The Hon Josh Frydenberg MP Minister for Environment Suite M117 Parliament House [email protected] 14 February 2017 Dear Minister RE: URGENT REQUEST TO HALT WORKS AND INVESTIGATE EVIDENCE OF SYSTEMIC AND SIGNIFICANT COMPLIANCE BREACHES SINCE CONSTRUCTION COMMENCED – Roe 8 Extension (EPBC2009/5031) As you are aware, federal approval of the Roe Highway Extension (‘Roe 8’, EPBC 2009/5031) was provided on 21 October 2015 under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), subject to compliance with 16 conditions. I am writing to you to urgently report and seek a meeting with you regarding compelling evidence of noncompliance with EPBC approval conditions, specifically with the Fauna Management Plan (FMP) and the Construction Environmental Management Plan (CEMP) occurring almost daily since construction commenced. All breaches outlined in this letter have been reported to the WA Office of the Environmental Protection Authority (OEPA), with no written response to date. Further, I am advised that the Senior Compliance Manager at the OEPA has stated the agency does not have the power to suspend works no matter how serious the breach of Ministerial Conditions may be. Breaches outlined in this letter have also been reported to the WA Minister for Environment, with an urgent request to invoke his power under the Environmental Protection Act 1986 to intervene as ultimate enforcer of the Ministerial Statement of Approval. This request has also been ignored to date. Given both of these avenues (which you have requested in previous correspondence that we approach) have been exhausted, and aggressive clearing has continued since 19 December 2016, I urgently request that you temporarily suspend approval under Section 144(2) of the EPBC Act to investigate evidence of Ministerial conditions being ignored by a proponent. Under Section 144(2A) of the EPBC Act you have the power to suspend approval if you have reasonable grounds to believe there has been a contravention of a condition attached to the approval, or if a condition attached to the approval has not been met within a certain time 1.

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Specifically, Section 144(2A) states: “The Minister may, by written instrument, suspend the effect of an approval...for a specified period if: (a) either: (i) the Minister believes on reasonable grounds that there has been a contravention of a condition attached to the approval; or

This letter provides almost 19 pages of such grounds, and I respectfully urge you to exercise that power as a matter of the highest urgency. I also request an urgent meeting to discuss the breaches highlighted in this letter and the far reaching and statutory implications of a Minister allowing such conditions to be ignored, should you not invoke this clause. 1. FAUNA MANAGEMENT PLAN (FMP) NON COMPLIANCE The following section concerns breaches with trapping of endangered species in the project site. The relevant sections in the Fauna Management Plan state: Section 4.2.1

5.1 Table 7

Table 8 Table 9 (Contingency actions)

FMP Condition and Intent The number of Southern Brown Bandicoots trapped per trapping night: The purpose of the monitoring protocol is to ensure that the trapping program continues until no Southern Brown Bandicoots are caught for at least two consecutive trapping nights or as otherwise determined by a trapping expert. Minimise impacts of construction activities on the Southern Brown Bandicoot through the successful implementation of a trapping and relocation programme. Trapping and Translocation Program –Southern Brown Bandicoot states: Each trapping program will be undertaken for 3 - 4 days and will continue until no Southern Brown Bandicoots are caught for 2 consecutive trapping nights or as otherwise determined by a fauna expert. Confirm no Southern Brown Bandicoots have been trapped for two consecutive nights. It is the responsibility of the Environmental Manager that where: Southern Brown Bandicoots are still being trapped for 2 consecutive nights after the 3-4 day trapping program is completed, action to be undertaken is: 1. Seek the advice of a fauna expert. 2. Implement any new recommendations which may include extending the trapping program until the number caught each night significantly reduces.

MINIMUM TRAPPING TIMES The conditions require at least 5 nights of trapping before clearing, This is the absolute minimum period for a successful trapping program (s4.2.1; Tables 7,8,9). However the following examples of breaches relating to the minimum period for a successful trapping program have been recorded and reported to yourself and the OEPA, with no response: •

13th January 2017: Bandicoots were removed from the Coolbellup bushland approximately two hours before clearing commenced.

