Figure 2: Schematic of site layout for processing area (source: Figure appended to the Prensa Application Report November 2023, TB p2027)

1. ARC submits that a benefit of this activity is that it will limit the amount of waste being deposited in landfill. ARC also contends that this activity is essential to the financial success of the landfill because it is unable to receive other wastes and generate income while it remediates historical overfilling of the landfill.
2. Establishing the plant and equipment and site for this activity and the conducting of this activity requires approval from the Environment Protection Authority ('Authority'). That is to say, ARC cannot now undertake this activity on the premises, even though the premises is currently licensed to receive and dispose of asbestos. This is because the activity that is being proposed is different to what is presently licensed to occur on the premises.
3. By way of the operation of the Environment Protection Act 2017 (Vic) ('EP Act') and Environment Protection Regulations 2021 (Vic) ('EP Regulations'), ARC would need to apply for a development licence to establish the plant and equipment for the activity. Once established, ARC would require an operating licence or an amendment to its present operation licence to conduct the activity.[4]
4. This proceeding arises from the fact that ARC has applied under section 80 of the EP Act for an exemption from the need to obtain a development licence under section 44 of the EP Act. An exemption issued under section 80 of the EP Act can be granted subject to any conditions that the Authority considers are appropriate.
5. In this instance, the Authority has refused the exemption sought. The Authority contends that ARC should instead apply for a development licence for the proposed process.
6. Fundamentally, the Authority contends that an exemption should not be granted for the proposed process because it is not the type of activity to which section 80 of the EP Act is directed.
7. Pursuant to section 430(1)(a) of the EP Act, ARC seeks the Tribunal's review of the Authority's refusal of the exemption.

THE STRUCTURE OF THESE REASONS AND SUMMARY OF OUR FINDINGS

1. Our task in this proceeding is to decide whether to issue an exemption for the proposal. This is to be determined by having regard to the criteria for licence exemptions set out in regulation 24 of the EP Regulations.
2. As straightforward as this task may seem to be, our decision has required us to consider the wider context of the application, particularly the operation of the framework for permissions and the framework for waste management established under the EP Act. This has arisen because of the way the Authority has sought to defend its decision and urge upon us the same decision, and from the way ARC has prosecuted its case for the exemption.
3. Most particularly, the merit (technical) based grounds for the Authority's opposition to granting an exemption is about the risk of harm. However, when taken to their logical conclusion, the reasons advanced by the Authority for not granting an exemption would amount to reasons to refuse the grant of a development licence. To put it more bluntly the Authority's case about the merits of the proposal is largely founded on ARC's proposal being an unacceptable risk of harm to human health and the environment regardless of whether it is granted an exemption or not.
4. In turn ARC has sought to defend its application by relying on arguments and evidence about how its process can minimise the risk of harm to the extent practicable and result in the recovery of a resource which otherwise would be disposed of to landfill. In support of its case, propositions have been put that its proposal reflects and adopts practices and processes that are already in place to treat the material, adopts industry practices that are accepted by regulators and respond to the requirements for waste classification and management.
5. Both parties have then argued how their respective positions respond to the criteria established under regulation 24 of the EP Regulations.
6. Our commentary about this approach is not to be taken as being critical about the nature of the submissions. We are conscience of the fact that this review application occurs in the absence of clear policy or other regulatory guidance specific to the task. Each party has therefore attempted to provide an overarching context not only to the nature of the application and their respective positions but a wider context about the management of waste asbestos and remediation of asbestos on contaminated land in Victoria.
7. Given this broader context within which this decision is being made, and its relevance to our assessment of risk, we have needed to consider a range of legislative provisions and associated material.
8. As such, in addressing the key issues in this case, we have structured this decision as follows:

1. Part 1: What is this proceeding about? 1. Overview 2. The structure of these reasons and summary of our findings 3. Context of this decision - the management of asbestos 2. Part 2: Legislative provisions and framework 1. Overview 2. Summary of legislative provisions and framework 3. Purpose of the EP Act 4. Principles of environment protection 5. Duties under the EP Act 6. Permissions regime under the EP Act and the EP Regulations 7. The waste disposal regime under the EP Act and the EP Regulations 8. The NEPM and WADOH guidelines

1. Part 3: Information about ARC's proposal and the proceeding 1. Details of the proposal 2. Background to this proceeding

1. Part 4: Should an exemption be issued for the proposal 1. Overview 2. The nature of the exemption sought by ARC 3. Assessment: the purpose and objectives of the EP Act and the Authority and the principles of environmental protection 4. Assessment: risk to human health and the environment posed by granting the exemption 5. Assessment: the processing of the exemption application and the identity of the applicant 6. Assessment: whether it is in the public interest to grant the exemption 7. Tribunal's Orders
2. In Part 4 we set out the merits of the proposed exemption and also deal with the Authority's contentions regarding the exemption sought being misaligned with what the Authority asserts is the intended narrow operation of the exemption power in the EP Act.
3. It remains to be said that having considered the statutory framework, the respective submissions of the parties and the expert and lay evidence, we have determined to set aside the decision of the Authority with the affect that an exemption will be issued on the conditions attached to Annexure A to this decision.
4. Our reasons for reaching this conclusion follow but in summary we set out here that:
   1. We disagree with the Authority that the power to grant an exemption should only be applied narrowly. There is no warrant to interpret these provisions of the EP Act narrowly, either by implication or by expressed wording. Each application for an exemption is to be considered on its merits based on the facts and circumstances of that application.
   2. We do not accept the Authority's position that an exempt activity falls outside the remit of the wider scheme for permissions and authorisations established under the EP Act to control activities that present a risk of harm. For reasons that we explain, we conclude that an exemption is a form of authorisation for an activity to occur in circumstances where after an assessment it can be reasonably concluded that the activity does not require the same level of control on which the permissions scheme is premised. In this instance we are satisfied that on the facts and circumstances of this application that there are existing and sufficient controls in place that minimise the risks of harm from ARC's proposed activity to warrant the exemption.
   3. We are satisfied that:
      1. The process proposed by ARC reflects, adopts and in respect to post treatment testing of soil, would exceed, accepted industry standards for the management and recovery of soil that is contained in industrial waste that is classified as 'soil containing asbestos only'.
      2. That in siting such a process and the necessary plant and equipment and associated work area at its current landfill, ARC's proposal when fully considered in the context of the waste management framework seeks limited change to its present receipt and management of soil containing asbestos only. Essentially the proposed development licence exemption seeks to establish a process and an area for treatment of the soil containing asbestos only that is a modification to the present receipt and disposal process conducted on the land for this priority industrial waste.
      3. In conjunction with the location of the proposed processes, there are in place existing controls through the waste management framework to acceptably minimise the risks of harm that may arise from the proposed process for receipt, treatment and management of the industrial waste post treatment.

CONTEXT OF THIS DECISION - THE MANAGEMENT OF ASBESTOS

1. Given the subject matter of the exemption and the associated concerns regarding the risks posed by asbestos, we first provide information about asbestos, its different forms, the risk posed by each and the way in which it is currently managed and disposed of.
2. 'Asbestos' is the name given to a group of naturally occurring fibrous silicate minerals. Asbestos was used in the manufacture of a wide variety of products and materials, typically to provide additional strength, durability or resistance to fire, heat, electricity, damp or mould.[5] Common products that may contain asbestos include textiles, rope, automotive parts, cement and various construction materials.[6]
3. In support of the proposal, ARC relied on content contained in the Sustainability Victoria document entitled the 'Asbestos Disposal Management Plan'[7] ('ADM Plan').
4. According to the ADM Plan:[8]

Asbestos...[was] used extensively in the manufacture of many products such as tiles, cement pipes and insulation among others. Asbestos was used because of the versatility, strength, fire resistance and insulating properties of the fibres. Australian homes built or renovated before 1990 have a good chance of containing asbestos (ASEA). Asbestos is also present in other commercial and public buildings and infrastructure.

1. Asbestos Containing Material ('ACM') is the term widely and commonly used in industry and statutory guidance to describe any material known to contain commercial forms of asbestos in any bonded or non-bonded form.[9]
2. Bonded (non-friable) ACM is ACM where asbestos fibres are bound to another material or is part of a matrix; for instance, asbestos cement sheeting or vinyl tile.[10]
3. Bonded ACM can include broken, weathered or fragmented material that retains its basic integrity.[11]
4. The National Environment Protection Measures Volume 2: Schedule B1 ('NEPM Schedule B1') adopts the same description and also refers to the fact that the term Bonded ACM:[12]

... is restricted to material that cannot pass a 7 mm x 7 mm sieve. This sieve size is selected as it approximates the thickness of common asbestos cement sheeting and for fragments to be smaller than this would imply a high degree of damage and potential for fibre release.

1. This can be contrasted with Fibrous asbestos (referred to as 'FA'), which is any material containing asbestos that is wholly or in part 'friable', meaning that it can be broken or crumbled with hand pressure.[13]
2. Friable asbestos might have been produced to be in this form for industrial purposes, such as pipe lagging and other loose-fill insulation, or it might be in a product that has a propensity to become more friable with use, such as low density asbestos fibre board.[14]
3. Friable asbestos may also have been ACM, but has become severely degraded so that it is now friable, or was at first instance contained within a matrix with a less durable bond, such as textile products.[15]
4. There is a further classification of asbestos that is relevant in this proceeding. This is asbestos fibres or asbestos fines (referred to as 'AF'). Asbestos fibres or asbestos fines is a term used to describe asbestos in soil that is less than 7mm x 7mm. Asbestos fibres or asbestos fines may be visible, but at such low quantities or low concentrations it may need to be identified by an accredited laboratory using analytical methods.[16]
5. As we will come to, the form of the asbestos present in soil proposed to be treated by ARC's is an important factor in our determination.

1. Asbestos does not chemically break down or biodegrade, so it will remain in the environment in which it is deposited.
2. When products containing asbestos deteriorate, the dust from asbestos (which means it is now in the form of asbestos fibres) may be released into the air and inhaled by persons. This in turn may lead to an increased risk of those persons developing lung inflammation, scarring and various forms of cancer, such as lung cancer, larynx cancer and mesothelioma.[17]
3. Asbestos is present in low levels in the air we all breathe. Depending on a range of factors, including the level and duration of exposure, some people may go on to develop asbestos-related diseases.[18]
4. As stated in the ADM Plan, a national ban on asbestos, its importation and all products containing asbestos came into effect in the early 2000's due to safety concerns:[19]

Asbestos was widely used in commercial and domestic building materials across Victoria from the late 1800s until the 1980s. It was completely banned in Australia in 2003 because it causes fatal and debilitating diseases. The only way to prevent asbestos-related diseases is to eliminate the risk of exposure by safely removing asbestos-containing materials.

1. Given the potential safety risks, when asbestos is identified in the environment, in whatever form it might take, its presence often leads to significant community concern.[20]

How is asbestos currently managed and disposed of in Victoria?

1. Notwithstanding the national ban on asbestos, asbestos and ACM still exists in the community.
2. One common way in which asbestos/ACM is identified is when older buildings are demolished and bonded ACM is found in cement sheeting that forms part of the building.
3. The demolition materials containing bonded ACM, along with the associated soil from the site in which the bonded ACM is contained, can be only disposed of in a landfill facility that is licensed to receive that form of waste.
4. Not all landfill facilities are licensed to receive asbestos.
5. There are strict controls in place for the management of asbestos in Victoria, imposed through overlapping legislation and regimes under the EP Act and EP Regulations and the Occupational Health and Safety Act 2004 (Vic) ('OHS Act') and the Occupational Health and Safety Regulations 2017 (Vic) ('OHS Regulations').
6. The OHS Act and the OHS Regulations contain duties and obligations with respect to workplace safety for persons involved in the removal of asbestos.
7. The OHS Act and the OHS Regulations apply, for instance, when work to remove asbestos is being undertaken by building practitioners on a building site.
8. A duty holder who complies with the 'Compliance Code Removing Asbestos in workplaces'[21] ('Compliance Code') will be considered to have complied with those duties and obligations.[22]
9. The regime under the OHS Act and OHS Regulations involves the removal and bagging of visible bonded ACM and associated soil from a site and its disposal to landfill, after which the remaining soil on the site is treated as 'fill material'.
10. A person who commissions asbestos removal work is required to obtain a clearance certificate from an independent person on completion of the asbestos removal work and before the area where the asbestos removal work was being performed is re-occupied.[23]
11. The focus of the asbestos removal work is removing visible asbestos residue from a site, given that is what a clearance certificate must confirm:[24]

(2) A clearance certificate must state that -

(a) an inspection by an independent person has found that there is no visible asbestos residue remaining as a result of the asbestos removal work in the area where the asbestos removal work was performed or in the area immediately surrounding the area where the asbestos removal work was performed; and

(b) if required under regulation 292 or 294, asbestos paraoccupational air monitoring in the area where the asbestos removal work was performed indicates that the airborne asbestos fibre level is less than 0·01 f/ml.

