Environment Protection Authority v Maules Creek Coal Pty Ltd (No 3)

[2024] NSWLEC 97

Land and Environment Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v Maules Creek Coal Pty Ltd (No 3) [2024] NSWLEC 97

Hearing dates:

30 January–3 February, 6–10 February; 18–21 September; 13–16 November 2023

Date of orders:

04 October 2024

Decision date:

04 October 2024

Jurisdiction:

Class 5

Before:

Pritchard J

Decision:

The timing charge

In proceedings 2021/234554, the Court makes the following orders:

(1) Maules Creek Coal Pty Ltd ACN 140 533 875 is guilty of an offence against section 64(1) of the Protection of the Environment Operations Act 1997 (NSW).

(2)   The proceedings are listed before the list judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

The stemming length charge

In proceedings 2021/234556, the Court makes the following orders:

(1) Maules Creek Coal Pty Ltd ACN 140 533 875 is guilty of an offence against section 64(1) of the Protection of the Environment Operations Act 1997 (NSW).

(2)   The proceedings are listed before the list judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

The overloading charge

In proceedings 2021/234557, the Court makes the following orders:

(1) Maules Creek Coal Pty Ltd ACN 140 533 875 is guilty of an offence against section 64(1) of the Protection of the Environment Operations Act 1997 (NSW).

(2)   The proceedings are listed before the list judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

The emission of noise charge

In proceeding 2021/234558, the Court makes the following orders:

(1) Maules Creek Coal Pty Ltd ACN 140 533 875 is guilty of an offence against section 140(1) of the Protection of the Environment Operations Act 1997 (NSW).

(2)   The proceedings are listed before the list judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

Summonses stood over for the entry of final orders

(1)    The summonses are stood over until 31 October 2024 at 4pm for the entry of final orders.

Catchwords:

ENVIRONMENT AND PLANNING — Offences — failure to comply with condition of environment protection licence — defendant charged under s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) — condition to carry out licensed activities in a competent manner — meaning of “competent manner” — construction of condition of environment protection licence — meaning of “licensed activity”

ENVIRONMENT AND PLANNING — Offences — defendant charged under s 140(1) of the Protection of the Environment Operations Act 1997 (NSW) — emission of noise — meaning of “proper and efficient manner”

Legislation Cited:

Criminal Appeal Act 1912 (NSW) s 5AE, 5F

Environmental Planning and Assessment Act (NSW) s 75J, Pt 3A (repealed)

Evidence Act 1995 (NSW) ss 38, 136

Interpretation Act 1987 (NSW) s 3

Protection of the Environment Operations Act 1997 (NSW) ss 55, 64, 120, 122, 140, Sch 1, Dictionary

Work Health and Safety Act 2011 (NSW) ss 18, 19, 34A

Cases Cited:

4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; (2017) 224 LGERA 301; [2017] NSWCA 191

BartterEnterprises Ply Ltd v Environment Protection Authority (2022) 252 LGERA 277; [2022] NSWCCA 43

Browne v Dunn (1894) 6 R 67

Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109

Commissioner of Police v Thayli Pty Ltd [2020] WASC 43

Environment Protection Authority v Bartter Enterprises Pty Ltd (No 3) [2020] NSWLEC 114

Environment Protection Authority v Buchanan(No 2) (2009) 165 LGERA 383; [2009] NSWLEC 31

Environment Protection Authority v CollexPty Ltd (2001) 115 LGERA 337; [2001] NSWLEC 177

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (2019) 101 NSWLR 245; (2019) 238 LGERA 147; [2019] NSWCCA 174

Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39

Environment Protection Authority v Maules Creek Coal Pty Ltd [2023] NSWLEC 94

Environment Protection Authority v O’Brien [2023] NSWLEC 118

Environment Protection Authority v Rethmann Australia Environmental Services Pty Ltd (2003) 131 LGERA 422; [2003] NSWLEC 351

Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153

Environment Protection Authority v Sydney Water [2022] NSWLEC 100

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33; (1994) 85 LGERA 197

Hill v O’Brien (1938) 61 CLR 96; [1938] HCA 48

House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; (2000) 106 LGERA 440; [2000] NSWCA 44

Maules Creek Coal Pty Ltd v Environment Protection Authority (2023) 112 NSWLR 507; (2023) 258 LGERA 168; [2023] NSWCCA 275

McCallum v Sandercock (2011) 183 LGERA 399; [2011] NSWLEC 175

Nydam v The Queen [1977] VR 430

Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1; [1948] HCA 24

Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144

Polgara Pty Ltd v Vision Wise Holdings Pty Ltd (1996) NSW ConvR 55-781; [1996] ANZ ConvR 471

Prefabricated Buildings Pty Ltd v Bathurst Regional Council [2017] NSWLEC 44

R v Filiopovic; R v Gelevski (2008) 181 A Crim R 83

R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; [1982] HCA 69

Sandalwood Properties Ltd v Huntley Management Ltd (2018) 131 ACSR 215; [2018] FCA 1502

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Environment Protection Authority (No 9) [2022] NSWLEC 29

Westfield Management Limited v Perpetual Trustee Company [2006] NSWCA 245

Weston Aluminium Pty Limited v Environment Protection Authority [2021] NSWLEC 131

Weston Aluminium Pty Ltd v Environment Protection Authority and Another (No 2) (2005) 144 LGERA 7; [2005] NSWLEC 698

Texts Cited:

Bronitt and McSherry, Principles of Criminal Law (4th ed, 2017, Thomson Reuters)

Herzfeld and Prince, Interpretation (2nd ed, 2020, Thomson Reuters (Professional) Australia Limited)

Macquarie Dictionary (2019, Pan Macmillan Australian Pty Ltd)

Macquarie Dictionary, online ed

Stiehr, ISEE Blasters’ Handbook (18th ed, 2011, International Society of Explosives Engineers)

Category:

Principal judgment

Parties:

Environment Protection Authority (Prosecutor)
Maules Creek Coal Pty Ltd (Defendant)

Representation:

Counsel:
C Leggat SC, A Garsia and G Marsden (Prosecutor)
T Howard SC and J Lee (Defendant)

Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor)
King & Wood Mallesons (Defendant)

File Number(s):

2021/234554; 2021/234556; 2021/234557; 2021/234558

Publication restriction:

Nil

JUDGMENT

Introduction

The four charges

The timing charge: proceeding 2021/234554

The stemming length charge: proceeding 2021/234556

The overloading charge: proceeding 2021/234557

The emission of noise charge: proceeding 2021/234558

Issues

Outcome

Factual background

The defendant

The EPL

The EPA Act approval

Problems in achieving adequate fragmentation in the Velyama seam in November 2019

The Herndale seam and the previous blast on 7 August 2020

Preparation for the blast scheduled for 19 August 2020

The rescheduling of the blast scheduled for 19 August 2020 to 20 August 2020

“Discrepancies” noted by the shotfirer, Mr Welch

The blast clearance plan

Blast monitor records for the blast on 20 August 2020

Mr Gomez’ experience of the blast

Other key documents

The blast management plan (BLMP)

Australian Standard AS 2187.2-2006 “Explosives – Storage and use: Use of explosives”

Whitehaven Coal procedures

The planning, design and record keeping procedure

The loading and stemming blast holes procedure

The design standard

The drill and blast design checklist

Blast hazard analysis

International Society of Explosives Engineers Blasters’ Handbook

Lewandowski reports

Relevant statutory provisions

Legal principles

Separate consideration of the four charges

Burden and standard of proof

Strict liability

Witnesses and fact finding

Evidence

Prosecutor’s evidence

Defendant’s evidence

Evidence of lay witnesses

Dr Cameron McKenzie

Mr Ryan Gomez

Mr Matthew Williams

Mr David Welch

Mr Jorge Moraga

Mr Jonathon Byrnes

Ms Rebecca Severin

Ms Roselyn Druce

Ms Christine Westlake

Mr Ross Kereopa

Ms Lynette Louis

Mr Simon Lund

Ms Jasmine Walden

Expert evidence

Dr Alan Cameron (prosecutor’s expert)

Dr Aimone-Martin (defendant’s expert)

Findings of fact contended for by the prosecutor in relation to the timing charge

Findings of fact contended for by the prosecutor in relation to the stemming length charge

Findings of fact contended for by the prosecutor in relation to the overloading charge

Findings of fact contended for by the prosecutor in relation to the emission of noise charge

Findings of fact contended for by the defendant in relation to all charges

Submissions

Prosecutor’s submissions in relation to all charges

Prosecutor’s submissions in relation to the blast monitor records

Prosecutor’s submissions in relation to the impact of the blast on lay witnesses

Mr Ryan Gomez

Mr Jonathon Byrnes

Ms Rebecca Severin

Other witnesses who experienced the blast

Prosecutor’s conclusion in relation to the impact of the blast on lay witnesses

Prosecutor’s submissions in relation to the evidence of Dr McKenzie

Prosecutor’s submissions in relation to the demeanour of Dr Aimone-Martin

Defendant’s submissions in relation to all charges

Defendant’s submissions in relation to the evidence of the lay witnesses

Defendant’s submissions in relation to work health and safety, and the evidence of Dr McKenzie and Mr Welch

Defendant’s submissions in relation to the evidence of Dr Aimone-Martin and the allegations particularised in the charges

General findings in relation to all charges

The blast monitor records

The impact of the blast on lay witnesses

The evidence of Mr Welch

The evidence of Dr McKenzie, and the work health and safety risks posed by inadequate fragmentation

The evidence of Dr Aimone-Martin

Construction of s 64(1) of the POEO Act and condition O1.1 of the EPL

Proper construction of a condition of an environment protection licence

The proper construction of condition O1.1 of the EPL, and the phrase “in a competent manner”

Prosecutor’s submissions in relation to the proper construction of condition O1.1 of the EPL

Defendant’s submissions in relation to the proper construction of condition O1.1 of the EPL

Competence and incompetence

The mental (or fault) element of incompetence

Consideration of, and conclusions in relation to the proper construction of condition O1.1 of the EPL

The timing charge: alleged offence against s 64(1) of the POEO Act

Prosecutor’s submissions in relation to the timing charge

The prosecutor’s reliance on Dr Cameron’s evidence concerning the timing charge

The prosecutor’s submissions in relation to Dr Aimone-Martin’s evidence concerning the timing charge

Defendant’s submissions in relation to the timing charge

The defendant’s competence in carrying out the blast

Alleged failure to put allegations of incompetent design of the blast to the designer, Dr McKenzie

Assessment of risk of airblast overpressure at the Boggabri coal mine

Defendant’s further submissions in relation to the timing charge

Consideration of, and conclusions in relation to the timing charge

The stemming length charge: alleged offence against s 64(1) of the POEO Act

Prosecutor’s submissions in relation to the stemming length charge

Defendant’s submissions in relation to the stemming length charge

Consideration of, and conclusions in relation to the stemming length charge

The overloading charge: alleged offence against s 64(1) of the POEO Act

Prosecutor’s submissions in relation to the overloading charge

Dr Cameron’s evidence in relation to the overloading charge

Dr Aimone-Martin’s evidence in relation to the overloading charge

Defendant’s submissions in relation to the overloading charge

Consideration of, and conclusions in relation to the overloading charge

The emission of noise charge: alleged offence against s 140(1) of the POEO Act

The proper construction of s 140(1) of the POEO Act, and the phrase “proper and efficient manner”

Prosecutor’s submissions in relation to the proper construction of s 140(1)

Defendant’s submissions in relation to the proper construction of s 140(1)

Conclusion in relation to the proper construction of s 140(1) of the POEO Act

Element one: was the defendant the occupier of the premises

Element two: did the defendant deal with materials in or on the premises

Element three: did the dealing with the materials cause the emission of noise from the premises?

