Nonferral Recycling Pty Ltd v EPA

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 02279

NONFERRAL RECYCLING PTY LTD (ACN 135 601 348)	Plaintiff
v
ENVIRONMENT PROTECTION AUTHORITY	Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATES OF HEARING:	9–10 November, 14–18 November, 21–22 November and 24-25 November 2022, 14-17 February, 20-22 February 2023
DATE OF JUDGMENT:	2 June 2023
CASE MAY BE CITED AS:	Nonferral Recycling Pty Ltd v EPA
MEDIUM NEUTRAL CITATION:	[2023] VSC 292

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ENVIRONMENT PROTECTION – Clean up notices – Whether valid and enforceable – Whether lead or aluminium materials held by plaintiff at unlicensed premises are waste as defined by s 4(1) of the Environment Protection Act 1970 (Vic) – Whether lead or aluminium materials are unwanted or surplus matter – Whether intended for sale or recycling – Whether industrial waste or potentially hazardous matter – Whether likely to cause an environmental hazard – Whether baled aluminium foil offcuts are waste – Second-hand Dealers and Pawnbrokers Act 1989 (Vic) ss 1, 5, 9 – Environment Protection Act 1970 (Vic) ss 1A, 4(1), 1B – 1K, 20(1), 27A(2)(a), 62A(1)(d) – Environment Protection Amendment Act 2018 (Vic) ss 7, 18; Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) reg 1, 5, 6 – 10, sch 2 cl 1 – Environment Protection Authority Victoria, Solid Industrial Waste Hazard Categorisation and Management (Publication WRG 631, June 2009) 33 – 42.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr H Carmichael with Ms J Dodd	Johnson Winter Slattery
For the Defendant	Mr T Howard SC with Ms S Pathan	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction........................................................................................................................................ 7

Lead materials..................................................................................................................................... 7

Aluminium materials........................................................................................................................ 8

Aluminium foil packaging offcuts................................................................................................. 8

2017 notice........................................................................................................................................... 8

Statement of issues.......................................................................................................................... 13

Declarations...................................................................................................................................... 13

Relevant provisions......................................................................................................................... 14

Repeal of the Act.............................................................................................................................. 18

Regulations........................................................................................................................................ 19

Statement of Agreed Facts.............................................................................................................. 23

Construction of clean up notices................................................................................................... 26

Interpretation of the notice............................................................................................................ 28

Lay witnesses.................................................................................................................................... 29

Mr Brosnan’s evidence............................................................................................................... 30
Fire assay process.............................................................................................................. 30
Shipments of lead waste through Cleartech.................................................................. 30
Oral evidence..................................................................................................................... 31
Fire assay process................................................................................................. 31
Relationship between ALS and Cleartech........................................................ 32

Mr MacNaughton’s evidence.................................................................................................... 32
Classification of lead cupels............................................................................................. 33
Processes for the disposal of lead cupels....................................................................... 33
Movement to Victoria....................................................................................................... 34
Subsequent disposal of cupels and slag......................................................................... 34
Dealings between Cleartech, Global and Nonferral..................................................... 34
Oral evidence..................................................................................................................... 35
Cleartech’s waste brokering services................................................................ 35
Disposal of lead materials................................................................................... 36
Relationship between Cleartech, Global and Nonferral................................. 37
Relocation to Laverton......................................................................................... 38

Mr Jones’ evidence...................................................................................................................... 39
Disposal of the aluminium materials.............................................................................. 39
Oral evidence..................................................................................................................... 40
Aluminium materials........................................................................................... 40
Disposal of aluminium waste............................................................................. 40
Relationship between Ecka, Virotec and Bell Bay Aluminium..................... 41

Mr Duncan’s evidence................................................................................................................ 42
Bell Bay Aluminium.......................................................................................................... 42
Aluminium powder and paste materials....................................................................... 42
Relationship between Bell Bay Aluminium and Virotec............................................. 43
First shipment of aluminium paste and powder.......................................................... 43
Second shipment of aluminium paste and powder..................................................... 44
Materials in Victoria.......................................................................................................... 45
Oral evidence..................................................................................................................... 45
Previous role as Superintendent, Environment & Analytical....................... 45
Disposal of the aluminium powder and paste................................................. 46
Relationship between Bell Bay Aluminium, Virotec and Nonferral............ 47

Mr Allen’s evidence.................................................................................................................... 48
Subject premises property inspection............................................................................. 48
CFA report.......................................................................................................................... 48
Oral evidence..................................................................................................................... 50
Subject premises................................................................................................... 50
Inspections............................................................................................................. 50
Fire protection at subject premises.................................................................... 50
Classification of materials................................................................................... 51
Referral to WorkSafe............................................................................................ 51

Mr Barry’s evidence.................................................................................................................... 51
Inspection on 7 September 2015...................................................................................... 52
Inspection on 1 March 2016.............................................................................................. 52
Inspection on 6 June 2016................................................................................................. 53
Inspection on 23 February 2017....................................................................................... 53
Inspection on 16 August 2018.......................................................................................... 54
Oral evidence..................................................................................................................... 54
Investigation into Nonferral............................................................................... 54
Was the material waste?...................................................................................... 55
Mr Rigoli’s statements......................................................................................... 55
Basis for issuing the 2017 notice......................................................................... 56

Mr Rigoli’s evidence................................................................................................................... 56
First Rigoli affidavit........................................................................................................... 56
Introduction.......................................................................................................... 56
The subject premises............................................................................................ 57
Buildings A and B................................................................................................ 57
Offcuts... 58
Lead slag and cupels............................................................................................ 58
Lead materials export.......................................................................................... 59
Move to Laverton premises................................................................................ 60
Termination of delivery of lead materials........................................................ 60
Aluminium materials........................................................................................... 61

Second Rigoli affidavit...................................................................................................... 61
Third Rigoli affidavit......................................................................................................... 61
Fourth Rigoli affidavit...................................................................................................... 61
Oral evidence..................................................................................................................... 62
EPA inspection on 7 September 2015................................................................ 62
EPA inspection in March 2016............................................................................ 63
Dealings with Mr Burgess................................................................................... 63
Material safety data sheets.................................................................................. 64
2016 subject premises inspection by Mr Allen of the CFA............................. 64
Storageof drums................................................................................................. 64
Dealings with Mr Wang...................................................................................... 65
Other sales............................................................................................................. 66

Mr Burgess’s evidence................................................................................................................ 67
Relationship between Global, Cleartech and Nonferral.............................................. 67
Global Resource................................................................................................................. 68
Oral evidence..................................................................................................................... 68

