DSDBI Sanctioned and Supervised Breach of Endorsed Work Plan?

As we mentioned in our last post here, on 23 December, 2014, Ms Pamela King and Mr Colin Leask were wondering whether or not the construction of the Splitters Creek Evaporation Facility was going to cease at any stage over the festive season. No communication had been received from Mandalay Resources advising them of a holiday work schedule.

Apart from two days’ notice of a road closure – the requirement under the Work Permit was three days’ notice - Ms King has received no communication from the mine since she was removed from – and publicly humiliated at – the 6 November ERC Meeting.

And so Pam and Colin sent the following terse observations to DSDBI Manager Operations NW, Mr Colin Thornton:

From:        Glen Lea
To:        "colin.thornton@dsdbi.vic.gov.au" <colin.thornton@dsdbi.vic.gov.au>,
Date:        23/12/2014 11:16 AM
Subject:        MIN 5567 Splitters Creek Evaporation Facility

Colin,

May be you could advise Colin and myself of the status of the project over the road as Mandalay do not engage with us. What days will we have peace and quiet and no dust over Christmas?

Under Mandalay’s approved Community Engagement which is in the endorsed approved work plan page 13, is it not a requirement of their mining license that they should be keeping the closest neighbours informed?  Well they are NOT.

Under the Environmental monitoring plan [in the Work Plan], refer page 12 table no 7.1:

    

NOISE
Noise levels to be measured at nearest residence during commencement of construction to confirm compliance with prescribed limits.

“Residence” is defined in the Oxford dictionary as ‘a place of abode, dwelling’. We have advised you and other departments that Mandalay has been doing their sound monitoring up the road. We do not live up the road, our house is here at Glen Lea 490 South Costerfield-Graytown Road. Again this is in breach of the approved endorsed work plan.
 
OPERATIONS.  After reading this I cannot see anywhere in print that gives Mandalay permission to pump water down the pipeline to flood irrigate the dam site or condition the clay and soil during the construction phase. We have noticed a large gate valve and the water pipe running down towards the holding dam which is being constructed.

I refer to Operations 4.5, page 6 in the approved Endorsed Work Plan: “Groundwater will be typically discharged at the highest point of the facility and will cascade through the shallow terraces via spillways until the water reaches the lowest point of the facility where it will be directed into the Storage Dam”.

One can only presume their intentions after being told by [Bendigo] Mayor Peter Cox in our kitchen last Wednesday after he had just met with Mandalay. Again this is a breach of the approved endorsed work plan.

Colin, I now refer to the copy of the minutes of the last ERC meeting.  Page 8 of 10, where you spoke to Mandalay regarding the water sampling to be taken down here from our dams and house tanks so that a background level could be recorded. Quote: Colin stated that Mandalay need to resolve the sampling issues with the landowners even if it required sampling outside of the work plan so that background levels could be recorded.

[Recall that Ms King has to rely on the minutes of the meeting because the discussion regarding the monitoring of her premises took place in her absence as she had been removed from the meeting by the mine.]

ACTION TAKEN; Mandalay to negotiate access to conduct water sampling at nearby residents property near Splitters Creek Site.

To date Nothing.  NO Contact in any form from Mandalay.

So, you quote the work plan in this instance but it is irrelevant in the above breaches.

A response would be appreciated, but I guess you’re going on holidays as well.  We’re not. We live here and have to put up with this ongoing mess and ugly scar which you DSDBI are not regulating to the letter of the work plan.

Have a nice Christmas Colin.

Pamela King and Colin Leask

Subsequently, a contrite Mandalay employee phoned around 4pm that day to inform Pam that work would cease that afternoon – two hours’ notice – and would not be recommencing until 5 January, 2014. Merry Christmases were exchanged, as were contact numbers for the reporting of any issues. That's hopeful and welcome.

And then came the Christmas break.

And then New Years.

And on 2 January, 2015 at 12:53 pm we posted this piece of the puzzle.

And just over an hour later Pam and Colin received this reply to their pre-Christmas email:

From: colin.thornton@dsdbi.vic.gov.au
Sent: ‎Friday‎, ‎2‎ ‎January‎ ‎2015 ‎2‎:‎01‎ ‎PM
To: Glen Lea 

Cc: John.Mitas@dsdbi.vic.gov.au, Tony.Robinson@epa.vic.gov.au, Bob.Disken@dsdbi.vic.gov.au, Benny.Asirvatham@dsdbi.vic.gov.au 

Hello Colin [we’re sure he meant Pam, too ;-]

As a mining licence holder, Mandalay Resources have obligations under the Mineral Resources (Sustainable Development) Act 1990 to consult with the community throughout the period of the licence. There are further requirements under the various approved work plans. Mandalay have been requested to provide evidence to the Department of their community engagement to-date in relation to MIN5567 at Splitters Creek.

Noise monitoring under the Environmental Monitoring Plan for MIN5567 is taking place at a location on the South Costerfield Graytown Road south east of the licence area and between the activity and your residence, Noise levels at this location can be expected to be higher than if monitoring was conducted further away. On some occasions this monitoring has been done in the presence of DSDBI inspectors.

The approved work plan for Splitters Creek describes both construction and operational activities. During construction water for clay conditioning will not be "flood irrigated", but applied by watercarts which will be filled from temporary storage on site.

regards
____________________________________________________
Colin Thornton I Manager Operations NW I Earth Resources Regulation
Department of State Development, Business, and Innovation  
PO Box 3100 Bendigo Delivery Centre, VIC 3554
P:  +61 3 54304692 I F: +61 3 54304304 I M: 0409 541 160
Email: colin.thornton@dsdbi.vic.gov.au

Now this message contains a couple of pieces of good news.

