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.
Man X, man Y and CASACIR’s Planning permit conditions [emphasis mine]
“53. Prior to the commencement of works the applicant must provide a brief hydrogeological assessment to Southern Rural Water. The assessment must address but be not limited to: Aquifer Conceptual Hydrogeology: i. aquifer identification and known aquifer characteristics at the work site; ii. is groundwater at this site confined or unconfined at this locality?; iii. known trends in aquifer behaviour (e.g. increasing drawdown decreasing quality); iv. has groundwater in this locality a beneficial use? Potential Impact to Groundwater: i. whether the proposal will cause unacceptable pollution to groundwater; ii. whether the proposal will impact on the natural movement of groundwater. Surface Water Features: i. identify any surface water features within close proximity and assess whether this proposal will impact on the water quality and quantity, including springs and waterways. If so, to what degree?”
“54. The permit holder must to the satisfaction of Southern Rural Water: i. undertake sufficient investigations to ensure all springs and waterways potentially affected, whether on or off the site, are mapped and any party potentially affected by interception of water caused by the excavation is identified; ii. determine the extent of the impact based on reasonable assumptions and how it intends to mitigate or compensate for the potential adverse impacts; iii. describe what contingency plan is in place if an unanticipated water source is intercepted during the development of the quarry, ie how will they contain the discharge and disposal of water; iv. consider the need to obtain a licence if it is identified that the excavation is likely to intercept water. Any recommendations arising out of these investigations must be implemented to the satisfaction of Southern Rural Water. Note: If groundwater or water surface water supplies (other than stormwater harvested from roofs or from what stormwater falls within the quarry itself) will be used for industrial or commercial purposes, a licence in accordance with section 51 of the Water Act 1989 will be required.”
“55. Prior to the commencement of the use groundwater monitoring bores must be drilled on the site to the satisfaction of Southern Rural Water. The results from the groundwater monitoring bores must be reported to the responsible authority and to Southern Rural Water every 12 months.”
“56. A contaminants spill containment kit must be available at all times that machinery is being used in the quarry pit.”
“57. The permit holder must comply with the requirements of the Water Act 1988, to the satisfaction of Southern Rural Water.”
“58. The quality of any water discharged from the site (including but not limited to the flows to the gully to the south of the land) must be tested and maintained to the satisfaction of the responsible authority, Southern Rural Water and West Gippsland Catchment Management Authority. The testing must include the following: i. routine groundwater and surface water sampling of the sump, two dams, and drainage line, should be undertaken to assess water quality during quarry operation and two years after rehabilitation. The samples should be analysed for major ions, pH, EC, turbidity and hydrocarbons by an accredited NATA laboratory; ii. confirm the groundwater beneficial use based upon the analytical results; iii. undertake further modelling to optimise the settling dam and farm dam (top dam) capabilities. This may require a deepening of the settling dam to provide for a suitable freeboard; iv. prepare a contour drain section and level design based upon peak flow estimates at various locations along the drain.”
Man X, man Y and CASACIR’s work authority conditions [emphasis mine]
“12. Erosion, Drainage and Discharge Controls. 12.1 The Work Authority holder must design, install and maintain erosion and sediment controls to prevent erosion of areas of disturbed land and sedimentation of waterways. 12.2 Where quarry activities are being conducted in waters or on the banks of waterways with water in them, the Work Authority holder must ensure that sedimentation of the water in the water way is minimised to an acceptable level. 12.3 The Work Authority holder must prevent contaminated runoff from entering receiving waterways. 12.4 No water is to be discharged from site without approval by the Department after consultation with the relevant authorities”.
“13. West Gippsland Catchment Management Authority Requirements 13.1 A copy of any flow and water monitoring programs and other management plans and licences as required by West Gippsland Catchment Management Authority is to be delivered to the District Manager prior to the commencement of associated or affected works”.
“14. Southern Rural Water Requirements 14.1 A copy of any hydrogeological assessment, investigations, reporting of groundwater monitoring bores and water quality testing as required by Southern Rural Water is to be delivered to the District Manager prior to the commencement of associated or affected works”.
“15. Water Dams 15.1 The Work Authority holder must ensure that the location, design, construction, operation and safety management of water dams on the Work Authority area are undertaken in accordance with the Approved Work Plan”.
