Wall v Hamcor Pty Ltd
[2011] QPEC 97
•9 June 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Wall v Hamcor Pty Ltd & Ors [2011] QPEC 97
PARTIES:
TERRY WALL
Director-General of the Environmental Protection Agency
(Applicant)V
HAMCOR PTY LTD ACN 010 141 429
(First Respondent)AND
WILLIAM MARTON HAYWARD
(Second Respondent)AND
DONALD CHARLES HAYWARD
(Third Respondent)AND
ANNA MARIE HAYWARD
(Fourth Respondent)AND
TERRENCE ARTHUR ARMSTRONG
(Fifth Respondent)FILE NO/S:
3154/06
DIVISION:
Planning and Environment
PROCEEDING:
ORIGINATING COURT:
Brisbane
DELIVERED ON:
9 June 2011
DELIVERED AT:
Brisbane
HEARING DATE:
19/05/2011
JUDGE:
Searles DCJ
ORDER:
As per the Order sought in paragraph 17 of the Respondents’ written submissions subject only to the deletion of the words “per day” in paragraph 2(e)(ii) and the substitution therefore of the words “every six hours”.
CATCHWORDS:
Contested variations of an order – Permissible rate of release of water from a site – Flow rate testing and sampling regimes
COUNSEL:
R Laidely for the Applicant
P Telford for the RespondentSOLICITORS:
Crown Solicitor for the Applicant
Paul Everingham & Co for the Respondent
The Respondents Hamcor are the Applicants in this application, the Respondents are The Department of Natural Resources. The application relates to a site situated at 42‑46 Magnesium Street, Nerangba and being Lot 69 on CP 867910 and Lot 101 of CP 895174. In August 2005 the Agricultural Chemical Plant situated on the site was almost completely destroyed by fire resulting in significant contamination of the Binary site dams on the property and adjacent state owned land (DERM site) and waterways Tributary D (the Creek).
On 25 October 2006 DERM filed an Originating Application against Hamcor seeking various Orders pursuant to ss 505 and 506 of the Environmental Protection Act 2004 (Act) including Orders limiting the ability of Hamcor to allow or permit stormwater to be released from the site.
Since that date, seven Orders have been made between 21 January 2007 by Her Honour Judge Kingham and 28 May 2010 by His Honour Judge Rackemann (May Order) which latter Order amended the Order of His Honour Judge Robin of 14 January 2010. The Order of 28 May 2010 by Rackemann DCJ gave Hamcor liberty to apply to seek a variation of the Orders in the event that Hamcor’s Remediation Action Plan (RAP) was not approved by ERA before 31 January 2010. It was not so approved until April or May 2010 and this application is brought pursuant to the liberty to apply provision.
Issues in dispute
Not all of the terms of the Order brought by Hamcor are in dispute. The three contested variations to the May Order are these:-
(a) An increase in the permissible rate release of water from the site dams from 20,000 litres/hour to 50,000 litres/hour (first variation);
(b) A relaxation of the flow rate testing and sampling regimes as follows:-
Flow rate test(i)
To change the current regime of testing flow rate discharge of storm water from the site dams into the local creek from before discharge, at three hourly intervals during discharge and immediately after discharge to a regime whereby the flow rate at the creek is tested at six hourly intervals and only during daylight hours; and
Sample taking(ii)
That the current regime of taking samples of water from the point of discharge before each discharge, at three hourly intervals during discharge and immediately after each discharge change to a regime whereby samples are taken upstream from the point of discharge once a day only
(second variation); and
Change to sampling and testing regime(c)
That the current regime prohibiting Hamcor from discharging storm water from a site dam until both a dam sample has been taken and tested, and the test results demonstrate compliance with the DERM discharge criteria to a new regime whereby Hamcor is permitted to immediately discharge the relevant storm water into the local creek notwithstanding that the test results have not been received, on the condition that any discharge would immediately cease if it transpired that the results, once received, did not comply with the discharge criteria (third variation).
Hamcor does not seek to vary the values currently prescribed in the agreed DERM Discharge Criteria nor seek to alter the effect of the dilution factor that applies for the purposes of the relevant discharge.
