Any reference to CASACIR or its directors, shareholders, owners or operators relates to pre-14 February 2024 when the company was sold. In no way can anything said relate to the company or its new owners, operators, directors, and shareholders after that sale.
Air quality can be impacted by: dust, exhaust, gases, vapours, odours.
Legal issues
Man X, man Y and CASACIR’s Work Authority Condition 18 “Dust Emissions” states: “18.1 The Work Authority holder must prevent a dust release that causes adverse impacts to the surrounding area and residents. 18.2 Dust monitoring is to continue where and when as required by the Department”. Certainly prolific amounts of dust frequently exited the site and I have plenty of visual proof of that as you will see in various parts of this webpage – with such dust causing many adverse impacts on us.
The information in the documents provided by man X, man Y and CASACIR was grossly incomplete in that: e.g. the points of dust emissions were not adequately identified, and some were not identified at all. The major sources and points of emissions that could have impacted, and did impact, air quality were (but not limited to) the: *benches, *blasting, *bulldozing, *bunds, *chutes, *conveyor belts, *crushing, *drilling, *dumping, *excavation, *hauling, *loading, *machinery, *plant, *equipment, *processing, *quarry faces, *sieving, *screening, *stockpiles, *stripping, *transportation, *vehicles, *vibrating …
Meteorological conditions change the dispersal of air pollutants. Our main winds were from the north to north-west and also the south to south-west, with the northerlies and north-westerlies generally blowing hardest. With the quarry being to the north and north-west of our property, this meant that a lot of dust from the quarry fell on our property, whether or not it was captured by the gauges. Further, it landed on the roof of our house and shed and thereby polluted our sole water supply for drinking. Man X, man Y and CASACIR seemed to be amazed that we would be concerned about that.
Protection from dust and pollutants are important elements in legislation. The planning scheme is very particular about ensuring that the pre-existing quality of the air environment prior to any industry or quarry was not only maintained, but was improved. The requirements of the planning scheme in relation to air quality are now contained in the SPPF clause 13.06-1S Air quality [emphasis mine]: “Objective – To assist the protection and improvement of air quality. Strategies – Ensure that land-use planning and transport infrastructure provision contribute to improved air quality by: *… [Ensuring], wherever possible, that there is suitable separation between land uses that reduce amenity and sensitive land uses. Policy guidelines – Planning must consider as relevant: *State Environment Protection Policy (Air Quality Management). *Recommended Buffer Distances for Industrial Residual Air Emissions (Environmental Protection Authority, 1990).” However, in spite of the planning scheme’s requirements to protect and improve air quality: *there was a significant decrease in the quality, and *land use planning failed to be taken into consideration – the quarry was far too close to the adjoining and near-by properties and dwellings owned and controlled by others according to the “Recommended Buffer Distances for Industrial Residual Air Emissions (Environmental Protection Authority, 1990)”, and *the Recommended Buffer Distances for Industrial Residual Air Emissions (Environmental Protection Authority, 1990)” in assessing the separation between land uses that reduce amenity and sensitive land uses – this has been totally ignored. The buffer distance for hard rock quarrying with blasting is 500m and there are a number of dwellings at or close to 300m (being at a distance of 300m, just over 300m, 350m, and us at ~160m). And there are three properties that are 20m, and one that is 40m, from the quarry impacts, ours was 140m away. As identified above, the houses are considerably less than the 500m recommended within the document, and *there was absolutely none of the required “improvement” in the air quality, only significant detrimental impacts.
In relation to the State Environment Protection Policy (Air Quality Management) (SEPP(AQM) Protocol for Environment Management Mining and Extractive Industries (Mining PEM) [emphasis mine]:
(a) Section “General assessment requirements” requires that: “A level 2 assessment is required when the proposed development is in a rural location with residences in close proximity or where a small operation is located in an urban area” – there were a number of dwellings within the required 500m buffer.
(b) Table 1 “Criteria for determining level of assessment required” clarifies that “Medium Mine or quarry between 150,000 tonnes/yr and 500,000 tonnes/yr extraction” in a “Rural area close to residences (less than 500m from the limit of work described in the approved DPI work plan or final EES)” requires a “Level 2” assessment – their proposal was for in excess of 200,000 tonne per year, and they have well and truly exceeded that amount. In fact, this was known prior to the quarry being granted a permit: (for example) a report by man X, man Y and CASACIR’s specialist dated November 2008, stated that the quarry would be generating “around 200,000 tonnes per annum”[1]
(c) Section 3.4 “Monitoring data required prior to conducting air quality assessment” requires that: “To enable an assessment of air quality impacts through modelling an understanding of existing air quality (ie., background) in the area is required. The data requirements for each level of assessment are: …• Level 2 — Continuous representative4 24-hour PM10 and PM2.5 data for a 12-month period, representative analysis of crystalline silica (PM2.5 fraction) and heavy metal content of PM10” – but there was no assessment at all, let alone the required 12 month assessment.
