Wollongong Coal Limited (ASX Code: WLC) is an Australian mining business which owns and operates Russell Vale Colliery and Wongawilli Colliery in the Southern Coalfields Region of New South Wales.

The majority of Wollongong Coal shares are owned by Jindal Steel & Power (Mauritius) Limited. Jindal Steel & Power, a company listed on the Indian stock exchange, owns 100% of Jindal Steel & Power (Mauritius) Limited.

Wollongong Coal has applied for permission to expand mining at the Russell Vale colliery by further mining under the Cataract Reservoir water catchment area.

The following information about Wollongong Coal, submitted in a letter to the Federal Minister for Environment in relation to the EPBC Review for the Underground Expansion Project in February 2021, provides some background on this company.

Environmental History of Wollongong Coal vis a vis Russell Vale (EPBC Ref: 2020/8702)

• Introduction
• Summary
• Proponent’s declaration to Department of AWE
• Wollongong Coal’s Conduct
• EPBC Environmental History Test
• Conclusion
• Appendices

Introduction

This document is submitted in relation to Wollongong Coal’s ‘environmental history’ assessment for the purposes of the EPBC Act.

Wollongong Coal owns two coal mines in the Illawarra, NSW at Russell Vale and Wongawilli. On 8 December 2020 Wollongong Coal received approval from the NSW IPC to extract up to 3.7-million tonnes of coal over five years using bord-and-pillar mining at the Russell Vale Underground Expansion Project. Wollongong Coal is also currently seeking approval to extend the life of its Wongawilli mine until 31 December 2025 (approval for this mine lapsed on 31 December 2020). Wollongong Coal has been majority owned by Jindal Steel and Power since late 2013.

Lock the Gate Alliance and Illawarra Residents for Responsible Mining (IRRM) have written this submission to assist the Department and the Minister to assess Wollongong Coal’s ‘environmental history’ for the purpose of making a decision about EPBC Ref: 2020/8702 under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). In particular we would like to advise on Wollongong Coal’s non-compliance with specific legislation, a trust deficit on part of the Illawarra community, and breaches of planning conditions and community expectations.

Under subsection 136(4) of the EPBC Act, the Minister may have regard to a person’s environmental history when considering whether to grant an approval to that person for the taking of an action and/or attach conditions to that approval.

Summary

The following advice concludes that upon the whole of the material with which this advice is based, there is a prima facie case that Wollongong Coal’s conduct, as a miner of coal in the Illawarra NSW, and the holder and applicant of relevant authorisations under NSW and federal law, is of sufficient significance and relevance to enable the decision maker to come to the reasonable conclusion that Wollongong Coal is not a suitable person to be granted an approval, having regard to their history in relation to environmental matters under the EPBC Act. In summary, Wollongong Coal does not have a satisfactory record of responsible environmental management and compliance with environmental laws as required by regulation 5.03A(1)(e) of the EPBC Regulations.

The whole of the material evidences substantial non-compliant conduct on part of Wollongong Coal ranging back to 2016, which is significant in substance and presents as being on an increasing trajectory rather than one of improvement. Further, that the integrity of Wollongong Coal suffers by way of a lack of trust from the community within which it operates, as described by a motion passed by Wollongong City Council in 2020 (see pages 8 and 9 of this advice for an overview of Council’s position and Appendix 3 for more detail).

The NSW DPIE’s final assessment report for the Russell Vale Expansion found that during the EIS public consultation, comments asserting that Wollongong Coal is not a fit and proper operator were the most commonly raised concerns about this development:

The key issues raised in public submissions objecting to the project are summarised in Figure 7 below. The primary concerns related to:

• whether WCL is a fit and proper operator, including the history of non-compliances and concerns about the financial status of the company;
• mining in a water catchment area and impacts to water resources; and
• climate change and greenhouse gases.

Figure 7 | Issues raised in community and special interest group submissions objecting to the project 

The NSW Independent Planning Commissions acknowledged community concerns on this issue in their Statement of Reasons for approving the Russell Vale Expansion:

The Commission received public submissions regarding the Applicants regulatory compliance history and suggesting that the Applicant was not a fit and proper person in respect of the Project. The Commission notes that there is no fit and proper person test in respect of development consents and that matters such as the identity of an applicant or past planning law breaches have been found to be irrelevant considerations for consent authorities such as the Commission. The planning law is concerned with land use, not the user. The Commission also acknowledges that the EP&A ACT contains open standing provisions regarding the enforcement of that Act such that any person may take proceedings seeking to remedy or restrain a breach. 