Element four: Whether the noise so caused, or any part of it, was caused by the defendant’s failure to deal with the materials in a proper and efficient manner

Prosecutor’s submissions in relation to whether the noise so caused, or any part of it, was caused by the defendant’s failure to deal with the materials in a proper and efficient manner

Defendant’s submissions in relation to whether the noise so caused, or any part of it, was caused by the defendant’s failure to deal with the materials in a proper and efficient manner

Consideration of, and conclusions in relation to the emission of noise charge

Conclusions and orders

The timing charge

The stemming length charge

The overloading charge

The emission of noise charge

Summonses stood over for the entry of final orders

JUDGMENT

Introduction

1. The Environment Protection Authority (the EPA) (the prosecutor) has charged Maules Creek Coal Pty Ltd ACN 140 533 875 (the defendant) with four offences under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). The alleged offences relate to the Maules Creek open cut coal mine (the mine) located at Therribi Road, Boggabri in north-west NSW (the premises), and concern blast HRN_08_39_OB (the blast), carried out at the mine on 20 August 2020 in the course of mining for coal. The blast had originally been scheduled to be carried out on 19 August 2020 at 3:30pm.

2. The mine is an open cut coal mine approximately 45km to the southeast of Narrabri and approximately 16km to the north-northeast of Boggabri. The mine is approximately 1.3km to the north of the Boggabri coal mine, and 5.2km to the north of the Tarrawonga coal mine. Mining operations commenced at the mine in 2014.

3. At all relevant times, the defendant held environment protection licence number 20221 (the EPL) issued under s 55 of the POEO Act on 2 May 2013.

4. At all relevant times, Whitehaven Coal Limited (ACN 124 425 396) (Whitehaven Coal) was the ultimate holding company for the defendant.

5. The proceedings were heard before me between 30 January and 3 February 2023, 6 and 10 February 2023, 18 and 21 September 2023, and 13 and 16 November 2023.

6. The procedural history is summarised in the Court’s interlocutory judgment in Environment Protection Authority v Maules Creek Coal Pty Ltd ^[1] (Maules Creek (No 1)) at [2]-[28]. On 15 September 2023, in Maules Creek (No 1), the Court made the following order at [94]: “The defendant’s application that Pritchard J recuse herself from hearing these proceedings is dismissed.”

   1. [2023] NSWLEC 94 at [2]-[28] (Pritchard J).

7. The defendant sought leave to appeal against that interlocutory order pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). On 3 November 2023, in Maules Creek Coal Pty Ltd v Environment Protection Authority,^[2] the Court of Criminal Appeal (CCA) (Leeming, Payne and Kirk JJA, Wilson and Fagan JJ), granted the defendant leave to appeal and dismissed the appeal from the Court’s decision in Maules Creek (No 1).

The four charges

2. (2023) 112 NSWLR 507; (2023) 258 LGERA 168; [2023] NSWCCA 275 at [118] (Leeming, Payne and Kirk JJA, Wilson and Fagan JJ).

The timing charge: proceeding 2021/234554

8. By amended summons filed on 13 December 2021 in proceeding 2021/234554, the prosecutor alleges that between about 4 August 2020 and 20 August 2020, at or near the mine, the defendant committed an offence against s 64(1) of the POEO Act in that it was the holder of an environment protection licence, a condition of which was contravened by a person (the timing charge).

9. The particulars of the timing charge are as follows:

a. Licence

Environment Protection Licence Number 20221 (EPL).

b. Licence condition contravened

Condition O1.1 of the EPL, which states: "Licensed activities must be carried out in a competent manner. This includes:

(a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and

(b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity."

c. The licenced activities

The licenced activities that were carried out by Defendant at the Licenced Premises were blast HRN_08_39_OB (the Blast) in the course of mining for coal.

d. Manner of contravention

The Defendant did not carry out the licensed activities in a competent manner it programmed the electronic initiation system for the Blast with a burden relief time of 0.8 – 1.5 ms/m, which did not provide good progressive release of burden as required under section 3.3.5 of the Defendant's Blast Management Plan.

The stemming length charge: proceeding 2021/234556

10. By summons filed on 16 August 2021 in proceeding 2021/234556, the prosecutor alleges that between about 4 August 2020 and 20 August 2020, at or near the mine, the defendant committed an offence against s 64(1) of the POEO Act in that it was the holder of an environment protection licence, a condition of which was contravened by a person (the stemming length charge).

11. The particulars of the stemming length charge are as follows:

a. Licence

Environment Protection Licence Number 20221 (EPL).

b. Licence condition contravened

Condition O1.1 of the EPL, which states: "Licensed activities must be carried out in a competent manner This includes:

(a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and

(b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity"

c. The licenced activities

The licenced activities that were carried out by the Defendant at the Licenced Premises was the carrying out of blast HRN_08_39_OB (the Blast) in the course of mining for coal.

d. Manner of contravention

The Defendant did not carry out licensed activities in a competent manner because it designed the Blast with a stemming length for the blast holes of 3.0m, which deviated from the Defendant's Approved Design Standard ST_HRN_229_OB_D_1.

The overloading charge: proceeding 2021/234557

12. By summons filed on 16 August 2021 in proceeding 2021/234557, the prosecutor alleges that between about 4 August 2020 and 20 August 2020, at or near the mine, the defendant committed an offence against s 64(1) of the POEO Act in that it was the holder of an environment protection licence, a condition of which was contravened by a person (the overloading charge).

13. The particulars of the overloading charge are as follows:

a. Licence

Environment Protection Licence Number 20221 (EPL).

b. Licence condition contravened

Condition O1.1 of the EPL, which states: "Licensed activities must be carried out in a competent manner. This includes:

(a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and

(b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity."

c. The licenced activities

The licenced activities that were carried out by the Defendant at the Licenced Premises was the carrying out of blast HRN_08_39_OB (the Blast) in the course of mining for coal.

d. Manner of contravention

The Defendant did not carry out the licensed activities in a competent manner because it overloaded approximately 19% of blast holes for the Blast with more than 10% of the amount of explosives prescribed in the design for the Blast, which was in contravention of the Defendant's procedure for loading and stemming blast holes (WHC-PRO-OC-LOADING AND STEMMING).

The emission of noise charge: proceeding 2021/234558

14. By summons filed on 16 August 2021 in proceeding 2021/234558, the prosecutor alleges that between about 4 August 2020 and 20 August 2020, at or near the mine, the defendant committed an offence against s 140(1) of the POEO Act in that as the occupier of the licensed premises, it dealt with materials in or on the premises in such a manner as to cause the emission of noise from the licensed premises, and the noise so caused (or any part of it) was caused by its failure to deal with those materials in a proper and efficient manner (the emission of noise charge).

15. The particulars of the emission of noise charge are as follows:

a. Materials:

896,256kg of explosives, consisting of primarily:

a) XL60-100; and

b) XLOAD70-110.

(the Explosives)

b. Manner of dealing:

The Explosives were dealt with at the Premises during blast HRN_08_39_OB (the Blast) by:

i. stemming blast holes loaded with the Explosives to 3m; and

ii. detonating the Explosives using excessively fast timing of the electronic initiation system to detonate the explosives.

c. The manner of dealing was not proper and efficient

The manner of dealing with the Explosives was not proper and efficient as it resulted in the dispersion of excessive explosive energy upwards into the atmosphere, thereby reducing the explosive energy of the Blast directed towards the breaking of cap rock or overburden that was the intended purpose of dealing with the Explosives.

d. Emission of noise from the Premises:

The manner of dealing with the Explosives resulted in an explosion that caused the emission of noise from the Premises in the form of sound and vibrations resulting from airblast overpressure.

Issues

16. The key issues which arise for determination in relation to the four charges include:

1. the construction of s 64(1) of the POEO Act in relation to the contravention of any condition of a licence;

2. the construction of condition O1.1 of the EPL, and in particular the requirement that licensed activities must be carried out in “a competent manner”;

3. whether, as particularised in the timing charge, the defendant did not carry out the blast in a competent manner when it allegedly programmed the electronic initiation system for the blast with a burden relief time of 0.8-1.5ms/m;

4. whether, as particularised in the stemming length charge, the defendant did not carry out the blast in a competent manner when it allegedly designed the blast with a stemming length for the blast holes of 3.0m;

5. whether, as particularised in the overloading charge, the defendant did not carry out the blast in a competent manner when it allegedly overloaded approximately 19% of blast holes for the blast with more than 10% of the amount of explosives prescribed in the design for the blast;

6. the construction of s 140(1) of the POEO Act in relation to dealing with materials in or on premises in such a manner as to cause the emission of noise, and the question of the occupier’s failure to deal with those materials in “a proper and efficient manner”;

7. whether, as particularised in the emission of noise charge, the manner of dealing with the explosives resulted in an explosion that caused the emission of noise from the premises in the form of sound vibrations resulting from airblast overpressure; and

8. whether, as particularised in the emission of noise charge, the defendant’s dealing with the explosives was not proper and efficient as it resulted in the dispersion of “excessive explosive energy upwards into the atmosphere, thereby reducing explosive energy of the blast directed towards the breaking of cap rock or overburden that was the intended purpose of dealing with the [e]xplosives”.

Outcome

17. For the reasons below, I have decided as follows:

1. in relation to the timing charge, the prosecutor has established beyond reasonable doubt that the defendant is guilty of an offence against s 64(1) of the POEO Act of contravening condition O1.1 of the EPL in not carrying out licensed activities in a competent manner;

2. in relation to the stemming length charge, the prosecutor has established beyond reasonable doubt that the defendant is guilty of an offence against s 64(1) of the POEO Act of contravening condition O1.1 of the EPL in not carrying out licensed activities in a competent manner;

3. in relation to the overloading charge, the prosecutor has established beyond reasonable doubt that the defendant is guilty of an offence against s 64(1) of the POEO Act of contravening condition O1.1 of the EPL in not carrying out licensed activities in a competent manner; and

4. in relation to the emission of noise charge, the prosecutor has established beyond reasonable doubt that the defendant is guilty of an offence against s 140(1) of the POEO Act of causing the emission of noise and the noise was caused by its failure to deal with materials in a proper and efficient manner.

18. As the prosecutor has requested that no final orders be made today, 4 October 2024, in order to allow it to consider its position in relation to any application pursuant to s 5AE of the Criminal Appeal Act, I will stand each summons over until 31 October 2024 at 4pm for the entry of final orders.

Factual background

19. The following factual background is derived in part from the brief statement of agreed facts filed on 2 December 2022 (the SOAF), largely from the Court’s consideration of the documents attached to the SOAF and otherwise tendered by the parties, and also from the evidence of witnesses which was not the subject of objection or in relation to which objections were overruled. In their written submissions, each of the parties identified facts which they submitted the Court should find. Numerous of the “facts” so identified were in the nature of submissions.

