Presence and location of Naturally Occurring Asbestos
34The central element in the applicant's contentions is that the underlying factual information as to the location of NOA on the site is such that the full extent of the asbestiform minerals on the site is not known. The applicant's position is that the assessments undertaken to date are inadequate, and that the Project should not be approved until further investigations are undertaken.
35Hanson's position is that given the studies and testing undertaken the location of NOA is known with a high degree of certainty, and the risk of disturbing NOA or the BV is negligible.
36The Minister submits that the Court should exercise the discretion in s75J to approve the Project subject to the conditions in the Project Approval, the revised statement of commitments, and Hanson implementing to the satisfaction of the Director-General, the AMP as provided to Hanson on 17 October 2011 with amendments responding to matters raised by the Department. The Minister recognises the seriousness of the risk posed by NOA, and submits that the Project Approval primarily addresses that risk through the Conditions, which provided for an adaptive management approach, including the preparation of an AMP and reviews and audits thereafter. Having considered the evidence adduced in the proceedings and all other relevant matters, the Minister continues to be satisfied that the risk has been and will be sufficiently addressed.
Evidence as to presence and location of NOA
37Considering the evidence as to information concerning the location of BV, and possible NOA, on the site, Mr Rangott and Mr Scott were in agreement on a number of points:
(a) the site and surrounds are underlain by Tertiary basalt, which is underlain by Alkali basalt (the resource intended for extraction), which in turn is underlain by the BV;
(b) the BV have been found, in places, to contain NOA in the form of tremolite;
(c) the risk of NOA being found in either the Tertiary or Alkali basalt is negligible; and
(d) the risk of NOA being present in the soils that will be disturbed during works in the IA and Quarry Area is negligible.
38The principal areas of disagreement between the two geologists relate to the occurrence and extent of the BV underlying the Quarry and IA, and also to the possibility of asbestos mining having taken place in the immediate site area at some time in the past.
Mr Rangott's evidence
39Mr Max Rangott has qualifications in science and is Director of Rangott Mineral Exploration Pty Ltd (RME), and has been a geological consultant for 20 years, following experience as a geologist for a number of mining companies. Mr Rangott relied in his evidence on a collection of documents obtained from RW Corkery & Co Ltd which had carried out a program of diamond drilling and percussion drilling on the site in 2000 (exhibit 1, vol 1, tab 37), and the Browne Report dated March 2005 (exhibit 2) which relied on data obtained by Corkery and some further surface samples. In his Statement of Evidence (exhibit 1A), Mr Rangott outlines the work undertaken by RME at the request of Hanson:
(a) 26 November 2009 Mr Rangott mapped exposures of NOA and its host rocks using a hand held GPS meter: exposures of partly weathered BV in the eastern part of the property and in the IA as originally sited, and in some exposures visually identified NOA;
(b) 4 December 2009 20 pits were excavated to 1.5 to 3.5m depth across the original IA: Mr Rangott visually logged samples of clay from each pit and concluded that NOA was present in 5 of the samples; testing by Amdel Ltd (a laboratory approved by the National Association of Testing Authorities) detected minor to appreciable levels of asbestos in all 5 samples;
(c) 8 December 2009 Mr Rangott carried out check logging of samples from drilling carried out by RW Corkery & Company Pty Ltd (boreholes GUY001, 003, 004, 005, 006, 007, 008, 010, 011, 012).
40Mr Rangott provided a report on the mapping, pitting and check-logging, being the "Report on the Occurrence and Distribution of Asbestos Materials at the Planned Lyndon Quarry Site" dated 27 January 2010 (Annexure C to exhibit 1A). Following review of the data and submissions Hanson moved the proposed IA approximately 130m to the west.
41Mr Rangott carried out the following work:
(a) March 2011 40 augur holes were drilled across the IA and along two alternative access road routes from the Mitchell Highway to the IA. BV was intersected in 13 holes: LA-T, LA-10, LA-11, LA12, LA-15, LA-16, LA-17, LA-18, LA-35, LA-36, LA-38, LA-39, and LA-40.Minor amounts of NOA were visually logged between 3-5m in LA-T, between 4-6m in LA-35, and between 3-4.5m in LA-39. Reference samples were sent to AEC Environmental, and tremolite asbestos was confirmed at the interval 4-5m in LA-35 and in the composite interval 2-4.5 m in LA-39. A report on the augur drilling was provided: "Report on Augur Drilling to Delineate the Distribution of Naturally Occurring Asbestos at the Planned Lyndon Quarry Site East Guyong NSW" dated 4 May 2011 (Annexure D to exhibit 1A) (the Augur Report);
(b) June 2011: 70 samples collected from the topsoil in a grid pattern across, between and around the IA and the Quarry area, and along the access roads: no NOA was detected in the samples by AEC;
(c) June-July 2011: percussion drilling of 15 108 mm diameter holes around the margins of the Quarry area, 14 of which reached 40 m and one of which was terminated at 17 m depth in weathered Alkali basalt. Ten holes (GUY013, 017, 020, 021, 022, 023, 024, 025, 026 and 027) did not intersect BV at any depth; five holes intersected BV at depths of 37 m (GUY014), 32 m (GUY-015), 39 m (GUY016), 35 m (GUY018), 23 m (GUY019); the presence of NOA was confirmed in holes GUY014, 015 and 019 and tremolite asbestos was visually detected in hole GUY019; AEC reported tremolite fibres in holes GUY104 (39-40 m), GUY105 (38-39 m), and GUY019 (30-32 m, 34-35 m). Mr Rangott provided a Report on RC Percussion Drilling of the Pit Shell Margins at the Planned Lyndon Quarry Site (East Guyong NSW) and Associated Activities (Percussion Drilling Report), which is Annexure F to exhibit 1A).
42Mr Rangott's evidence was that there is a high level of certainty about the distribution and depths of NOA on the site, based on the successive programs of geological mapping, augur drilling, soil sampling, percussion drilling and analyses of samples. While BV containing tremolite is exposed in small outcrops, in a small farm dam and in a shallow contour drain leading to the dam in the lower eastern part of the site, Hanson proposes to fence the perimeter of this area to avoid disturbing the NOA. While BV underlies approximately 50 percent of the proposed IA as resited, NOA has only been detected in a narrow sub-surface band at depths ranging from 1.5 to 4m and Hanson proposes to cap this area with clean fill to avoid disturbance of the BV. Investigative drilling in and around the planned quarry area has verified that BV lies at greater depths than the planned base of the quarry, leaving an adequate buffer zone between the BV and the proposed works.