Whether Wollongong Coal is a suitable person, requires the decision maker to form such an opinion themselves. In NSW, the Independent NSW Resources Regulator is responsible for investigating any such claim that a miner is not a fit and proper person as the holder of mining rights to which the test applies. This submission encourages the Department of Agriculture, Water and the Environment to seek independent advice from the NSW Resources Regulator on this issue, as they have been examining the conduct of this company over many years.

There are two reasons why history in relation to environmental matters under the EPBC Act is particularly important in the case of Russell Vale: firstly, the proposed mining will take place around and up to the shores of the Cataract Reservoir in the Schedule 1 Special Areas of Sydney Water Catchment, a water supply upon which 5.5 million people of Greater Sydney rely; and secondly, Russell Vale is one of the closest collieries to a residential area anywhere in Australia.

As a company with a very poor record of compliance and environmental management, Russell Vale has a profoundly negative impact on the local community. Particulate and noise pollution is an ongoing issue. As Mr Michael McCarthy, a paramedic who lives close to the mine with his wife and two young children said at the Russell Vale IPC hearing, “the damage to the environment and people’s lives is permanent….  it’s sad and it’s disappointing and it’s scary and it’s going to affect us, ..personally, every single day.”  Furthermore, the miner’s failure to carry out required flood mitigation works on Bellambi Gully Creek put at risk more than wetlands and wildlife; water-borne coal flooding down from the colliery was a factor contributing to the devastation of Wollongong’s 1998 floods, which resulted in widespread destruction of property.

Proponent’s Declaration to Department of AWE

At Section 6 – ‘Environmental record of the person proposing to take the action’ of the EPBC Act referral for ‘2020/8702 – Russell Vale Colliery Revised Underground Expansion Project’, WCL provided the information below.

Prima facie, it appears that Wollongong Coal have provided false or misleading information. Under SECT 489 of the EPBC Act it is an offence to provide false or misleading information to obtain approval. On 27/07/20, WCL’s representative claimed that the company had never been the subject of “any past or present proceedings under a Commonwealth, State or Territory law for the protection of the environment or the conservation and sustainable use of natural resources”. In their most recent PER however (December 2020), WCL confess to a catalogue of prosecutions and proceedings against them.

In question 6.1 below Wollongong Coal failed to provide any information about their record of environmental management, stating instead that they believe they currently have “management structures in place to ensure environmental compliance”.

6.1 Does the person taking the action have a satisfactory record of responsible environmental management? Explain in further detail

WCL advise: “WCL is a public listed company on the ASX governed by a Board of Directors.

“WCL led by an experienced CEO that is supported by a Senior management committee and has management structures in place to ensure environmental compliance, including a monthly safety, health and environment compliance meeting and review.”

6.2 Provide details of any past or present proceedings under a Commonwealth, State or Territory law for the protection of the environment or the conservation and sustainable use of natural resources against either (a) the person proposing to take the action or, (b) if a permit has been applied for in relation to the action – the person making the application.

WCL advise: Nil

Furthermore, in the Draft Public Environment Report, Russell Vale Colliery Revised Underground Expansion Project (EPBC 2020/8702) FINAL December 2020, the proponent has included a Table entitled “Wollongong Coal NSW Compliance Matters” at Appendix O that does not fully represent the compliance history of Wollongong Coal Ltd.

The following matters are missing from the Table:

• 5 penalty notices issued by Resources Regulator for failure to pay rents and levies related to Russell Vale mine, October 2016
• 2 penalty notices issued by Resources Regulator for failure to pay rents and levies related to Wongawilli mine, October 2016
• Investigation by NSW Resources Regulator into whether the Company is fit and proper to hold mining licenses, May 2017 and still ongoing
• Investigation into “catastrophic failure” of diesel engine at Wongawilli and the lack of appropriate maintenance, testing and inspection that let to the failure, November 2017
• Prohibition notice issued by Resources Regulator for Wongawilli due to unsafe working conditions, April 2018
• Resource Regulator issues stop work order for Wongawilli over serious safety concerns, March 2019, and launches investigation, April 2019
• ASIC placed restrictions on Wollongong Coal over concern regarding overvaluation, March 2019
• Resources Regulator commences investigation over whether Wollongong Coal Ltd has the financial capacity to comply with obligations under Mining Act, April 2019
• Criminal charges brought against Naveen Jindal and four other officials of Jindal Steel and Power Ltd (JSPL) in the Indian Courts.  JSPL is the parent company of Wollongong Coal Ltd.