Man X, man Y and CASACIR commenced works at the quarry on or prior to 4 August 2009, and this was, in effect, confirmed (1) by photos of the works, taken on 4 August 2009, (2) by a letter from CASACIR dated 10 August 2009, and (3) the hydrogeological assessment dated 13 August 2009. In contradiction to reality, man X swore in his affidavit dated 6 September 2010 (sworn under the later admitted approval and authorisation of man Y and CASACIR): “On or about 16th August 2009, construction works commenced on site. This was after the receipt of a letter from Southern Rural Water advising approval of the Hydrogeological Assessment prepared by Hyder Consulting dated 11th [sic]August 2009.” He effectively confirmed under cross-examination that he had said that the date he chose to name as the start date was so that it was after the date of the hydrogeological assessment’s date (which was dated the 13th not the 11th August 2009) [emphasis mine]:
Barrister: Paragraph 6 of your affidavit reads “On or about the 16th August 2009, construction works commenced on-site” – that was after you got a letter from Southern Rural Water, with the hydrogeological assessment, the hydrogeological assessment from Hyder dated 11 August that is what you swear.
Man X: [silence]
Barrister: I’m looking at paragraph 6 of your affidavit.
Man X: I’m reading it there, yep.
Barrister: So, you’re saying you — is it true to say that you were waiting for the hydrogeological assessment to arrive by letter, which came by letter dated 11th August 2009, and which then enables you to go ahead and undertake construction works?
Man X: No I’m not saying that at all. I’m saying that that had to have, to be as part of our requirements, to be produced for Southern Rural Water and that report had to be produced for Southern Rural Water and the catchment people, … the Catchment Management Authority, for them to have everything in place, so that we could actually start.
Barrister: And that wasn’t in place until the 11th August?
Man X: That’s right, yeah. I put to you that you commenced, you had commenced construction works on the 10th August …You’ve read exhibit 2 to [my client’s] first affidavit.
Man X: [silence]
Barrister: There is a letter from you to her dated 10th August 2009. Do you remember that? … Okay, exhibit 2 is the letter dated 10th August 2009 from CASACIR to [my client]. It says “Notice to neighbour. Just writing to inform you that extraction works have now commenced at our quarry site at Neerim North, Yours sincerely”.
Man X: Well it could be, yeah.
Barrister: Not it could be, it is. This is a letter from … I’m saying to you [man X] that you swore on an affidavit that you commenced construction works on or about 16th August 2009.
Man X: That’s right.
Barrister: Following receipt of a letter from Southern Rural Water dated 11th August 2009.
Man X: That’s right.
Barrister: And I’m saying to you that on the 10th August 2009 – – –
Man X: Yep.
Barrister: You wrote a letter to my client as said that construction works had now commenced.
This hydrogeological assessment was required to provide the information listed in the conditions, but:
- The identification of aquifers, such as it was, only went to the maximum depth of 29m for trial drilling, and a maximum depth of 15m for monitoring – even though man X, man Y and CASACIR intended, and still intend, to excavate to a depth of up to 75m, and their 2006 research bores and the resulting work plans told the story of interception of groundwater at various levels. However, in spite of that, there was none of the required identification in the hydrogeological reports of the lower aquifers, and therefore they had not adequately identified if the aquifers were confined or not, or their trends, or their movements, or their behaviour. In addition the identification of “beneficial use” also required identification of those who used the water and obtained a “beneficial use” from the water, and that was also not provided.
- There was no background water quality information provided so it was impossible to know that there was or would be “pollution to groundwater” caused by the quarry, “unacceptable” or not (any and all pollution should be deemed “unacceptable” – any pollution was certainly unacceptable to us!)
- There was none of the required “[identification of all] surface water features within close proximity” or an “assess[ment] whether this proposal will impact on the water quality and quantity, including springs and waterways [and] to what degree”.
- There was absolutely no identification of the impact on Latrobe River by loss of water flow, or by the discharge of polluted drainage going into it.
- There was no identification of the impacts to the spring on the south-west of the site as to quality and quantity impacts, either in the hydrogeological assessment or since.
- There was no proposed water quality loss assessment to the spring to the west of stage 1 (erroneously called the south-west spring).
- There was no stated water quantity loss, even though they were going to destroy the spring and take all natural flow of water and replace it with polluted quarry wastewater and drainage. In fact man X, man Y and CASACIR’s apparent intention was to minimise the impacts by implying the spring would merely be (a) “disturbed” and (b) “intersected”[1].
- The spring to the south-west (outside the site – the real south-west spring) was not “mapped”.