(d) Section 4 “Operational Control Requirements” requires that: “Results of monitoring should not exceed 4g/m2/month (no more than 2g/m2/month above background) as a monthly average”.
In other words, legislation demanded that man X, man Y and CASACIR provide site specific backgroundmeasurements taken over the 12 month period prior to the quarry commencing (but they failed to comply with legislation because there are no such background assessments) – it is my contention and personal opinion that this was so that they could use an elevated dust level (otherwise why would they not have taken air quality sample prior, as demanded by legislation?)
In addition, man X, man Y and CASACIR’s planning report (endorsed as part of their planning permit – and therefore requiring mandatory compliance with the claims therein) stated that [emphasis mine]: “4.5 Dust generated by quarrying operation will be controlled to ensure that dust emissions do not pose a risk to the health and amenity of local residents and so do not jeopardise the beneficial uses of the environment in accordance with State Environment Protection Policy (Air Quality Management) (SEPP(AQM), including the Protocol for Environment Management Mining and Extractive Industries (Mining PEM)” – in other words, they stated that they would abide by the demands of the legislation but, yet again, failed to do so, allowing themselves to use double that allowed[2] i.e. the entire 4g/m2/month!
Until the quarry, in the 7 years we had been there, we had had to clean the gutters once, but after works at the quarry commenced, we had to clean the gutters at least 7 times in the 5 years between when they started the quarry in mid 2009 and when we sold up in early 2014 – and a healthy crop of plant-life grew there between cleanings! In addition, it was common to frequently have a gritty taste in the mouth and to see significant plumes of dust frequently exiting the quarry site, much of which entirely missed the gauge and “real-time” monitor to the south, and the gauge to the north.
In addition, man X, man Y and CASACIR had made particular, but fraudulent, claims directly or thorough their specialist/s and legal representative/s. For example, Kraan’s witness report to the 2008 VCAT quoted the planning scheme[3]: “Clause 15.04 Air quality – The objective of this clause is: To assist the protection and improvement of air quality. 15.04-2 General implementation – ensure that … community amenity is not reduced by air emissions by ensuring, wherever possible, that there is suitable separation between potentially amenity reducing and sensitive land uses and developments. Consideration should be given to Recommended Buffer Distances for Industrial Residual Air Emissions (EPA 1990) to determine the extent of separation. …should have regard to the potential for conflict between land uses or development within a zone due to air emission impacts”.[4] And, as man X, man Y and CASACIR’s mouthpiece and with their authority and approval, however, he submitted as absolute truth and fact that: “It is my opinion given the evidence discussed in Section 5 of my statement that the subject proposal will not detrimentally impact upon the air quality of the area”.
Man X, man Y and CASACIR consistently and completely ignored the requirement for the separation distance and the legislated need for them to own or control that entire buffer (separation distance). Far from providing for “the protection and improvement of air quality” or ensuring that “community amenity is not reduced” – man X, man Y and CASACIR emitted such dust that a section 110 Notice had to be served on them, and the dust had a significant detrimental impact upon neighbours, especially us.
Man X, man Y and CASACIR’s second and third work-plans both stated [emphasis mine]: “4.5 All roads are watered to reduce dust. …All trucks leaving the site have their wetted by means of overhead water sprays (if needed) and/or suitably covered to prevent any nuisance arising by the emission of dust” and “7.4 Dust is controlled…” Their planning report also falsely stated [emphasis mine]: “4.5 Dust generated by quarrying operation will be controlled to ensurethat dust emissions do not pose a risk to the health and amenity of local residents and so do not jeopardise the beneficial uses of the environment in accordance with State Environment Protection Policy (Air Quality Management) (SEPP(AQM), including the protocol for Environment Management Mining and Extractive Industries (Mining PEM) … It is considered that there will be no detrimental off-site impacts from dust emanating from the quarry operations” and “5.1.1 The proposal will not impact upon the air quality of the area”.
Kraan stated within his statement of evidence [emphasis mine]: “4.8.1 All trucks leaving the site will have their loads wetted (if needed) and/or suitably covered to prevent any emission of dust” and “4.8.2 The roads will be wide enough to handle large dump trucks. They will be maintained by regular grading and will be sprayed with water during periods of high potential for dust generation.” Kraan also falsely stated within his statement of grounds (in relation to P1891/2008) [emphasis mine]: “The proposed use and development: 4. Will not cause detrimental off-site impacts by way of airborne particulates”.
