A Right To Information request by Mackay Conservation Group (MCG) has resulted in the release of previously secret documents which reveal that both Adani and the Queensland Government were well aware that water, containing high concentrations of pollutants, could be released from Adani’s Abbot Point coal terminal into the Great Barrier Reef World Heritage Area during Cyclone Debbie, in breach of even the special licence to pollute that the Department of Environment issued at the time.

After the cyclone Adani admitted to breaching its Temporary Emissions Licence (TEL) by more than 800% of the amount of coal polluted water allowed to be released into the Reef coast. Adani subsequently spent a year attempting to block the release of documents that would reveal what the company knew about the concentration of pollutants that could flow into the environment. In agreeing to release the information, the Right to Information Commissioner criticised Adani’s arguments for blocking the documents as “too speculative or conjectural to form a reasonably based expectation” that it could prejudice an ongoing investigation into a possible contravention of the TEL.

Despite a clear breach of Adani’s licence to pollute, it is now sixteen months since the cyclone and it appears that the Queensland government has failed to yet launch proceedings to prosecute Adani for unlawfully releasing coal polluted water into the Great Barrier Reef World Heritage Area. The latest advice from the Department is that it has until 7 September 2018 to launch a prosecution.

Meanwhile Adani is:

• challenging the Penalty Infringement Notice (PIN) of $12,190 for the breach and, as part of proceedings, was alleged to have submitted an altered laboratory report about the concentration of contaminants released to the marine environment;
• appealing the Queensland Environment Department’s decision to require that they carry out an environmental investigation as a result of the discharge during the cyclone into the Caley Valley Wetlands at Abbot Point, to look at causes and impacts
• seeking approval from the Queensland government to increase the amount of coal that goes through its Abbot Point Port by 10 million tonnes per annum, yet failing to ensure its terminal is more storm proof and likely to pollute.

The previously secret documents, released under RTI are here. The judgment by the Queensland Information Commission is here.

An extensive blog  on the pollution incident at Abbot Point, and how events unfolded, has been prepared by the Queensland Environmental Defenders Office and can be found here.

What happened

Licence to Pollute

As Category 4 Cyclone Debbie approached the Queensland coast in late March 2017, community members were racing to secure their homes and families. Meanwhile, Adani was racing to secure an increase in its licence to pollute. Adani’s Environmental Authority allowed the company to release pollutants into the environment at concentrations up to 30mg/L, but the documents released under RTI laws show Adani knew the concentration of contaminants in water stored on site greatly exceeded that value.

At 6.13pm on 27 March 2018, Adani was issued a Temporary Emissions Licence (TEL) by the Queensland Department of Environment and Heritage Protection (DEHP) at its Abbot Point Coal Terminal. The TEL enabled Adani to legally release suspended solids at a concentration of up to 100mg/L from a single location (W1) into the surrounding Caley Valley Wetlands environment. After the cyclone hit, Adani made an additional request to retrospectively amend this TEL, and at 6.37pm on 28 March, nearly six hours after Cyclone Debbie made landfall, the department issued an amended TEL to enable increased pollution from a second location (W2) directly towards the Great Barrier Reef World Heritage Area. See the map below

Several days after the cyclone, Adani sampled water at release point W1 (into the wetlands) and found that the concentration of pollutants was within the limit imposed by the TEL, however, no water samples were captured during the cyclone, so it is unclear what pollution occurred at the time. At release point W2 (into the Reef coast), Adani had installed rising stage sampling equipment that captured water as the discharge depth increased during the cyclone. Those samples showed that the concentration of sediment was 806mg/L, more than eight times the temporary limit.  It is unknown whether or not that sampling technique captured the highest concentrations that were actually discharged. There was also no monitoring of the total volume of contaminated water discharged.

Cyclone Debbie made landfall at approximately midday on 28 March 2017.  Four days later (1 April 2017) aerial photography was captured at Abbot Point that showed coal had flowed from the port’s stockpiles towards the Caley Valley Wetlands. Mackay Conservation Group notified the Queensland Environment Minister of this imagery on 9 April 2017 and requested details on how the wetlands would be rehabilitated and what prosecutions would be forthcoming.

Subsequently DEHP issued a media release that said Adani had advised the department of non-compliance with its TEL and warned that the company could face a fine of up to $3.8 million for an intentional breach of their licence. Ultimately, Adani was issued with a Penalty Infringement Notice (PIN) of $12,190 for this breach. Adani has challenged this penalty. During investigations it was alleged that Adani submitted an altered laboratory report.

Adani has also lodged an appeal in the Planning and Environment Court against the Queensland Environment Department’s decision to require that they carry out an environmental investigation as a result of the discharge into the Caley Valley Wetlands at Abbot Point, to look at the causes and impacts. The court has ordered mediation.

