Part 2 of 2
BLUE WEDGES COALITION
SUBMISSION TO THE
SUPPLEMENTARY ENVIRONMENTAL EFFECTS STATEMENT
Toxicity and Public Health IssuesRisks to recreational swimmers and beachgoers
The Summary SEES Brochure states (p. 32):“Extensive research by PoMC has identified no health risk concerns for recreational swimmers or consumers of fish caught in the lower reaches of the Yarra River as a result of the CDP.” This statement is not borne out by the facts contained in the Human Heath Risk Assessment (HHRA Appendix 60). In particular recreational swimmers will be put at risk by Channel Deepening, according to the HHRA with the risk categorised as “minor”.
We note that “minor” impacts according to the SEES include a “high impact for some individuals”, including up to 10 people developing a major illness or injury such as cancer and up to 100 people developing a minor injury”.
We note also that there are no risk mitigation strategies in relation to these “minor” impacts on potentially thousands of swimmers.
Thousands of beachgoers use northern bay side beaches in summer and risk becoming ill as a result of the toxic plume
“… Over 400,000 Victorian adults who had visited the Bay in the last twelve months spent the bulk of their time in the St. Kilda, Elwood and Brighton area of the Bay on their last visit. Nearly half of these visitors were in the two age cohorts 25-34 and 35-44 years old, some 41% of the total visitors had children at home under 18 and a third visited with children, suggesting the total visitation in the area could be over 500,000. This area also attracted some of the most loyal visitors with some 53% who mostly visited just this area rather than spreading their visits around the Bay and only 18% who had only visited the area once.”
“This project area also includes Williamstown which attracted some 216,000 adult visitors or potentially nearly 300,000 visitors in the last 12 months who spent the bulk of their time in the area.”
Turbidity modelling shows how the toxic plume may affect beach goers. We note that the turbidity modelling is likely to have under-estimated the extent of the toxic plume, so these social impact assessments will also under-estimate the impacts.
Appendix 59. Social Impact Assessment – Final Report. Sinclair Knight Merz, January 2007, is an example of a consultant relying on the turbidity modelling to draw conclusions in their field.
p.95. “The diagrams above (figure 5-3: Plumes in Yarra River and Hobsons Bay (5mg/L, surface layer)) indicate that the plume from the TSHD, while dredging in the Yarra and Williamstown Channels, will be present in varying densities along the banks of the Yarra River downstream from Appleton Dock to a point some distance to the south-east of Williamstown. The greatest turbidity would be found between Williamstown Road and Breakwater Pier and could be most noticeable along the Williamstown foreshore. The effects of turbidity could persist for a period of several months as described under the dredging schedule above”.
p. 96. “On occasion, users of Williamstown beach or beaches extending eastwards towards Albert Park would be able to notice the plume…. Much of the dredging in this project area is scheduled to occur between December 2008 (early summer) through to and beyond Easter 2009, where a plume of 5mg/L may occur with a frequency that might vary from one day in 8 to almost two or more days in a fortnight or more The plume is expected to be noticeable against background though not strong and this could discourage activities involving contact with the water at particular times – for example parents taking their children to the beach on fine summer days when they might expect clearer water, especially if they felt that the plume was unsafe, or was contaminated in any way.”
A proportion of these hundreds of thousands of people may unknowingly swim in the toxic plume and their health may well be endangered as a result.
Australian and New Zealand Guidelines for Fresh and Marine Water Quality, 2000 includes section 5. Guidelines for Recreational Water Quality and Aesthetics, state (p. 5-8):
Waters containing chemicals that are either toxic or irritating to the skin or mucous membranes are unsuitable for recreation.
In general, there are two kinds of human exposure in swimming areas: contact with the water-body and ingestion of the water…… Special care must be taken to check for substances that can enter the body through absorption through the skin.
Human Health Risk Assessment Head Technical Report. Golder & Associates, January 2007 states (p. 67):
“… The available water quality data with which to compare against water quality screening criteria were for dissolved phase contaminants only. Suitable data were not available on the concentration of contaminants associated with particulate bound contamination in each project area. Therefore, for the purposes of a conservative assessment, the consequence rank for direct exposure of swimmers to contaminants from sediments in the North of the Bay and Yarra/Hobsons was increased from negligible to minor. A higher consequence rank than minor was not considered to be warranted on the basis of the short exposure duration of swimmers and other people in the waters of the Yarra River and Port Phillip Bay.”