Terry Bellair’s statement of evidence to VCAT stated: “3 Experience with dust management at a range of extractive industry, mining and concrete recycling operations indicates that the main potential dust sources include: (1) crushing and screening operations; (2) the movement of trucks and loaders on unsealed roads and operational areas; and (3) topsoil and overburden stripping; and (4) suspension of dust from any bare, erodible surfaces by strong winds. Blasting generates short-term dust emissions and a visible plume (typically lasting for less than ten minutes); …”.
Graeme Peake (man X, man Y and CASACIR’s then barrister) submitted to the 2008 tribunal as absolute fact that [emphasis mine]: “8.22 [man X, man Y and CASACIR are] committed to ensuring that dust does not cause unacceptable amenity impacts at the nearest dwellings” and “ 8.23 The measures to be implemented include: …* curtailing potentially dust works during hot windy weather” and “8.25 [man X, man Y and CASACIR] further relies on the evidence of Dr Bellair that dust generated at the quarry will not affect the potability of rainwater harvested from roofs in the locality”.
Bellair, Kraan and Peake all stated that man X, man Y and CASACIR would comply with the dust and air quality requirements – however: (a) they did not, and could not, keep the dust within the site while building the bunds and waiting for the groundcover to grow (or afterwards), (b) there was significant dust from the crusher, from roads, from loading, from excavations, from drilling and this was not contained within the site – there were frequent times of significant dust escape when the site was attended, (c) there was no form of dust control during hours in which the quarry was unattended (Saturday afternoons, Sundays, public holidays, evenings, nights and other times the site is unattended) and the dust escaped, (d) on many occasions dust was caused by the water cart whose job it was to suppress the dust![5], (e) they did not keep the dust within the site (work authority boundaries) in spite of it being a legal requirement for the dust to be so retained, (f) I have seen the quarry continue working during hot dusty weather, (g) there were many times when significant dust exited the site and the water truck stood idle and not in use, and there were no water spay units in use at all, (h) the Quarterly Environment Monitoring reports (March and June 2010) show that significant dust exited the site and there were no control measures in use, nor do either of those documents address the issue at all.
Man X and man Y swore in the Supreme Court as absolute and unequivocal fact that man X was the person in charge of the quarry and man X admitted that he was at the quarry on an almost daily basis (and therefore knew that the truth was contrary to what he swore). In addition, man X, man Y and CASACIR claimed that: “[Man X] at all material times reviewed carefully the affidavits which he swore in the VCAT proceedings, was careful in giving his oral evidence, and was justified in making statements that he made at VCAT … and part of the information was also based on [man X]’s own observations and knowledge”, “[Man X] did not provide untrue information to VCAT after taking an oath on the bible. He was careful in giving his oral evidence, and was justified in making statements that he made to VCAT under oath … and part of the information was also based on [man X]’s own observations and knowledge”, and [emphasis mine] “Casacir and its representatives have not provided provably incorrect sworn information to VCAT. Its representatives at all material times reviewed carefully the affidavits which they swore in the VCAT proceedings, were careful in giving oral evidence, and were justified in making statements that they made to VCAT”[6] – therefore claiming that what was sworn to was by all of them and that what was sworn to was true.
Man X, man Y and CASACIR’s dust monitoring plan states: “[T]he objective for dust management are: *to ensure that no visible dust emissions are generated by extractive operations are detected beyond the site boundaries”[7] – the dust monitoring plan specified that the objective was for NO visual dust beyond the boundary of the site, yet the repeated failure to meet this objective was ignored[8]. The methods for containing and reducing the dust (listed in the same dust monitoring plan) were either not implemented, or not implemented well enough. Until 25 August 2011[9] man X, man Y, CASACIR, council, DPI and EPA showed no problem with any of this and that such failures meet their “satisfaction” criteria! Even though I had previously provided photos of the significant dust emissions, for 2 years they had ignored the problem and no action was taken. The sudden change of heart on behalf of DPI and council by the belated service of a s110 Notice appeared to be the realisation that their names were up in front in my former website and that people were watching to see what they would do, if anything (DPI served the 110 Notice on man X, man Y and CASACIR, with council watching on (but apparently still not doing anything themselves)). Amazing, isn’t it – and so very sad that it apparently took such actions in order to shame people to actually do their job! – there is no other viable reason given the fact that they had, as stated, previously been advised of the dust problems and had taken no action! However, the day that I received notification of the 110 Notice (25 August 2011), dust was still exiting the site.
For the dust management plan to say that the objective was to have no visible dust, and this was the impression man X, man Y and CASACIR set out to give, then surely to have visible dust was to have failed their own objectives – certainly it failed their dust control (which was to water sufficiently so that there was no visible dust at all).