The following matters are incorrectly represented:

• The Compliance matters table states that the July 2020 fine for failing to comply with a Development Control Order was $3,000, when in fact it was twice that amount.

Wollongong Coal’s conduct

A summary of non-compliance

This report contains a schedule of non-compliance conduct pertaining to Wollongong Coal’s activities. The schedule is provided at the end of this advice at Appendix 1. The schedule of non-compliance relates to the activities and conduct of Wollongong Coal at two of its coal mining developments in the Illawarra, NSW, namely, Russell Vale and Wongawilli.

In summary the schedule of non-compliance provides that Wollongong Coal has been issued with at least 18 different penalty notices, fined a total of $95,750 and has been taken to court at least once by the NSW EPA and once by the Department of Planning and Environment. In addition, the NSW Department of Industry and Investment (DII) has conducted an investigation for the purposes of section 380A of the Mining Act 1992 to determine if Wollongong Coal is fit and proper to hold mining licenses. WCL has been the subject of multiple investigations, issued with Development Control Orders, Prohibition Notices, Enforceable Undertakings, stop work orders and has been found in breach of specific, relevant legislation on multiple occasions. The company has also had a conviction recorded in the Downing Centre Local Court. The non-compliance relates to the requirements imposed upon mining operators to protect the community, the environment and mine workers. These include:

1. failure to maintain and operate pollution control equipment leading to pollution of Bellambi Gully
2. illegal storage of waste
3. repeat breaches of mine procedures leading to shut down of the Wongawilli mine over serious safety issues in accordance with section 51 of the Work Health and Safety (Mines and Petroleum Sites) Act 2013
4. failure to pay rents and levies
5. failure to undertake works in accordance with the conditions of approval
6. failure to hold community consultative committee meetings
7. failure to comply with a Development Control Order (DCO) issued by the NSW Planning Minister at the Russell Vale Coal Mine.

Not only does Wollongong Coal have a record of serial non-compliance, some of the breaches have dragged on for years.  For example, Wollongong Coal was first penalised in October 2016 for failing to carry out the Bellambi Gully Creek flood mitigation works, which are intended to protect businesses, residents and ecosystems downstream of the colliery in the event of excessive rainfall.  They were again penalised in July 2020.  The required works have still  not been completed.

Significant concerns have been formally raised by Wollongong City Council

Relevantly, Wollongong Coal currently has an application before the Commonwealth Government seeking approval for the Russell Vale Expansion Project. Wollongong City Council objects to Wollongong Coal expanding its coal mine in its municipality. A local government authority is a significant stakeholder in matters such as mining in it’s municipality as it is a body with expertise in planning, environment, social and economic matters, is bound by a code of conduct and it is representative of its community. On 27 October 2020, Wollongong City Council wrote to the NSW Independent Planning Commission to formally object to the Russell Vale Expansion Project due in part to Council’s assessment that the company has a “poor track record” on compliance:

Council at it’s Ordinary Meeting of 26 October 2020 resolved to write to the Independent Planning Commission to object to the Russell Vale Underground Expansion Project on the basis of community concerns of increased heavy vehicle traffic, dust, noise, threat to the drinking water catchment, Aboriginal heritage sites and greenhouse gas emissions, as well as Wollongong Coal’s poor track record on workplace safety, debt servicing and operating compliance.

The letter was an outcome from a unanimous motion carried at a general Council meeting on 26 October 2020 which resolved to:

1. Write to the Independent Planning Commission to object to the Russell Vale Underground Expansion Project on the basis of community concerns of increased heavy vehicle traffic, dust, noise, threat to the drinking water catchment, Aboriginal heritage sites and greenhouse gas emissions, as well as Wollongong Coal’s poor track record on workplace safety, debt servicing and operating compliance. Council also requests that if the project is approved then the conditions should require:
   
   1. the completion of infrastructure at Russell Vale Colliery to protect residents from particulate and noise pollution before any coal is extracted
   2. the fulfilment of outstanding consent conditions of the 1989 and 1990 development approvals for Russell Vale mine operators, including the payment of security bond to Wollongong Council, the remediation of the Russell Vale Emplacement Area to an agreed final landform and the dedication of the parcel of golf course land to Council.
      