This can be interpreted in simple language: “We don’t have the data to know whether or not the water will be safe to swim in. The toxic plume could well make swimmers sick. However, as the project will only last for two years, it can be seen as temporary, so we will classify this impact as “minor”. We don’t think anyone will die as a result though we don’t really know”.
In relation to ‘Surface Water Data Set screening and modelling’ Golder 2006 (p. 19) states:
“The surface water data set was derived from Jennifer Hale (2006) as these were measured water quality values resulting from maintenance dredging activities in the Yarra Port area (where sediments are known to be contaminated by a range of chemicals). Water samples were filtered after collection and analysed for metals and a range of other parameters. The reported concentrations are considered to be predictive of dissolved phase chemical concentrations in contaminated areas.”
“It was concluded that the empirical data set derived from maintenance dredging activities (Hale, 2006) was the most representative of the available data of the surface water concentrations representing dredging activities.”
Hale. J. 2006. Minor Maintenance Dredging Campaign. Water Quality Monitoring in the Dredge and Disposal Plumes. Draft 1. August 2006 is referenced in the bibliography of the Golder Report, but the Minor Maintenance Dredging Campaign report has not been included in the Technical Appendices (neither hard copy nor CD form). Nor are there any other reports in the Golder HHRA bibliography relating to “maintenance dredging” and water quality.
In the absence of this report it is impossible to determine what sampling methods were used, the time and place of the maintenance dredging, or the type of dredge in use. However, it appears likely that a backhoe/grab dredge was used. Backhoe/grab dredges do not produce a plume of anywhere near the magnitude of a TSHD. There can be no reasonable assumption that surface water data sets resulting from sampling associated a backhoe dredge operation would be equivalent to sampling associated with a TSHD.
This is a MAJOR CONCERN.
A timing schedule ought to have been devised, so that public health risks were “designed out” of the Project.
A stated “Key objective” of the SEES process was to “ensure, wherever possible, risks have been ‘designed out’ of the CDP”14 Risks to swimmers have not been designed out of the project. -They ought to have been.
There is no risk mitigation strategy in place to manage the health risks to swimmers.
There is no mention of the “minor” human health risks in the Risk Evaluation section of the SEES. “The SEES risk assessment results indicate that there will be a number of Minor predicted effects of the CDP around the Bay (Risk evaluation section 7R) “In the Yarra River and Hobsons Bay… Creation of the dredging plume and associated increased suspended sediments is expected to cause reduced light and reduced visibility.”
The Risk Evaluation Section makes no reference to the ‘Minor’ human health risk (reported by Golder 2006) associated with recreational swimmers in contact with contaminants associated with particulate bound contamination.
As the risk of swimmers in contact with contaminants is overlooked in the Risk Assessment there appears to be no Risk Mitigation strategy.
The most obvious risk mitigation strategy would have been to time the project so that the toxic plume was not present through the summer months. Other important strategies after the event could have included water quality monitoring, with associated health warnings and beach closures. In the absence of these measures illnesses, injuries and possibly deaths may result.
The bund –will it work?Significant delays expected before toxic sediments can be capped
According to SKM15 “Delays of 6 to 12 months to the capping process are often necessary before the dredged material reaches sufficient strength to place the initial capping layer. Then another delay of say 3 to 6 months may be necessary until the final layer is placed. Past Experience with existing aged dredged material indicates that even after 5 years this has not occurred. It would seem impractical to cap the new dredged contaminated material from the Yarra River using readily available techniques over a reasonable time period”
Our assessment after further reading is as follows:
- Table 5.4 on page 5-6 of Appendix 28 shows that dumping of the contaminated sediment in the DMG takes 33 days, and it needs to be consolidated for at least 20 days before adding any sand.
- Elsewhere a waiting period of up to 140 days is quoted, but the absolute minimum is 14 days.
- If the sand is not added very slowly and carefully, it can penetrate the sediment and fall through it. Capping with 0.5 m sand takes 34 days. Then clean sediment is put on top and the layers are allowed to consolidate for 620 days. The whole process is expected to take about 3 years, but it will continue to consolidate further for decades.
