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Thompsons Part 10: The DEC admits it treated them unfairly

Posted By Joanne Nova On September 30, 2010 @ 1:59 am In Global Warming | Comments Disabled

This comes from the DEC’s itself: they have a standard procedure, and they didn’t follow it for the Thompsons.

Here are what I believe are the most damning critical passages of the whole Thompson case, and they come from the minutes of a meeting with DEC and the Thompsons held in December 2009.

From these minutes I quote the passages below. Matt confirmed that no one who attended queried the accuracy of these minutes of Dec 2009. (I have highlighted things in this copy of the minutes and added two notes in red ink and brackets. Forgive the unsubtle additions.)

The minister tell us what their procedure is:

(DF is representative of Donna Faragher the Minister)

DF: There is a clear process that is gone through in these situations. Letters are sent out advising of the problem and providing a time frame for correction. Then an Environmental Field Notice is issued and the proponent is given time to comply. Then and Environmental Protection Notice is issued, and the proponent is given time to deal with that. Only after that exhaustive process, would an operation be shut down…or limited in throughput which would lead to it shutting down. We have had the same situation with waste treatment facilities. This is standard procedure. The Department is not interested in shutting the operation down.

Janet (JT) points out this did not happen. (No Environmental Field Notices were issued apart from earlier bunding ones that are not connected with the number of cattle).

JT: But none of that happened in the past. That process did not occur when our numbers were limited to 6,000 head. The only EFN we ever received was for bunding around our diesel and petrol tanks.

The DEC rep admits they were treated unfairly.

[WE = Wayne Elliot of the DEC ]

WE: This is true. The Thompsons have not been treated in a fair and proper manner by the Department. There was no process.

Nice people get done over

Here’s a telling point: Why have I hesitated to post this? Because Matt and Janet hesitated, because they are reluctant to cause trouble for the good people at DEC who they know and like. Here Wayne Elliot is acting as a whistle-blower by simply stating the truth. And Janet and Matt don’t want to drag him into this, because they are fairly sure he was given a hard time at DEC, and this surely won’t help him.

Matt and Janet have told me about the good people at DEC, the ones who they’d meet, who would promise to help and genuinely try to sort things out, but who were always transferred off their case. So once again, Matt and Janet are the kind of people who don’t want to cause anyone pain, even as their life savings are being taken away. In other words, every step of the way Matt and Janet have tried to be nice, and what have they got for it?

So I’ve decided enough is enough that these minutes need to be shown to the world. And to Wayne and the other good people at DEC, I know you didn’t ask for this trouble, and it’s hard to be a whistleblower, but right now, there is a dreadful injustice, and perhaps it might be possible still for the DEC to help slow the administrators by issuing a proper licence, say one for 10,000 head for five years as was mentioned, and without the impossible unmeasureable clause A1. Even speaking out would help.

Here Matt and Janet are searching for some business certainty — they need a written document that the banks will loan against, but all they get are verbal assurances. (How well does DEC understand business risks?):

Janet: Unfortunately the banks will not agree to that type of approach.  They look at the license and the conditions.  Also, what happens if there is another person from DEC who comes on the scene?  The focus can suddenly shift, which has happened in the past.

WE: Alan has offered to speak to the bankers regarding this matter.

AS:  I did speak to a banker.

Janet: This is part of the problem.  There have been lots of meetings and conversations but nothing has been in writing.  Conversations are not acceptable to a bank. Can the conditions and approval of the licence be written down? There is a solution to this problem through managing it at a local level; however it needs to be something in writing. We need to have 10,000 head clearly stated on the license.

Matt: What happens if there is no improvement?  Will we be forced to destock?

AS: We do not believe this will be the case.  [my emphasis]

How can a bank loan on a guarantee so weak?

The DEC, possibly with mostly good intentions, dangles Matt and Janet’s hopes with possibilities that don’t pan out.

AS: There must be an assessment to go to 10,000 head.  A five year license is not out of bounds, with the conditions stated.  There will need to be an audit process. There needs to be some regulatory structure to go forward.

Matt: DEC had no condition in the Works Approval or licences regarding odour.  Here is a copy of the Shire’s most recent letter of support.  The original approval from the Shire says that we must maintain odours at a reasonable level. This letter states that they judge we have done so.

The basic conflict between DEC and us is about burden of proof.  Alan Sands says there needs to be some regulatory structure for the DEC to address problems going forward.  DEC has the authority to address real problems that occur without that structure being written into the licence.  DEC is not content to simply have the authority to fine us because they know they can’t prove that we are out of compliance. Putting a limited head count in the licence damages us financially, and puts the burden of proof on us that it’s acceptable to increase our numbers.  There is no way for us to prove that it’s acceptable to increase numbers.  Once a condition is put on the licence, NBP has no real options, as it is impossible to prove a negative and the appeals process is too lengthy, and the law requires us to comply with the conditions in the mean time.

The forced destocking by DEC caused massive economic destruction, with loss of jobs at NBP, as well as upstream and downstream from NBP.  DEC should have held the burden of proof and been required to prove NBP’s violation before causing such and economic disaster as a remedy.

Using the most recent standards imposed by DEC (i.e., a 2.5 ou at our property boundary), every restaurant and bakery would need to close because they exceed that level of odour.

Janet: The 2.5 odour unit standard, if it were ever going to be employed, should have been tested before the Works Approval was issued.  If we had known that we would be held to that standard at our  property boundaries, we would never have invested the first dollar. We are all for true environmental management, however, those standard have to be measurable.  There is no way to measure acceptable standards with odour. The source of odour in our area is determined by which way the wind is blowing.  DEC is managing this issue based on complaints, and the complaints only come out when we renew our license.

Then the Department admits that when they change the license the Thompsons ought to be able to keep operating at the previous license limit while it is under appeal. This did not happen in 2008.

CA: With any license that is issued, the original terms would stand even during appeal.  If there is an appeal, the terms stand until the appeals process is complete.

Then look, the DEC implies that a five year license at 10,000 head is possible, yet when they did issue a license in March 2010, it was only for 6,000 until the” Thompsons prove they can manage 10,000″. (Which they already have shown, and how could they do it even better this time when they are not even allowed 10,000?)

This is what I mean by the Thompsons being strung along. Again there is talk of a license that never eventuates.

DF (standing in for the Minister of the DEC): We need to change the wording on the license and make it simple.  The license needs to specify that they are permitted to operate at 10,000, and that there are conditions over odour that will need to be addressed to proper practices, and that it can be extended to five years.

Janet: When could we get a draft of the license?

AS: We will come back with an appropriate time line.  There is a process we need to go through. Need to take a look at the term and the wording.  Am more than happy to push for an extended license. Will need to clarify that this complies with the Act.

JC: Can this be put in writing? And can you get back by next week because time is running out?

WEIt is important that we resolve this matter quickly.  The Thompsons have been dealt with unfairly in the past.

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