor the spring flow events. We think this is a sensible course of action in view of our other primary findings about the low level of risk of contaminants being leached from the fill at first instance

[130]

For the sake of completeness however we have considered the groundwater assessment by Jacobs which included contaminant transport modelling. This modelling was completed on the assumption that the northern drainage line might be intersected.[29] The modelling indicates that for a continuous source of a contaminant, a steady state dilution factor of 0.018 is achieved at the distance co-incident with the drainage line. The modelling also indicates it would take some 2,000 years for a contaminant to reach this point.
Applying this dilution factor to Pit 23 water quality indicators such as a salinity of 12,000 mg/L or a sulphate concentration of 5,300 mg/L[30] indicates that the TDS concentrations at the drainage line would increase by approximately 200mg/L and the sulphate concentration would increase by 95 mg/L. These are said to be inconsequential in comparison the variation in salinity across the regional groundwater system.
This modelling assumes a constant rather than a decreasing source and does not allow for retardation by adsorption within the aquifer matrix. These are simplistic and very conservative assumptions that result in an overestimation of longer term impacts. In reality as leaching of the source occurs, the remnant portion provides a smaller source concentration.
Notwithstanding these conservative assumptions the results of this contaminant transport modelling support the evidence of Mr Hoxley and Mr Mulvey that adverse impacts to groundwater beneficial uses are very unlikely.
Given this evidence, we do not consider the concerns raised by the council and others are well founded. Nevertheless we accept the evidence of Mr Mulvey that as a precaution it is appropriate to monitor groundwater conditions around Pit 23 as a belts and braces approach to risk management. This aligns with the application of a precautionary approach to provide for an adaptive approach to scientific uncertainties and / or unknowns.
While we have a satisfactory degree of confidence in the hydrogeological assessment of conditions around Pit 23 and the predicted low level of impact, we also accept that there will be a level of uncertainty about these matters. The evidence of Dr Mudd has sought to express some of those uncertainties. However we do not think that the level of uncertainty is so great as to not approve this proposal and that is not what the precautionary principle seeks. It seeks for a framework of adaptive response to address uncertainties.
We consider that in this proposal the hydrogeological conditions are sufficiently understood to be able to make a proper, well-founded judgement about the risks. These risks are very low. The monitoring proposed by Iluka, supplemented by additional monitoring that Mr Mulvey and Mr Hoxley recommend is intended to address any residual concerns that arise from some of the assumptions that have been made in the absence of specific field information. We think that this is an appropriate response in light of the very low level of risks of impacts to the groundwater that are indicated by the assessment, especially given that the assumptions that introduce the uncertainty have erred on the more conservative, worst case values.

[131]

KLG and Mr Miller raise concerns about the potential impacts from dust emanating from the site. Apart from the radio-active nature of the dust because of NORMs, their substantive concerns are that:
- Chemical analysis shows that dust will contain a range of heavy metals, some of which they say are toxic or carcinogenic so presents risks to human health; and
- PM10 and other particles impacting on human health.
The first of these concerns misconceives the way that the chemical analysis data is presented. The specific chemical data that Mr Miller and KLG refer to is the concentration of metals reported in Table B.1 of the Jacobs 2014 groundwater assessment. This data however presents the concentrations of total metals detected in samples that have been subject to leach testing.
The evidence of Dr Innes and Mr Mulvey is that these results do not indicate the concentration of the metals that are available and free to be absorbed or otherwise enter biological systems. They are therefore not an indication of the actual health or environmental risk.
We accept this evidence as it accords with the Tribunal's understanding of the chemical analysis and reporting of soil samples in such assessments. It is the associated reporting of leachate that is a better guide of environmental and health risk. These leachate concentrations indicate, as we have set out earlier, very low levels of solubility. As per the evidence of Mr Mulvey, the very low levels of solubility indicate that the metals would not be absorbed or enter biological systems if the dust were inhaled or settled onto plants or soil.
The second of the concerns pertains to particulate health impacts. No evidence was advanced by KLG or Mr Miller to support their concerns about the future operations of Pit 23. A reported impact from dust at a local farm house during mining operation is not sufficient to persuade us of such a risk. This is because the reported impact was at a site remote from the mine site and no information was provided that the mine was indeed the source of the impact. Secondly, the operation during mining, even if it were the source of this dust impact, involved a range of activities that will not occur during the filling of Pit 23. This includes screening and other materials handling involving a range of machinery.
Ultimately however, regardless of what may or may not have occurred during mining, we observe that the material to be placed in Pit 23 is amenable to well proven dust control measures. Iluka proposes such measures to be incorporated into an environmental management plan, a course of action required under the radiation management licence in any event.
Accordingly, we consider that the overall risk of dust emissions is low and is readily manageable.