2. Write to the Planning Minister to seek reform of the Environmental Planning and Assessment Act to enable a Fit and Proper test of a proponent to be encompassed in the assessment process for state significant developments.

It should be noted that Council’s objection was the first and only objection it has ever made to a coal mining expansion in the Local Government Area, despite a long history of mining in the area.

WCL’s track record, ‘environmental history’ and a loss of community confidence

The right to mine coal in NSW is a ‘special privilege’ which our community expects both state and federal governments to regulate access to, in order to prevent harm to the community, other industries and the environment. An EPBC Act approval should only be granted to companies that can and will respect this ‘special privilege’. 

The proponent, Wollongong Coal, has a history of non-compliance when it comes to the conditions of consent. Wollongong Coal has been fined and issued with orders by multiple agencies, regulators and courts for offences including polluting Bellambi Gully Creek, “poor maintenance and operation” of infrastructure, failing to publicly disclose water monitoring data, failing to hold community consultative meetings and for stockpiling 200,000 tonnes of waste coal on Council land in breach of its development consent at Russell Vale. On 8 November 2017, a conviction was recorded in the Downing Centre Local Court for the failure of Wollongong Coal to pay annual rental fees and administrative levies under section 292C(3) of the Mining Act. In March 2018, the NSW EPA stated that “in recent years” Wollongong Coal “has demonstrated they cannot consistently manage and maintain pollution control equipment and plant on site”. 

In March 2018 the NSW Resources Regulator shut down the proponent’s Wongawilli operation due to a serious roof collapse leading to a determination that workplace safety issues were too serious for underground work to continue. The proponent also has a poor reputation with staff and Councillors at Wollongong City Council (see Appendix 3 below). relating to land dedication of the Russell Vale Golf Course, security bonds, remediation of a coal emplacement area and creek realignment. 

Wollongong Coal currently has debts which exceed its current assets by more than a billion dollars (AUD$1,089,243,000). Current auditors UHY Haines Norton noted in March 2020 that “a material uncertainty exists that may cast significant doubt on the Group’s ability to continue as a going concern and therefore, the Group may be unable to realise its assets and discharge its liabilities in the normal course of business.” In August 2020 Wollongong Coal delisted from the Australian Stock Exchange. Wollongong Coal was first suspended from trade on the Australian Stock Exchange in 2017 when it failed to lodge its half-yearly report. Wollongong Coal estimates rehabilitation of its Russell Vale mine would cost $215 million. The NSW Government holds a bond of just $12.4 million for the mine site. Since 2013 Wollongong Coal has paid $0 corporate tax. 

In India, the courts have determined that there is sufficient evidence for a criminal corruption case to be brought to trial against the majority owner of Wollongong Coal, Jindal Steel and Power (JSPL) and its chairman Naveen Jindal. In July 2019, Naveen Jindal and four other JSPL officials were charged under sections 420 (cheating) and 120-B (criminal conspiracy) of the Indian Penal Code. All have pleaded not guilty. JSPL, via a holding company, JSPL Mauritius, is majority shareholder in Wollongong Coal Ltd. Then Minister for Resources, the Honourable Don Harwin, described JSPL’s problems in India in response to a question in the NSW Parliament on 1 June 2017: “On 29 April it was announced that Jindal Steel and Power Limited, and one of its directors had been investigated by India’s Central Bureau of Investigation on potential criminal corruption charges. The courts in India decided that there was sufficient evidence for a case to be brought to trial. I am advised that no conviction of criminal corruption has been made at this stage.” 

The NSW Resources Regulator commenced investigation in mid-2016 into whether Wollongong Coal is a “fit and proper person” to hold a mining licence. The NSW Resources Regulator – under the NSW Mining Act – may choose to escalate action against Wollongong Coal in the event that convictions are recorded in India against significant individuals within JSPL.

Financial capacity to meet obligations

Since the current majority-owner JSPL took over the company in 2013, Wollongong Coal has failed to make a profit and has not paid any corporate tax. The company’s auditors routinely warn that the company may not continue as a ‘going concern’. In a June 2018 enforceable undertaking between the NSW DPE and Wollongong Coal it was revealed that the NSW DPE Secretary was “considering whether to suspend operations at WCL and WCPL given its concerns about the financial viability of WCL and WCPL.” The financial position of Wollongong Coal does not appear to have improved since that time.

