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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-06-03 Daily Xml
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ENVIRONMENT PROTECTION (TESTING, MONITORING AND AUDITING) AMENDMENT BILL

Introduction and First Reading

The Hon. DAVID WINDERLICH (17:22): I seek leave to move Order of the Day: Private Business No. 6 standing in my name in an amended form.

Leave granted.

The Hon. DAVID WINDERLICH: Obtained leave and introduced a bill for an act to amend the Environment Protection Act 1993. Read a first time.

Second Reading

The Hon. DAVID WINDERLICH (17:22): I move:

That this bill be now read a second time.

Most of the conversations about pollution in our society concern things we cannot even see—carbon dioxide and greenhouse pollution or chlorofluorocarbons destroying the ozone layer. However, for many South Australians pollution is very immediate and invasive. It means fumes that make you sick or noise that penetrates your brain and disrupts your sleep, or dust that gives your kids nosebleeds, or even pieces of turkey carcass in your backyard. Pollution means that the price of your property plummets so that you cannot afford to sell up and escape.

This sort of pollution is often produced by the operation of large businesses which do not seem to care about their neighbours or the communities of which they are a part. Ordinary people, and often small businesses, are forced to fight an unequal battle against large businesses that can hire expensive lawyers, PR people and scientists to make sure that the debate about the problem is waged on their terms. So most people look to the government for help and, in particular, to the Environment Protection Authority (EPA); but too often it does not work out that way. Residents find that the people's watchdog is often the company's lapdog; they find that they cannot get action or information.

This simple bill is an attempt to make the EPA work better for people by bringing some transparency to its monitoring of pollution. It has two main provisions. Amendment No. 4 amends section 52 and requires that any audit and compliance program must include requirements for the making of reports and any evaluation processes undertaken as part of such a program. In other words, there have to be reports and evaluations as part of a program of environmental monitoring. Amendment No. 5 amends section 109 and would see the results of such tests and reports placed on the public register already maintained by the EPA. So, this amendment simply adds to the register of information already maintained under the act.

These amendments are extremely uncontroversial, or they would be to most people. All they do is ensure the right of the public to know about matters that are of concern to them. If you went out into the street and asked people whether they thought they should be able to find out the results of tests into pollution that might affect them, I believe you would get a resounding 'yes'. However, in this state people do not have that right; they can get access to information only if they make enough of a fuss to embarrass the Environment Protection Authority or the company in question. Even then, information to which they do get access is, in their view, often rigged in favour of the polluter.

I will give four examples from recent history. In Whyalla, the Red Dust Action Group lodged complaints about emissions from the OneSteel factory and logged many instances of national environment protection monitoring standards being exceeded on a regular basis. In 2007, the group was told by an EPA officer, 'We can't help you any more and we won't be answering any more of your emails.' They kept going, and eventually won some improvements. In Davoren Park, residents report that they were told by an EPA officer that if they did not like the pollution coming from the Entech factory they could sell up their homes.

In Port Adelaide, businesses near Smorgons hammer mill receive a shower of fine metal particles. When I visited the site in late 2006 you could run a magnet along the ground and come up with a head of clearly visible metal filings. The particles damage the paintwork on cars, and the finer particles are probably being breathed in by the workers. These businesses—in particular, the main business that has been lodging complaints on the matter—have been told by the EPA that it is too difficult for it to do anything. They have been constantly fighting to get information, and I know because I wrote some of the FOI requests. When they do get dust monitors put in place they argue that they are often put in at the wrong place or at the wrong time, when conditions are not so bad. In 2007 the Port Adelaide council passed a vote of no confidence in the EPA over its handling of pollution from Smorgons hammer mill.

Also, in 2007, residents of North West Adelaide Inc complained about breathing difficulties as a result of emissions from a nearby glass factory. They reported that when they contacted the EPA they were fobbed off and told to contact the council, and when they followed up earlier calls they were told that there was no record of that call. These are cases over the past four years. I have omitted more prominent examples such as the Bradken's foundry debate because I have not had direct contact with those cases.

There are more recent examples of discontent with the EPA, and I will outline these in more detail. In Angaston, residents surrounding the Penrice mine are also disillusioned with the EPA. The Penrice mine has coexisted apparently fairly happily with the community for decades, but over the past two years it has undergone a rapid expansion. That included longer operating hours, so the noise of the mine can be heard late into the night, and from six in the morning there is heavy traffic. There is a visual scar on a very scenic area of the Barossa Valley, but, most concerning of all, there is silica dust resulting from the rock crushing.

Silica dust has been linked to silicosis, and asbestosis-like disease found among people who work closely with the dust. There is apparently no record of silicosis at a community level amongst people more distant from the source of the dust, but people around the mine experience the daily nuisance of fine white dust. It puffs up when their children run on the lawn, and it gets into the washing and into the houses. There are also health concerns. The children of one young family reported constant sneezing and nosebleeds. In fact, the mother and children have moved out of their home to escape the dust and their health has improved dramatically.