- The critical phase is the first 70 days during which the sediment is added and allowed to settle. If there is a big storm, during this time, the sediment may well be disturbed and moved out of the DMG.
- Even in the absence of a storm, toxins would be expected to leak out into the water column through the process of diffusion.
PoMC is effectively placing at least 2.6 million tonnes of toxic, contaminated material, classified as unsafe for unconfined marine disposal, essentially uncapped for an unknown period of time - somewhere between 14 days and over five years – into the waters of Port Phillip Bay.
There are also serious doubts as to whether the bund designed to contain the toxic sediments will work. These concerns include the following:
- The core of the bund is to be composed of contaminated sediment dredged from the Yarra River and that core will remain exposed until covered with sand, and the remnant contaminated material that is still stuck inside the dredge hopper after unloading will be flushed out with sand.
- The walls of the bund may be more toxic that expected. The SEES advises that the bund will be constructed of deeper consolidated sediments taken from the Port Melbourne Channel16. These consolidated sediments have not been adequately sampled, so may well be toxic.
- Clays to be used in the construction of the bund wall are found at depths below where known toxic sediments exist. As sampling of consolidated sediments intended for the bund wall has, we contend, been inadequate, a problem emerges:
- Being at less depth, toxic sediments will need to be dredged first. What will happen to these toxic sediments whilst they await the bund walls? Are they to be stored on land? Are they to be dumped, uncapped in the Bay?
- Are the walls of sufficient strength to ensure the integrity of the bund?
- Will the capping work? SKM raised the possibility of capping failure: “there are possibilities of failure in a variety of mechanisms”. These include:
- A sand cap floating on a fluid-like dredged material, then tipping to allow the dredged material to escape the surface
- A sand cap through which a pressurised dredge material erupts much as a volcano erupts through the earth’s crust.
- Multiple punching failures that allow columns of sand to penetrate until equilibrium is reached and bridging occurs between the tops of sand columns (similar to stone column construction).
At best the “containment” may slow down the rate of leakage from the toxic dumpsite; it will still not be able to totally contain the toxins. (See Appendix 28, page A-9)
Short term Bunding-Long term Problem
We note that the bund has a design life of thirty years.17 Many toxins last for much, much longer than the design life of the bund. DDT, for example, is well known to be extremely persistent in the environment. DDT was found in 75% of samples and was found in concentrations 17 times over the screening criteria.18 What will happen to the large volumes of DDT along with many other toxins when the bund breaks down?
The PoMC claims “principles of Environmentally Sustainable Design (ESD)…have been key drivers in the development of the PoMC’s evaluation framework”19. ESD includes intergenerational equity. Where is the intergenerational equity in leaving millions of tonnes of contaminated sediment in a bund with a design life of thirty years?
Toxins will inevitably become more widely dispersed, thus increasing both background levels and point sources of contamination, and increasing bioaccumulation in fauna.
The proposed dredging methodology and bund design risks turning all of Port Phillip Bay into a toxic waste site.
Analysis of the Human Health Risk Assessment (HHRA)
Head Technical Report
The SEES asserts, “Extensive research by the POMC has identified no health risk concerns for recreational swimmers or consumers of fish caught in the lower reaches of the Yarra River as a result of the CDP”20. This “Extensive research” presumably relates to Technical Appendix 60, as no other data is provided.
The Human Health Risk Assessment Head Technical Report brief was too narrow to ensure a proper analysis was conducted. Serious errors, erroneous assumptions and omissions in the report make its findings unreliable. Even its authors pointed out there were large degrees of uncertainty remaining. The assertion that the CDP is “safe” is not borne out by the facts presented in the assessment.
Terms of Reference for the Human Health Report too narrow
The terms of reference of HHRA was to assess “the human health risk from the consumption of fish that have ingested sediment containing bio-accumulative contaminants from the proposed dredging areas”.
These terms of reference for the human health report were too narrow to give the public any assurance that their health was protected.
The Terms of Reference make no reference to the public health risks associated with toxic algal blooms. The SEES report states that “Dredging with the TSHD is certain to result in increased labile nutrients and it is possible to highly probable that this will result in toxic algal blooms”21 As such; analysis of the risks that these algal blooms may pose to public health is warranted. Has this been done? If so, where can it be found within the SEES?