Wollongong Coal has lost money every year since 2013 when JSPL acquired a majority stake in the company.

Table 1: Wollongong Coal – a loss-making business 

Source: Annual Report data 2014 – 2020

Auditors routinely warn that the company may not continue as a ‘going concern’

For every year since JSPL acquired a majority stake in the Wollongong Coal, auditors have warned that the company may not continue as a ‘going concern’. In March 2020 liabilities exceed current assets by $1,089,243,000.

In its half-year financial report covering the period until September 2014, WCL auditors Ernst and Young stated: “there is significant uncertainty whether the company will continue as a going concern 12 months from the date of this report”. The report also stated Wollongong Coal’s net current liabilities of $493 million far exceeded its market capitalisation of about $48 million (as at 8 April, 2015).

In 2020, the financial situation for WCL has significantly deteriorated. Current auditors UHY Haines Norton noted in March 2020 that WCL’s “current liabilities exceeded its current assets by $1,089,243,000”. UHY Haines Norton’s assessment is that “a material uncertainty exists that may cast significant doubt on the Group’s ability to continue as a going concern and therefore, the Group may be unable to realise its assets and discharge its liabilities in the normal course of business.”

Ongoing debt problem

WCL advised the ASX in their March 2020 Annual Report that net current liabilities were $1,089,243,000. With neither of their coal mines operational at this stage, the company has advised that “the expected principal repayment due on borrowings for the year ending 31 March 2021 is $64,232,215”.

NSW Planning Secretary considered suspension of operations

In a June 2018 enforceable undertaking between the NSW DPE and Wollongong Coal it was revealed that the Secretary was “considering whether to suspend operations at WCL and WCPL given its concerns about the financial viability of WCL and WCPL.”

The joint undertaking proposes to:

• Conduct independent reviews of systems and financial capacity at both companies, including a report to the Regulator on the findings of the reviews
• Pay all 2018 fees and levies within one month of the acceptance of the undertaking
• Pay all fees and levies for 2019 to 2022, one year in advance
• Provide $300,000 in bank guarantees to ensure future payments
• Pay two annual donations of $5,000 to a local charity or community group until 1 January 2023
• Lease Wollongong Coal Limited property to Little School Preschool Inc for $1 per annum, reduced from $26,000 per annum, until 1 January 2023
  

Further evidence of financial distress

In July 2020, Wollongong Coal advised that it would delist from the ASX sometime after 2.30pm on 18 September 2020. WCL notified the ASX of the following reasons why it applied to delist:

The key reasons for seeking removal from the official list are as follows:

1. WCL has been suspended from trading since december 2018;
2. There has been virtually no liquidity in WCL shares on the ASX or otherwise for a considerable period
3. WCL has been unable to use its listing on the ASX to raise fresh capital and to repair its balance sheet because of the low levels of liquidity and investor interest; and
4. The listing compliance costs are a significant burden to WCL and continuing to incur them serves no useful purpose and is no longer justifiable with securityholders.

EPBC ‘environmental history’ test

Under Section 136(4) of the EPBC Act, we understand the following applies regarding Wollongong Coal and their environmental history in relation to an application to expand their Russell Vale mine:

(4)  In deciding whether or not to approve the taking of an action by a person, and what conditions to attach to an approval, the Minister may consider whether the person is a suitable person to be granted an approval, having regard to:

(a)  the person’s history in relation to environmental matters; and

(b)  if the person is a body corporate—the history of its executive officers in relation to environmental matters; and

(c)  if the person is a body corporate that is a subsidiary of another body or company (the parent body)—the history in relation to environmental matters of the parent body and its executive officers.

The provisions of Chapter 4 of the EPBC Act that allow a person’s environmental history to be taken into account are expressed broadly. The provisions do not limit the information relevant to a person’s environmental history to the person’s past environmental criminal convictions or civil penalties awarded against them. Information relevant to the person’s environmental history is that which will indicate whether a person is likely to comply with the conditions of an approval.

Conclusion

For the reasons explained in this submission, Lock the Gate Alliance and Illawarra Residents for Responsible Mining Inc (IRRM) do not believe that Wollongong Coal has a satisfactory record of responsible environmental management and compliance with environmental laws. The performance of the company to date indicates that Wollongong Coal is unlikely to comply with conditions of an approval, should it be granted, therefore their application – EPBC Ref: 2020/8702 – should be refused.