Mr Siapkas’ evidence.................................................................................................................. 68
Legal cupels and slag........................................................................................................ 69
Aluminium materials........................................................................................................ 70

Expert witnesses............................................................................................................................... 70

Dr Novella’s evidence................................................................................................................ 71
First site visit...................................................................................................................... 71
Second site visit.................................................................................................................. 72
Classification of the lead materials................................................................................. 73
Reactivity of aluminium powder.................................................................................... 74
Oral evidence..................................................................................................................... 75

Ms Hagen’s evidence.................................................................................................................. 77
First affidavit...................................................................................................................... 78
Risk of harm from the lead materials............................................................................. 78
Toxicological classification of the lead materials.......................................................... 78
Did lead slag pass the solubility test?............................................................................. 79
Oral evidence..................................................................................................................... 79

Mr Watt’s evidence..................................................................................................................... 80
Lead slag and cupels......................................................................................................... 81
Aluminium materials........................................................................................................ 81
Oral evidence..................................................................................................................... 83

Mr Vitali’s evidence.................................................................................................................... 83
Oral evidence..................................................................................................................... 84

Mr Pola’s evidence...................................................................................................................... 84
Oral evidence..................................................................................................................... 84

Mr Miller’s evidence................................................................................................................... 85
Oral evidence..................................................................................................................... 85

Mr Latimer’s evidence................................................................................................................ 85
Lead slag............................................................................................................................. 85
Lead cupels......................................................................................................................... 87
Aluminium materials........................................................................................................ 87
Oral evidence..................................................................................................................... 90

Mr Stevenson’s evidence............................................................................................................ 90
Lead slag and cupels......................................................................................................... 91
Oral evidence..................................................................................................................... 94

First joint expert report............................................................................................................... 98
Lead materials.................................................................................................................... 98
Aluminium materials........................................................................................................ 99

Second joint expert report........................................................................................................ 101
Reduced conclave expert report............................................................................................. 101
2023 conclave expert report..................................................................................................... 102
Explanatory section of the conclave report.................................................................. 103

The meaning of ‘waste’................................................................................................................. 106

EPA’s submissions as to ‘waste’............................................................................................. 107
Nonferral’s submissions as to ‘waste’.................................................................................... 108
The decision in Dasma............................................................................................................. 109

Industrial waste.............................................................................................................................. 112

Prescribed industrial waste.......................................................................................................... 113

Meaning of ‘surplus’ and ‘unwanted’........................................................................................ 114

Witness evidence............................................................................................................................ 114

Lead materials................................................................................................................................. 115

Introduction............................................................................................................................... 115
Lead materials producer’s evidence....................................................................................... 115

Lead materials broker’s evidence........................................................................................... 116
The nature of the lead materials............................................................................................. 117
Disposal costs............................................................................................................................. 118
Quantity of lead materials held at the subject premises..................................................... 118
Sales and export of lead materials.......................................................................................... 119
Appearance of the lead materials and marketing................................................................ 121
Is there a market for lead slag and cupels in Australia?..................................................... 122
Nonferral’s lack of processing capacity................................................................................. 123
Nonferral’s intentions as to the lead materials..................................................................... 124
Conclusion as to the lead materials........................................................................................ 127

Aluminium materials.................................................................................................................... 129

Introduction............................................................................................................................... 129
Aluminium materials producers evidence............................................................................ 130
The nature of the aluminium materials................................................................................. 131
Quantity of aluminium materials held at the subject premises......................................... 132
Disposal costs............................................................................................................................. 134
Sales and export of aluminium materials.............................................................................. 135
Appearance of the aluminium materials and marketing.................................................... 135
Is there a market for off-specification aluminium materials in Australia?....................... 136
Nonferral’s lack of processing capacity................................................................................. 138
Nonferral’s intentions as to the aluminium materials......................................................... 138
Conclusion as to the aluminium materials............................................................................ 139

As at 11 April 2017, were any or all of the materials being handled in a manner which was likely to cause an environmental hazard within the meaning of s 62A(1)(d) of the Act?..... 143

Introduction............................................................................................................................... 143
EPA’s submissions.................................................................................................................... 144
Nonferral’s submissions........................................................................................................... 144
Experts’ opinion........................................................................................................................ 145
Conclusion.................................................................................................................................. 145
Construction of s 62A(1)(d) of the Act................................................................................... 145
Construction of the word ‘likely’.................................................................................. 145
Construction of the word ‘handling’............................................................................ 147
Construction of the expression ‘environmental hazard’........................................... 147

Did Nonferral handle the lead materials or the aluminium materials in a manner likely to cause an environmental hazard?...................................................................................................... 148

The 2017 notice.......................................................................................................................... 148
Absence of permit and licence................................................................................................ 148
Nature of the subject premises................................................................................................ 149
Engineering standards, waste tracking and emergency management plan.................... 149
Storage of waste............................................................................................................... 150

Ignition points........................................................................................................................... 150
Fire risk assessment.................................................................................................................. 151
Mislabelling of drums.............................................................................................................. 152
Condition of drums and risk of leakage................................................................................ 153
Dangerous goods register........................................................................................................ 153
Conclusion.................................................................................................................................. 153

Were the offcuts industrial waste on 24 July 2019?................................................................. 154

Analysis...................................................................................................................................... 155

Are the 2017 and 2019 notices valid and enforceable?............................................................ 156

Should the Court grant any of the declaratory relief sought by Nonferral?...................... 157

HIS HONOUR:

Introduction

In this proceeding, Nonferral Recycling Pty Ltd (‘Nonferral’) (ACN 135 601 348) seeks various declarations against the Environment Protection Authority (‘EPA’) relating to lead and aluminium materials, and aluminium foil packaging offcuts (‘offcuts’) baled and stored by Nonferral at premises at 35 Swainston Road, Shepparton East (‘subject premises’). The subject premises are about 24.3ha in area, and are not licensed for the deposit, treatment, storage, containment, disposal or handling of waste under s 20(1) of the Environment Protection Act 1970 (Vic) (‘Act’).

Nonferral holds a secondhand dealers licence under the Second-hand Dealers and Pawnbrokers Act 1989 (Vic) granted by the Business Licensing Authority. It provides recycling services to firms in respect of metals and other materials.