Sprays
In their affidavit dated 6 September 2010 man X swore (with the later acknowledged approval and authority of man Y and CASACIR (and see their claims above about the sworn testimony being made by all of them and being true)): “(30) … sprays are used to dampen … the mobile crusher”,
Man X (with the later acknowledged approval and authority of man Y and CASACIR (and see their claims above about the sworn testimony being made by all of them and being true)) swore under oath as follows:
Peake: In cross-examination of Mr Pollock, Dr Sadler referred it to a DPI inspection report of the 16th December, 2009. So that’s what… aimed at about the first month of commercial operations and what that said was that “water spray to be used on crushing plant as soon as possible”. Are you able to say whether and when a water spray has been installed on the crushing plant?
Man X: Water sprays had been used on the crushing plants since the start of the work … There’s a sump of water in the base of the quarry that is licensed through Southern Rural Water to us and we use that water for dust mitigation. It’s used to water – – – to keep the haul roads damp and is also used for the sprays on the crushers and conveyers[10].
In a claim later presented to the Supreme Court of Victoria (in relation to which man X, man Y and CASACIR signed overarching obligations certification that they would be honest and not mislead or deceive, or say or do anything that may mislead or deceive), they claimed as absolute and unequivocal fact[11] that I said in my former website that “[they had] falsely stated that there was a fixed spray over the crusher at its Neerim Road North [sic] quarry”, that “[they had] not seemed to care about dust at its Neerim Road North [sic] quarry”, and that “[they had] conducted its quarry operations in such a way as to result in a significant decrease in the air quality”. They also claimed[12] that: “Any statement made on behalf of Casacir that there was a fixed spray over the crushers at the Casacir quarry operation was true and correct. There are, and at all relevant times have been, fixed sprays erected and in operation over crushers at the Casacir quarry operation since its commencement”; “Casacir has always cared and been concerned with any dust arising from the Casacir quarry operation” and “ Casacir has not conducted its quarry operations in such a way as to result in a significant decrease in the air quality”[13].
Firstly, in spite of man X’s sworn testimony and affidavits (approved and authorised by man Y and CASACIR (and see their claims above about the sworn testimony being made by all of them and being true)), the reality was that there hadn’t been any sign of any “fixed sprays erected and in operation over crushers at the Casacir quarry operation”, and secondly, in relation to the above, man X verbally disputed what DPI said in the DPI audits and reports (see below), effectively calling them liars!
The fact is that, even though the fixed sprays were apparently obtained and installed at some stage, they were not used at all relevant times (as evidenced by the significant amount of fugitive dust being produced),
and therefore man X, man Y and CASACIR’s claim that [emphasis mine] “There are, and at all relevant times have been, fixed sprays … in operation over the crushers at the Casacir quarry operation since its commencement” was simply and clearly not true as proved by: (a) the DPI Field report dated 16 December 2009 which stated: “Dust: …crushing plant was not using sprays…. (3) Water spray to be used on crushing plant as soon as possible” [i.e. the sprays were obviously not working at that point (if they were connected at all)]; (b) the DPI field report dated 16 December 2009 stated: “Dust was observed crossing over the boundary with Pearce Road to the west of [her] residence (and dust monitor). Site… was not using sprays … 3. Water spray too be used on crushing plant as soon as possible” [admitting that observable dust was not captured by the gauges and that the sprays were still not in use – if they were connected at all]; (c) the DPI Field report dated 6 January 2010 stated: “(3) Water sprays to be used on crushing plant as soon as possible”, [i.e. in spite of the previous notification the sprays were obviously still not working at that point]; (d) the DPI Field report dated 13 August 2010 stated: “Observations: Inside the site the portable crusher was working without support plant. Light air borne dust was visible from the plant, the water feed was not connected” [i.e. having a water feed that is not connected is useless and showed that the crushers were not sprayed as sworn to]; (e) the August 2011 s110 Notice stated that the dust came from: “[The] portable crushing plant”, and directed that: ”[T]he holder of the authority / former licensee must, consistently suppress or eliminate the generation of dust during working hours … at the crushing plant such that fugitive dust is not released from the work authority” – so dust at the crusher must be controlled – but it had not been controlled at that time; and (f) aerial photos show no such fixed sprays in use,
and (g) even man X, man Y and CASACIR’s own CASACIR’s own website does not show any obvious “fixed sprays”!
In addition to the DPI documents, there were a number of documents showing that sprays were not used when required: (a) the document contained in “NG8” to the affidavit of Neville Goddard dated 9th November: “Measurement of Operational Noise Levels Including Rock Drill” dated 29 October 2010, on the last page “Rock drill and other equipment operating locations” showed plumes of dust (caused by the crushers) that would most likely leave the site; (b) the “Annual [monitoring] report – December 2009 to November 2010” showed dust not being watered over the crushers, and within that same document the “Figure 1-8” and “Figure 1-18” showed dust not being contained, and in fact, most likely leaving the site in a southerly direction (toward us), and “Figure 1-13” also showed the crushers causing dust; (c) the “Quarterly Environmental Monitoring [report]” dated 15 March 2010 front page and Figure 1-3 showed dust caused by the crushers; and (d) the “Quarterly Environmental Monitoring [report]” dated 8 June 2010 Figures 1-2 & 1-3 both showed plumes of dust caused by the crushers not being watered – just to name a few.