[132]

It is apparent to us that the central issues for the landholders and those underlying the grounds of the council's refusal are as follows:
- The EES for the Douglas mine, which was approved by the Minister, was based on a proposal to only mine and return of by-product from the Douglas ore. Accordingly they believed that the volume and associated radiation risks, largely arising from the presence of monazite, would be no more than the natural ore because the same volume of monazite would be placed back in the pits.
- The monazite contained in the by-product would be diluted with the by-product from the primary wet separation process wastes. Accordingly, these NORMs would not be concentrated but rather be dispersed within the pits.
- This process continued until the work plan variation of 2009, which subsequently allowed more monazite into Pit 23 than was taken out. Additionally, the monazite has not been intermixed with primary wet separation and tailings wastes.
The landholders and the council therefore assert that the 2009 variation and what is being sought to be approved is an increase in the volume of NORM, principally monazite, into the environment which will result in higher levels of exposure to radiation to the community through increases in radon gas release, increased exposure to dust and increased leaching of radioactive elements into the groundwater. The longer time for completion of Pit 23 combined with the greater volume of monazite is said to exacerbate these risks.
Because they believe there is an increase in the risk, it is asserted that the proposed works and the 2009 variation are contrary to the commitments made in the EES and the basis of the approval of the Douglas operations.
We understand that the work plan variation and what is now before us will increase the volume of monazite in Pit 23 over that which was present in the native orebody. The DHHS assessment completed by Mr Wain (the DHHS Assessment) in fact estimates a possible nine-fold increase in the mass of monazite based on a number of broad assumptions. However it is also evident that the increased mass of monazite per se does not mean an increase in radiation exposure risks. The substantive question is whether the volume of monazite and other NORMs proposed to be placed in Pit 23 will present an unacceptable risk to the community and the environment from radiation.
In response to this question, we have concluded that the assessments completed by DHHS and Mr Johnston (in the Southern Radiation Services assessment) are satisfactory, have been undertaken in a competent and acceptable manner and that we can therefore rely on their findings. Their findings are that the proposal will not generate unacceptable risks to the community. Indeed the level of radiation dose that a community member may be exposed to during the filling operations represents less than 10% of the annual dose limit established under the regulations. Once completed and capped, the exposure dose is estimated to be so low as to be effectively zero. This means the dose will be no more than the dose under natural conditions.
Our reasons below set out why we have reached this conclusion in respect to the key radiation exposure pathways. We will first address the fact that landholders and council express little confidence in these assessments.

[134]

