MOUNT Arthur Coal will pay more than $100,000 in penalties and costs after a toxic blast fume affected 14 people in a Muswellbrook industrial estate only hours after warnings a fume incident could occur.
The BHP Billiton company was convicted of an offence under the Protection of the Environment Operations Act in the NSW Land and Environment Court on Thursday after workers at the industrial estate were ‘‘surrounded by an orange fog’’ on February 19 last year.
Mount Arthur Coal conceded the level 5C blast fume – the highest level under a visual grading system – was ‘‘foreseeable and foreseen’’.
‘‘There’s no doubt it was reasonably foreseeable this blast could give rise to a blast fume. That’s not disputed,’’ said barrister Tom Howard, SC, for BHP after evidence that Mount Arthur knew by 7am on the day of the blast that a level 3 fume was possible because of wet conditions and the length of time explosives had been in the ground.
‘‘The company’s embarrassed that the incident occurred and very sorry there were people affected by this fume,’’ Mr Howard said.
It occurred only months after Mount Arthur was issued penalty notices for three blast incidents leading to excessive dust.
The fume that left the mine site in February last year contained nitrogen oxides, which the court heard had "potentially serious impacts on human health", was the result of a blast at 2.25pm using explosives that had been in the ground for three weeks.
The court heard a sudden wind shift within seconds of the blast sent a dramatic deep orange red fume high into the air that was swept towards Thomas Mitchell Drive and Muswellbrook industrial estate.
Land and Environment Court Justice Nicola Pain read statements from workers at the estate who "heard a loud noise, like thunder", before seeing the thick orange to red fume that "rolled across" and carried with it a "gunpowder, acid smell" that was strong and acrid.
Some workers quickly drove away from the site while others went indoors, turned air conditioners off, shut windows and put dust masks on.
Fourteen people complained of symptoms ranging from sore throats, eyes and noses, to a headache and cold-like symptoms.
"It was quite a significant fume event," solicitor Andrew Macdonald for the NSW Environment Protection Authority told the court.
"The defendant had predicted there would be blast fumes to a level 3, and the defendant was also aware the industrial estate was nearby."
The mine's general manager, Xavier Wagner, and BHP NSW senior executive Peter Sharp contacted 25 businesses at the industrial estate to advise them of the incident and offer apologies and support, the court heard.
The company also contacted relevant authorities as soon as the incident occurred, issued a media statement apologising for the fume event, and pleaded guilty to an environmental crime at the earliest opportunity, the court heard.
Mount Arthur became the first company to face a possible maximum $1 million fine since the maximum penalty under relevant environment protection legislation was lifted from $250,000 in 2006.
The possible $1 million penalty was an indication of the seriousness with which Parliament treated the offence, Mr Macdonald said.
Mr Howard for BHP told the court while the company expected a substantial fine, it was a "good corporate citizen" and member of the community that had not blasted the explosives for three weeks because of concerns about risks.
"It had taken a calculated assessment when to fire or not to fire in relation to the wind. It had good risk assessment systems in place that it has improved after this event," Mr Howard said.
Justice Pain accepted the company did not deliberately cause the fume event but it caused "actual environmental harm". She ordered the company to pay Muswellbrook Shire Council $58,500, by way of a penalty, to help fund its 2016 wood smoke reduction program.
Justice Pain reduced the initial penalty of $90,000 by 35 per cent because of the company's guilty plea and ready acceptance of responsibility. Justice Pain ordered the company to pay $30,000 for the EPA's legal costs. Mount Arthur must also make a public statement in four Hunter publications, including the Newcastle Herald, acknowledging the conviction and details of the fume event.
Justice Pain noted the company had introduced a range of improvements after the event and accepted it was unlikely to reoffend.
Story from the Newcastle Herald