43Mr Rangott was of the opinion that there is sufficient knowledge to form a clear picture of the underlying geology of the site, and that:
(a) the risk of encountering BV at levels above the proposed quarry floor is low;
(b) the risk of encountering NOA above the planned quarry floor is extremely low;
(c) an adequate buffer zone will be maintained between the top of the BV and the floor of the quarry at all times; and
(d) with the proposed control measures, the risk of disturbing NOA during the quarrying activities is negligible.
Mr Scott's evidence
44Mr Martin Scott has postgraduate qualifications in geology. He is a registered Professional Geoscientist in Regional Geology and Mineral Exploration of the Australian Institute of Geoscientists, and has published articles since 1994. His professional experience includes work as an employed and consultant geologist on exploration projects, geological mapping and sampling for 20 years. Hanson objected to the admission of Mr Scott's affidavit on the basis of relevance, unqualified opinion, and hearsay. For the reasons given during the proceedings we allowed the tender of the affidavit (exhibit E).
45Mr Scott's evidence noted the change in grid references from March 2000 under the Survey (Geocentric Datum of Australia) Act 1999 which required the use of MGA94 (Map Grid Australia) instead of AMG66 (Australian Map Grid). The difference between locating drillholes in AMG66 grid coordinates to MGA94 coordinates was approximately 200 m. Mr Scott considered this to be significant given uncertainty in locating previous drilling. In Mr Scott's opinion the absence of grid references on a number of maps and lack of appropriate referencing meant that the location of particular holes and assessment of material sampled from those holes carried with it a degree of uncertainty.
46Mr Scott referred to the Department of Mines Geological Survey of New South Wales report "The Mineral Industry of New South Wales No 4 Asbestos" (September 1970) which refers (at p44) to an asbestos occurrence at Guyong. In Mr Scott's opinion this asbestos occurrence is almost certainly from the site of the original infrastructure site proposed by Hanson. It is uncertain from government records and documents as to the size of the occurrence, whether any extraction of asbestos took place, and when or if mining took place.
47Mr Scott referred to the Augur Report relating to the preferred project infrastructure site and noted that asbestos had been found in three samples at depths between 2 m and 6 m, and that not all of the augur holes were sampled for further analysis. The Augur report had noted that BV were intersected by the drilling underneath about 50 percent of the IA, and that NOA had been detected in a relatively narrow east-west oriented band in soil-covered BV bedrock. In his opinion it is likely that there is more asbestos in bedrock underlying the IA because the drilling was broad spaced and the sampling and laboratory testing limited.
48Mr Scott was of the opinion that soils from the IA have been inadequately tested for asbestos by sufficient sampling with laboratory testing for tremolite using electron microscopy. Only five samples were analysed by AEC Environmental, and Mr Rangott had stated that this was not an exhaustive sampling test of the soils.
49Mr Scott was of the opinion that there are errors in the location data for the drilling described in the Browne Report, so that there is some doubt as to the correct location of drillholes, the proposed quarry location, the basalt resource, and the infrastructure site. Mr Scott noted that there are typographical errors in stating locations, hole numbers and map grid in the Browne Report, and in some figures the map grid used is not stated. The location of drillholes are shown in figures of the Rangott Report but the locations of some of those drillholes do not match the grid references in the original drill logs. Mr Scott commented on the logging of hole GUY009 by Corkery and Browne, and the logging of GUY005 and GUY006 by Browne and in the Rangott Report and the Augur Report. Mr Scott concluded that subsequent re-logging by Mr Rangott brings into doubt the original logging of basalt and basement BV by Corkery and Hanson.
50In Mr Scott's opinion the base of the basalt and the top of the BV is an irregular surface the location of which has not been adequately determined. Drilling investigations had not adequately located the BV in the proposed quarry and infrastructure areas to determine safe depths to excavate or conduct quarrying operations. Mr Scott was of the opinion that further drilling needs to be undertaken to investigate the geology of the infrastructure site and proposed quarry, with logging of the geology to determine depths of BV.
Joint report
51In the experts' Joint Report (exhibit C), Mr Rangott and Mr Scott were in general agreement as to the assessment of the underlying geology. They agreed that there was uncertainty as to the precise locations of the Corkery 2001 drillholes, however Mr Rangott's position was that the 2011 drilling meant that the data from the 2001 drillholes did not materially affect the certainty of prediction of the location of NOA. Mr Rangott agreed with Mr Scott that because of the relatively close spacing of the augur holes over the IA, holes GUY005 and GUY006 were possibly drilled further west of where they were shown on the drillsite plans. However, Mr Rangott stated that the data from GUY005 and GUY006 can be excluded from the drilling database without affecting its reliability.
52In the Joint Report Mr Scott and Mr Rangott expressed agreement that the 2011 percussion holes had been drilled to sufficient depths to confirm that there will be an adequate buffer zone between the planned quarry floor levels and the top of the BV. However at the hearing, Mr Scott stated that he had subsequently changed his opinion as a result of the provision to him of new material. In oral evidence Mr Scott disputed the assumptions made by Mr Rangott as to the locations of some original boreholes drilled by Corkery in 2000, particularly holes GUY005 and GUY006. Mr Scott's evidence was that this resulted from errors in the coordinates given on the drill logs presented in the Browne Report of 2005 (exhibit 2) which relied on the Corkery borehole data. In his opinion the coordinates given on the drill logs were based on a different map grid and could therefore be shown as being as much as 100m out of their true position. He concluded that the drilling investigations had not adequately located the BV so as to be able to determine the safe depths at which quarrying operations could be conducted.
53Mr Rangott's response was that Mr Browne became aware of the error and recalculated the positions of the coordinates which were then used to plot the positions of the boreholes on Figure 2 of the Browne Report (exhibit 2). Mr Rangott had used the topographical features in Figure 2 to plot the positions of the Corkery boreholes (GUY001 to GUY012) on Figure 1 of his Percussion Drilling Report. Mr Rangott stated that he had been provided with recalibrated co-ordinates by Mr Browne in July 2011 which confirmed his plotting. The original air photo enlargement used by Corkery to indicate the borehole positions showed close alignment with the locations used by Mr Rangott.
54Mr Rangott acknowledged in oral evidence that there was some uncertainty as to the exact locations where some of the Corkery boreholes were drilled, particularly GUY005 and GUY006, and so in his summaries and assessments he had discounted the information from those holes.