To assist the council's assessment of Iluka's proposal and in keeping with its role as the state agency responsible for regulating radiation safety in Victoria, the DHHS provided what it submits was a comprehensive review of the Iluka proposal. This review set out the nature of the DHHS role in regulating radiation safety, an assessment of material provided by Iluka in support of its application and its own 'first principles' assessment of radiation risks. The latter encompassed an assessment of radiation risks associated with:
- The continued processing of mineral sands;
- The disposal of the processing by-products into Pit 23; and
- The proposed rehabilitation of Pit 23.
DHHS says that its first principles assessment adopted extremely conservative assumptions about radiation doses that might arise from the operation of Pit 23 during disposal and after rehabilitation and final closure of the facility. It is submitted that in being conservative, the assumptions made by DHHS would lead to an overestimation of the potential radiation dose exposures to the environment and the public.
The evidence of Mr Wain before us essentially sets out and relies on this assessment.
DHHS emphasises that even under the conservative assumptions adopted in Mr Wain's assessment, the results indicate that radiation doses will be 'so low as to be of no public health or environmental concern'.[31]
We give substantive weight to Mr Wain's evidence. His 'first principles' assessment is an independent testing of the proposal that sits parallel to the assessment prepared by Mr Johnston in support of Iluka's application. Both variously apply assessment procedures drawn from international and Australian jurisdictions, these being the Code of Practice and Safety Guide on Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing[32] (the Mining Code), the Scientific Basis for the Near Surface Disposal of Bulk Radioactive Wastes[33] produced by the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) and the International Atomic Energy Agency's (IAEA) Disposal of Radioactive Waste.[34]
The fact that the independent DHHS assessment confirms the very low level of risk adds weight to the evidence of Mr Johnston who has reached the same conclusion.
DHHS's assessment took account of a range of scenarios to address risks to the air, ground and water environments during and after operations to fill Pit 23 had ceased. It includes a scenario where, without any future intervention, the proposed 5m cap erodes. Under this scenario, the DHHS assessment is in agreement with the assessment by Mr Johnston that even after 10,000 years, the radiation doses that would arise from a thinner cap would fall well below the annual dose limit of 1mSv.
The council seeks to challenge such a conclusion on the basis that future dose limits might be lower as the understanding of radiation dose risks evolves.
Such a submission invites us to speculate and accept the proposition that a lower dose limit might apply in the future. We decline to do so. The annual dose limit of 1mSv is a nationally adopted limit for Australia that is applied in Victoria through the Radiation Regulations 2007 (the Radiation Regulations).[35] The Tribunal, like other relevant and responsible authorities has a duty to apply statutory guidelines of the day and cannot and should not speculate or go behind such guidance when a standard such as this has been set by the legislature.[36]
KLG and other landholders also challenge the DHHS and SRS conclusion about safe levels of exposure below the annual dose limit. They assert that the annual dose limit does not account for the natural background exposure levels.
As is set out in the evidence of Mr Wain given in this proceeding, in the assessment provided to the council and as set out in the Radiation Regulations, the annual dose limit is that which is deemed acceptable over and above the background or natural levels of radiation exposure in Australia. The landholders challenge on this point thus misapplies the purpose of the dose limit set out in the regulations.
We also find that challenges to the evidence about the future erosion of the cap misses the key point that DHHS and Iluka rely on in response, which is that this risk has been assessed on the assumption that there would be no intervention during the future management of the site. The assessments by DHHS and Mr Johnston progress on the basis of a precautionary approach to test what might occur if there is erosion of the cap. That however is not what is proposed or intended to occur.
We anticipate that post rehabilitation, ongoing monitoring of the site would occur under the radiation licence and ongoing obligations of the landholder under the section 173 agreement that has been proposed. As part of this management regime passive protection of the cap is to occur by maintaining vegetation cover across the site. This will reduce the risk of erosion. What the DHHS assessment of the erosion does establish is that if the cap were to reduce in thickness, a corresponding increase in the dose exposures would remain within regulatory limits.

[136]