What I had written in my former website was true and correct and is proved above. However, man X, man Y and CASACIR deliberately misquoted my former website because what I had actually said was that: “CASACIR had said that there is a fixed spray over the crusher, but my aerial photo taken 8 April 2011 shows this to be inaccurate (certainly on this day or any other day I had had aerial photos taken). There is no sign of any spray, but there is certainly plenty of dust, and this dust is heading to the south, is west enough to miss the gauges, but would affect anyone on our property or the property to the immediate west of ours. However, as we can see, CASACIR do not seem to care”, and “However, in spite of the planning scheme’s requirements to protect and improve air quality: *there has been, and is, a significant decrease in the quality”.
Dust monitoring
Man X, man Y and CASACIR declared as absolute and unequivocal fact to the Supreme Court of Victoria: “Casacir has always cared and been concerned with any dust arising from the Casacir quarry operation…. No notices have been issued to Casacir regarding any contravention of permissible dust levels”[14], and “Casacir has not conducted its quarry operations in such a way as to result in a significant decrease in the air quality. …. No notices have been issued to Casacir regarding any contravention of permissible dust levels”[15]. As seen previously, those claims were fraudulent – particularly given that: dust certainly was causing significant problems for my related parties and me; Dr Belair was not undertaking monitoring until the end of November 2009 for the 2 monitoring gauges, and the real-time unit was admitted to not be working until July 2010; and there was indeed a 110 Notice served on man X, man Y and CASACIR in August 2011 (just prior to claiming that there was no such Notice served on them).
In their affidavit dated 6 September 2010 man X swore (with the later acknowledged approval and authority of man Y and CASACIR (and see their claims above about the sworn testimony being made by all of them and being true)): “31 The aerosol dust monitoring station was installed in 25th November 2009 and was calibrated on 1 December 2009. The delay in installing this was due to the initial supplier not being able to obtain the required equipment. We then contracted a different supplier who subsequently installed the equipment. Now produced and shown to me marked DJ-2 is a true copy of the dust deposition monitoring results for the period 30/10/2009 to 9/4/2010”. Man X, man Y and CASACIR obviously considered that the emissions of dust between 4 August and 30 October to be appropriate and not treating neighbours with contempt or, at best, with blatant disregard. By delaying monitoring they were not be in a position to provide background dust levels and they therefore considered that it enabled them to use 4mg/m2/month average (in breach of legislation) instead of the 2mg/m2/month that legislation allows – i.e. double that “allowed”. And, in their affidavit dated 8 November 2010, man X (with the later acknowledged approval and authority of man Y and CASACIR (and see their claims above about the sworn testimony being made by all of them and being true)) swore: “7 In relation to the matter deposed to at paragraph 31 of my first sworn affidavit, I say that Casacir now has dust monitoring results for the period 20 October 2009 to 29 September 2010. I have read the sworn affidavit of Timothy John Pollock filed herein and in particular exhibit TP6 thereto and I note that the dust deposition rates for the above period are contained in Table 1 of the said exhibit TP6”. This was false as there was no “sworn affidavit of Timothy John Pollock filed herein” – the only exhibit “herein” (to that affidavit) was the “DJ1” not endorsed Figure. That aside, Pollock admitted that there was no effective monitoring for the period from 4 August 2009 to 7 July 2010 – over 11 months – but this was found by man X, man Y and CASACIR (and apparently Pollock) to not be problematic, and by man X to be in compliance!
Man X (with the later acknowledged approval and authority of man Y and CASACIR (and see their claims above about the sworn testimony being made by all of them and being true)) gave the following sworn testimony under cross-examination to the following in this examination:
Barrister: You were in the tribunal … this morning when Mr Pollack… I was asking about the real time aerosol monitor.
Man X: Yep.
Barrister: It didn’t work until July, you agree with that?
Man X: No … No it didn’t. No, no I don’t agree, sorry.
Barrister: Do you agree that Dr Bellair said, is it Dr Bellair, is it Bellair?
Man X: Mm.
Barrister: Bellair says that it didn’t provide any data until 7th July?
Man X: Meaningful data, that’s right
Barrister: So you agree that prior to 7th July you were not complying with conditions for dust monitoring.
