Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie
[2018] NSWLEC 99
•28 June 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2018] NSWLEC 99 Hearing dates: 12-16 February, 19-23 February 2018, 26-28 February, 1-2 March 2018, 12-16 March 2018 Decision date: 28 June 2018 Jurisdiction: Class 5 Before: Pain J Decision: See pars 573 and 575
Catchwords: ENVIRONMENTAL OFFENCE – plea of not guilty to charge of operating waste facility without lawful authority – no waste deposited on land in charge period – no requirement to hold an environment protection licence – no requirement to hold development consent – defendant not guilty
ENVIRONMENTAL OFFENCE – plea of not guilty to charge of executive liability of operating waste facility without lawful authority – director of corporation – no basis for finding of guilt
STATUTORY CONSTRUCTION – definition of “waste” under Protection of the Environment Operations Act 1997
STATUTORY CONSTRUCTION – legal effect of resource recovery exemptions issued under Protection of the Environment Operations (Waste) Regulation 2005 – instruments to be given practical interpretation – instruments to be construed against drafter – use of extrinsic material relevant to contextLegislation Cited: Batch Process Recovered Fines Exemption 2010 cll 10, 11
Cement Fibre Board Exemption (2008)
Continuous Process Recovered Fines Exemption 2010 cll 6, 7, 8, 9, 10, 11, 12
Crimes Act 1900 s 417A
Criminal Procedure Act 1986 s 247J
Environmental Planning and Assessment Act 1979, Pt 3A, s 150
Evidence Act 1995 s 38, 136
Excavated Natural Material Exemption 2012 cll 6, 7, 8, 9, 10, 11, 12
Hunter Water (Special Areas) Regulation 2003
International Covenant on Civil and Political Rights, (entered into force (except Article 41): 23 March 1976)
Interpretation Act 1987 ss 33, 34
Motor Dealers Act 1974 s 47A
Port Stephens Local Environmental Plan 2000
Protection of the Environment Operations Act 1997 Pt 7, Pt 8.3, ss 3, 5, 48, 143, 144, 169, 191, 203, 216, 258, 286, Sch 1, Dictionary
Protection of the Environment Operations (Waste) Regulation 2005 cll 3B, 42, 51, 51A
Recovered Aggregate Exemption (2010)
Road Transport (Vehicle Registration) Act 1997 s 18
Statute Law (Miscellaneous Provisions) Act (No 2) 2003
Virgin Excavated Natural Material Exemption
Waste Avoidance and Resource Recovery Act 2001 ss 3, 6, 12Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Awabakal Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 124
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2008] NSWLEC 181
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404
Beckwith v R (1976) 135 CLR 569
Blacktown City Council v Pace (2002) 121 LGERA 432; [2002] NSWLEC 142
Brown v Dunne (1893) 6 R 67
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263; (2017) 226 LGERA 54
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41
Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
CSR Ltd v Environment Protection Authority (2000) 110 LGERA 334; [2000] NSWCCA 373
Director of Public Prosecutions v Sadler [2013] NSWSC 718
Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63
Environment Protection Authority v Foxman Environmental Development Services [2015] NSWLEC 105
Environment Protection Authority v Hardt (2006) 148 LGERA 61; [2006] NSWLEC 438
Environment Protection Authority v HTT Huntley Heritage Pty Ltd (2003) 125 LGERA 332; [2003] NSWLEC 76
Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page [2012] NSWLEC 216
Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180
Environment Protection Authority v Terrace Earthmoving Pty Ltd (No 3) (2016) 217 LGERA 222; [2016] NSWLEC 50
Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79
Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157
Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180
Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231
Hardt v Environment Protection Authority (2007) 156 LGERA 337; [2007] NSWCCA 338
Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30
James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18
MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74
Office of Fair Trading v El Homsi (2009) 74 NSWLR 443; [2009] NSWSC 282
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Pullen v Smedley [2017] NSWSC 1721
Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305
Shannongrove Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 668; [2013] NSWCCA 179
Valuer-General v Fivex Pty Ltd (2015) 206 LGERA 450 [2015] NSWCA 53
Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245Texts Cited: Macquarie Dictionary Online (2017)
Pearce & Argument, Delegated Legislation in Australia (4th ed, 2012, LexisNexis Butterworths)
Pearce & Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis ButterworthsCategory: Principal judgment Parties: Proceedings 16/157886
Proceedings 16/157995
Environment Protection Authority (Prosecutor)
Grafil Pty Ltd (Defendant)
Environment Protection Authority (Prosecutor)
Robert Mackenzie (Defendant)Representation: COUNSEL:
SOLICITORS:
S Rushton SC and P English (Prosecutor)
T Howard SC and C Ireland (Defendants)
Department of Environment Climate Change & Water (Prosecutor)
Coutts Mallik Rees Solicitors (Defendants)
File Number(s): 16/157886, 16/157995
TABLE OF CONTENTS
Elements of s 144(1) offence
1-5
Protection of the Environment Operations Act 1997
6-12
Protection of the Environment Operations (Waste) Regulation 2005
13-14
Resource recovery exemptions
15-18
Waste Avoidance and Resource Recovery Act 2001
19-23
Environmental Planning and Assessment Act Pt 3A
24
Evidence
25-27
Development history of Grafil’s operations
28-31
Macka’s Sand Pty Ltd
32-38
Grafil’s dealings with the EPA and the Council 2009 to March 2013
39-47
EPA’s investigation of Grafil
48-101
Sources of material in Stockpiles 1 and 2
102-182
Nature of the material in Stockpiles 1 and 2
183-234
Consideration of s 144(1) offence
235-253
Second element of s 144(1) offence
254-284
Was material applied to land or temporarily stockpiled?
285-306
Second element of s 144(1) offence not established
Third element part 1 – lawful authority – environment protection licence
307
Operation of resource recovery exemptions
308-318
Notes have no legal effect
319-320
Onus of proof of elements of offence under section 144(1) in context of resource recovery exemptions
321-337
Identification of issues concerning resource recovery exemptions
338-342
Construction of CRPF exemption in light of cl 42 Waste Regulation
343-351
Do processor and/or consumer responsibilities under the CPRF exemption include exclusion of asbestos?
352-372
Consequence of breach of resource recovery exemption condition
373-376
Compliance with condition of CPRF exemption by consumer – use for road Condition 7.2.7
377-413
Condition 7.2.7 complied with in charge period
414-433
Application in reasonable time – no failure to comply with CPRF and ENM exemptions established
434-435
Development consent granted to consumer – Condition 7.2.7(b) of CPRF exemption complied with
436-439
No compliance with condition of CPRF and ENM exemptions by consumer – record-keeping
440-445
Compliance with condition of CPRF exemption by consumer – no deposition on water Condition 9.2
446-454
Compliance with condition of CPRF exemption concerning chemical and physical attribute requirements, sampling and testing – Conditions 7, 8, 10, 11, 12
455-500
Is Grafil a consumer under the CPRF and ENM exemptions?
501-507
No EPL required as lawful authority by Grafil
508
Extent of asbestos in Stockpiles 1 and 2
509-527
Continuing offence proved?
528-535
Was s 144(1) charge brought within the limitation period?
536-549
Third element part 2 – lawful authority – development consent under EPA Act
550-572
Third element of s 144(1) offence not established
573-574
Executive liability charge under s 169(1)
575-576
Judgment
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The defendant Grafil Pty Ltd (Grafil) is charged that from around 29 October 2012 to around 15 May 2013 as the occupier of Lot 8 DP 833768 (Lot 8) it used Lot 8 as a waste facility without lawful authority in contravention of s 144(1) of the Protection of the Environment Operations Act 1997 (POEO Act). Lot 8 is located at Salt Ash near Williamtown in the Port Stephens Local Government Area (LGA).
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The defendant Mr Robert Mackenzie (Mr Mackenzie) is charged with committing an offence in contravention of s 144(1) of the POEO Act by reason of s 169(1) of that Act in that (a) he was the director of Grafil during the charge period and (b) Grafil, as the occupier of Lot 8, used it as a waste facility without lawful authority by depositing and/or spreading the material and therefore applying it to land (cl 3B(1)(a)(i) Protection of the Environment Operations (Waste) Regulation2005 (Waste Regulation)). Both defendants have pleaded not guilty to the charges.
Elements of s 144(1) offence
-
The elements of the s 144(1) offence which the Environment Protection Authority (EPA) must prove beyond reasonable doubt are firstly that Grafil is the occupier of Lot 8. Grafil holds environment protection licence (EPL) 12108. By virtue of s 258(2) of the POEO Act Grafil is taken to be the occupier of land to which EPL 12108 applies. This includes Lot 8. This element is admitted by Grafil.
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Secondly, the EPA must establish that Grafil used Lot 8 as a waste facility. According to the EPA this requires that it establish that the material placed on Lot 8 during the charge period was waste and that Lot 8 was used as a waste facility meaning storage and disposal in respect of that waste. This element is not admitted by Grafil.
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Thirdly, the use of Lot 8 as a waste facility was without lawful authority. The EPA submits that the lawful authority required for the alleged use of land was an EPL authorising the use of waste storage or waste disposal, in the absence of the waste meeting all the relevant conditions of an extant waste resource recovery exemption. In addition the EPA submits that a valid development consent for the activities of waste storage and waste disposal was necessary. This element is not admitted by Grafil.
Protection of the Environment Operations Act 1997
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All references to legislation are to the version in force during the charge period as follows:
Chapter 1 Preliminary
…
3 Objects of Act
The objects of this Act are as follows:
(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,
(b) to provide increased opportunities for public involvement and participation in environment protection,
(c) to ensure that the community has access to relevant and meaningful information about pollution,
(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following:
(i) pollution prevention and cleaner production,
(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,
(iia) the elimination of harmful wastes,
(iii) the reduction in the use of materials and the re-use, recovery or recycling of materials,
(iv) the making of progressive environmental improvements, including the reduction of pollution at source,
(v) the monitoring and reporting of environmental quality on a regular basis,
(e) to rationalise, simplify and strengthen the regulatory framework for environment protection,
(f) to improve the efficiency of administration of the environment protection legislation,
(g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.
…
5 Scheduled activities
(1) Listing of activities
The activities listed in Schedule 1 are scheduled activities for the purposes of this Act.
…
Chapter 3 Environment protection licences
Part 3.1 Introduction
…
48 Licensing requirement—scheduled activities (premises-based)
(1) Application of section
This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on.
(2) Offence
A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises.
Maximum penalty:
(a) in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
…
Chapter 5 Environment protection offence
…
Part 5.6 Land pollution and waste
…
Division 3 Waste offences
143 Unlawful transporting or depositing of waste
(1) Offence
If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported:
(a) the person, and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.