[Tribunal emphasis]

1. As can be seen, there may be instances where something more is required than just the removal of visible asbestos. That is, when the asbestos removal work is performed indoors, or, the asbestos removal work is performed outdoors and will constitute a risk to other persons,[25] asbestos paraoccupational air monitoring is required. Paraoccupational air monitoring:[26]
   1. ... involves taking samples of air from fixed locations, which are usually immediately outside the area where asbestos removal is taking place. This area is usually enclosed by plastic and is sometimes referred to as the 'bubble'.
   2. The purpose of this monitoring is to identify whether airborne asbestos fibres are present outside the removal enclosure and to ensure that risk control measures designed to prevent asbestos escaping from the enclosure are working.
2. Any asbestos that is removed from a workplace needs to be placed in asbestos waste bags of specified dimensions and disposed of as soon as reasonably possible in an appropriate manner that eliminates the release of airborne asbestos fibres at an appropriate location.[27]
3. With the asbestos removed, the site can then be developed in the ordinary way; that is, the site is not required to be capped or sealed or to have new soil brought in to cover the fill material.
4. The fill material can then be used in any way sought by the landowner. For instance, the fill material could be covered or sealed in some way through the development of the site (e.g. concrete driveway), but it could also form the top of the crawl space under a building or be part of the garden area, children's play area or landscaping of the site.
5. As for the demolition materials containing bonded ACM and the associated soil containing asbestos only (as opposed to, for instance, soils that also contain petrochemicals) these are disposed of at an appropriately licensed landfill and consume air space in the landfill cells. Over time, this contributes to the filling of the licensed landfill space and leads to a need to locate and approve additional landfill space.
6. In respect to methods of disposing of asbestos and ACM, the ADM Plan states:[28]

Victoria needs conveniently located infrastructure for the safe disposal of asbestos and asbestos-containing materials removed from our building stock and other sources to support the gradual removal of this legacy waste from the community. Asbestos removal should be done primarily, and preferably, by a licensed removalist. However, householders are also permitted to remove non-friable asbestos in accordance with strict guidelines. Both need access to safe disposal options.

Victoria has 26 landfills licensed to receive asbestos with only 21 currently accepting waste. Some of these facilities also have limitations on the type and amounts of asbestos they will accept.[29] For many Victorians, these landfills are located more than a 60-minute drive from their household or business. Over time, the number of landfills will decline reducing access further.

...

By weight, asbestos is one of the largest hazardous waste streams in Victoria. In 2019-20, it made up about eight per cent of hazardous material disposed of at licensed landfills, with an estimated 178,000 tonnes of asbestos-containing materials disposed of at landfill (SV 2020). Lots of wrapped asbestos disposed of directly by household removalists is not formally captured via Victoria's waste data tracking system. Our research suggests this is a relatively small fraction, with most asbestos entering landfills as a contaminant in soil or from commercial removalists.[30]

1. According to the ADM Plan, the number of landfills licensed to receive asbestos is projected to decline:[31]

Currently, a restricted number of landfills are licensed to accept commercial and/or domestic asbestos waste (see Figure 1). Some landfills licensed to accept asbestos do not currently do so, due to concerns around risk management and costs, or they only accept it from residents in their immediate local government area (SV 2017 and Goulburn Valley WRRG 2017).

Based on SV's preliminary research into planned closures of Victorian landfills, the number of landfills licensed to receive asbestos is projected to decline from 26 to 18 in the next ten years. In the next 30 years, it is projected to drop to seven landfills. Landfill closure over time will increase drive times to asbestos disposal options. In regional Victoria, by 2030 an estimated 50 per cent of the population will be located more than 60 minutes' drive from a landfill accepting commercial asbestos waste and 30 per cent from a landfill accepting domestic asbestos waste. Drive times will also increase in metropolitan Melbourne by 2030 with nearly an estimated 20 per cent of the population located more than 60 minutes' drive from a landfill accepting commercial asbestos waste.[32]

1. According to ARC, the available airspace in the Bulla landfill constitutes part of the value of the asset (i.e. the landfill itself), and approving the proposal will enable the landfill to be used to accept asbestos waste for longer, given the asbestos waste will be separated from the fill material and less volume will be taken up in the landfill.
2. To avoid any doubt, we accept that this stated aim may support a proposal for resource recovery. However, this is but one factor under the decision making framework for a development licence exemption and on its own does not justify the grant of an exemption.

1. What ARC seeks to do on the premises would ordinarily require ARC to obtain:
   1. first, a development licence to establish the plant, equipment and processes necessary for a proposed prescribed development activity; and
   2. second, an operating licence to operate the plant, equipment and processes for the activity (or the intended proposed activity) if it is a prescribed operating activity.
2. Both of these licences are issued under the EP Act.
3. In lieu of obtaining a development licence, ARC seeks an exemption from need to obtain a development licence.
4. An exemption can be issued under the EP Act.
5. For completeness, the EP Act also enables an exemption to be granted from the need to obtain an operating licence, although that is not being sought by ARC through this proceeding.
6. Whilst each of the above is issued under the EP Act, their assessment prior to issue involves other legislation and documents that is applicable to the permissions regime and the waste disposal regime established under the EP Act. Further, given the subject matter of asbestos, there may also be consideration required of the OHS Act and OHS Regulations and various guidelines that are utilised when dealing with asbestos.
7. To this end, Part 2 reviews the following legislation and documents, as applicable to this proceeding:
   1. EP Act;
   2. EP Regulations;
   3. Charter of Consultation Publication No 1928[33] ('Charter');
   4. 'EPA Determination - Specifications acceptable to the Authority for receiving fill material'[34] ('Fill Determination');
   5. Waste disposal categories - characteristics and thresholds Publication 1828.2, March 2021[35] ('Waste Disposal Categories');
   6. Guide to classifying industrial waste Publication 1968.1 ('Industrial Waste Guideline');
   7. National Environment Protection (Assessment of Site Contamination) Measure 1999[36] ('NEPM'); and
   8. Western Australia Department of Health Guidelines for the Assessment, Remediation and Management of Asbestos-Contaminated Sites in Western Australia, 2021 ('WADOH Guidelines').[37]
8. With respect to the above, we observe here that the structure of the EP Act adopts the modern form, with matters set out under chapters and simplified outlines.[38]

SUMMARY OF LEGISLATIVE PROVISIONS AND FRAMEWORK

1. The statutory framework about the permissions scheme, management of contaminated land and waste management in respect to ARC's proposal and its application for an exemption from the need for a development licence can be summarised as follows:

1. The EP Act and its regime establishes: 1. principles of environmental protection and duties relating to environmental protection, which includes the general environmental duty ('GED'); 2. duties in relation to contaminated land; 3. a permissions regime; 4. a waste management regime; 2. in terms of the exemption sought from the need to obtain a development licence: 1. Part 4.4 'Licences' of the EP Act deals with development licences, operating licences and licence exemptions; 2. a development licence may be issued for the construction or installation of plant and equipment as well as the development of a process or system for a prescribed development activity; 3. an operating licence may be issued to regulate the operation of a prescribed activity; 4. regulation 24 of the EP Regulations contains prescribed matters for considering licence exemptions against which we have assessed this application for exemption; 5. the Charter, which contains guidelines that address consultation processes for licences and exemptions;

1. as for the definition of terms: 1. 'friable asbestos' is defined in the EP Regulations. The presence of friable asbestos on land is prescribed notifiable contamination if it is present in certain concentrations; 2. 'soil containing asbestos only' is defined in the EP Regulations as priority waste that is classified in accordance with regulation 67 or 68 of the EP Regulations. 'Soil containing asbestos only' is also defined in Schedule 6 of the EP Regulations as soil that does not contain any contaminants at a concentration above the limits for fill in the Waste Disposal Category and does not contain asbestos; 3. 'packaged waste asbestos' is defined in Schedule 6 of the EP Regulations as waste asbestos other than soil containing asbestos; 4. 'fill material' is defined in the EP Regulations as industrial waste soil that does not contain contaminants exceeding certain concentrations and 'does not contain asbestos'; 5. the only difference between 'soil containing asbestos only' and 'fill material' is the presence of asbestos; 6. 'asbestos' is not defined in the EP Act or EP Regulations;

1. in terms of the management of soil containing asbestos: 1. Part 6.5 'Duties and controls relating to priority waste' of the EP Act deals with priority waste; 2. Regulations 66, 67 and 68 of the EP Regulations deal with the classification of waste that must be undertaken before a person relinquishes control of the waste; 3. Schedule 5 of the EP Regulations classifies waste asbestos in two ways, both of which are reportable priority waste for the purpose of transactions and transporting: 1. soil that contains asbestos is included in 'solid and sludge wastes requiring special handling', being Item 83, Waste code N120; 2. waste asbestos is included in 'solid and sludge wastes requiring special handling', being Item 93, Waste code N220; 4. Schedule 5 of the EP Regulations classifies fill material as solid and sludge wastes requiring special handling', being Item 84, Waste code N122. It is not a priority waste or reportable priority waste for transactions or transport; 5. Schedule 6 of the EP Regulations defines categories of waste, some of which are relevant to the disposal of asbestos; 6. the Waste Disposal Category is a document that is incorporated into the EP Regulations to classify wastes under the schedules. The waste classification for soil containing asbestos only repeats that set out in Schedule 6 with explanatory notes that state that a reference to soil containing asbestos 'does not include soil from which visible asbestos-containing material has been removed, so far as reasonably practicable, from the soil by the person proposing to supply, store, transport, sell, use or re-use the soil'. This publication also sets the limit for contamination that may be present in soil above which the soil would not be classed as fill material; 7. the Industrial Waste Guideline explains the process for classifying waste in accordance with the statutory framework established by the EP Act and EP Regulations. Relevantly, it highlights the two processes or pathways for classifying waste soils. Each process, based on whether the soil is sourced onsite from contaminated land or not, includes steps to assess soil for the presence of asbestos. Both processes adopt the approach that if visible asbestos-containing material has been removed, so far as reasonably practicable from the soil, the soil is not classified as soil containing asbestos; and 2. the sum of the NEPM and WADOH Guidelines is that if all visible asbestos is removed from the soil (or what would be the soil's surface) and sufficient sampling and gravimetric analysis indicates the presence of asbestos fibres is less than 0.001% w/w, the risk to human health is negligible or put another way, no greater than the accepted population risk from people's exposure to general (ambient) open air conditions.

1. The EP Act is Victoria's environmental protection legislation, the purposes of which include creating the Authority and to set out a legislative framework for the protection of human health and the environment from pollution and waste.[39]
2. The main purposes of the EP Act are specified in section 1, as follows:
   1. Purposes

The main purposes of this Act are -

(a) to provide for the continuation of the Environment Protection Authority; and

(b) to specify a new objective of the Environment Protection Authority; and

(c) to provide for a new governance structure of the continued Environment Protection Authority; and

(d) to provide for the Governing Board of the Environment Protection Authority; and

(e) to set out principles of environment protection; and

(f) to set out the legislative framework for the protection of human health and the environment from pollution and waste; and

(g) to provide for a general environmental duty to minimise risks of harm to human health and the environment from pollution or waste; and

(h) to establish a permissions scheme that enables the Environment Protection Authority to issue or grant development licences, operating licences, pilot project licences, permits and registrations; and

(i) to provide a framework for the management of waste; and

* * * * *

(k) to enable the Environment Protection Authority and authorised officers to ensure compliance with the Act and require action to manage risks of harm to human health and the environment from pollution or waste; and

(l) to provide for a system of criminal and civil penalties; and

(m) to provide for a system of civil remedies and compensation orders available to the Court; and

(o) to make consequential amendments to the Public Administration Act 2004 and other Acts.

1. The EP Act achieves these purposes (and other complimentary purposes) by:[40]
   1. setting out principles of environment protection;
   2. creating the GED to minimise risks of harm to human health and the environment from pollution or waste ('risk of harm');
   3. providing a framework for the management of waste; and
   4. establishing a permissions scheme that enables the Authority to issue or grant development licences, operating licences, pilot project licences, permits and registrations.

1. The principles of environment protection are specified in Chapter 2 of the EP Act. Section 11 of the EP Act also sets out that:

It is the intention of Parliament that in the administration of this Act and the regulations regard should be given to the principles specified in this Chapter.

1. By way of its operations, section 80(5) of the EP Act together with regulation 24(d) of the EP Regulations required the Authority and now this Tribunal to take account of the principles of environment protection. The parties have addressed us on their respective positions in how this proposal responds to these principles. Not all are said to be relevant or in play. Nevertheless for present purposes we summarise here the eleven principles as set out over sections 13 to 23 of the EP Act.
2. They are:

1. The principle of integration of environmental, social and economic consideration - which is to effectively integrate these considerations. 2. The principle of proportionality, where inter alia, a decision or action directed towards minimising harm or a risk of harm should be proportionate to the harm or risk of harm. 3. The principle of primacy of prevention, wherein prevention of harm is preferred over remedial or mitigation measures. 4. The principle of shared responsibility requires all levels of government, industry and others including communities to take responsibility for protection of human health and the environment. 5. The principle that the polluter pays, wherein those who generate pollution and waste bear the cost of containment, avoidance and abatement. 6. Principles of waste management hierarchy, which seeks waste to be managed in a preference, where reasonably practicable, of avoidance, reuse, recycling, recovery of energy, containment or the least preferred waste disposal. 7. The principle for evidence-based decision making seeks for actions or decisions made under the EP Act to be based on 'the best available evidence in the circumstances that is relevant and reliable'. 8. The precautionary principle, where if there are threats of serious or irreversible harm, the lack of full scientific certainty should not be a reason to postpone measures to prevent or minimise the threats. 9. The principle of equity seeks through three provisions to recognise that all people are entitled to a safe and healthy living environment without being disproportionately affected by harm or risks of harm with the present generation ensuring 'the state of the environment is maintained or enhanced for the benefit of future generations'. 10. The principle of accountability sets out that members of the public should:

(a) have access to reliable and relevant information in appropriate forms to facilitate a good understanding of issues of harm or risks of harm to human health and the environment and of how decisions are made under this Act; and > > (b) be engaged and given opportunities to participate in decisions made under this Act, where appropriate to do so; and > > (c) have their interests taken into account in decisions made under this Act.

