Solveco Pty Limited v Environment Protection Authority

[2019] NSWLEC 1068

Land and Environment Court

New South Wales

Medium Neutral Citation:	Solveco Pty Limited v Environment Protection Authority [2019] NSWLEC 1068
Hearing dates:	Conciliation conference on 14 December 2018 and 21 January 2019
Date of orders:	18 February 2019
Decision date:	18 February 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [7] below
Catchwords:	APPEAL – environment protection licence – condition of licence varied by Environment Protection Authority – conciliation conference – agreement reached
Legislation Cited:	Land and Environment Court Act 1979 Protection of the Environment Operations Act 1997
Category:	Principal judgment
Parties:	Solveco Pty Limited (Applicant) Environment Protection Authority (Respondent)
Representation:	Counsel: Z Heger (Respondent)   Solicitors: R Fox, Fishburn Watson O’Brien Environment Protection Authority (Respondent)
File Number(s):	2018/288767
Publication restriction:	No

Judgment

1. COMMISSIONER: On 31 August 2018, the Environment Protection Authority (“EPA”) varied the conditions of the Environment Protection Licence (“EPL”) held by Solveco Pty Ltd in respect of activities carried out at premises at Links Road, St Marys. The EPA has the power to vary the conditions of the EPL pursuant to s 58 of the Protection of the Environment Operations Act 1997 (“POEO Act”). Solveco is aggrieved by the decision of the EPA to vary the condition of the EPA, and appeals against that decision pursuant to s 287(1) of the POEO Act. On the appeal, the Court has all of the functions and discretions of the EPA with respect to the subject of the appeal (see s 39(2) of the Land and Environment Court Act 1979 (“LEC Act”)). The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 14 December 2018 and continued on 21 January 2019. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved a variation to the conditions of the EPL.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the variation to the EPL conditions.

7. The Court orders that:

1. The appeal is upheld.

2. The varied condition O5.8 in the Notice of Variation of Licence No. 5661 (bearing notice number 1566633) (Notice of Variation) is varied by replacing that condition with the following conditions:

O5.8.1 The total volume of liquid stored in containers on the Premises must not exceed 1,000,000 litres at any one time. For the purposes of this condition:

1. The total volume of liquid stored in containers is taken to be the sum of the maximum capacity of each container, subject to the exceptions below.

2. Drums and intermediate bulk containers which contain residues only (that is, they are less than 3% full) are, subject to condition O5.8.2, not counted towards the total volume of liquid.

3. Drums and intermediate bulk containers that are:

1.    new or reconditioned, and

2.    clearly identified, and

3.    stored separately from all other containers

are not counted towards the total volume of liquid.

4. A container does not include a fixed processing tank.

O5.8.2 The total number of 205-litre drums which contain residues only (that is, they are less than 3% full) must not exceed 400 at any one time. The total number of 1,000-litre intermediate bulk containers which contain residues only (that is, they are less than 3% full) must not exceed 200 at any one time. Drums and intermediate bulk containers which contain residues only, but exceed these limits, are counted towards the total volume of liquid in condition O5.8.1.

3. The Notice of Variation is varied by deleting the new condition U10.1.

4. The new condition U10.2 in the Notice of Variation is varied by replacing all the words in that condition with the following words:

By 31 March 2019, the Licensee must develop and implement a system or procedure to ensure all drums, IBCs and tanks storing any chemicals, fuels, oils and waste materials at the Premises are:

1. Appropriately marked and labelled in accordance with the ‘Managing risks of hazardous chemicals in the workplace’ Code of Practice, SafeWork NSW, July 2014 and the ‘Labelling of workplace hazardous chemicals’ Code of Practice, SafeWork NSW, April 2016;

2. Appropriate and lawful to store the material within the container in accordance with Part 2 of Schedule 9 of the Work Health and Safety Regulation 2017; and

3. Stored appropriately to ensure adequate separation and segregation of incompatible dangerous goods and hazardous materials in accordance with clauses 351 and 357 of the Work Health and Safety Regulation 2017.

Details of the system or procedure must be provided to the EPA by no later than 31 March 2019.

Note: Non-hazardous waste is excluded from this condition.

……………………….

Commissioner Gray

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Decision last updated: 18 February 2019