One of the daughter products from the radio-active decay of U238 is the isotope radon, Ra222. This isotope has a half-life of 3.8 days. Through a series of further decay events forming isotopes with half-lives measured in microseconds to minutes, radon decays to the isotope Pb210. This isotope of lead has a half-life of 22 years.
A daughter product in the decay chain of Th232 is the radon isotope Ra220 also known as Thoron. Thoron has a half-life of 56 seconds with further decay products of similarly short half-life isotopes that decay ultimately to the stable isotope of lead, Pb208.
Radon (in any of its isotopic forms) is an inert, odourless, tasteless and colourless gas. Generally because of the comparatively lower emanation rate of Thoron[37] its shorter half-life (and the short half-lives of the daughter products), references to and assessment of radon risks focus on the U238 chain of decay.
It is acknowledged in the expert evidence before us that radon gas can readily migrate through porous media, such as sandy soils, because of its inert nature. This evidence also indicates that radon is prevalent in the environment and is a natural source of background radiation exposure.
Apart from the emanation of radon, the radioactive isotopes U238 and Th232, and their respective decay chain daughter products, are present in the mineral sand ores and the Hamilton MSP by-product. Monazite is a particularly notable source of U238. The leachability testing of the by-product streams indicates that all the radio-active isotopes are very insoluble.[38] Mr Wain's evidence is that the low degree of solubility is consistent with the nature of the mineral deposits and the high degree of natural leaching that has occurred over geological time periods.
KLG and local landholders have raised concerns about exposure to radon gas. They have tabled information about their own measurement of radon and how they found levels above those reported in Iluka's monitoring.
As we have discussed earlier in these reasons in respect to the physio-chemical properties of the ore bodies and the subsequent by-products from the Hamilton MSP, we accept the evidence about the low risk of radionuclide leaching beyond Pit 23. We also accept the logical consequence of these properties which is that the risk of mobilising radionuclides from the by-product in aqueous solution at any meaningful concentrations that would impact on human health or the beneficial uses of the related segments of the environment is so low as to be insignificant.
This behaviour is consistent with the low leachability reported for the total concentrations of uranium, thorium and zirconium reported for the testing of each by-product stream.[39]
Given this lack of mobility through leaching, the greater risk arises from the migration of dust and radon gas. For reasons that we will set out, we find that the risks from these pathways are very low. Indeed the unequivocal evidence is that even under the most conservative of assumptions, the level of exposure through the possible pathways would be only a small fraction of the allowable maximum for exposure to the public of 1mSv/yr. These results point to an insubstantial risk to those who would live and farm around Pit 23.
Before turning to these specific dust and radon gas matters, we will make the following important points about the radioactive properties of the by-product material in respect to the claims that the deposits in Pit 23 will present a greater risk of radiation emissions than the pre-mining conditions.
We have considered whether the assessments by the DHHS and Mr Johnston satisfactorily account for the proposed mass of NORMs being placed in Pit 23. It is clear that they have and have in fact been conservative in their respective approaches in characterising the body of by-products as radioactive sources.
Both account for the distribution of by-product placed in Pit 23 since 2009 and what would be placed in the pit up to a limit that allows for a 5m cap across the site. In areal terms this equates to some 200,000m2 of surface area of by-product from which radon and dust might be generated. Mr Johnston's assessment includes an assumption that the most active by-product will be deposited in a single 1.6m thick layer immediately above the less active products and immediately below the 5m cap. This represents an unrealistically high level of exposure from radon gas and gamma radiation given that the various waste streams will be disseminated throughout the body of the by-product mass.
In both assessments representative activity values drawn from actual measurements of the by-product were applied. The DHHS assessment often applied the highest values in order to be conservative.
Further the DHHS assessment included a check that the radioactive isotopes from the head of chain U238 and Th232 through to the daughter products were in secular equilibrium. This is a condition where the daughter products of the radioactive decay chain have the same activity concentration as the long-lived parent isotope.[40] If secular equilibrium is maintained in the by-products from the Hamilton MSP, then the waste stream will maintain the same long-term radioactivity that is measured when the wastes are placed in the pit.[41]
In its assessment of the Iluka data, including leach testing of the radionuclides from the waste stream, DHHS concluded that secular equilibrium would be maintained because:
- There has never been nor would there be processing of ore to extract specific radionuclides;
- While some loss of Radon (Ra220 and Ra222) may occur during mining and processing, the emanation co-efficient from monazite and zircon[42] are so low that any such losses would be immaterial to overall activity levels; and
- Testing of by-product samples from waste streams[43] containing 40% to 60% monazite found that the Th232 and U238 decay chains were in secular equilibrium.
Accordingly there is no expectation that the activity levels applied to the by-product will vary from that adopted in the assessments.
For these reasons, we are satisfied that these assessments have properly characterised the body of the by-products proposed for Pit 23 in terms of the radiation risks.

[137]