The defendant

20. At all relevant times, the defendant operated the mine.

21. In carrying out mining operations at the mine, the defendant carried out activities which were “scheduled activities” within the meaning of the POEO Act.

The EPL

22. On 2 May 2013, Mr Robert O’Hern (a delegate of the EPA) granted the defendant’s application pursuant to s 55 of the POEO Act for the issue of the EPL, subject to conditions, in relation to the scheduled activities carried out at the mine. As at 2 December 2022, the EPL had been last varied by the EPA on 27 November 2019. The EPL authorised and regulated the carrying out of the scheduled activities and specifically regulated aspects of mine blasting.

23. The administrative conditions in the EPL are as follows:

1   Administrative Conditions

A1 What the licence authorises and regulates

A1.1 This licence authorises the carrying out of the scheduled development work listed below at the premises listed in A2:

Construction of mine related infrastructure.

A1.2 This licence authorises the carrying out of the scheduled activities listed below at the premises specified in A2. …

Unless otherwise further restricted by a condition of this licence, the scale at which the activity is carried out must not exceed the maximum scale specified in this condition.

…

A3 Other activities

A3.1 This licence applies to all other activities carried on at the premises, including:

Ancillary Activity

Chemical storage

Concrete works

Crushing, grinding and separating of rock for construction activities

Railway systems activities

Sewerage treatment system

A4 Information supplied to EPA

A4.1 Works and activities must be carried out in accordance with the proposal contained in the licence application, except as expressly provided by a condition of this licence.

…

24. The conditions concerning discharges to air and water and applications to land include, relevantly, the following:

2   Discharges to Air and Water and Applications to Land

…

P1.4 The following points referred to in the table below are identified in this licence for the purposes of weather and/or noise monitoring and/or setting limits for the emission of noise from the premises.

…

25. The limit conditions (the limit conditions) in relation to blasting are, relevantly, as follows:

3    Limit Conditions

…

L3 Noise limits

…

L4 Blasting

L4.1 The airblast overpressure level from blasting operations in or on the premises must not exceed 120dB (Lin Peak) at any time at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence.

L4.2 The airblast overpressure level from blasting operations in or on the premises must not exceed 115dB (Lin Peak) for more than five per cent of the total number of blasts over each reporting period at any time and at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence.

L4.3 The ground vibration peak particle velocity from the blasting operations carried out in or on the premises must not exceed 10mm/sec at any time at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence.

L4.4 The ground vibration peak particle velocity from the blasting operations carried out in or on the premises must not exceed 5mm/sec for more than five per cent of the total number of blasts over each reporting period at monitoring points 31, 32, 33, or 34 as defined in Condition P1.4 of this licence.

…

L4.7 Blasting at the premises is limited to 1 blast on each day on which blasting is permitted.

…

L4.8 Condition L4.7 does not apply to blasts that generate ground vibration of 0.5mm/s or less at any residence on privately-owned land, or to blasts required to ensure the safety of the mine or its workers.

Note: For the purposes of this condition, a blast refers to a single blast event, which may involve a number of individual blasts fired in quick succession in a discrete area of the mine.

26. The monitoring points 31, 32, 33 and 34 referred to in the limit conditions are named BM1, BM2, BM3 and BM4 in condition P1.4 (the EPL monitoring points).

27. The operating conditions (the operating conditions) in the EPL are, relevantly, as follows:

4   Operating Conditions

O1 Activities must be carried out in a competent manner

O1.1 Licensed activities must be carried out in a competent manner.

This includes:

a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and

b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.

O2 Maintenance of plan and equipment

O2.1 All plant and equipment installed at the premises or used in connection with the licensed activity:

a) must be maintained in a proper and efficient condition; and

b) must be operated in a proper and efficient manner.

…

28. The monitoring and recording conditions include, relevantly, the following:

5    Monitoring and Recording Conditions

…

M7 Blasting

M7.1 To determine compliance with conditions L4.1 to L4.4 inclusive:

a) Airblast overpressure and ground vibration levels must be measured and electronically recorded for monitoring points 31, 32, 33 and 34 for the parameters specified in Column 1 of the table below and

b) The licensee must use the units of measure, sampling method and sample at the frequency specified opposite in the other columns.

29. The Dictionary in the EPL provides the following definition of activity:

activity [m]eans a scheduled or non-scheduled activity within the meaning of the Protection of the Environment Operations Act 1997

The EPA Act approval

30. On 23 October 2012, as delegate of the Minister for Planning and Infrastructure, the Planning Assessment Commission of NSW approved the mine, subject to conditions, pursuant to the now repealed s 75J of the Environmental Planning and Assessment Act (NSW) (EPA Act) (application number 10_0138) (the EPA Act approval).

31. Condition 18 of the EPA Act approval provides as follows in relation to blasting criteria:

BLASTING

Blasting Criteria

18. The Proponent shall ensure that the blasting on the site does not cause exceedances of the criteria in Table 7.

Table 7: Blasting criteria

However, these criteria do not apply if the Proponent has a written agreement with the relevant owner or infrastructure provider/owner, and the Proponent has advised the Department in writing of the terms of this agreement.

32. Condition 25 of the EPA Act approval provides as follows in relation to the preparation and implementation of a blast management plan:

Blast Management Plan

25.   The Proponent shall prepare and implement a Blast Management Plan for the project to the satisfaction of the Director-General. This plan must:

(a)   be submitted to the Director-General for approval prior to undertaking any blasting activities on the site;

(b)   be prepared in consultation with the EPA and interested members of the local community potentially affected by blasting operations;

(c)   propose and justify any alternative ground vibration limits for public infrastructure in the vicinity of the site;

(d)   describe the measures that would be implemented to ensure:

•   best management practice is being employed; and

•   compliance with the relevant conditions of this approval;

(e)   include a road closure management plan for blasting within 500 metres of a public road, that has been prepared in consultation with Council;

(f)   include a specific blast fume management protocol to demonstrate how emissions will be minimised including risk management strategies if blast fumes are generated;

(g)   include a monitoring program for evaluating the performance of the project including:

•   compliance with the applicable criteria; and

•   minimising fume emissions from the site; and

(h)   include a Leard Forest Mining Precinct Blast Management Strategy that has been prepared in consultation with the other mines within the Leard Forest Mining Precinct to minimise the cumulative blasting impacts of all the mines within the precinct.

Problems in achieving adequate fragmentation in the Velyama seam in November 2019

33. In November 2019, the defendant experienced problems in achieving adequate fragmentation in the upper parts of the Velyama seam at the mine. This prompted Mr Jorge Moraga, the mine’s general manager, to contact Dr Cameron McKenzie, an expert in relation to matters concerning mine blasting. Dr McKenzie attended the mine over 3 days, and produced a report dated December 2019, titled “Review of Blasting Practices at Maules Creek Coal Mine” (Dr McKenzie’s 2019 report).

34. Dr McKenzie’s 2019 report included options of reducing stemming length and adopting fast initiation timing to address the fragmentation problems. One measure for improvement of fragmentation identified was a reduction in the stemming length for each of the blast holes (emphasis added):

[t]o maximise the vertical distribution of the explosive and improve fragmentation in the stem zone, stemming lengths must be minimized consistent with maintaining fly rock safety.

…

[f]or best fragmentation in the hard cap area, stemming length is recommended to be in the range of 3 to 3.5 metres, and blast clearance distances in the range 600 to 500 metres respectively.

35. Stemming is the amount of inert material which sits in the blast hole above the explosive blast material. “Stemming length” is the distance between the top of the explosive charge and the surface of the blast that is usually filled with stemming material (that is, inert material loaded on top of or between the explosive charges). The defendant’s Whitehaven Coal Drill and Blast Design Standard Fixed Pattern also known as “ST_HRN_229_OB_D_1” (the design standard) dated 16 October 2019 specified a stemming length of 3.5m under the heading “Loading Parameters”.

36. The defendant submitted, and I find, that the fragmentation problems then being experienced by the defendant were in the coarse upper flitch of the interburden of the Velyama seam, as opposed to the coarse fragmentation of the overburden on the Herndale seam which was the issue which gave rise to the subsequent retainer of Dr McKenzie in August 2020. Interburden is waste rock between coal seams, whilst overburden is the waste rock sitting above the upper most coal seam.

37. Another improvement measure identified by Dr McKenzie in his 2019 report was using fast timing conducted with electronic initiation.

The Herndale seam and the previous blast on 7 August 2020

38. The blast on 20 August 2020 was carried out on the Herndale seam, one of the coal seams at the mine.

39. On 7 August 2020, the defendant carried out an overburden blast in a location adjacent to the location of the blast which was carried out on 20 August 2020 on the “relevant part of the Herndale seam (HRN 08_40_OB)” (the previous blast). The previous blast was carried out after blasting and excavation in the Herndale area had restarted for the first time in 2 years. The previous blast used a stemming length of 4.0m.

40. Between 7 and 13 August 2020, in the period after the previous blast was fired, it became evident when mine workers were digging and loading the “muck pile” that the previous blast had not achieved adequate fragmentation of the caprock which resulted in poor digging conditions and safety risks to workers during loading activities. Muck pile is a reference to broken rock. Caprock is the name given to the rock or rock-like conglomerate material forming part of the overburden that lies at or near the ground surface within the same stratum as the stemming that sits in the blast holes above the explosive charge. Mr Ryan Gomez, technical services superintendent at the mine at all relevant times, testified that in lay person’s terms, caprock is “large boulders”.

41. The defendant contended, and I find, that achieving adequate fragmentation of rock is recognised as a “key objective of mine blasting”, it being an objective directed to both the safety of workers and the efficient commercial operation of the mine by enabling an efficient dig rate. If caprock is not adequately fragmented, a consequence is that “workers operating certain plant, including the trucks into which the overburden is loaded, are exposed to a risk of back and neck and body-jarring injuries that may be caused when large heavy pieces of rock are dug up and loaded into the trucks”. Another consequence is that “the mining operations involving the digging and removal of the overburden become more time consuming and less cost efficient, because it takes more time for the diggers to dig up larger rocks when the cap rock is not adequately fragmented”.

Preparation for the blast scheduled for 19 August 2020

42. On around 4 August 2020, the design of the blast originally scheduled for 19 August 2020 commenced.

43. Mr Matthew Williams, the defendant's senior drill and blast engineer and principal designer of the drill pattern for the blast on 20 August 2020, reported to Mr Gomez, the technical services superintendent. Mr Williams designed the drill pattern for the blast with the assistance of Mr Lee Butler, graduate mining engineer.

44. On or about 6 August 2020, the drilling of blast holes for the blast originally scheduled for 19 August 2020 began. On or about 16 August 2020, the drilling of blast holes for that blast ended.

45. The defendant contended, and I find, that it designed and implemented the blast to address difficulties it had experienced in achieving adequate fragmentation of capping rock in the previous overburden mine blast carried out on the Herndale seam on 7 August 2020.

46. On around 10 August 2020, Mr Lachlan May (the defendant’s coal quality engineer/geologist) identified vertical cracking in the northern low wall of the Herndale area. Mr May reported his findings to Mr Williams, Mr Butler and Mr Gomez, and recommended a number of actions be taken. Mr May stated that a geotechnical inspection of the Herndale shot had been completed and made recommendations for actions to be completed before proceeding. At the time, Mr Gomez reported to Mr Moraga, the mine’s general manager.