Findings
55We accept that the borehole positions presented and relied on by Mr Rangott from the original Corkery drilling may not be located as precisely as those from more recent drilling programs, using more sophisticated GPS equipment and techniques. However, we are satisfied that they are sufficiently accurate to be relied upon and that the evidence of Mr Rangott in this regard is preferred to that provided by Mr Scott. There are two reasons for this conclusion.
56First, Mr Scott accepted that he regarded Figure 2 in the Browne Report as accurately representing the location of the Corkery drillholes. Hanson tendered an enlargement of that figure (exhibit 6A), and an overlay of the location of the drillholes as relied upon by Mr Rangott in Figure 1 of his Statement of Evidence (exhibit 7A). Once the topographical features, including the Mitchell Highway, are aligned, there is substantial alignment between these documents. Mr Scott in his evidence accepted that usual practice would be to prepare the plan after preparing the graphic drill logs, and we accept that the incorrect co-ordinates in the graphic drill logs were corrected when Mr Browne prepared the plan in Figure 2.
57Secondly, Mr Rangott's opinion as to the location of the Corkery drillholes and in particular GUY005 was consistent with other geological evidence. Mr Rangott plotted GUY005 in the western half of the IA in the vicinity of augur holes that registered BV at depths of approximately 10m, whereas Mr Scott indicated that GUY005 was located 50 to 60 m from GUY016 and close to augur holes LA-33 and LA-33A. Those latter two holes did not record any BV, whereas GUY005 recorded BV at 10.5 m. We agree with Mr Rangott's evidence that it would be most unlikely that two boreholes in close proximity would record BV at such different depths.
58Hanson relied on an enlargement of a black and white aerial photograph (exhibit 1, p636) which had the date "16/9/2000" handwritten in the bottom corner. The photograph has marked on it the positions of the Corkery drill holes of the same date. Mr Scott suggested that the marked positions may indicate the proposed locations of the drill holes, not necessarily the actual locations in which they were drilled. However, as the date written on the photograph is the same as the date of the drilling, we accept that it is more likely that the photograph shows the actual locations of the holes that were drilled. Both experts agreed that there could be some scaling errors as the photo had been enlarged and copied, but this would only lead to minor errors in the indicated borehole positions, not major discrepancies. We accept that while it would not be appropriate to rely solely on this photograph, it is generally supportive of Mr Rangott's evidence.
59Information on the presence of BV below the proposed Quarry area is provided in Mr Rangott's geological reports, particularly the Percussion Drilling Report (Annexure F to exhibit 1A) and the attached lithological sections. The borehole information indicates that the upper surface of the BV occurs either outside or at depths of some metres below the floor of the proposed quarry. The sections indicate that the upper surface of the BV occurs at depths of several metres below the quarry floor, which is at RL 910 at its lowest level. There are some areas (as evidenced by sections C, D and E) where little borehole information is available in the central and widest part of the quarry floor, though by extrapolation, we accept that the upper surface of the BV must be well below the proposed quarry floor. Further drilling in this area as part of the quarry resource delineation would provide exact depths to the BV.
60In relation to the IA, we accept the evidence of Mr Rangott based on the augur drilling which mapped the top of the BV to 1.5 m to 4.0 m depth across approximately 50 percent of the IA, being the central and eastern parts of the IA, and at 1 to 2 m at part of the access road to the Mitchell Highway. The augur drilling intersected BV in holes LA-T, LA-190, LA-11, LA-12, LA-15, LA-16, LA-17, LA-18, LA-35, LA-36, LA-38, LA-39 and LA-40, and NOA was recorded in LA-T, LA-35, and LA-39. The remaining
50 percent of the IA was underlain by Alkali or Tertiary basalt.
61The proposed earthworks and installation of plant and equipment on the IA are detailed in exhibits 3A and 4A. When considered together with figures 3g to 3j in the Percussion Drilling Report (exhibit 1A, tab F), we accept that the works proposed for the IA are as follows:
(a) Precoat Plant area: soil, clay, and basalt will be excavated and the clay and rock pushed out over the eastern third of the IA providing a fill buffer of between 2 m-7 m on top of the BV;
(b) Screening plant area and stockpiles: soil, clay and basalt will be excavated from the western half of the IA and pushed out over the eastern part of the IA, creating a fill buffer of 5 m - 9 m over the top of the BV;
(c) Primary and Secondary crusher, Tertiary crusher and 2ML dam: soil, clay and basalt will be excavated from the western side of the IA and pushed out over the centre and eastern part of the IA, creating a fill and soil buffer up to 4 m-6 m over the top of the BV and of 3 m between the floor of the 2ML storage dam and the top of the BV;
(d) Office, weighbridge and 10ML storage dam: soil, clay and basalt will be excavated from the western side of the IA and pushed out over the centre and eastern side, giving a fill buffer of 4 m over the top of the BV and approximately 1.5m below the floor of the 10ML dam.
62Based on this understanding of the proposed earthworks for the relevant components of the IA, we accept the evidence of Mr Rangott, based on the augur drilling, that due to the natural amphitheatre shape of the IA there would be adequate fill available to provide a capping layer over the BV, and that the access road would be built up above the land surface without requiring excavation.
Assessment of samples
63The Applicant submits that Mr Rangott had erred in his interpretation of the presence or absence of asbestos by visual assessment of samples of BV and had failed to detect NOA on occasions in samples where it was subsequently found to be present by laboratory analysis. We accept that it is not possible conclusively to determine the presence or absence of asbestos fibres by visual means, and the experts agreed that there are standard laboratory procedures for the identification and confirmation of NOA. Both experts accepted that the standard means of testing available in laboratories, including polarised light microscopy, dispersion staining and x-ray diffraction, enable NOA to be detected in circumstances where it cannot be detected by visual examination. In our view what is important is the ability of a trained geologist to identify the presence of BV, as distinct from the Tertiary or Alkali Basalt rocks at the site, and the experts accepted that the rock types could be distinguished. The extent to which the AMP and Conditions of the Project Approval presently, or should, require further investigation if BV is identified on site, is addressed below.
Previous mining in the area
64The experts disagreed as to whether any previous asbestos mining has occurred on or in close proximity to the site. Mr Scott referred to a report 'The Mineral Industry of NSW - No. 4 Asbestos' by A McNevin, 1970, which referred to an 'occurrence' of asbestos at Guyong, but mentioned asbestos mining at other locations several kilometres to the north. Evidence was given on site by a local resident, Mr Tony Gordon, that ancestors of an elderly neighbour had referred to a "mine around Guyong".