…
(2) Proof of lawfulness
In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste.
…
144 Use of land as waste facility without lawful authority
(1) A person who is the owner or occupier of any land and who uses the land, or causes or permits the land to be used, as a waste facility without lawful authority is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
(2) In any proceedings for an offence under this section the defendant bears the onus of proving that there is lawful authority to use the land concerned as a waste facility.
…
Part 5.9 General offences
…
169 Liability of directors etc for offences by corporation—offences attracting special executive liability
(1) If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:
(a) (Repealed)
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
(1A) For the purposes of this section, each of the following provisions attract special executive liability:
…
(p) section 144 (1),
…
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I note that the charge period is 29 October 2012 to 15 May 2013. The above version of s 169 was in force from 11 January 2013 to 30 May 2013 and therefore covered the latter part of the charge period. Two other versions of s 169 were in force from 31 March 2012 to 31 December 2012 and 1 January 2013 to 10 January 2013 covering the earlier part of the charge period. The differences between these versions do not have any material impact on this matter.
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Other relevant sections follow:
Chapter 8 Criminal and other proceedings
Part 8.5 Evidentiary provisions
258 Evidence relating to occupier of premises
(1) In any proceedings under this Act, no proof is required (until evidence is given to the contrary) of the fact that a person is, or at any relevant time was, the occupier of any premises to which the proceedings relate.
(2) In any proceedings under this Act, the holder of a licence under this Act in respect of any premises at a particular time or period is taken to be the occupier of the premises at that time or during that period.
…
Chapter 9 Miscellaneous
Part 9.1 Exemptions
…
286 Exemptions by regulation
(1) The regulations may exempt, or provide for the exemption of:
(a) any person or class of persons, or
(b) any premises or class of premises, or
(c) any area or class of areas, or
(d) any activity or class of activities, or
(e) any other matter or thing or class of matters or things,
from any specified provision or provisions of this Act or the regulations, in such circumstances (if any) and subject to such conditions (if any) as may be specified or referred to in the regulations.
(2) The power to make regulations under this section is not limited by section 284.
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By reference to the Dictionary of the POEO Act , the terms “waste” and “waste facility” are defined as follows:
In this Act:
…
waste includes:
(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or
(b) any discarded, rejected, unwanted, surplus or abandoned substance, or
(c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or
(d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or
(e) any substance prescribed by the regulations to be waste.
A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered.
waste facility means any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations).
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Schedule 1 of the POEO Act provides:
Schedule 1 Scheduled activities
Part 1 Premises-based activities
1 Application of Part
(1) For the purposes of section 48, any activity that is declared by this Part to be a scheduled activity is taken to be an activity for which a licence is required for the premises at which it is carried out (the activity is premises-based).
…
39 Waste disposal (application to land)
(1) This clause applies to waste disposal by application to land, meaning the application to land of waste received from off site, including (but not limited to) application by any of the following methods:
(a) spraying, spreading or depositing on the land,
(b) ploughing, injecting or mixing into the land,
(c) filling, raising, reclaiming or contouring the land.
(2) However, this clause does not apply to an activity that involves any of the following:
(a) sites inside the regulated area that, over any period of time, receive from off site a total of no more than 200 tonnes of the following waste (and no other waste):
(i) building and demolition waste only,
(ii) building and demolition waste mixed with virgin excavated natural material,
...
(3) The activity to which this clause applies is declared to be a scheduled activity.
(4) For the purposes of this clause, 1 litre of waste is taken to weigh 1 kilogram.
…
42 Waste storage
(1) This clause applies to waste storage, meaning the receiving from off site and storing (including storage for transfer) of waste.
(2) However, this clause does not apply to any of the following:
(a) the storage of stormwater,
(b) the storage of up to 60 tonnes at any time of grease trap waste, waste lead acid batteries or waste oil collected for recovery (but not when accompanied by any other kind of waste),
(c) the storage of sewage within a sewage treatment system,
(d) the storage and transfer of liquid waste that is generated and treated on site prior to sewer discharge, or lawful discharge to waters.
(3) The activity to which this clause applies is declared to be a scheduled activity if:
(a) more than 5 tonnes of hazardous waste, restricted solid waste, liquid waste, clinical or related waste or asbestos waste is stored on the premises at any time, or
(b) more than 50 tonnes of waste tyres or 5,000 waste tyres is stored on the premises at any time, or
(c) more than 2,500 tonnes or 2,500 cubic metres, whichever is the lesser, of waste (other than waste referred to in paragraph (a) or (b)) is stored on the premises at any time, or
(d) more than 30,000 tonnes of waste (other than waste referred to in paragraph (a) or (b)) is received per year from off site.
(4) For the purposes of this clause, 1 litre of waste is taken to weigh 1 kilogram.
…
Part 3 Definitions
Division 1 Waste classifications
49 Definitions of waste classifications
(1) In this Schedule:
…
special waste means any of the following:
(a) clinical and related waste,
(b) asbestos waste,
(c) waste tyres,
(d) anything that is classified as special waste pursuant to an EPA Gazettal notice.
…
Division 2 Other definitions
50 Other definitions
(1) In this Schedule:
…
asbestos means the fibrous form of those mineral silicates that belong to the serpentine or amphibole groups of rock-forming minerals, including actinolite, amosite (brown asbestos), anthophyllite, chrysotile (white asbestos), crocidolite (blue asbestos) and tremolite.
asbestos waste means any waste that contains asbestos.
…
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The EPA submitted that by virtue of ss 5(1) and 48 of the POEO Act and cll 39 and 42 of Sch 1 of the POEO Act , “waste disposal” (application to land) and “waste storage” are scheduled activities for which a licence is required for any premises at which those activities are carried on.
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Salt Ash is located in the Port Stephens LGA. The Port Stephens LGA is listed as a “regulated area” in Sch 1 of the POEO Act.
Protection of the Environment Operations (Waste) Regulation 2005
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Clause 3B of the Waste Regulation prescribes the following for the purpose of par (d) of the definition of “waste” in the Dictionary of the POEO Act set out above:
Part 1 Preliminary
…
3B Definition of “waste”
(1) For the purposes of paragraph (d) of the definition of waste in the Dictionary to the Act, the following circumstances are prescribed:
(a) in relation to substances that are applied to land, the application to land by:
(i) spraying, spreading or depositing on the land, or
(ii) ploughing, injecting or mixing into the land, or
(iii) filling, raising, reclaiming or contouring the land,
(b) in relation to substances that are used as fuel, all circumstances.
(2) Subclause (1) (a) does not apply where the substances concerned are either bulk agricultural crop materials or manure.
…
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Other relevant clauses of the Waste Regulation provide:
Part 4 Management of special wastes
42 Special requirements relating to asbestos waste
(1) This clause applies to any activity that involves the transportation, disposal, re-use or recycling of any type of asbestos waste, regardless of whether the activity is required to be licensed.
(2) A person who carries on an activity to which this clause applies must comply with the requirements specified in this clause in relation to the activity concerned.
Maximum penalty: 400 penalty units in the case of a corporation, 200 penalty units in the case of an individual.
(3) The requirements relating to the transportation of asbestos waste are as follows:
(a) bonded asbestos material must be securely packaged at all times,
(b) friable asbestos material must be kept in a sealed container,
(c) asbestos-contaminated soils must be wetted down,
(d) all asbestos waste must be transported in a covered, leak-proof vehicle.
(4) The requirements relating to the off site disposal of asbestos waste are as follows:
(a) asbestos waste in any form must be disposed of only at a landfill site that may lawfully receive the waste,
(b) when asbestos waste is delivered to a landfill site, the occupier of the landfill site must be informed by the person delivering the waste that the waste contains asbestos,
(c) when unloading and disposing of asbestos waste at a landfill site, the waste must be unloaded and disposed of in such a manner as to prevent the generation of dust or the stirring up of dust,
(d) asbestos waste disposed of at a landfill site must be covered with virgin excavated natural material or other material as approved in the facility’s environment protection licence:
(i) initially (at the time of disposal), to a depth of at least 0.15 metre, and
(ii) at the end of each day’s operation, to a depth of at least 0.5 metre, and
(iii) finally, to a depth of at least 1 metre (in the case of bonded asbestos waste or asbestos-contaminated soils) or 3 metres (in the case of friable asbestos material) beneath the final land surface of the landfill site.
(5) A person must not cause or permit asbestos waste in any form to be re-used or recycled.
(6) In this clause:
bonded asbestos material means any material (other than friable asbestos material) that contains asbestos.
friable asbestos material means any material that contains asbestos and is in the form of a powder or can be crumbled, pulverised or reduced to powder by hand pressure when dry.
…
Part 6 Miscellaneous
…
51 General provisions relating to exemptions
(1) The EPA may grant an exemption under this clause if authorised to do so by any provision of the Act or by another provision of this Regulation.
(2) An exemption may be granted in relation to:
(a) any person or class of persons, or
(b) any premises or class of premises, or
(c) any area or class of areas, or
(d) any activity or class of activities, or
(e) any other matter or thing or class of matters or things.
(3) An exemption granted under this clause may be a general exemption or a specific exemption.
(4) A general exemption may be given by way of notice published in the Gazette. A specific exemption may be given after an application is made to the EPA.
…
(6) An exemption under this clause is subject to such conditions as may be imposed by the EPA.
(7) In giving an exemption under this clause, the EPA may, in relation to a general exemption, and must, in relation to a specific exemption, identify a person (or class of persons) to whom the exemption relates (the responsible person).
(8) A general exemption may be amended or revoked by the EPA by way of notice published in the Gazette.
…
(10) If an exemption is given under this clause for which a responsible person is identified, the responsible person must comply with the conditions to which the exemption is subject.
Maximum penalty: 400 penalty units in the case of a corporation, 200 penalty units in the case of an individual.
51A Exemptions relating to certain waste
(1) This clause applies to:
(a) waste that is waste by virtue of paragraph (d) of the definition of waste in the Dictionary to the Act, and
(b) any other waste that is used in connection with a process of thermal treatment, and
(c) coal washery rejects (within the meaning of Part 2).
(2) The EPA may from time to time grant an exemption under clause 51 that exempts a person or class of persons from any one or more of the following provisions in relation to an activity or class of activities relating to waste to which this clause applies:
(a) the provisions of sections 47–49 and 88 of the Act,
(b) the provisions of Schedule 1 to the Act, either in total or as they apply to a particular type of activity,
(c) the provisions of Part 3 and clauses 45 and 47 of this Regulation.