- there was no identification of any impacted “party”, there was no attempt to “determine the extent of the impact” and there was no attempt to “mitigate” or “compensate” for the “adverse impacts” on those affected parties.
- There was a requirement to “describe what contingency plan is in place if an unanticipated water source is intercepted during the development of the quarry, ie how will they contain the discharge and disposal of water” and this was not properly addressed.
- There was a need to “consider the need to obtain a licence if it is identified that the excavation is likely to intercept water”, but FOI requests revealed no such consideration – in spite of their work plan and hydrogeological reports declaring that there would be such interceptions.
- Even though there was a legal requirement to assess whether “groundwater or water surface water supplies (other than stormwater harvested from roofs or from what stormwater falls within the quarry itself) will be used for industrial or commercial purposes”, and “If a licence in accordance with section 51 of the Water Act 1989 will be required”, they took and used water that required a permit, without even applying for a permit for 6 months, for 9 months without a permit, and for over 16 months without a meter (if there is actually a meter even 10 years later).
- “[R]outine groundwater and surface water sampling of the sump, two dams, and drainage line, should be undertaken to assess water quality during quarry operation and two years after rehabilitation. The samples should be analysed for major ions, pH, EC, turbidity and hydrocarbons by an accredited NATA laboratory”, was required but not undertaken for the first 4 months of activity and even then, some of the later samples that were supposed to be taken by the NATA laboratory, were actually taken by quarry staff.
- There had to be “further modelling to optimise the settling dam and farm dam (top dam) capabilities”. “This may require a deepening of the settling dam to provide for a suitable freeboard” There was no deepening or enlarging of the dam, and no freeboard was maintained.
- There was also the requirement to “prepare a contour drain section and level design based upon peak flow estimates at various locations along the drain”, but this section and level design was not provided.
Did they comply with their conditions – I believe that the answer has to be a resounding “no”, yet they plead compliance: “CASACIR has complied with each condition of its planning permit”[2].
It should be noted that the requirement for commencement of monitoring was “prior to Stage 1 works commencing”, not the “use” commencing. However, there was no monitoring of water quality impacts on quality prior to 17 December 2009 – 4 ½ months after the quarry works commenced and over 3 months after the use commenced!!
It is my strong opinion that not only did man X, man Y and CASACIR did not properly monitor the springs and dams, they did in fact pollute the surface water.
The Draft Victorian Waterway Management Strategy identifies that “negative externality” is when a business produces goods (or services) but does not have to pay the costs associated with the pollution caused by producing those goods or services but instead, those costs have to be spread across society. This was what is happening at Neerim North – the pollution caused by man X, man Y and CASACIR’s Neerim North quarry failure to control dust, polluted drainage and other pollutants, was not paid for by them but was paid for by us in not being able to have cattle because of the drainage being allowed to discharge from the quarry in spite of repeated undertakings to have and maintain a “closed system”, and their unequivocal statement that the “use and development … will not cause detrimental impacts on surface waters or groundwater” and “will not cause detrimental impacts on agricultural activities in the area” [emphasis mine], and the inability to be on site because of the significant amounts of dust in the air on frequent occasions (in addition to them having often been over the limit noise, etc).
The Strategy also stated that the Government relied upon individual businesses to manage their own actions and enterprises in ways that met their required “duty of care”, and as stewards of both land and water resources. I don’t believe that the aforesaid discharge of polluted drainage, dust and noise (for example) from the site would constitute proper “duty of care” or stewardship, particularly since such emissions were in breach of man X, man Y and CASACIR’s work plan, planning permit, work authority, as well as legislation, and their own undertakings.
Further, the document also states that good land management is also vital to ensure that the values of waterways downstream are not impacted. Our waterway was significantly and repeated impacted, and was impacted every time man X, man Y and CASACIR allowed their polluted drainage to discharge off site and enter Kookaburra Creek either directly, through its tributary, or through the groundwater system (with them having admitted that “Experience from the previous quarry operation indicated there was minor groundwater infiltration into the excavation. This water, along with any storm water collected around the pit was stored in sumps at the base of the quarry. … The stored water maintained a fairly constant level, with ground water escaping into fractures in the ground. … The same system exists today. The hillside to the east of this gully and south of the road is relatively stable and it appears that any sub surface water originating from the north of the road (ie within the proposed quarry development area) flows along permeable horizons towards the south trending [Kookaburra Creek]”[3].