1. The principle of conservation which seeks protection of biological diversity and ecological integrity 'for purposes the include the protection of human health'.

1. The EP Act establishes a series of duties comprising of:[41]
   1. the GED;
   2. duties in relation to pollution incidents; and
   3. duties in relation to the management and notification of contaminated land.
2. As relevant to the management and disposal of asbestos, we deal with the GED and the duties in relation to contamination land, below.

1. Part 3.2 'General Environmental Duty' of the EP Act deals with the GED within the broader framework of Chapter 3 - Duties relating to environment protection.
2. Section 25 'General environmental duty' creates the GED and makes it an indictable offence to contravene the GED in the course of conducting a business or an undertaking. Section 25 provides as follows:

25 General environmental duty

(1) A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.

(2) A person commits an offence if the person contravenes subsection (1) in the course of conducting a business or an undertaking.

Penalty: In the case of a natural person, 2000 penalty units;

In the case of a body corporate, 10 000 penalty units.

(3) An offence under subsection (2) is an indictable offence.

(4) Without limiting subsection (1), a person who is conducting a business or an undertaking contravenes that subsection if the person fails to do any of the following in the course of conducting the business or the undertaking, so far as reasonably practicable -

(a) use and maintain plant, equipment, processes and systems in a manner that minimises risks of harm to human health and the environment from pollution and waste;

(b) use and maintain systems for identification, assessment and control of risks of harm to human health and the environment from pollution and waste that may arise in connection with the activity, and for the evaluation of the effectiveness of controls;

(c) use and maintain adequate systems to ensure that if a risk of harm to human health or the environment from pollution or waste were to eventuate, its harmful effects would be minimised;

(d) ensure that all substances are handled, stored, used or transported in a manner that minimises risks of harm to human health and the environment from pollution and waste;

(e) provide information, instruction, supervision and training to any person engaging in the activity to enable those persons to comply with the duty under subsection (1).

(5) Without limiting subsection (1), a person who is conducting a business or an undertaking and engaging in an activity that involves the design, manufacture, installation or supply of a substance, plant, equipment or structure, contravenes that subsection if the person fails to do any of the following in the course of conducting the business or the undertaking and engaging in the activity, so far as reasonably practicable -

(a) minimise risks of harm to human health and the environment from pollution and waste arising from the design, manufacture, installation or supply of the substance, plant, equipment or structure when the substance, plant, equipment or structure is used for a purpose for which it was designed, manufactured, installed or supplied;

(b) provide information regarding the purpose of the substance, plant, equipment or structure and any conditions necessary to ensure it can be used in a manner that complies with the duty under subsection (1).

[Tribunal emphasis]

1. 'Activity' is defined inclusively in the EP Act as including:[42]

(a) the storage or possession of waste or any other substance or thing; or

(b) anything prescribed to be an activity.

1. There are no prescribed activities in the EP Regulations for the purpose of this definition.
2. The EP Act defines the terms 'harm'[43] and 'material harm'[44] and creates the concept of a duty to minimise, so far as is reasonably practicable, risks of harm to human health and the environment. This duty requires a person to:[45]

(a) eliminate risks of harm to human health and the environment so far as reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks of harm to human health and the environment, to reduce those risks so far as reasonably practicable.

1. To determine what is meant by what is reasonably practicable, regard must be had to the following matters:[46]

(a) the likelihood of those risks eventuating;

(b) the degree of harm that would result if those risks eventuated;

(c) what the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks;

(d) the availability and suitability of ways to eliminate or reduce those risks; and

(e) the cost of eliminating or reducing those risks.

1. Section 27 of the EP Act establishes the indictable offence of an aggravated breach of the GED.

1. Contaminated land is defined at section 35 of the EP Act as follows:

35 What is contaminated land?

(1) Subject to subsection (2), land is contaminated if waste, a chemical substance or a prescribed substance is present on or under the surface of the land, and the waste, chemical substance or prescribed substance -

(a) is present in a concentration above the background level; and

(b) creates a risk of harm to human health or the environment.

(2) Land is not contaminated -

(a) merely because waste, a chemical substance or a prescribed substance is present in a concentration above the background level in water that is on or above the surface of the land; or

(b) if any prescribed circumstances apply to the land.

1. As can be seen, a key concept is that in order for land to be 'contaminated', the waste, chemical substance or prescribed substance must be 'present in a concentration above the background level'.
2. This concept is dealt with in section 36 'Background level of waste or substances' of the EP Act, which provides that one way to obtain this information is through a determination made by the Authority.[47]

1. Part 3.5 of the EP Act establishes and deals with duties in relation to contaminated land.
2. Duties in relation to contaminated land are established by sections 39 and 40 of the EP Act, as follows:[48]

39 Duty to manage contaminated land

(1) A person in management or control of contaminated land must minimise risks of harm to human health and the environment from the contaminated land so far as reasonably practicable.

(2) For the purposes of subsection (1), minimising risks of harm to human health and the environment from contaminated land includes (but is not limited to) carrying out any of the following -

(a) identification of any contamination that the person knows or ought reasonably to know of;

(b) investigation and assessment of the contamination;

(c) provision and maintenance of reasonably practicable measures to minimise risks of harm to human health and the environment from the contamination, including undertaking clean up activities where reasonably practicable;

(d) provision of adequate information to any person that the person in management or control of the contaminated land reasonably believes may be affected by the contamination, including -

(i) sufficient information to identify the contamination; and

(ii) the results of investigation and assessment referred to in paragraph (b); and

(iii) the risks of harm to human health and the environment from the contamination;

(e) provision of adequate information to enable any person who is reasonably expected to become a person in management or control of the contaminated land to comply with the duty to manage contaminated land.

....

40 Duty to notify of contaminated land

(1) A person in management or control of land must notify the Authority if the land has been contaminated by notifiable contamination as soon as practicable after the person becomes aware of, or reasonably should have become aware of, the notifiable contamination.

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: In the case of a natural person, 120 penalty units;

In the case of a body corporate, 600 penalty units.

(3) For the purposes of subsection (1), whether a person in management or control of land becomes aware of, or reasonably should have become aware of, notifiable contamination is determined having regard to -

(a) the person's skills, knowledge and experience; and

(b) whether the person could practicably seek advice regarding the contamination; and

(c) any other circumstances of the contamination.

(4) Subsection (1) does not apply if -

(a) the person who is required to notify the Authority under subsection (1) is aware that a notification has already been made to the Authority in accordance with this section; or

(b) the notifiable contamination is a prescribed exempt notifiable contamination.

[Tribunal emphasis]

1. As can be seen from the above, the duty to notify the Authority of contaminated land refers to 'notifiable contamination'.

1. 'Notifiable contamination' is defined at section 37 of the EP Act as:

37 What is notifiable contamination?

Notifiable contamination, in relation to contaminated land, means contamination that is -

(a) prescribed notifiable contamination; or

(b) if the regulations do not prescribe notifiable contamination by a particular waste, chemical substance or prescribed substance, contamination for which the reasonable cost of action to remediate the land is likely to exceed -

(i) $50 000; or

(ii) any other prescribed amount.

[Tribunal emphasis]

1. For the purposes of the definition in section 37(a) of the EP Act, friable asbestos in certain circumstances is defined as 'notifiable contamination' in accordance with regulation 9 of the EP Regulations:

For the purposes of section 37(a) of the Act, the presence of friable asbestos in or on soil on land is prescribed notifiable contamination if a person is, or is likely to be, exposed to airborne asbestos fibre levels of above 0·01 fibres per millilitre by means of inhalation.

[Tribunal emphasis]

1. The EP Regulations[49] defines friable asbestos as follows:

friable asbestos means asbestos that, when dry -

(a) may be crumbled, pulverised or reduced to powder by hand pressure; or

(b) as a result of a work process becomes such that it may be crumbled, pulverised or reduced to powder by hand pressure;

1. As can be seen, what is meant by 'prescribed notifiable contamination' depends on the amount of friable asbestos present in the soil and the likelihood of that resulting in airborne asbestos fibres at or above the prescribed level being inhaled. We address these matters later in these reasons when we deal with the expert evidence and the matter of risks of harm, the implications for waste management and the Authority's position in respect to ARC's proposal.
2. Also in relation to section 37(a) of the EP Act, in respect of the onsite containment of soil that is other than fill material (and therefore contains contaminants above the fill criteria per the Waste Disposal Categories), regulation 12 of the EP Regulations prescribes as follows:

On-site retention of contaminated soil

For the purposes of section 37(a) of the Act, the on-site retention of soil (other than fill material) from contaminated land sourced on-site that is not an activity for which a permission is required, is prescribed notifiable contamination.

1. 'Fill material' is defined in the EP Regulations as follows:[50]

Fill material is industrial waste that is soil -

(a) with contaminant concentrations not exceeding the upper limits for fill material contaminant concentrations specified in the Waste Disposal Categories - Characteristics and Thresholds; and

(b) that does not contain asbestos;

[Tribunal emphasis]

1. As can be seen, 'fill material' is industrial waste that is soil that does not contain contaminant concentrations above limits specified in the Waste Disposal Categories and that does not contain asbestos.
2. Regulation 13 of the EP Regulations prescribes exempt notifiable contamination for the purposes of section 40(4)(b) of the EP Act. The exemption includes the following at regulation 13(d):

contamination of land arising from a particular waste or a chemical substance that is not specified in section 6 of Schedule B1 to the NEPM (ASC), other than contamination arising from -

(i) asbestos described in regulation 9; ...

1. When read together, regulations 9 and 13(d) mean that the presence of asbestos other than friable asbestos per regulation 9 is not notifiable contamination. This has a bearing on the matters raised by the Authority about the risk based approach in the management of soil containing asbestos only and its preference for the treatment and retention of such soil on contaminated sites versus the ARC proposal.
2. Importantly for present purposes, the duty to notify of contaminated land and 'notifiable contamination' is to be distinguished from other forms of asbestos contamination, including 'soil containing asbestos only'. We deal with what is meant by that term later in these reasons.

PERMISSIONS REGIME UNDER THE EP ACT AND THE EP REGULATIONS

What is dealt with in Chapter 4 'Permissions' of the EP Act?

1. Chapter 4 'Permissions' of the EP Act deals with the permissions that can be issued under the EP Act.
2. 'Permissions' is a term defined under section 3(1) of the EP Act as:

(a) a development licence; or

(b) an operating licence; or

(c) a pilot project licence; or

(d) a permit; or

(e) a registration;

1. Section 43 of the EP Act provides a simplified outline of Chapter 4 as follows:

(1) This section sets out a simplified outline of this Chapter.

(2) This Chapter provides for the issue or grant of the following permissions -

(a) development licences;

(b) operating licences;

(c) pilot project licences;

(d) permits;

(e) registrations.

(3) Part 4.2 prohibits persons from engaging in specified or prescribed activities without a permission.

(4) Part 4.3 sets out -

(a) the application, transfer and amendment processes for permissions; and

(b) other provisions that apply to permissions generally.

(5) Part 4.4 sets out provisions that apply to development licences, operating licences and pilot project licences and applications relating to those licences.

(6) Part 4.5 sets out provisions that apply to permits and applications relating to permits.

(7) Part 4.6 sets out provisions that apply to registrations and applications relating to registrations.

(8) Part 4.7 provides that a prohibited person must not engage in a prescribed activity.

(9) Part 4.8 provides for an environment protection levy that is to be charged, levied and collected by the Authority.

1. In summary, the following documents can be issued under Chapter 4 'Permissions':
   1. Part 4.4 'Licences', being
      1. development licences (Part 4.4, Division 1);
      2. operating licences (Part 4.4, Division 2);
      3. pilot project licences (Part 4.4, Division 3); and
      4. licence exemptions (Part 4.4, Division 4);
   2. Part 4.5 'Permits'; and
   3. Part 4.6 'Registrations'.

1. Part 4.3 'General provisions relating to permissions' contains general provisions that apply to matters such as:
   1. the form and content of applications;
   2. notice requirements;
   3. further information requests by the Authority;
   4. conditions on permissions;
   5. the transfer, amendment, surrender, revocation or suspension of a licence or permit;
   6. compliance with permissions; and
   7. breach of permissions.
2. Section 49 of the EP Act sets out that:

This Part applies subject to anything to the contrary in Part 4.4 [Licences], 4.5 [Permits] or 4.6 [Registrations].

1. Section 49A of the EP Act sets out some relevant definitions that apply to Part 4.3, notably that:

In this Part -

relevant permission application means -

(a) an application under section 50 for a permission; or

...