Man X: We thought that we were complying with the conditions of the work authority. … The, the er, initially Dr Bellair was… he used, we used all of their … for our references. He er, he thought that it would be better if we got a local lab to test the dust and the deposition gauges and the real time monitor. We were already using Fulton Hogan for our material testing and they said that they would supply the real, the deposition gauges and the real time monitor. … They put the deposition gauges in and they failed to come good with the real time monitor, at which time we leased one from where Dr Bellair said we could get one. It was put in. The data that was retrieved from that was meaningless… the data that was retrieved by Fulton Hogan was meaningless to them and us for some unknown reason. And that was one of the reasons that the reporting from that we changed from that to the new people who are now testing the deposition gauges and, and er, Dr Bellair is also reconfigured our aerosol monitor because somehow it got full of water and got sent back and repaired and they also fitted the, it is probably your next question, they fitted the sender unit that reports to the manager’s phone if there is an exceedence in the, whatever it says in that er, er, L10 or whatever the range of dust[16].
Man X swore to the following in this re-examination:
Peake: At any time prior to Dr Bellair did you find that the real time aerosol monitoring unit was not producing usable data – were you aware of whether or not it was producing usable data?
Man X: We were coming up to point 0015 of a gram per month of dust in the deposition gauge.
Peake: But I’m specifically asking about the real time monitor. Do you know whether it was… did you know if it was working or not?
Man X: No, no I didn’t know if it was working, no I didn’t know it wasn’t working correctly or that all the data that they were getting out of it wasn’t …[17]
There are a number of issues here: (a) man X swore that the aerosol dust monitoring was installed on 25 November and the calibration was on 1 December – in reality I saw Paul Kemp (quarry manager and another staff member) installing the monitor and the Fulton Hogan people later completing the installation and (presumably) calibrating it, all on 1 December 2009 i.e. 6 days after man X swore that it was installed, making man X’s sworn testimony of it being installed “25th November 2009” false testimony; (b) the “TP3” exhibit to the affidavit of Timothy Pollock dated 8 November 2010 states (page 4 and page 5 respectively) [emphasis mine]: “The DustTrack II monitor was initially installed in December 2009. … Instrument – DustTrack II. Start date – 07/07/2010”, thereby proving that (1) man X, man Y and CASACIR did not care to ensure that the real-time tracker was installed in a timely manner and that it was working (the reading unit was in the office and they could clearly see that there were no, or no “meaningful”, readings), and (2) that man X lied under oath.
Two CASACIR workers installing the realtime monitor on 1 December 2009
Fulton Hogan calibrating the device later on 1 December 2009
Even though there was no “real-time” gauge installed outside our property at the time, man X, man Y and CASACIR stated as fact to Bob Duncan of DPI that “the device had suffered several failures today and is not functional, in that no real time data is available” – so they knew that it didn’t work in spite of man X’s false testimony to the contrary. Clearly Bob was not shown the compound adjacent to our property because if he had been shown it he would have found that man X had lied, yet again, provided a deliberately “misleading statement”, and had concealed the fact that it was not actually installed at the time. The unit was installed on 1 December 2009. The “real-time” gauge unit was subsequently missing from at least 11 October to 29 October 2010 and was therefore unable to be operational or “functional”. This did not stop the quarry though.
With the amount of dust being generated and exiting the site they could not possibly guarantee that dust would not affect the water collection from roofs – which probably explains why man X, man Y and CASACIR stated that they would be bringing in water for drinking on site rather than collecting it from the roofs of their buildings.
However, man X, man Y and CASACIR made it clear that visible dust exiting the site was, in fact, not an issue as long as it did not land in the dust monitors (where it would have elevated the readings). So dust could pour off the site (and it did), and as long as it went to the west or east of the gauges and station, it was acceptable to them. Further, as stated, they failed to take “control” readings prior to the quarry commencing works, which then allows the full 4g/m2/month to be quarry dust while the PEM states that it can be no more than 2g/m2/month! Man X, man Y and CASACIR deceptively allowed additional dust from the quarry to significantly affect others outside the quarry (so much for caring for neighbours let alone the law).
These things prove a number of very serious issues – it shows that: (a) the monitoring was not being tracked, and (b) man X, man Y and CASACIR’s staff obviously had not had any training to know how to read or interpret the data so as to know that it was not working (or chose not to, as evidenced by the fact that they tried to tell DPI that the unit was fully installed at a site attendance when it was not even installed in the paddock); (c) the specialist was obviously not monitoring the unit and data, or did not know how to monitor the unit and data, so as to know if it was working or not; (d) man X, man Y and CASACIR had had since 19 January 2009 to have ordered the unit but obviously did not do so in a timely fashion; (e) the fact that there was absolutely no monitoring at all from 4 August to 1 December was not a concern to man X, man Y and CASACIR; (f) there were no background levels (i.e. taken prior to the start of any works on site), thus allowing man X, man Y and CASACIR to use the elevated levels; (and the time that the unit was purportedly not working was conveniently during what could well have been the most dust producing timeframe (e.g. building the bund)!), (g) man X (with the later (and see their claims above about the sworn testimony being made by all of them and being true) approval and authority of man Y and CASACIR) swore that, in his opinion, not having data to retrieve for over 11 months was actually complying with the permit and work authority conditions; and (h) that all this was deemed by him to be environmentally responsible.