Right to Information Request

In April 2017, Mackay Conservation Group (MCG) submitted a right to information request regarding the decision-making process around the issuing of Adani’s TEL. The Department of Environment & Heritage Protection eventually agreed to release all the documents to MCG, apart from information identifying individuals.

Adani, in contrast, challenged the RTI. The company sought internal and external reviews of DEHP’s decision to release the documents to MCG. Adani wanted the Department to withhold five segments of information contained on four pages. Adani claimed that the release of the information would lead to intense public scrutiny and prejudice legal action against it. It claimed the Labor government was improperly colluding with the environment movement, influencing the government’s decisions about the company, and that the release of the information would prejudice the Department’s dealings with Adani.

Queensland’s acting Information Commissioner found in May 2018 that there were “no grounds on which access to the information may be refused”.  The Information Commissioner stated:

“I consider these expectations to be merely speculative or merely possible, rather than expectations for which real and substantial grounds exist” and

“I am unable to identify how disclosure under the RTI Act of the Information in Issue (which is not directly relevant to the issues in dispute) could give rise to a reasonable expectation that the Department or a court, in their decision-making processes, will somehow deny the applicant procedural fairness, thereby impeding the administration of justice.”

Adani ultimately decided not appeal the Information Commissioner’s decision and the documents were released to MCG.

Part of the information that Adani had sought to have suppressed included the highlighted words in this sentence:

“Releases from this location are small in volume however the TSS is always greater than 30mg/L (approx between 500+ to 900 from memory!) as this location is actually a sump and prior to any treatment process (a historical legacy discharge location).”

We now know that Adani was aware that the concentration of contaminants in the water that may be released from the site into the World Heritage Area was in the range of 500 to 900mg/L - well over the 100mg/L allowed by the TEL, which is consistent with the observation of 806mg/L in the limited samples collected during the cyclone.

Regulation

The community has been assured that Adani has had the strictest environmental conditions of all time imposed on it yet Adani has failed to put in place any of the necessary processes or infrastructure to prevent a serious breach of its environmental authority at Abbot Point. The requirements to monitor discharge into both the marine environment and wetlands are also inadequate to properly determine the potential for environmental contamination and harm.

Adani recently lodged an application to the Queensland government seeking to increase the amount of coal going through their existing Abbot Point Terminal 1 facility by 10 million tonnes per annum (Mtpa) from 50 to 60 Mtpa (open to public comment until 10 August 2018), despite the threat of pollution from recurrent cyclones and no requirement on Adani to improve its facilities to withstand this threat.

Adani operates its port in a part of Australia that is frequently subject to severe weather. Over the past five decades, 23 tropical cyclones have passed within 100km of the port, including Cyclone Debbie in March 2018. See the track map below showing these previous cyclones.

Adani should be prosecuted

Abbot Point port is within the Great Barrier Reef World Heritage Area which the Queensland Government has a special responsibility to manage in a way that protects its ecological values. It is now 16 months since the pollution event at Abbot Point and 15 months since the head of Queensland’s Environment Department said that Adani could face a fine of up to $3.8 million. Despite reasonable enquiries, we still have no evidence that the Queensland government intends to prosecute Adani over this serious breach of an environmental licence, releasing water polluted by coal into the Reef waters at W2. To date, the company has been issued with a paltry $12,190 fine that amounts to less than 0.005% of its 2016/2017 annual revenue at Abbot Point.

Background to MCG’s involvement in this issue

• Mackay Conservation Group alerted the Queensland Environment Minister to a possible pollution event at Abbot Point on 9 April 2017
• MCG coordinator, Peter McCallum, was invited by the Minister’s office to visit Abbot Point with Department officials in April 2017 to inspect the site in relation to the pollution incident - a good month after the Cyclone occurred.
• It took over a week after the Cyclone for the Department of the Environment to begin even the most basic survey.
• The site visit was very tightly managed by Adani and North Queensland Bulk Ports to stop MCG  gathering photographic evidence, despite an assurance before the visit that MCG would be able to take photos and collect samples.
• NQBP staff told MCG on entry that they could not take photos, collect samples or leave the group to explore the site. They warned that if MCG breached these conditions they would be immediately escorted off the site and deposited alone, on the side of the isolated Bruce Highway.
• The Queensland Coordinator-General also intervened and MCG were warned MCG could not collect samples or take photos of the sensitive Caley Valley Wetlands which are under his control.
• Despite this, it was clear there was still coal present in the Caley Valley wetlands. Mr McCallum saw sediments which appear to be laden with coal within the wetlands adjacent to Adani’s storm water system outlet.
• MCG has called on Adani to secure its coal terminal from storms and cyclones to avoid repeat pollution of the Reef coast and the Caley Valley Wetlands.