Dioxins have already been responsible for the recent ban on commercial fishing in Sydney Harbour and associated demise of the fishing industry. They ought to have been given particular attention in the SEES report. In fact it, consistent with the project-wide omission of the assessment of dioxins, this analysis has also ignored them as a chemical of public health concern.
Toxins “screened out” of risk assessment on very doubtful grounds:
A number of heavy metals that ought to have been assessed for their risks to human health were screened out on the basis that they were not “bio-accumulative”. These metals include Arsenic, Copper, Chromium, Nickel, Lead and Zinc. This is simply not correct. A review of the literature will confirm that these metals are bio-accumulative. What appears to be in doubt is which of the metals bio-magnify (i.e. increase in concentration as they move up the food chain). Biomagnification of heavy metals remains a controversial field with questions remaining as to which metal biomagnifies to what extent and in which environment. According to Barwick et al22, “The question of whether trace metals biomagnify through the food chains is only partially resolved…biomagnification has been reported for chromium, copper, manganese, iron, lead, and zinc have been made. There is little information regarding trace metal behaviour within Australian estuarine ecosystems, particularly with respect to bio-transference and biomagnification”.
Since the question of whether trace metals biomagnify through the food chain is only partially resolved the precautionary principle, inherent in ESD, ought to have moved the authors to treat all trace metals as having the potential to biomagnify.
Barwick’s study of biomagnification in a seagrass ecosystem in Lake Macquarie in NSW found Arsenic and Selenium biomagnified.
In the SEES HHRA only Cadmium, Mercury and Selenium were considered as “bio-accumulative”. Other heavy metals, including Arsenic, Copper, Chromium, Mercury, Nickel, Lead and Zinc were not included on the assumption that they are not “bio-accumulative” i.e. do not biomagnify23.
Arsenic for example was found in concentrations that were 66 times the acceptable screening levels. It was not retained as a Chemical of Potential Concern (COPC) as it was considered to not to be potentially bio-accumulative. On what grounds was it considered not to be bio-accumulative? In the NSW Lake Macquarie study it was shown to biomagnify. Lake Macquarie is a similar ecosystem to Port Phillip Bay in many respects. It is a shallow Australian estuarine ecosystem containing sea grass beds and has a narrow entrance. Do the researchers have any evidence that in the Port Phillip Bay environment Arsenic does not biomagnify?
Arsenic has the highest expected rate of emission out of the toxic spoil dump; located at the Northern Dredge Material24 Ground, Arsenic emission rates were higher than the other toxins studied (these included Lead, Mercury and TBT). This fact ought to have been brought to the consultants’ (Golder & Associates) attention, so that Arsenic could have been given special attention. However, Arsenic was not considered, based on the error outlined above.
Seafood examined too limited in range
The Public Health Risk Analysis only looked at mullet, snapper and flathead. It did not evaluate how contamination from dredging would affect other popular seafood such as shellfish, squids and eels. Fish excluded from the study included bream, garfish and King George Whiting. Bream in particular are known to stay in an estuarine environment, and are caught in high numbers at the Yarra mouth. There was no need for this study to be so narrow. The narrowness of the investigations leaves grave questions as to the Public Health risks posed by the CDP.
Shellfish not examined. They ought to have been given particular attention
Shellfish are known to be effective accumulators of toxins so ought to have been given particular attention. Instead they were ignored. Shellfish were excluded from the study based on an assertion that the harvesting of shellfish in Port Phillip Bay was illegal in most accessible areas.
In fact it is legal for anybody to harvest shellfish as long as they are not in the high water intertidal zone (2m below the high water mark). Shellfish commonly taken include abalone, scallops and mussels. Therefore their ability to accumulate toxins is very much of concern. Depending on how you read the rules as contained in the Recreational Fishing Guide even that restriction is not clear.25
Amounts of shellfish harvested from PPB and consumed illegally, sometimes by people who are ignorant of the law let alone the possible side effects is unknown. It is not acceptable nor is it legal to knowingly create a situation where someone is likely to be seriously injured or killed. This is the case, irrespective of whether the persons involved are obeying the law. The public is exposed to increased risk of illness and the PoMC and the shellfish industry are exposed to increased risk of being sued.