Lead materials

The lead materials consist of over 1,000 – 1,500[1] metric tonnes (‘MT’) of lead slag and about 10 – 15 MT of lead cupels. They came into existence as by-products of a fire assay process undertaken by three laboratories in Western Australia, ALS Global Pty Ltd (‘ALS’), SGS Australia Pty Ltd (‘SGS’) and Bureau Veritas Australia Pty Ltd (‘Bureau Veritas’) for the analysis of sample mineral ores provided by mining companies.
[1]See [460] – [466].

Nonferral obtained lead materials through licensed premises supplied by Cleartech Waste Management Pty Ltd (‘Cleartech’), a waste broker located in Western Australia and acting on behalf of ALS, SGS and Bureau Veritas, under a supply agreement with Nonferral dated 16 January 2015 (‘supply agreement’). Between January 2015 to January 2016 Cleartech paid Nonferral over $400,000 for receiving the lead materials.[2] They are contained within a large number of 200 litre (44 gallon) metal drums.
[2]Statement of Agreed Facts [21].

Aluminium materials

The aluminium materials consist of about 80-140 MT of aluminium powder and paste in white spirit or glycol.[3] They were generated at Bell Bay, Tasmania by Comalco Aluminium Limited (‘Comalco’) prior to 1998, and by Ecka Granules Australia Pty Ltd (‘Ecka’) between 1998 and 2012. The aluminium materials are contained within 200L and 20L metal drums.
[3]See [531] – [539].

Ecka engaged Virotec Global Solutions Pty Ltd (‘Virotec’) to provide waste management services to dispose of the aluminium materials. They were moved as controlled waste from Bell Bay to licensed premises in New South Wales and Queensland over the period from May 2012 to December 2014.

Aluminium foil packaging offcuts

The offcuts are baled spoil and aluminium foil packaging offcuts derived from foil manufactured by GlaxoSmithKline (‘Glaxo’). The offcuts were obtained by Nonferral from Glaxo and were collected by Nonferral directly from Glaxo’s premises.

2017 notice

Following inspections of the subject premises, and analysis of samples of the lead and aluminium materials, on 11 April 2017, EPA issued Nonferral with a clean up notice (‘2017 notice’) under s 62A(1)(d) of the Act.

The 2017 notice made the following observations:

EPA’s Initial Observations
1.1      On 07 September 2015 in response to an allegation of prescribed industrial waste (‘PIW’) being received at an unlicensed premises, EPA Officers attended the [subject premises]. The Officers:
1.2      Were assisted throughout the inspection by a site representative of [Nonferral].
1.3      Were informed by the site representative that [Nonferral occupies] 2 sheds at the premises, ‘the chemical/plastics recycling shed’ and the ‘polystyrene manufacturing shed’.
1.4      Were informed by the site representative that pre-treated lead material had been received and was being stored at the premises.
1.5      Were informed by the site representative that vanadium acid solutions, generated through a failed battery development project, had been received at the premises for use in a new battery development project at the premises.
1.6      Were informed by the site representative that nickel sulfate and copper sulfate solutions had been received at the premises for the purpose of recovering the nickel and copper.
1.7      Were informed by the site representative that aluminium paste had been received and was being stored at the premises for reuse in concrete manufacturing.
1.8      Were informed that polystyrene fruit boxes were manufactured at the premises.
Storage of Waste Material
1.14     Observed in the polystyrene manufacturing shed, a large volume of 205L drums and 25 litre pails/tins labelled as containing ‘aluminium paste UN1325, Flammable solid 4.1’ and ‘aluminium powder in white spirit UN1325, Flammable solid 4.1’.
1.15     Observed in the polystyrene manufacturing shed, a large volume of 205L drums labelled as toxic and containing ‘lead waste’ and ‘slag’.
1.16     Were informed by the site representative that there was approximately 100 [MT] of lead slag/lead contaminated cupels and there was approximately 15-20 [MT] of aluminium paste/powder in the shed.
1.17     Observed the lead waste, aluminium paste and aluminium powder to be stored together on pallets and stacked 4 drums (205L drums or equivalent) high within the polystyrene processing shed.
EPA Sampling of Waste Material
1.18     On 01 March 2016, EPA Officers attended the [subject premises] to collect samples from previously observed drums labelled ‘lead slag’ and ‘aluminium paste/powder’ being stored in the ‘polystyrene manufacturing shed’. The Officers:
1.19     Were assisted throughout the inspection by a site representative of [Nonferral].
1.23     Observed in the polystyrene manufacturing shed, a large volume of 205L drums and 25 litre pails/tins labelled as containing: ‘aluminium paste UN1325 Flammable solid 4.1’, ‘aluminium powder in white spirit UN1325 Flammable solid 4.1’, ‘toxic lead waste and/or slag’, ‘Nickel solution waste,’ ‘sulphur waste’ and ‘copper sludge’.
1.24     Estimated there to be in total approximately 2900 205L drums, 25 litre pails/tins and containers, located in 3 discreet areas at the eastern end of the polystyrene manufacturing shed.
1.25     Collected various samples of material being stored in the drums, pails/tins and containers across the 3 discreet areas.
Results of EPA Sampling
1.26     EPA Victoria received analysis of 10 slag samples and 2 aluminium samples taken by EPA Officers during an inspection of the premises on 01 March 2016. The analysis results were provided within a report by HRL Technology Pty Ltd, Report no: 160337.
1.27     The report referred to in point 1.26 above showed that the aluminium samples were Dangerous Goods Class 4 Division 1 and potentially Dangerous Goods Class 4 Division 3.
1.28     The report referred to in point 1.26 above showed that the lead samples had concentrations of lead exceeding that prescribed within EPA’s Solid Industrial Waste hazard Categorisation and Management Policy, IWRG631 for Category A Prescribed Industrial Waste.
CFA Undertaking Fire Assessment
1.29     On 06 June 2016, EPA Officers attended the [subject premises]. Two Country Fire Authority officers accompanied EPA. EPA requested that the CFA Officers undertake a Fire Risk Assessment associated with the storage and handling of the aluminium and lead waste material stored at the premises.
1.30     Both EPA and CFA were assisted throughout the inspection by a site representative of [Nonferral]. The Officers;
1.31     Observed the CFA Officers taking photos and notes during the inspection.
CFA Report – Environmental Hazard
1.32     On 22 June 2016, EPA received a [report] from CFA in relation to the fire risks associated with the storage of aluminium and lead at the premises.
1.33     The [CFA report] referred to in 1.32 above strongly recommended the removal of the aluminium material and further assessment of the storage of the lead material given the absence of fire and safety mitigation measures at the premises.
1.34     The [CFA report] referred to in 1.32 above also suggest the storage of the aluminium and lead waste material at the premises posed a potential safety risk to the community and responding fire fighters should the material be involved in a fire.
Storage of Waste Material
1.35     On 23 February 2017, EPA Officers inspected [the subject premises] for the purpose of assessing the storage of PIW at the premises. The Officers;
1.36     Met with and were assisted throughout the inspection by a site representative of [Nonferral].
1.37     Were informed by the site representative that the aluminium powder and aluminium paste that EPA officers observed and sampled on previous inspections remains at the premises.
1.38     Were informed by the site representative that the lead contaminated cupels and lead slag that EPA officers observed on previous inspection remains at the premises.
1.39     Observed large volumes of 205L drums label lead cupels and lead slag stored in north eastern end of the polystyrene processing shed on the premises consistent with the material observed during previous inspections at the premises.
1.40     Observed large volumes of 25L pails/tins label aluminium powder and aluminium paste stored in the south-eastern end of the polystyrene processing shed on the premises consistent with the material observed during previous inspections at the premises.
1.41     Observed the aluminium material and the lead material to be separated from each other and the stockpile of polystyrene boxes also stored at the eastern end of the polystyrene processing shed.