65Mr Scott considered that there may have been a mine in the area now occupied by a dam, to the east of the IA and not far from an isolated outcrop of NOA which was inspected on the site view. Mr Rangott did not agree, and pointed out that the soil sampling program carried out in 2011 showed no presence of asbestos contamination. In his opinion, if a mine or extraction operation had existed, it would be expected that disturbed asbestos fibres would be present in the soils in the area. There was no evidence of any production or workings on the site. The experts agreed in the joint report that the asbestos production sites referred to by McNevin were a long way from the site.
66We are satisfied on the available evidence that it is unlikely that any previous mining or extraction of asbestos took place on, or in the vicinity of the site. The reference in the McNevin report is to an "occurrence", which would be consistent with the agreed presence of outcrops near the dam, and not to mining or production.
ESD
67The applicant contends that the principles of ecologically sustainable development (ESD) are an element of the public interest which is a mandatory consideration, and that the Project is inconsistent with the precautionary principle and the principle of intergenerational equity:
(a) given the known risk of harm to humans and animals resulting from exposure to asbestos material, in the absence of comprehensive information regarding the presence of asbestos on the site and the absence of an effective method to eliminate the risk of airborne asbestos fibres, the precautionary principle militates against the approval of the application;
(b) the potential disturbance of asbestos material and potential airborne circulation of asbestos material is contrary to the zone objectives of protecting, enhancing and conserving agricultural land, and will have a negative impact on the ability of present and future generations to farm neighbouring properties.
68The applicant's submissions focussed on the precautionary principle. The applicant submits that there is a probability of NOA on the site being disturbed given the lack of identification of the presence of NOA until the applicant raised the issue; difficulty in distinguishing NOA from other geology; uncertainty as to the location of NOA; and the potential for NOA to be present in the soil being moved. In those circumstances, the application of the precautionary principle would allow the mining of basalt in places where there is absolutely no risk of disturbance of asbestos; however, in the absence of certain evidence, as opposed to speculation, the precautionary principle requires the Court to assume that BV are widespread over the IA. The consequence is that the site is not appropriate.
69The Minister submits that the principles of ESD are not a mandatory consideration under s 75J, relying on the decision of the Court of Appeal in Minister for Planning v Walker (2008) 161 LGERA 423; however, they may, in all the circumstances, be a matter which the decision maker should as a matter of good decision making take into account. The Minister accepts that, in all the circumstances of the case, ESD should be taken into account. The Minister submits that the Project is not inconsistent with ESD, and that given the proposed Management Plan, the conditions of approval and the statement of commitments, an acceptable adaptive management approach will be put in place.
70The Minister submits that relevant matters relating to the need and justification for the Project include:
(a) the Project would produce up to 400,000 tonnes per year of aggregate products, which would be suitable for a variety of uses such as construction fill or road base materials;
(b) the Project would replace the existing Hanson quarry at Bathurst, ensuring that a competitive market was available for the supply of aggregate products in the Bathurst and Orange regions;
(c) regional demand for such quarry projects is expected to increase as population expands and associated infrastructure upgrades are implemented;
(d) the Project would contribute to resource security for the regional construction industry at a low transport cost; and
(e) the Project would generate social and economic benefits for NSW including employment of up to 20 operational staff and up to 15 contract truck drivers.
71Hanson submits that while ESD is not a mandatory consideration, it should be taken into account in the circumstances of the case. As ESD involves the integration of economic and environmental considerations, it is appropriate to consider the economic considerations in favour of the proposed project including the value of the resource targeted for extraction. Hanson submits that the Project strikes the right balance between the orderly and economic use of the land, including the extraction of the valuable basalt resource it contains, and the protection and conservation of the environment, including risks to human health. Hanson denies that the Project is inconsistent with the precautionary principle as asserted by the applicant. While denying that the applicant has established the preconditions to enlivening the precautionary principle, namely either a threat of serious or irreversible damage or scientific uncertainty as to environmental damage, Hanson submits that the case is one where an acceptable adaptive management approach can be put in place through the Conditions, revised Statement of Commitments and the AMP.
Consideration
72The principles of ESD are a relevant consideration in the circumstances of the case. The statement of those principles is found at s 6(2) of the Protection of the Environment Administration Act 1991. ESD requires the effective integration of economic and environmental considerations in decision-making processes, and is achieved through implementation of the precautionary principle, inter-generational equity, conservation of biological diversity and ecological integrity, and improved valuation, pricing and incentive mechanisms. The applicant relies on the precautionary principle, which is defined:
the precautionary principle-namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(ii) an assessment of the risk-weighted consequences of various options.
73In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 Preston CJ outlined the approach to be adopted in applying the precautionary principle. At [128] his Honour held:
128 The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate (reference omitted).
74Assessing whether there is a threat of serious or irreversible environmental damage, and the degree of scientific uncertainty, involves a process of analysis of many factors: Telstra at [131], [141]. The uncertainty is as to the nature and scope of the threat of environmental damage: Telstra at [140].
75Both elements must be established to trigger the precautionary principle:
138 If there is not a threat of serious or irreversible environmental damage, there is no basis upon which the precautionary principle can operate. The precautionary principle does not apply, and precautionary measures cannot be taken, to regulate a threat of negligible environmental damage (reference omitted).
139 This was the conclusion in Alumino (Aust) Pty Ltd v Minister administering the Environmental Planning and Assessment Act 1979 (NSW) [1996] NSWLEC 102 (29 March 1996) where the evidence established that the development could be operated in a way which would not have any significant environmental consequence: at pp. 15-16. So too in Hutchison Telecommunications (Australia) Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 104 (26 March 2004), where compliance of a development with the relevant standard for the protection of public health and safety by a significant margin meant that there was no threat of serious or irreversible damage to public health and safety from the development, and hence no basis on which to apply the precautionary principle: at [27].
...
149 If there is no, or not considerable, scientific uncertainty (the second condition precedent is not satisfied), but there is a threat of serious or irreversible environmental damage (the first condition precedent is satisfied), the precautionary principle will not apply. The threat of serious irreversible environmental damage can be classified as relatively certain because it is possible to establish a causal link between an action or event and environmental damage, to calculate the probability of their occurrence, and to insure against them. Measures will still need to be taken but these will be preventative measures to control or regulate the relatively certain threat of serious or irreversible environmental damage, rather than precautionary measures which are appropriate in relation to uncertain threats (references omitted).
76If both elements are established, the precautionary principle applies:
150 If each of the two conditions precedent or thresholds are satisfied - that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty - the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. A decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project.
