THE state government has been accused of allowing Glencore Xstrata to mine under Sugarloaf State Conservation Area without meeting all its licence conditions.
West Wallsend Colliery, responsible for destroying part of the reserve, appears to have been operating for more than 18 months in breach of a consent condition designed to monitor subsidence risk and protect the environment.
In what shapes as another embarrassing chapter in the environmental scandal for the government, documents show the mine was supposed to establish an independent review committee to monitor its operations.
Information obtained by the Newcastle Herald reveals the committee - which was never formed - was to have veto power over the mine in the event of unacceptable environmental impacts from subsidence.
Extensive subsidence damage, uncovered last week, occurred in October last year adjacent to longwall 41 during secondary extraction, but the public was never informed.
In June, more than 180 tonnes of grout was pumped into a stream during a botched remediation project run by the mine.
The colliery's project approval, authorised by Planning Minister Brad Hazzard in January 2012, states the committee should include "involvement and review by appropriate subsidence experts".
Greens MP Jeremy Buckingham described the lack of an independent committee as "another disgraceful element of this sad episode".
Mr Buckingham called on the government to explain exactly why Glencore Xstrata was allowed to continue mining without complying with its approval consent.
"It's clear the government has a crisis on its hands and the planning approval process is broken," he said.
"That independent body was a requirement of the mine's consent. The company plays lip service to this condition and there is no serious compliance. The system is broken, and it's not just this mine, it's mines across the state."
Glencore Xstrata and the Department of Planning defended themselves this week, claiming the committee was only to review mining in areas with less than 100 metres of cover in longwalls 42, 43 and 47.
They said the committee had not been formed because mining in these longwalls had not started.
"The department will ensure that this commitment is fulfilled when mining in these longwalls commences," a Planning Department spokesman said.
A spokesman for the mine said it had "at all times operated in compliance with its project approval".
Longwalls 42, 43 and 47 are referenced in a preceding project approval clause but they are not mentioned in the clause for the independent committee.
It reads: "West Wallsend Colliery will establish an independent review committee, in consultation with Department of Planning and Infrastructure and Office of Environment and Heritage to monitor the progress of the mining operations within the Diega Creek catchment. This committee would include representatives from relevant government agencies, West Wallsend Colliery and include involvement and review by appropriate subsidence experts."
The longwall responsible for the subsidence damage, number 41, is within Diega Creek's catchment.
Neither the mine nor the planning department provided evidence to substantiate their claims the committee was linked only to operations in longwalls 42, 43 and 47.
Opposition environment spokesman Luke Foley accused the government of "making it up as they are going along".
"There is no evidence this committee exists, let alone does anything of use," he said. "The onus is on the government to tell us why the committee has not been monitoring this situation. The community has a right to know how this was allowed to happen."
The committee clause is listed among a "statement of commitments" from Glencore Xstrata in the project approval document.
It is also referred to in another Planning Department document issued in January 2012 and this report also draws no connection between the committee and longwalls 42, 43 and 47.
It describes the committee as designed to "assess impacts of subsidence and the risks to threatened biodiversity".
Nature Conservation Council campaigns director Kate Smolski criticised the government for failing to hold the mine to account.
"It is deeply troubling that the government failed to monitor Xstrata's compliance with the conditions of consent for the West Wallsend project," she said.
"What faith can we have in a system that allows projects to move ahead that ignore key conditions of consent?"
A spokeswoman for Mr Hazzard said this week the mine would be held responsible for any actions "shown to be non-compliant with the development approval".
She said an inter-agency government group had been formed to investigate the damage to the conservation area and it would determine whether regulatory action should be taken.
"The minister has asked for a copy of the report of the inter-agency group as soon as it is available," she said.
When questioned last week why the government issued an order to remediate the grouted creek on the day the Herald revealed the damage, Premier Barry O'Farrell swiped at the previous Labor government.
"It may well be that there's a coincidence of the reporting of these matters with the action occurring, but that in no way suggests that one's followed the other," he said.
"That's the way the former government used to operate."