…
Resource recovery exemptions
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Grafil referred to three resource recovery exemptions made under cll 51 and 51A of the Waste Regulation in the course of argument. Two exemptions, the Excavated Natural Material (ENM) exemption 2012 and the “Continuous Process” Recovered Fines (CPRF) exemption 2010 are the most relevant to the facts of these charges. Grafil also referred to the “Batch Process” Recovered Fines (BPRF) exemption 2010 to identify important changes implemented in the testing regime required under the later CPRF exemption. The gazetted versions of the exemptions were in Exhibit O and are extracted below. As the CPRF exemption will be the major focus of this judgment it is set out in full.
Excavated Natural Material exemption 2012 extract
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Relevant extracts of the ENM exemption are set out below (the notes to the ENM exemption being omitted):
PROTECTION OF THE ENVIRONMENT OPERATIONS (WASTE) REGULATION 2005 - GENERAL EXEMPTION UNDER PART 6, CLAUSE 51 AND 51A
The Excavated Natural Material Exemption 2012
Name
1. This exemption is to be known as “The excavated natural material exemption 2012”.
Commencement
2. This exemption commences on 19 October 2012. “The excavated natural material exemption 2008” which commenced 25 July 2008 is revoked from 19 October 2012.
Duration
3. This exemption is valid until revoked by the Environment Protection Authority (EPA) by notice published in the New South Wales Government Gazette.
Legislation
4. Under the Protection of the Environment Operations (Waste) Regulation 2005 (the Regulation):
4.1. Clause 51 (2) authorises the EPA to grant an exemption in relation to any matter or thing including an activity or class of activities, and
4.2. Clause 51A authorises the EPA to exempt a person from any of the following provisions in relation to an activity or class of activities relating to certain waste that is to be land applied or used as a fuel:
• the provisions of sections 47 to 49 and 88 of the Protection of the Environment Operations Act 1997 (the Act),
• the provisions of Schedule 1 to the Act, either in total or as they apply to a particular activity, and
• the provisions of Part 3 and clauses 45 and 47 of the Regulation.
Exemption
5. In this Notice of Exemption:
5.1. The responsible person listed in Column 1 of Table 1 is exempt from the provision/s listed in Column 2 of that table but only:
• in relation to activities involving the relevant waste, and
• where the responsible person complies with the conditions referred to in Column 3 of the table, and
• in the case of a consumer, in relation to the premises where the waste is applied to land as permitted by clause 7.2.
However, this Notice of Exemption does not exempt the responsible person from the provisions specified in Column 2 where the relevant waste is received at premises that are, despite this exemption, required to be licensed for waste disposal (application to land) activities under the provisions of the Act.
5.2. Where a responsible person complies with the conditions of this Notice of Exemption, the activity referred to in Schedule 1 from which that person is exempt is taken to be a non-scheduled activity for the purposes of the Act.
Table 1
Column 1
Column 2
Column 3
Responsible person
Provisions from which the responsible person is exempt
Conditions to be met by the responsible person
Generator
section 48 of the Act in respect of clause 39 of Schedule 1 to the Act
all requirements specified in section 7 and 8
Consumer
section 48 of the Act in respect of clauses 39 and 42 of Schedule 1 to the Act
section 88 of the Act
clause 47 of the Regulation
all requirements specified in section 7 and 9
This Notice of Exemption is a general exemption for the purposes of clause 51(3) of the Regulation.
Definitions
6. In this Notice of Exemption:
Bgl means below ground level, referring to soil at depth beneath the ground surface.
Characterisation means sampling and testing that must be conducted on the material for the range of chemicals and other attributes listed in Column 1 of Table 2.
Composite sample means a sample that combines 5 sub-samples of equal size into a single sample for the purpose of analysis.
Consumer means a person who applies, causes, or permits the application to land of excavated natural material within the definitions of "application to land" in accordance with the Act. The consumer may be the landholder responsible for the land to which excavated natural material is applied.
Discrete sample means a sample collected and analysed individually that will not be composited.
Excavated natural material is naturally occurring rock and soil (including but not limited to materials such as sandstone, shale, clay and soil) that has:
(a) been excavated from the ground, and
(b) contains at least 98% (by weight) natural material, and
(c) does not meet the definition of Virgin Excavated Natural Material in the Act.
Excavated natural material does not include material located in a hotspot; that has been processed; or that contains asbestos, Acid Sulfate Soils (ASS), Potential Acid Sulfate soils (PASS) or sulfidic ores.
Generator means a person who generates excavated natural material for supply to a consumer.
Hotspot means a cylindrical volume which extends through the soil profile from the ground surface to the proposed depth of excavation, where the level of any contaminant listed in Column 1 of Table 2 is greater than the absolute maximum concentration in Column 3 of Table 2.
In situ material means material that exists on or below the ground level. It does not include stockpiled material.
In situ sampling means sampling undertaken on in situ material.
Relevant waste means excavated natural material that meets the requirements of Section 7.
Stockpiled material means material that has been excavated from the ground and temporarily stored on the ground prior to use.
Systematic sampling means sampling at points that are selected at even intervals and are statistically unbiased.
Validation means ensuring that test results comply with the conditions of this exemption prior to material being supplied to a consumer.
General conditions
7. This Notice of Exemption is subject to the following conditions:
7.1. The chemical concentration or other attribute of the excavated natural material listed in Column 1 of Table 2 must not exceed any of the following:
7.1.1. For characterisation tests, the maximum average (based on the arithmetic mean) concentration or value listed in Column 2 of Table 2, and
7.1.2. The absolute maximum concentration or value listed in Column 3 of Table 2.
7.2. The excavated natural material can only be applied to land as engineering fill or used in earthworks.
Generator responsibilities
8. The following conditions must be met by the generator for this exemption to apply:
8.1. The generator must prepare a written sampling plan which includes information on sample preparation and storage. The plan must be kept for a period of three years;
8.2. The generator must undertake sampling and analysis of the material for Acid Sulfate Soil (ASS) and Potential Acid Sulfate Soil (PASS), in accordance with the NSW Acid Sulfate Soil Manual, Acid Sulfate Soils Management Advisory Council, 1998 and the updated Laboratory Methods Guidelines version 2.1 - June 2004 where:
8.2.1. the pH measured in the material is below 5, and/or
8.2.2. the review of the applicable Acid Sulfate Soil Risk Maps (published by the former Department of Land and Water Conservation and available at htm) indicates the potential presence of Acid Sulfate Soils (ASS).
8.3. For stockpiled material, the generator must:
8.3.1. undertake sampling in accordance with Australian Standard 1141.3.1-1996 Methods for sampling and testing aggregates — Sampling - Aggregates (or equivalent);
8.3.2. undertake characterisation according to the requirements listed in Columns 1 and 2 of Table 3 for the range of chemicals and other attributes listed in Column 1 of Table 2; and
8.3.3. store the excavated natural material appropriately until the characterisation test results are validated (i.e. obtained and assessed as compliant with this exemption).
8.4. For in situ material, the generator must:
8.4.1. undertake characterisation for the range of chemicals and other attributes listed in Column 1 of Table 2 according to the requirements listed in Columns 1, 2, and 3 of Table 4. When the ground surface is not comprised of soil (e.g. concrete slab), samples must be taken at the depth at which the soil commences.
8.4.2. undertake sampling at depth according to Column 1 of Table 5.
8.4.3. collect additional soil samples (and analyse them for the range of chemicals and other attributes listed in Column 1 of Table 2), at any depth exhibiting discolouration, staining, odour or other indicators of contamination inconsistent with soil samples collected at the depth intervals indicated in Table 5.
8.4.4. segregate and exclude hotspots identified in accordance with Table 4, from material excavated for reuse under this exemption.
8.5. For both stockpiled and in situ material the generator must:
8.5.1. keep a written record of all characterisation test results, volume of excavated material, and detected hotspot material for a period of three years; and
8.5.2. provide a written statement of compliance to the consumer with each transaction, certifying that the excavated natural material complies with the relevant conditions of this exemption.
Consumer responsibilities
9. The following conditions must be met by the consumer for this exemption to apply:
9.1. The consumer must ensure that the excavated natural material is fit for purpose and poses minimal risk of harm to human health or the environment.
9.2. The consumer must keep records of the quantity of the excavated natural material received as well as the suppliers' name and address, for a period of three years.
9.[3] The consumer must land apply the relevant waste within a reasonable period of time.
Chemical and other material property requirements
10. This Notice of Exemption only applies to excavated natural material where the chemical and other attributes listed in Column 1 of Table 2 comply with the chemical concentrations and other values listed in Column 2 and Column 3 of Table 2, when analysed according to test methods specified in Column 4 of Table 2.
…
Sampling requirements
11. This Notice of Exemption only applies to excavated natural material sampled according to the requirements in Tables 3, 4 and 5.
11.1. Stockpiled excavated natural material must be sampled as per the requirements in Table 3.
11.1.1. Composite sampling must be undertaken for analysis of attributes 1 to 10 and 18 in Column 1 of Table 2. Discrete sampling must be undertaken for analysis of attributes 11 to 17 in Column 1 of Table 2.
11.1.2. Sampling must be undertaken in a manner that ensures all parts of the stockpile are equally accessible for representative sampling.
11.1.[3] For stockpiles greater than 4,000 tonnes the number of samples described in Table 3 must be repeated.
Table 3
Sampling of Stockpiled Material
Column 1 Quantity (tonnes)
Column 2
Number of samples
Column 3
Validation
<500
3
Required
500-1,000
4
1,000-2,000
5
2,000-3,000
7
3,000-4,000
10
11.2. In situ material must be sampled by collecting discrete samples as per the requirements of Tables 4 and 5.
11.2.1. Sites larger than 50,000 m2 should be subdivided into smaller areas and sampled as per Table 4.
…
Test method
12. All testing must be undertaken by analytical laboratories accredited by the National Association of Testing Authorities (NATA), or equivalent. All chemicals and other attributes listed in Column 1 of Table 2 must be measured in accordance with the test methods specified below:
…
[Notes omitted]
“Continuous Process” Recovered Fines exemption 2010
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The CPRF exemption is set out below in full:
PROTECTION OF THE ENVIRONMENT OPERATIONS (WASTE) REGULATION 2005 - GENERAL EXEMPTION UNDER PART 6, CLAUSE 51 AND 51A
The “continuous process” recovered fines exemption September 2010
Name
1. This exemption is to be known as “The `continuous process’ recovered fines exemption September 2010”.
Commencement
2. This exemption commences on 13 September 2010. “The `continuous process’ recovered fines exemption April 2010” which commenced 1 April 2010 is revoked from 13 September 2010.