Man X (with the later acknowledged approval and authority of man Y and CASACIR (and see their claims above about the sworn testimony being made by all of them and being true)) swore to the following in this cross-examination:
Barrister: You have seen dust exiting the site, haven’t you?
Man X: No, I haven’t seen dust exiting the site. [18]
With regard to man X’s sworn testimony that “I haven’t seen dust exiting the site”, it is clearly false testimony given that:(a) he was at the quarry site almost every day (according to him under oath) and was therefore present at the times of blasting when considerable dust left the site each time; (b) the DPI Field report dated 16 December 2009 stated: “Dust: Dust was observed crossing the boundary with Pearce Road to the west of [her] residence (and dust monitor).…” – so man X at least knew about it; (c) the document contained in “NG8” to the affidavit of Neville Goddard dated 9th November: “Measurement of Operational Noise Levels Including Rock Drill” dated 29 October 2010, on the last page “Rock drill and other equipment operating locations” shows dust caused by the crushers that would most likely leave the site; (d) the “Annual [monitoring] report – December 2009 to November 2010” shows dust not being watered over the crushers, and within that same document the “Figure 1-8” and “Figure 1-18” show dust not being contained, and in fact, most likely leaving the site in a southerly direction, and “Figure 1-13” also showing the crushers causing dust; (e) the “Quarterly Environmental Monitoring [report]” dated 15 March 2010 front page and Figure 1-3 show dust caused by the crushers; (f) the “Quarterly Environmental Monitoring [report]” dated 8 June 2010 shows Figures 1-2 & 1-3 both show dust caused by the crushers not being watered. Further: it must be noted that a subsequent 110 Notice for the emissions of dust off-site was issued in August 2011.
Dust monitoring was not undertaken from the time that works commenced.
Significant dust exited the site on frequent occasions – and such dust detrimentally affected us.
Locations for monitoring were in only two locations and yet DPI identified that significant dust had missed the monitors – however, DPI didn’t think that there should be any more monitors, and were not willing to require any additional units, in spite of us asking for more (see the webpage on “collusion”[19].
Further dust issues
On 27 November 2009, at 9-56 a.m. I spoke by mobile telephone to Paul Kemp, the quarry manager, whilst sitting in my car at the top of the hill in Pearce Road (near the dam that is on man X, man Y and CASACIR’s property). There were considerable quantities of dust blowing off the property on to my property at the time which would have been perfectly obvious to Paul, whether he was sitting in his office or on machinery around the site. The water cart was not visible, but construction was proceeding causing the dust. The substance of the conversation was as follows. I said: “I’m just wondering how the dust suppression is going.” He said: “Its going well. As we speak the water cart is being re-filled.” He later said that the quarry issues were none of my business! Following the conversation, excessive noise and dust emissions continued unabated. By sms dated 28 November 2009 I said: “Paul, I don’t appreciate you telling me that the quarry … has nothing to do with me – it has everything to do with me when you chose to ignore the limits and continue to destroy my amenity”. To show how ludicrous their claim was, see the photos in this page where the significant dust is leaving leave the site, including caused by the water cart!
As stated earlier, air quality was not evaluated prior to works commencing – so there are no background measurements. This allowed them to lift the levels permitted.
The above are but a few of the many issues that prove the real reasons why man X, man Y and CASACIR’s claims of injurious falsehood and misleading and deceptive conduct, as well as why CASACIR itself had to be removed and that the claims had no merit. In fact, the only reason that they were in the claim in the first place was because they were trying to use them as a further lever to bully, scare, intimidate and coerce me into removing my former website in its entirety from the internet – it actually had nothing to do with the purported words identified. This is further proved by the fact that, once I had succumbed to their bullying and intimidation, and removed the entire website, they immediately removed every injurious falsehood and misleading and deceptive conduct claim, and CASACIR.
A typical way in which man X, man Y and CASACIR attempted to get the truth pushed aside is evidenced in man X’s sworn testimony at the Supreme Court where he swore as the absolute truth, the whole truth and nothing but the truth in relation to the 110 Notice for dust that had been served on him, man Y and CASACIR (in spite of them claiming and assuring the court as unequivocal fact that they had not been served with any such Notice):
Me: Is the following fact the case that you said as an explanation for a claim in (j), and I use the words, the explanation that you used in your statement as: “As to [man X’s] statements and as to [man X’s] representations”, so under (j) did you say: “Department of Primary Industries has attended the CASACIR quarry land frequently for inspections as recently as September 2011 and has not issued any contravention or infringement notice as a result of such inspection”?