47. On Thursday, 13 August 2020, the inadequate fragmentation achieved by the previous blast on 7 August 2020, and the work health and safety risks it posed, were brought to the attention of Mr Gomez at a superintendent’s meeting. By this time, the drilling of the blast holes for the blast was partially or substantially completed. Mr Gomez, when asked in examination in chief, guessed that “30-50% of the drill holes for the blast had already been drilled” and recollected that the blast was “half drilled”.

42. Also on around 13 August 2020, Mr Gomez advised Dr McKenzie that “the pattern is already drilled or almost completed so there is no room to make any adjustments”. As a result of the rather “late stage” of his engagement, there were limited adjustments Dr McKenzie could make to mitigate the caprock fragmentation issue. Consequently, the only design aspects that could be controlled to change the fragmentation outcome for the blast were the stemming length and timing of the charge. Dr McKenzie said that there were “not many options available any more”.

43. Sometime between Thursday, 13 August and Friday, 14 August 2020, Mr Gomez, Mr Williams and Mr Butler discussed the issue of fragmentation in relation to the caprock, and how it could be addressed in the final stages of design of the blast. One of the outcomes of that discussion was the engagement of Dr McKenzie on 14 August 2020 to provide advice on what the defendant could do in the time available before the scheduled blast, and with an estimated 30-50% of the drill holes already having been drilled in order to achieve better fragmentation of the caprock from the blast. Specifically, Dr McKenzie was engaged to provide advice on timing and stemming length for the blast to minimise caprock and improve fragmentation.

44. On Friday, 14 August 2020 at 9:40am, Mr Williams emailed Dr McKenzie, at Mr Gomez’ direction, seeking his views on managing caprock fragmentation for the blast to achieve an improvement on the shot. Mr Williams said in his email that “[w]e are looking at reducing stem height from 4m to 3m and using electronic timing to help”.

45. On Friday, 14 August 2020 at about 10:40am, Mr Williams sent an email to Mr Michael Clarke, the defendant’s drill and blast superintendent, copying Mr Gomez and Mr Butler, saying “we are trying a couple new things to try and get a better result for the cap zone fragmentation in the next HRN shot”.

46. On 14 August 2020, at about 11:30am, Mr Williams emailed Dr McKenzie a copy of the drill map and design for the blast. This was sufficient for Dr McKenzie to put the input into his predictive model, or as Dr McKenzie said in cross-examination: “... that's all I needed to do to recreate their planned blast”. By this time, Dr McKenzie “was aware that the only two options for dealing with the difficulties experienced in fragmenting the capping rock, were to adjust the initiation timing and to adjust the length of stemming for the [b]last”. Having received input data from Mr Williams, Dr McKenzie commenced his predictive modelling of flyrock, airblast overpressure and vibration, that the blast would generate at each of the four EPL monitoring points against a number of parameters concerning initiation timing and stemming lengths.

47. During the course of 14 August 2020, Mr Gomez and Dr McKenzie spoke by phone in the morning for more than 15 minutes, and again in the late afternoon for almost 26 minutes.

48. On 14 August 2020 at 10:02pm, Dr McKenzie emailed Mr Williams (copying Mr Gomez and Mr Butler), and said as follows in relation to his modelling of the shot:

I have spent some depressing time on the modelling of this shot. Depressing, because it tells me that the overpressure impacts may be excessive with just 2.5 metres of stemming, which is what I'd like to recommend. In fact, it says that even with 3 metres, we may be pushing our luck in combination with fast timing. Vibration is no issue. My modelling says that if we go to the fast timing, then we probably should be looking at 3.5 metres of stemming. Having said that, I would also say that modelling at distances of 8 to 9 km is a bit tricky, and can be heavily influenced by cloud cover and inversion layers which my model does not take into consideration. The inversion layers we can probably handle by not firing before mid-day, but the cloud cover may be a more difficult problem to manage. All in all, I have never had to model impacts at such extreme distances before, so I am not sure how much confidence to have in the modelling.

As I see it, there are three options:

1. We can use fast timing and more conventional stemming lengths

2. We can use 3 m stemming lengths and conventional timing

3. We can try 3 m stemming and fast timing, and use the result as a learning opportunity, since I have doubts about the ability to reliably model the impacts on the data I have available.

55. In cross-examination, Dr Catherine Aimone-Martin (the defendant’s expert) agreed with Dr McKenzie’s characterisation of the third option as a “learning opportunity” as at 10:02pm on 14 August 2020.

56. Between 14 and 18 August 2020, Dr McKenzie undertook modelling to minimise overpressure and vibration resulting from the blast at the monitoring locations in the north-east of the mine. In order to do so, he was supplied with the coordinates of the EPL monitoring points, BM1, BM2, BM3 and BM4.

57. On the morning of Monday, 17 August 2020, Mr Butler took over the role of finalising the charge design for the blast from Mr Williams who was then on leave. Mr Butler had been involved in the design of the blast under the supervision of Mr Williams in the previous weeks and proceeded to work under the supervision of Mr Gomez. Mr Gomez’ evidence was that “[Mr Butler] and me discussed everything”.

58. On 17 August 2020 at 8:21am, Mr Butler emailed Dr McKenzie informing him that Mr Williams was on leave and asking for clarification about how to import the timing data provided by Dr McKenzie for use in the defendant’s software. Later that morning at 10:12am, Dr McKenzie replied to Mr Butler’s email (copying Mr Gomez) with the timing details, and advised Mr Butler as follows:

[i]t’s all very fast, deliberately. But happy to discuss any concerns you may have.

59. At about 11:00am on 17 August 2020, Mr Gomez and Dr McKenzie had a phone call of about 16 minutes duration during which, according to Mr Gomez, they discussed adding “a layer of conservatism to the airblast overpressure by directing the modelling to achieve the EPL 95 percentile limits (114 or 115 dBL)”.

60. At 11:34am on 17 August 2020, Dr McKenzie emailed Mr Butler regarding the appropriate clearance distance for the blast, taking into account both fast timing and reduced stemming. Dr McKenzie suggested a 700m personnel clearance distance, and noted that “this blast is a departure from standard blasting practice at Maules Creek”.

61. It was not in dispute that Dr McKenzie was not asked to consider the potential impact of the blast on personnel at the adjacent Boggabri coal mine located less than 3km to the south of the mine, with its crib hut and go line located approximately 2.9km from the proposed blast location. The location of personnel at the Boggabri coal mine (Ms Rebecca Severin and Mr Jonathon Byrnes), as well as residents at neighbouring properties, namely Ms Roselyn Druce, Ms Christine Westlake, Mr Kereopa and Ms Lynette Louis at the time of the blast, is marked on the aerial photograph extracted from a report of the prosecutor’s expert, Dr Alan Cameron, below:

62. In his record of interview dated 24 May 2021, Dr McKenzie explained that he did not do any modelling to the south of the mine because it was outside his scope of work, that he was approached to provide advice about impacts, and that he was given information about the EPL monitoring points. Dr McKenzie agreed that he was not given any information in relation to any other sensitive areas around the mine.

63. On 18 August 2020, there were seven telephone conversations between Mr Gomez and Dr McKenzie with a total duration of about 55 minutes.

64. On 18 August 2020 at 10:47am, Mr Butler emailed Dr McKenzie the timing contours he had devised for the blast. Dr McKenzie replied at 10:57am, and noted “that looks fine to me … I have no issues with it”. Later, on 18 August 2020 at 2:39pm, Mr Gomez emailed Dr McKenzie vibration and overpressure readings from the previous blast at the mine.

65. In preparing the updated modelling, Dr McKenzie used data from the previous blast on 7 August 2020 to calibrate the model and make predictions for the blast. Using the previous blast's data, Dr McKenzie highlighted that the airblast overpressure level predictions were about 2 decibels (Lin Peak) (dBL) “higher than what was recorded at the [four EPL] monitors”, and made the following comments in an email sent to Mr Gomez on 18 August 2020 at 4:43pm:

[t]he model takes into account the fast timing presented in the attached pdf file, but has not accounted for the delayed section of the blast near to the final highwall. That should only tend to reduce the levels, so I consider the estimates to be conservative from that point of view

66. In relation to the scenario of fast timing and 3.0m stemming, Dr McKenzie’s model predicted airblast overpressure levels at each of the four EPL monitoring points as shown in the second column of the table below:

EPL Monitoring Points	Airblast overpressure predicted by the McKenzie Model (dBL)	Actual overpressure of blast (dBL)
BM1	112.7	110.8
BM2	111.5	115.1
BM3	114.1	116.5
BM4	114.8	107.6

67. Dr McKenzie gave evidence that the blast “deviated from what would be a normal standard, but the whole blast was being done differently”.

68. Between 15 and 19 August 2020, HMS Australia Operations Pty Limited (Hanwha) mobile manufacturing units (MMUs) numbers 36, 37, 39, 42, 45, 46, 48 and 49 loaded the blast holes for the blast which was then scheduled for 19 August 2020 pursuant to load sheets which provided that 1,135 blast holes were to be loaded with explosive product. At this time, Hanwha had a supply contract with Whitehaven Coal Mining Limited (ABN 65 086 426 253), a different entity to Whitehaven Coal. Pursuant to the supply contract, the services provided by Hanwha included “Production of Explosive Products and loading down the hole [and] Providing a package including load sheets and delivery records at the completion of each blast”.

69. Mr David Welch and Mr Bruce Willey were the shotfirers who were responsible for tying up and loading ONV_08_38_PS (shot A) and HRN_08_39_OB (shot B) respectively. Shot B is the blast the subject of the four charges in these proceedings.

70. According to the drill and blast design checklist, “[p]lanning pressure resulted in the need for mid-split since there was no time for a stand alone pre-split blast”. Both shots A and B were tied in together so that a single initiation sequence from the centre of the pattern would detonate the shots at timed intervals. Rather than firing shot A as a standalone “pre-split blast”, shot A was detonated slightly before shot B making this a “mid-split” blast.

71. The MMU driver loaded explosive product into the blast holes pursuant to the details on the load sheet and the identification (ID) of the blast hole. A tape with a weight on its end and knots at various lengths was used to “bob the hole”; that is, to ensure that the hole was loaded to the stem height marked on the load sheet (being 3.0m for the blast). In his record of interview dated 27 April 2021, Mr Willey explained that to record the amount of explosive product inserted into each blast hole, the MMU driver writes the number of kilograms (kg) of explosives loaded on the load sheet next to the hole ID.

72. An email sent from Ms Emma Bulkeley, environmental superintendent, Whitehaven Coal, to Mr Simon Lund, EPA senior investigator, dated 31 August 2020, stated that the defendant’s blast design provided for 854,852kg to be loaded, that the “total dockets summary” was 896,256kg, and that there was a variance of 41,404kg (896,256kg minus 854,952kg) from the blast design.

73. Based on Hanwha’s records, the MMUs recorded delivered to the mine were:

1. 5,871kg of XLOAD 60-100 of explosive product for shot A; and

2. 877,773kg of XLOAD 60-100 explosive product and 15,483kg of XLOAD 70-110 explosive product, totalling 893,256kg of explosive product for shot B.