First variation – increase of discharge from 20,000 litres/hour to 50,000 litres/hour
Mr Allan Lee, environmental consultant and the Principal of Douglas Partners Pty Ltd, Environmental and Geotechnical Engineering Consultants, gave evidence in support of Hamcor’s application. He has been the project manager in relation to the subject site since late 2006. He gave evidence[1] that during the recent catastrophic 2010/2011 Queensland floods, Hamcor was pumping 120,000 litres/hour from the site and in so doing were just keeping up with the inflows. He said the total volume of all dams on site is approximately 3,500,000 litres. In his view, in the event of inflows of the order experienced in late 2010 and early 2011 the 20,000 litres/hour discharge is too low to cope with inflows of upwards of 100,000 litres/hour. He considers that an increase to 50,000 litres/hours discharge would significantly reduce the real prospect of uncontrolled releases from the site during extreme events as experienced in 2010/2011.[2]
[1] Affidavit dated 16 May 2011
[2] Ibid, paras 5, 11 and 12
Mr Lee further deposed to the availability to Hamcor of discharge into the large DERM dam adjacent to the site which has the capacity of 12 million litres but identified the following practical issues which arise in that regard:-
(a) Its future availability is doubtful given the notification by Crown Law to Hamcor’s solicitors by letter dated 24 May 2010 that the dam is to be de-commissioned prior to 31 January 2011[3];
[3] Ibid, Exhibit AL6
(b) DERM charges $3 per thousand litres to use the dam so that to empty site dams, assuming DERM dam receiving capacity, involves costs of approximately $10,500;
(c) The DERM dam release rate is 200,000 litres/day and can take up to 60 working days (3 months) to empty it once full; and
(d) Hamcor is charged by DERM each day during discharge to monitor the water release.
Response of DERM to first variation
DERM accepts that the Magnesium Street storm water infrastructure in question is sufficient to accept 50,000 litres/hour from Hamcor’s site,[4] however it opposes the increase of the discharge rate to that level. It sees that as an unacceptable increase in the environmental risk because of potential errors in toxicity calculations. It relies for that submission on the evidence of Dr Mortimer,[5] who identified two factors which, in his opinion, supported a discharge rate of 20,000 rather than 50,000 litres/hour. Firstly he said that 20,000 litres/hour may be a safer maximum rate of discharge given the design capacity of the available storm water drains infrastructure. He said to exceed that capacity could result in flooding of Magnesium Street, associated business premises and the rehabilitated DERM Remediation Site east of Magnesium Street with contaminated water. As I have said, it is now conceded by DERM that the storm water infrastructure is capable of accepting 50,000 litres/hour. That concession was obviously made in the light of Dr Mortimer’s concession that, having relied upon the design capacity of the infrastructure to found his conclusion, infact he had neither measured nor had any knowledge of its design capacity.[6] Further, Mr Lee had given evidence that during the 2010/2011 downpour there was no flooding in Magnesium Street.[7]
[4] DERM’s written submissions, footnote 7
[5] Affidavit Dr M R Mortimer, 19 May 2011, paras 2-5
[6] T1.95.25-29
[7] T1.14.1-25
The second factor relied upon by Dr Mortimer was that by increasing the discharge rate by a factor of 2.5 the joint toxicity of the mixture of contaminants in the discharge would, likewise, be increased by a factor of 2.5, assuming there was an error in calculating the rate of flow for dilution purposes or an underestimate of the joint toxicity of the mixture of contaminants in the discharge. That conclusion is entirely speculative as was Dr Mortimer’s evidence in relation to the first factor relied upon but abandoned by DERM.
DERM next relied upon Dr Mortimer’s oral evidence that a single sample taken from Hamcor’s large dam through the existing floating pipe system explained by Mr Lee would be unlikely to be representative of the toxicity of the water in the Binary site dam as a whole. Mr Lee gave evidence[8] that the pumping of water from the dam was facilitated by a pipe attached to a float in the large dam. According to Dr Mortimer it was likely that the toxicity concentrations in the dam would increase as the dam levels dropped during pumping because the pipe would be likely to suck up toxic sediments from the bottom of the dam as the water level dropped. At an increased discharge rate of 50,000 litres/hour Mr Lee said 1.5 million litres of water of unknown quality could be pumped into the creek in 30 hours as compared with 75 hours to achieve that volume at the present discharge rate of 20,000 litres/hour.[9]
[8] T1.40.40-50
[9] T1.46.1-60
The response of Hamcor to this toxicity argument of Dr Mortimer’s is to state the obvious, namely that it is entirely speculative. Mr Lee gave evidence that the testing of the rate of flow in the creek is, in his opinion, unlikely to give rise to error because it is not difficult and is undertaken using a specifically designed electronic meter which can be competently operated without any particular qualifications.[10] Further, Mr Lee said the toxicity of the storm water discharge has historically, almost without exception, fallen within the DERM discharge criteria agreed between the parties as appropriate.[11]
[10] T1.50.45-60
[11]T1.22.25-38
Conclusion re first variation
I prefer the evidence of Mr Lee to that of Dr Mortimer on this issue. It has some reality attached to it whereas the evidence of Dr Mortimer is entirely speculative.