77Applying these principles, the first step is to assess the seriousness and irreversibility of environmental damage. The applicant relies on the evidence of Dr Clarke. Dr Clarke is a thoracic physician, and an appointed member of the Medical Panel, NSW Dust Diseases Board; Thoracic Physician, Walgett Aboriginal Medical Service and Bourke Aboriginal Medical Service; Senior Clinical Advisor Asbestos Disease Research Institute and Bernie Banton Centre; and an Approved Medical Specialist (Permanent Impairment) Workers Compensation Commission. Dr Clarke's evidence was that once inhaled, tremolite cannot be removed; it causes changes in the lungs which manifest as mesothelioma, for which there is no known cure; these conditions appear 10-20 years after first exposure; and the average time from first onset of symptoms and diagnosis to death is approximately nine months. In Dr Clarke's opinion, there is no fibre type or exposure level that should be regarded as being safe, and the prohibition on tremolite in asbestos use in Australia supports the proposition that tremolite should not be released into the atmosphere in any situation.
78The Minister accepted that Dr Clarke is qualified to give evidence as to the nature of tremolite asbestos and the effects of asbestos inhalation once it has been inhaled, and submits that Dr Clarke's opinion that tremolite fibres once inhaled can have serious health consequences is uncontentious. The Minister submits that Dr Clarke's opinions as to there being no safe level of exposure to asbestos in the workplace environment do not provide a reason to refuse to approve the Project because the proposed AMP and other measures enable the Court to be confident that NOA will not be introduced into the workplace environment, and Mr Butterfield applied recognised standards in developing the successive drafts of the AMP.
79Hanson's submissions on Dr Clarke's evidence were to similar effect. Hanson and the Minister submit that Dr Clarke's evidence should not be taken to speak to the risk of neighbouring residents inhaling NOA fibres released by quarrying activities. Both submitted that that risk would require assessment of the likelihood of asbestos being released by quarrying activities and an assessment of the likelihood of asbestos particles carrying beyond the quarry site, and that Dr Clarke has no expertise relevant to those matters. Hanson submits that Mr Butterfield does have sufficient experience and expertise to opine on those matters, and his evidence was that even if BV hosting NOA is disturbed there is a negligible risk that NOA fibres will become airborne as a result of the dust suppression methods to be employed, and even if NOA fibres become airborne, there is a negligible risk that NOA fibres will remain airborne to allow carriage to neighbouring residences.
80The applicant submits that there is also heightened sensitivity among the residents in the area due to personal experience of the effects of asbestos, in particular the evidence of Mrs Pritchard.
81We accept (for the reasons at [55]-[57] above) the evidence of Mr Rangott as to the location of the Corkery drillholes. That evidence and the results of the drilling and investigations undertaken by Mr Rangott (summarised at [39] - [41] above) provide information as to the depth of the BV stratum underneath the basalt resource in the quarry area. We accept Mr Rangott's evidence as to the depth of BV underneath the IA based on the augur drilling, summarised at [41] above.
82It was common ground that disturbance of the BV underneath the Quarry area or the IA could, if that BV contained NOA, release NOA into the air. Hanson's position, relying on Mr Rangott's evidence as to the location of the BV, and on the AMP, is that the location of BV and therefore potential NOA is known with a high degree of certainty and will not be disturbed by any Project works; and that the conditions of approval render negligible the risk of exposing and disturbing NOA or the BV that may host it, and the risk of NOA fibres becoming airborne.
83We have summarised the conclusions that can be drawn from the evidence as to the location of BV in the Quarry area and IA at [59] and [60] above. That evidence as to the presence and location of BV and NOA does not in our view provide a complete picture of the location of the BV stratum or its depth across the whole of the Quarry area or the IA. There is a possibility of excavation for plant and infrastructure in the IA or blasting in the Quarry area inadvertently intersecting with BV. There is the possibility of NOA being contained in BV, and the possibility that disturbance of BV may release NOA. There is a serious risk to human health if NOA fibres are inhaled. Based on those factors, we are satisfied that there is a threat of serious or irreversible environmental damage. There is uncertainty as to the nature and scope of the environmental damage because there is not a complete picture of the underlying BV and the variability of the depths at which it may be encountered. The precautionary principle is activated, and the consequence is, as held by Preston CJ in Newcastle & Hunter Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 at [179], that the Court should assume that there will be a serious or irreversible threat of environmental damage and take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat really exists.
84The precautionary principle permits the taking of preventative measures. Preston CJ outlined the following principles relevant to preventive measures:
(a) the type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and irreversibility of the threat and the degree of uncertainty; the more significant and the more uncertain the threat, the greater the degree of precaution required: Telstra at [161];
(b) prudence would also suggest that some margin for error should be retained until all the consequences of the decision to proceed with the development plan, programme or project are known; this allows for potential errors in risk assessment and cost-benefit analysis: Telstra at [162]; and
(c) one means of retaining a margin for error is to implement an adaptive management approach, whereby uncertainties are acknowledged and the area affected by the development plan, programme or project is expanded as the extent of uncertainty is reduced: Telstra at [163].
85The precautionary principle, where triggered, does not necessarily prohibit the carrying out of a development plan, programme or project until full scientific certainty is attained (at [179]), and the solution is to assess the risk-weighted consequences of various options and select the option that affords the appropriate degree of precaution for the set of risks associated with the option: Telstra at [181]. At [164] Preston CJ considered that an adaptive management approach might involve monitoring of impacts of management or decisions based on agreed indicators; promoting research, to reduce key uncertainties; ensuring periodic evaluation of the outcomes of implementation, drawing of lessons, and review of adjustment, as necessary of the measures or decisions adopted; and establishing an efficient and effective compliance system.
86The applicant submits that the present case is not appropriate for adaptive management, distinguishing Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Anor [2010] NSWLEC 48, because there is certainty that NOA is present on the Project site and it is not in dispute that if further drilling were conducted, further BV and consequently further NOA may be encountered: the questions are where and at what depth. Boreholes in all the required locations could already have been drilled and analysed, and further discovery of NOA will potentially require the locations of plant and quarry to be changed, which should not be the subject of a hybrid adaptive management procedure.
87The Minister submits that through the proposed AMP, the Conditions of Approval, and the Statement of Commitments, an acceptable adaptive management approach of the type contemplated by Preston CJ in Telstra will be put in place. Hanson submits that the AMP embraces an adaptive management approach, comprising a program for investigative drilling of the quarry area and the IA to confirm that no BV is present in the core samples before blasting or intrusive works take place; a protocol for unanticipated discovery of BV including stopping of works, sterilising the area with clean capped soil and alterations to plant design or location; and a monitoring regime to confirm that NOA fibres are not being released by the Project.