Shellfish aquaculture is an important and growing industry in Port Phillip Bay worth $3.7 million per annum and supporting 140 jobs26
The Victorian Department of Primary industries report identified “risks associated with the release of nutrients and contaminants” as the one of the greatest risks to the shellfish industry”27 Yet the SEES Public Health Report in Technical Appendix 60 failed to consider shellfish as a potential public health issue.
Eels are known to be particularly prone to the accumulation of toxins in their tissues. This was directly borne out in the 200728 EPA eel and fish study that found that levels of toxins in eels was consistently higher in all measurements than those found in fish. They ought to have been given particular attention but were ignored. They were ignored on the assumption that they were not eaten. This is an assumption that has been found to be untrue. According to Christopher Collins Executive Officer of Victorian Recreational Fishing (VRFish) “I’ve fished for eels in the lower Yarra often and I’ve fished for them near Southbank. I like the taste of them and many others in Melbourne do too. The lower Yarra is a good fishery”29
Fish are assumed to have zero baseline levels of contamination
This assumption is known to be untrue. (See EPA report: “Maribyrnong and Yarra estuaries: investigation of contamination in fish” 2006) The following issues flow from this incorrect assumption:
- Dioxin-like PCBs are known to already be above recommended limits in fish and eels caught in the Yarra and ought to have been given special attention.
- There are 12 dioxin-like PCBs (Polychlorinated biphenyls) that display dioxin like toxicity.
- The group of toxins found in highest concentration in the EPA study were the PCBs.
- The concentration of PCBs have historically been above recommended limits in eels caught in the Yarra and were found to be present in unsafe levels (above the screening levels put out by the United States EPA) in the EPA 2007 fish and eel study.
- There were other toxins found to be of potential concern in the 2007 EPA study. Dieldrin was found at unsafe levels as were Organochlorine pesticides (OC) and polycyclic aromatic hydrocarbons (PAH).
- There are already health warnings in place warning people, especially children and pregnant women to limit their intake of fish and eel caught from the Yarra and lower Maribyrnong, as a result of this study.
- These poisons ought to have been given particular attention, and the levels of toxins, already in fish, factored into the HHR. They have not.
The United States EPA Screening Values (USEPASV) are a much more conservative set of screening tools than that used in the SEES, namely the MRL (ANZ Food Standards Maximum Residual Limit). The USEPASV were used in the 2007 EPA report into contaminant levels of fish in the Yarra and Maribyrnong Rivers. These screening values detected unsafe levels of PCBs, Organochlorine pesticides, Dieldrin and PAHs.
As a result an expert panel has recommended health warnings, advising people to limit the amount of fish and eels that they eat from the Yarra. If the MRL had been used for the EPA report, these unsafe levels would have gone unnoticed. In the SEES however the MRL screening tool has been chosen as the screening tool of choice. Potentially unsafe levels of toxins may have been missed by the HHRA relying on the less rigorous MRL.
Women and children, the elderly and the sick left at risk from toxins
According to the SEES Human Health Risk report “Sensitive subpopulations for this risk assessment include the elderly, infant children, the infirm or pregnant women”. The authors concluded that whilst it was “possible” that their model was able to “ensure the protection of sensitive subpopulations”, this could not be “verified”.
The report recommended further research to clarify this matter. Has this research been done? If so, where in the SEES can it be found?
Children around the Yarra and Hobson’s Bay area were found to be at highest risk30 from the Project. Whilst there were no “unacceptable” risks found, there were such large degrees of uncertainty in the report that their safety cannot be assured.
An unacceptable degree of uncertainty is highlighted in the Human Health Risk Assessment. In particular, the researchers did not know:
- Who eats what fish
- Which fish species were eaten
- Which parts of the fish were eaten
- Important information in following the toxicants through the food chain to humans such as:
- Site-specific data about the sediments, water movements, fish movements and fish fat contents.