The Strategy is a powerful document and gives clear and unambiguous information about expectations, such as the need for landowners to fence, plant and manage riparian areas adjacent to waterways – all aimed at the protection of the waterway and the downstream uses. Actions, such as fencing, planting vegetation to protect the flows, and off-stream watering points for livestock, are acknowledged to significantly improve waterway condition. However, not only have man X, man Y and CASACIR not fenced off the waterways (Kookaburra Creek or its tributary), they have also not planted trees or vegetation along the banks, but have allowed dust, mud, and other pollutants to enter it, as well as intending to absolutely destroy the spring, the upper reaches of Kookaburra Creek, the entire upper catchment area, and to quarry through the aquifers that feed the spring. In addition, land also owned by man X and man Y that is adjacent to the quarry land (but outside the “site”), has no protection of the flow from the impacts of cattle, and it is this part of the flow that is a current receiving point for some of man X, man Y and CASACIR’s discharge of polluted drainage. Again, it raises the issue of compliance with the requirement for proper “duty of care” and stewardship.
The application for the Works on Waterway had to be submitted prior to stage 2 commencing, but was not applied for even years later (according to the WGCMA’s manager of strategic planning, Adam Dunn) – which would have legislatively required consultation with us. I believe that man X, man Y and CASACIR most likely pushed to not have to have community consultation, particularly with us. I base this in a number of things:
*They have previously performed works and operations on Kookaburra Creek that have not had either an application or a permit or licence (making the works both illegal and unauthorised), and they refused to admit to having done some of those works even though they eventually (after we took legal action against them) agreed to restore the flow they had denied deviating.
*They set out to dismiss our claims under the Water Act 1989 that we had the right to take water from the waterway that flowed through our property, for stock and domestic purposes.
*In fact, according to them the waterway that is identified in their own documents, on government maps and in the WGCMA database, does not even exist!
*There was no evidenced concern about the polluted drainage discharging from the site into Kookaburra Creek and its tributary and, in fact, they denied it (I think that they must believe that water (and drainage) flows uphill based on claims in their own documents!)
*Graeme Peake (previous barrister for man X, man Y and CASACIR) assured the 2008 tribunal as absolute fact that man X, man Y and CASACIR would discuss and resolve water issues with us (but they have never done so),
* Peake told the 2010 tribunal that if we objected to the supposed immanent Works on Waterway application it would stop the quarry.
Yet, in spite of all that, we have not had any contact from man X, man Y and CASACIR regarding water issues. In fact, they actively refused to reply to correspondence from us about those and other related issues (by not replying), and even sought to fight FOI releases in answer to council regarding the drainage issues.
In relation to dams, Kraan’s statement of evidence stated as fact that: “4.10 In the early phase, … the existing settling dam will be enlarged to create a surface area of approximately 4,000 m2 … 4.11.3 The primary settling dam … The normal full supply level will be reduced to provide a minimum freeboard of 4 m”. The planning report (endorsed as part of the permit) dated January 2008 stated as fact that: “(3.11 … the quarry sump will be enlarged to create a surface area of approximately 4,000m2 … 3.12.3 … The normal supply level will be reduced to provide a minimum freeboard of 4m”. The work plan dated 12 May 2009 state as fact that “(6.2.4 – stage 1) … quarry sump …, maintaining approximately 4m freeboard” and “(6.6.3) … The existing quarry sump will be enlarged in area (to ~4000m2) … water level lowered to provide a minimum 4m freeboard”. However, (1) there was no apparent enlarging of the dam, (2) there was certainly no 4m freeboard in spite of man X, man Y and CASACIR and their specialists claiming that man X, man Y and CASACIR would be maintaining a four metre freeboard. In addition, they had originally claimed a one metre freeboard on the so-called “clean water dam” (in reality a filthy shallow dam) – but did not do so.
Some photos of the dam they considered to be clean and fresh follow (taken on various days), with the last photos showing the main dam with the total lack of silt and/or sediments traps required in order to comply wth their work plan, permit and work authority:
[1] (a) planning report clause 3.12.2 and work plan clause 2.5, and (b) work plan clause 6.6.4
[2] Clause 48 of the affidavit dated 6 September 2010, sworn by man X, with the later admitted approval and authorisation of man Y and CASACIR.
[3] Clause 2.5 of their work plan (endorsed as a fundamental part of their planning permit, and being the document at the base of their work authority).