First, there is the assurance that DSDBI are having a look at the “community engagement” undertaken by Mandalay “to-date [sic]”. It is to be hoped that the lack of notice for the road closure will be part of this examination. In any case, this is a most welcome development, but surely something that could and should have been, ahem, regulated quite a while back. (And when this is all over these same regulators can have a good look at themselves and their own system of community engagement.)

Second there is confirmation that ‘flood irrigation’ is not proceeding at the site. Work is to be conducted according to the Work Plan and so the conditioning of the clay for the evaporation terraces and terminal dam is to be accomplished via less environmentally destructive measures.

But there is a third issue raised here – noise monitoring. And that’s where the Work Plan becomes irrelevant.

We have here confirmation that, with DSDBI approval and supervision – the supervision of a number of “officers” apparently – the approved Work Plan’s stipulated monitoring regime, to be conducted in line with the Monitoring Plan instituted under the EPA-Approved Environmental Auditor, is not being followed.

With DSDBI approval, and under DSDBI supervision, noise monitoring is being conducted at a point along the South Costerfield-Graytown Rd that is NOT the residence referred to in the Work Plan, where a specific address is provided... the "noise sensitive area".

And the justification for this? None.

The excuse, on the other hand, is that “Noise levels at this location can be expected to be higher than if monitoring was conducted further away”.

This is something that would only be said by someone with minimal knowledge of acoustics – like a mining facilitator. But, of course, it’s not DSDBI’s job. It’s the EPA’s job.

Glen Lea sits on an elevated point directly across the valley from Lot 2 between the hill and the Wappentake Creek. Lot 2 is virtually a natural amphitheatre. Sound bounces off the curved line of surrounding bush and straight into the back door at Glen Lea. We’ve been there and know. EPA and DSDBI haven’t and so don’t. But they should have and should.

The road between Glen Lea and Lot 2 where the monitoring is being conducted is lower ground and sparsely tree-lined. With the construction of the terminal dam wall, a certain degree of shelter from the hill is provided, which serves to muffle the noise from the site. A drive along the road while work is underway will confirm this.

Perhaps it can be “expected” that the noise levels there will be higher, but it cannot be assumed. (And they definitely won't be higher if the measurements are taken while the workers have lunch!)

The EPA – the regulatory authority actually responsible for assessing noise levels from construction sites as per its SEPP N-1 (see page 10 for Measurement of Noise) and Noise In Rural Victoria (NIRV) policies – would not (or should not) assume or expect a lower noise level. It would not (should not) cross their collective mind. Because the EPA would (should) apply the SEPP N-1 and NIRV procedures and would (should) take the measurements from the actual “noise sensitive area”.

The EPA would (should) not merely measure noise levels “during the commencement of construction”. Whatever that airy phrase may mean.

They would (should) conduct background level and baseline checks at the actual “noise sensitive area” and assess the need or otherwise for noise attenuating works to be constructed to mitigate possible high levels of noise. And they would probably perform "tonal adjustment" and "impulsive adjustment" and perhaps even a "reflection adjustment". Once again, they would (should) do this from a point in the “noise sensitive area”. In this case, Glen Lea: 490 South Costerfield-Graytown Road; not “up the road”.

Just as it says in the EPA-Approved Environmental Auditor’s monitoring plan. Because that’s what the monitoring plan is for. And that is why Pam and Colin took Council to VCAT: to have the impacts of the construction of the facility at their property assessed and monitored.

It is no doubt supposed to be reassuring that noise levels have been measured in the presence of DSDBI officers. It’s not. These are mining facilitators. They are not versed in acoustics. This merely compounds the inadequacy of the monitoring at Splitters Creek. A couple of people who don’t know any better assuring the community that all is well is not what the community wants to hear.

This over-simplification and error calls to mind much earlier pronouncements by DSDBI/DPI - also by Colin Thornton - regarding the impacts of population density on dust dispersal rates from the Augusta mine. Dust measurement should be conducted by EPA.

When the EPA leaves it to DSDBI which leaves it to the mine, this is the result:

ERC Meeting

13 May 2010

Dust: B*** [local resident] commented that in March there was a huge dust storm but was astounded that the dust measurement recorded the lowest ever dust recording. Explained that the organic matter is burned off. B*** not happy with the current measuring system. Explained that it is an Australian Standard measurement System. Scott Sandercock [EPA] explained that there are probably other systems overseas but we use Australian Standard Systems here. B*** not happy with it and suggested that EPA should look at it. B*** questioned EPA if the system that AGD Operations has in place is set up correctly.

Olivia [AGD Operations] assured EPA that the system meets Australian Standard. Olivia agreed with G** that more sites need to be around the mine area as some are too far away and is in process of getting them relocated. Olivia outlined that further weather station quotes need to be obtained and research on which is the most suitable for this site, but as yet has not had time.

Bob Disken [DSDBI/DPI] stated that AGD Operations dust monitoring program is compliant. B** expressed his disappointment with government departments excepting [sic: accepting] an empty wine flagon and funnel is appropriate measurement system. Bob Disken commented that until the standard changes the company is complying

The concerned – and rather dusty – resident suggests that the EPA might want to “look at it” and asks the EPA officer in attendance if the system is set up correctly. But it is the mine manager and the DSDBI who reply! How would (should) EPA know?

And this is what DSDBI considers to be a compliant dust deposition gauge.

Oh and the weather affects noise, too, and so meteorological conditions such as temperature inversion, would be taken into account by an EPA acoustic technician, too, we would think.

And in the four and a half years since the above exchange, the “research” into a weather station has not been completed! Wonder why?