Man X: Yes.
Me: You did?
Man X: I did, yes.
Me: Yet I’ve got a 110 notice here that is dated 9 August 2011?
Man X: Does that say infringement notice?
Me: It’s a notice under section 110 which is an infringement notice.
Man X: That’s only an observation, if you read it or get an opinion for it.
Me: It’s a compliance notice.
Man X: It’s an observation relating to dust.
Me: Yes, because of dust exiting the site when it wasn’t supposed to. You agree with that one, so that’s all right.[20]
That s.110 notice stated [emphasis mine]: “The act or omission which is likely to result in a risk to the environment OR Description of the contravention or non-compliance” and noted that: “The act is, release of fugitive dust beyond the boundary of the work Authority and is likely to result in a risk to the environment from, producing adverse impacts on sensitive locations and residents. The holder of the authority had, [sic] not complied with a condition applying to the carrying out of the approved work plan by, allowing fugitive dust generated by truck traffic and portable crushing plant to exit the Work Authority”. The Notice then goes on to state: “Directions as to the measures to be taken to remedy the risk or contravention: I hereby direct that the holder of the authority… must, consistently supress or eliminate the generation of dust during working hours on the pit entry road and at the crushing plant such that fugitive dust is not released from the work authority”. The notice then goes even further by stating: “Offence: The holder of an authority must comply with a section 110 notice. Failure to comply with a section 110 notice is an offence under the Act. In the case of a corporation, the penalty is 1000 Penalty Units, with a default penalty of 20 Penalty Units. In any other case, the penalty is 200 Penalty Units, with a default penalty of 10 Penalty Units”. Clearly this was a very serious document and so much more than “only an observation” notice as claimed by man X – but it possibly explains why man X, man Y and CASACIR decided that they did not have to comply: because (1) they don’t see them as contravention notices in spite of having contravened the law, and (2) because they choose to interpret such notices differently, they therefore don’t necessarily take the notices seriously. The reality is that the dust must be controlled, but it had not been controlled at that time (or at many other times prior to since).
Instead of taking responsibility for their actions and try to mend their ways, man X, man Y and CASACIR “victim blamed” me and tried to make it all my fault for revealing what they do and don’t do – in fact, man X testified under oath in the Supreme Court as absolute and unequivocal fact that: “We have always done something but you’ve had to bring it to our attention and everybody’s attention again”[21]. In other words it was my revealing it, not the things they did wrong that were, to them, the problem.
Clearly man X, man Y and CASACIR made fraudulent claims and denials in relation to dust and air quality (as well as having ignored legislation). As we have seen as we have been progressing through the website, this is nothing new. The above is a strong indication about how relaxed they feel about attempting to pervert the course of justice, obstruct justice, abuse the court’s processes, make collaborated fraudulent claims and denials, and why they won the VCAT cases and the associated appeal costs, and also won hundreds of thousands of dollars in court in damages, interest and costs in the Supreme Court.
Man X, man Y and CASACIR made misleading statements in regard to dust control and the impacts of the dust. There clearly would be, and are, off-site particulates and that is concealed by them.
[2] Even though 2g/m2/month was “allowed” the dust had to remain within the site and not travel beyond the site – which was not complied with.
[3] The clause numbers were accurate t the time, but have since changed.
[4] This is changed to currently be clause 13.06-1S (the clause numbers change periodically)
[5] Photo is attached of dust being caused by the water cart – on wet ground
[6] These quotes are from man X, man Y and CASACIR’s statements of claim dated 29 November 2011, 20 February 2012 and 2 March 2012 in paragraphs 20 and 29.
[7] See my webpage on the “site identification”
[8] Apart from the very belated one-time s110 Notice – only generated in response to my firmer website’s critical comments.
[9] Over 2 years after the dusty works commenced
[10] T7:25–T8:4 (26 November 2010)
[11] In the first 5 iterations of their statement of claim at 19(b)/28(b) and 19(c)/28(c)
[12] In their claims “as to Casacir…” 20(b)/29(b and 20(c)/28(c)
[13] In their claims “as to Casacir…” 20(c)/29(c) and 20(d)/29(d)
[14] Under their Overarching Obligations in their Statement of Claim 20(c) and 29(c) (as to the CASACIR statements/representations)
[15] Under their Overarching Obligations in Statement of Claim 20(d) and 29(d) (as to the CASACIR statements/representations)
[16] T45:15–T46:11 (26 November 2010)
[17] T49:11-18 (26 November 2010)
[18] T46:26-27 (26 November 2010)
[19] The use of the word “collusion” is my inference based on what I personally saw and what I read from FOI results