Duration
3. This exemption is valid until revoked by the Environment Protection Authority (EPA) by notice published in the Government Gazette.
Legislation
4. Under the Protection of the Environment Operations (Waste) Regulation 2005 (the Regulation):
4.1. Clause 51 authorises the EPA to grant an exemption in relation to any matter or thing including an activity or class of activities, and
4.2. Clause 51A authorises the EPA to exempt a person or class of persons from any of the following provisions in relation to an activity or class of activities relating to certain waste that is to be land applied or used as a fuel:
• the provisions of sections 47 to 49 and 88 of the Protection of the Environment Operations Act 1997 (the Act),
• the provisions of Schedule 1 to the Act, either in total or as they apply to a particular activity, and
• the provisions of Part 3 and clauses 45 and 47 of the Regulation.
Exemption
5. In this Notice of Exemption:
5.1. The responsible person listed in Column 1 of Table 1 is exempt from the provision/s listed in Column 2 of that table but only in relation to activities involving the relevant waste and only where the responsible person complies with the conditions referred to in Column 3 of the table.
However, this Notice of Exemption does not exempt the responsible person from the provisions specified in Column 2 where the relevant waste is received at premises that are, despite this exemption, required to be licensed for waste disposal (application to land) activities under the provisions of the Act.
5.2. Where a responsible person complies with the conditions of this Notice of Exemption, the activity referred to in Schedule 1 from which that person is exempt is taken to be a non-scheduled activity for the purposes of the Act.
Table 1
Column 1
Column 2
Column 3
Responsible person
Provisions from which the responsible person is exempt
Conditions to be met by the responsible person
Processor
section 48 of the Act in respect of clause 39 of Schedule 1 to the Act
all requirements specified in section 7, 8, 10 and 11
Consumer
section 48 of the Act in respect of clauses 39 and 42 of Schedule 1 to the Act
section 88 of the Act
clause 47 of the Regulation
all requirements specified in section 7,9,10 and 11
This Notice of Exemption is a general exemption for the purposes of clause 51(3) of the Regulation.
Definitions
6. In this Notice of Exemption:
Characterisation means sampling and testing that must be conducted on the “continuous process” recovered fines for the
range of chemicals and other attributes listed in Column 1 of Table 2.
“Continuous process” recovered fines means a soil or sand substitute with a typical particle size of less than 9.5 mm that is derived from the processing of mixed construction and demolition waste including residues from the processing of skip bin waste.
Composite sample means a sample that combines 5 discrete sub-samples into a single sample for the purpose of analysis.
Consumer means a person who applies, causes, or permits the application to land of “continuous process” recovered fines within the definitions of “application to land” in accordance with the Act. The consumer may be the landholder responsible for the land to which recovered fines are applied.
Processor means a person who processes, mixes, blends, or otherwise incorporates “continuous process” recovered fines into a material for supply to a consumer.
Relevant waste means “continuous process” recovered fines that meet the requirements of Section 7.
Routine sampling means sampling and testing that must be conducted on the “continuous process” recovered fines on an ongoing and regular basis.
Validation means ensuring that test results comply with the conditions of this exemption prior to supply to a consumer or another processor who does not blend or alter the nature of the “continuous process” recovered fines.
General conditions
7. This Notice of Exemption is subject to the following conditions:
7.1. The chemical concentration or other attribute of the “continuous process” recovered fines listed in Column 1 of Table 2 must not exceed any of the following:
7.1.1. the absolute maximum concentration or other value listed in Column 4 of Table 2,
7.1.2. for characterisation tests, the maximum average (based on the arithmetic mean) concentration or other value listed in Column 2 of Table 2, and
7.1.3. for routine tests, the maximum average (based on the arithmetic mean) concentration or other value listed in Column 3 of Table 2.
7.2. The "continuous process" recovered fines can only be applied to land for the purposes of construction or landscaping. This approval does not apply to any of the following applications:
7.2.1. Construction of dams or related water storage infrastructure,
7.2.2. Mine site rehabilitation,
7.2.3. Quarry rehabilitation,
7.2.4. Sand dredge pond rehabilitation,
7.2.5. Back-filling of quarry voids,
7.2.6. Raising or reshaping of land used for agricultural purposes, and
7.2.7. Construction of roads on private land unless:
(a) the relevant waste is applied to land to the minimum extent necessary for the construction of a road, and
(b) a development consent for the development has been granted under the relevant Environmental Planning Instrument (EPI), or
(c) it is to provide access (temporary or permanent) to a development approved by a Council, or
(d) the works undertaken are either exempt or complying development.
Processor responsibilities
8. The following conditions must be met by the processor for this exemption to apply:
8.1. Sampling must be undertaken in accordance with Australian Standard 1141 Methods for sampling and testing aggregates (or equivalent). Sampling and information on sample storage and preparation must be detailed in a written sampling plan. A record of weekly sampling times and other operational information should be kept on-site.
8.2. The “continuous process” recovered fines must be sampled according to the requirements listed Column 1 and Column 2 of Table 3.
8.3. Where there is a change in inputs that is likely to affect the properties of the “continuous process” recovered fines, characterisation must be repeated. Blending of any materials into “continuous process” recovered fines after sampling as required in Table 3 would be regarded as a change in inputs.
8.4. Characterisation samples can be used for routine testing and subsequent calculations.
8.5. Processors must keep a written record of all characterisation and routine test results for a period of three years.
8.6. Records of the quantity of “continuous process” recovered fines supplied to the consumer and either the consumer's name and address or the registration details of the vehicle used to transport the “continuous process” recovered fines, must be kept for a period of three years.
8.7. The processor of “continuous process” recovered fines must provide a written statement of compliance to the consumer with each transaction, certifying that the “continuous process” recovered fines complies with the relevant conditions of this exemption.
8.8. The processor of “continuous process” recovered fines must make information on the latest characterisation and routine test results available to the consumer or the EPA upon request.
8.9. The processor of “continuous process” recovered fines must use due diligence to ensure that the relevant waste is utilised in applications that are consistent with the conditions of this exemption.
Consumer responsibilities
9. The following conditions must be met by the consumer for this exemption to apply:
9.1. Records of the quantity of the “continuous process” recovered fines received by the consumer and the suppliers' name and address must be kept for a period of three years.
9.2. The relevant waste must not be applied in or beneath water including groundwater.
9.3. The consumer must land apply the relevant waste within a reasonable period of time.
Chemical and other material property requirements
10. This Notice of Exemption only applies to “continuous process” recovered fines where the chemical and other attributes listed in Column 1 of Table 2 comply with the chemical concentrations and other values listed in Column 2, Column 3 and Column 4 of Table 2, when analysed according to test methods specified in Column 5 of Table 2.
Table 2
Column 1
Column 2
Column 3
Column 4
Column 5
Chemicals and other attributes
Maximum average concentration for characterisation
(mg/kg “dry weight” unless otherwise specified)
Maximum average
concentration for routine
testing
(mg/kg “dry weight” unless otherwise specified)
Absolute maximum concentration
(mg/kg “dry weight” unless otherwise specified)
Test
method
specified
within
Section
1. Mercury
0.5
No testing required
1.5
12.1
2. Cadmium
0.5
No testing required
1.5
12.2
3. Lead
100
100
250
12.2
4. Arsenic
20
No testing required
40
12.2
5. Chromium (total)
60
60
150
12.2
6. Copper
70
70
200
12.2
7. Nickel
40
No testing required
80
12.2
8. Zinc
250
250
600
12.2
9. Total Organic Carbon
5%
No testing required
10%
12.3
10. Electrical Conductivity
2.5 dS/m
2.5 dS/m
3.5 dS/m
12.4
11. pH*
7.5-9
7.5-9
7.0-10
12.4
12. Total Polycyclic Aromatic Hydrocarbons (PAHs)
20
No testing required
80
12.5
13. Benzo(a)pyrene
1
No testing required
6
12.5
14. Total Petroleum Hydrocarbons (TPHs) C6-C9
80
No testing required
150
12.6
15. Total Petroleum Hydrocarbons (TPHs) C10-C36
800
No testing required
1600
12.6
16. Individual Chlorinated Hydrocarbons
Not applicable
No testing required
1
12.7
17. Individual
Organochlorine Pesticides
Not applicable
No testing required
1
12.8
18. Individual
Polychlorinated Biphenyls (PCBs)
Not applicable
No testing required
1
12.9
19. Glass, metal and rigid plastics
0.1%
0.1%
0.3%
12.10
20. Plastics – light flexible film
0.05
0.05%
0.1%
12.10
21. Proportion (by weight) retained on a 0.425 mm sieve
80%
No testing required
90%
12.11
22. Proportion (by weight) retained on a 9.5 mm sieve
Not applicable
No testing required
5%
12.11
23. Proportion (by weight) retained on a 26.5 mm sieve
Not applicable
No testing required
0%
12.11
*Note: The ranges given for pH are for the minimum and maximum acceptable pH values in the “continuous process” recovered fines.
Sampling and testing requirements
11. This Notice of Exemption only applies to “continuous process” recovered fines sampled according to the requirements in Table 3.
Table 3
Column 1
Column 2
Column 3
Column 4
Characterisation frequency
Routine sampling frequency
Once off sampling frequency
Validation
One composite sample per fortnight.
One composite sample to be collected each week.
5 composite samples to be collected in a 5 week period for assessing “Maximum average concentrations” (in Table 2, Column 3).
Not applicable.
Not required.
Test methods
12. All testing must be undertaken by analytical laboratories accredited by the National Association of Testing Authorities, or equivalent. All chemicals and other attributes listed in Column 1 of Table 2 must be measured in accordance with the test methods specified below:
12.1. Test methods for measuring the mercury concentration in “continuous process” recovered fines:
12.1.1 Particle size reduction & sample splitting may be required.
12.1.2 USEPA SW-846 Method 7471B Mercury in solid or semisolid waste (manual cold vapour technique), or an equivalent analytical method with a detection limit < 20% of the stated absolute maximum concentration in Table 2, Column 4 (i.e. 0.3 mg/kg dry weight).
12.1.3 Report as mg/kg dry weight.
12.2. Test methods for measuring chemicals 2-8 in “continuous process” recovered fines:
12.2.1 Particle size reduction & sample splitting may be required.
12.2.2 Sample preparation by digestion using USEPA SW-846 Method 3051A Microwave assisted acid digestion of sediments, sludges, soils, and oils (or an equivalent analytical method).
12.2.3 Analysis using USEPA SW-846 Method 6010C Inductively coupled plasma - atomic emission spectrometry, or an equivalent analytical method with a detection limit < 10% of the stated absolute maximum concentration in Table 2, Column 4 (i.e. 25 mg/kg dry weight for lead).