- Site specific biota-sediment accumulation factors (BSAF). These are values derived from experiments and are important in calculating how much of the toxins will end up in animal tissue. The authors highlight that site-specific BSAFs were not available for Port Phillip Bay31
Toxic algal blooms
The SEES report is clear that the Channel Deepening project may result in toxic algal blooms. “Cysts of potentially toxic Alexandrium catenella have been found previously in sediments of Hobson’s Bay and the Yarra River . Temperature, day length and nutrient concentrations are also contributing factors to the germinations of cysts and the formation of blooms of this potentially toxic species33. “It is possible that the re-suspension of algal cysts in this Project Area, together with warm summer temperatures and increased nutrient concentrations will result in algal blooms…Dredging with the TSHD is certain to result in increased labile nutrients and it is possible to highly likely that this will result in toxic algal blooms”34
It is unfortunate that the scientists are less able to predict the risk associated with toxic algal blooms-“possible to highly likely” is a very vague risk rating that could be more simply worded, as “we don’t have a clue”.
Alexandrium catenella typically contaminates oysters, mussels and scallops. Shellfish are eaten by humans in and around Northern Port Phillip Bay.35 The Bay also supports a large aquaculture industry that would be badly damaged if its stock were contaminated by A. Catenella. This toxin can result in paralytic shellfish poisoning an illness that includes vomiting and diarrhoea when the toxin is ingested in small amounts and can be fatal when larger amounts are eaten.
The dredging schedule is perfectly timed to maximise the potential for toxic algal blooms: “Dredging in the Yarra River in Summer and Williamstown Channel in Autumn is most likely to produce the correct combination of conditions (long day lengths; warm water temperatures and resuspension of bottom sediments) to result in germination and potential blooms of Alexandrium catenella.” 36
Why was the dredging schedule not changed to minimise the risk of toxic algal blooms?
See indicative Dredging Schedule below. Note that the TSHD, the method of dredging identified above as most likely to cause toxic algal blooms will be operative in the Yarra River in Summer and the Williamstown Channel in Autumn.
A stated “Key objective” of the SEES process was to “ensure, wherever possible, risks have been ‘designed out’ of the CDP”38 How has the risk of toxic algal blooms been “designed out” of this project?
As the public health, environmental and economic consequences of toxic algal blooms are so severe and scientists’ capacity to predict toxic algal blooms so limited, the precautionary principle inherent in Environmentally Sustainable Design ought to have been applied. The CDP ought to have been designed to minimise the risk of toxic algal blooms. The opposite has occurred with the timing of dredging scheduled to maximise the chance of toxic algal blooms.
Effects of toxicants on the Marine ecosystem, Penguins, Fish and Marine mammals.
The toxic load on the Port Phillip Bay environment is enormous and possibly unprecedented. There is the potential for significant local and Bay wide environmental impacts.
The SEES fails to address these risks. It fails because it comes to the faulty conclusion that the water quality will not be affected by contaminants. These conclusions are based on inadequate data as outlined above. The various consultants looking at different aspects of the Port Phillip Bay environment were then informed that “water quality will not be affected” and so failed to properly assess the impacts of toxicants on their area of interest. This faulty methodology also pervaded the first EES.
Simon Mustoe’s research on penguins and marine mammals is one example of faulty conclusions resulting from faulty information being given to consultants.
Mustoe states that “We do know… that predators such as marine mammals and little penguins, are more likely to be significantly affected than those at the bottom as pollutants tend to concentrate up the food chain”39 He then goes on to state “Although elutriate testing found some heavy metals, these were below ANZEC water quality guidelines and all other toxicants were at undetectable levels”. He then concludes, “The overall consequence of contaminants on marine mammals and penguins therefore remains negligible”40. Clearly if he had been given different information about the water quality data –data that we submit is quite possible given the omissions and uncertainties outlined above, he may have come to a very different conclusion.
The potential effects of toxicants on marine ecosystems, fish and marine mammals is a large and important subject. Given the ridiculously small timeframe allowed to prepare submissions one case example only, namely the effect of toxic algal blooms on the St Kilda penguin colony, will be given to highlight potential issues that have been overlooked or underestimated in the SEES report. This case example is not meant to be exhaustive, but rather illustrate one of potentially many parts of the Bay ecosystem that may be affected by CDP related toxins.
Mustoe41 acknowledges that “there is a possibility of toxic algal blooms in the north of the Bay during dredging but this is most likely in summer when penguins and marine mammals are feeding elsewhere so biomagnification is unlikely”.
His assertion that “penguins and marine mammals are feeding elsewhere” has a number of problems.
Mustoe’s own research on the distribution and abundance of little penguins42 can tell us the following:
- The St Kilda penguin colony is now a discrete, self sustaining colony that feeds primarily in Northern Port Phillip Bay, near the mouth of the Yarra River
- The St Kilda penguin colony travels only 20 km from the St Kilda breakwater in summer.