(ii) if a condition attached to the approval is to the effect that the approval is subject to a thing being done within a particular time--the Minister believes on reasonable grounds that the thing has not been done within that time; and (b) the Minister is satisfied that: (i) the approval would not have been granted without that condition being attached; or (ii) because of the failure to comply with the requirement, the suspension is reasonably necessary to protect a matter protected by a provision of Part 3 for which the approval has effect.” 2

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18 January 11am: Trappers’ ute containing full bandicoot cages exited the east end of the Progress Drive site, clearing commenced at 4pm that day, leaving only 6 hours before clearing commenced.

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18 January 3.35pm: Trappers’ ute left the west end of the Progress Road site with full cages 90 minutes before clearing commenced. The trapping program was not extended despite bandicoots being removed from the site 90 minutes prior to clearing.

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Saturday 28th January: it is my understanding based on conversations with the contracting company and the police that planning for clearing Stage 2 of the Wetlands site on Saturday 28th January was taken before EPA approval had been given.

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Bandicoots were removed from Stage 2 on the morning of Friday 27th January, the morning before clearing commenced.

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Trapping in Stage 4 did not commence until Saturday 28th January, yet clearing began in Stage 4 on Wednesday 1st February, only four nights after traps were set. In all these stages the majority of traps were removed from the area the night before clearing commenced.

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27th February clearing again took place in an area where wildlife trapping had not been undertaken according to the requirements of the Fauna Management Plan (FMP). Live bandicoots were seen to be fleeing from bulldozers and have been photographed being removed from sites on the same day that clearing has occurred, in blatant contravention of the FMP requirement for 2 days of trapping without a capture before any clearing is undertaken.

The following breaches have been recorded and reported in Stage 6 – one of the most ecologically sensitive areas of the Wetlands. •

Only 6 bandicoot traps were in the entire Stage 6 area the night before clearing commenced.

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31 January: Bandicoots in the area are visible but not being caught due to poorly placed and inefficient setting of the traps. Trapping began on January 31 but not one bandicoot was caught in traps. A bandicoot was seen walking past the traps on Thursday 2 February at 5.30pm.

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Feburary 2-5: Night works have been being carried out in the vicinity with flood lights on until late at night, with the entire area floodlit all night for 3 consecutive nights (February 2-5th). One of the three trapping areas in the stage is directly behind the illuminated trees. This has caused a massive reduction in potential trapping hours. (Photographs from 5am 5th February below)

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Sunday 5 February: All bandicoot traps from the south west section of Stage 6 were removed in the afternoon, including cages from the area where a bandicoot was caught on Friday night February 3rd, and where the other bandicoot was seen.

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The most significant trapping area has been left with no traps in order to ensure a clear night so that clearing can commence in the morning. This evidence suggests there were still live bandicoots in Stage 6 and that the traps were removed from the most significant trapping area before two clear nights have been achieved. These traps were returned to the area following an email to the EPA and two bandicoots were caught in that area on the night of Monday 6th February.

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Over this time there has also been considerable noise through the night from the security guards, with security guards stationed very close to trapping areas. The cluster of 5 traps in the south-east section of Stage 6 for example has an overnight guard positioned about 8 meters away. The guards are constantly calling out to each other and walking around.

Further, we have received reports that trapped bandicoots and reptiles are being released over the road from clearing sites, only to be killed by traffic trying to return to their homes – or, worse, are being released in areas which are then cleared just days later. I have personally witnessed an unprecedented sighting of a Southern Brown Bandicoot on the banks of Bibra Lake on the evening of February 2 February. Almost daily, dead bandicoots and other fauna are being found by members of the community, pictured below.