The 2017 notice contained both general and reporting requirements.

The general requirements in the 2017 notice in substance directed Nonferral to:

(a) immediately stop accepting prescribed industrial waste at the subject premises;

(b) by 1 June 2017, separate, segregate and maintain the lead slag/cupel material, aluminium paste/powder (UN 1309) and aluminium paste/powder (UN 1325) into discrete areas undercover within the subject premises;

(c) by 1 June 2017, provide a complete inventory of the lead slag/cupel material, and the aluminium powder/paste (UN 1325 and 1309) to the EPA including the volume, type and description of the lead slag/cupel material and aluminium powder/paste (UN 1325 and 1309); and

(d) by 20 November 2017, remove all prescribed industrial waste from the subject premises to facilities licenced to accept such material.

The reasons given for the view formed in the 2017 notice were:

Large volumes of prescribed industrial waste, being lead slag and cupels contaminated with lead greater than 6000mg/kg are being stored or otherwise handled in a manner at the premises that is likely to cause an environmental hazard.
Large volumes of prescribed industrial waste, being aluminium powder/paste with a hazard class of 4.1 flammable solid are being stored or otherwise handled in a manner at the premises that is likely to cause an environmental hazard.
Large volumes of hazardous material, being aluminium powder/paste with a hazard class of 4.1 flammable solid are being stored or otherwise handled at the premises in a manner that is likely to cause an environmental hazard.
Large volumes of hazardous prescribed industrial waste material has been accepted and are being stored at the premises without an EPA licence where one is required.
On this basis, and considering the observations previously stated, I have formed a view and I am satisfied that industrial waste or a potentially hazardous substance is being handled in a manner which is likely to cause an environmental hazard, as per section 62A(1)(d) of the EP Act.
In order to address this, you must take the clean up and ongoing management measures listed in this notice.

Nonferral did not initially seek to challenge the 2017 notice, and took some steps to comply with it. On 17 August 2017, Nonferral sought an extension of time for compliance until 21 May 2018.

On 9 October 2017, the EPA amended the 2017 notice by extending the time for the removal of all prescribed industrial waste from the subject premises until 21 May 2018.

On 9 April 2019, the EPA conducted a further inspection of the subject premises and on 24 July 2019 issued Nonferral with a second clean up notice (‘2019 notice’) under ss 62A(1)(a) and (d) of the Act.

The 2019 notice contained both general and reporting requirements.

The general requirements in the 2019 notice directed Nonferral, in substance, to:

(a) stop accepting industrial waste at the subject premises;

(b) by 11 October 2019, provide the EPA with the scope for an environmental audit under s 53V of the Act; and

(c) by 11 October 2019, modify the configuration of stockpiles of combustible recyclable and waste materials stored outdoors at the subject premises as directed in the notice.

Statement of issues

By an order made on 10 October 2022, I settled the contents of a statement of issues under s 50(2) of the Civil Procedure Act 2010 (Vic). The issues were reduced in number and simplified in content during the trial. By the conclusion of the trial the issues remaining in contention were, in substance:

1.Whether, as at 11 April 2017 any or all of the lead slag, the lead cupels, the aluminium powder and aluminium waste stored at the subject premises (‘the materials’) comprised waste and industrial waste within the meaning of s 62A(1)(d) of the Act.
2.Whether, as at 11 April 2017, any or all of the materials comprised a potentially hazardous substance, within the meaning of s 62A(1)(d) of the Act;
3.Whether, as at 11 April 2017, any or all of the materials were being handled in a manner which was likely to cause an environmental hazard within the meaning of s 62A(1)(d) of the Act.
4.Whether, as at 24 July 2019, the offcuts comprised waste within the meaning of s 62A(1)(d) of the Act.
5.Whether the 2017 notice is invalid and unenforceable and whether the requirements in the 2019 notice relating to the offcuts are unenforceable.

6.Whether the Court, in the exercise of its discretion, should grant, or decline to grant, any of the declaratory relief sought by Nonferral.

Declarations

By the end of the trial the declarations sought by Nonferral as set out in the Amended Originating Motion had also been refined and simplified. In substance, Nonferral seeks the following declarations:

2017 Notice
1.As at 11 April 2017, the aluminium materials in storage at the subject premises were not ‘waste’ as defined in s 4(1) of the Act such that Requirements 3.1 and 3.4 of the 2017 notice are unenforceable in respect of those materials.
2.As at 11 April 2017, the lead in storage at the subject premises was not ‘waste’ as defined in s 4(1) of the Act, such that Requirements 3.1 and 3.4 of the 2017 notice are unenforceable in respect of those materials.
3.As at 11 April 2017, the lead cupels in storage at the subject premises were not ‘waste’ as defined in s 4(1) of the Act, such that Requirements 3.1 and 3.4 of the 2017 notice are unenforceable in respect of those materials.
4.As at 11 April 2017, Nonferral’s handling of the aluminium materials, the lead slag and the lead cupels was not ‘likely to cause an environmental hazard’, such that the 2017 Notice is invalid.
2019 Notice
5.As at 24 July 2019, the baled/shredded aluminium foil in storage at the subject premises was not ‘waste’ within the meaning of that term as defined in s 4(1) of the Act, such that the Requirements of the 2019 notice are unenforceable in respect of that material.