(f) an application under section 80 for an exemption from the application of section 44; or

...

[Tribunal emphasis]

1. As can be seen, an application for an exemption from the need to obtain a development licence is defined as a 'relevant permission application' for the purposes of the EP Act.
2. Section 50 of the EP Act addresses the form and content of applications, specifying that:

(1) An application for a permission must -

(a) be made -

(i) in the case of an application made to the Authority, in a form and manner approved by the Authority; or

(ii) in the case of an application made to a council, in the prescribed form and manner; and

(b) be accompanied by the prescribed fee (if any) for the application; and

...

(c) specify whether the application is for -

(i) a development licence; or

(ii) an operating licence; or

...

(d) specify the activity in relation to which the permission is sought; and

(e) include any prescribed information.

(2) The Authority or a council -

(a) must not deal with an application that does not comply with this section; and

(b) must advise an applicant if an application does not comply with this section.

1. Amongst other sections of Part 4.3 is section 52 of the EP Act which sets out the requirements for publishing of notice for public comments. Section 51B of this part also sets out circumstances when the statutory time frame for a decision about an application for a licence or permit may be suspended.
2. Part 4.4 of Chapter 4 deals with matters specific to licences.
3. Amongst other matters this part deals with decision making about a development licence application and some conditions to be included in a development licence if granted and other operations of a development licence.
4. Given our focus in this proceeding is about how the scheme provides for licence permissions and, in this instance, an exemption from a development licence, we therefore direct our attention to these parts of the EP Act and associated supporting elements.

1. Part 4.2 of Chapter 4 sets out when permissions are required for specified activities.
2. Section 44 of Part 4.2 sets out when a development licence is required:
   1. Development licences required for development activities

(1) A person must not engage in one or more of the following activities except as authorised by a development licence in respect of the activity -

(a) the construction or installation of plant or equipment for a prescribed development activity;

(b) the development of processes or systems for a prescribed development activity;

(c) the modification, other than general maintenance, of plant, equipment, processes or systems for a prescribed development activity or of the operation of a prescribed development activity -

(i) if the modification creates a risk of material harm to human health or the environment from pollution or waste; or

(ii) in prescribed circumstances.

(2) Subsection (1) does not apply -

...

(c) if a prescribed exemption applies to the person.

1. Regulation 16 'Permission activities' of the EP Regulations provides:

(1) For the purposes of section 44 of the Act, an activity set out in column 3 of the Table in Schedule 1 is a prescribed development activity if the corresponding entry in column 4 of that Table specifies that the activity is a prescribed development activity.

1. As relevant to the proposal, the Table in Schedule 1 to the EP Regulations provides as follows:

1. As can be seen, the storing, treating, reprocessing, containing or disposing of any reportable priority waste (transport) generated at another site (column 3) is a prescribed development activity (column 4). It is also a prescribed operating activity, a matter we will come to shortly.
2. Regulation 37 of the EP Regulations sets out development activities that are prescribed development activity exemptions for the purposes of sections 44(2)(c) and 44(1)(c)(i) of the EP Act. None of these prescribed exemptions apply to the proposal.
3. Part 4.4, section 69 of the EP Act provides as follows with respect to development licences:
   1. Development licences

(1) The Authority must, not later than 4 months after receiving an application for a development licence that complies with section 50 -

(a) issue a development licence subject to any specified conditions that the Authority considers appropriate; or

(b) refuse to issue a development licence.

(2) The Authority must refer an application for a development licence to a prescribed agency for comment in the prescribed circumstances.

(3) When determining whether or not to issue a development licence, the Authority must take into account -

(a) any measures the applicant has taken or proposes to take in order to comply with the general environmental duty when engaging in the activity that is the subject of the application; and

(b) the impact of the activity on human health and the environment, including the impact on any environmental values identified in any relevant environment reference standard, taking into account any other activities being or proposed to be engaged in by the applicant or any other person; and

(c) the principles of environment protection; and

(d) the best available techniques or technologies; and

(e) whether the activity is otherwise consistent with this Act and the regulations; and

(f) if the regulations require the Authority to refer the application to a prescribed agency, any comments or submissions received from that agency; and

(g) any comments and submissions received -

(i) in response to the notice of the application published under section 52; and

(ii) within the time specified in that notice; and

(h) any prescribed matter.

(4) The Authority must refuse to issue the development licence if -

(a) the Authority considers that the activity that is the subject of an application poses an unacceptable risk of harm to human health or the environment; or

(b) the Authority determines that the person is not a fit and proper person to hold a development licence; or

(c) any prescribed circumstances exist.

(5) The development licence must specify the date on which the development licence expires.

(6) If the Authority decides to issue a development licence, the Authority must, within 5 business days of issuing the licence, take reasonable steps to notify each person who made a submission under section 52 in relation to the application for the licence of the following -

(a) the decision to issue the licence;

(b) that certain persons may seek review of the decision under section 434.

1. Section 72 allows for the term during which a development licence remains in force to be extended.
2. Section 73 enables the holder of a development licence to apply for a statement from the Authority as to whether the Authority considers the activity has been completed to the satisfaction of the Authority:
   1. Statement as to whether activity specified in development licence completed

(1) The holder of a development licence may apply, in the form and manner approved by the Authority, for a statement from the Authority as to whether the Authority considers the holder to have completed the activity specified in the development licence to the Authority's satisfaction.

(2) The Authority must provide a written statement under subsection (1) within 20 business days after receiving an application under that subsection.

1. The combination of sections 69, 72 and 73 of the EP Act mean that a development licence is granted for a specified period and it is envisaged that the development activity permitted by the development licence will, at some point, be completed and the development licence will expire.
2. The EP Act also sets out specific circumstances when a development licence must be refused. There are no such circumstances specified for an exemption.

1. Similar provisions to that of development licences are made for operating licences at section 45 of the EP Act, which specifies that operating licences are required for prescribed operating activities:
   1. Operating licences required for operating activities

(1) A person must not engage in a prescribed operating activity except as authorised by an operating licence in respect of the activity.

...

(2) Subsection (1) does not apply -

(a) in respect of any action or thing the person takes or does to comply with -

...

(iii) an exemption granted to the person under section 80(2) that is in force in respect of the activity; or

...

(b) in respect of any action or thing that the person is required to take or do under an improvement notice or environmental action notice; or...

(c) if a prescribed exemption applies to the person.

1. Regulation 16 'Permission activities' of the EP Regulations provides:

(2) For the purposes of section 45 of the Act, an activity set out in column 3 of the Table in Schedule 1 is a prescribed operating activity if the corresponding entry in column 4 of that Table specifies that the activity is a prescribed operating activity.

1. As can be seen from the earlier extract of the Table to Schedule 1 to the EP Regulations, the 'storing, treating, reprocessing, containing or disposing of any reportable priority waste (transport) generated at another site' (column 3) is a 'prescribed operating activity' (column 4).
2. Part 4.4, Division 2 'Operating Licences' includes section 74 that provides as follows with respect to operating licences:
   1. Operating licences

(1) Subject to subsection (2), the Authority must, after receiving an application for an operating licence that complies with section 50 -

(a) issue an operating licence subject to any specified conditions that the Authority considers appropriate; or

(b) refuse to issue an operating licence.

(2) The Authority must issue or refuse to issue an operating licence under subsection (1) within -

(a) 15 business days after receiving the application if -

(i) the applicant holds a development licence in respect of the activity that is the subject of the application; and

(ii) the Authority has provided to the applicant a statement under section 73 that the Authority considers the applicant to have completed the activity to the Authority's satisfaction; or

(b) in any other case, 42 business days after receiving the application.

(3) When determining whether or not to issue an operating licence, the Authority must take into account -

(a) any measures the applicant has taken or proposes to take in order to comply with the general environmental duty when engaging in the activity that is the subject of the application; and

(b) the impact of the activity on human health and the environment, including the impact on any environmental values identified in any relevant environment reference standard, taking into account any other activities being or proposed to be carried out by the applicant or any other person; and

(c) the principles of environment protection; and

(d) the best available techniques or technologies; and

(e) whether the activity is otherwise consistent with this Act and the regulations; and

(f) any prescribed matter.

(4) The Authority must refuse to issue an operating licence if -

(a) the Authority considers that the activity that is the subject of the application poses an unacceptable risk of harm to human health or the environment; or

(b) the Authority determines that the person is not a fit and proper person to hold an operating licence; or

(c) the Authority considers the activity that is the subject of the application to be a prescribed development activity and the applicant does not hold a development licence in respect of the activity; or

(d) any prescribed circumstances exist.

(5) Nothing in this Chapter prevents -

(a) the person who has applied for an operating licence in respect of an activity applying for a development licence in respect of the same activity; or

(b) the Authority determining that application for a development licence in accordance with Division 1.

1. As can be seen, the framework for operating licences anticipates scenarios where a licence may be issued to a person who holds and has completed a development in accordance with a development licence, as well as a scenario where no development licence is held. The latter provisions provide the Authority with a longer time to consider the application in accordance with the requirements of section 73(3) matters.
2. The framework therefore provides the necessary flexibility to support a person who holds an exemption from a development licence to apply for an operating licence once the development is finished and is ready to commence operation.
3. The shorter time period for approval of an operating licence when a development licence is held, and the requirements of section 73(2) are met is also suggestive of a regime where matters concerning the operation of the development have been anticipated during the development licence assessment.
4. Section 75 of the EP Act provides that in certain circumstances the Authority must specify the period during which the licence remains in force:

75 Term of operating licences

(1) Subject to subsection (2), if the Authority issues an operating licence after the commencement of this Chapter, the Authority must specify on the licence the period during which the licence remains in force.

(2) An operating licence may not remain in force -

(a) in the case of an operating licence that specifies a waste management activity that is engaged in at a current or former landfill site, for a period of more than 99 years; or

(b) in any other case, for a period of more than 20 years.

1. Section 76 'Review of operating licences' enables the Authority to review an operating licence.
2. The combination of sections 74 and 75 of the EP Act mean that although an operating licence is granted for a specified period, when the operating licence is for a waste management activity at a current landfill site, the operating licence period may be for a considerable period of time.

1. Part 4.4, Division 4 deals with licence exemptions.
2. Section 80 sets out the scheme for applications for licence exemptions:
   1. Application for licence exemptions

(1) A person may apply to the Authority for an exemption from the application of section 44 in respect of a prescribed development activity.

(2) A person may apply to the Authority for an exemption from the application of section 45 in respect of a prescribed operating activity.

(3) An application for an exemption under subsection (1) or (2) must -

(a) be made in any form and manner approved by the Authority; and

(b) specify the activity in relation to which the exemption is sought; and

(c) be accompanied by the prescribed fee (if any) for the application; and

...

(d) include any prescribed information.

(4) Subject to section 51B, on receiving an application that complies with subsection (3), the Authority must, within 20 business days (or any shorter prescribed period) after receiving the application -

(a) grant the exemption subject to any conditions the Authority considers appropriate; or

(b) refuse to grant the exemption.

(5) When determining whether to grant an exemption, the Authority must take into account any prescribed matter.

(6) An exemption granted under subsection (4) may be revoked or amended by a written notice given by the Authority.

(7) An exemption granted under subsection (4) has no effect unless the conditions to which it is subject are complied with.

138 Of key relevance to this proceeding, the assessment of a licence exemption is to be undertaken having regard to the following criteria or prescribed matters under regulation 24 of the EP Regulations:

1. Criteria for considering licence exemptions

For the purposes of section 80(5) of the Act, the following are prescribed matters -

(a) the purposes of the Act;

(b) the objective of the Authority;

(c) the objects set out in section 111 of the Act;

(d) the principles of environment protection;

(e) whether granting the proposed exemption may adversely affect -

(i) human health or the environment; or

(ii) the interests of any person other than the applicant; or

(iii) any environmental values identified in any relevant environment reference standard;

(f) the best available techniques or technologies for engaging in the prescribed activity;

(g) whether the applicant has adequately engaged with any person whose interests may be affected by the proposed exemption, taking into account the Charter of Consultation developed under section 53 of the Act;

(h) whether the applicant is a fit and proper person for the purposes of Chapter 4 of the Act;

(i) whether, if the Authority has requested further information from the applicant, the applicant has provided sufficient information within a reasonable time;

(j) whether it is in the public interest to grant the exemption.

1. The general provisions in Part 4.3 of the EP Act include notice requirements for the various permissions dealt with under Part 4.3.
2. Pursuant to section 53 in Part 4.3 of the EP Act, the Authority must develop a Charter of Consultation, which must include guidelines relating to processes for determining applications for permissions and guidelines for the public notification of, and consultation relating to, applications for permissions.
3. Under regulation 24(g) of the Regulations, assessment of an exemption is to take into account the Charter of Consultation.
4. The Authority has published the Charter of Consultation Publication No 1928[51] ('Charter').

The Charter contains 'Consultation guidelines' that address consultation for permissions and, relevantly, includes the following content in terms of development licences and exemptions:

The references in the above table to 'Pre-application engagement' and 'Permissions applications profile assessments' is a reference to the following content in the Charter:

THE WASTE DISPOSAL REGIME UNDER THE EP ACT AND THE EP REGULATIONS

What is dealt with in Chapter 6 'Waste' of the EP Act?

