NSW Resources Regulator has accepted an Enforceable Undertaking from Mt Arthur Coal Pty Limited valued at $1,090,750 following its investigation into a serious safety incident at BHP Billiton's Mt Arthur Coal Mine near Muswellbrook in August 2017.
This decision has been criticised by Muswellbrook Council who said the mining company should have been prosecuted and called on the State Government to withdraw the licence for BHP Billiton to operate in NSW.
The incident involved a 29-year-old contract worker who was covered in diesel fuel and running for his life with part of his body alight as black smoke poured from flames in a refuelling area.
An investigation report found the worker selected an 800 litres per minute adapter rather than a 300 litre one while refuelling a tyre handling machine because the fittings were the same colour and poorly labelled.
Within seconds the fuel nozzle was ejected and "flung around under pressure", with diesel fuel flowing at a peak of 791 litres per minute after 18 seconds, before a "flame flashed back towards the worker" after diesel came in contact with engine parts estimated to be more than 300 degrees Celsius.
Chief Investigator Steve Orr said the investigation found a worker suffered serious burns to his face, neck, torso and arms as the result of a diesel fire that started while he was refuelling a tyre handler at the mine's heavy vehicle refuelling facility.
"This is the highest value mining work health and safety undertaking accepted in NSW to date. It will deliver significant engineering improvements at the mine, industry training and vital monetary support for the region's Rural Fire Service.
"The Regulator accepted the Enforceable Undertaking as it will deliver tangible benefits to the workforce and community that could not be achieved through prosecution action alone."
Mr Orr said lessons from the investigation have been shared widely with the mining industry using digital animations to demonstrate exactly how the incident happened as a prevention tool.
"These animations are the first of their kind to be developed by a work health and safety regulator anywhere in Australia and are aimed at helping the industry address safety issue," Mr Orr said.
The Regulator has also commenced prosecution proceedings against Otraco International Pty Ltd for an alleged breach of the Work Health and Safely Act 2011 (the Act) arising from its investigation into the incident. The matter has been set down for first mention in the District Court of NSW on 16 September 2019.
As the matter against Otraco is now before the court, the Resources Regulator is unable to make further comment.
Commenting on the outcome Muswellbrook Council said they extended their deepest sympathies to the affected worker, his family, his friends and work colleagues and to the CFMMEU.
However, Council was scathing in its opinion that the NSW Resources Regulator accepted an enforceable undertaking from Mt Arthur Coal Pty Limited in substitution of a criminal prosecution for a serious workplace incident at its Muswellbrook coal mine, the Council said in a statement.
"BHP Billiton has what can only be described as an appalling history of statutory offending in the Muswellbrook Shire. BHP Billiton's most recent statutory offence was only last week with yet another breach of its conditions of planning consent and its environmental protection licence. A history of BHP Billiton's environmental incidents and offending within the Shire of Muswellbrook is attached," the statement said.
"The penalty, in truth, is just $200,000 -- a penalty that the NSW Resources Regulator, somewhat incredulously, refers to as a "donation".
Council repeats its view that the State Government should withdraw the licence for BHP Billiton to operate in NSW and should put in train enforceable steps for the transfer of the coal mining operation to a company that can operate in demonstrable compliance with the State's laws.
It does nothing for the credibility of the Resources Regulator to suggest the penalty is in excess of $1m when it patently isn't. It does nothing for the credibility of the Resources Regulator to describe the $200,000 payable to the Rural Fire Service as a "donation" whilst holding out that it relied upon that amount as constituting a penalty.
Council said the decision by the Resources Regulator not to proceed with a criminal prosecution and conviction means that an important consideration of public deterrence can now never be explored. The decision should rightly be criticised and condemned.