Images 1-5: Deceased Southern Brown Bandicoots and other mammals in the construction site, with the image of dead bandicoot by netting covered with dirt and not dug in was taken on 17th January in the Progress Road site. The Approval conditions also clearly state that confirmation no Southern Brown Bandicoots have been trapped for two consecutive night is required, as follows:. Section 4.2.1 and Table 8

FMP Condition and Intent The number of Southern Brown Bandicoots trapped per trapping night: The purpose of the monitoring protocol is to ensure that the trapping program continues until no Southern Brown Bandicoots are caught for at least two consecutive trapping nights or as otherwise determined by a trapping expert. 4

Yet the following examples of breaches relating to the requirement that Bandicoots have been trapped for 2 nights have been recorded and reported to yourself and the OPEA: •

Friday 3rd February: Photographic evidence in Stage 6 of the wetlands shows bandicoot in a trap at 7.28pm and an untrapped bandicoot wandering in the same area at 7.38pm

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Saturday 4th February: Only one bandicoot was caught that morning (pictured in the trap on the timestamped image the night before with another bandicoot pictured next to it), yet clearing was due to commence the next day, with the assumption the other bandicoot pictured was not caught.

Image 6 & 7: Friday 3rd February Stage 6 shows bandicoot in a trap at 7.28pm and an untrapped bandicoot wandering in the same area at 7.38pm. The extremely low numbers of southern brown bandicoots that were caught is clearly due to poor trapping methods. I am extremely concerned that the trapping program has been incompetent at best. TRAPPING AND WEATHER Section 7.4 of the DPaW Standard Operating Procedure for Elliott traps for live capture of terrestrial vertebrates states: “7.4 Weather All small animals are susceptible to exposure in traps, including cold dry weather (e.g. phascogales as reported by Traill and Coates, 1993). Avoid trapping in extreme weather conditions (hot, cold or wet and/or strong winds). Plan ahead by monitoring long-range and daily weather forecasts.”

The conditions clearly state that in hot weather and very cold or rainy weather, traps will be closed after checking in the morning and reopened in the late afternoon to avoid captures in the heat of the day (Table 7.4). Section Table 7

Condition and Intent Traps will be checked in the morning prior to closure and then reopened in the afternoon, regardless of temperature. In hot weather (i.e. above 30ºC and/or for consecutive days) traps will be closed after checking and reopened in the late afternoon to avoid captures in the heat of the day which can result in mortality In periods large volumes of rain traps will be closed after checking and reopened in the 5

late afternoon to avoid capturing and drowning due to flooding.

In this case, as the majority of trapping occurs at night, logically traps should also be closed at night during extreme weather conditions. Yet the following examples of breaches relating to trapping conditions and weather have been recorded and reported to yourself and the OPEA: •

Over the nights of Thursday 9 and Friday 10 February Perth experienced some of the highest levels of rainfall on record. Despite two nights of heavy rain immediately before clearing took place and the requirement that during extreme weather traps should be closed, Section 3 was cleared on Saturday 11th February.

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Saturday 28th January 11.30am: Open bandicoot trap photographed on a day with a forecast to reach a high of 39˚C

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Wednesday, 1st February: Bandicoot trap in the south-east corner of Stage 6 was left open for the majority of the day when the temperature rose to 39˚C

The following examples of poor trapping methods bordering on incompetency have been recorded and reported to yourself and the OEPA: •

To maximise catch, traps should be set along visible fauna trails in a line. Instead traps are being set in the most easily accessible places and are set together, in a cluster. Where necessary the trappers just trample the grass to make space for a trap without regard to bandicoot trails.

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Sunday 22nd January 630am: At the Kissing Gate on Hope Road two trappers were observed leaving the site carrying hessian bags. The trappers approached one of the security guards and opened the bag, showing him the contents. When local residents observing this remonstrated with the trappers, pointing out that this was causing unnecessary distress to the already traumatised animal they ignored them and continued to show the bag to the security guard.

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The trappers have been seen lifting traps and shaking them to ascertain if there is an animal inside.

Reptile traps: •

The pit/bucket traps are correctly set up but the runs are too short and they are in the wrong locations. They will only catch whatever walks in from a short radius and again appear to have been set without regard to water locations and placed according to ease of access rather than reptile movement. They are also insufficiently camouflaged.

In all of these instances you were called upon you to suspend clearing in Stage 6 until a thorough and professional trapping program has been completed.

