Does the Operation of the Quarry Cause "Water Pollution"?
67Both the Sandercocks and Mrs McCallum relied on expert evidence as to the polluting effects of the operation of the quarry on the creek.
68Mrs McCallum relied on the expert opinion of Mr Lancaster, the Manager of the Environmental Analysis Laboratory at the School of Environmental Science and Management at Southern Cross University. Mr Lancaster was engaged to assess the water and sediment quality data for the creek downstream from the quarry and to provide an opinion on the potential sources of any water contamination and degradation of the local aquatic ecosystem.
69In his initial report, dated January 2010, Mr Lancaster opined that the creek was characterised by highly acidic pH levels, low dissolved oxygen levels, high suspended matter levels, very high sulphate levels and very high dissolved metal (iron, aluminium, manganese, copper, nickel and zinc) levels. In relation to the ANZECC and ARMCANZ 2000 guidelines , it was his opinion that the creek would be regarded as severely impacted and toxic to aquatic organisms. In Mr Lancaster's view the likely source of water contamination was the runoff from the Sandercock quarry. Similarly, he found that there was a high concentration of sulphides in the creek sediment and the likely source of this pyritic sedimentation was the erosion of the upstream Sandercock quarry.
70Mr McMahon, the Chief Scientist and Managing Director of R and A McMahon Managing and Consulting Pty Ltd, who had particular expertise in soil analysis, was retained by the Sandercocks to provide an opinion on the impact of the activities of the quarry on the localised soil, vegetation and water in the vicinity of the quarry.
71In preparing his report, Mr McMahon visited the quarry, Mrs McCallum's property and the surrounding area and sampled and analysed water from various locations in and around the Sandercock quarry, including upstream and downstream from the quarry. He was critical of the opinion provided by Mr Lancaster because Mr Lancaster analysed water from the pond at the base of the gully that drains from the quarry into the creek and the hill to the west of Mrs McCallum's property. That is to say, he did not consider the general effect of water flows in the quarry gully caused by drainage of the adjacent hills and the effect this had on the water quality of the pond and the creek. Furthermore, Mr Lancaster failed to identify the source of water contaminants in the pond and the creek. Rather, he assumed that the quarry operations were solely responsible for these adverse results.
72By contrast, Mr McMahon assessed the water from the gully adjoining the quarry gully. This enabled him to more accurately determine the source of the contaminants in the gully draining into the quarry and the hill upon which Mrs McCallum's property was located. This in turn permitted him to assess the specific impact of the quarry operations on the water and isolate it from naturally occurring influences, in particular, from naturally occurring acid sulphate soils. It was his opinion that Mr Lancaster's conclusion that the Sandercock quarry was uniquely responsible for the adverse water quality of the pond and creek was incorrect.
73Rather, according to Mr McMahon a number of sources of acid water (or ARD) were entering the gully draining into the quarry. In particular, the influence of subsoil water draining from localised catchment hills was identified by him as the major contaminant in the quarry ecosystem. This conclusion was reinforced by similar analytical results in an adjoining gully where no industrial activity was being undertaken.
74Accordingly, it was Mr McMahon's opinion that the quarry was not having an adverse impact on the quality of the water in the gully at the base of the quarry and, in fact, the effect was positive. Further, it was his view that the quarry itself did not contribute to the sedimentation of the gully because the lime spread on the quarry floor and in the sump pit flocculated any fine particles thereby ensuring that the water flowing from the sump pit was, as he had observed during his site visit, clear.
75A joint report prepared by both experts was relied upon by the parties. After further sampling, both experts agreed that the water in the pond at the base of the quarry contained augmented levels of acid sulphides, low levels of oxygen saturation, very high soluble aluminium, iron and sulphate levels and a low chloride to sulphate ratio that was characteristic of ARD, all of which were detrimental to aquatic life.
76The experts could not agree, however, on the cause of these findings. Moreover, while Mr Lancaster observed a high sediment load at the base of the pond and gully downstream from the quarry, which he then extrapolated the data from to predict a high sediment load in the gully upstream closer to the quarry, Mr McMahon, after sampling the upstream gully, did not find any relevant sedimentation on the upstream gully floor.