1. Waste management in Victoria is controlled under the EP Act and through the EP Regulations.
2. In short, the process established under the EP Act and the EP Regulations and other documents requires the classification of waste and to ensure appropriate waste management and disposal systems are in place in accordance with that classification.
3. Chapter 6 'Waste' of the EP Act contains the following simplified outline of this chapter:[52]

(1) This section sets out a simplified outline of this Chapter.

(2) Part 6.2 provides for the objects of this Chapter.

(3) Part 6.3 provides for the powers and appointment of litter enforcement officers and offences in relation to the disposal and removal of litter and other waste.

(4) Part 6.4 provides for duties in relation to industrial waste.

(5) Part 6.5 provides for duties and controls in relation to priority waste.

(6) Part 6.6 provides for the administration of the waste levy scheme.

1. Regulation 24(c) of the EP Regulations requires consideration be given to the objects of section 111 of the EP Act in assessing an exemption application. Section 111 of the EP Act specifies the objects of Chapter 6, as follows:[53]

(1) The objects of this Chapter are -

(a) to minimise litter and waste disposal by encouraging the management of waste in accordance with the waste management hierarchy; and

(b) to promote waste reduction, resource recovery and resource efficiency; and

(c) to minimise the impact on human health and the environment from waste generation and waste disposal.

(2) It is the intention of the Parliament that in the administration of this Chapter regard should be given to the objects of this Chapter.

1. For completeness, the principle of waste management hierarchy is set out at section 18 of the EP Act as follows:

Waste should be managed in accordance with the following order of preference, so far as reasonably practicable -

(a) avoidance;

(b) reuse;

(c) recycling;

(d) recovery of energy;

(e) containment;

(f) waste disposal.

1. Collectively one of the duties under and outcomes sought by the EP Act, and one of the specified objectives in section 111 of the EP Act, is 'resource recovery' which is defined in section 3 of the EP Act as follows:

resource recovery in relation to waste, means -

(a) preparation for reuse of the waste;

(b) recycling the waste;

(c) reprocessing the waste;

(d) recovering energy or other resources from the waste;

(e) anything prescribed to be resource recovery in relation to waste -

but does not include anything prescribed not to be resource recovery in relation to waste.

[Tribunal emphasis]

1. We were not made aware of any regulations that prescribed that the recovery of soil from 'soil containing asbestos only' was excluded from the definition of resource recovery.
2. 'Reuse' is also referred to in the objectives in section 111 of the EP Act. It is defined in section 3 of the EP Act as follows:

reuse, in relation to waste, means the use of the waste for a purpose that is the same or similar to the purpose for which it was used before it became waste;

1. This application seeks to deal with waste soil that only contains asbestos, recovering the soil component to use it as fill material.
2. 'Soil containing asbestos only' is a form of priority waste under the EP Act.
3. Earlier we discussed what is meant by 'fill material'. Now we address what is meant by 'soil containing asbestos only' and 'asbestos'.

1. 'Soil containing asbestos only' is defined in the EP Regulations as follows:

soil containing asbestos only means priority waste that is classified as soil containing asbestos only in accordance with regulation 67 or 68;

[Tribunal emphasis]

1. With respect to the reference to regulations 67 and 68 of the EP Regulations, these regulations impose obligations on a person who has the management or control of that priority waste that is consigned for disposal to classify that priority waste, including soil sourced on-site from contaminated land. These regulations include the following text:

... a person who has the management or control of priority waste consigned for disposal must, before relinquishing management or control of the priority waste to another person for the purposes of transporting the priority waste, classify the priority waste in accordance with this regulation.

The person must classify the priority waste consigned for disposal as a category of priority waste set out in Schedule 6.

...

... a person who has the management or control of priority waste that is soil sourced on-site from contaminated land must, as soon as practicable after sourcing the soil, classify the soil as one of the following categories of priority waste set out in Schedule 6 -

(a) Category A waste;

(b) Category B waste;

(c) Category C waste;

(d) Category D waste;

(e) soil containing asbestos only.

...

... a person who has the management or control of priority waste that is soil not sourced on-site from contaminated land must, before relinquishing management or control of the soil to another person for the purposes of transporting the soil, classify the soil as one of the following categories of priority waste set out in Schedule 6 -

(a) Category A waste;

(b) Category B waste;

(c) Category C waste;

(d) Category D waste;

(e) soil containing asbestos only.

[Tribunal emphasis]

1. For completeness we include here that Schedule 6 of the EP Regulations sets out the categories of priority waste. The category of 'soil containing asbestos only' is defined as follows:

Soil containing asbestos only

Soil containing asbestos only is industrial waste that is soil that -

(a) contains asbestos; and

(b) does not contain any contaminant concentration exceeding the upper limits for fill material contaminant concentrations specified in the Waste Disposal Categories - Characteristics and Thresholds, as in force from time to time.

[Tribunal emphasis]

1. Schedule 5 of the EP Regulations also deals with soil containing asbestos and is discussed later.
2. The only difference between the defined terms 'soil containing asbestos only' and 'fill material' is the presence of asbestos; 'soil containing asbestos only' contains asbestos whereas 'fill material' does not.
3. Under the environment protection statutory framework, 'soil containing asbestos only' is a prescribed industrial waste as well as potentially being a prescribed notifiable form of land contamination.
4. 'Soil containing asbestos only' is also defined in the Waste Disposal Category, which we discuss below.

1. Throughout the permissions regime and waste disposal regime (included associated documents) reference is made to 'asbestos', 'friable asbestos' and 'packaged waste asbestos'.
2. The latter two terms are defined in the EP Regulations via regulations 4, 66, 67 and schedules 5 and 6.
3. The term 'asbestos' is not defined in the EP Act or the EP Regulations.
4. We deal with the meaning of 'asbestos' in our assessment later in these reasons.

1. For present purposes, of most relevance is Part 6.5 'Duties and controls relating to priority waste'.
2. Section 138 of the EP Act deals with what priority waste is, as follows:

Priority waste is any waste, including municipal waste and industrial waste, that is prescribed to be priority waste for the purposes of -

(a) eliminating or reducing risks of harm to human health or the environment posed by the waste; or

(b) ensuring the priority waste is managed in accordance with this Part; or

(c) facilitating waste reduction, resource recovery and resource efficiency.

1. Greater specificity regarding priority waste is contained in the EP Regulations, which we address further below.
2. Part 6.5 of the EP Act creates duties with respect to priority waste management.
3. Section 139 identifies the duties of persons managing priority waste, making it an offence to contravene this provision. Section 139 is as follows:

139 Duties of persons managing priority waste

(1) A person who has the management or control of priority waste must classify the priority waste in accordance with this Act and the regulations.

(2) A person who has the management or control of priority waste must take all reasonable steps to ensure that -

(a) the priority waste is contained in a manner that prevents its escape; and

(b) the priority waste is isolated in a manner that ensures resource recovery remains practicable; and

(c) a person who collects, consigns, transfers or transports the priority waste is provided the following, where reasonably available -

(i) information regarding the nature and type of the priority waste;

(ii) information regarding any risks of harm to human health or the environment that exist in relation to the priority waste;

(iii) any other information that can reasonably be expected to be necessary for the person to comply with a duty in relation to the priority waste under this Act.

Note

Section 314 provides that subsections (1) and (2) are civil penalty provisions. The penalties for contravention of these civil penalty provisions are set out in the table in section 314.

(3) A person who contravenes subsection (1) or (2) commits an offence.

Penalty: In the case of a natural person, 120 penalty units;

In the case of a body corporate, 600 penalty units.

[Tribunal emphasis]

1. Section 140 of the EP Act creates a duty for a person who has the management and control of priority waste to investigate alternatives to waste disposal, as follows:
   1. Duty to investigate alternatives to waste disposal

(1) A person who has the management or control of priority waste must -

(a) take all reasonable steps to identify and assess alternatives to waste disposal for the priority waste, including -

(i) reuse and recycling of the priority waste; and

(ii) if the person produced or generated the priority waste, avoiding producing or generating similar priority waste in the future; and

(b) have regard to the following in making a decision relating to management of the priority waste -

(i) alternatives to waste disposal identified and assessed under paragraph (a);

(ii) any guidelines issued by the Authority relating to alternatives to waste disposal for that type of priority waste;

(iii) the objects of this Chapter.

(2) For the purposes of subsection (1)(a), taking reasonable steps includes (but is not limited to) the following -

(a) considering any guidelines issued by the Authority relating to alternatives to waste disposal for that type of priority waste;

(b) considering any other relevant guidelines or publications;

(c) considering the availability of any relevant technology used in resource recovery;

(d) consulting a person or body with relevant expertise relating to alternatives to waste disposal for that type of priority waste.

1. Section 141 of the EP Act authorises the Authority to issue guidelines setting out alternatives to waste disposal for a type of priority waste. We were not taken to or made aware of any such guidelines for 'soil containing asbestos only'.
2. Part 6.5 of the EP Act also places duties on persons to notify of a transaction in reportable waste[54] and on persons transporting reportable priority waste.[55]

1. It is through the EP Regulations that asbestos and 'soil containing asbestos only' are classified as priority waste for the purposes of the EP Act, noting that:
   1. section 138 of the EP Act provides that priority waste is any waste that is prescribed to be priority waste; and
   2. through Part 4.2 'Industrial waste and priority waste' of the EP Regulations, waste is prescribed to be:
      • industrial waste (Division 1 'Industrial Waste'); and
      • priority waste (Division 2 'Priority waste').
2. Division 1 of Part 4.2 includes:

1. regulation 61 'Classifying industrial waste', which requires a person to classify industrial waste in accordance with the regulation in order to determine the applicable waste code/s for the waste and whether the waste is also priority waste; and 2. regulation 62 'Classifying soil sourced on-site from contaminated land', which requires a person who has the management or control of soil sourced on-site from contaminated land that is industrial waste to, as soon as practicable after sourcing the soil, classify the soil by determining whether the soil is also priority waste, noting that the soil will be classified as priority waste if the soil contains asbestos;[56] and 3. regulation 63 'Authorised to receive industrial waste' that specifies for the purposes of the definition of the term 'authorised to receive industrial waste' in section 3(1) of the EP Act, where a person, place or premises is authorised to receive a particular type of industrial waste. 4. Regulation 63(b) is:

(b) if the industrial waste is received and used in accordance with specifications acceptable to the Authority set out in a determination made under regulation 5.

1. The Fill Determination is a determination of the type referred to in regulation 63(b) and specifies when a person, place or premises is authorised to receive fill material for the purposes of regulation 63(b) of the EP Regulations.[57]
2. The effect of the Fill Determination is that if fill material is received at a place or premises in accordance with the specifications set out in clause 5 of the Fill Determination, then that place or premises is authorised to receive that industrial waste.[58]
3. Clause 5 of the Fill Determination contains the specifications to receive industrial waste that is fill material:

(a) all the conditions in Clause 6 of this determination are satisfied; and

(b) the fill material does not contain, or the waste generator has removed as far as reasonably practicable, any wastes or physical contaminants that are not soil, including -

(i) concrete, bricks, ceramics, asphalt, plastics, glass, metal or wood; and

(ii) putrescible or organic wastes; and

(c) the fill material is not malodourous, including from petroleum hydrocarbons, hydrogen sulphide or organosulfur compounds; and

(d) the fill material does not contain discoloured chemical deposits or staining from chemical waste.

[Tribunal emphasis]

1. The conditions set out in clause 6 of the Fill Determination are:

(1) The waste receiver must inspect each consignment of fill material when received at the receiving site and -

(a) confirm the consignment meets the specifications in Clause 5 of this determination; and

(b) make a record of that inspection.

(2) The waste receiver must not accept any waste soil classified as fill material excavated from contaminated land unless the waste generator has provided evidence of the soil classification, including any laboratory analysis, carried out in accordance with Regulation 62(1)(b) of the [EP] Regulations.

(3) Any laboratory analysis required for the purposes of this determination must be undertaken by a National Association of Testing Authorities accredited laboratory.

[Tribunal emphasis]

1. As can be seen, it is the waste receiver that holds the obligation to inspect each consignment of fill material and to not accept any fill material unless the waste generator has provided evidence of the soil classification.
2. Schedules 5 and 6 of the EP Regulations also deal with fill material and are discussed later.

1. Division 2 of this Part contains regulation 65 'What is priority waste?', which provides:

For the purposes of section 138 of the Act, the following types of waste are prescribed to be priority waste -

(a) industrial waste that is classified as priority waste under regulation 61 or 62;

(b) industrial waste that, had it been classified under regulation 61 or 62, would be classified as priority waste.