There are two aspects to the issues raised by KLG about radon. One is the past monitoring and level of confidence in radon exposure being reported. The second follows from this, which is the confidence in the assessment of risk of exposure from future radon emissions and any future monitoring of the risks. Their concerns tie in with the fears we have set out earlier about the increased amount of monazite being placed in Pit 23.
We must make it clear that in assessing the radon risk, we are not sitting in judgement of past processes and regulation of the Douglas operations. What follows in respect to the issue of radon monitoring is related to the confidence we have in assessing the future risks and associated monitoring that will be undertaken in response to the level of that risk. We are aware however that as the future works reflect the current practices for disposal that commenced in 2009, our conclusions about the future works can equally apply to these.
We understand from the material before us that in 2015 KLG undertook its own monitoring of radon using track etch monitoring devices. This monitoring indicated radon activity at levels higher than that reported from Iluka's monitoring, also undertaken using track etch monitor devices, but of a different kind to that used by KLG.
In response to this outcome, the DHHS undertook its own series of monitoring using three separate devices, the two track etch devices used by Iluka and KLG and a third being a real time monitor. The outcome of this monitoring identified that the track etch monitoring devices used by KLG overestimated the level of radon activity. Mr Wain's evidence presented the details of this comparative study and explained the findings.
We accept this evidence in light of Mr Wain's ability to coherently explain the monitoring program DHHS undertook and the soundness of the scientific measures undertaken to test the different outcomes between the KLG and Iluka monitoring results. We conclude therefore that ongoing monitoring using appropriately verified monitoring devices can be undertaken with confidence that the level of risks will be properly identified.
We observe that this monitoring by DHHS also provides an indication of radon emissions from Pit 23 activities. The selected monitoring points included two locations around this pit as well as other locations across the Douglas lease area. Real time monitoring recorded radon levels of 0.93 Bq/m3 and 2.8 Bq/m3 at these locations. The overall range for all monitoring was from non-detect (0 Bq/m3) up to 23.4 Bq/m3. DHHS indicates that the higher levels were recorded over a second round of more extended periods and likely reflected seasonally calmer wind conditions.[44]
An assessment of the risks based on the maximum activity level of radon detected during the real time monitoring indicates an effective dose of 0.69 mSv/yr.[45] It must be cautioned that this effective dose is however based on 6,000 hours of exposure at a workers breathing rate (1.2m3/hr). These are very conservative assumptions. The monitoring clearly indicates a wide variation in radon emissions with a weighted mean of 2.8 +/- 0.8 Bq/m3, which is almost one tenth that assumed in the calculation. The assumption of continuous exposure for 6,000 hours to air with this level of radon activity is also extremely unlikely.
In respect to future risks, Messrs Wain and Johnston have assessed the possible radon gas emissions from Pit 23. They have done so on first principles or theoretical basis relying on a range of assumptions that they have deliberately set out to be the conservative, highest risk exposures. The best demonstration of these assumptions is that they have estimated the exposure risk on the basis of Pit 23 being filled with the most radioactive sources at the top of the fill and no cover material.
Another demonstration of the conservative nature of their assessments is that the wind carrying emitted radon is assumed to be toward the direction of the nearest receptor for a full year.
Clearly these two basic of assumptions will not occur. Pit 23 will be progressively filled and covered and wind conditions conducive to low dispersion will not blow in one direction all year round.
It is also very important to understand that their assessments account for the additional monazite being placed in Pit 23 over and above that which would have been placed there if only the Douglas mine by-product was being returned to this pit.
Under these conservative assumptions the effective dose to a receptor some 1.8km[46] from Pit 23 is estimated by Mr Wain to be 0.07 to 0.2mSv/year. Mr Johnston calculations estimate no effective exposure to radon from Pit 23. The reasons for the differences in the exposures is largely due to Mr Wain applying a radon emanation rate of 2.6 Bq/m2/s,[47] five times higher than that derived by Mr Johnston of 0.5 Bq/m2/s.[48] In respect to both these derived emanation rates we observe that even Mr Johnston's derived value is some five times greater than the average values measured directly for different by-product materials, which ranged from 0.01 - 0.12 Bg/m2/s.[49]
With the five metre cap in place, Mr Wain and Mr Johnston both advise that their calculations show that there would be no measurable effective dose from radon gas. This is so even under these most extreme of conservative assumptions they included in their respective exposure scenarios.
In our view the evidence is unequivocal and clear. When considered in the light of the conservative assumptions that have been made as compared to the real life situations of people moving about the land and the seasonal nature of stable low dispersive winds, we concluded that the effective dose level from radon emanating from Pit 23 to any person whether on the site or occupying the nearest residence will be infinitesimally small and well below the 1mSv/yr dose limit. Given this conclusion we are satisfied that radon emanations will not present a risk to the health of surrounding landholders.
Further, we observe that the real time monitoring results presented in Mr Wain's evidence includes some radon levels at locacations well away from the Douglas mine site. These include Hamilton and other small towns such a Harrow and the Kanagulk memorial hall.[50] The levels recorded at these sites are of the same order as the weighted mean measured in and around the Douglas mine site. This lends considerable weight to the conclusion that much of the radon detected during the course of monitoring is in fact representative of natural background levels.
Thus the levels and effective doses estimated by Mr Wain in particular, are likely to be no more than background conditions. However even when taken as indications of possible exposure above background, the assessments show radon emissions from the pit 23 operations will not present an unacceptable risk to surrounding landholders or those who may pass over the site from time to time. .