77Mr McMahon acknowledged the sensitive nature of the water in the Tweed Basin ecosystem where the quarry was located but noted that during dry periods or periods of prolonged drought the pH and oxygen levels would naturally fall and that iron and aluminium concentrations would increase. He also noted that on the basis of the published data, the pH of the water in the pond at the base of the quarry would be unlikely to support fish. But both experts observed the presence of tadpoles, water beetles and other aquatic fauna in the pond at the time of sampling, although no larger aquatic organisms were evident. In addition, Mr McMahon noted the healthy state of the vegetation along the entire gully system and both experts observed that the water in the sump pit was, at the time of their observations, "crystal clear".
78Ultimately, both experts agreed that that they did not have access to "reliable, historical, detailed water analytical results from the vicinity of the Sandercock quarry prior to surface drainage and lime treatment pit improvements being commissioned." Mr Lancaster also agreed with Mr McMahon that surface drainage work undertaken by the quarry with input from the environmental scientists from the council was "a good initiative". Mr McMahon went further and opined that the drainage and lime treatment undertaken at the quarry had neutralised any runoff surface water as demonstrated in his expert report. Mr Lancaster conceded that these steps had been "somewhat successful".
79While Mr Lancaster agreed that the water surface management at the quarry appeared to be under control and was "resulting in an overall improvement in gully water quality", he stated that a detailed analysis of the sump water should be undertaken to determine the success of the liming treatment because notwithstanding the water clarity of the sump pit, some solutes were invisible at low concentrations. Further, he expressed the view that the need for a clay lining of the sump pit should be assessed because the ground water was "likely" to have increased acidity due to percolation through quarry fractures.
80By contrast, Mr McMahon noted that the ground water runoff from the quarry had been tested and that these tests had confirmed the success of the attempts by the Sandercocks to reduce the surface water acidity. In any event, according to Mr McMahon, his scientific testing of the gully adjacent to the quarry gully and of the Rouse River, into which the quarry gully discharged, demonstrated that the entire catchment was subject to natural ARD and that the acidity of the quarry gully was a natural occurrence, not caused by the operation of the Sandercock quarry.
81While both experts agreed that any extractive mining activity associated with pyritic rock had the potential to expose pyrites to oxidation thereby resulting in the formation of soluble sulphuric acid, it was noted that the frequency of pyritic cores in the quarry face was indeterminate.
82Because Mr Lancaster had only tested the water in the gully downstream from the quarry, he was not able to comment on Mr McMahon's analysis of both the surface water and the subsurface water entering the quarry drainage system. However, he agreed that Mr McMahon's analysis showed that some of the water entering the gully originated from the council's quarry, which also had elevated acid levels from both surface runoff and subsoil water flows.
83Again, because he had not analysed it, Mr Lancaster was unable to comment on the importance of the subsurface water flows into the quarry gully. His position was to be contrasted with that of Mr McMahon, who believed that the acid subsurface water flows were very significant, particularly in the absence of any quantification by either expert of the extent of the ARD from the pyritic rock exposure in the quarry.
84In conclusion, Mr Lancaster expressed the opinion that even though acid sulphate soils were formed naturally, the release of the acid, together with any iron and aluminium, required disturbance and was not caused by natural processes. However, he conceded that a more detailed water and sediment sampling and analysis was essential to determine the extent of the aquatic impact by the quarry activities.
85By contrast, Mr McMahon opined that the analysis of the origin of the acid water in the quarry gully ecosystem clearly indicated that the source of the acidity was not restricted to the operation of the Sandercock quarry.
86The experts gave concurrent oral evidence. While the evidence revealed that Mr Lancaster had more experience in acid sulphate soils than Mr McMahon, this did not diminish the weight the Court placed on Mr McMahon's evidence in light of his considerable experience as a soil scientist.