12.2.4 Report as mg/kg dry weight.
12.3. Test methods for measuring the total organic carbon content in “continuous process” recovered fines:
12.3.1 Method 105 (Organic Carbon). In Schedule B (3): Guideline on Laboratory Analysis of Potentially Contaminated Soils, National Environment Protection (Assessment of Site Contamination) Measure 1999 (or an equivalent analytical method).
12.3.2 Reporting as % total organic carbon.
12.4. Test methods for measuring the electrical conductivity and pH in “continuous process” recovered fines:
12.4.1 Sample preparation by mixing 1 part recovered fines with 5 parts distilled water.
12.4.2 Analysis using Method 103 (pH) and 104 (Electrical Conductivity). In Schedule B (3): Guideline on Laboratory Analysis of Potentially Contaminated Soils, National Environment Protection (Assessment of Site Contamination) Measure 1999 (or an equivalent analytical method).
12.4.3 Report electrical conductivity in deciSiemens per metre (dS/m).
12.5. Test method for measuring PAHs and benzo(a)pyrene in “continuous process” recovered fines:
12.5.1 Analysis using USEPA SW-846 Method 8100 Polynuclear aromatic hydrocarbons (or an equivalent analytical method).
12.5.2 Calculate the sum of all 16 PAHs for total PAHs.
12.5.3 Report total PAHs as mg/kg dry weight.
12.5.4 Report benzo(a)pyrene as mg/kg.
12.6. Test method for measuring TPHs in “continuous process” recovered fines:
12.6.1. Method 506 (Petroleum Hydrocarbons). In Schedule B (3): Guideline on Laboratory Analysis of Potentially Contaminated Soils, National Environment Protection (Assessment of Site Contamination) Measure 1999 (or an equivalent analytical method).
12.6.2. Report C6 – C9 as mg/kg.
12.6.3. Report C10 – C36 as mg/kg.
12.7. Test methods for measuring chlorinated hydrocarbons in “continuous process” recovered fines:
12.7.1. Analysis using USEPA SW-846 Method 8021B Aromatic and halogenated volatiles by gas chromatography using photoionization and/or electrolytic conductivity detectors (or an equivalent analytical method).
12.7.2. Measure the following chlorinated hydrocarbons: carbon tetrachloride, chlorobenzene, chloroform, 1,2-dichlorobenzene, 1,4-dichlorobenzene, 1,2-dichloroethane, 1,1-dichloroethene, 1,2-dichlorothene, dichloromethane (methylene chloride), 1,1,1,2-tetrachloroethane, 1,1,2,2-tetrachloroethane, 1,2,4-trichlorobenzene, 1,1,1-trichloroethane, 1,1,2-trichloroethane, trichloroethene, vinyl chloride and hexachlorobutadiene concentrations.
12.7.3. Report individual listed chlorinated hydrocarbons as mg/kg.
12.8. Test methods for measuring organochlorine pesticides in “continuous process” recovered fines:
12.8.1. Analysis using USEPA SW-846 Method 808IB Organochlorine pesticides by gas chromatography (or an equivalent analytical method).
12.8.2. Measure the following organochlorine pesticides: aldrin, alpha BHC, beta BHC, gamma BHC (lindane), delta BHC, chlordane, DDT, DDD, DDE, dieldrin, endrin, endrin aldehyde, heptachlor, heptachlor epoxide, hexachlorobenzene, methoxychlor and endosulfan (includes endosulfan I, endosulfan II and endosulfan sulphate).
12.8.3. Report individual listed organochlorine pesticides as mg/kg.
12.9. Test methods for measuring the PCBs in “continuous process” recovered fines:
12.9.1. USEPA SW-846 Method 8082A Polychlorinated Biphenyls (PCBs) by gas chromatography (or an equivalent analytical method).
12.9.2. Measure the following PCBs: Aroclor 1016 (CAS Registry No. 12674-11-2), Aroclor 1221 (CAS Registry No. 11104-28-2), Aroclor 1232 (CAS Registry No. 11141-16-5), Aroclor 1242 (CAS Registry No. 53469-21-9), Aroclor 1248 (CAS Registry No. 12672-29-6), Aroclor 1254 (CAS Registry No. 11097-69-1), Aroclor 1260 (CAS Registry No. 11096-82-5).
12.9.3. Report individual listed PCBs as mg/kg.
12.10. Test method for measuring 19-20 in “continuous process” recovered fines:
12.10.1. NSW Roads & Traffic Authority Test Method T276 Foreign Materials Content of Recycled Crushed Concrete (or an equivalent method), using a 2.36 mm sieve.
12.10.2. Report as %.
12.11. Test method for measuring 21-23 in “continuous process” recovered fines:
12.11.1. NSW Roads & Traffic Authority Test Method T106 Coarse particle distribution in road construction materials (by dry sieving) and T107 Fine particle distribution in road construction materials (or an equivalent method).
12.11.2. Report as %.
Exemption Granted
Mark Gorta,
Manager, Waste Management Section
Environment Protection Authority
by delegation
Notes
The EPA may amend or revoke this exemption at any time. It is the responsibility of the generator, processor and consumer to ensure that they comply with all relevant requirements of the most current exemption. The current version of an exemption will be available on the EPA website: gazetting this general exemption, the EPA is exempting the relevant waste from the specific requirements of the Act and Regulations as stated in this exemption. The EPA is not in any way endorsing the use of this substance or guaranteeing that the substance will confer benefit.
The use of exempted material remains subject to other relevant environmental regulations within the Act and Regulations. For example, a person who pollutes land (s142A) or water (s120), or does not meet the special requirements for asbestos waste (clause 42), regardless of having an exemption, is guilty of an offence and subject to prosecution.
For the purposes of arrangements between a generator, a processor and a consumer, a “transaction” is taken to mean the contractual agreement between the two parties which specifies the exchange of waste material from one party to another. A “statement of compliance” must be in writing and be provided with each transaction.
The conditions set out in this exemption are designed to minimise the risk of potential harm to the environment, human health or agriculture, however, neither this exemption nor these conditions guarantee that the environment, human health or agriculture will not be harmed.
The consumer should assess whether or not the exempted material is fit for the purpose the material is proposed to be used and whether this use will cause harm. The consumer may need to seek expert engineering or technical advice.
This exemption does not apply to any material received at a premises that is required to be licensed for waste disposal (application to land) activities under the provisions of the Act. This exemption does not remove the need for a site at which processing occurs to be licensed, if required under Schedule 1 of the Act.
This exemption does not alter the requirements of any other relevant legislation that must be met in utilising this material, including for example, the need to prepare a Material Safety Data Sheet (MSDS).
Regardless of any exemption provided by the EPA, the person who causes or permits the application of the substance to land must ensure that the action is lawful and consistent with the development consent requirements of the land.
All records required to be kept under this exemption must be made available to authorised officers of the EPA upon request.
Failure to comply with the conditions of this Notice of Exemption may constitute an offence under clause 51 of the Regulation and the responsible person will be required to comply with the normal regulatory provisions.
“Batch process” recovered fines exemption 2010 extract
-
Relevant extracts of the BPRF exemption are set out below:
PROTECTION OF THE ENVIRONMENT OPERATIONS (WASTE) REGULATION 2005 - GENERAL EXEMPTION UNDER PART 6, CLAUSE 51 AND 51A
The “batch process” recovered fines exemption September 2010
Name
1. This exemption is to be known as “The ‘batch process’ recovered fines exemption September 2010”.
Commencement
2. This exemption commences on 13 September 2010. “The `batch process’ recovered fines exemption April 2010” which commenced 1 April 2010 is revoked from 13 September 2010.
Duration
3. This exemption is valid until revoked by the Environment Protection Authority (EPA) by notice published in the Government Gazette.
Legislation
4. Under the Protection of the Environment Operations (Waste) Regulation 2005 (the Regulation):
4.1. Clause 51 authorises the EPA to grant an exemption in relation to any matter or thing including an activity or class of activities, and
4.2. Clause 51A authorises the EPA to exempt a person or class of persons from any of the following provisions in relation to an activity or class of activities relating to certain waste that is to be land applied or used as a fuel:
• the provisions of sections 47 to 49 and 88 of the Protection of the Environment Operations Act 1997 (the Act),
• the provisions of Schedule 1 to the Act, either in total or as they apply to a particular activity, and
• the provisions of Part 3 and clauses 45 and 47 of the Regulation.
Exemption
5. In this Notice of Exemption:
5.1. The responsible person listed in Column 1 of Table 1 is exempt from the provision/s listed in Column 2 of that table but only in relation to activities involving the relevant waste and only where the responsible person complies with the conditions referred to in Column 3 of the table.
However, this Notice of Exemption does not exempt the responsible person from the provisions specified in Column 2 where the relevant waste is received at premises that are, despite this exemption, required to be licensed for waste disposal (application to land) activities under the provisions of the Act.
5.2. Where a responsible person complies with the conditions of this Notice of Exemption, the activity referred to in Schedule 1 from which that person is exempt is taken to be a non-scheduled activity for the purposes of the Act.
Table 1
Column 1
Column 2
Column 3
Responsible person
Provisions from which the responsible person is exempt
Conditions to be met by the responsible person
Processor
section 48 of the Act in respect of clause 39 of Schedule 1 to the Act
all requirements specified in section 7, 8, 10 and 11
Consumer
section 48 of the Act in respect of clauses 39 and 42 of Schedule 1 to the Act
section 88 of the Act
clause 47 of the Regulation
all requirements specified in section 7, 9, 10 and 11
This Notice of Exemption is a general exemption for the purposes of clause 51(3) of the Regulation.
Definitions
6. In this Notice of Exemption:
“Batch process” recovered fines means a soil or sand substitute with a typical maximum particle size of 9.5 mm that is derived from the processing of mixed construction and demolition waste including residues from the processing of skip bin waste.
Characterisation means sampling and testing that must be conducted on the “batch process” recovered fines for the range of chemicals and other attributes listed in Column 1 of Table 2.
Composite sample means a sample that combines 5 discrete sub-samples into a single sample for the purpose of analysis.
Consumer means a person who applies, causes, or permits the application to land of “batch process” recovered fines within the definitions of “application to land” in accordance with the Act. The consumer may be the landholder responsible for the land to which recovered fines are applied.
Processor means a person who processes, mixes, blends, or otherwise incorporates “batch process” recovered fines into a material for supply to a consumer.
Relevant waste means “batch process” recovered fines that meet the requirements of Section 7.