88We accept that as investigations have been undertaken since the grant of the Project Approval, in particular the augur drilling in the IA and the percussion drilling in the Quarry area, there has been more information provided as to the presence and location of BV; and we accept that further drilling could provide additional information across the Project site. We accept that a precautionary approach should be adopted, so that uncertainties are minimised in particular before any blasting or intrusive works are undertaken. As was the situation in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 at [189], we consider that the appropriate course is to put in place measures to investigate and sample areas of the IA in which excavation or any intrusive works are proposed, and for each stage of the quarry extraction before any blasting takes place. The extent to which the AMP in its current form together with the Conditions achieves this, or adjustments are required, is considered below.
89Adopting this precautionary approach is not, in our view, a deferral of consideration of essential matters. The mere existence of uncertainty is not a bar to making a decision to issue an approval for a project: as Preston CJ noted in Ulan Coal Mines Ltd v Minister for Planning & Moolarben Coal Mines Pty Ltd [2008] NSWLEC 185, the issue is whether there is sufficient, credible information on which to assess the impacts of the project. As was the case in those proceedings, the uncertainty as to the location of BV has been reduced in the course of these proceedings, and in our view the residual uncertainty can be addressed by appropriate monitoring and adaptive management.
Asbestos Management Plan
90Hanson relies on an Asbestos Management Plan prepared by Noel Arnold & Associates dated 21 October 2011 (exhibit 10A). An earlier Management Plan dated May 2010 (Naturally Occurring Asbestos Management Plan) and August 2011 (Naturally Occurring Asbestos Management Plan for the Preferred Project Infrastructure Area) form an attachment to Mr Butterfield's Statement of Evidence (exhibit 2A).
91Hanson submits that the AMP contains extensive and robust controls on the Project so as to limit the risk of environmental harm including risks to human health to the lowest level reasonably conceivable. The objectives of the AMP are to ensure that BV will not be exposed or disturbed as a result of the Project works and if it is disturbed, controls are in place to ensure that NOA fibres will not become airborne and will not be inhaled by workers or neighbouring residents. Hanson relies on the analysis of Mr Butterfield, a qualified asbestos risk assessor, to support the effectiveness of the proposed control measures in achieving the overarching objectives of the AMP.
92The applicant submits that best practice is set out in SEPP 33 and requires a preliminary hazard analysis with an opportunity for public involvement and scrutiny, and that the Management Plan forming part of Exhibit 2A is not adequate as fulfilling the requirement of a proper hazard analysis. The applicant submits that Management Plan is fundamentally flawed, on the basis that Mr Butterfield's evidence was that he had no experience in preparing management plans for quarry sites, and no experience in blasting procedures. The applicant submits that Mr Butterfield was unable to explain what risks he took into account. Mr Butterfield's report was based on the assumption that there would be no disturbance of BV, and on the assumption of a "narrow east-west oriented band" of NOA which was contrary to the evidence that GUY019 and GUY014 had NOA. The applicant submits that the requirements in the AMP lack specificity, in particular the provision for who is to inspect drill hole cuttings, and further monitoring; it does not provide necessary detail for independent verification or assessment; record keeping requirements are inadequate and there is no opportunity for public scrutiny of test results; it does not manage the risk by providing appropriate procedures to assist people to avoid being in the vicinity; and provisions requiring investigative drilling, and inspection of drillholes to determine geology are matters that could and should have been investigated as part of the community consultation and appeal process.
93The Minister submits that when read together with the Conditions of approval and the Statement of Commitments the AMP is adequate and that may of the criticisms made by the applicant relate to previous drafts of the AMP. The AMP is designed to avoid the disturbance of BV.
Mr Butterfield's evidence
94Mr Butterfield has qualifications in Applied Science and Safety Science, and experience in the fields of occupational health and safety and occupational hygiene, including environmental management system and compliance audits, and site contamination assessments. In his Statement of Evidence (exhibit 2A) Mr Butterfield noted that the original plan of management for the IA as originally sited was prepared by a fellow employee of Noel Arnold & Associates Pty Ltd in May 2010. Mr Butterfield stated that he had reviewed and authorised that plan, and in May to August 2011 had prepared a new plan for the management of NOA under the re-sited IA, being the Naturally Occurring Asbestos Management Plan for the Preferred Project Infrastructure Area. Mr Butterfield identified the documents and reports which he had reviewed for preparation of that plan, which included the reports prepared by Mr Rangott, and noted that the key risk control strategy proposed by Hanson in its Extraction Plan for Quarry Pit and Excavation Plan for Infrastructure Area prepared in August 2011 was the avoidance of encountering or disturbing NOA-bearing rock during extraction works in the Quarry area and during the intrusive works in the IA. Mr Butterfield was involved in the preparation of the successive drafts of the AMP which is now exhibit 10A.
95In his Statement of Evidence Mr Butterfield proposed the primary risk control strategy being the avoidance of encountering or disturbing NOA-bearing rock in the IA, Access Roads, and Quarry Area, to be achieved by a number of control measures:
(a) relocation of the IA from the original location, where the depth of potential NOA-bearing rocks is greater;
(b) provision of a capping layer (on-site containment) over the IA, increasing the depth to potential NOA-bearing rocks;
(c) conducting exploratory investigations before any intrusive works in the IA and extraction works in the Quarry area;
(d) no significant intrusive works designated in the areas where NOA-bearing rock has been identified;
(e) installation of appropriate fencing and warning signage around all surface outcrops of asbestos minerals located east of the IA; and
(f) as an alternative to cap and cover the exposed rock outcrops located east of the IA with clean fill from the western section of the IA.
96Mr Butterfield identified other control measures being the utilisation of dust suppression techniques using water spray during any disturbance activities; a comprehensive asbestos air monitoring program; and administrative control measures such as awareness and training and appropriate response actions.
97Mr Butterfield evaluated the control measures being avoidance of disturbing NOA-bearing rock; capping; installation of fencing and sign posting; exploratory investigative drilling; and dust suppression techniques; and concluded (at [35]) that with the implementation of risk control measures it was his opinion that the likelihood of disturbing NOA-bearing rock in the IA and Quarry area is very low and that the asbestos-related health risk to occupants on the site and the surrounding properties is "negligible or insignificant".