87Under questioning, Mr Lancaster conceded that the extent to which the pyritic material being oxidised at the quarry was contributing to the detrimental water quality was unknown. But he stated that in his opinion the operation of the quarry contributed to the acidity of both the groundwater and the subsurface water seeping up from the quarry. In addition, while he accepted that there was acidity emanating from the council quarry, it was his opinion that the acidity generated from the Sandercock quarry by reason of the open face of the quarry and the impact of its activities on the surface area (allowing for surface water flow, rainwater flow and increased percolation of water through the sediment) was significant.
88Mr McMahon, however, reiterated his view that the groundwater was already acidic and that while additional acidity was created by the operation of the quarry, it was not "material". According to Mr McMahon, the entire catchment was characterised by acid sulphates and that while the gully that runs through the quarry "is an area of concern, within this catchment there are many areas of concern" including the gully adjacent to the quarry gully.
89In relation to the design of the sump pit, Mr McMahon agreed that no hydrological study had been undertaken by him to determine the proper location or size of the pond and that it had been constructed so that the sediment, which he did not concede was contaminated, could be removed by bucket.
90By contrast, Mr Lancaster believed that the sediment was contaminated because of its high concentration of iron, aluminium, copper and possibility lead. Furthermore, Mr Lancaster was critical of the "ad hoc" nature of the liming process carried out by the Sandercocks (taking a bag of lime and scattering it over the floor of the quarry and into the sump pit and then measuring the pH levels of the pit water from time to time). According to Mr Lancaster, what was necessary was a calculation of the volume of water to be treated and a regular chemical analysis, not merely a measurement of the pH level, of the water. Mr Lancaster was likewise disparaging of the method by which the sediment was removed from the sump pit by the Sandercocks (by front end loader with the placement of the sediment on the quarry floor).
91Mrs McCallum also relied on a report prepared by Ecoroc Pty Ltd for the council entitled Report on Acid Rock Drainage (ARD) Investigations and Remedial Solutions dated July 2009, in respect of the council's quarry ("the Ecoroc Report"). The Ecoroc Report presented the results of geological and geotechnical investigations at the council quarry undertaken in May and June of 2009, to locate and characterise the source and nature of any ARD and to provide remedial treatment suggestions.
92The Ecoroc Report found that, similar to the Sandercock quarry, at the council quarry localised naturally occurring pyritic rock exposed by hard rock quarry workings was oxidized to produce sulphuric acid characterised by low pH surface water and groundwater. The Ecoroc Report found that the acid drainage was impacting on the water quality of the creek that flowed beside the quarry. The creek had its confluence with the Rous River approximately 500m downstream. This is the same creek that is the subject of these proceedings. The Report noted that the creek was also "impacted by ARD from upstream quarry workings", such "quarry workings" including the Sandercock quarry, although it noted that the Sandercock quarry was "close to depletion".
93The Ecoroc Report did not recommend the closure of the council quarry but it did suggest various forms of remediation which included: the application of alkaline material to the base of the rock face; forming a bund wall around known ARD seepage points and the sediment dams; the monitoring of water quality in sediment ponds, including the laboratory testing of sediment pond water and the creek's receiving waters; obtaining a hydrological model for the quarry; and the extension of the sediment ponds.
94By analogy, premised on the close physical proximity of the council's quarry to the Sandercock quarry, the similarity in the extractive activities carried out and the prevalence of pyritic rock at both quarries, Mrs McCallum submitted that if the council quarry was having a deleterious effect on the water quality of the creek, the Sandercock quarry must equally be causative of its degradation.
95It was not in dispute that the "water" the subject of this complaint is the unnamed creek. It was also not contentious that the elevated levels of dissolved metals and sulphides in the creek constituted "any matter" for the purpose of the definition of "water pollution".
96The real the gravamen of this claim was whether, first, this "matter" was placed in, or introduced into, the creek by the Sandercocks through the operation of the quarry, and if so, second, whether this changed the physical, chemical or biological condition of the creek.
97Turning to the first issue, in addition to the Ecoroc Report, the evidence of both Mr McMahon and Mr Lancaster, all but compel a finding that the operation of the quarry have contributed to the degraded state of the creek. Mr McMahon conceded as much during cross-examination, although in his view the contribution was not "material".