Routine sampling means sampling and testing that must be conducted on the “batch process” recovered fines on an ongoing and regular basis.
Validation means ensuring that test results comply with the conditions of this exemption prior to supply to a consumer or another processor who does not blend or alter the nature of the “batch process” recovered fines.
General conditions
7. This Notice of Exemption is subject to the following conditions:
7.1. The chemical concentration or other attribute of the “batch process” recovered fines listed in Column 1 of Table 2 must not exceed any of the following:
7.1.1. the absolute maximum concentration or other value listed in Column 4 of Table 2,
7.1.2. for characterisation tests, the maximum average (based on the arithmetic mean) concentration or other value listed in Column 2 of Table 2.
7.2. The “batch process” recovered fines can only be applied to land for the purposes of construction or landscaping. This approval does not apply to any of the following applications:
7.2.1. Construction of dams or related water storage infrastructure,
7.2.2. Mine site rehabilitation,
7.2.3. Quarry rehabilitation,
7.2.4. Sand dredge pond rehabilitation,
7.2.5. Back-filling of quarry voids,
7.2.6. Raising or reshaping of land used for agricultural purposes, and
7.2.7. Construction of roads on private land unless:
(a) the relevant waste is applied to land to the minimum extent necessary for the construction of a road, and
(b) a development consent for the development has been granted under the relevant Environmental Planning Instrument (EPI), or
(c) it is to provide access (temporary or permanent) to a development approved by a Council, or
(d) the works undertaken are either exempt or complying development.
Processor responsibilities
8. The following conditions must be met by the processor for this exemption to apply:
8.1. Sampling must be undertaken in accordance with Australian Standard 1141 Methods for sampling and testing aggregates (or equivalent). Sampling and information on sample storage and preparation must be detailed in a written sampling plan.
8.2. The “batch process” recovered fines must be sampled according to the requirements listed Column 1 and Column 4 of Table 3.
8.3. Where there is a change in inputs that is likely to affect the properties of the “batch process” recovered fines, characterisation must be repeated. Blending of any materials into “batch process” recovered fines after sampling as required in Table 3 would be regarded as a change in inputs.
8.4. Processors must keep a written record of all characterisation test results for a period of three years.
8.5. Records of the quantity of “batch process” recovered fines supplied to the consumer and either the consumer's name and address or the registration details of the vehicle used to transport the “batch process” recovered fines, must be kept for a period of three years.
8.6. The processor of “batch process” recovered fines must provide a written statement of compliance to the consumer with each transaction, certifying that the “batch process” recovered fines complies with the relevant conditions of this exemption.
8.7. The processor of “batch process” recovered fines must make information on the latest characterisation test results available to the consumer or the EPA upon request.
8.8. The processor of “batch process” recovered fines must use due diligence to ensure that the relevant waste is utilised in applications that are consistent with the conditions of this exemption.
Consumer responsibilities
9. The following conditions must be met by the consumer for this exemption to apply:
9.1. Records of the quantity of the “batch process” recovered fines received by the consumer and the suppliers' name and address must be kept for a period of three years.
9.2. The relevant waste must not be applied in or beneath water including groundwater.
9.3. The consumer must land apply the relevant waste within a reasonable period of time.
Chemical and other material property requirements
10. This Notice of Exemption only applies to “batch process” recovered fines where the chemical and other attributes listed in Column 1 of Table 2 comply with the chemical concentrations and other values listed in Column 2, Column 3 and Column 4 of Table 2, when analysed according to test methods specified in Column 5 of Table 2.
…
Sampling and testing requirements
11. This Notice of Exemption only applies to "batch process" recovered fines sampled according to the requirements in Table 3.
Table 3
Column 1
Characterisation frequency
Column 2
Routine sampling frequency
Column 3
Once off sampling frequency
Column 4 Validation
10 composite samples per 400 tonnes. No reduction in the frequency of sampling is permitted (i.e. no prorated sampling).
…
Not applicable
Not applicable
Required
Waste Avoidance and Resource Recovery Act 2001
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Grafil referred to the Waste Avoidance and Resource Recovery Act 2001 (WARR Act ) which provides as follows:
Part 1 Preliminary
…
3 Objects of Act
The objects of this Act are as follows:
(a) to encourage the most efficient use of resources and to reduce environmental harm in accordance with the principles of ecologically sustainable development,
(b) to ensure that resource management options are considered against a hierarchy of the following order:
(i) avoidance of unnecessary resource consumption,
(ii) resource recovery (including reuse, reprocessing, recycling and energy recovery),
(iii) disposal,
(c) to provide for the continual reduction in waste generation,
(d) to minimise the consumption of natural resources and the final disposal of waste by encouraging the avoidance of waste and the reuse and recycling of waste,
(e) to ensure that industry shares with the community the responsibility for reducing and dealing with waste,
(f) to ensure the efficient funding of waste and resource management planning, programs and service delivery,
(g) to achieve integrated waste and resource management planning, programs and service delivery on a State-wide basis,
(h) to assist in the achievement of the objectives of the Protection of the Environment Operations Act 1997.
…
Part 2 Functions of Director-General
…
6 Functions of Director-General
(1) The functions of the Director-General are as follows:
(a) to develop, implement or co-ordinate the implementation of (and evaluate strategies and programs for State-wide achievement of) government policy objectives in respect of:
(i) resource efficiency and waste reduction and management in relation to regions, industry sectors or material types, and
(ii) community education and awareness in relation to resource efficiency and waste reduction and management, and
(iii) programs for the prevention of litter and illegal dumping, and
(iv) market development for recovered resources and recycled material, and
(v) information dissemination,
…
Part 3 Waste strategies
12 Development of waste strategies
(1) The EPA is to develop a waste strategy for the State.
(2) A waste strategy:
(a) is to be based on continuous improvement and benchmarked against international best practice, and
(b) is to include targets for waste reduction, resource recovery and the diversion of waste from landfill disposal, developed by an expert reference group appointed by the EPA.
(3) A waste strategy does not take effect until it is adopted by the EPA.
(4) (Repealed).
(5) After the adoption of the first waste strategy, subsequent waste strategies, to replace existing waste strategies, are to be developed at intervals of not more than 5 years.
(6) For the purpose of developing any waste strategy, the adequacy of the waste strategy is, if appropriate, to be assessed by means including the technique known as life cycle analysis.
(7) Before adopting a waste strategy, the EPA:
(a) must cause notice of the proposed strategy to be published in a daily newspaper circulating throughout the State, and
(b) must cause copies of the proposed strategy to be made available for public inspection on the Internet and at the head office of the EPA, and
(c) must allow a period of at least 28 days for members of the public to send written comments to the EPA in relation to the proposed strategy, and
(d) must take any such comments into consideration.
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When the WARR Act was first enacted, it created a statutory body called “Resource NSW”. Resource NSW was abolished in amendments made to the WARR Act by the Statute Law (Miscellaneous Provisions) Act (No 2) 2003 which came into force on 27 November 2003. The amendments imposed the ongoing responsibility of implementing waste avoidance and resource recovery strategies under the WARR Act on the Director-General of the EPA.
Waste strategy documents
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Grafil tendered three waste strategy documents created under the WARR Act. The EPA objected to the tender on the grounds of relevance. As will become clear I consider these documents are relevant to the statutory construction tasks I undertake below. The Waste Avoidance and Resource Recovery Strategy 2003 (WARR Strategy 2003) (Exhibit 35) was developed by Resource NSW. The WARR Strategy 2003 stated plans and targets to be achieved within New South Wales (NSW) for the prevention and avoidance of waste by encouraging re-use and recycling. The WARR Strategy 2003 identified three main areas producing waste being the municipal sector, the commercial and industrial sector and the construction and demolition sector. It specified targets for waste avoidance and resource recovery and in particular sought to increase recovery and utilisation of materials from the construction and demolition sector from 65 percent to 76 percent by 2014.
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In May 2006 the definition of “waste” in the POEO Act was amended to include par (d). The Waste Avoidance and Resource Recovery Strategy 2007 (WARR Strategy 2007) (Exhibit 36) updated the WARR Strategy 2003. Significantly for the present case the WARR Strategy 2007 aimed to support regulation under the POEO Act to enable certain waste materials to be used as fuel or to be applied to land by exempting materials from the regulatory requirements for waste. The WARR Strategy 2007 explained the connection between the amendment to the definition of “waste” in the POEO Act through the inclusion of par (d) and the soon to be introduced resource recovery exemptions. Waste falling within par (d) would be exempted from the POEO Act requirements for waste where such waste was beneficially applied, did not cause harm and was fit for purpose. The amendment to the definition was intended to provide greater certainty to processors involved in resource recovery.
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The Waste Avoidance and Resource Recovery Strategy Progress Report 2012-13 (WARR Strategy Progress Report) (Exhibit 37) reported improvements made in avoiding and recovering waste and reducing litter and illegal dumping. It also highlighted areas which needed greater focus to achieve the targets established in the WARR Strategy 2007. The WARR Strategy Progress Report noted that the resource recovery exemptions were “…genuine, effective and pose[d] minimal risk of harm to the environment or human health…[t]his has allowed over 2.6 million tonnes of waste to be beneficially reused” since 2008 (p 28).
Environmental Planning and Assessment Act Pt 3A
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Part 3A (now repealed) of the Environmental Planning and Assessment Act 1979 (EPA Act) is relevant to the issue of lawful authority. Part 3A allowed for the assessment and approval by the Minister of Planning of major infrastructure developments of state or regional significance. Section 75A defined “major infrastructure developments” to include development for purposes such as “…roads, railways, pipelines, electricity generation, electricity or gas transmission or distribution, sewerage treatment facilities, dams or water reticulation works, desalination plants, trading ports or other public utility undertakings.” Section 75B stated that Pt 3A would apply to development declared to be a project for which the Part applied by a State Environmental Planning Policy or by order of the Minister.
Evidence
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The EPA provided an amended Prosecution Notice under s 247J of the Criminal Procedure Act 1986 (Exhibit 3). The notice stated the affidavits, expert reports, surveillance logs, photographs and emails on which the EPA sought to rely. The notice also stated that the EPA intended to rely on records of interview of Mr Scarlis of KLF Holdings Pty Ltd (KLF), Mr Maddox of Maddox Haulage Pty Ltd (Maddox), Mr Gilder of Bulk Logistics Pty Ltd (Bulk Logistics), Mr Foxman formerly of Botany Building Recyclers Pty Ltd (BBR) now in liquidation, Mr Papworth of BD & RA Papworth Pty Ltd (Papworth) and Mr Hamer formerly of Brunskill McClenahan & Associates (BMA). Mr Hamer’s record of interview (ROI) was not relied upon.