74. According to the Maules Creek Coal Jobpack Blast Checklist for the blast on 20 August 2020, there were 1,197 “pegs”; that is, 62 more blast holes than the 1,135 blast holes recorded on the load sheets. Further, the checklist recorded the total used explosives as 893,246kg, and the “Blast Comments” as “2 Initiation Points, Very quick timing. Good Frag”.

75. I find established beyond reasonable doubt that the total amount of explosives loaded in the blast on 20 August 2020 was 896,256kg as stated in Ms Bulkeley’s email to Mr Lund on 31 August 2021.

The rescheduling of the blast scheduled for 19 August 2020 to 20 August 2020

76. Due to high winds, the blast originally scheduled to be carried out on 19 August 2020 at 3:30pm was rescheduled to 20 August 2020 at 10:30am, when low winds were predicted.

77. The Boggabri coal mine was notified in advance of the blast scheduled to take place on 20 August 2020.

“Discrepancies” noted by the shotfirer, Mr Welch

78. Mr Welch gave evidence that as the blast crew was tying up the shot on 19 August 2020, he noticed “discrepancies” with the timing, in that “a lot of the holes were going off very quickly, close together”. He said that what one looks for in a shot is timing: “you want things to go off sequentially”. He recalled that he “hadn’t seen timing like that one before”, and that it was “all too close”. This made “[a]larm bells ring in [his] head” as “there was a lot of holes going off really close together which, when we’re trained, that's not what we’re trained to do”. Mr Welch was “specifically concerned about “poor fragmentation” as a result of the fast timing and “environmental impact” in the form of “noise vibration” by which he meant “how loud it is and what sort of rumble it gives”.

79. As a result, Mr Welch pulled the shot and told everyone to stop work and contacted the engineers to discuss the shot. Mr Welch recalled that he was advised by “drill and blast engineers” that “they’d done their modelling and that everything was within their boundaries”, and that he responded that he “didn’t quite agree” but was “open to trying new things”. He further recalled that he “wasn’t happy with their [the engineers’] response”. After expressing his concerns to the engineers, Mr Welch recommenced tying in the shot ready to fire.

80. Mr Gomez ultimately decided to use 3.0m stemming and fast timing. He gave evidence that “he would have made a final decision to use fast timing after receiving the results of further modelling from Dr McKenzie in his email of 4:43pm on 18 August 2020”. Mr Gomez could not recall precisely when he decided to use 3.0m stemming, although “he thought the decision would have been made about two days prior to the firing date”.

The blast clearance plan

81. The blast clearance plan dated 20 August 2020 for blast location “HRN08-39-OB” (the blast clearance plan) shows the location of the blast rescheduled for 20 August 2020 at 10:30am relative to the exclusion zones for personnel in red (700m) and plant in yellow (500m), and blast sentries 1 to 6 in place at the time of the blast. That plan is reproduced below:

Blast monitor records for the blast on 20 August 2020

82. On 20 August 2020 at 10:22am, shots A and B were initiated and fired. The blast took place along part of the Herndale seam which runs through the upper benches of the mine.

83. In accordance with condition M7.1 of the EPL, using Ecotech Dynamaster (Ecotech) blast monitors, the defendant monitored the vibration (millimetres per second) (mm/s) levels and airblast overpressure (dBL) at the EPL monitoring points; namely, BM1 (8.3km north of the blast), BM2 (7.8km north, slightly west of the blast), BM3 (7.5km north-west of the blast) and BM4 (8.7km west, slightly south of the blast). There were also three additional dam monitors RWD, RWD2 and MWD2 located on dam walls to the northwest of the mine. This blast monitor records are summarised in the two tables below:

Vibration (mm/s)
Blast monitor	Internal Model	External Model	Actuals
BM1	3.86	1.077	1.40
BM2	4.25	1.18	2.04
BM3	4.54	1.38	4.07
BM4	3.67	1.8	3.27
RWD	-	-	4.11
RWD2	-	-	10.61
MWD2	-	-	17.58

Overpressure (dBL)
Blast monitor	Internal Model	External Model	Actuals
BM1	107.69	112.7	110.8
BM2	108.33	110.7	115.1
BM3	108.75	113.5	116.5
BM4	107.37	114.8	107.6
RWD	-	-	130.6
RWD2	-	-	128.7
MWD2	-	-	133.5

84. It was uncontroversial that the actual results of overpressure and vibration recorded at BM1, BM2, BM3 and BM4 were within the limits required under conditions L4.1 and L4.3 of the EPL.

85. A map depicting the approximate locations of EPL monitoring points, blast monitors at the Boggabri coal mine and at the Tarrawonga coal mine, excluding RWD, RWD2 and MWD2, and marked BM1, BM2, BM3, BM4, and TB1 (which I will refer to as the Tarrawonga monitor), TB2 (which I will refer to as the Coomalagah monitor), and on private property at Goonbri East and Wiberoi East, is reproduced below:

Mr Gomez’ experience of the blast

86. Mr Gomez testified that because the vibration was more than he would have anticipated, he thought that the defendant had exceeded its noise limit and “was uncomfortable after that”. He said that the blast “was most certainly not an ordinary blast”, and that “it deviated from the standard”.

Other key documents

87. In addition to the EPL, the EPA Act approval and the blast clearance plan, the following other key documents which were in evidence are relevant to the four charges.

The blast management plan (BLMP)

88. Condition 25 of the EPA Act approval required the defendant to prepare a blast management plan. WHC_PLN_MC_BLAST MANAGEMENT PLAN (the BLMP) was first prepared in May 2013, and was last updated to “Issue 2.2” in “2018” by the defendant. The prosecutor relied on the BLMP as relevant to all charges. For the timing charge, stemming length charge and overloading charge, the prosecutor alleges that the blast was not designed in a competent manner in part because it did not conform to the BLMP, in particular cl 3.3.5, resulting in a high level of noise and airblast overpressure.

89. The BLMP contained, inter alia, the following provisions:

Clause 1.1:

…

Land-use in the local area is dominated by agricultural operations and open cut mining with rural residential holdings mainly located to the north and west of the Project. … Various coal mines exist within close proximity to the project including Boggabri Coal Mine, Tarrawonga Coal Mine and Goonbri Exploration Lease located to the southeast of the project boundary …

Clause 1.4:

The objectives of this BMLP are to:

• Ensure that operational blast vibration and overpressure from activities associated with the MCCM are minimised;

• Maintain compliance with those conditions of the Project Approval, Environment Protection Licence 20221 (EPL 20221) and relevant legislation relating to blasting …

90. Clause 2.0:

2.0 STATUTORY REQUIREMENTS AND COMMITMENTS

This BLMP has been prepared to fulfil the requirements of relevant legislation, approval conditions, EPL conditions, EA commitments, and, relevant standards and guidelines.

Clause 2.3:

2.3 Environment Protection Licence

MCC is the licence holder of EPL 20221 …. The EPL 20221 conditions relevant to blasting are presented below:

L4 Blasting

…

91. Pursuant to cl 2.4 of the BLMP, the following guidelines and standards applied to blasting at the mine at all relevant times:

1. Australian and New Zealand Environment Council, (1990) “Technical Basis for Guidelines to Minimise Annoyance due to Blasting Overpressure and Ground Vibration” (ANZEC guidelines);

2. Australian Standard AS 2187.2-2006 “Explosives – Storage and use Part 2: Use of explosives” (the Australian Standard); and

3. the Boggabri Coal, Tarrawonga Coal and Maules Creek Coal (BTM Complex) blast management strategy.

92. Clause 3.1 of the BLMP provided as follows in relation to blast design:

3.1 Blast Design

Blasts will be designed to meet best management practices to ensure the blasting requirements in Schedule 3, Condition 18 and 23 of PA 10_0138 are met.

…

To ensure compliance with regulatory limits, and to minimise the likelihood of significant blast impacts to neighbouring receivers, all blast designs will consider:

…

• Expected offsite vibration levels calculated based on conservative assumptions, which will be reviewed with blast history;

…

• The adequacy of stemming and suitability of material used;

• Appropriate initiation delays and detonation systems;

…

• Blast hole loading procedures …

93. Clause 3.3.1 provided in relation to unfavourable weather conditions such as wind speed and wind direction:

The following outlines unfavourable/adverse weather conditions and the site response to those conditions.

When the site automatic weather station (AWS) records wind direction from the north (270° through to 90°) and wind speed greater than 8m/s over successive readings, blasting will not occur unless required for safety reasons. Blasting will not occur when the AWS records wind direction from the south (90° through to 270°) and wind speed is greater than 6m/s over successive readings …

94. Clause 3.3.5 provided in relation to air vibrations (overpressure) management:

3.3.5 Air Vibrations (Overpressure) Management

Noise (the audible part of the air vibration spectrum) and airblast (the remaining sub-audible part of the air vibration spectrum) generation can be controlled by ensuring that all, or nearly all, of the explosion energy is consumed in fragmenting and displacing the overburden by the time the gases vent (via the broken burden rock and/or ejected stemming material) into the atmosphere. Blast events are designed to meet the relevant overpressure and ground vibration criteria.

and that (emphasis added):

This objective will be met by ensuring that:

• Where practicable, the blast face is orientated away from or at an oblique angle to nearby residences;

• Blast hole spacing is implemented in accordance with blast design;

• The burden distance and stemming length are carefully selected and then implemented precisely;

• Appropriate materials (e.g. 20 mm aggregates) are used for stemming;

• Charges detonate in the correct sequence and with inter-row delays that provide good progressive release of burden; [the fifth dot point in cl 3.3.5 of the BLMP]

• The maximum weight of explosive detonated in a given delay period (the Maximum Instantaneous Charge – MIC) is limited to conservative and proven levels; [the sixth dot point in cl 3.3.5 of the BLMP]

• Conducting blasting during suitable meteorological conditions as described in Sections 3.2 and 3.3 [together, the seven dot points in cl 3.3.5 of the BLMP].

95. Clause 4.1 provided in relation to monitoring of blast vibration and overpressure:

Blasting generates noise (i.e overpressure or airblast) and vibration, which can be detectable at residential receptor locations. …

…

In accordance with Schedule 3, Condition 18 of [the EPA Act approval], blasting must not exceed the relevant criteria for airblast overpressure (dB (Lin Peak) and Ground Vibration (mm/s) at any residence on privately owned land. The monitoring locations above are representative of residences on privately owned land and as such, will be used to assess compliance with blasting criteria …

Australian Standard AS 2187.2-2006 “Explosives – Storage and use: Use of explosives”

96. Section 1.5 of the Australian Standard provided at all relevant times as follows in relation to regulatory authorities:

Explosives in each State and Territory are governed by appropriate regulatory authorities. Persons planning blasting operations should ensure compliance with the legislative requirements applicable to the activity to be undertaken …

97. Section 4 provided relevantly in relation to plannin”:

SECTION 4 PLANNING

4.1 GENERAL PROVISIONS

All blasts whether surface, underground or submarine, shall be planned and designed to achieve the required outcome with first considerations being the protection of persons, property and the environment.

Before the commencement of any blasting operation an investigation of the site and its environs, or the item to be blasted shall be carried out identifying any potential hazards/risks. On the basis of the investigation, a blast management plan incorporating a risk assessment and control of measures shall be prepared.

4.2 BLAST MANAGEMENT PLAN

There shall be an overall blast management plan in accordance with Appendix A. Records should be maintained. No blasting shall commence until a competent person has authorized the blast management plan.