Relevant provisions

Section 62A(1) is the operative provision of the Act relied on by the EPA to support the 2017 and 2019 notices. It provides:

Notwithstanding anything to the contrary in this Act, the Authority may by notice in writing direct—
(a)the occupier of any premises upon or from which pollution has occurred or been permitted to occur;

(b) the person who has caused or permitted the pollution to occur;
(c)any person who appears to have abandoned or dumped any industrial waste or potentially hazardous substance; or
(d)any person who is handling industrial waste or a potentially hazardous substance in a manner which is likely to cause an environmental hazard—

to take the clean up and on-going management measures as specified in the notice.

Section 4 of the Act is the definitions section of the Act and relevantly contains the following definitions:

clean up includes any measures—
(a)to remove, disperse, destroy, dispose of, abate, neutralize or treat any pollutant, waste, substance, environmental hazard … ; and
(b)to restore the environment to a state as close as practicable to the state it was in immediately before—
…; or
(ii) the creation of an environmental hazard; and
…
(c)to restore the environment to a state specified in a notice by the end of the time specified in the notice; and
(d)to assess the nature and extent of the damage and risk caused by any …, waste, substance, environmental hazard … ; and
(e)to take any measurement, recording or sample or to prepare any report, plan, drawing or other document, or to make any inspection, calculation, test or analysis or do anything that may be specified in the notice; and
(f)to retain any consultant, contractor, expert, agency or person at the cost of the occupier or person required to comply with the notice or otherwise for the purpose of taking any clean up measures specified in the notice; and
(g)to determine the most appropriate action to take in relation to the measures set out in paragraphs (a), (b), (c), (d), (e) and (f);

environmental hazard means a state of danger to human beings or the environment whether imminent or otherwise resulting from the location, storage or handling of any substance having toxic, corrosive, flammable, explosive, … or otherwise dangerous characteristics;

industrial waste means—
(a)any waste arising from commercial, industrial or trade activities or from laboratories; or
(b)any waste containing substances or materials which are potentially harmful to human beings or equipment;

scheduled premises means any premises—
(a)prescribed by regulation; or
(b)which is of a class prescribed by regulation as premises at or from which—
(i)waste is, or is likely to be, discharged, emitted or deposited to the environment; or
(ii)… or
(iii)waste is, or substances which are a danger or potential danger to the quality of the environment or any segment of the environment are, reprocessed, treated, stored, contained, disposed of or handled; or
(iv)any activity is conducted which creates a state of potential danger to the quality of the environment or any segment of the environment;

waste includes—
(a)any matter whether solid, liquid, gaseous or radio-active which is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment;
(ab)any greenhouse gas substance emitted or discharged into the environment;
(b)any discarded, rejected, unwanted, surplus or abandoned matter;
(c)any otherwise discarded, rejected, abandoned, unwanted or surplus matter intended for—
(i)recycling, reprocessing, recovery or purification by a separate operation from that which produced the matter; or

(ii) sale; and

(d) any matter prescribed to be waste;

The purpose of the Act is set out in s 1A in these terms:

(1)The purpose of this Act is to create a legislative framework for the protection of the environment in Victoria having regard to the principles of environment protection.
(2)The principles of environment protection are set out in sections 1B to 1L.
(3)It is the intention of Parliament that in the administration of this Act regard should be given to the principles of environment protection.

The principles of environment protection relevantly include:

1B Principle of integration of economic, social and environmental considerations
(1)Sound environmental practices and procedures should be adopted as a basis for ecologically sustainable development for the benefit of all human beings and the environment.
(2)This requires the effective integration of economic, social and environmental considerations in decision making processes with the need to improve community well-being and the benefit of future generations.
(3)The measures adopted should be cost-effective and in proportion to the significance of the environmental problems being addressed.

1C The precautionary principle
(1)If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(2)Decision making should be guided by—
(a)a careful evaluation to avoid serious or irreversible damage to the environment wherever practicable; and
(b)an assessment of the risk-weighted consequences of various options.

1D Principle of intergenerational equity
The present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
1G Principle of shared responsibility
(1)Protection of the environment is a responsibility shared by all levels of Government and industry, business, communities and the people of Victoria. …

1H Principle of product stewardship
Producers and users of goods and services have a shared responsibility with Government to manage the environmental impacts throughout the life cycle of the goods and services, including the ultimate disposal of any wastes.
1I Principle of wastes hierarchy
Wastes should be managed in accordance with the following order of preference—
(a)avoidance;
(b)re-use;
(c)re-cycling;
(d)recovery of energy;
(e)treatment;
(f)containment;
(g)disposal.

1K Principle of enforcement
Enforcement of environmental requirements should be undertaken for the purpose of—
(a)better protecting the environment and its economic and social uses;
(b)ensuring that no commercial advantage is obtained by any person who fails to comply with environmental requirements;
(c)influencing the attitude and behaviour of persons whose actions may have adverse environmental impacts or who develop, invest in, purchase or use goods and services which may have adverse environmental impacts.

Section 20(1) of the Act requires the occupier of scheduled premises to be licensed prior to (amongst other things) the deposit, treatment, storage, containment, disposal or handling of waste.

Section 27A(2)(a) of the Act provides that it is an indictable offence for a person (amongst other things) to dump, deposit, discard or abandon a particular kind of industrial waste at a place not being a site licensed to accept industrial waste of that kind under the Act.

Repeal of the Act

The Act was substantially repealed by the Environment Protection Act 2017 (Vic) (‘2017 Act’), the provisions of which came into force in 2018. The transitional provisions relating to the preservation of clean up notices given under s 62A of the Act were added to the 2017 Act by the Environment Protection Amendment Act 2018 (Vic) (‘2018 Amendment Act’). Section 18 of the 2018 Amendment Act inserted additional provisions into the Act which included:

Section 468 Definitions
(1) In this Chapter –
commencement day means the day on which section 7 of the Environment Protection Amendment Act 2018 comes into operation;
…
new Act means this Act;
old Act means the Environment Protection Act 1970 as in force from time to time before its repeal by this Act;
Section 469 General transitional provisions:
(1)Except where the contrary intention appears, this Part, and regulations under this Part, do not affect or take away from the Interpretation of Legislation Act 1984.
(2)If a provision of the old Act continues to have effect because of this Part, or regulations under this Part, the following provisions also continue to have effect –
(a)any other provisions of the old Act that are related to the continued provision and that need to continue to be in force in order for the continued provision to have full force and effect, including any relevant definition;
(b)any regulations made under the old Act for the purposes of the continued provision.