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A certificate under s 261 of the POEO Act certified that Grafil was the holder of EPL 12108 for Lot 8 and Macka’s Sand Pty Ltd (Macka’s Sand) held EPL 13218 for Lot 218 DP 1044608 (Lot 218) and Lot 220 DP 1049608 (Lot 220) (Exhibit N). It also certified that the CPRF exemption and the ENM exemption were in force during the charge period.
List of affidavits
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The EPA read the following affidavits:
Ms Bell environment officer with the EPA affirmed 2 August 2016;
Mr Bourne senior operations officer with the EPA affirmed 28 April 2016;
Ms Groves regional operations officer with the EPA affirmed 25 February 2016;
Mr James unit head waste compliance and former investigator with the EPA sworn 29 April 2016 and 9 August 2016;
Mr Jamieson regional operations unit head with the EPA sworn 6 May 2016;
Ms Lange environment officer with the EPA affirmed 30 August 2016;
Ms Moore senior operations officer with the EPA sworn 27 April 2016, 5 August 2016, 19 September 2016 and 21 October 2016;
Dr Prifti unit head with the EPA sworn 2 August 2016 and 23 November 2016;
Ms Rose environment officer with the EPA affirmed 29 July 2016;
Ms Withnall project officer with the EPA affirmed 28 July 2016;
Mr Wade investigator with the Office of Environment and Heritage (OEH) sworn 21 July 2016;
Ms Blefari senior environmental scientist with AECOM Australia Pty Ltd (AECOM) sworn 1 September 2016;
Mr Dean environmental scientist with AECOM affirmed 31 August 2016;
Mr Fifield engineering geologist with AECOM affirmed 31 August 2016;
Mr Walker senior engineering geologist with AECOM sworn 1 September 2016;
Dr Martens civil and environmental engineer with Martens & Associates Pty Ltd (Martens & Associates) sworn 20 September 2016; and
Mr Brunskill registered surveyor with BMA affirmed 15 November 2017;
Mr McClenahan registered surveyor with BMA, affirmed 1 September 2016 and 15 November 2017;
Mr Mulligan director of Mullown Pty Ltd (Mullown) affirmed 5 October 2016;
Mr Sneddon, former director AH & PJ Sneddon Bulk Haulage Pty Ltd (Sneddons) affirmed 5 October 2016;
Mr Ulizzi, managing director of Aussie Skips (NSW) Pty Ltd (Aussie Skips) sworn 13 September 2016;
Mr Ryan landfill operator and former recycling sales manager with the Bingo Group (Bingo) affirmed 7 October 2016;
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In the BMA 2013 survey Mr McClenahan stated that there were approximately 42 stockpiles on top of Stockpile 1. In cross-examination Mr Bourne agreed that he had observed a number of what appeared to be freshly tipped loads on Stockpile 1 during the search and seizure operation at Lot 8 on 15 May 2013.
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The EPA relied on the following truck dockets to demonstrate that waste materials were deposited on Lot 8, most probably to form one or more of the 42 “fresh” stockpiles on top of Stockpile 1 observed by Mr Bourne on 15 May 2013, in the period 13-14 May 2013 (Exhibit 1M):
13 May 2013 – Mullown truck docket 12798 (for MUL310), Aussie Skips to Macka’s Salt Ash for 20 tonnes of recovered fines;
13 May 2013 – Mullown truck docket 13680 (for MUL510), Aussie Skips to Newcastle for one truck and trailer load of recovered fines to Macka’s Sand and Soil Salt Ash;
13 May 2013 – Mullown truck docket 13811 (for MUL253), Aussie Skips to Macka’s Sand and Soil Salt Ash for one truck and dog load of recovered fines;
13 May 2013 – Mullown truck docket 13953 (for MUL503 [captured entering Lot 8 at 07:55:44 on 13 May 2013]), Aussie Skips to Newcastle for 20 tonnes of recovered fines;
14 May 2013 – Mullown truck docket 13685 (for MUL570 [appears to be captured entering Lot 8 at 09:01:55 on 14 May 2013]), Aussie Skips to Salt Ash Macka’s Sand and Soil for one truck and trailer load of recovered fines;
14 May 2013 – Mullown truck docket 13813 (for MUL253), Aussie Skips to Macka’s Sand Salt Ash for one truck and dog load of recovered fines;
14 May 2013 – Mullown truck docket 13815 (for MUL253), Aussie Skips to Macka’s Sand Salt Ash for one truck and dog load of recovered fines;
14 May 2013 – Mullown truck docket 13957 (for MUL503 [captured entering Lot 8 at 13:42:15 on 14 May 2013]), Aussie Skips to Newcastle for 20 tonnes of recovered fines.
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The EPA also relied on the invoices and daily driver sheets for Papworth. By reference to Papworth truck docket numbers 7325 (for BQ46CJ) and 6981 (for BN31TI) demonstates that further deliveries of recovered fines from Aussie Skips to “Macka’s” were made on, respectively, 13 and 14 May 2013. Similarly, the s 191 notice response from Sneddons included a subcontractor invoice dated 31 May 2013 to Mullown (no. 2157) includes a load from Aussie Skips to “Macka’s Sand and Soil Supplies RMB 2846 Nelson Bay Road Salt Ash NSW 2318” on 13 May 201397. That this load went to Lot 8 is consistent with Mr Sneddon’s unchallenged evidence that he “was not aware of material from Aussie Skips going anywhere but to Macka’s” (Affidavit of Mr Sneddon affirmed 5 October 2016).
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Invoices of Maddox addressed to Bulk Logistics show that 10 loads were transported from the recycling yards of the HBRC and BBR to “Newcastle” in the period from 13-14 May 2013. That at least some of these deliveries were made to Lot 8 is corroborated by the driver sheets which show multiple deliveries being made by various drivers to “Salt Ash” on these dates.
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The EPA also submitted that the deposition of materials on Stockpile 1 on 13 and 14 May 2013 was shown in static camera images (Exhibit 1M). Specifically, the physical tipping of materials from trucks atop of Stockpile 1 can be seen occurring at the following times:
13 May 2013 at 13:47:26
14 May 2013 at 07:33:48
14 May 2013 at 09:07:03
14 May 2013 at 09:07:33
14 May 2013 at 09:08:03
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The photographs taken from the static camera on 13 and 14 May 2013 prove that loads were delivered to Lot 8 on those dates.
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Grafil submitted that it is not sufficient for the EPA to establish that one or more loads of material were tipped on Stockpile 1 or Stockpile 2 on a day or days on or after 11 May 2013. The EPA must establish that one or more loads of material that did not comply with the resource recovery exemptions were deposited on Lot 8 during those few days.
-
If there was no receipt and therefore no disposal of non-exempt material in the period 11 May 2013 to 15 May 2013 then the offence charged will be time barred, as no part of the alleged continuing offence of storage and/or disposal will have been proved to have taken place within the required three year period.
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The affidavit of Ms Bell affirmed 2 August 2013 and accompanying exhibit (Exhibit H) does not document any delivery of material to Lot 8 during the EPA’s inspection on 15 May 2013. There is no evidence of any delivery of material to Stockpiles 1 and 2 on that day (see above at [182]). Several EPA witnesses have confirmed that there was no delivery of material to Lot 8 on that day.
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Accordingly, to avoid the time bar the EPA needs to show beyond a reasonable doubt that non-exempt material was received on either of 11, 12, 13 or 14 May 2015. The EPA cannot on the evidence before the Court demonstrate that particular loads of material delivered on particular days was non-exempt.
-
As this cannot be demonstrated, the EPA has not negatived the reasonable possibility that the charged offence was complete prior to 11 May 2013, with no deposition or disposal of non-exempt material occurring after that date. The continued presence of Stockpiles 1 and 2 on Lot 8 does not entail that the charged offence continues without end after it is completed by the last act of tipping or depositing non-exempt waste.
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To reason, in effect, that the charged offence continues without end would be to commit the very error identified by the CCA in the EPA’s submissions in relation to the water pollution offence in Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 (EPA v Bathurst) at 86 (Hunt CJ at CL). Just as the offence of water pollution is completed when the water is polluted and does not continue ad infinitum while that polluted state persists, and just as the offence of murder is complete once the victim dies and does not continue forever because the deceased continued to be dead, this s 144 offence was complete (if committed at all) when the last act of tipping occurred. There is no basis for the Court concluding on the evidence that this was on or after 11 May 2013. As a result, the charged offence is time barred pursuant to s 216(1)(a) of the Act. As in EPA v Bathurst (see Hunt CJ at CL at 87), there is no evidence before the Court enabling a finding that the offence was completed within the limitation period.
No evidence satisfying elements of Section 144(1) within limitation period
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Deposition of material in the charge period is proved beyond reasonable doubt by the EPA’s evidence concerning 13 and 14 May 2013 outlined above in [538]-[541]. The EPA does not submit that deposition of waste occurred on Lot 8 on 15 May 2013. At issue however is the nature of that material. There is no evidence of deposition of non-compliant material on 11, 12, 13 or 14 May 2013 for the reasons identified by Grafil in [543]-[548] above. The necessary conduct concerning an element of the offence within the statutory time limit has not been proved by the EPA.
Third element part 2 – lawful authority – development consent under EPA Act
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Section 144(1) refers to the use of land as a waste facility “without lawful authority”. In EPA v Hardt the Court had to determine if these words were restricted to lack of authority under the POEO Act or also referred to authority under any other Act, most relevantly the EPA Act. Preston CJ held at [95]-[98] that the words did apply to the POEO Act and beyond including the EPA Act. This conclusion was applied in Terrace Earthmoving (2016) at [148]. It is necessary to consider whether a development consent under the EPA Act was needed for temporary stockpiling of the material in Stockpiles 1 and 2 on Lot 8 during the charge period.
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The development history of Grafil and Macka’s Sand as relied on by the EPA is identified in [28]-[33] above based on the affidavit of Mr Jamieson EPA officer. During the charge period Grafil trading as Macka’s Sand and Soil operated on Lot 8 under the 1977 consent for sand extraction with effectively no conditions. Following inspections in December 2009 and 2010 and on 9 May 2012 by Mr Jamieson where he identified material he considered to be waste on Lot 8 he wrote to the Council asking about the status of construction and demolition waste on Lot 8 under the 1977 consent. After an inspection on 10 July 2012 by the Council Mr Bruce Mackenzie was told that waste storage on Lot 8 in relation to building and demolition waste was not ancillary to the sand extraction activities and therefore the 1977 consent did not permit use of the land as a waste management facility. The Council saw a mound of concrete waste of approximately 30 tonnes which appeared to be historical as it was partially covered with sand and vegetation.