[138]

The assessments undertaken by the DHHS and Mr Johnston have addressed the inhalation of dust generated from Pit 23 operations. Mr Wain estimates a possible inhalation exposure level of 0.023 mSv/yr. Mr Robertson estimates an exposure level of 0.004 mSv/yr. The differences reflect the assumptions and inputs adopted in their respective assessments. However regardless of the different exposure levels, both assert that at small percentages of the 1 mSv/yr exposure limit, these exposure levels represent a very low risk to the general community.
KLG and Mr Miller seek to challenge these assessments and the conclusions about the low risk.
In reviewing the assessments by the DHHS and Mr Johnston it is apparent that:
- The DHHS has adopted very conservative assumptions about the degree of exposure to dust from the site, while Mr Johnston has adopted those conditions he considers reflect exposure to the general community; and
- Both assessors assume, somewhat conservatively, that the high volume sample records they use to estimate the dust concentration will be entirely composed of respirable dust particles.[51]
- As for the radon assessments, an exposure period representative of being downwind of the site for a continuous period of some 250 to 365 days has been assumed. Clearly this is a very conservative assumptions.
Based on these and other input values, including the activity levels associated with the dust the Johnston and DHHS assessments demonstrate very low doses referred to earlier, i.e. 0.004 mSv/yr and 0.023 mSv/yr respectively. Both are well below the dose limit of 1 mSv/yr, even when the DHHS assumes a much higher respiratory rate for members of the public.
In light of the very conservative approaches adopted in both assessments, which in our view would overstate the dose level, we are satisfied that if dust were to be generated from the operations at Pit 23, the radiation exposure risk to the general community would be negligible.
We are not persuaded however that the operations currently underway and proposed for the future filling of Pit 23 represent a significant risk from dust emissions at first instance. Primarily this is because the management of materials handling is readily amenable to well proven dust control measures. Such measures can include regular spraying with water or propriety dust suppressants. The vast majority of the by-product material is heavy mineral separate (most fines having been removed from the on-mine separation process). This material and the gypsum cake are deposited on site in the moist 'spadeable' condition we have referred to earlier. Thus initial conditions of the by-product and ongoing management, along with the inherent nature of the by-product streams readily reduce the risk of dust emissions to the nearest residences.
It is also clear that once the pit is capped the risk of dust emissions being a source of radiation exposure is negligible.

[146]

The ADWG provides conversion factors per unit of consumed water while indicating that an annual water consumption of 730 L/year is appropriate for an Australian adult.
The ADWG recommends a guideline value of 1mSv/yr in drinking water before intervention is appropriate.[53] .
Applying the above approach, the values of Gross Alpha and Gross Beta activity in Waddington tank water report tabled by KLG confirms what this report has stated.[54] That is that the level of activity is less than 0.05mSv per year or a risk factor of one additional fatality of two to three additional fatalities from cancer per one million. In fact the values are considerably less, being in the order of 0.0068 mSv if the contribution of radioactivity is from U238 and 0.0345mSv if the activity is from Th232 (based on head of chain calculations). Cumulatively the activity for both radio-nuclides is 0.041 mSv/year well below the ADWG guideline criteria.
The testing of the water sample from the Lyon property similarly indicates a low level of risk.[55] The sampled house water is reported to have a Gross β activity of 0.0373 Bq/L of which 0.0343 Bg/L is from Potassium-40 (K40). Thus the level of contribution to β radiation from Th233 or U238 is very small and would be equivalent to an annual dose in the order of 0.002 mSv/yr or 0.0001 mSv/yr respectively. These represent very low risks to people consuming this water.
Interestingly, the water testing report for the Lyon's samples indicates that much of the β activity reported for samples can be attributed to K40, save for the spring water. The latter appears to have β activity that is due in part to K40 and in part to other radionuclides. Assuming that this contribution may be due to Th232 or U238, low levels of risk are indicated. Applying the ADWG conversion factors, doses of 0.02mSv/yr for Th232 or 0.003 mSv/yr for U238 are indicated. Again these doses are well below the ADWG criteria.
What follows from these conclusions is that the water test results do not demonstrate a risk to the community through dust impacts on roof drawn water supplies. Indeed, Mr Miller and KLG proceed on the basis that the radioactivity reported in these samples was due to such a dust source. However there was nothing that was put to us that is definitive about this claim. In a rural, broad acre farming environment, a range of dust sources may be present and impact on tank water quality.
In any event, and assuming that these results did indicate dust impacts on water supplies, our assessment indicates that the risk to people is so low as to be negligible. To be clear however, as we have noted earlier we are satisfied that practical means can be implemented to control dust to negate even this very low risk.