- Surveys undertaken during the TDP estimate the summer population of little penguins to be as much as 1,491. This is consistent with the St Kilda colony estimation of 1000 individuals.
It would be more accurate to state that there is a possibility of toxic algal blooms in the North of the Bay in summer and the St Kilda penguins are known to be present in the North of the Bay at this time so are likely to be seriously affected.
Mustoe acknowledges, “Direct mortality is still possible”. But “since toxic algal blooms occur from time to time naturally it could be considered within tolerance levels of populations”.
There is a value judgement inherent in this assessment-that it is OK for many individual penguins to die as a direct result of the CDP as long as the population as a whole can recover.
We see this value judgement as abhorrent and unethical.
His statement that it “could be considered within the tolerance levels of populations” is an assertion. How do we know that a toxic algal bloom caused by the CDP will be within the tolerance level of the population? How do we know that the St Kilda penguin colony can withstand this effect, especially when at the same time it will be significantly affected by a crash in the numbers of its primary food source, Anchovy?
LEGAL AND POLICY FRAMEWORK
We ask the following questions of the panel:
- Is what is proposed legal?
- Does it comply with State and Federal Government policy?
- Is it world’s best practice?
We note NODG and its parent Act [Environment Protection (Sea Dumping) Act 1981 (Cwlth)] do not apply directly to this project because the disposal of dredged material will be contained within state waters.
We submit that as Port Phillip Bay is a mostly enclosed body of water, surrounded by a large human population that to knowingly exploit this “loophole” displays recklessness towards the environment and human health.
Under the Environment Protection Act 1970 (Vic) "Industrial waste" means:
(a) any waste arising from commercial, industrial or trade activities or from
(b) any waste containing substances or materials which are potentially harmful
to human beings or equipment;
Is it legal to dump this toxic waste into the Bay?
PoMC has relied upon guidelines for the disposal of sediment which do not adhere to State Law or Panel recommendations, are not best practice and may not be relevant or appropriate
The EES Panel took the view “that, in line with the Assessment Guidelines, the proponent is required to comply with the Best Practice Environmental Management Guidelines for Dredging (BPEMGD) published by the EPA, 2001 and the National Ocean Disposal Guidelines (NODG) Commonwealth, 200243
“To comply with both of these guidelines it is obvious to the Panel it would be necessary for the proponent to compare all the relevant conditions and to assemble a body of practice that follows the more stringent requirement….The Panel makes it clear that this is very directive language, not supportive of the proponent’s view that the guidelines may be easily departed from”.
The proponent has ignored the EES Independent Panel recommendation and used just the NODG, without reference to the EPA guidelines. This is in breach of policy, is not best practice and is not acceptable either from an environmental or public health perspective.
NODG guidelines are designed for disposal in deep ocean waters, whereas the proposed dumping sites are in quite shallow water in the Bay, not an ocean. This is of particular concern as the Bay has a very narrow entrance with a very slow flushing time of 359 days (reducing by 24 days if the project were to proceed), so it is particularly prone to contaminant accumulation. The bay is surrounded by a dense population of people, many of whom regularly consume fish, and shellfish from the bay.
We submit the NODG guidelines are not applicable.
The Project sits within the following Policy Frameworks:
- SEPP (WOV)
- State policy preference is for disposal of all dredge spoil to land.
- Wildlife Act
- Flora and Fauna Guarantee Act
- VICTORIA PLANNING PROVISIONS State Planning Policy Framework
15.01 Protection of catchments, waterways and groundwater
- To assist the protection and, where possible, restoration of catchments, waterways, waterbodies, groundwater, and the marine environment.
15.01-2 General implementation
• Decision-making by planning and responsible authorities must be consistent with any relevant requirements of State environment protection policies as varied from time to time (Waters of Victoria and specific catchment policies).
- To protect and enhance the natural ecosystems and landscapes of the coastal and marine environment.
- To ensure sustainable use of natural coastal resources.
- To achieve development that provides an environmental, social and economic balance.
- To recognise and enhance the community’s value of the coast.