Section 476 Continuation of notices and directions:
(1)A notice or direction (however described) that was given under the old Act and is in force immediately before the commencement day continues in force on and after the commencement day as if the old Act had not been repealed.
(2)Despite subsection (1), a notice or direction continued in force under that subsection ceases to be in force at the end of the period of 2 years beginning on the commencement day.

Section 7 of the 2018 Amendment Act came into force on 1 July 2021.[4] The effect of these provisions is that the 2017 and 2019 clean up notices cease to be in force on 30 June 2023.
[4]Victoria, Victorian Government Gazette, No S 124, 16 March 2021.

Regulations

At the relevant times, the assessment, classification, transport and management of waste in Victoria was controlled by the Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) (‘Regulations’).[5]
[5]S.R. No. 77/2009.

Regulation 1 sets out the objectives of the Regulations which are to:

(a)assist industry to implement the principle of wastes hierarchy as set out in section 1I of the [Act];
(b)prescribe requirements for assessing, categorising and classifying industrial waste and prescribed industrial waste for the purposes of the [Act];
(c)encourage industry to utilise industrial waste as a resource through exempting material from categorisation as prescribed industrial waste where a secondary beneficial reuse is established;
(d)prescribe requirements for the transport and management of prescribed industrial waste including requirements for the tracking of prescribed industrial waste.

Relevant definitions are set out in reg 5, and include:

category A waste means the type of prescribed industrial waste referred to in clause 1 of Schedule 2;
direct beneficial reuse means use as an input or raw material substitute in a commercial industrial, trade or laboratory activity without prior treatment or reprocessing;
prescribed industrial waste means any industrial waste or mixture containing industrial waste other than industrial waste or a mixture containing industrial waste that—
(a)is a Schedule 1 industrial waste; or
(b)has a direct beneficial reuse and has been consigned for use; or
(c)is exempt material; or
(d)is not category A waste, category B waste or category C waste;

prescribed industrial waste producer means an occupier of premises from which prescribed industrial waste is produced and—
(a)disposed of on the premises; or
(b)transported from the premises, other than through a sewer;

reprocessing does not include reusing or recycling prescribed industrial waste or energy recovery from prescribed industrial waste;
Solid Industrial Waste Thresholds means the table titled “Solid Industrial Waste Hazard Categorisation Thresholds” of the Industrial Waste Guidelines;
treatment means any form of physical or chemical alteration other than reprocessing, including but not limited to composting, energy recovery and applying to land;
waste receiver means an occupier of premises licensed by the Authority, or premises exempt from licensing requirements, who disposes of, treats, stores or reprocesses prescribed industrial waste;
waste transporter means a person who transports prescribed industrial waste on a highway.

Part 2 of the Regulations contains substantive provisions for the assessment, categorisation, and classification of industrial waste, and prescribed industrial waste.

Regulations 6–10 of the Regulations provide:

6 Producer to assess and categorise prescribed industrial waste
A prescribed industrial waste producer must—
(a)assess and categorise prescribed industrial waste in accordance with this Part; and
(b)manage prescribed industrial waste in accordance with any relevant classification under this Part.
7Avoidance or reduction opportunity
(1)A prescribed industrial waste producer must assess processes undertaken or proposed to be undertaken at the producer's premises that produce or have the potential to produce prescribed industrial waste against the following tests of whether there is an opportunity for avoidance or reduction—
(a)Available: Technology and facilities are practicably accessible for altering or augmenting the processes or proposed processes to avoid the production of, or if that is not possible, to reduce the production or potential production of such waste;
(b)Not available: Technology and facilities are not practicably accessible for altering or augmenting the processes or proposed processes to avoid the production of, or if that is not possible, to reduce the production or potential production of such waste.

(2)Where an avoidance or reduction opportunity is assessed as—
(a)available under regulation 7(1)(a) it must be implemented;
(b)not available under regulation 7(1)(b), prescribed industrial waste produced must be assessed in accordance with regulation 8.

8 Reuse or recycling opportunity
(1)A prescribed industrial waste producer must assess prescribed industrial waste against the following tests of potential for reuse or recycling where required to do so by regulation 7(2)(b)—
(a)Available: The prescribed industrial waste has potential for reuse or recycling and technology and facilities necessary to realise this potential are practicably accessible;
(b)Not available: The prescribed industrial waste does not have potential for reuse or recycling or technology and facilities necessary to realise this potential are not practicably accessible.

(2)Prescribed industrial waste assessed as satisfying—
(a)regulation 8(1)(a) must be reused or recycled;
(b)regulation 8(1)(b) must be assessed in accordance with regulation 9.

9 Treatment or reprocessing opportunity
(1)A prescribed industrial waste producer must assess prescribed industrial waste against the following tests of potential for treatment or reprocessing where required to do so by regulation 8(2)(b)—
(a)Available: The prescribed industrial waste can be treated or reprocessed to reduce the requirement for residual management, and technology and facilities necessary to realise this potential are practicably accessible;
(b)Not available: The prescribed industrial waste cannot be treated or reprocessed to reduce the requirement for residual management, or technology and facilities necessary to realise this potential are not practicably accessible.

(2)Subject to subregulation (3), prescribed industrial waste assessed as satisfying—
(a)regulation 9(1)(a) must be treated or reprocessed and then assessed in accordance with regulation 8;
(b)regulation 9(1)(b) must be categorised in accordance with regulation 10.

(3)Despite anything to the contrary in these Regulations, prescribed industrial waste must not be diluted, mixed or otherwise treated where this would reduce—
(a)the potential for reusing or recycling; or
(b)the hazard category of the waste for the purposes of disposal—

unless the treatment is necessary to obtain a better environmental outcome.

10 Hazard categorisation
Where regulation 9(2)(b) requires a prescribed industrial waste producer to categorise prescribed industrial waste in accordance with this regulation, the prescribed industrial waste must be categorised in terms of hazard posed in accordance with Schedule 2.

Part 3 of the Regulations sets out the operative requirements for drivers and vehicles where prescribed industrial waste or other specified industrial waste is transported.

Category A waste is defined to mean the type of prescribed industrial waste referred to in cl 1 of sch 2. Clause 1 of sch 2 sets out (amongst other things) that category A waste is prescribed industrial waste—

(a)that can be classified as dangerous goods under the Dangerous Goods Act 1985 (Vic) and falls within one or more of the following classes under that Act—
…
(ii)       Class 4.1 (Flammable Solid);
…
(iv)     Class 4.3 (Dangerous when wet);
…
(vii)     Class 6.1 (Toxic); or
…
(c)with any contaminant concentration greater than the category A contaminant concentrations specified in the Solid Industrial Waste Thresholds …

The Solid Industrial Waste Thresholds are found in the Industrial Waste Guidelines[6] (‘Guidelines’). Table 2 of the Guidelines sets out the industrial waste upper limits by volume and weight for substances containing lead.
[6]Victoria, Victorian Government Gazette, No S 177, 9 June 2009.