1. Pursuant to section 139 of the EP Act, a person who has the management or control of priority waste must classify the priority waste in accordance with the EP Act and the EP Regulations.
2. Regulations 66, 67 and 68 of the EP Regulations deal with the classification of waste that must be undertaken before a person relinquishes control of the waste. These regulations operate as follows:
   1. Regulation 66 'Classification of priority waste as reportable priority waste in accordance with the Waste Classification Assessment Protocol' provides that a person who has the management or control of priority waste must:
      1. refer to the Table in Schedule 5 of the EP Regulations to ascertain whether the priority waste is reportable priority waste (transactions) and/or reportable priority waste (transport); and
      2. if the priority waste is not described in column 3 of the Table in Schedule 5, the person must classify the priority waste in accordance with the hazardous properties assessment criteria contained in the Waste Classification Assessment Protocol ('Waste Protocol');
   2. Regulation 67 'Classification of priority waste consigned for disposal' provides that a person who has the management or control of priority waste must classify the priority waste consigned for disposal as a category of priority waste set out in Schedule 6; and
   3. Regulation 68 'Classification of priority waste that is soil' provides that a person who has the management or control of priority waste that is soil sourced on-site from contaminated land must, as soon as practicable after sourcing the soil, classify the soil as one of the categories of priority waste set out in Schedule 6.
3. The EP Regulations also address the following matters about waste management:
   1. Regulation 69 'Priority waste classification - information' deals with the records that must be made and held by a person who has the management or control of priority waste; and
   2. Regulation 70, 'Mixing, blending or diluting priority waste' provides that a person who has the management or control of priority waste must not mix, blend or dilute the priority waste with other wastes which results in a change to the waste classification of the priority waste, other than in accordance with a designation issued by the Authority.
4. The regulations referenced above refer to Schedule 5 and Schedule 6 of the EP Regulations and the Protocol. We now briefly address each of these in turn.

1. Schedule 5 'Waste Classification' contains the classification for industrial wastes.
2. The application of Schedule 5 (through the relevant regulations) determines if the waste is reportable priority waste for waste classification purposes, and the tracking of waste transactions and transport. Relevantly the application of schedule is used to determine which priority waste category applies if the priority waste is being sent to a premises for reportable priority waste management, e.g. a landfill or a treating or reprocessing premises.
3. In summary,[59] if the waste:
   1. is pre-classified by the Authority, its waste code will be located in column 4 of the table to Schedule 5. The waste code is used to identify a waste to others in the waste supply chain; and
   2. if the waste is not pre-classified by the Authority, it has a mirror code, which is indicated in column 5 of the table to Schedule 5.

1. Schedule 5 includes the following classifications that apply to asbestos:

1. As can be seen, the classifications in Schedule 5 provide that:
   1. soil that contains asbestos is within 'solid and sludge wastes requiring special handling', being Item 83, Waste code N120; and
   2. waste asbestos is within 'solid and sludge wastes requiring special handling', being Item 93, Waste code N220.
2. Both Item 83 (N120) and Item 93 (N220) wastes are priority waste, reportable priority waste for the purpose of transactions and transporting.
3. Fill material is also included in Schedule 5. It is described as follows and has pre-classified waste code of N122:

Excavated material or engineered fill including fill material, other than item 83 or 85 of this Table[60]

1. Under Schedule 5, fill material is not a priority waste or a reportable priority waste for transactions or transport. It is an industrial waste and the duties and provisions of Part 6.4 of the EP Act apply to its management.

1. Schedule 6 'Categories of priority waste' defines the following categories of waste in respect to regulation 67 and 68. The classifications are:
   1. Category A waste;
   2. Category B waste;
   3. Category C waste;
   4. Category D waste;
   5. Soil containing asbestos; and
   6. Packaged waste asbestos.
2. Of these categories, the following are relevant to our consideration of soil containing asbestos only:

Category D waste

Category D waste is industrial waste (other than Category A waste or Category B waste or Category C waste) that is soil -

(a) with any contaminant concentration greater than the upper limits for fill material contaminant concentrations specified in the Waste Disposal Categories - Characteristics and Thresholds, as in force from time to time, but not exceeding the upper limits for Category D waste contaminant concentrations; or

(b) with any leachable concentration not exceeding the upper limits for Category D waste leachable concentrations; or

(c) for which the Authority has issued a designation classifying the waste as Category D waste.

Soil containing asbestos only

Soil containing asbestos only is industrial waste that is soil that -

(c) contains asbestos; and

(d) does not contain any contaminant concentration exceeding the upper limits for fill material contaminant concentrations specified in the Waste Disposal Categories - Characteristics and Thresholds, as in force from time to time.

Packaged waste asbestos

Packaged waste asbestos is waste asbestos (other than soil containing asbestos) contained in a manner so as to eliminate the release of airborne asbestos fibres.

[Tribunal emphasis]

1. We note that in this definition in Schedule 6, the description for packaged asbestos waste refers to 'soil containing asbestos' rather than 'soil containing asbestos only'. For the purposes of our decision, nothing turns on this apparent discrepancy in language.
2. What is relevant is that Schedule 6 also contains the following note:

Soil containing asbestos only would be fill material if it did not contain asbestos. If soil containing asbestos contains any contaminant concentrations exceeding the upper limits for fill material, the soil is Category A, B, C or D waste as determined in accordance with the above category descriptions.

[Tribunal emphasis]

Classifying priority waste under the Waste Disposal Category

1. We were referred to the Waste Disposal Category published by the Authority.
2. The operation of the waste management framework, involving section 139 of the EP Act and Part 4.2 of the EP Regulations, leads to the Waste Disposal Category as the basis for classifying industrial waste.
3. The Waste Disposal Category is the document that adds the necessary technical details to classifying wastes within the statutory frameworks.
4. The Waste Disposal Category states that it is incorporated into the EP Regulations:[61]

In Victoria, waste must be classified to meet waste duties under Part 6.4 (Duties relating to industrial waste) and 6.5 (Duties and controls relating to priority waste) of the Environment Protection Act 2017.

The Environment Protection Regulations (the Regulations), Part 4.2 (Industrial Waste and priority waste) specifies the process for classifying waste.

This Waste disposal categories - characteristics and thresholds publication, as published by Environment Protection Authority Victoria (EPA) from time to time, is incorporated into the Regulations without modification.

This publication establishes the characteristics and thresholds necessary for complying with the Regulations, specifically, classification of wastes to determine the relevant waste disposal category in accordance with Schedule 6 of the Regulations.

A holder of waste must use the criteria and thresholds in this publication to determine a waste disposal category unless the category is determined by the Regulations.

[Tribunal emphasis]

1. Under the heading of 'How to use this publication' it states:[62]

Any reference in this document to soil that contains asbestos does not include soil from which visible asbestos-containing material has been removed, so far as reasonably practicable, from the soil by the person proposing to supply, store, transport, sell, use or re-use the soil. See regulation 217 of the Occupational Health and Safety Regulations 2017 (sic) for further information.

[Tribunal emphasis]

1. Under the heading of 'Testing requirements' it states that:[63]

Wherever this publication requires testing to be completed, such as for leachable concentration or total concentration, it is a requirement that testing be undertaken by a National Association of Testing Authorities, Australia (NATA) accredited laboratory.

1. The table of definitions[64] includes the following definition of fill material and footnote, again referring to soil that contains asbestos does not include soil from which visible asbestos has been removed:

As defined in the Environment Protection Regulations fill material is industrial waste that

(a) with contaminant concentrations not exceeding the upper limits for fill material

waste contaminant specified in the document Waste Disposal Categories -

1. Note that, in accordance with the Occupational Health and Safety Act 2004, industrial waste that is soil does not contain asbestos if all visible asbestos-containing material (that is, any manufactured material or object that, as part of its design, contains asbestos) has been removed, so far as reasonably practicable, from the soil by the person proposing to supply, store, transport, sell, use or re-use the soil.

1. Table 1 sets out specific characteristics to assess priority waste to determine its relevant category.[65] Relevantly this table sets out the following:

(b) does not contain any contaminant concentration exceeding the upper limits for fill material contaminant concentrations specified in Table 3.

1. Note that, in accordance with the Occupational Health and Safety Act 2004, industrial waste that is soil does not contain asbestos if all visible asbestos-containing material (that is, any manufactured material or object that, as part of its design, contains asbestos) has been removed, so far as reasonably practicable, from the soil by the person proposing to supply, store, transport, sell, use or re-use the soil.
2. Fill material criteria (i.e. upper limits) for contaminant concentrations are set out in Table 3. Material that contains contaminants above these criteria are to be classified on the basis of upper limit criteria and leachable fraction criteria in Table 2. It is not necessary to set out these criteria for present purposes.
3. Later in our reasons we address Dr Bell's evidence about the contrast to be made between the notes about soil that contains asbestos in the Waste Disposal Categories and the note we have set out above at the end of Schedule 6 of the EP Regulations.

1. The waste management framework explained above establishes lines of responsibility for those generating, transporting and receiving wastes to ensure:
   1. those that generate the waste classify it in accordance with the waste management framework;
   2. those that transport the waste confirm the nature of the waste is that as determined by the generator prior to its shipment or on receipt of the waste for transport;
   3. those that transport that waste confirm that it is taken to a place permitted to receive that waste so again the transporter must be aware of and inform the waste receiver about the nature of the waste; and
   4. the receiver of the waste must be informed and confirm the nature of the waste so that it can accept that waste in accordance with its permissions.
2. These responsibilities are outlined in the Industrial Waste Guideline issued by the Authority.[66]
3. Unlike the Waste Disposal Category, this publication is not incorporated in the EP Regulations.
4. The purpose of the Industrial Waste Guideline is:

... to provide information to help duty holders understand their obligations under the Environment Protection Act 2017 and subordinate instruments, including by providing examples of approaches to compliance.[67]

...

... to step through the process for classifying industrial waste under the Environment Protection Act 2017 1(the Act) and Environment Protection Regulations 2021 (the Regulations). This guide:

• codifies the process for classifying industrial waste, drawing from the Act, the Regulations and relevant EPA publications[68]

1. We do not intend to set out all the detail of the Industrial Waste Guideline here as much of it repeats what we have set out earlier about the application of the EP Act and EP Regulations.[69] For present purposes the Industrial Waste Guideline helpfully summarises some relevant points about the application of the provisions of the EP Act and the EP Regulations, namely:[70]

All industrial waste is subject to the industrial waste duties in sections 133, 134 and 135 of the [EP] Act which require that industrial waste must only be deposited at a place or premises authorised to receive industrial waste (a 'lawful place').

...

Priority waste is a subset of industrial waste which requires additional controls due to its higher level of hazard, its potential for mismanagement, or to encourage resource recovery or resource efficiency.

...

Priority waste is subject to further duties [that] relate to:

• section 139: taking all reasonable steps to ensure priority waste is contained to prevent its escape, isolated to ensure resource recovery remains practicable, and to provide information about the waste and any risks it may pose to others in the supply chain
• section 140: taking all reasonable steps to assess alternatives to waste disposal.

...

Priority waste may also be reportable priority waste (transactions) and reportable priority waste (transport).

Section 142 applies to reportable priority waste (transactions) and requires this type of waste be tracked using Waste Tracker (or an authorised alternative system).

Section 143 applies to reportable priority waste (transport) and requires this type of waste be transported by a vehicle for which a permission is held to transport the waste.

...

For soil, the priority waste category helps determine what can be done with soil more broadly, not just for disposal to landfill. For example, Category D soil generated at a project site may be contained on that site under a permit.

As with other waste, where soil is consigned for disposal to landfill the priority waste category will determine which landfills are able to receive the waste and the applicable levy rate.

[Tribunal emphasis, footnotes omitted]

1. The Industrial Waste Guideline includes a series of process maps (flowcharts) and step by step guidance for the waste classification process, two of which apply to soil:
   1. soil sourced onsite from contaminated land; and
   2. other soil sourced from another site from that which it is to be placed or soil that is not from contaminated land.[71]
2. The flowchart outlining the first of the above two scenarios, being the process for classifying industrial waste for soil sourced from contaminated land, is as follows:[72]

Figure 3: Flowchart for soil sourced from contaminated land

1. Step 1 of this process includes the following explanatory notes about which contaminants should be analysed for:

For purposes of classifying industrial waste that is soil, EPA requires assessment of the soil, including an understanding of site history, to determine whether the soil is sourced from contaminated land and to identify which contaminants require analysis. An assessment must be undertaken for all chemical substances known or reasonably expected to be in the waste. This means that not all contaminants need to be analysed in every waste, unless they are known or reasonably expected to be present.

...

Where soil does not contain any known or reasonably expected contaminants exceeding the upper limits for fill material in Table 3 (and there are no other contaminants known or reasonably expected to be present, for example asbestos, WASS, PFAS), the soil can be classified as fill material.

[Tribunal emphasis]

1. Step 2 of this process is required to classify the waste. Further guidance repeats that which we have set out above about the weight of evidence approach to decide which contaminants are analysed for. Step 2 is described in the Industrial Waste Guideline as follows:

Soil must be classified as the applicable category in accordance with Schedule 6 of the Regulations. This may require sampling and analysis to determine the contaminant or leachable concentrations of the waste to apply the contaminant or leachable concentrations thresholds specified in Table 2 of Waste disposal categories - characteristics and thresholds (EPA publication 1828).

[Tribunal emphasis]

1. Step 3 of this process deals with the presence or potential presence of asbestos. The explanatory guidance sets out the following:

Does the soil contain asbestos? This does not include soil from which visible asbestos-containing material has been removed, so far as reasonably practicable.

If yes [the soil contains asbestos], the soil is priority waste and the category of priority waste under Schedule 6 of the Regulations is soil containing asbestos only.

No further action required for classification while the soil remains on-site. Go to step 4 if the soil is to be transported offsite.