98Mr Butterfield responded to the applicant's contentions concerning the specific health risk posed by the tremolite form of NOA; comparison with the management principles adopted for comparable sites such as the Narrambla Business Park in Orange; the adequacy of the asbestos monitoring protocol; lack of information as to how Hanson is to ensure that any asbestos fibres generated at the site do not exceed a limit of 0.01 fibres/ml of air, and absence of protocols to ensure immediate cessation of works and notification to neighbours when an excess of the asbestos impact assessment criterion occurs.
99In oral evidence Mr Butterfield conceded that he had not prepared an asbestos management plan for a quarry site before and had no experience in blasting procedures. Mr Butterfield's evidence was that he had based his consideration on the understanding that the exploratory drilling would be to 6m below the intended extraction level, and his understanding of the depths identified in the geological maps and Mr Rangott's investigations as to where the NOA might be encountered.
100The applicant submits that Mr Butterfield's evidence was not reliable because he was unable to explain any risks that he took into account, or that he had taken into account or investigated the possibility of any unintended consequences, or that he understood that site specific controls were required rather than leaving matters to contractors, and that he had wrongly assumed that there would be no intrusion into the BV. The applicant submits that these factors, and the lack of specificity in the AMP, mean that there is not sufficient evidence before the Court to enable it to be satisfied that the risk has been properly assessed, nor for the Court to determine objectively the adequacy of the management of the risk posed by NOA.
101The Minister submits that it was acceptable and appropriate for Mr Butterfield to assume that the underlying geology of the site was substantially as described by Mr Rangott and then consider risk control strategies for NOA, and that the Court should accept that he was appropriately qualified and experienced to prepare the AMP. The Minister submits that to the extent that cross examination of Mr Butterfield revealed shortcomings in the AMP and related documents, those have now been addressed by the changes incorporated in the most recent version of the AMP (exhibit 10A).
102We accept, based on his curriculum vitae, that Mr Butterfield has extensive experience in preparing environmental risk assessments including relating to hazardous materials and in designing environmental management plans. While Mr Butterfield conceded that he has not previously prepared an asbestos management plan for a quarry site and had no experience in blasting procedures, we agree with the respondents that it was appropriate for him to rely on the investigations undertaken and conclusions reached by Mr Rangott. Mr Rangott was consulted about the initial proposed management plans for the IA and the Quarry area and agreed on the key control measures which included for the Quarry Area exploratory drilling and inspection of drill hole cuttings before extraction and further investigation and modification to proposed drilling if BV is discovered in the proposed area of extraction, and for the IA exploratory drilling and inspection before any excavation (exhibit 1A, [60]-[66]). In recommending the capping of any area containing NOA during construction of the IA Mr Butterfield relied on recognised control strategies.
103We accept that some of the deficiencies in the earlier drafts of the AMP have been addressed, in particular through the imposition of additional requirements for exploratory drilling of at least 6 m below the intended blasting level, an assessment of that drilling by a geologist approved by the Department that the proposed geology is not BV, and an opinion by a blasting expert approved by the Department that the proposed blasting will not disturb BV.
Provisions of the AMP
104The approach adopted in the AMP is to prevent disturbance of BV which may contain NOA either in construction of the IA or in blasting for extraction in the Quarry area, and the principal risks identified in the AMP relate to works that intrude into the soil. The AMP requires the appointment of an Authorised Geologist and an Authorised Blasting Officer approved by the Department. The Control measures for the Quarry Area (Part 4) specify qualifications for and supervision of personnel (4.2), and require investigative drilling as follows:
4.3.1 Prior to commencing a proposed area of immediate extraction (and, in particular, prior to the drilling of holes for blasting), the Hanson Quarry Manager must ensure that the immediate area of extraction is marked out on the quarry bench floor.
4.3.2 Prior to the commencement of production drilling, the marked out area must have exploratory holes drilled to the depth of at least six metres below the base of the proposed working face height (being the proposed level of the floor of the quarry or "bench" following extraction of that working face). The number of holes must be representative of the perimeter and must include at least one hole within the centre of the immediate extraction area.
105Section 4.4 requires inspection of drill cuttings by the Authorised Geologist who is to provide a written opinion that the proposed extraction does not risk disturbing BV, having regard to the geology of the rocks, the distances between the exploratory holes and their placement, and the depth of the exploratory holes. Section 4.5 requires written confirmation by the Authorised Blasting Officer that the proposed blasting work will not disturb BV having regard to the method of extraction proposed and the safety methods employed, and blasting may not proceed unless the Authorised Blasting Officer determines that blasting work will not disturb BV. If BV is identified in any of the exploratory drill hole cuttings, the provisions of section 4.6 require notification of the Director General, cordoning off the relevant area, further investigation to identify the extent of BV including submission of samples to a NATA approved laboratory, and depending on the findings of the investigation, modification of the development plan to avoid excavating BV and to cap and isolate any BV that has been uncovered.
106The Control measures for the IA are provided in Part 5. Section 5.3 requires capping of the eastern section of the IA to a minimum 2m before commencement of any Intrusive Works, which are defined to mean "any works for Site Infrastructure that have the potential to disturb soil or rock on the IA". Section 5.4 requires approval by the Authorised Geologist of drawings, plans and cross sections for proposed Intrusive Works, location of any identified BV, and the position of exploratory holes; and drilling of exploratory drill holes to 3 m below the design depth. Section 5.5 requires inspection of drill cuttings by the Authorised Geologist who must provide an opinion that there is no risk of the proposed Intrusive Works disturbing BV. If BV is identified in any of the drill hole cuttings, section 5.6 requires further investigation including submission of samples to a NATA approved laboratory. If BV is discovered within 2m of the designed lowest depth of Intrusive Works, 5.7.1 requires amendment of the design to comply with the minimum capping of 2 m and approval of the amended design by the Authorised Geologist and the Director General.
107Part 6 of the AMP provides an Asbestos Fibre Air Monitoring Protocol, which requires background air monitoring at specified locations, daily monitoring during Intrusive Works, and subsequent weekly and monthly air monitoring, and specifies method and reporting, including external testing. Part 7 provides for reporting of results, and at 7.2 public availability of the results and notification of neighbouring landowners and occupiers located within 1km of the site boundary. Part 8 provides the protocol if the quantification limit (defined in 6.10.1 as 0.01 fibres/mL) is exceeded at one or more monitoring locations, including ceasing work, isolating and securing areas, dust suppression. If the Asbestos Impact Assessment Criterion (AIAC) (defined in 6.1.1 as 0.01 fibres/ml) is exceeded, sections 8.3-8.5 require ceasing work within a 25 m radius, an investigation to be undertaken by a NATA accredited asbestos consultant or licensed asbestos assessor experienced in NOA or asbestos contaminated soil, and additional air monitoring. The Director General and neighbouring landowners and occupiers located within 1km are to be notified of all asbestos fibre air monitoring results that record an exceedance of the AIAC within one day of receipt (8.6.1).
