20 January 2020

Hon Matt Kean MP

Minister for Energy and Environment

By email only: office@kean.minister.nsw.gov.au

Dear Mr Kean

National Environment Protection Measure for Ambient Air Quality – Monitoring Plan for New South
Wales

We act on behalf of the Hunter Environment Lobby and refer to the email of Mr Matthew Riley the Director
of Climate and Atmospheric Science, Environment, Energy and Science Group dated 8 January 2020, sent
on behalf of yourself and Mr Jim Betts.

In his communication, Mr Riley advises, that contrary to the representations made in the National
Environment Protection Measure of Ambient Air Quality, Monitoring Plan for NSW dated June 2001 (the
Monitoring Plan) that no decision was made by New South Wales, to consider the Upper Hunter Region as
two distinct sub-regions for the purpose of the National Protection Measure (Ambient Air Quality) Measure
(the NEPM AAQ).

By virtue of the section 21 of the National Environment Protection Council (New South Wales) Act 1995
(NSW) and section 21 of the National Environment Protection Council Act 1994 (Cth) the NEPM AAQ is a
legislative instrument. As a registered legislative instrument it is capable of creating legally enforceable
rights and obligations.

Section 3 of the NEPM AAQ requires New South Wales to monitor, assess and report a range of indicators
in accordance with the protocol contained in the NEPM AAQ. Section 3 of the NEPM AAQ prescribes a
mandatory requirement.

Section 14 of the NEPM AAQ specifies the number of performance monitoring stations that are required for
each region with a population of 25,000 or more. Section 14 of the NEPM AAQ prescribes a mandatory
requirement.

The Upper Hunter Valley region contains population centres the total population of which, as at the 2016
Urban Centre and Locality statistical level (the UCL) totalled 30,658 people as follows:

• Scone (4,956);

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 • Aberdeen (2,084);

• Muswellbrook (10,404); and

• Singleton (13,214)

The UCL statistical level excludes non-urbanised persons. Consequently, the population of the Upper
Hunter significantly exceeds the 25,000 population threshold to trigger the mandatory monitoring,
assessment and reporting of carbon monoxide, nitrogen dioxide, ozone, sulphur dioxide, lead, particles as
PM2.5 and particles as PM10.

Our client is aware of the Upper Hunter Air Quality Monitoring Network (UHAQMN) and various
publications referred to in the email of Mr Rilley dated 8 January 2020. Our client is also aware that the
UHAQMN monitors limited indicators. Our client is further aware that the data does not feed into NSW’s
reporting obligations under section 3 of the NEPM AAQ.

Our client made a request for information pursuant to the Government Information (Public Access) Act
2009, regarding decisions made with respect to the Upper Hunter and the NEPM AAQ. No information was
provided.

Our client sought an internal review of the request. By further decision dated 30 October 2019, your
department confirmed that there had been no decision to split the Upper Hunter into two distinct sub-
regions for the purpose of the NEPM AAQ monitoring, assessment and reporting requirements.

Following direct interrogation of your office, your office has further confirmed that no decision has made to
include the Upper Hunter as a region or a sub-region for the purposes of the NEPM AAQ.

In the absence of a decision which would operate to exclude the Upper Hunter from the section 3 NEPM
AAQ obligations, it is our client’s position that NSW is legally required to monitor, assess and report on
Upper Hunter Air Quality pursuant to sections 3 and 14 of the NEPM AAQ.

In the circumstances, our client requires your office to commence monitoring, assessment and reporting of
the prescribed indicators.

Please confirm that NSW will commence monitoring in the Upper Hunter Valley and provide a timeline for
implementation by 14 February 2020.

In the event that your office makes a decision with respect to the Upper Hunter Region in connection with
the NEPM AAQ, please confirm that you notify our client via our office within 7 days of any decision being
made.

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Please telephone Nick Witherow to discuss any aspect of this letter. We otherwise look forward to your
priority response.

Yours faithfully

Nicholas Witherow
Principal Lawyer
Environmental Justice Australia

Copy to: Mr Jim Betts (jim.betts@planning.nsw.gov.au)

Mr Matthew Rilley (matthew.riley@environment.nsw.gov.au)

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