... As Yet Unsubstantiated... Mr Buckingham to Mr Helps and a Response

On 12 December, 2014, Mr Andrew Helps sent this letter to Mr Chris Buckingham, Acting Director Regional Services for the EPA.

Mr Buckingham replied on 15 December.

Mr Helps has responded by interpolating Mr Buckingham's reply in the following letter:

Hg Recoveries Pty Ltd

A Member of the UNEP Global Mercury Partnership

Partnership Areas: Mercury in Gold Mining, Mercury Supply and Storage, Mercury Air Transport and Fate, Mercury in Products.

Heavy Metal Specialists

(ABN 87 144 752 885) (ACN 144 752 885)

Date: 18/12/2014 File: 7758

Mr Chris Buckingham,

Acting Executive Director Regional Services, Environment Protection Authority Victoria.

Dear Mr Buckingham,

Thank you for your email at 3pm on Monday the 15^th of December.

Outlined below is my response to your email. Your comments are in blue and my comments are in black.

Dear Mr Helps

It is not altogether clear what you are seeking from the EPA in your letter dated 11 December, 2014.

I am “seeking” to formally inform you of clear examples where EPA has failed to perform its statutory duties in the protection of the environment and the people at Costerfield and Heathcote; areas in which the EPA has been demonstrably negligent! 

While it appears you are interested in seeking a good environmental outcome for the Costerfield community, your correspondence is full of speculation and supposition that casts aspersions on the EPA and two of our most experienced officers.

There is no speculation and no supposition in my letter; my letter is a briefing note to you on the facts surrounding EPA’s failure to follow its prescribed duties at Costerfield and failure to regulate in full accord with its own Act; the EPA Act 1970.

For example EPA’s most recent failure is that it did not follow what is widely acknowledged as ‘international best practice’ when Mr Childs visited the Splitters Creek site on the 27^th of November 2014 and according to his own evidence took “samples”.

When Hg Recoveries PL conducts sampling for the residents in accordance with its approved Commonwealth Operations Manual we can turn these samples around in 5 working days. It would not be unreasonable for the community to expect the EPA to have released its sample data by this time along with the obligatory Hazard Index calculations for the results (which considers the combined adverse impacts of all toxic elements in a sample and not just each toxic element independently of each other). Is the EPA hiding this data from the community?

When are you going to release the results of Mr Childs testing – Golder have not publicly released data from 4 months ago; are you following the same pattern?

It seems to have escaped the collective knowledge of the EPA that the ADWGL level for antimony is 3.3 times lower than for arsenic. This year the mine has been forced to pump out and clean domestic rainwater tanks, guttering and roofing around the mine and re-fill these tanks with town water. This work was triggered by antimony readings in their drinking water that was in excess of the ADWGL level; from 3 ug/L up to 140 ug/L. The water the mine was spraying on the road contained 23,000 ug/L antimony. Additionally, there were about 350+ residents with positive urinary antimony tests this year (many of whom were above the US health limits) alone from farms and homes surrounding the mine and as far away as Heathcote.
Your staff and your Bendigo Regional Manager are obviously not aware that antimony is classified as an IARC class 2B carcinogen. The US Occupational Safety and Health Administration (OSHA) has formally published the following toxicology criteria for antimony: 

Chronic poisoning, functional disorders of the heart, degeneration of the heart muscle, heart muscle changes, heart disease, spontaneous late abortion, premature birth, gynecologic problems (as is being seen with farm animals around the Costerfield mine), pneumoconiosis, skin and upper respiratory tract irritation.

The mine (by its own experts admission) produces antimony ore which contains predominantly antimony trioxide and antimony trisulphide, which OSHA has identified as two of the most toxic forms for antimony compounds.

The Vic EPA SEPP (S240) (Air Quality Management) sets a 3 minute averaging time for antimony and its compounds (Class 2 toxicity based design criteria of 17 ug/m³ (US ATSDR 12ug/M³). Arsenic, an IARC Group 1 Carcinogen, was also in the ‘water’ being sprayed on a public road and has a 3 minute averaging time design criteria of 0.007 ug/m³; (USATSDR 0.09 ug/m³)! Arsenic is a Class 3 substance!

  

It is now the 18^th of December and the EPA has had prima facie evidence of gross pollution of this public road since the 26^th of November and still has not produced the results of Mr Childs testing despite the enormous public health risks that Antimony and Arsenic represent to the community and the environment.

The Costerfield residents would be justified in presuming the results of Mr Childs testing endorses what the residents testing discovered and this is why the EPA has failed to produce the results.

I have discussed your correspondence with the Regional Manager North West and other senior officers in the EPA. We refute your allegations.

The Regional Manager North West is highly unlikely to readily “confess his regulatory failure sins” to senior EPA management.

I do not know how you can come to this conclusion – I have raised serious allegations regarding the highly questionable actions of Mr Childs; EPA had an opportunity to apologise to Mr Leask over this matter but has clearly failed to do so. Therefore, according to your written word in your email to me dated 15/12/2014, you clearly endorse Mr Childs’ actions in this matter and as a consequence, must therefore jointly take an equal share of the responsibility.

Your allegations of intimidation, incompetence, misconduct, regulatory capture and fraudulent behavior are as yet unsubstantiated.

If you care to re-read my letter in depth you should note that my claims regarding Mr Child’s actions and that of the EPA, specifically were very well substantiated! On the assumption that you cannot understand the detail in my letter, then in all probability you should not be holding the position you presently hold. 

If you have anything further to add, we strongly encourage you and others to approach the Ombudsman directly to lodge your complaint, or withdraw your offensive assertions.

The Ombudsman would take at least 18 months to investigate this matter and that is 18 months of further risk for the Costerfield/Heathcote community – this potential delay is a totally unacceptable risk for all concerned.

Mr Buckingham, you are in a primary role of responsibility with the EPA and you have a fundamental duty to protect the community from pollution of the air, water and land in which they live and work – it is your duty under the EPA Act.

The urgency of the current situation is driven by the fact there are four regulators that have failed to regulate this mine and the EPA has compounded this failure by permitting the Category A waste water to be dumped into Hird’s pit in Heathcote under an emergency PAN – an action that was anything but an emergency and is seen by the community for what it actually was – an EPA sanctioned low cost commercial disposal route for the mine at the expense of the environment.

Because of this collective regulatory failure the government would be well advised to use the “contamination” provisions under the Emergency Management Act and appoint an experienced emergency manager to oversee the introduction of proper controls on this mine.

Therefore, as a direct consequence of your response to me, you are clearly demonstrating you do not understand precisely what constitutes international best practice in environmental management.

I understand that the new government has an ambition to "create a stronger environmental watchdog that has the independence to carry out its mission as protector of the environment and advocate of best practice environmental management" and "to Strengthen the EPA's monitoring and enforcement powers covering air and water quality to ensure the community is protected". Therefore, as a direct consequence of your response to me, you are clearly demonstrating you do not precisely understand what constitutes best international practice in environmental management.

The end result of Mr Childs’ actions and the failure of Mr Childs’ supervisor to supervise his staff member is that the farmers in the Costerfield/Heathcote area will, accordingly, be leaving dead farm animals to rot in their paddocks, rather than following what has been up until now best environmental management practice as it pertains to ‘on farm composting’.

EPA will not enter into any correspondence with you on any matter that contains unsubstantiated claims against our officers.

The claims I have formally documented in writing to you were “not unsubstantiated”, they are however a correct representation of EPA's failure to protect the health and safety of the Costerfield community and the environment at Costerfield and downstream, through to the Murray River.

Sincerely.

Andrew Helps

Managing Director.