108Section 9 of the AMP provides an Incident Protocol for exposure of any person (personnel, neighbours or others) as a result of activities on the site.
109On the evidence before us, we are satisfied that the approach adopted in the AMP is an appropriate mitigatory approach. We are, however, of the view that some of the provisions of the AMP require further specificity. In particular, we consider that the air monitoring provisions require enhancement, and also clarification to enable community understanding. Subject to the amendments outlined below being made, we are satisfied that the AMP provides an appropriate monitoring and adaptive management response to the residual uncertainty.
110The second sentence of 4.3.2 should be amended to read "The number of holes must be sufficient to be representative ...". An additional paragraph should be included:
The proposed area of immediate extraction, and the locations of all exploratory drill holes must be surveyed and recorded.
111Paragraph 5.5.1 should be amended to require that the opinion of the Authorised Geologist be recorded in writing (as is the case for 4.4.1 for the Quarry Area). Paragraph 5.12.1 requires regular inspection of the capping layer to determine that it is still in a sound condition, and paragraph 5.12.2 requires that records of the location, depth and nature of the capping layer "be maintained and made available to the Director-General for the purposes of each Annual Review" required under the Conditions of approval. Paragraph 5.11.1 should be amended to require that records of the location, depth and nature of the Intrusive Works in the IA must also be provided for the purposes of the Annual Review.
112Part 6 Asbestos Air Fibre Monitoring Protocol refers to two measures, the Asbestos Impact Assessment Criterion (AIAC) and the Quantification Limit. Both are the same measure (0.01 fibres/ml) which is, on the evidence, the minimum level that can be measured. The references to 0.01 fibres/mL in Part 6 should be corrected to read 0.01 fibres/ml. It would assist in community understanding if both terms, and any other abbreviations used in Parts 6, 7 and 8, were defined in the Introduction to Part 6.
113Section 6.8 sets out the air monitoring method, and requires (at 6.8.6) that asbestos fibre air monitoring results be analysed in a NATA-accredited laboratory using phase contrast microscopy (PCM). All results that exceed the Quantification Limit must be submitted for confirmation using either scanning electron microscopy (SEM) or transmission electron microscopy (TEM) to clarify whether the fibres counted by PCM are asbestiform or non-asbestiform fibres. Part 8 provides the protocol if there is an exceedance of the Quantification Limit, including cessation of Intrusive Works and/or quarrying activity in the immediate vicinity and isolation of the relevant area; and additional control measures if the AIAC is confirmed. It would assist understanding of the protocols, controls and mitigation measures if Table 5 at 8.9 were amended to provide cross references to the relevant provisions in the AMP.
114Section 6.2 provides for background (static) air monitoring, and Figure 2 identifies the required locations. We are of the view that two additional monitoring locations are required, given the presence of residences to the east of the Project site along the Mitchell Highway: one on the eastern side of the access road close to its intersection with the Mitchell Highway, and the other on the eastern boundary of the Project site where the access road turns north west.
115The provisions for daily, weekly, monthly and continual control and personal air fibre monitoring are set out at sections 6.3-6.6. We are of the view that the response to discovery of BV during blasting or extraction in the Quarry area (at 4.6.2) or during Intrusive Works in the IA (at 5.6.2) should include daily control and personal air fibre monitoring for a period of one week or until testing identifies no exceedance of the Quantification Limit or AIAC.
116Section 7.2 requires public notification of all asbestos fibre air monitoring results, including reporting directly to neighbouring landowners and occupiers within 1km of the site. Paragraph 7.2.2(c) provides:
(c) it will be sufficient for the purposes of paragraph (b) for Hanson to make asbestos fibre air monitoring results publicly available on its website.
117This paragraph should be amended to add the proviso that results are to be sent directly to owners or occupiers who request them in that form.
118Other provisions in the AMP which need to be amended, as discussed during the hearing, are the addition of a key to identify inclusions on Figure 1 -Site Layout of the Project (p7); Figures 2 and 3 need to be enlarged to better indicate detail, and to provide detail of the proposed Quarry outline and IA outline with details of the location and depth of NOA.
119Section 1.3 of the AMP should include all definitions and abbreviations used in the AMP.
SEPP 33
120It was common ground that by virtue of s 75J(3) and s 75R of the Act there is no obligation to consider the requirements of SEPP 33 in determining the appeal against the approval of the Project. The applicant submits that given the nature of the risk and the health consequences that follow, it is appropriate to consider the aims, objectives and requirements of SEPP 33. That would require the preparation of a hazard risk analysis, to be considered before the Project is approved, which meets the requirements of the applicable guidelines. Those considerations are a comprehensive identification of possible sources and causes of potentially hazardous incidents, a detailed outline of all operational and organisational safety controls, quantification of risks, and criteria used in selection of the proposed site and justification of that selection including consideration of feasible alternatives to the proposal and reasons for their rejection. The applicant submits that SEPP 33 reflects current best practice which requires a preliminary hazard analysis, and the AMP does not fulfil the requirements of a hazard analysis.
121The Minister submits that the Project is not within the definition of "potentially hazardous industry" in cl 3 of SEPP 33 and so SEPP 33 does not have any application, and that in any event if it were, the Court has a discretion whether to take into account SEPP 33. Clause 12 of SEPP 33 requires a preliminary hazard analysis rather than a comprehensive hazard analysis; the substance of a preliminary hazard analysis has already been carried out in the work done by Mr Butterfield in preparing his statement of evidence and successive drafts of the AMP; and consequently no useful purpose would be served by requiring that a preliminary hazard analysis be carried out.
122Hanson submits that the Project is not a "potentially hazardous industry" and if it were, the substance of a preliminary hazard analysis has already been carried out through the work done by Mr Butterfield in preparing successive drafts of the AMP. Hanson submits that the environmental assessment of the Project is consistent with the aims, objectives and requirements of SEPP33 in that it has provided sufficient information for the decision-maker to make a judgment about the level of risk involved in the Project and its acceptability.
123Having considered the AMP in light of the evidence, we agree with the respondents that the substance of what would be required as a preliminary hazard analysis in accordance with SEPP 33 has been undertaken, and that there is sufficient information as to the level of risk involved in the Project.