…

4.8 ENVIRONMENTAL IMPACTS

The area surrounding the blast site should be inspected and assessed to determine appropriate means of minimizing environmental impacts. Regulatory limits may apply.

In conducting the risk management, foreseeable factors should be considered, including, but not limited to the following:

(a) Distances to buildings, structures, and other environmental effects.

Note: See Appendix J for guidance.

…

(c) Ground vibration and airblast overpressure.

…

(e) Effects of dust, fume, sediment run-off, noise.

…

4.10 SPECIAL PRECAUTIONS

Due to the many environments in which blasting takes place, not all hazards can be identified and raised in this document.

The onus is on the entities undertaking blasting activities to use this document, and specialist experience within the blasting operation they are undertaking, to manage risks associated with the blasting activity. It is foreseeable that every blasting operation will have specific and special precautions that need to be implemented for the safety and health of persons, property and environment.

4.11 BLAST DESIGN

…

The blast management plan shall outline the objective of the blast. The objectives may including the following:

(a) Fragmentation.

(b) Movement.

(c) Environmental considerations.

(d) Preservation of the stability of adjacent rock.

(e) Minimization of back-break/over-break.

…

98. In Appendix J to the Australian Standard, titled “Ground Vibration and Airblast Overpressure (Informative)” (Appendix J to the Australian Standard), section J1 provides relevantly:

The contents of this Appendix are designed to be informative and are not intended to over-ride existing statutory requirements, particularly with respect to human comfort limits set by various authorities.

…

Blasts should be designed according to the prevailing regulatory controls from both a human comfort and damage perspective.

…

99. Section J2.2 provides relevantly in relation to airblast:

Airblast is the pressure wave (sound) produced by the blast and transmitted through the air. Unlike ground vibration there is only one airblast phase but it too is a complex wave-train consisting of various peaks and with a range of frequencies. The sources of airblast include a usually small air pressure pulse generated by the ground vibration, a direct air pressure pulse generated by the rock movement during blasting and an air pressure pulse caused by direct venting of gases from the region of the blast. It is important to recognise that airblast may be reflected by layers within the atmosphere and that the airblast may be refocused at distances remote from the blast.

…

100. Section J4.5 provides relevantly in relation to recommended ground vibration limits:

…

The maximum levels for ground vibration for human comfort, which some authorities have chosen, are provided in Table J4.5(A). Recommended limits for ground vibration for control of damages to structures are provided in Table J4.5(B).

…

101. Table J4.5(A) provides in relation to ground vibration limits for human comfort chosen by some regulatory authorities:

GROUND VIBRATION LIMTIS FOR HUMAN COMFORT CHOSEN BY SOME REGULATORY AUTHORITIES (see Note to Table J4.5(B))

Category	Type of blasting operations	Peak component particle velocity (mm/s)
Sensitive site*	Operations lasting longer than 12 months or more than 20 blasts	5 mm/s for 95% blasts per year 10 mm/s maximum unless agreement is reached with the occupier that a higher limit may apply
Sensitive site*	Operations lasting for less than 12 months or less than 20 blasts	10 mm/s maximum unless agreement is reached with occupier that a higher limit may apply
Occupied non-sensitive sites, such as factories and commercial premises	…	…

*A sensitive site includes houses and low rise buildings, theatres, schools, and other similar buildings occupied by people.

NOTE: The recommendations in Table J4.5(A) are intended to be informative and do not override statutory requirements with respect to human comfort limits set by various authorities. They should be read in conjunction with any such statutory requirements and with regard to their respective jurisdictions.

102. Section J5.1 of Appendix J to the Australian Standard provides relevantly in relation to airblast levels:

Airblast can cause discomfort to persons and, at high levels, damages to structures and architectural elements, and a very high levels, injury to persons. …

103. Section J5.4 of Appendix J to the Australian Standard provides in relation to recommended airblast limits:

Airblast limits for human comfort chosen by some regulatory authorities are provided in Table J5.4(A). Recommended damage control limits are given in Table 5.4(B). All the limits are expressed as peak linear sound pressure levels. …

104. Table J5.4(A) provides in relation to airblast limits for human comfort chosen by some regulatory authorities:

AIRBLAST LIMITS FOR HUMAN COMFORT CHOSEN BY SOME REGULATORY AGENCIES (See Note to Table J5.4(B))

Category	Type of blasting operations	Peak sound pressure level (dBL)
Human comfort levels
Sensitive site*	Operations lasting longer than 12 months or more than 20 blasts	115dBL for 95% blast per year. 120dBL maximum unless agreement is reached with occupier …
Sensitive site*	Operations lasting for less than 12 months or less than 20 blasts	120dBL mm/s for 95% blasts. 125dBL maximum unless agreement is reached with occupier …
Occupied non-sensitive sites, such as factories and commercial premises	All blasting	125dBL maximum …

*A sensitive site includes houses and low rise residential buildings, hospitals, schools, etc., occupied by people.

105. Table J5.4(B) provides relevantly in relation to recommended airblast limits for damage control:

RECOMMENDED AIRBLAST LIMITS FOR DAMAGE CONTROL (see Note)

…

NOTE: Tables J5.4(A) and J5.4(B) are intended to be informative and do not override statutory requirements, particularly with respect to human comfort levels set by various authorities. They should be read in conjunction with any such statutory requirements and with regard to their respective jurisdiction.

Whitehaven Coal procedures

106. The prosecutor submitted, and I find established beyond reasonable doubt, that at all relevant times the following Whitehaven Coal procedures applied to blasting activities at the mine:

1. WHC-PRO-OC-Planning, Design and Record Keeping (the planning, design and record keeping procedure); and

2. WHC-PRO-OC-Loading and Stemming Blast Holes (the loading and stemming blast holes procedure).

The planning, design and record keeping procedure

107. Prior to the period of the alleged offences, the planning, design and record keeping procedure was last revised on 10 April 2018. The prosecutor submitted that the planning, design and record keeping procedure refers to a design standard which prescribes the parameters for a standard fixed pattern for blasting. The prosecutor submitted, and I find, that at all relevant times the design standard applied to blasting at the mine.

108. Section 1 of the planning, design and record keeping procedure states that the “objective of controlled blast design is to enable safe blasting of overburden and coal, while ensuring suitable fragmentation and muckpile profile to match the chosen digging equipment whilst remaining within the environmental limits set for the mine”. Section 3.2.2 provided as follows in relation to the design standard:

○ Once the Design Inputs have been documented and reviewed the drill and blast engineer shall select an appropriate Approved Design Standard.

APPROVED DESIGN STANDARD

○ Once an appropriate Approved Design Standard .pdf has been selected it is to be used to complete the drill pattern being designed.

…

■ The design objective is to deliver a drill pattern design within 10% of the target design parameters.

The loading and stemming blast holes procedure

109. The loading and stemming blast holes procedure was last revised on 15 May 2018 prior to the period of the alleged offences. The scope was to “control blast hole charging and stemming operations, and related activities”. It applied “to all loading and stemming operations including dewatering, priming blast holes, loading of bulk explosives, the placement of any non-explosive blast hole products such as stemming and gas bags, and the removal of stemming and/or explosives with the vacuum truck”.

110. Section 3.2 provided in relation to blast hole layout:

It is essential that blast holes are primed and charged in accordance with design standards, and to suit any variation in site conditions (depth, water content etc).

A blast hole shall only be charged if it has been checked for adequate burden, depth, inclination, cracks and obstructions and it is not knowingly within 1m of a drill hole butt.

Holes will be identified on the ground (and on the plan) to record special conditions and requirements including ... [o]verloaded holes …

111. Section 3.5 provided in relation to bulk charging and stemming:

Load sheets specify the design kg and the maximum kg. The maximum kg may only be exceeded by direction instruction from the shotfirer.

The design standard

112. The prosecutor also relied on the design standard. The design standard identified the loading parameters, stemming as 3.5m, the relevant seam at the mine as “HRN”, meaning Herndale, and the type as “Overburden”.

The drill and blast design checklist

113. The two page drill and blast design checklist, dated 4 August 2020, is extracted below:

114. The drill and blast design checklist identifies the pattern name for the blast as “HRN_08_39_OB”, and the design as by “Matt Williams”. The authorised design standard is identified as “ST_HRN_229_OB_D_V1”. The seam is “Herndale”, and the type is “Overburden”.

115. In the drill and blast design checklist, the question “have the design parameters as specified in the Approved Design Standard been modified” is answered “Yes”, and “Stemming reduced to 3m”. The Timing Path is identified as “CentreLift”, and “Timing designed in consultation with blasting consultant”.

Blast hazard analysis

116. The WHC_CHK_OC_MC_Environmental Blast Hazard Analysis (the blast hazard analysis) for the blast is reproduced below (with highlights in the original document):

International Society of Explosives Engineers Blasters’ Handbook

117. Dr Cameron (the expert called by the prosecutor) annexed to his further supplementary opinion dated 9 December 2022 extracts from the International Society of Explosives Engineers Blasters’ Handbook (ISEE Blasters’ Handbook), ^[3] relevantly sections of chapter 9 “Fragmentation and Heave Process”, chapter 11 “Explosives Properties and Performance Characteristics”, and chapter 33 “Surface Blasting”. In his report dated 4 November 2021, Dr Cameron referred to the following “rule of thumb” in the ISEE Blasters’ Handbook in relation to stemming length:

A Rule of Thumb commonly used for calculating stemming length from ISEE Blaster's Handbook (18^th edition) and Orica's Pocket Blast Guide is stemming length = 20-30 times blasthole diameter. Applying this Rule of Thumb, 20 times the blasthole diameter of 0.229m for blast HRN_08_39_OB is approximately 4.6m. This indicates that the Approved Standard Design stemming length of 3.5m (15.3 x blasthole diameter) is already less than that normally used and, therefore, a further reduction of this length by 14% is a significant amount.

3. Stiehr, ISEE Blasters’ Handbook (International Society of Explosives Engineers, 18th ed, 2011).

118. In summary, the rule of thumb is that the stemming length should be between 20 and 30 times the blast hole diameter (referred to herein after as the blast ratio).

119. Dr Aimone-Martin (the expert called by the defendant) also referred to the ISEE Blasters’ Handbook in her report dated 10 October 2022 in relation to the overloading charge, saying that the ISEE Blasters’ Handbook “does not provide a clear definition of overloaded blast holes but rather describes the consequences of overloading holes …”. This includes “excessive flyrock, or rock that is propelling laterally beyond the blast area as defined by the lead blaster, and high ground vibrations”. Dr Aimone-Martin referred to chapter 9 and the following paragraph on “Rock Movement”:

A distinct but short time delay occurs between detonation of the borehole and the initial detectable movement of the bench face or top surface … However, if the blast is designed with too little burden or stemming and/or too high of a powder factor, premature movement of the rock can release explosive energy in the form of jetting gases …

Lewandowski reports

120. Mr Thomas Lewandowski of Enviro Strata Consulting Pty Ltd prepared a report titled “Assessment of Blasting Impacts for the Blasts Fired on 20.08.20” dated 29 August 2020 (the first Lewandowski report), and a report titled “Review of Meteorological Constraints Relative to the Overpressure Hazard When Blasting at Maules Creek Coal” dated 21 January 2021 (the second Lewandowski report) (the Lewandowski reports). The reports were prepared for the defendant in response to an inquiry by the NSW Department of Planning, Industry and Environment following complaints lodged with the Department by local residents. Both reports discussed wind speeds and directions as at the date of the blast. The reports analysed airblast overpressure and ground vibration results such as wavetrace records from BM1, BM2, BM3, BM4, RWD2 and MWD2, the blast design details and video records. The reports also reviewed wavetrace records from the Tarrawonga monitor (located to the south of the mine) and the Coomalagah monitor (located to the south-east of the mine, approximately 12.5km from the blast).