[148]

KLG alleges that the uptake of radioactive elements by vegetation could lead to:
- Smoke and ash from bushfires exposing people (firefighters and others) to radiation from inhalation of radioactive elements contained in smoke and ash.
- Bio-accumulation in the food chain (direct ingestion of plants if the land is cropped, bioaccumulation by grazing stock then slaughtered and consumed by people) leading to human health risks and / or a failure to meet current or future food quality standards, i.e. a threat to commercial agricultural production.
The group also alleges that seepage from Pit 23 will result in groundwater becoming contaminated by radium and consequently impact on the quality for stock watering and / or affecting stock. We have already addressed this groundwater risk issue and rely on those reasons to re-state here that we do not agree.
KLG called Mr Hosking to give evidence about the potential for migration of radionuclides and the potential for uptake by plants. In addition, KLG tabled a scientific, peer reviewed paper about plant uptake of radionuclides.[56]
We observe that this paper tabled by KLG, which reports on trials of U238 and Th232 uptake in commercial crops, in fact demonstrates a negligible level of risk because it reports detectable but low levels of bio-accumulation in the plant matter, with the bio-accumulation primarily focussed in plant roots and not the leaves or upper plant levels. Mr Wain's evidence is that this study identified that the plants' roots generally served as a barrier to the uptake of heavy metals and radionuclides.[57]
We also observe that while Mr Hocking expressed general concerns about radionuclides in the soil, he conceded that he was not expert in understanding radionuclide behaviour in the environment. At best Mr Hosking expressed a concern that the rooting depth of plants assumed in the DHHS and SRS assessments were too shallow. It was his experience that some pasture species could root to depths of several metres.
We are not persuaded that the concerns expressed by KLG translate into meaningful risks. The evidence before us demonstrates that the radionuclides have at first instance low mobility in the environment and even less risk of uptake by plants to a level that presents a risk human health or the beneficial uses of the land. The risk is even lower when considered in the light of the proposal to revegetate the cap with native vegetation. That said, if this land were to be used for agriculture we are satisfied from the various assessments by DHHS and Mr Johnston that the risks of exposing the general community to radiation doses above the regulatory criteria of 1mSv/yr would be negligible.

[158]

Under the EP Act a condition of pollution, whether of waters, air or land is defined by the respective sections found under Parts V, VI and VII. Collectively these sections define a state of pollution to be where the condition of the water, air or land is 'so changed as to make or be reasonably expected to make' that segment of the environment:
- noxious or poisonous, or in the case of air emissions, offensive to the senses of human beings;
- in the case of changes to the condition of land, obnoxious or offensive to the senses of human beings;
- harmful or potentially harmful to the health, welfare, safety or property of human beings;
- poisonous, harmful or potentially harmful to animals, birds, wildlife and in the case of waters, fish or other aquatic life;
- poisonous, harmful or potentially harmful to plants or other vegetation; and / or
- detrimental to any beneficial use made of the waters, air or land.
There was no dispute between the EPA and the council about applying these definitions in this proceeding.
It follows from our assessment of the evidence and the materials submitted with the application and during the course of this hearing that the nature of the materials to be placed in Pit 23 do not present any of the conditions we have summarised above.
The council argues that the beneficial use of the land for agriculture will be precluded, as evidenced by the fact that Iluka proposes to preclude this use by planting the land to native vegetation. We do not accept that this is evidence of the land being polluted. We accept that the proposal to revegetate the land with native vegetation arises from a precautionary step to prevent erosion of the 5m cap. The combined evidence of Dr Innes and Messrs Mulvey, Wain and Johnston is that none of the chemical, physical or radio-active characteristics of the deposits would preclude agricultural use of the land when filling and capping is complete.
As we have set out in our reasons, we find that this evidence has withstood vigorous cross examination, while the additional materials and evidence of KLG witnesses do not contradict or persuade us to adopt another view.
We therefore are not persuaded that the beneficial uses of the land, or for that matter the air or water segments of the environment will be precluded by this proposal.
To be clear, we are satisfied that a condition of pollution, as defined under the EP Act, will not occur and is unlikely to occur.