Statement of Agreed Facts

Nonferral and the EPA filed an agreed statement of facts and agreed in substance to the following facts:

Background and Entities
NFR
1.Nonferral was incorporated on 26 February 2009.
2.Between 26 February 2009 and 16 August 2016, and again from 12 June 2018 onward, Little Joe Rigoli was the sole director of Nonferral.
3.At all relevant times, Nonferral has been in occupation and control of the subject premises.
4.Nonferral has not at any time held any licence under the Act.

[Global]
5.Global Waste Management and Environmental Services Pty Ltd (later called R & K Waste Management Services Pty Ltd) (ACN 072 554 968) [‘Global’] was incorporated on 22 January 1996.

The subject premises were surrounded by a moat and high barbed wire fences and were not easy to access. There was only one vehicle entrance through a steel gate that was more than two metres high. On the front gate was a sign emblazoned with the words ‘Boundary demarcation’. The subject premises had been described by Mr Rigoli and registered with ASIC as ‘The Principality of Ponderosa’ 35 Swainston Road, Shepparton, Vic, 3630.

Engineering standards, waste tracking and emergency management plan

Mr Barry gave evidence of his concern about the absence of a licence and therefore the engineering standards that came with a licence. There was no emergency management plan, and there was no inventory management. There was no tracing or traceability of prescribed industrial waste. He observed that prescribed industrial waste was highly regulated because of the risk it represented to humanity and the environment. It was important to avoid the risk that the waste might just disappear, or end up somewhere where it should not.

I accept Mr Barry’s evidence. The absence of controls under the Act or the Planning and Environment Act 1987 (Vic) over the large quantity of prescribed industrial waste on the subject premises brought with it the risk that some or all of the waste might be inappropriately handled or transported or the wrong thing might be done with the waste at the subject premises. The only principal control that regulated the subject premises was the Dangerous Goods Act and the regulations under that Act administered by WorkSafe.

Storage of waste

As at April 2017, the lead and aluminium materials were stored in Building B on the subject premises. There were large quantities of lead and aluminium materials in Building B. Photographs show 200L drums of lead and aluminium materials stacked on pallets up to four 200L drums high, and reaching near to the roof of Building B. Lead and aluminium drums were stored a short distance apart. 20L aluminium powder/paste pails were also stacked on pallets three or four high, and in some cases on top of 200L drums.

The drums were stored close together with very limited (if any) access between them at least in some instances that could be used in the event of an emergency.

Ignition points

As at 11 April 2017, Building B had a number of possible ignition points. This was significant given that most of the aluminium materials were flammable whilst the lead materials were toxic. The ignition points included:

(a) a manufacturing facility for the production of expanded polystyrene products. This involved the heating of aluminium moulds to temperatures of around 110 or 120˚C using steam and the cooling by water pumped from an external dam of the ejected polystyrene boxes to about 80˚C;

(b) the storage of manufactured polystyrene boxes;

(c) the electrical lighting in the dangerous goods area;

(d) truck movement inside Building B including contractors and transport companies doing deliveries;

(e) the manufacture of food products in Building B as part of a food manufacturing business of gluten free products for supply to cafes and food outlets;

(f) equipment associated with a commercial kitchen for the business including an oven and stove, freezer room, blender, dough mixers, bread slicer and a dough sheeter;

(g) a gas powered heat gun, and gas canister located at the opposite end of Building B; and

(h) large LPG and liquefied natural gas tanks located about 30-40m from the south-western corner of Building B.

Fire risk assessment

Mr Allen gave evidence that the polystyrene boxes provided an ignition source for the subject premises which would allow a fire to develop to a level that would involve both the aluminium and lead materials. In his view, the CFA would have little opportunity to combat the fire safely or to undertake a defensive firefighting strategy. In response, Mr Rigoli argued that firefighters would not enter Building B, and would fight the fire from outside the building.

Mr Allen said that as at 6 June 2016 when he first visited the subject premises, there was no fire protection on site for the flammable aluminium material and no emergency plans. He was concerned about the flammable aluminium material, and the lead slag which could emit a harmful gas if exposed to, or involved in a fire. Mr Allen felt both the aluminium powder and lead slag posed issues in relation to firefighter safety.

In the CFA report, CFA advised that it considered the entire site to be a major fire hazard, and recommended that the owner be made to clean up the site. This would enable emergency services to gain access to all areas of the site in the case of an incident at the subject premises.

Mr Allen considered that a sprinkler system should be installed at the subject premises to limit any fire to its origin. There was an absence of infrastructure that a fire service could use if there was an incident at the subject premises. While there were fire extinguishers, he considered that a sprinkler-based system was necessary together with fire infrastructure.

Following a further inspection of the subject premises on 16 August 2018, Mr Allen advised in an email of 8 October 2018 that his assessment of the risks had not changed. Until there was a clear analysis of the products at the subject premises, the site was still a major fire risk and danger to responding emergency services.

Mislabelling of drums

Some of the drums within Building B were unlabelled. Others had rudimentary labels. Dr Novella said that he did not pay much attention to what the labels on the drums said, as most of the labels had been written on, scribbled on or were broken. The original labels on the 20L drums were also deteriorated, scribbled and adulterated.

Mr Watt noted that while Dr Novella’s report identified five aluminium products at the subject premises, the Sharp and Howells report dated 24 April 2020 identified ten different aluminium products.

Mr Allen explained CFA’s view that there was a need for the testing of all of the products at the subject premises with a sample taken from every container. This had not happened. He explained that CFA took a very conservative approach based on firefighter safety and the safety of the community.

Mr Rigoli did not disagree that the drums were mislabelled. He said that it was not uncommon to see drums that had their previous label referring to orange juice concentrate as a commonly observed label. He instanced a drum labelled ‘Louis Dreyfus Commodities’ shown in a photograph which had formerly contained orange juice concentrate. The drum actually contained lead slag.

Mr Pola gave evidence that some of the lead material was held in second hand drums. They were not dangerous goods drums which were of a high standard and had ribs on them. Food grade drums were not designed to hold dangerous goods.

I find that the labels on the drums did not accurately identify the contents of each drum or at least in some cases did not contain warnings as to toxicity, flammability or handling.