121. The first Lewandowski report included the following figure, figure 2A, in relation to wind speed at the Maules Creek weather station before, during and after the blast:

122. The defendant raised the issue of weight to be given to the Lewandowski reports in relation to the emission of noise charge as they were untested. The prosecutor’s response was as follows:

HER HONOUR: … the defendant makes a valid point in relation to the weight that the Court would attach to untested evidence contained in the Lewandowski reports, notwithstanding they are documents of the defendant in circumstances where there was no opportunity for that material to be tested in any way by the defendant or - and the prosecutor didn't put on any of its own evidence in relation to those matters. What do you say about that?

LEGGAT: It's a good point. It's not determinative your Honour may be satisfied that where there was an agreement between Dr Aimone-Martin and Mr Lewandowski about the underlying assumptions, the wind speeds and the directions and matters like that, coupled with Dr Aimone-Martin's concession that the blast management plan deals with an under six kilometres an hour wind as being in a green category. That is a category where one can fire without having to think about whether at all and where this wind is agreed to be well and truly in the green category that the impact of site is an impact that is not explained or defended by there being unusual weather patterns because the speed and direction of the wind was in the under six kilometres an hour green category which was the expectation.

… There are two propositions there. The first is that even if the wind speed was such as to explain the contravention at the sensitive site at Coomalagah that was an event that ought to have caused the defendant to not fire the charge if there was likely to be that consequence because of the wind, then that means that the blast should have been postponed for another day.

459. The prosecutor also referred to s 120 of the POEO Act (offence of water pollution) to which s 122(1) provides a statutory defence, and also to s 142A (offence of pollution of land) which is also subject to a statutory defence in s 142C (that the conditions of an EPL were not contravened), and submitted that Parliament’s decision not to provide for a similar statutory defence for noise pollution offences is a strong reason why the Court should not interpret s 140(1) as having “any sort of implied exception or defence that is based upon what is allowed under the conditions of an EPL”. Accordingly, it is not a defence “to prove the charge to otherwise be in accordance with any limits of vibration or overpressure that are set out in an EPL”. The prosecutor identified two limits placed upon the operation of s 140(1) by its terms:

1. there is an emission from the premises; that is, the noise occurs outside the premises; and

2. there is a causation requirement in the terms of the provision, that is the emission of noise must be caused by the failure to deal with the materials in a proper and efficient manner.

Defendant’s submissions in relation to the proper construction of s 140(1)

460. The defendant submitted that the question of whether the defendant dealt with the explosives in a proper and efficient manner is to be determined by reference to the text of s 140(1) and the context of the POEO Act. Whether the explosives were dealt with in a proper and efficient manner is not to be determined at large, “but rather by considering whether the defendant failed to deal with the explosives in a proper and efficient manner according to the possible environmental consequences of the act or omission in question”.

Conclusion in relation to the proper construction of s 140(1) of the POEO Act

461. As submitted by the defendant, the question of whether the defendant dealt with the explosives in a proper and efficient manner is to be determined by reference to the text of s 140(1) and the context of the POEO Act, and by considering the possible environmental consequences of the act or omission in question: Genkem at 41C-E (Gleeson CJ); cited with approval in Bartter CCA at [21] (Basten JA) (Davies and Dhanji JJ agreeing).

462. I find, guided by Genkem and Bartter CCA (both cases dealing with the construction of conditions of licences and not a statutory provision such as s 140(1)), that the phrase “proper and efficient” in s 140(1) must be understood as referring to dealing with materials in or on premises in such a manner as to cause the emission of noise from the premises where the noise so caused, or any part of it, is caused by the occupier’s failure to deal with those materials in a proper and efficient manner, having regard to the possible environmental consequences arising from a failure to deal with the materials in such a way as to minimise or avoid those risks.

463. I do not interpret s 140(1) as having “any sort of implied exception or defence that is based upon what is allowed under the conditions of the EPL”. I find, as submitted by the prosecutor, that the limits placed upon s 140(1), by its terms, are that there be an emission of noise from the premises, and that the emission of noise must be caused by the failure to deal with the materials in a proper and efficient manner. It is no defence to an offence against s 140(1) that the emission of noise was in accordance with the airblast overpressure and vibration limits set out in the EPL.

Element one: was the defendant the occupier of the premises

464. In the Dictionary to the POEO Act, “occupier of premises” is defined as the person who has the management or control of the premises. It was uncontroversial that the defendant was the occupier of the mine at all relevant times. I find established beyond reasonable doubt that the defendant was the occupier of the premises at all relevant times.

Element two: did the defendant deal with materials in or on the premises

465. The defendant accepted that the explosives nominated in the emission of noise charge summons as the “materials” are “materials” within the meaning of s 140(1). However, it submitted that there were no particulars concerning any other “materials”, and that the stemming materials were not particularised as part of the charge. The “manner of dealing” with those materials was submitted to be “expressly” a complaint about the utilisation of 3.0m stemming and fast timing with electronic initiation, the prosecutor alleging that this manner of dealing with the explosives resulted in the dispersion of excessive explosive energy upwards into the atmosphere, “thereby reducing the explosive energy of the blast directed towards the breaking of caprock or overburden that was the intended purpose of dealing with the [e]xplosives”. Accordingly, the defendant submitted, the complaint the subject of the emission of noise charge was a complaint about the design of the blast in relation to stemming and timing, and that once “it is understood that this complaint about 3.0m stemming and fast timing is a complaint about the design of the blast, it may be discerned that the elements of s 140(1) of the POEO Act are inapposite for the complaint”.

466. The defendant also relied on its submissions in relation to the timing charge and the stemming length charge in answer to the emission of noise charge, and submitted that designing a blast to incorporate 3.0m stemming and fast timing cannot amount to “dealing” with materials. To “deal” with materials is to process, handle, move, store or dispose of the materials. The prosecutor had “manifestly failed” to articulate which manner of “dealing” with the explosives the emission of noise charge concerns. The complaint about the use of the 3.0m stemming length and fast timing could not “sensibly be said” to be about the processing of the explosives. Rather, it was a complaint about the design parameters of the blast concerning stemming height and timing.

467. I find established beyond reasonable doubt that the explosives nominated in the emission of noise charge are “materials” within the meaning of s 140(1), and that in stemming the blast holes with the materials nominated in the emission of noise charge using a stemming length of 3.0m, and in detonating those materials using fast timing, the defendant was “dealing” with materials within the meaning of s 140(1). I find established beyond reasonable doubt that the defendant dealt with the materials in or on the premises, and that as with the defendant’s submission in relation to the blast design being separate from the licensed activity (see my finding above at [348(6)]), it is likewise contrived and unrealistic to suggest that “to deal with” materials is separate from and excludes the blast design process.

Element three: did the dealing with the materials cause the emission of noise from the premises?

468. The Dictionary to the POEO Act defines “noise” to include “sound and vibration”. I am satisfied, as submitted by the prosecutor, that the “sound and vibration” resulting from the airblast overpressure and vibration that was recorded following the blast was “noise” for the purposes of the POEO Act.

469. In relation to element three of the emission of noise charge, the defendant submitted that an “insurmountable problem” for the prosecutor was that it could only be the firing of the blast that could be said to have created (or caused) the emission of noise. Again, the complaint the subject of the emission of noise charge was said to be a complaint about the design of the blast, and the design of the blast did not cause the emission of noise. I have addressed what I consider be the artificiality of that submission above at [467].

470. I find established beyond reasonable doubt that the vibration and airblast overpressure caused by the blast was “noise” within the meaning of the POEO Act, and that there was an emission of noise from the premises in that the measurements of sound and vibration were recorded outside the mine. I find established beyond reasonable doubt that the emission of noise was caused by the defendant’s dealing with the explosives in stemming the blast holes with the explosives and in detonating the explosives.

Element four: Whether the noise so caused, or any part of it, was caused by the defendant’s failure to deal with the materials in a proper and efficient manner

471. In relation to the offence against s 140(1), as submitted by the prosecutor, “the real question” is whether the prosecutor can prove that the emission of noise was caused by the occupier’s failure to deal with the materials in a “proper and efficient manner”.

Prosecutor’s submissions in relation to whether the noise so caused, or any part of it, was caused by the defendant’s failure to deal with the materials in a proper and efficient manner

472. The prosecutor relied on Dr Cameron’s evidence in which he explained that the combination of short stemming and fast timing resulted in a release of explosive energy in the form of airblast overpressure which caused the emission of noise. Dr Cameron’s evidence was that when explosives are detonated, they release energy in the form of a shock pulse and very high-pressure gases, stemming material holding the high-pressure gases in the rock mass for a period of time allowing the gas to break the rock. Dr Cameron opined that the 14% reduction in the stemming length that occurred when the stemming was reduced from 3.5m to 3.0m meant that there was less material confining the top of the explosives resulting in less time for the high-pressure gases to do work on the rock prior to venting into the air. When combined with the fast timing, there was a premature release in explosive energy into the atmosphere causing a large airblast to radiate outwards. It also gave rise to a large waste of explosive energy. That is why, Dr Cameron opined, the emission of noise was caused by the defendant’s failure to deal with the materials in a proper and efficient manner.

473. The prosecutor referred to Dr Aimone-Martin’s opinion that the explosive materials were handled in a “proper and efficient manner” because “the blast was designed with a 3.0m stem length and fast delay timing achieved the stated objectives of improved fragmentation, efficient and safe digging without damaging equipment and by protecting workers, and without exceeding airblast overpressure and vibration limits at the monitoring locations established in [the EPL]”. The prosecutor referred to and relied on Dr Cameron’s three reasons for rejecting Dr Aimone-Martin’s opinion, namely that:

1. the design did not meet an overriding provision of the Australian Standard (the first paragraph of section 4.1) because no consideration was given to the impact on personnel at the Boggabri coal mine;

2. the design resulted in high levels of airblast overpressure due to the sudden movement of the surface of the blast and the release of high-pressure gases, demonstrating that the design did not conform to the objective in the BLMP to “[e]nsure that operational blast vibration and overpressure from activities associated with the [mine] are minimised”; and

3. the early release of high-pressure gases is a waste of explosive energy because it is not moving and fragmenting the rock mass.

474. The prosecutor submitted that the third reason (the inefficient use or waste of explosive energy) also supported Dr Cameron’s conclusion that it was not correct to conclude, as Dr Aimone-Martin did, that the approach adopted achieved both compliance with the EPL and improved rock fragmentation. Dr Cameron opined that there were other options available to the defendant to achieve EPL compliance and to increase rock fragmentation, particularly where the defendant knew and was advised of the risks inherent in the course that was adopted, and did not seek advice from Dr McKenzie in relation to the risks to personnel at the Boggabri coal mine. Dr Aimone-Martin’s attention was drawn to the fact that the question she had been asked was whether the materials were dealt with in a proper and efficient manner generally, and that she was not directed towards the language of s 140(1) of the POEO Act, the relevant statutory provision. Dr Aimone-Martin accepted that she was not asked whether the emission of noise from the mine, or any part of it, was caused by the failure of the defendant to deal with the materials in a proper and efficient manner.