Appendices

Appendix 1 – Schedule of Wollongong Coal’s Non-Compliance 

Appendix 2 – Schedule of parent company JSPL’s Non-Compliance 

Background – JSPL’s environmental history

The courts in India have determined that there is sufficient evidence for a criminal corruption case to be brought to trial against the majority owner of Wollongong Coal, Jindal Steel and Power (JSPL) and its chairman Naveen Jindal.

Here’s how the Minister for Resources at the time – Don Harwin – described the situation on 1 June 2017 in response to a question in the NSW Parliament: 

“On 29 April it was announced that Jindal Steel and Power Limited, and one of its directors had been investigated by India’s Central Bureau of Investigation on potential criminal corruption charges. The courts in India decided that there was sufficient evidence for a case to be brought to trial. I am advised that no conviction of criminal corruption has been made at this stage. The chief compliance officer of the NSW Resources Regulator approved a full review of Wollongong Coal’s fitness to hold an authority under section 380A of the Mining Act last year, and that review is ongoing.”

In July 2019 in India, newspapers reported that Naveen Jindal and four other officials of his company – Jindal Steel and Power Limited (JSPL) – were charged under sections 420 (cheating) and 120-B (criminal conspiracy) of the Indian Penal Code. Naveen Jindal, the company’s former director Sushil Maroo, former deputy managing director Anand Goyal, CEO Vikrant Gujral and the company’s authorised signatory D N Abrol were charged. All have pleaded not guilty. JSPL, via a holding company, JSPL Mauritius, is majority shareholder in Wollongong Coal Ltd. 

Over the years there have been many reports about the conduct and or the  environmental history of JSPL that should be considered by DAWE and the Minister when making a determination on the Russell Vale application – EPBC Ref: 2020/8702. In addition to the matters in Appendix 2 above, these include:

• Alleged human rights violations, environmental destruction and corruption in Mozambique at JSPL’s Chirodzi open cut coal mine (this mine is owned by JSPL Mozambique Minerals Limitada, a subsidiary of Jindal Steel and Power).
• In September 2014, the Indian Supreme Court cancelled about 200 coal blocks that the central government had allocated between 1993 and 2010. The court said the allocations were “arbitrary, illegal and amounted to unfair distribution of national wealth.” 11 of the coal blocks cancelled belonged to the Jindal group, 7 of which were owned by JSPL.
• In June 2013, the Sydney Morning Herald reported that the chairman of JSPL and former “chairman of the Australia-India CEO Forum, steel magnate and parliamentarian Naveen Jindal” had been charged with “allegedly paying bribes to government officials in order to buy coal blocks at below-market price.” According to the SMH:
  • Mr Jindal, was charged with “criminal misconduct, conspiracy and cheating”
  • “As part of the broader ”Coalgate” scandal … police have alleged that former junior coal minister Dasari Narayan Rao was paid kickbacks in exchange for allocating coal blocks at below-market cost to private Indian firms.”
  • “The police case reportedly alleges Mr Jindal’s company paid a bribe of 22.5 million Rupees ($410,000) to Mr Rao, in the form of an investment into Mr Rao’s own company, within a year of the mining minister awarding a coal block in Jharkhand to Mr Jindal. Police allege Mr Jindal bought shares in Mr Rao’s company, paying nearly four times what they were worth”.
  • “Mr Jindal’s company was the largest beneficiary of coal block allotments by the government between 2006 and 2009, acquiring 11 blocks, but he has maintained all were allotted on merit.“
• On 20 October, 2014, India’s Business Today reported that the Central Bureau of Investigation (CBI) had “registered another case against Jindal Steel Power in connection with the coal scam probe” alleging “cheating and corruption…This is the second case against the company…”
• On 30 April, 2015, the Indian Express published details of CBI’s charge sheet:
  • “The CBI Wednesday filed a chargesheet against former MP Naveen Jindal, former MoS for Coal Dasari Narayan Rao and former Jharkhand CM Madhu Koda in connection with the 2008 Amarkonda Murgadangal coal block allocation case.”
  • “The agency, in the chargesheet filed before special judge Bharat Parashar, has booked Jindal, Rao, Koda and 12 others under Sections 12 120B (criminal conspiracy) read with 420 (cheating) of the IPC and 13(2) read with 13(1)(d) of the Prevention of Corruption act.”
  • “Those charge sheeted include former coal secretary and chairman of 35th screening committee H C Gupta, Gyan Swaroop Garg, Suresh Singhal, Rajeev Jain, Girish Kumar Juneja, R K Saraf and K Ramakrishna Prasad. The companies that have been chargesheeted are Jindal Steel and Power Ltd (JSPL), Gagan Sponge Iron Pvt Ltd (GSIPL), Jindal Realty Pvt Ltd, Sowbhagya Media Ltd and New Delhi Exim Pvt. Ltd.”
• On 7 May 2015 the Indian Express reported that a special court had summoned Naveen Jindal along with 14 others in relation to allegations that “Jindal promised then chief minister Madhu Koda of Congress support to his unstable government” in exchange for a coal lease. Special judge Bharat Parashar said Jindal “manipulated the entire government machinery” since the charge sheet stated that a “company promoted by Dasari Narayan Rao received payment of Rs 2 crore from Naveen Jindal on account of undue favour shown by him in allocation of Amarkonda Murgadangal coal block to Jindal group of companies”.
• JSPL has been accused of coercion in resettlements in Raigarh, India, where villagers have also complained of adverse health impacts due to discharge of poisonous effluents by the plant.