Condition of drums and risk of leakage

Dr Novella acknowledged that some of the lids of drums had holes, and were no longer sealed. Mr Stevenson identified from photographs drums which suffered from corrosion, most likely from sodium compounds such as sodium carbonate. He considered one drum he observed in a photograph as potentially breached with slag starting to come out. Corroded drums created risks for forklift drivers if the bottom of the drum came out. It is true that the experts had different views, and observed the drums about five years after 11 April 2017. However, as at that date, the position was that the Comalco sourced aluminium material had been stored in drums for at least 19 years. Much or most of the material was stored in second hand drums unsuited for dangerous goods.

There was good reason for concern about the present and future condition and integrity of the drums in Building B on 11 April 2017.

Dangerous goods register

Mr Rigoli did not believe that as at 11 April 2017, an inventory of stocks was maintained, or that there was anything in writing showing what was stored. He acknowledged that a dangerous goods register was raised after a WorkSafe improvement notice issued in April 2019. A dangerous goods register was raised by Nonferral on or around 2 December 2019.[44]
[44]Dangerous Goods (Storage and Handling) Regulations) 2012 (Vic) r 45.

Conclusion

In my view, when the 2017 notice was served, the lead materials and the aluminium materials were being handled in a manner likely to cause an environmental hazard. There was a very real and not remote risk that the handling and storage of the lead materials and aluminium materials were an environmental hazard in the form of a state of danger to human beings or to the environment.

I find that the 2017 notice was within power, and that there was a proper jurisdictional basis for it to be served.

Nonferral was required by s 62A(1)(d) of the Act to comply with the notice.

Were the offcuts industrial waste on 24 July 2019?

This issue emerged late in the proceeding and almost as an afterthought. There is only limited evidence available about the bales of offcuts. In closing submissions, EPA described this issue as distinctly a subsidiary issue which in the scheme of this case was not important.

Prior to the issue of the 2019 notice, Nonferral obtained bales of foil offcuts and spoil from Glaxo which it stockpiled on the subject premises. Nonferral had provided recycling services to Glaxo since about 2011 collecting materials from Glaxo’s manufacturing premises at Mountain Highway, Boronia. The offcuts were separated and baled at the subject premises and held in storage. Mr Rigoli said that Nonferral received payment from Glaxo for receiving the offcuts. He estimated that Nonferral had about 150 MT of offcuts which he valued at approximately $700/MT or a total of approximately $100,000.

I have previously set out the sales of offcuts achieved by Nonferral since 2011 which exceed 30 MT.[45]
[45]See [193]-[194].

The 2019 notice imposed a number of general requirements concerning the offcuts. They included to stop accepting industrial waste at the subject premises, and to modify the configuration of stockpiles of materials stored outdoors at the subject premises.

In January 2021, EPA issued the second Magistrates’ Court proceeding against Nonferral in which it charged Nonferral with various offences including the offence of failing to comply with the 2019 notice. These proceedings are pending and were adjourned sine die in July 2021.

The parties treated the issues concerning the baled offcuts as of significantly lesser importance than those concerning the lead materials and the aluminium materials. The evidence led by the parties was very much less.

In the reduced conclave report, two experts (Miller, Watt, Stevenson observing) stated that they had seen the baled offcuts in storage. They noted that the offcuts were likely scrap from food-grade aluminium packaging and did not consider the material to be waste of any description when placed into the stewardship of a company that recycles aluminium. They stated that it was their understanding that the offcuts were directed by the producer to the Circular Economy without any classification of ‘waste’ having been applied.

Analysis

It is necessary to apply the definition of ‘waste’ to the limited evidence before the Court concerning the offcuts.

Nonferral obtained the offcuts from Glaxo’s premises, and has subsequently shredded and collected the offcuts into 1-2 MT bales for sale. Each bale has been wrapped in plastic, and stacked out of doors on a pavement or hard standing area. The bales are ready for delivery to a scrap dealer or customer.

There are important differences between the situation of the baled offcuts and the lead or aluminium materials:

(a) there is no evidence that Glaxo, as the producer of the offcuts, treated the offcuts as ‘waste’ or that they were transported as ‘waste’;

(b) in the reduced conclave report, the experts recorded their understanding (without objection) that Glaxo had not applied a classification of ‘waste’;

(c) the baled offcuts are not a dangerous good;

(d) there is no evidence that the baled offcuts were toxic or flammable;

(e) there is evidence of past sales of baled offcuts over a ten-year period;

(f) no evidence was led as to whether there was a market for baled offcuts in or out of Australia;

(g) the baled offcuts are ready for sale and delivery;

(h) the baled offcuts are stored outdoors in a location physically separate from Building B and other buildings;

(i) the only evidence as to disposal costs is that Nonferral was paid by Glaxo for collecting recycled materials from its premises;

(j) the baled offcuts have value even if not the level of value ascribed by Mr Rigoli;

(k) there is no evidence that there was any risk to human beings or of damage to the environment posed by the baled and stacked offcuts; and

(l) Nonferral’s intention is to sell the baled offcuts whenever the opportunity to do so arises.

I conclude on the balance of the evidence that the baled offcuts are a product ready for sale and not waste.

Are the 2017 and 2019 notices valid and enforceable?

For the reasons given above, I hold that the 2017 notice is valid and effective. Save to the extent that the baled offcuts are not waste, the 2019 notice is valid and enforceable.

There is one further aspect to be considered. It is possible that a clean up notice requiring the modification of the configuration of stockpiles of waste may incidentally affect other materials on the site which are not waste – for example polystyrene boxes which are not waste may have to be relocated further away from flammable waste. This does not arise in this case. The baled offcuts were outdoors and physically separate from the other materials, and the EPA did not submit that the 2019 notice dealt with the baled offcuts in this way. Rather, it dealt with the baled offcuts on the basis that they were ‘waste’ as defined in the Act, which I have held was not the case on the evidence before me.

Should the Court grant any of the declaratory relief sought by Nonferral?

Nonferral has been unsuccessful in relation to the lead materials and the aluminium materials. It is not entitled to the declarations that it seeks in relation to those materials or to the 2017 notice.

The 2019 notice is substantially valid and enforceable. However, the baled offcuts are not ‘waste’. I will discuss with the parties a form of declaration that will give effect to this finding.

Noun 1. a touching, grasping, or using with the hands.

2. management; treatment.
3. the process of packing, moving, carrying or transporting something.

–adjective 4. of or relating to this process.

[2023] VSC 292

2 June 2023