[Tribunal emphasis]

1. Through step 4 of the process, if soil contains asbestos[73] and is to be transported off-site, the soil receives the waste code 'N120'.
2. This is consistent with the framework we have set out earlier with the incorporated guidance in the Waste Disposal Category.
3. The Industrial Waste Guideline sets out a similar process and flowchart for the second of the above two scenarios, being where soil that is industrial waste is sourced from another site or sourced onsite from land that is not contaminated land.
4. That process is essentially the same as that shown above and includes the same steps for assessing soil for the presence of asbestos.
5. Both processes ask the same question in step 3:

Does the soil contain asbestos? This does not include soil from which visible asbestos-containing material has been removed, so far as reasonably practicable.

1. Ultimately, through following either process set out in the Industrial Waste Guideline, if:
   1. soil contains only asbestos, that soil is classified as N120 and is a reportable priority waste for the purposes of transactions and transport. This means that the various transactions in the transfer of responsibility for the management, control or transport of the waste is reported through the Authority's waste tracking framework;[74]
   2. soil that:
      1. does not contain visible asbestos;
      2. does not contain contaminants above the upper limits for fill material;
      3. does not contain per-and polyfluoroalkyl substances ('PFAS'); and
      4. does not contain actual acid sulphate soil or potential acid sulphate soil, then

is industrial waste, classified as fill material with a code of N122. That soil is not a reportable priority waste, including for transactions or transport, although when transported, and received at another site, is subject to the Fill Determination.

1. We broadly set out the health risks of asbestos at the beginning of these reasons.
2. Collectively, the experts gave evidence about the health risk being from respirable asbestos fibres entering a person's lungs resulting in the development of chronic health issues: mesothelioma or asbestosis.
3. The key to understanding the health risk is therefore to understand the relationship between:
   1. the presence of asbestos in soil; and
   2. resulting concentrations of asbestos fibres in the air.
4. This is a classic example of the risk exposure pathway comprising of an understanding of the character of the source of the harm, the nature of the pathway through which the harm is transmitted; and the nature of the impact on a receptor exposed to that harm.
5. The NEPM and the WADOH Guidelines provide guidance about this relationship and were referred to by the experts. It was common ground between the experts' evidence and not contested by any party that the NEPM is relied on for the assessment and management of contaminated land in Victoria.

... establish a nationally consistent approach to the assessment of site contamination to ensure sound environmental management practices by the community which includes regulators, site assessors, environmental auditors, land owners, developers and industry.

1. The desired environmental outcome for the NEPM is to:[76]

... provide adequate protection of human health and the environment, where site contamination has occurred, through the development of an efficient and effective national approach to the assessment of site contamination.

1. The purpose of site assessment under the NEPM is to:[77]

... determine whether site contamination poses an actual or potential risk to human health and the environment, either on or off the site, of sufficient magnitude to warrant remediation appropriate to the current or proposed land use. In assessing that risk a balance is to be achieved between:

• optimising the current or intended use of the site; and
• adequately protecting human health and the environment.

The broader objective of assessment is to ensure:

• that the people of Australia enjoy the benefit of equivalent protection from air, water and soil pollution wherever they live;
• that the environmental values of water are maintained for future generations;
• that the capacity of the soil is maintained for future generations; and
• that there is consistency of approach between jurisdictions to aid government and business decision making.

1. The NEPM is incorporated into various regulations of the EP Regulations, such as those relating to prescribed notifiable contamination and related definitions.[78]
2. Section 4 of the NEPM deals with 'Asbestos materials in soils'. In doing so three defined forms of asbestos are adopted:
   • Bonded ACM, which is said to comprise asbestos containing material in sound condition. It can occur in fragments or broken pieces, but the asbestos will be bound in a matrix such as cement or resin. In the NEPM the term is not applied to material that can pass through a 7mm by 7mm sieve. Such smaller pieces are said to represent the 'approximate thickness common asbestos cement sheeting and for fragments to be smaller than this would imply a high degree of damage and hence potential for fibre release'.
   • Fibrous asbestos is friable asbestos that includes severely degraded ACM and is defined in the NEPM as ACM that is so degraded that 'it can be broken or crumbled by hand pressure'.
   • Asbestos fines are free fibres, small bundles of fibres and small fragments of ACM that can pass through a 7mm by 7mm sieve.
3. We note the comparable definition of friable asbestos in the EP Regulations:[79]

friable asbestos means asbestos that, when dry -

(a) may be crumbled, pulverised or reduced to powder by hand pressure; or

(b) as a result of a work process becomes such that it may be crumbled, pulverised or reduced to powder by hand pressure;

1. We also understand that asbestos pieces that are less than the 7mm by 7mm dimensions would not be included in the definition of bonded ACM when soil is being assessed for the presence of contaminates.
2. The NEPM highlights that:

When in good condition, bonded asbestos products do not release asbestos fibres into the air and are considered safe for people who are in contact with them, including when carrying and handling these materials (enHealth 2012).

[Tribunal emphasis]

1. The NEPM highlights that from a human health risk perspective, fibrous asbestos and asbestos fibres are considered equivalent to friable asbestos, noting that the definition of the latter in Safe Work Australia documentation as:

... material that is in a powder form or that can be crumbled, pulverised or reduced to a powder by hand pressure when dry, and contains asbestos.

1. Again we note the commonality of this definition by Safe Work Australia with that in the EP Regulations. In the latter, friable asbestos is that which crumbles or otherwise can release fibres under hand pressure.
2. From all of this we conclude that bonded ACM in a non-friable condition presents a negligible risk of harm so long as it remains in that condition. Further, for the avoidance of doubt, friable asbestos or pieces of ACM smaller than 7mm by 7mm in dimensions are the primary and principal sources of human health risks. This is because of the potential to release asbestos fibres into the air and expose people to inhalation of those fibres.

1. The WADOH Guidelines (as relied on in the NEPM) draws on international research that indicated that:[80]

... a soil level of 0.01% for friable asbestos should keep asbestos fibre levels in air below 0.001 fibres per millilitre (f/ml) and probably to around 0.0001 f/ml. This corresponds to a lifetime risk of 10-6 to 10-5 in the exposed population from airborne asbestos fibres using WHO (2005) risk figures for mesothelioma...

The WADOH Guidelines adopt the following Health Screening Levels ('HSL') for asbestos:[81]

1. A number of principles and assumptions apply to these HSLs as set out in the WADOH Guidelines.
2. Of particular note are that:
   1. the HSLs apply to all mineral forms of asbestos;
   2. the release of fibres is more likely from friable asbestos that bonded ACM;
   3. bonded ACM is assumed to degrade over long time periods; and
   4. as there is no evidence for a threshold health level for mesothelioma, the risk is to be kept as low as possible.
3. The WADOH Guidelines include a more detailed explanation for the risk screening criteria that have been adopted in NEPM:

The basis for the screening criteria is two-fold.

1. For all asbestos types, the concentration of 100 mg/kg or 0.01% w/w asbestos in soil is expected to keep outdoor airborne fibre levels below 0.001 f/mL and probably around 0.0001 f/mL.

DOH applied this criterion to the less hazardous bonded ACM, depending on on-site use. These mirror the Assessment of Contaminated Sites (ASC) National Environmental Protection Measure (NEPM) (1999) site uses and associated default exposure ratios.

A lower criterion has been applied to both FA and AF as activity and disturbance may result in the suspension of smaller particles from FA and AF in air. The 100mg/kg was divided by a factor of 10 to account for greater dryness and dust-generating potential of local soils and the fact that current exposure standards (external site) treat the mineralogical forms of asbestos as equivalent.

Note: For low concentration exposures (cumulative exposure of less than 0.01 f/mL.yr), the risk of mesothelioma, the most applicable health outcome from crocidolite fibre (the most potent fibre), is low. There are generally accepted quantitative estimates of disease, extrapolated from dose-response relationships established for higher occupational exposures. These are those presented by WHO (2000) and Hodgson and Darnton (2000). The estimates suggest that asbestos exposure below 0.0002 f/mL.yr is likely to be less than the lifetime risk of 1 x 10-5 and possibly less than 1 x 10-6 (WHO 2000 and Hodgson and Darnton, 2000). These are lifetime cancer risks estimates that are broadly acceptable for environmental contaminant hazards.

1. In adopting the approach of the WADOH Guidelines, the NEPM notes that:
   1. the Netherlands applies soil investigation levels ('ILs') of 0.01% w/w for fibrous (friable) asbestos and 0.1% w/w for bonded ACM based on the same published research referenced in the WADOH; and
   2. the WADOH Guidelines apply a safety factor of 10 to these ILs because of the propensity for drier soils in WA and greater likelihood for dust generation and the practice of assuming all forms of asbestos present the same human health risk.
2. The NEPM sets out the HSLs in the following manner with an explanation of the residential criteria as follows:[82]

1. Footnote 5 of the Health Screening Levels table of the NEPM is of particular interest because of the evidence of Dr Bell and his concerns about the sampling and analysis of soil samples under the ARC proposal.
2. We also observe that the NEPM applies the same form of criteria that was the subject of much evidence and examination in this proceeding about the absence of visible asbestos. In this guidance, it is the absence of all forms of asbestos from the surface of soil that is required.
3. We are conscience of the fact that HSLs are to be treated with caution. The NEPM outlines that in the ordinary course of contaminated site assessments and development of remediation strategies, generally the screening criteria and HSLs form the basis for a Tier 1 assessment, i.e.:[83]

A Tier 1 assessment is a risk-based analysis comparing site data with generic investigation and screening levels for various land uses to determine the need for further assessment or development of an appropriate management strategy.

1. The NEPM goes on to discuss how investigation levels and HSLs should ordinarily not be used as clean up or remediation target levels or emission targets. Their main purpose is to assess whether the site conditions warrant further site-specific risk-based approach management options. This is for two reasons:
   1. these levels may be too conservative and warrant unnecessary and costly remediation and disturbance of site conditions; and
   2. they are not designed for use as emissions targets and cannot be used to justify or support waste discharges.[84]
2. With these cautions in mind, it is apparent to us that the guidance then provided for HSLs for asbestos is somewhat of a special case, though ultimately the use of the above HSLs occurs in the same overall context for the assessment and management of contaminated sites set out under the NEPM. What we mean by this is that the NEPM acknowledges the difficulty with gravimetric analytical techniques for assessing the presence of AF in soil, but nevertheless sets out guidance on this subject as well as the process for assessment of asbestos contamination in soil, assessment against the Tier 1 HSL's and procedures for management when HSLs are exceeded.[85]
3. It is not our intention to set out all of the details of this approach in these reasons. It is sufficient to note that what is set out is a combination of applying well understood methods for:
   1. preliminary site investigations ('PSI'), inclusive of site histories, site inspections and preliminary sampling, to determine the potential for asbestos to be present and whether it is bonded ACM or there is a potential for friable asbestos to be present;
   2. where the weight of evidence points to the presence of bonded ACM being present on soil surfaces and this is confirmed by site inspections, removal of visible bonded ACM with follow up validation may be sufficient;
   3. gravimetric testing for friable asbestos (or asbestos fibres) is only recommended if the PSI and weight of evidence approach indicates this material is likely to have a significant presence, taken to be more than 10% of the total asbestos present on the site;
   4. sets out a list of important considerations which include:
      1. observations and calculation for the presence of surface asbestos should be undertaken on a systematic (grid) approach;
      2. different soil strata or units impacted by asbestos should be assessed and managed separately; and
      3. a weight of evidence approach should be adopted for determining the extent of impact and assessing responses to exceedances of HSL by individual sample results.
4. In respect to outcomes from testing and remedial actions, the NEPM sets out the following:

... If the Tier 1 screening levels are not exceeded, and an appropriate level of investigation has been carried out, then no contamination management actions are required except for ensuring the surface soil is free of visual asbestos. This may be achieved by multidirectional raking or tilling and hand-picking of exposed fragments of bonded ACM. Final visual inspection of the assessment and remediated areas should not detect any visible asbestos.

...

If exceedences [sic] of the Tier 1 screening levels are present, either a Tier 2 analysis should be carried out or a conservative management response implemented. The Tier 2 assessment will comprise a qualitative assessment of risk in many cases and should take into account the nature and extent of contamination; the site-specific exposure scenario(s) including the intensity of relevant site activities; the impact of any mitigating factors such as soil type and soil moisture conditions (and likely variation); the proposed remediation and management measures; and the final use of the site.

Remediation options which minimise soil disturbance and therefore public risk are preferred. Management of asbestos in situ is encouraged, which may include covering the contamination with uncontaminated fill or other protective or warning layers. It should be noted that the common alternative of complete removal of asbestos from a site often involves extensive and costly investigative and validation sampling and may not be effective or necessary for the protection of human health.

1. We recognise that the NEPM approach has been developed for on-site assessments and remedial action, a matter that has been put to us by the Authority. However we find that there are elements within this approach to the management of asbestos in soil that support the positions of both the Authority and ARC. For present purposes, we observe that the overall approach for the assessment and management of asbestos in soils set out in this guidance reflects that outlined in Dr Bell's evidence.