Like most parents, the mother and father are far more convinced by what they can see happening to their kids than by the abstract assurances of experts commissioned by the government or the company. Like almost all of us would, they have concluded that, even if it is not known for sure that silicosis is the issue, there is a problem that is affecting the health of their children and it is a problem that needs to be identified and resolved. Another resident reports that property valuers tell him that, because of the mine's operations, his property is worth only 60 per cent of what he paid for it—so he is trapped.

After residents ran their own tests—I might add that they commissioned a company recommended by the EPA to run those tests—and found high readings of fine silica dust, the EPA commenced testing. It has put a dust monitor, an air sampler, 1.2 kilometres away from the mine—three times the distance of some of the properties with the most exposure to the dust. This is apparently to gather readings of the background dust levels, but residents argue that monitoring should first occur on the boundary of the most affected properties. This makes sense; if there is a potential health problem, action could be taken to identify that and resolve it. Residents feel that the decision by the EPA to locate dust monitors in this way indicates that it is too close to the company.

The way in which the EPA and the company have reacted to the first month of tests has only reinforced this perception. On 21 May EPA spokespeople in the media were commenting on the fact that testing showed that dust was within normal levels. Guy Roberts of Penrice also made much of these claims to argue that the results vindicated his company's record on pollution, although he admitted that they were not yet fully conclusive.

However, these tests only related to four weeks, and none of them was conducted in the worst season for pollution, which is the summer months, when dry dust is carried by the wind, and one of the weeks of testing took place after rain had started falling. The EPA, to its credit, has itself made these points in its report. The best you could say is that the tests were inconclusive. However, closer examination shows that these tests probably support the residents' claims.

The results of the dust monitoring at Angaston from 1 April to 30 April are on the website and are publicly available. On page 9 there is a chart that measures the daily averages of dust below 10 microns in size. These are important because they can be inhaled into the lungs. The National Environmental Monitoring Standards require not more than 5 exceedences of 50 micrograms per cubic metres of air in a 12-month period.

As I said, these readings are from a dust monitor placed 1.2 kilometres away to measure background dust levels. The households most at risk are around 400 metres from the mine. These readings, more than three times the distance from the households most concerned, show three occasions when exceedences were 40 micrograms per cubic metres of air. That is close to the standard which any PM guidelines say should not be reached.

There were also two occasions of readings between 30 and 40 micrograms per cubic metres of air. I am not pretending for one minute to give an alternative scientific analysis, but a commonsense approach would put the following facts together. There is clearly a dust problem. Photographs of the mine showed clouds of dust originating from the mine. People living near the mine get dust all over their cars and their washing. Their kids kick up dust when they run on their lawn. Those kids have nose bleeds and sneezing but, when they move away, it stops. There clearly is some sort of dust problem there even if it is not necessarily related to silicosis.

As I said, they ran their own tests, and now the EPA runs it tests and finds levels that are only just below the levels of concern even though their tests are based on samples collected much further away and under climatic conditions that would suppress dust. Knowing all this, it is understandable that local residents feel very concerned. Knowing all this, it is also understandable that they are not convinced that the EPA is acting in their interests. They are quite explicit about their sense of disillusionment. 'We thought because the EPA was from the government it would look after us,' one of them said. 'Boy, were we naive.' These are not stirrers or environmental activists: they are ordinary hard-working Barossa people. One of the leaders of the group has actually worked in the mining industry.

I should make one clarification to my statement about the Penrice mine pollution. I did say initially that the results of the tests should be open to the public and, in fact, they are, as was pointed out to me. I was confusing the general issue of the difficulty of getting information with a specific case where information was available although as the result of some agitation by residents.

The point behind these amendments is that this level of openness has not been the norm, at least not without a fight. The people of Whyalla had to campaign very hard to get monitoring and the results of monitoring made open to the public. Browntree Trading at Port Adelaide has never quite achieved this. In the case of Angaston, residents got some attention after they conducted their own tests and went to the media. This is a clear example of the importance of access to the methodology and the results of tests into pollution.

My next example is about the difficulties experienced in getting the EPA to take action. Two weeks ago I visited residents in McLaren Vale who are suffering the effects of the expansion of Aldinga Turkeys. Aldinga Turkeys has grown from a small backyard operation into a 6am to 6pm operation that also does maintenance and cleaning around the clock. Residents there have to put up with noise and pollution that includes effluent, the result of cleaning turkey debris from machinery, which is discharged onto their land. Turkey feathers appear on the roadside after they are apparently discharged through the stormwater. The residents informed me that previously, before a higher fence was put up, they would find bits of turkey carcass in their backyard—or one of them would.