[163]

The Tribunal acknowledges the effort devoted by all parties to the consideration of conditions, based on the draft conditions provided by the council in advance of the hearing and in accordance with Tribunal's Practice Note. Toward the end of the hearing all parties provided the permit applicant with detailed comments that were processed by the permit applicant into a comparative spread sheet. This approach was particularly helpful to the Tribunal in formulating the permit conditions in Appendix A.
Overall we considered that with appropriate variations, the conditions put forward under this process provided a sound basis for formulating appropriate controls over the site's use. The input of the agencies EPA, DHHS, DEDJTR, assisted in final consideration of responsibilities and accountabilities. We found that the content of the council also to be of much assistance in analysis of condition requirements, however we also found that sometimes the council proposed excessive detail and prescription that could be counterproductive as the permitted use evolves. The input of the KLG and other individuals assisted us to consider the views of the community.
We now identify the main matters considered in finalising the permit conditions.
- We have removed the requirement for various matters throughout the conditions to be to the satisfaction of the responsible authority in consultation with one or other government agency. The council is responsible for managing the permit, and we are satisfied from commitments provided during the hearing that both DEDJTR and the EPA will assist the responsible authority with technical and other input as appropriate on matters relating to their jurisdictions. This is in line with our earlier consideration of the roles of each department. The DHHS has direct statutory accountabilities relating to the monitoring and management of radioactive materials and it will have direct responsibility on some matters as well as providing assistance to the council. For this reason we have specifically included a reference to consultation with this department in approving the Incoming Waste Monitoring Plan (the IWMP) because of the overlap between the contents of that plan and licensing of the site under the Radiation Act.
- On the basis of the commitments and overall statutory responsibilities of the authorities, we find that that there is no requirement for a formal technical reference group to be established over the life of the permit. Such working groups can become moribund, and it does not follow that they provide more benefit than what is required by the attached permit conditions.
- We have consolidated a range of management plans proposed in the conditions to be incorporated into an overarching Environmental Management Plan. The conditions require various sub-plan components for risk analysis, groundwater, surface water, and air quality/dust monitoring and reporting and a final rehabilitation and vegetation establishment and management plan_._ All such plans may require periodic amendment, and the conditions provide for this.
- We disagree with the council that rehabilitation and vegetation establishment across the cap over Pit 23 should be built into the works plan covering the former mining use. A new permitted use is to occur, and all matters relating to this new use must stand alone, rather than be merged with or refer to those of the former mining use. This does not prevent a translation of the relevant components of rehabilitation plan under the approved mining licence and work plan. The plan under the planning permit should however stand alone.
- We have provided for the regular review of the EMP and its various sub-programs for monitoring and reporting. The review is to be undertaken by a suitably qualified environmental auditor who is required to prepare an independent report. The review reports and the auditor report, along with the site's operator responses will be provided to the council and be made available to the community on a website. The review reports are to initially occur annually. However we recognise the value in the council varying this period in circumstances such as after a long period of reporting that confirms an absence of impacts or conversely more regular reporting on components where they may be a concern.
- We find that there is no requirement for a 'Stakeholder Engagement Plan' as the objectives for this can otherwise be provided for in the conditions. It is also the case that establishment of formal community reference groups is not an assured panacea for enhancing outcomes. In this case we consider that the measures required in the permit conditions are appropriate for the permitted use at this site. These include internet/website based reporting and action requirements on the implementation of the required management and monitoring plans. A complaints/comments register including action on same, will provide transparency to the community and to the council.
- On the matter of air quality we defer to the adopted standards contained in State Environment Protection Policy (SEPP) relating to mining and extractive industry. While the use to occur is not mining or extractive industry we consider it to be akin to those uses such that their standards are applicable in this open agricultural landscape. The conditions make it clear what criteria are to be achieved.
- We accept the proposal for a Section 173 Agreement, that restricts the permitted use on the land, includes provisions for a rehabilitation bond, and to ensure that post-closure requirements of the rehabilitation and revegetation management plans will be achieved.
- We require that the permitted use (and development) can only be amended by the Tribunal, under Section 87A of the PE Act. This is to provide assurance to the community and to the state that the proposed project is to occur as conditioned or in the event of an amendment being sought, independent expert review of such an application will occur. We consider that the circumstances of this proposal warrant such a requirement.
- The Tribunal has no ability under the Act to extend a period of non-activity from two years to five years as sought by the permit applicant. We note that Section 68 of the PE Act requires that a permit will lapse if the use has not occurred for two years. Should the permit holder wish to discontinue the use for a longer period, the Act provides for an application to be made to extend the permit if the circumstances warrant such a request.

Iluka Resources Limited v Horsham Rural CC

At a glance

Court

Decision date

Source

Judgment (264 paragraphs)

Iluka Resources Limited v Horsham Rural CC (Amended) [2017] VCAT 107 (27 January 2017)

Parties

Legislation Cited (6)