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Image 8: 1130am Saturday 28th January: Trap is open on a day forecast to reach 39˚C in breach of Table 7 of the FMP which states in hot weather traps will be closed to avoid captures in the heat of the day which can result in mortality; th Image 9-10: 5am Sunday 5 February floodlights operating all night in Stage 6 with one of three trapping areas directly behind the illuminated trees and security guards stationed very close by. PROTECTIVE FAUNA FENCING In addition to trapping and removal from the construction footprint, the FEMP also specifies fencing requirements to protect fauna from injury or mortality during clearing. Specifically to protect fauna from clearing in the project footprint, Table 7 of the Plan clearly states that during construction: Section Table 7

Construction Environmental Management Plan: Condition and Intent Install fauna fencing to exclude terrestrial vertebrate fauna from the construction footprint and the operational highway. Fauna fencing will: • Comprise of a mesh fence to a height of no less than 1.2 m and be dug into the ground to a depth of no less than 350 mm • Include temporary fauna fencing during construction, but will conform to the standards required for permanent fencing • Be designed to exclude the Southern Brown Bandicoot within the development envelope • Include escape gates to allow fauna trapped in the road reserve an exit route.

However, the following breaches with this condition have been documented, showing that the area being trapped is not fully enclosed in contravention of Table 7 of the Construction Environmental Management Plan: -

No netting at all was used at any time at the Coolbellup site Partial netting is being used at other sites Where netting is being used, it is not being dug into the ground as required but instead is being covered with dirt 7

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In the southern section of Stages 4 and 5, no attempt was made to dig the netting into the ground at any point along this section In the west end of the project site, no fencing in any section was netted as of Friday 10th February.

Examples are documented in photographs below (p7-8). No netting at a number of sites during clearing:

Images 11-14: No netting used at NW end Malvolio Rd, NE end Coolbellup site, and the East and West end of Hope Rd

Images 15-17: No netting on fences during clearing on 20 January 2017; and x& y fencing on 6th February of the first two sections of the west end of the Roe Highway Extension that were due to be cleared Tuesday 7th February. No fencing in any part of the west end of the project site has been netted. Partial netting used during clearing:

Image 18 & 19: Partial netting was used at NE side North Lake road and South side Progress Drive Netting not being dug in: Where netting is being used, it is not being dug into the ground but is being covered with dirt.

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Image 20 &21: NE corner of the fencing near the Kissing Gate in the wetlands area on Saturday 21 January showing netting has not been dug in

Image 22-24: Fencing in the southern section of Stages 4 and 5 with netting not dug in at any point along this section (28th January). Traps were being set in these stages of the Wetlands site this day.

Image 25&26: Monday 23 January netting has not been dug in but covered with soil to prevent it blowing up in the wind, with trapping in the second section commencing that day. Image 27&28: NW and SW corner of section 2 at 6.30pm Tuesday 24th January shows the edges of the fence netting is not dug into the ground again contravening table 7 of the Construction Environmental Management Plan.

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INCORRECT TURTLE TRAPPING A study of a nearby lake in 2005 showed 72 active Oblong Turtle nesting sites 2. The same study 5 years later showed just 2 active nest sites. Oblong Turtles are being pushed to the brink of extinction. Oblong Turtles are a threatened species and what can only be described as reckless trapping and relocation has also been recorded and it is my strong concern it will result in the death of the very few turtles remaining in the wetlands. I am advised that turtle trapping at this time of year is also extremely ineffectual as in the warm months Oblong Turtles bury themselves in the mud, where they remain. According to a turtle expert, trapping should be for a minimum of two to three weeks and should take place in the autumn and winter, not in the summer. Yet: •

The turtle traps in Stage 5 were set for only two nights and were set too high in the water for effective trapping even in the correct season.

Could you please advise urgently how 48 hours is sufficient time to determine if the trapping was successful, and the number of turtles trapped and relocated under this condition prior to or since construction commenced.