In addition to the above, there is the unresolved issue of who was behind the criminal shooting of Ramesh Agrawal, Asia 2014 Goldman Environmental Prize Award winner. Mr Agrawal was shot in 2012, allegedly for his campaign against a JSPL proposed new coal mine which was the biggest of its kind in Chhattisgarh. According to the Goldman Environmental Prize, from 2008 onwards, Mr Agrawal organised opposition to the project highlighting Jindal’s “failure to hold mandatory public meetings and obtain environmental clearance” for its mine. The permits for the mine were revoked by India’s National Green Tribunal citing the violations described in Agrawal’s petitions.

Appendix 3 – Council objection to Mine Expansion

Background provided by Councillor Blakey to the Item 22 Notice of Motion – Mine Expansion in the Cataract Drinking Water Catchment

The following is an extract from Council Business Paper 26 October 2020, pgs 716-718

“The proposed Russell Vale Colliery Underground Expansion Project is an extension application for bord-and-pillar extraction within the Cataract Reservoir catchment. If approved, the project will also activate permission to longwall mine the remaining 25 metres of longwall 6. The project aims to extract 3.7 million tonnes of run-of-mine coal over a five-year period from the Wongawilli Seam beneath the Bulli and Balgownie seams which have already been extracted. Approximately 50% of the material to be extracted is high quality metallurgical coal, 25% is thermal coal and the remaining 25% is other rock. The metallurgical and thermal coal is destined for overseas markets, being sold by the proponent, Wollongong Coal, to their parent company, Jindal Steel and Power Ltd, India. 

The Russell Vale Expansion Proposal is identified as

• Generating noise and dust from the new coal processing plant and 2 new coal stockpiles very close to residents
• Adding 34 truck movements per hour between the mine and Port Kembla coal terminal
• Requiring a license to release mine-affected water into Bellambi Gully Creek with exceedance of the ANZG (2018) default guideline values for freshwater aquatic ecosystems (95% species protection level) for copper, zinc and nickel 
• Occurring under significant Aboriginal Heritage sites with rock shelter with art, grinding groves along water courses and camp sites 
• Generating 304,600 tonnes of C02-e greenhouse gas emissions
• Blocking public access to the Lower Escarpment Fire Trail adjacent to Brokers Nose. 

The mine operates underneath the catchment of the Cataract Reservoir. This is located within the Metropolitan Special Area, a restricted-access area designated to protect Sydney and Illawarra’s drinking-water catchments. 

The project is on the Woronora Plateau which supports groundwater-dependent ecosystems such as Coastal Upland Swamps in the Sydney Basin Bioregion. These swamps are listed as Endangered Ecological Communities under the Environment Protection and Biodiversity Conservation Act 1999 and the New South Wales Threatened Species Conservation Act 1995. Where upland swamps are impacted by subsidence, they dry out and increase the bushfire fuel load in the Illawarra Escarpment. 

