EPA v Gilmour & Anor

EPA v Gilmour & Anor - [2001] NSWLEC 123 - NSWLEC 2001 case summary — Zoe

[87]

The prosecutor relied on a Senior Environmental Scientist from the EPA, Geoffrey Coade, who has recognised expertise and experience in the investigation and assessment of environmental impact of pollutants on estuarine, marine and fresh waters (see CV annexed to his affidavit of 30 December 1999). He prepared an "environmental effects" statement in relation to the alleged dropping of fertiliser pellets "from a plane into and around the Gwydir River" (also annexed ibid). That statement includes the following comments (ibid, pp8-9): The deposition of agricultural fertiliser in and adjacent to the waters of the Gwydir River would change the chemical and subsequently biological and physical conditions of the waters. Such deposition of this fertiliser in these waters would result in increased concentrations of soluble plant nutrients leading to an increased growth of simple aquatic plants known as algae. … Phosphorus, whether deposited in streams during wet or dry periods, will essentially remain in the stream, being carried downstream and recycled through plants and animals until it is discharged to the sea or onto land via irrigation. Nitrogen however can be transformed to a form where it can escape from the stream as nitrogen gas. In other words the legacy of the addition of phosphorus to a stream is much more long-lived than that of nitrogen and hence the consequences can be felt much further downstream at a later time. … During my inspection of the Davidson's property (Site 2 of the sampling sites referred to in David Greenhalgh's affidavit) on 26 February 1999 (hereinafter called sampling sites) I was shown and saw greyish white pellets about 3mm diameter on the adjacent land, on the rocks and sand in the dry river bed. I also saw what appeared to be partially disintegrated pellets on the bed under the water of the river. I did not see these pellets at the other three locations (Sampling Sites 1, 3 and 4) that I visited on that day. I take these pellets to be fertilizer pellets and note that the EPA laboratory analyses of similar material (Lab Numbers 9900855, 9900856, 9900857, 9900858 and 9900962) demonstrate high concentrations of phosphate phosphorus and ammonium nitrogen. These pellets, deposited in the water of the river, would change the chemical nature of the water by way of increasing the concentration of phosphorus (as phosphate) and nitrogen (as ammonium). Likewise the pellets deposited on the dry riverbed would during a rain event leach phosphorus and nitrogen into the waters of the river. The increased concentration is likely to be transitory as the nutrients are taken up by plants quickly (days). … There is clearly higher concentration of free reactive phosphorus at Site 2 on the 17 February (the day of the deposition) compared to sites upstream and downstream. This peak has reduced 3 days later (20 Feb) and almost disappeared 9 days later (26 Feb). The deposition area (Site 2) and the downstream location (Site 1) have on all occasions higher concentrations of free reactive phosphorus than the upstream locations (Sites 4 and 3). These results are consistent with an addition of phosphate phosphorus to the waters near Site 2 on 17 February 1999. … the pattern of phosphate phosphorus concentrations in the river water at Davidson's property (Site 2) is consistent with an uptake by macroalgae and is likely to have resulted in an increased amount (biomass) of that algae in the 9 days since the deposition.

[105]

I further conclude that: a. the levels of P in any river system are highly variable depending upon numerous environmental, agricultural and urban activities, the Gwydir River at this point is susceptible to numerous upstream and in-stream inputs. Without a thorough understanding of the sinks and pathways for phosphorus mineralisation and demineralisation, fluxes cannot be determined. b. it is impossible to show causal links to 'some pellets' in the river to the changes alleged to have occurred when no other assessment of likely factors has even been measured or observed, and no prior assessment of the river is reported. c. the sampling techniques used by the two EPA officers failed to meet the sampling protocols set out in the Field Manual (EPA, 1996) or the AS/NZS 5667 and could not represent an accurate assessment of water quality in a particular pool at any point of time. This poor understanding of sampling technique is further compounded by the lack of statistical analysis on the samples. d. the sample preservation for the analyte determinations was not performed and the determinations were performed after the maximum holding periods had expired rendering the results uncontrolled, which must caste doubt on the validity of the sample results. e. that after examining the stream flow records from DLWC, it is evident that a small flush had just passed through the system. Increased levels of P would occur in the wake of that flush as organic material transported into the deeper pools biodegraded, releasing nutrient into the water. Increasing temperature (and nutrients) at that time of year is problematic with increases in algae. f. that the levels of P being discussed are at the noise end of analytical techniques and over 40 times lower than the most recent NATA proficiency testing program. g. in comparison with expected and allowed levels of P into river systems, the change from 28 to 61 ug L-1 of TP is irrelevant even compared to the load based licence fee limit of 300 ug L-1 and typical sewage discharges of 5000-7000 ug P/L. h. that the EPA officers in walking through the water to cross to the opposite side of the river and to take water samples may have disturbed bottom sediments with a greater potential to cause increases in water column phosphorus than from the pellets. i. that the assumptions on which the EPA officers based their water sampling techniques and interpretation of the laboratory data are seriously flawed and the conclusions they draw have no sound scientific basis.

[121]

There is no direct evidence that Gilmour was flying the plane on Wednesday morning 17 February 1999, but the evidence against him discloses the following: 1. The defendant company operated two aircraft at the relevant time (VH-CCH and WH-ELK) (T233 L56-8), but employed/contracted only one pilot (T235 L46-52 and T236 L42-45). VH-CCH was usually parked at Armidale airfield (T237 L54-57). 2. The defendant Gilmour was known to Peirce, and was the only person in the defendant company with whom Peirce dealt, specifically, in regard to the company's application to Peirce's land of the fertiliser supplied to the " Myanbah " airstrip by Croft. 3. Peirce attended the airstrip on the morning of Monday 15 February, and there saw Gilmour and another unidentified male person. Peirce accompanied Gilmour on a short flight on VH-CCH over the property, to establish the boundaries of the area to be fertilised, and saw Gilmour pilot the plane. No other person was in the plane at the time. 4. At various times on and between 15 and 17 February 1999, an aircraft was heard and/or seen flying east and west across " Myanbah ", and on 17 February, during such flights, the defendant company's plane (VH-CCH) was seen to turn over Davidson's house to fly back across Peirce's land. Davidson saw what looked like a human head in the plane at the time, but not the pilot's face. 5. At some time on 17 February 1999, planes were no longer seen or heard in the vicinity. 6. In the evening of 17 February 1999, the defendant Gilmour came to Peirce's house by car, and collected from him a substantial cheque, in payment for the work the defendant company had contracted to do for Peirce on a commercial basis. 7. Mrs Gilmour testified: (a) that she saw her husband leave home, presumably to go to work, on the morning of 17 February 1999 (T236 L16), (b) that she " can only presume that Glenn " did the " Myanbah" job (T236 L14), (c) that she did not actually see who did the job (T236 L2), nor did she see the plane, nor who flew it, on 15, 16 or 17 February (T238 L47-55). The company's statement in response to the EPA's notice under s 193 was not based on Mrs Gilmour's " observation or actual knowledge" (T239 L4-15), (d) that the plane could have been flown on 17 February by others, including student pilots or a licensed pilot needing to get " hours " (T237 L10-50), but student pilots are not permitted to carry out commercial activity on aircraft (T239 L39-47). Mrs Gilmour was not asked about other employees of the defendant company, nor about the third man at the airstrip on 15 February, (e) that she prepared an invoice on 18 February 1999, stating that the spreading of fertiliser on " Myanbah " was completed on 17 February 1999 (see T234 L46 and T239 L22-30).

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Cases Cited (10)