98Having found this, I readily accept that the extent of the contribution remains, however, unknown. In so finding, it becomes apparent that I reject the position put by Mrs McCallum that the Sandercock quarry was the sole source of the pollutants in the creek. The limited scope of the testing and analysis of the water downstream from the quarry performed by Mr Lancaster does not permit the Court to reach this conclusion. As Mr Lancaster conceded in cross-examination, with whom Mr McMahon agreed, more historical data and more comprehensive water and sediment testing and analysis was necessary to properly assess and demonstrate the causal effects of the activities of the quarry on the water quality of the creek.
99Rather, I accept the evidence of Mr McMahon that the elevated levels of dissolved metals and sulphides detected in the creek originate from a number of different sources, some referrable to the activities of the quarries located nearby (that is to say, not just the Sandercock quarry) and some referrable to naturally occurring mechanisms producing ARD, due to the general presence of pyritic rock throughout the immediate ecosystem.
100But is this finding sufficient to prove that the Sandercocks have caused "water pollution" in breach of the Act? Some initial observations must be made prior to answering this question.
101First, it is not the case, as was suggested by the Sandercocks, that Mrs McCallum must prove that the Sandercock quarry is the only, or even the principal, source of the creek's pollution. No construction of the definition of "water pollution" would warrant such a conclusion.
102Second, the definition of "water pollution" encompasses both direct ("placing in or on") and indirect ("introducing into or on") modalities of pollution. Accordingly, that pollution resulted from the activities of the quarry, for example from the blasting, winning, crushing and screening of the rock, and not from any direct act or omission by the Sandercocks does not matter.
103Third, that the creek was already compromised, either as a consequence of water emanating from other quarries or from the natural occurrence of the water passing over pyritic rock in the surrounding hills and gullies, equally does not matter if the result of the operation of the quarry was to change the physical, chemical or biological condition of the creek. If this causal change occurred, then "water pollution" resulted.
104Regrettably, neither Mr Lancaster nor Mr McMahon squarely dealt with the question of whether the operation of the quarry changed the physical, chemical or biological condition of the creek water. It was therefore left to the Court to draw whatever inferences were available on the evidence before it to determine this issue.
105In addition, neither party assisted the Court with the proper construction of the definition of "water pollution" contained in the Act. There is no definition of the phrase "is changed" in the legislation. But the width of the definition of "water pollution" militates in favour of a generous interpretation afforded to the phrase, which is, moreover, consonant with the scope, purpose and objects of the Act.
106The Oxford English Dictionary (on-line ed) defines "changed" as "that has undergone change; made other than it was; altered". The definition in the Macquarie Dictionary (on-line ed) is similar, namely, "to make different; alter in condition, appearance, etc". In the latter, the word "alter" is defined to mean "to make different in some particular; modify". A relevantly equivalent definition is given to that word in the former dictionary.
107Based on the available expert evidence, I am prepared to find, on the balance of probabilities, that the activities of the quarry contributed, in the sense of adding, to the levels of soluble metals and acid sulphates in the waters of the creek. In this sense, at the very least the chemical, and probably the physical, condition of the creek was "changed" thereby resulting in "water pollution".
108The evidence that the activities of the quarry have altered the biological condition of the creek is, however, entirely equivocal. On the one hand, both experts observed the presence of tadpoles, water beetles and other aquatic fauna and Mr McMahon noted the healthy nature of the vegetation along the entire quarry gully system. On the other hand, Mr McMahon opined that the water in the pond at the base of the quarry would be unlikely to support fish. Given this conflicting evidence, absence more concrete scientific data I cannot find that the operation of the quarry has "changed" the biological condition of the creek.
109But a finding that the Sandercocks have caused "water pollution" through the activities of the quarry does not, of itself, equate to a finding that the Act has been breached or is about to be breached, thereby enlivening the powers contained in ss 252 or 253 of the Act. Not only do I reject such a submission, in my opinion, even if the Act had been breached or there was the apprehension of a breach, I would, in any event, decline to afford Mrs McCallum any relief on discretionary grounds.