Image 29&30: 28 January 2017 Turtle traps in Stage 5 were set for only two nights and were set too high in the water for effective trapping even in the correct season. 2. CONSTRUCTION MANAGEMENT PLAN – NON COMPLIANCE DUST MANAGEMENT The Construction Environmental Management Plan states:

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Native Arc (2017) Reference provided upon request

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Section Section 2, Table 6

Construction Environmental Management Plan “Water carts are to be operational at all times in dry and windy conditions (October to April)” and to “commence dust suppression immediately on visual evidence of dust lift”.

Yet there is clear evidence that the vast majority of clearing and mulching has taken place without any watering taking place. Even when a watering truck has been on site - and frequently there has been no watering truck - it has not been used. To date, having questioned a great many people involved in the No Roe 8 campaign, there has only been one occasion when water was used to suppress dust and even then, the amounts used were insufficient to have any effect. Worse, heavy machinery is causing severe dust over local schools and homes every day from an area known to contain asbestos, because no dust suppression is occurring despite clear and detailed requirements to do so as part of federally approved management plans for the project. I understand hundreds of complaints have been made by members of the community and people are wearing dust masks in their own streets and homes yet the OEPA has taken no action to date. I understand the following breaches of this condition have been observed and reported to yourself and the OEPA to date: •

19 December 2016: Clearing commenced at the eastern end of the Coolbellup site. There was no water cart on site this day or on the following days when machinery was working prior to the Christmas break;

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12 January 2017: Clearing commenced at the west end of the Coolbellup site. There was no water truck on site. Mulching commenced at the west end of the Coolbellup site, there was no water truck on site;

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13 January 2017: Clearing continued at the east end of the Coolbellup site on with no water truck adjacent. Mulching continued at the west end of the site, there was a water truck outside the concrete barrier, it did not enter the site;

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16 January 2107: Mulching continued throughout the entire Coolbellup site. A water truck was present at the east end of the site but it was not used;

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17 January 2107: Mulching continued at the west end of the Coolbellup site without a water truck being used. Bulldozing of the roundabout and slip road area commenced at the east end of the site, a water truck was present but not used;

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18 January 2017: Mulching continued at the west end of the Coolbellup site without a water truck being used. Bulldozing of the roundabout and slip road area continued at the east end of the site, a water truck was present and used for the first time but inadequately. Intermittent watering of the area was insufficient to dampen the dust;

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Afternoon of 18 January 2017: Clearing commenced in the area between North Lake Road and Progress Drive. There was no water cart on site; 11

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19 January 2017: Clearing continued in the North Lake Road and Progress Drive site. No water cart was utilised;

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20 January 2017: Clearing continued in the North Lake Road and Progress Drive site. No water cart was utilised.

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25th January 3.30pm: Clearing at the east end of Hope Road at the site known as Gilchrist Freeway without any dust suppression being used.

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Friday 27th January: Clearing at the Gilchrist/Freeway site, while there was a water truck on site, its use was inadequate and the levels of dust constituted a health risk.

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When clearing commenced in Stage 1 in the wetlands site, half the area was cleared before the water truck arrived.

Examples are documented in photographs below:

Images 31-33: 21 January west side, North Lake Road

Images 34&35: 17 January Coolbelup Avenue end; 19 January east side, North Lake Road

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Image 36-38: 3.30pm 25th January: Clearing east end Hope Road without dust suppression and asbestos/contaminant

Image39&40: Friday 27th January: Clearing at the Gilchrist/Freeway site, while there was a water truck on site, its use was inadequate and the levels of dust constituted a health risk. ASBESTORS CONTAMINATION As you have been made aware a great deal of asbestos contamination has been found throughout the project site. Clearing commenced without this contamination being addressed. Asbestos has been removed from the site both during and post-clearing creating an unacceptable health risk. Asbestos removal took place from the Malvolio site on the afternoon of 13th January whilst clearing was taking place. Photographs below that were taken that afternoon on Malvolio Road, opposite number 20. This clearly poses a risk to public health, let alone the health of construction workers and the police. Examples are documented in photographs below. 13

Images 41&42: 13 January 2017: Asbestos removal during clearing, opposite 20 Malvolio Road