Second variation – change of flow rate testing and sampling
Hamcor’s argument
Mr Lee gave evidence that, in his opinion, monitoring flow rates every three hours is excessive because the flow rate in the creek does not change quickly enough to warrant that. He said it usually takes one to two days to gradually reduce.[12] Exhibit 3 is an email communication between Mr Lee and his counsel, Mr Telford, sent on the eve of the hearing of this application on 19 May. In that email there are details of the flow rate of the creek from 18 April to 21 April reflecting the measurement of site rainfall on each of those days. It is said in the email that the measurement of the rate flow in that period was conducted every six hours and in the opinion of Mr Lee that adequately characterised its variability of flow. The monitoring using Mr Lee’s tape meter device was carried out on five occasions over two days, 20 and 21 April 2011 at 7 am, 1 pm and 8.30 pm on 20 April, and 6 am and 11.30 am on 21 April. They revealed that the width of the creek was constant at 8 metres and its depth varied from 0.8 m on 20 April to 0.7 m on 21 April. Although the email states that the measurement of the flow rate was conducted every six hours it will be seen from those times that on 20 April the time between the second and third monitoring was seven and a half hours and on 21 April the time between the first and second monitoring was five and a half hours. In any event, both were in excess of three hours. The monitoring showed that the flow volume over 20 and 21 April varied from 1,340 litres/sec at 7 am on 20 April to 1,040 litres/sec at 1 pm and 8.30 pm that day to 730 litres/sec at 6 am on 21 April, and 367 litres/sec at 11.30 am that day.[13] Hamcor says that that demonstrates the flow rate in the creek is easily capable of exceeding 1,000 litres/sec and that those levels do not drop quickly.
[12] Affidavit A. Lee dated 16 May 2011 para 13.
[13] See also Exhibit 3.
DERM’s response to second variation
Dr Mortimer says that[14] says that a minor creek in a small catchment, which the subject creek is, experiences fluctuations in flow rate as rain storms occur, particularly during periods of high rain, once the catchment becomes saturated. He says it is expected that short duration fluctuations in rainfall in the catchment will result in fluctuations in run-off and consequently in the flow rate of the creek. In his view, the more frequently the flow rate is measured, the more reliable will be the measured results as to actual flow rate. He considers a spot check every six hours is less reliable than one done every three hours and that an hourly rate would be even more accurate. He was not promoting a one hour rate but said the three hour measuring rate seemed to him appropriate.
[14] Affidavit 19 May 2011 paras 6-8.
As to the sampling frequency proposed by Hamcor of once per day, Dr Mortimer considers that it would seriously diminish the ability of the measured concentrations to represent the real life situation regarding mixing and dilution of contaminants discharged into the creek. He says that one sample over a 24‑hour period of discharge would be unreliable, as one data point cannot capture variations in the effectiveness of contaminant dilutions over the 24‑hour period. Further, he said no average or measurement of concentration variability over 24 hours of discharge is possible with a single measurement.
Dr Mortimer further points to an ability to obtain a sound statistically based comparison with criteria of acceptability such as the ANZECC trigger values of the measured concentrations in the creek relying upon one sample testing in 24 hours. He expresses the same concern in relation to the statistically based assessment of dilution targets.
Conclusion re: second variation
Neither party has put before me any evidence of extended observation and testing of the flow rate of the creek, the only evidence before me is that of Mr Lee in relation to the two‑day period 20 and 21 April. That is hardly a statistically strong basis for founding a conclusion as to the rate of the creek during variations in rainfall events. However, it does demonstrate that in circumstances of the rainfall there experienced the flow volume is well above the rate of 164 litres/sec, which is the danger level which Mr Lee is very conscious of. Dr Mortimer’s evidence was again of a speculative variety with no recorded data to support his theory. On balance, I have come to the view that the order should be amended to allow for the testing of the flow rate at six‑hourly intervals rather than three-hourly intervals.
As to the sample testing period, however, I am not persuaded that it should be limited to one test per day. It should be six‑hourly intervals as with the flow rate testing.