During my visit the most obvious problem was the noise generated by the compressors in the factory which run constantly. Residents informed me that the EPA did assess noise levels and found them to be acceptable but, since that time, there has been additional machinery installed at the plant. During my visit the noise was not ear-shattering; it did not prevent conversation 30 metres away but it was penetrating and, presumably, would be much more discomforting at night. One resident informed me that a visitor on 22 April this year asked about the putrid smell and likened it to rotting flesh.

I will now read from several emails forwarded to me. I have deleted the names of individuals, especially those from the EPA: it may not be their fault; it is possible that they have been subjected to other pressures, so I do not think there is any need to name individuals at this stage. One email reads:

More than three years ago the EPA approved the siting of a very large (we estimate about 30,000 litre) wastewater storage tank very close to our home without apparently requiring it to be bunded as per the July 2001 EPA Guide for Applicants, Abattoir, Slaughterhouse and Poultry Processing. When I pointed this out to your manager...he assured me that he would, and later did tell the company that they must bund the tank. This tank remained unbunded yet the EPA approved a further tank of similar size next to the first, also not bunded.

I remind you that three years ago the current economic climate could not be used as a factor for an excuse but apparently for three years there have been other excuses used by this company to not install the required bunding, all apparently accepted by [your manager]. The bunding of wastewater storage tanks is not a project but a licence requirement, and while it appears that the EPA does not take this seriously, as residents in direct line of any spill—if the tanks were to rupture, for example—we do. How does the company [your manager] or the EPA know if the current economic climate and the resulting limited cash flow availability will have improved by 30 September 2009?

You now tell me that the company requested a time extension on 20 March and the company has spoken to Mr D. [your manager] in relation to the matter and yet the EPA chose not to follow the proper procedure (Environment Protection Act 1993) to relax the licence. Why not? The act requires that the EPA must first cause public notice, not weeks after the licence has been relaxed. Can we presume that the first licence has already been relaxed by [your manager] without procedure being followed and without the public being afforded the opportunity to make submissions? Has [the EPA] during conversations with the company given them to understand that compliance with the condition is waived? If not, the company is in breach of their licence and has been since 31 March.

You say that in the interim period the company has obligations under section 25 of the act...to prevent or minimise any resulting environmental harm resulting from their activities. This gives us no reassurance; if it was that simple why is bunding of the wastewater tanks an EPA requirement in the licence condition?

If these tanks spill what about us and our home? These tanks should have been bunded at the time of their installation not years, if ever, after. The bunding is an 'environment protection' which is what the EPA is supposed to be about. All the 'obligations under the act' will not be of any protection to us if these un-bunded tanks spill.

I think the striking thing for me about that email is that it is not from an hysterical person; this is very calmly and clearly argued and constantly references back to licence conditions and provisions of the act. The same person also sent me (and also the EPA) an email that states:

Dear N

At the moment there is a torrent of water running down Foggo Road, past our drive and onto the Kangarilla Road, from Aldinga Turkey's stormwater pipe. There has been no rain. There are turkey feathers strewn over the verge.

She includes the conditions of the licence which provide:

The licensee must not allow poultry processing effluent to enter the stormwater collection system at the premises, or drain onto surrounding land or waters.

The licensee must direct stormwater contaminated from any poultry processing operations to the effluent collection, treatment and disposal system.

My correspondent continues:

I have pointed out this activity to the EPA previously. Has this condition also been 'relaxed'?

Once again, it is very clear and logical and references back to licence conditions. This person knows what they are talking about.

Everywhere, from Whyalla to Port Adelaide, from the Barossa to Aldinga, all sorts of people are, without any reference to each other, telling a similar story: they have to fight to get action and information, and then the information often appears to be rigged in favour of the polluter. It is not necessarily the EPA's fault; I understand it is badly underresourced. No doubt there are dedicated staff who want to do their best to protect the environment and the community. The EPA is under new management: Helen Fulcher has replaced Paul Vogel. For whatever reason, it has not worked in the recent past and does not appear to be working just yet.

Ideally, I think quite radical changes are needed. I would like to see some sort of truly independent environment watchdog report to parliament rather than being subject to the control of a government minister. However, I cannot see that happening, so I have chosen something much more modest. These are very small, simple amendments that would simply bring openness and transparency. As we often hear in this chamber, sunlight is the best disinfectant, or, as the Attorney-General likes to say, if you have nothing to hide you have nothing to fear.

These amendments do not require the EPA to run additional or expensive monitoring every time someone complains. They simply require the EPA to make information about pollution that has already been collected available to the community. It is a basic matter of the right to know.

As I said earlier, the amendments are mild and extremely reasonable, the sorts of amendments to which every person in the street would be likely to agree with if you ask their opinion on the matter. If the government, the EPA or any of the polluters in question do not have something to hide, why would they oppose such amendments? I commend the bill to the council.

Debate adjourned on motion of Hon. B.V. Finnigan.

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