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Mr Jamieson proposed a variation of EPL 12108 on 17 December 2012 to allow storage of small amounts of chicken manure and no use or storage of building and demolition waste (unprocessed or processed) inter alia. Mr Mackenzie’s consultant Umwelt wrote to the EPA on 25 January 2013 proposing a 2,500 tonne cap on waste storage on Lot 8 as Grafil received and processed less than the legislated maximum volume in Sch 1 of the POEO Act, advising of discussions with the Council about the use of waste materials on Lot 8 and proposed that a variation of the EPL should await the outcome of these discussions. Mr Mackenzie in his letter of 2 April 2013 to the EPA stated that a development assessment in relation to the “use of materials designated as waste” which were integral to Grafil’s operations was being undertaken and a DA would be made to the Council (the extract of the letter is at [45] above).
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As identified in the affidavit of Mr Holm summarised above in [34]-[36], Macka’s Sand was granted a Pt 3A approval for sand extraction on Lot 218 in 2009 which included access roads across various lots as identified in [34]. The Pt 3A approval applied to a number of lots including Lot 8. During the charge period Macka’s Sand had consent to build a road to Lot 218 along Lavis Lane and other lots under the Pt 3A approval as identified above in [34]. The Pt 3A approval was modified after the charge period on 30 September 2013 to provide for an alternate access road across Lots 4, 1, 810, 58 and 122. The Pt 3A approval was further modified on 15 March 2016 to allow the alternate access road to cross Lots 1-3 DP 118072 as reflected in the consolidated approval in Exhibit 34 which identified the modifications in red and blue ink. The road has been built as seen on the site view. Mr Mackenzie had used similar material around 2008-2009 to build a road in relation to the sand extraction business on Lot 8 as stated in his second ROI on 11 June 2014 noted above at [381(d)]. The use of recovered fines for a road on Lot 8 around 2008-2009 was confirmed in the affidavit of Mr Ulizzi sworn 13 September 2016 in which he recounted attending Lot 8 with Mr Mulligan in 2009 to view a road being constructed by Grafil with recovered fines supplied by Aussie Skips referred to above at [384(a)].
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The Pt 3A approval for the sand extraction facility on Lot 218 contained the following condition relating to an access road (see image above at [35]) during the charge period:
Road Upgrades
31. The Proponent shall upgrade Lavis Lane (including the eastern section leading to the private haul road to provide a minimum 6 metre sealed carriageway, to the satisfaction of Council, within 6 months of the commencement of quarrying operations on Lot 218, unless otherwise agreed by the Director-General.
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Section 75B(3) of Pt 3A of the EPA Act provides:
(3) Related development If only part of any development is a project to which this Part applies, the other parts of the development are (subject to subsection (4)) taken to be a project to which this Part applies. The development is to be dealt with under this Part as a single project.
…
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In his second ROI dated 11 June 2014 Mr Mackenzie stated in respect of the materials comprising Stockpiles 1 and 2 that he “had to go through a change of use or a change of my DA, which we’re doing that now, to house these materials” (Q 126).
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I have set out above in [380]-[384] the evidence of Mr Mackenzie and others which supported my finding that he was intending to use the material in Stockpiles 1 and 2 for the road for which Macka’s Sand had Pt 3A approval.
EPA submissions
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The EPA submitted that the discussion between Mr Jamieson and Mr Mackenzie on 9 May 2012, the advice of the Council to Mr Bruce Mackenzie and the proposed notice of licence variation (referred to above at [41]-[43]) indicate that both accused were aware of receiving material on Lot 8 without development consent. The receipt and storage of the material in Stockpiles 1 and 2 was not ancillary to the activity authorised in the 1977 consent.
-
Despite proposing a 2,500 tonne cap on waste storage at Lot 8, Umwelt’s letter of 25 January 2013 did not disclose that thousands of tonnes of processed and unprocessed building and demolition waste was being received and stored on Lot 8. It appears from Mr Jamieson’s ROI (at [47] above) that Umwelt did not know the true situation. Grafil and Mr Mackenzie certainly knew the true situation. Thousands of tonnes of waste was being received and stored on Lot 8 which the EPL and extant development consent did not permit.
-
From these correspondences between the EPA, the Council, Mr Mackenzie on behalf of Grafil and Umwelt the Court would be satisfied that despite:
the terms of the discussion between Mr Jamieson and Mr Mackenzie on 9 May 2012;
the advice of the Council to Mr Bruce Mackenzie that the storage of waste comprising bricks, concrete or building demolition was not ancillary to sand extraction (as referred in its letter to the EPA of 6 August 2012);
the letter and proposed notice of licence variation sent by Mr Jamieson to Grafil (and Mr Mackenzie) on 17 December 2012 which repeated the substance of the Council’s letter as well as proposing a prohibition on unprocessed and processed demolition waste; and
the terms of the letter from Umwelt to Mr Jamieson dated 25 January 2013 which represented that “significantly less than the legislated volumes” was received and processed on site,
to the knowledge of Grafil and Mr Mackenzie substantial quantities of both processed and unprocessed building and demolition waste was being received and stored on Lot 8 from 29 October 2012.
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Referring to the correspondence between the EPA and Mr Mackenzie on 17 December 2012, 15 March 2013 and 2 April 2013 and the Umwelt letter dated 28 January 2013 (summarised above at [43]-[45]), the EPA submitted that Mr Mackenzie knowingly did not disclose to the EPA that Grafil had been receiving and storing demolition waste for the purpose of constructing a road. Instead, Mr Mackenzie in his letter dated 2 April 2013 had only referred to the “use of material designated as waste” which was integral to Grafil’s “ongoing operations”. Mr Mackenzie also acknowledged the need for development consent to receive and store waste in his letter of 2 April 2013 to the EPA when he noted that a DA was in the process of being prepared.
Grafil submissions
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Grafil submitted that two development consents existed during the charge period. Firstly, the 1977 consent for sand extraction on Lot 8 enabled ancillary activities to that legal use. Construction of a road on Lot 8 which used similar material in 2008-2009 occurred according to the evidence of Mr Mackenzie, Mr Ulizzi and Mr Mulligan and was ancillary to the sand extraction use. The same could be said for Stockpiles 1 and 2.
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Secondly the Pt 3A approval granted in 2009 to Macka’s Sand applied to Lot 8 during the charge period. At all times during the charge period there was consent for a road along Lavis Lane under the Pt 3A approval with modifications in 2013 and 2016 to provide alternative route options, one being ultimately built. The EPA overlooked the fact that at all times the Pt 3A approval expressly included Lot 8. The temporary stockpiling was ancillary to the development which had approval.
-
Further the ancillary activity of temporary stockpiling was deemed to be part of a major project under the now repealed s 75B(3) of Pt 3A of the EPA Act.
No additional development consent required in charge period
-
The EPA must establish beyond reasonable doubt that development consent was required for the temporary stockpiling of recovered fines and ENM on Lot 8 during the charge period. Arguably the temporary stockpiling of the recovered fines and ENM material can be viewed as ancillary to the 1977 consent allowing sand extraction and related activities such as road construction on Lot 8 for the purposes of that business.
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The intended use of the material for the construction of a road approved under the Pt 3A approval more precisely accords with the evidence of Mr Mackenzie. The EPA’s case consistently failed to recognise that the Pt 3A approval granted in 2009 provided for roads to be constructed during the charge period. That the road route changed after the charge period is immaterial.
-
Whether the temporary stockpiling was ancillary to the activity authorised by the Pt 3A approval arises. In Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 (Foodbarn) at 161 Glass JA (Samuels and Hutley JJA agreeing) stated;
It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another party, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.
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In Baulkham Hills Shire Council v O’Donnell (1990) 69 LGERA 404 (O’Donnell) at 409-410):
…Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensures or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is “ancillary to”, or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing.
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The purpose and nature of the temporary stockpiling render it ancillary to the approved activity of road construction in accordance with principles identified in Foodbarn as refined in O’Donnell. It was not an independent use of land by reason of its nature and extent, rather it was a subordinate use to the purpose of road building.
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As Grafil submitted there is also statutory support for this conclusion in s 75B(3) of Pt 3A (now repealed) which provides in relation to Pt 3A projects that other parts of a development are taken to be part of the approved Pt 3A development. That the Pt 3A approval was granted to Macka’s Sand not Grafil is irrelevant given that the approval applied to Lot 8.
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Much was made in the EPA’s evidence of interactions between Mr Jamieson, the Council, Mr Bruce Mackenzie, Mr Mackenzie and Umwelt to the effect that Grafil through its directors knew that building and demolition waste stored or disposed of on Lot 8 required development consent. Further it was submitted that Mr Mackenzie failed to inform Mr Jamieson and Grafil’s consultant Umwelt of the presence of a large amount of processed and unprocessed building waste being brought onto Lot 8. The EPA’s submissions attributed a particular mental state to Mr Mackenzie whereby he misled the EPA about what he intended to do on Lot 8. This evidence is irrelevant to the issue of lawful authority. I do not consider there is anything misleading in what Mr Mackenzie said or wrote to Mr Jamieson of the EPA about his intentions for Grafil on Lot 8. The EPA does not recognise the application of the resource recovery exemptions in its case. Mr Mackenzie’s letter dated 2 April 2013 to Mr Jamieson referring to “use of material designated as waste” integral to ongoing operations reflects his understanding of the need to regularise waste material to be used in the sand extraction business. The presence of exempt material in Stockpiles 1 and 2, which I have found the ENM and CPRF exemption applies to future use for a road, is a separate and lawful use of Lot 8 under the EPA Act. Mr Mackenzie’s response in his second ROI dated 11 June 2014 does not change my finding.
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No failure to obtain development consent has been established by the EPA and consequently there was no failure by Grafil to obtain lawful authority.
Third element of s 144(1) offence not established
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The EPA has not established beyond reasonable doubt an absence of lawful authority on Grafil’s part, the third element of the s 144(1) offence. Consequently Grafil is not guilty of the s 144(1) charge.
Honest and reasonable mistake of fact does not arise
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There is no need to consider a defence of honest and reasonable mistake of fact as raised by Grafil.
Executive liability charge under s 169(1)
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Grafil is not guilty of the s 144(1) offence. Consequently Mr Mackenzie is not guilty of the executive liability charge under s 169(1). The EPA’s submissions alleging absence of due diligence by Mr Mackenzie need not be ventilated.
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I will confer with the parties before finalising orders in relation to the two charges.
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Decision last updated: 02 July 2018
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