110The bases upon which it is alleged that the Sandercocks have breached, or will breach, the Act are contraventions of ss 116 or 120 of the Act.
111Turning first to s 116, in my opinion, Mrs McCallum has failed to demonstrate that the Sandercocks have "wilfully or negligently" caused the substances giving rise to the water pollution to "leak, spill or otherwise escape".
112This is not to ignore the evidence concerning the inadequately designed and constructed sump pit that, during periods of heavy rain, overflows and is unable to accommodate the runoff from the quarry floor. But that evidence does not permit the conclusion to be drawn that any runoff or overflow resulting in pollutants spilling or escaping into the creek was caused "wilfully or negligently" by the Sandercocks. On the contrary, the Sandercocks engaged Total Safety Management to undertake an Environmental Management Plan, Report and Audit to advise them in respect of the noise, dust and water runoff emanating from the quarry. The Sandercocks also employed the ongoing services of Mr McMahon to develop a plan to minimise the environmental impact of the ARD. As a consequence the sump pit was constructed and lime was spread on the quarry floor and in the sump pit in order to neutralise any acidity. The pH levels of the sump pit were regularly tested and recorded in a diary. While reasonable minds may differ as to the adequacy of the measures the Sandercocks implemented to avoid water pollution, the acts or omissions of the Sandercocks in causing the pollutants to spill or escape can in no way be described as wilful or negligent.
113There is, additionally, no proof whatsoever, as required by s 116 of the Act, that the spilt or escaped substances have harmed, or are likely to harm, the environment. While the experts may have tangentially speculated as to the adverse consequences of the degradation of the creek, neither were, in my view, qualified to give such evidence and, in any event, neither actually opined as to the harmful effects of the water pollution on the environment to an extent that would permit the Court to make any conclusive finding in this regard.
114Even if there was cogent evidence of the harmful effects of the elevated levels of metals and acid sulphates in the water on the environment, an additional difficulty facing Mrs McCallum is, given the already compromised nature of the waters flowing into the creek, the absence of any demonstrated causal link between the pollutants originating from the Sandercock quarry and the harm suffered to the environment. While the Ecoroc Report detailed the likelihood of harm to the creek caused by the operation of the council quarry, this opinion was expressed in respect of a different, albeit geographically proximate, quarry and I would not be prepared to make an inference by analogy that the Sandercock quarry had an equivalent detrimental impact absent proper expert analysis.
115Mrs McCallum submits that even if no past breach of s 116 can be established, it is sufficient for the purposes of engaging either ss 252 or 253 of the Act that a future, apprehended or threatened breach of s 116 occurs (see ss 252(6) and 253(1) of the Act). While this submission is undoubtedly correct, again she has failed to discharge her evidentiary onus insofar as she has not demonstrated that any future or anticipated contravention of s 116 will be negligently or wilfully committed.
116I do, however, find that there has been a breach of s 120 of the Act.
117So much so is inherent in my earlier finding that the Sandercocks have caused "water pollution" as a consequence of the operation of the quarry. This is because unlike s 116, s 120 creates an offence founded upon strict liability. Thus the only element contained within the provision is whether or not a person has polluted waters or has engaged in "water pollution"; once this has been demonstrated, breach is foregone irrespective of whether or not a criminal offence has been committed ( Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383 at [15] and Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145 at [27]-[44]).
118That a breach of s 120 creates a criminal offence does not, of course, mean that Mrs McCallum must prove a breach of that provision to the criminal standard. Because these are civil enforcement proceedings, the civil standard applies ( Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 at [23] and [32]).
119The logical corollary, therefore, of having successfully proven that the operation of the Sandercock quarry resulted in "water pollution" (and therefore the "pollution of waters", which shares an identical statutory definition in the Dictionary to the Act), is a finding that the Sandercocks have breached s 120 of the Act. Moreover, because, as Mrs Sandercock stated, it is the intention of the Sandercocks to continue operating the quarry until the rock is exhausted, it follows that the breach of s 120 is likely to be a continuing one.