Images 43&44: 20 January 2017: Asbestos removal on the east side of North Lake Road, post-clearing on the previous day DIEBACK Dieback – or Phytophthora cinnamomi,- is the biggest threat to biodiversity in Western Australia and has now spread throughout the south-west from Eneabba to Esperance. Phytophthora dieback lives in soil and attacks the roots of many native plants. It also destroys animal habitats and threatens whole communities. Banksia communities are particularly susceptible - dieback can turn a flourishing woodland into a sparse sedge-land 3. Given the recent and long overdue federal listing of Banksia Woodlands of the Swan Coastal plain in the endangered category as a Threatened Ecological Community in September 2016 4 , the adherence to Dieback procedures is even more urgent and the community should expect that these procedures are strictly enforced and monitored. Contingency actions if contaminating materials are identified during construction activities are clearly identified in the Approval Conditions of the Construction EMP states:

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http://www.dieback.net.au/ https://www.environment.gov.au/news/2016/09/22/banksia-woodlands-swan-coastal-plain-listed-endangered-category

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Section Table 9

Construction Environmental Management Plan Inspect vehicles and machinery prior to entry/exit into the site and prior to exit from infested, unmappable and uninterpretable areas that may contain dieback to ensure it is free from soil/organic material. Ensure runoff from washdown areas is contained, to prevent the spread of disease.

Stage 6 of the wetlands is designated an uninterpretable dieback area. However the following breach 9 January 2017 a bulldozer was observed to be taken directly from Stage 6 in the wetlands to Section 4 of the west end of the project envelope. The bulldozer was given a cursory clean with a spade whilst still inside Stage 6. You can clearly see that the cleaning whilst still in the wetlands area was superficial at best. (Images below). It was then put on a truck and transported to the west end, unloaded at the intersection of S3 and S4. Without any cleaning happening it was then driven straight into S4 where it was then cleaned, already within the site, with no platform, no contingency for water run off, and without the bulldozer being moved forward so that the underside of the tracks could be cleaned. There was no containment of the run off water and the bulldozer was not in a wash down area. The bulldozer then commenced clearing - with soil from S6 wetlands still on the underside. In addition to the bulldozer leaving the wetlands covered with potentially infected soil and being driven straight into another site, all other vehicles entering and leaving the wetlands site have not been inspected or cleaned. This includes police cars and workers utes, the water truck, and police horses: no inspection or hygiene has been observed to be carried out.

Image 45&46: Thursday 9th January, bulldozer being cleaned with spade in wetlands and arriving at S3/43 west end

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Image 47&48: Thursday 9th January, bulldozer covered with dirt being driven into S4 west end CONTAMINANTS Contingency actions if contaminating materials are identified during construction activities are clearly identified in the Approval Conditions (2.4.5 CEMP) as follows: Section 2.4.5

Construction Environmental Management Plan Contingency actions: Contaminating materials identified during construction activities. The action to be taken is: 1. Cease work and notify site supervisor. 2. Investigate cause. 3. Contain site of potential contamination (e.g. bunding) to prevent any spread of contaminants and fence to prevent any unauthorised access until status of the material has been confirmed and corrective actions implemented (if required). 4. Sample and analyse material to confirm contamination status of material and remediation requirements. 5. If contamination confirmed, report to DER. 6. Develop and implement Remediation Action Plan if required on advice from DER. 7. Work will commence once the status of the material has been confirmed and corrective actions implemented (if required).

This condition was breached on Friday 27th January during clearing of the Gilchrist/Freeway site, where the bulldozer punctured a barrel that was lying in the undergrowth. The bulldozer continued to clear as the barrel leaked unidentified liquid. It was not until the bulldozer had cleared that area that any attempt was made to deal with the potential contaminant. (Images below).