The NSW Department of Planning, Industry and Environment referral states the project is “approvable, subject to strict conditions of consent”. The Independent Planning Commission is currently considering the matter with the deadline for written submission being 5pm Tuesday 27 October 2020. The proponent, Wollongong Coal, has a history of non-compliance when it comes to the conditions of consent. Wollongong Coal has been fined and issued with orders by multiple agencies, regulators and courts for offences including polluting Bellambi Gully Creek, “poor maintenance and operation” of infrastructure, failing to publicly disclose water monitoring data, failing to hold community consultative meetings and for stockpiling 200,000 tonnes of waste coal on Council land in breach of its development consent at Russell Vale. On 8 November 2017, a conviction was recorded in the Downing Centre Local Court for the failure of Wollongong Coal to pay annual rental fees and administrative levies under section 292C(3) of the Mining Act. In March 2018, the NSW EPA stated that “in recent years” Wollongong Coal “has demonstrated they cannot consistently manage and maintain pollution control equipment and plant on site”. 

In March 2018 the NSW Resources Regulator shut down the proponent’s Wongawilli operation due to a serious roof collapse leading to a determination that workplace safety issues were too serious for underground work to continue. In dealings with Wollongong City Council, Wollongong Coal has also a long-standing practice of obfuscation in relation to land dedication of the Russell Vale Golf Course, security bonds, remediation of the emplacement area and creek realignment. 

Wollongong Coal currently has no income and debts which exceed its current assets by more than a billion dollars (AUD$1,089,243,000). Current auditors UHY Haines Norton noted in March 2020 that “a material uncertainty exists that may cast significant doubt on the Group’s ability to continue as a going concern and therefore, the Group may be unable to realise its assets and discharge its liabilities in the normal course of business.” In August 2020 Wollongong Coal delisted from the Australian Stock Exchange. Wollongong Coal was first suspended from trade on the Australian Stock Exchange in 2017 when it failed to lodge its half-yearly report. Wollongong Coal estimates rehabilitation of its Russell Vale mine would cost $215 million. The NSW Government holds a bond of just $12.4 million for the mine site. Since 2013 Wollongong Coal has paid $0 corporate tax. 

In India, the courts have determined that there is sufficient evidence for a criminal corruption case to be brought to trial against the majority owner of Wollongong Coal, Jindal Steel and Power (JSPL) and its chairman Naveen Jindal. In July 2019, Naveen Jindal and four other JSPL officials were charged under sections 420 (cheating) and 120-B (criminal conspiracy) of the Indian Penal Code. All have pleaded not guilty. JSPL, via a holding company, JSPL Mauritius, is majority shareholder in Wollongong Coal Ltd. Then Minister for Resources, the Honourable Don Harwin, described JSPL’s problems in India in response to a question in the NSW Parliament on 1 June 2017: “On 29 April it was announced that Jindal Steel and Power Limited, and one of its directors had been investigated by India’s Central Bureau of Investigation on potential criminal corruption charges. The courts in India decided that there was sufficient evidence for a case to be brought to trial. I am advised that no conviction of criminal corruption has been made at this stage.” 

In the NSW Department of Planning, Industry and Environment final assessment report on the Russell Vale Expansion Project it states that a “fit and proper test is not a requirement under the EP&A Act and is an irrelevant consideration for a consent authority when making a determination on a development application”. 

The “Fit And Proper” test is within the Protection of the Environment Operations (POEO) Act which governs the Environmental Protection Agency (EPA) and awards pollution licenses, and the Mining Act through which the NSW Resource Regulator awards mining leases. However, these agencies have rarely denied an operating license or lease on the Fit and Proper test. To do so would likely be contested through the courts. 

The NSW Resources Regulator regulates the mining leases on the basis that the right to mine coal that belongs to the people of NSW is a “special privilege” which our community expects the government to regulate to “prevent harm to the community, other industries and the environment”. The regulator’s ‘Fit And Proper Person Policy’ requires that the right of exploration and mining is “only conducted by companies that can and will respect that privilege”. The NSW Resources Regulator commenced investigation in mid-2016 over whether Wollongong Coal is a “fit and proper person” to hold a mining licence. In July 2020, the Illawarra Mercury reported that the state’s mining regulator had “quietly shelved” this investigation, saying there was “insufficient evidence to support a finding that the company is not a fit and proper person”. It appears that the NSW Resources Regulator – under the NSW Mining Act – may choose not to escalate action against Wollongong Coal unless convictions are recorded in India against significant individuals within JSPL. 

A review of the evidence already in the public domain causes great community concern over whether Wollongong Coal should be granted further rights to mine in NSW.”