475. The prosecutor also referred to Dr Aimone-Martin’s acceptance that when she opined that the materials had been dealt with for the purpose of achieving rock fragmentation and “the safety of equipment and equipment operators”, her consideration of the safety of the equipment operators was limited to operators at the mine. She also appeared to accept that although the Coomalagah location is a sensitive site and there was a contravention of the blast noise limit in condition 18 of the EPA Act approval at that sensitive site, she did not consider it necessary to take this into account in forming her view that the materials were dealt with in a proper and efficient manner.

476. Further, the prosecutor referred to one of the other reasons given by Dr Aimone-Martin in concluding that the materials were dealt with in a proper and efficient manner, namely that the radiation of noise out from the blast was heavily skewed by the weather conditions at the time of the blast. The “conclusions to the contrary” in the Lewandowski reports were put to her in cross-examination, and although she accepted that she had made the same calculations as to the wind speed (which placed the meteorological conditions in the green category in the blast hazard analysis), she had come to the opposite conclusion as to the impact of the weather at the time of the blast. The prosecutor submitted that Dr Aimone-Martin “gave no explanation for coming to the opposite conclusion and her evidence on this point should not be accepted”.

477. In oral submissions, the prosecutor referred to the fact that the blast was originally scheduled for 19 August 2020, but was called off, and submitted that if the atmospheric conditions on 20 August 2020 were also such that the blast could not proceed, the blast should also have been called off. Further, the prosecutor submitted that the “atmospheric conditions relate to dispersion of the noise whereas importantly the charge relates to [emission] from the premises, so all the noise for the purpose of the s 140 charge is required to do is to pass the boundary of the premises in order for that element of the s 140 charge to be established”. Whether the noise is dispersed by atmospheric conditions or not was not relevant to the charge.

Defendant’s submissions in relation to whether the noise so caused, or any part of it, was caused by the defendant’s failure to deal with the materials in a proper and efficient manner

478. The defendant submitted that the prosecutor’s submission that Dr Aimone-Martin asked herself and answered the wrong question should be rejected because the question forms an element of the offence charged (namely “Did [the defendant] deal with materials (the Explosives as defined in the Summons 2021/234558 at paragraph a of the Particulars) in a proper and efficient manner?”).

479. The defendant submitted that the emission of noise charge, as particularised, recognises that the purpose of the blast was to break the caprock or overburden, and that proof of the charge is dependent on the proposition that this fragmentation purpose was not achieved. However, the “uncontroverted” evidence, accepted by Dr Cameron, was that the blast achieved the objective or breaking the caprock. In designing the blast, the defendant, in consultation with Dr McKenzie, had regard to:

1. the expected vibration and overpressure impact of the blast at the blast monitoring sites, recorded in the drill and blast design checklist as having been completed;

2. the presence of a biodiversity corridor near the mine which led to the inclusion of an additional delay for the last five rows of shot to avoid any material being thrown into the biodiversity zone (referring to Dr McKenzie’s record of interview);

3. maximising fragmentation of the caprock to ensure that it could be safely handled and removed from the mine by equipment and personnel; and

4. ensuring compliance with “the EPA operation and regulating conditions” (again referring to Dr McKenzie’s record of interview).

480. Between 14 and 18 August 2020, Dr McKenzie modelled the overpressure for the blast at each of the EPL monitoring points BM1 to BM4 using Paradigm Optimization Software to establish the optimal timing solution to minimise overpressure and vibrations, while optimising fragmentation. The modelling of ground vibrations at the monitoring locations used “a traditional linear regression model and power curve fit to data from past blasts”.

481. The defendant submitted that if opting for the design elements of 3.0m stemming and fast timing with electronic initiation constitutes “dealing” with the explosives, then the planning, and modelling undertaken by the defendant and Dr McKenzie demonstrated, as opined by Dr Aimone-Martin, that the defendant dealt with the explosives in a proper and efficient manner.

482. The defendant submitted that the prosecutor had failed to establish a causal connection between the noise caused by the blast and the alleged failure on the part of the defendant to deal with the explosives in a proper and efficient manner. The charge as particularised was submitted not to be a charge that the explosion was louder than it might otherwise have been by reason of the defendant opting for 3.0m stemming and the fast timing, rather it was an allegation that this manner of dealing with the explosives caused “all of the noise of the explosion”.

Consideration of, and conclusions in relation to the emission of noise charge

483. In relation to the emission of noise charge, it is true that Dr Cameron agreed that the objectives of the improvement of fragmentation and compliance within the limits for noise at the monitoring locations were achieved. Dr Cameron also accepted that he did not have or profess to have any medical qualifications or qualifications as an acoustic engineer, and that he has no expertise in relation to the assessment of the level at which it might be expected that humans would be discomforted by noise.

484. However, I find established beyond reasonable doubt each of the elements of the emission of noise charge.

1. I have found that the defendant was the occupier of the premises at all relevant times.

2. I have found that the explosives particularised in the emission of noise charge are materials within the meaning of s 140(1) of the POEO Act, and that those materials were dealt with in or on the premises.

3. I have found that the dealing with the materials caused the emission of noise from the premises. The noise so emitted was registered or heard at the EPL monitoring points, as well as at the Coomalagah monitor, the Tarrawonga monitor, the Boggabri trigger unit, Wilberoi East, Goonbri East, by Mr Byrnes and Ms Severin at the Boggabri coal mine, and by Mr Kereopa, Ms Louis, Ms Druce and Ms Westlake at their respective private residences.

4. I find established beyond reasonable doubt that the emission of noise so caused was caused by the defendant’s failure to deal with the materials in a proper and efficient manner for the following reasons:

1. The manner of dealing with the explosives did not meet section 4.1 of the Australian Standard which requires that all blasts shall be planned and designed to achieve the required outcome with first consideration by the defendant being the protection of persons, property and the environment, and that before the commencement of any blasting operation an investigation of the site and its environs shall be carried out, identifying any potential hazards/risks. There was no consideration of the safety of persons at the Boggabri coal mine where personnel were less than 3000m from the blast and where an airblast overpressure level of 135.6dBL was recorded at the Boggabri trigger unit, or at the Tarrawonga monitor or at the Coomalagah monitor, a sensitive site located approximately 12.5km from the blast, at which an exceedance of the blast noise limit of 120dBL provided for in condition 18 of the EPA Act approval (namely, 125.4dBL) was recorded (see Dr Aimone-Martin’s graph reproduced at [219] above and the table at [288]).

1. As I have found in relation to the timing charge, stemming length charge and overloading charge, no modelling was conducted to the south of the mine, the Boggabri coal mine being located less than 3km to the south, and the closest blast monitor (BM3) being located approximately 7.5km from the blast, contrary to cl 3.1 of the BLMP which specified requirements in relation to the minimisation of the likelihood of significant blast impacts to neighbouring receivers including by considering expected offsite vibration levels.

2. Contrary to the defendant’s submission, I do not accept that the complaint the subject of the emission of noise charge ought be characterised as a complaint about the design of the blast. The complaint concerns the manner of dealing with the materials in or on the premises, here relevantly by handling the explosives in utilising 3.0m stemming and fast timing.

3. Further, I find that the manner of dealing with the materials resulted in high levels of airblast overpressure due to the sudden movement of the surface of the blast and the release of high-pressure gases. This does not conform with the objective in cl 1.4 of the BLMP to ensure that operational blast vibration and overpressure from activities associated with the mine are minimised.

4. The defendant’s expert Dr Aimone-Martin was not directed to the language of s 140(1) of the POEO Act. Further, her evidence generally in relation to the emission of noise charge was unforthcoming and unhelpful. In particular, her evidence in relation to the weather conditions at the time of the blast was contradictory and unclear. I do not accept the atmospheric conditions which prevailed on 20 August 2020 as relevant to the emission of noise charge. Logically, as the prosecutor submitted, as the blast was called off on 19 August 2020 due to poor atmospheric conditions, it also ought to have been called off on 20 August 2020 if Dr Aimone-Martin’s opinion in relation to the significance of atmospheric conditions on 20 August 2020 were to be accepted.

5. That breaking the caprock or overburden was achieved on 20 August 2020 is no defence to the allegation that the defendant dealt with the explosives in such a manner as to cause the emission of noise from the premises and that the noise so caused or any part of it was caused by the occupier’s failure to deal with the explosives in a proper and efficient manner. There is a myriad of ways in which the breaking of caprock or overburden can be achieved in such a manner as to cause the emission of noise, other than in a proper and efficient manner.

6. Nor do I accept as sensible the defendant’s submission that the prosecutor could not prove that the noise in the form of sound and vibrations resulting from airblast overpressure was caused by the 3.0m stemming and the fast timing. I have found above at [484(3)] that dealing with the explosives caused the emission of noise from the premises and that emission of noise was registered or heard at the EPL monitoring points, as well as at the Coomalagah monitor, the Tarrawonga monitor, the Boggabri trigger unit, Wilberoi East, Goonbri East, by Mr Byrnes and Ms Severin at the Boggabri coal mine, and by Mr Kereopa, Ms Louis, Ms Druce and Ms Westlake at their respective private residences. For the purposes of deciding whether the prosecutor has established beyond reasonable doubt the fourth element of the s 140(1) offence, it is unnecessary to be satisfied that actual harm was caused to human health.

Conclusions and orders

485. The prosecutor has requested that no final orders be made today, 4 October 2024, in order to allow it to consider its position in relation to any application pursuant to s 5AE of the Criminal Appeal Act. Accordingly, I will stand each summons over until 31 October 2024 at 4pm for the entry of final orders.

The timing charge

486. In proceedings 2021/234554, the Court makes the following orders:

1. Maules Creek Coal Pty Ltd ACN 140 533 875 is guilty of an offence against section 64(1) of the Protection of the Environment Operations Act 1997 (NSW).

2. The proceedings are listed before the list judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

The stemming length charge

487. In proceedings 2021/234556, the Court makes the following orders:

1. Maules Creek Coal Pty Ltd ACN 140 533 875 is guilty of an offence against section 64(1) of the Protection of the Environment Operations Act 1997 (NSW).

2. The proceedings are listed before the list judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

The overloading charge

488. In proceedings 2021/234557, the Court makes the following orders:

1. Maules Creek Coal Pty Ltd ACN 140 533 875 is guilty of an offence against section 64(1) of the Protection of the Environment Operations Act 1997 (NSW).

2. The proceedings are listed before the list judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

The emission of noise charge

489. In proceedings 2021/234558, the Court makes the following orders:

1. Maules Creek Coal Pty Ltd ACN 140 533 875 is guilty of an offence against section 140(1) of the Protection of the Environment Operations Act 1997 (NSW).

2. The proceedings are listed before the list judge to obtain a date for the sentence hearing and to make appropriate directions in preparation for the sentence hearing.

Summonses stood over for the entry of final orders

490. In each of the proceedings:

1. The summonses are stood over until 31 October 2024 at 4pm for the entry of final orders.

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Endnotes

Decision last updated: 04 October 2024