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Image 49-51: Friday 27th January, punctured barrel, clearing continuing and later clean up 3. CLEARING OUTSIDE THE APPROVED CONSTRUCTION AREA I would also like to draw your attention to the areas currently being fenced in the Western end of the project. The following two images show the designated areas for clearing of native vegetation (highlighted in green) taken from the Project Infrastructure Plan and overlaid onto Google Earth. The white line in the second image is where the fence will be continued, with orange fence footings already laid out. The thin red line on both maps shows the construction fence that has been erected in the past two weeks. This is accurate as it has been pin-pointed by GPS. The fence clearly includes areas that are not designated for clearing as the fence-line includes areas that are not highlighted in green. The fencing does however correspond with the map of the Project Development Envelope, also contained in the Infrastructure Plan. I ask that you urgently investigate whether it is possible that the proponent is using the wrong map for reference when setting the fences? That is, is clearing occurring outside the approved area?

Image 52 & 53: Designated areas for clearing taken from the Project Infrastructure Plan (highlighted in green) versus areas not designated for clearing (thin red fence lines) 17

Map 1: The west end of the project area with further clarification of areas that are fenced but not approved for clearing This is of urgent concern, given the aggressive – and non-compliant clearing already happening on site. I urge you to investigate this urgently. REMAINING CONCERNS WITH CONDITION 4 & 7 It is still of immense concern that construction has recommenced before you have provided me with evidence of Cockatoo surveys being completed, as requested numerous times since 12 January 2017. Your letter of 20 January and response to Senate Order for production of documents of 13 February also failed to specifically address my questions concerning Condition 7 relating to offsets and Condition 4 relating to the requirement to investigate potential nesting hollows prior to construction. I kindly repeat the request that you urgently confirm whether your Department considered whether the proposed offset area meets the standard specified in the federal approval? CONCLUSION AND URGENT REQUEST TO INVOKE s144(2A) Despite these repeated and documented concerns, the Office of the EPA has been unwilling to even acknowledge evidence of serious compliance breaches on this project for some weeks now. It has not replied to any of the breaches outlined in this letter, which have been reported almost daily since construction suddenly began on 19 December 2017. We formally request that you intervene as ultimate enforcer of the Ministerial Statement of Approval a matter of the highest urgency to address this appalling situation. I understand both Mr Ian Munro and Mr Paul Zahra of the OEPA compliance division have been notified directly by email and telephone almost daily of every breach outlined in this letter, as well as numerous others that I haven’t included for brevity. Despite repeated requests for work to stop in order to have these serious breaches investigated made directly to the OEPA they have not even responded to concerns. 18

Worse, I am advised, based on evidence of over 40 volunteers working around the clock at the construction site, that there has been no compliance staff from the OEPA on site over the weekend or after hours, which is often when these breaches are occurring. Meanwhile, members of the community are being arrested or physically removed by police in their attempts to have your own environmental conditions on this project upheld. An urgent intervention to investigate and enforce compliance is required right now. I am also extremely keen to know as Deputy Leader of the Australian Greens, the far reaching and statutory implications of a Minister allowing their own conditions to be ignored. In light of all of the above, I request you to urgently invoke Section 144(2A) of the Environmental Protection and Biodiversity Conservation Act 1999 5 in order to investigate clear evidence of contraventions of conditions attached to the Approval. Section 144(2A) states: “The Minister may, by written instrument, suspend the effect of an approval...for a specified period if: (a) either: (i) the Minister believes on reasonable grounds that there has been a contravention of a condition attached to the approval; or (ii) if a condition attached to the approval is to the effect that the approval is subject to a thing being done within a particular time--the Minister believes on reasonable grounds that the thing has not been done within that time; and (b) the Minister is satisfied that: (i) the approval would not have been granted without that condition being attached; or (ii) because of the failure to comply with the requirement, the suspension is reasonably necessary to protect a matter protected by a provision of Part 3 for which the approval has effect.”

I also kindly request an immediate copy of any records you are keeping on species mortalities on site. Yours sincerely

Senator Scott Ludlam Deputy Leader, Australian Greens cc: [email protected] [email protected] [email protected] [email protected] [email protected]

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Environment Protection and Biodiversity Conservation Act 1999 – Section 144 - Suspension of approval http://www.austlii.edu.au/au/legis/cth/consol_act/epabca1999588/s144.html 19