Land use and development planning should be coordinated with the requirements of the Coastal Management Act 1995 to:
- Provide clear direction for the future sustainable use of the coast, including the marine environment, for recreation, conservation, tourism, commerce and similar uses in appropriate areas.
- Protect and maintain areas of environmental significance.
The Proposal is in breach of most or all of these Acts and policies; in particular it in no way protects nor enhances the natural ecosystem and landscapes of the coastal and marine environment, nor does it recognise nor enhance the community’s value of the Coast.
The Nathan Dam Case (downstream impacts of proposed works) must be considered.
The final arbiter is the Federal Environment Minister. Unless the Panel deliberates on direct and indirect impacts of the proposal it cannot properly inform the Federal Environment Minister who, if the proposal were to proceed, would be required to approve the proposal under the EPBC Act 1999.
We remind the Panel of the ‘Nathan Dam’ appeal to the Federal Court - Minister for Environment & Heritage vs Queensland Conservation Council and WWF Australia  FCAFC 190 - where it was ruled that the Federal Minister had not properly considered the ‘indirect impacts’ of the proposal and its effects on matters of national environmental significance – in that case the Great Barrier Reef Marine Park.
The Panel now runs the same risk of not being able to deliberate properly on the direct and indirect impacts of the Channel Deepening proposals because insufficient and inaccurate information has been presented to it.
Flora and Fauna Guarantee Act
Threatened and vulnerable Species identified in the Flora and Fauna Guarantee Act 1988 (VIC), the Environment Protection & Biodiversity Conservation Act 1999 (Cwlth) as well as the World Conservation Union Red list (IUCN) would be put at additional risk if exposed to released toxins in the waters of the Yarra River and Port Phillip Bay.
These species include:
- Australian Grayling Prototroctes maireana (FFG, EPBC and IUCN)
- Australian Mudfish Neochanna cleaveri (FFG)
- Syngnathids including Pipe Fish (EPBC)
More detail on wider legal issues in relation to threatened and vulnerable species will be provided in a separate chapter of this submission.
ConclusionThis chapter provides a comprehensive analysis of the risks that the toxins pose to the Port Phillip Bay environment. It also analyses the risks to human health posed if this channel deepening project were to proceed. These risks are considerable, and remain largely uncertain despite the large volumes of public money spent on the project.
The risks to recreational swimmers are considerable, yet they have not been clearly outlined in the main SEES report, nor have any mitigation strategies been considered.
The volume of toxins that will be disturbed and released into the Bay environment is huge and unprecedented. The effects have not been properly evaluated. On this basis alone, the project ought not to proceed.
 SEES Executive Summary Page 11
 Technical Appendix 24 page 18
 SEES Main Report Chapter 4 Page 42, and Figure 4-19
 SEES Main Report Chapter 7 Page 65
 Table T1 Appendix 60.
 SEES Executive Summary Page 9.
 SEES Main Report Chapter 7 Page 31
 Technical Appendix 43 Page 22
 Barwick et al, Biotransference and biomagnification of selenium, copper, cadmium, zinc, arsenic and lead in a temperate seagrass ecosystem from Lake Macquarie Estuary, NSW, Australia, Marine Environmental Research 56 (2003).
 See Table T1, Technical Appendix 60
 See Figure 5.16, Pages 5-25 of Appendix 25
 Port Phillip Bay Channel Deepening EES Panel Report Feb. 2005 p 302.
 SEES Technical Appendix 60, p 10.
 The Age Wed 18th April 2007
 Technical appendix 60, Page 60
 SEES Technical Appendix 60 Page 42
 Arnott et al 1994
 Anderson, 1999 and Figueroa et al. 2005
 Technical Appendix 43, Page 22
 The Age Wed 18th April 2007 and anecdotal observation.
 Technical Appendix 43 (Phytoplankton Blooms), Page 22
 See Technical Appendix 56 Page 106
 SEES Executive Summary Page 11
 Appendix 56 Page105.
 Appendix 60 Page 107.
 Applied Ecology Solutions AES 2006
 AES Report pp 41-44
 p 126 Independent Panel Report February 2005.
 Pipe fish collected at Webb dock during Webb dock expansion fish survey. Verbal submission to Independent Panel 2004.
 Anthropogenically induced changes in Environment – effects on Fisheries. K. Richardson http://fisherieswatch.org/docs/252.pdf