Neighbours of an open-cut mine who live with superfine coal dust in their homes and yards are considering their options after losing a court battle for better protections.
The Land and Environment Court has thrown out their case against NSW's Environment Protection Authority over pollutants emitted by Whitehaven Coal's Maules Creek Mine in the state's northwest.
The Maules Creek Community Council argued the authority failed in its duties last year when it reviewed the mine's environmental protection licence but didn't set limits on fine particle pollution called PM2.5 and methane, a potent greenhouse gas.
The effect, they said, was that the open-cut mine could continue to operate with no limits on known hazards like PM2.5, which can invade the lungs and cause respiratory and cardiovascular disease.
But the court's chief judge, Justice Brian Preston, dismissed the case on Thursday.
He found there was some evidence the reviewing officer did consider the matters.
The lack of specific references to seven categories of air pollutants, including superfine particles, "does not necessarily establish that the reviewing officer did not consider those air pollutants", he found.
The Environmental Defenders Office represented community council members in court and has left the door open for further action.
Ros Druce lives 7km from the mine and feels like the EPA has "brushed over" the threats posed by the fine particle pollution that settles on surfaces in her home, and across her property.
It's forced her to give up her veggie patch because the produce was regularly covered in what she calls "fallout" from blasting operations.
"We all deserve to have clean, fresh air. The EPA should be putting the people and the environment first," she said.
"This decision leaves us where we were before. It's disappointing, but we will keep chipping away. We don't let go - we're like a dog with a bone. We'll just keep doing what we can do."
Anita O'Hart is a senior solicitor with the defenders office and says the outcome sentences affected residents to living with an intolerable level of pollution.
"Importantly, neither EPA nor Maules Creek coal mine contested the fact that fine dust and methane were harmful pollutants," she said.
"While the government has policies regarding dust and methane, these are very high level and do not protect people like our clients and others who live close to these facilities."
The office says it will take time to digest the judgment and consult with residents about next steps.
The authority says it's reviewing the judgment and it currently regulates PM2.5 in line with national standards for six key air pollutants and particles.
NSW Environment Minister Penny Sharpe declined to comment on concerns about regulatory failings, saying it would be inappropriate to comment while the authority is considering the judgment and any implications it may have.
Whitehaven Coal was contacted for comment but is yet to respond.