Third variation – discharge before compliant sample results known
Hamcor’s argument
Mr Lee gave evidence that the site is stable and static and the remediation works carried out over the past few years have cleaned it to the extent that its stormwater quality has regularly complied with DERM’s discharge criteria.[15] He said that the only exceptions to compliance were a few minor anomalies attributed to either uncontrollable external sources such as phosphorous in dust emissions from a nearby fertiliser factory or minor fluctuations in laboratory precision.[16] According to him the test sample taken and analysed before any water can be released from the dam can take up to two weeks to finalise, during which time the dam is quarantined. If any further water flows into the dam during that period the test must be abandoned and the process started all over again. Assuming, however, the test results are satisfactory and there has been no further inflows into the dam, the water can then be released at a rate of 200,000 litres per day which takes up to six or seven working days to discharge 1,500,000 litres. During this period the only repository for stormwater is the Gully Dam on the site, with a capacity of 1,500,000 litres. Mr Lee says that during this process, however, Hamcor is not able to pump water out of the Gully Dam and into the quarantine dams.[17]
[15] Affidavit 16 May 2011 para 7; Exhibit A L 3.
[16] Ibid para 4.
[17] Ibid para 8.
In Mr Lee’s view the most sensible and cost effective way of releasing stormwater would be to permit a process of sampling before and during the release as proposed by Hamcor. This would have the following consequences in his view:
(a) attempts to release water from the dam would not be thwarted by further inflow which would presently mean the abandonment of the sample testing process;
(b) there would be no risk to the environment based on the quality of the site’s stormwater in recent times which has been steady and predictable and is not expected to vary given the stable state and condition of the site. Any variations in stormwater quality are expected to be very small and consistent with previous results;
(c) it will significantly reduce the real prospect of uncontrolled releases of water from the site during events such as the 2010/2011 wet season; and
(d) it will greatly reduce the present costs incurred by Hamcor.[18]
[18] Ibid para 11.
DERM’s response
Dr Mortimer initially sought to attack the integrity of the testing process carried out by Hamcor so as to throw doubt on the test results.[19] He pointed to a variance in the level of metolachlor in the test results and said that the majority of the variations would be due to three causes:
[19] Affidavit paras 13-17.
(a) real differences in what was present in the sampled ponds from one sampling date to the next;
(b) different ponds were sampled at various times; and
(c) errors caused by poor sampling techniques and design.
He then went on to say there was no telling from the data which of the above causes resulted in the variations and to what extent. Next he criticised the labelling on the samples. He said that the set of concentration data relied upon by Hamcor was at best “sparse”.
Dr Mortimer then concluded that the overall quality of the sampling, which he considered inferior, may, in part, be reflected in the numerous inadequacies he identified in the documentation associated with the sampling such as:
(a) samples identified as trade waste rather than indicating the exact sampling point;
(b) incorrect bottles used to contain samples on each of the dates 4 May, 27 July, 13 August and 22 December 2010 (XX) a failure to take the sample handling protocol seriously; and
(c) inconsistencies in the change of custody documentation recording the sampling and delivery of sample.
Under cross-examination Dr Mortimer conceded that he did not know how the testing regime operated and had made no enquiries to ascertain that information before swearing his affidavit.[20] Irrelevant pages of his affidavit were withdrawn.[21]
[20] T1.105.1-19
[21] T.30.57-60
DERM submits that the present regime is more suitable and appropriate when regard is had to the holistic operation of the EP Act. It points to s 505 as being intended to remedy or restrain the commission of an offence against the Act but not intended to authorise the potential release of contaminated water because of a possible failure of infrastructure. It pointed to the evidence of Mr Lee in cross-examination where he said that the RAP works are to commence at the start of the dry season, which is imminent, and that those works have the potential to expose the stormwater system to previously unexposed areas of contamination. Accordingly careful management is required.
Conclusion re: third variation
At first blush it seems a little odd to allow the release of water into a stormwater system before its contamination level is known. However, in context, it seems tolerably clear to me that Hamcor is a responsible entity and has progressed a long way since the fire in bringing the subject site to its present stable condition. I find Mr Lee’s evidence persuasive. Again I find much of the evidence of Dr Mortimer speculative and I reject it. I propose that the May Order be amended as Hamcor seeks.
Accordingly the Order of the court will be in terms of the Order set out in paragraph 17 of Hamcor’s written submissions subject only to the deletion of the words “per day” in paragraph 2(e)(ii) and the substitution therefore of the words “every six hours”, the parties to submit the final draft to me for signing.
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