**PART 3: INFORMATION ABOUT ARC'S PROPOSAL AND PROCEEDING

1. This section is organised under the following headings:
   1. The operation of current landfill activities on the Premises;
   2. Overview of key aspects of ARC's proposal;
   3. Further detail about the proposal;
      1. Development of processing compound;
      2. Operations for the receipt, processing and management of soil containing asbestos; and
   4. How the proposal fits with present operations.

The operation of current landfill activities on the Premises

1. ARC's landfill operates pursuant to operating licence OL000011758 issued by the Authority ('Operating Licence').[86]
2. The Operating Licence is issued under section 74 'Operating licences' of the Act. The Operating Licence is required under section 45 of the EP Act because operation of the landfill at the premises is a prescribed activity under the EP Regulations.[87] Two prescribed activities are permitted:
   1. A05a (Landfills - excluding municipal landfills servicing ... novel and untested proposal is one that squarely attracts the regulatory oversight of the [Authority] under the permissions regime of the EP Act; not one that should be exempted from it. That outcome is not only inconsistent with the purpose of the EP Act, but antithetical to it.

[original emphasis]

An exemption is not a permission: as the word indicates, it excludes an activity and removes it from the permissions regime.

[original emphasis]

1. To support its position about the narrow and limited use of exemptions, the Authority refers to the repeal of the Environment Protection Act 1970 (Vic) and its replacement with the current Act that occurred following the recommendations of the Ministerial Advisory Committee ('MAC') in its independent inquiry into the Authority. The Authority submits that one of the matters addressed in the independent enquiry was the Authority's:[116]

... appropriate role in relation to public health issues, including community concerns about exposure to asbestos.

1. The Authority refers to various recommendations by the MAC, including expanding the cohort of activities requiring a works approval or a licence:[117]

... to cover all activities with significant impacts (or potential impacts) on human health and the environment, regardless of the type of hazard posed.

1. According to the Authority, one of the key reforms of the EP Act was to provide:[118]

... a modernised and streamlined framework for EPA granting permissions to engage in certain activities. This will provide EPA with greater flexibility to apply proportionate, cost-effective regulatory controls to high-risk activities through licensing, registrations and permits.

1. The Authority places significant weight on regulation 24(a) that directs attention to the purposes of the EP Act, submitting that this 'is determinative of the application'[119] because the exemption sought is contrary to the purposes of the EP Act, in particular the purpose in section 1(h) of the EP Act:

... to establish a permissions scheme that enables the Environment Protection Authority to issue or grant development licences, operating licences, pilot project licences, permits and registrations;

1. The Authority submits that a permission and an exemption are not equal pathways to the same outcome in the Act, relying on the text and context of the EP Act in support of an assertion that:[120]

... the purpose of s 80 is to provide for simple, limited or short-term exceptions for particular activities or operations, for example; activities that are secondary or incidental to an existing permitted activity.

1. The Authority acknowledges that there is no test and no policy document that sets out this approach to exemptions.[121]
2. The Authority submits that this inference arises for various reasons, including:
   1. the general rule in the EP Act is for a person to obtain a permission from the Authority for a prescribed activity. Ordinarily, an exemption assumes a general rule and specifies particular cases that are excluded from the operation of the rule. The Authority submits that '[it] would be a strange result if the exemption power were interpreted as having the same scope and function as the permissions power, so that the general rule is unnecessary or futile';[122]
   2. the EP Act deliberately moved away from the previous approach of applying works approvals and licences to premises, now applying the new permissions framework to activities. Accordingly, the exemption power should not be construed broadly to exempt an activity just because the site is already licensed to accept asbestos;[123]
   3. the Authority has less time to assess an exemption (20 business days) than a development licence application (up to 4 months), while compliance with the GED is not a mandatory consideration in determining whether to grant an exemption, indicating an assumption that GED consideration has already taken place;[124]
   4. the EP Act does not require public consultation regarding an exemption application and the public do not have a legal right to comment, as opposed to the process for a development licence;[125]
   5. the Authority may revoke an exemption without notice, contrary to the process with respect to a development licence;[126]
   6. the Authority may amend an exemption without taking any particular mandatory considerations into account, nor does an amendment need to be accompanied by reasons, compared with amendment of a permission;[127]
   7. an exemption is not subject to any periodic formal review, in contrast to licences;[128]
   8. section 80(7) of the EP Act provides that an exemption has no effect unless the conditions to which it is subject are complied with, 'indicating that an exemption should not be subject to numerous, complex or detailed conditions';[129] and
   9. the power to require a financial assurance (for the cost of remediation and clean up, for instance) is not available as a condition of an exemption, in contrast to a development licence.[130]
3. The Authority provided examples of where it has granted exemptions from the need to obtain a development licence.[131] It contrasted these examples with the circumstances of the proposal, contending that in those examples the works were upgrades and minor changes, with no new risks being introduced.
4. The Authority submits that any conditions that may be imposed upon an exemption pursuant to section 80(4)(a) of the EP Act are not enforceable because there is no expressed power in the EP Act for enforcement.
5. Finally in relation to regulation 24(a), the Authority submits that:

Thus it is not to be supposed that the power in s 80 of the EP Act was enacted with the object of enabling an exemption that entirely negates the default requirement for a permission and thereby to thwart the legislative purpose. The narrower construction of the exemption power is reflected in practice [where the Authority here referred to various examples of where it has granted exemptions] and in policy.

[footnotes omitted]

1. Notwithstanding the foregoing, the Authority is not submitting that it would be unlawful or outside of the jurisdiction of the Tribunal to grant an exemption for the proposal in the circumstances. The Authority submits that ARC's application is asking the Tribunal to 'stretch that power beyond its intended scope'.[132] It is the Authority's position that granting an exemption for the contemplated process would circumvent the normal course of this activity being the subject of a development licence because of the level of risk of harm it poses to human health and the environment.
2. The Authority submits that given there are prescribed criteria for consideration (that is, those criteria contained in regulation 24 of the EP Regulations), the Tribunal cannot take into account other matters in determining whether to grant the exemption.
3. To this end, the Authority submits that whether there is an operational licence on foot, and the extent to which some of the issues raised by ARC and the Tribunal would be addressed in any operational licence or amendment to the existing operational licence, are not relevant considerations.
4. The Authority made submissions about the decision-making process for an exemption and consideration of whether the GED would or could be complied with. In particular, in response to our questions on this point, the Authority submits that the decision-making framework for a licence explicitly requires the decision maker to consider what measures, if any, an applicant may take or propose to comply with the GED.[133] It was submitted that requiring the Authority to consider such matters requires it to make findings about:
   1. what measures a proponent may have taken or propose to take when engaging in the prospect of activity that addresses the GED; and
   2. whether compliance with the GED can be achieved in prospect of the development proceeding in accordance with those proposed measures.
5. The Authority submits however that finding that the GED can or would be satisfactorily addressed is not determinative of a permissions application or in this instance an exemption application.[134] Indeed it is the Authority's position that considering compliance with the GED is not specified under regulation 24 of the EP Regulations and is not determinative of the application. The Authority submits that the starting point is a question of why the exemption should be granted in circumstances where a development licence is the normal course.
6. Further, in respect to submissions ARC made about compliance with the GED, the Authority submits that we cannot make a prospective finding that the application would 'satisfy the GED', appearing to take issue with the nature of the phrasing of this submission by ARC.
7. With respect to the objective of the Authority, the Authority maintains that there remains a risk that the 'fill material' produced through ARC's process will contain asbestos. This outcome it says would be contrary to the first objective of the Authority, being the protection of human health and the environment.
8. The Authority submits that the risk that the 'fill material' produced through this process will contain asbestos is contrary to the objects in section 111 of the EP Act.
9. The Authority submits that of the principles of environment protection, the precautionary principle (section 20 of the EP Act), the principle of proportionality (section 14 of the EP Act) and the principle of accountability (section 22 of the EP Act) weigh in favour of refusing the exemption.
10. The Authority submits that ultimately it is the public that is at risk of adverse impacts to their health and so the public should be engaged and given the opportunity to comment on the proposal through the development licence application assessment process.

1. ARC submits that the Authority's position that the proposal requires a development licence and not an exemption is inconsistent with the Authority's previous advice to ARC. It submits that the first time that the Authority advised that it required a development licence was in response to ARC's statement of contentions dated 30 January 2024.[135] That is, prior to this, in communications with the Authority, ARC was not informed that seeking an exemption of the proposal would be a wrong or incorrect pathway.
2. In this respect, ARC submits that the Authority's earlier stance:[136]

... reflects the low risk profile of the ARC proposal, especially in comparison to other soil remediation and processing operations.

1. ARC queries whether this apparent change of approach by the Authority is due to a recent change to the Authority's website, noting that a statement on the website cannot take precedence over documents which have statutory force. In any event, ARC submits that the proposal addresses the matters set out on the Authority's webpage[137] and that the Authority's approach is a 'procedural point based on form, and not substance'.[138]
2. ARC submits that the processing of soil containing asbestos occurs already, on development sites across the state:[139]
   1. The processing of soil containing asbestos only, on development sites, using a screening device and with the hand picking used to remove ACM, to produce Fill Material for use off site, or on-site, including for re-use on sites used for sensitive purposes, is common industry practice throughout Victoria.

1. The processing of soil containing asbestos only, on development sites to produce Fill Material:

(a) Occurs throughout Victoria.

(b) Is, as ARC understands it, unregulated by the EPA.

(c) Is undertaken on individual development sites, which may be close to existing sensitive uses.

(d) Is not undertaken in an environment such as a landfill, which is regulated by the EPA, and operated by a landfill operator licensed to receive asbestos waste, and with expertise and experience in managing asbestos.

(e) Applying the Fill Determination, the Occupational Health and Safety Regulations 2021 ("OHS Regulations"), EPA Publication 1828.211 ("EPA Publication 1828.2") and EPA Publication 1968.1 ("EPA Publication 1968.1") would only have to remove visible ACM as far as practicable and would not be required to undertake any testing, unless there was a risk of FA/AF in the soil, based on the guidance set out in the relevant publications.

(f) Can involve the processing of soil containing AF/FA to produce Fill Material.

(g) Can consign Fill Material for use on sites used for sensitive purposes.

(h) Do not have anything like the rigorous controls, screening and testing processes in place as proposed by ARC

1. Given the above, the ARC proposal is low risk in comparison to current industry practice. It also implements risk management measures and techniques which are significantly more robust and comprehensive than the measures and techniques employed on asbestos processing activities on development sites throughout Victoria. Accordingly, and in the context of systemic issues associated with the disposal of asbestos in Victoria, and ARC working diligently to clean-up the site of waste illegally deposited by the previous operator of the site, the EPA should support the ARC proposal, and not vigorously oppose it.

1. ARC submits that just because the proposal is novel, this does not necessarily make it unacceptable.
2. ARC asserts that there is nothing in the EP Act or the EP Regulations to confine the exemption to those types of circumstances that the Authority contends should be present in order for an exemption to be granted.
3. ARC submits that there is nothing in the EP Act that supports the need for there to be special circumstances of the nature called for by the Authority in order for the granting of an exemption under section 80 of the EP Act. However, even if there was such a need, ARC submits that there are special circumstances present in this case, including that the proposal is secondary to the activity that is already occurring on the premises, this being the disposal of asbestos to landfill. That is, asbestos is already present at the premises and the proposal is just seeking to deal with the disposal of that asbestos in a different way submitting: '[I]t is part of the landfilling operations. It is a natural partner to it'.[140]
4. ARC submits that if the proposal meets the GED, which ARC says that it does, then there would need to be a strong counterfactual relevant matter to overcome that and result in a refusal of the exemption. In saying this, ARC could not point to anything in the EP Act or the EP Regulations to support this interpretation of the exemption provision.
5. With respect to the objective of the Authority, ARC relies on the expert evidence in support of the proposal meeting the objective of the Authority set out at section 357 of the EP Act to protect human health and the environment.
6. ARC did not specifically address the objectives of section 111 of the EP Act. However, ARC relies on its submissions about the risks raised by the Authority about the processed soil material containing asbestos and the evidence of all the experts, including Dr Bell, that sufficient checks and balances in the process will reduce the likelihood of such remnant contamination from occurring.

The nature of an exemption within the EP Act statutory framework for permissions

1. The key, albeit not only, reason for the Authority's refusal of the exemption application is the Authority's view that granting an exemption for the proposal would undermine the purposes of the EP Act and the regulatory scheme for the management of activities that pose a risk of harm that is established under the EP Act.
2. The purposes of the EP Act are numerous. Relevantly, they include setting out the legislative framework for the protection of human health and the environment from pollution and waste, providing for the GED to minimise the risks of harm from pollution and waste, establishing a permissions scheme, and, providing a framework for the management of waste.
3. Within the chapter of the EP Act that addresses permissions are provisions enabling the Authority to grant an exemption from the need to obtain a development licence and / or an operating licence that would normally be required for a prescribed activity.
4. The Authority relies on the ordinary meaning of the term 'exemption'. We accept that given the term 'exemption' is not defined, the ordinary meaning of the term is to be used.
5. The ordinary meaning of 'exemption' is:[141]

noun 1. the act of exempting.

2. the state of being exempted; immunity.

1. The ordinary meaning of 'exempt' is:[142]

verb (t) 1. to free from an obligation or liability to which others are subject; release: to exempt someone from military service; to exempt a student from an examination.

-adjective 2. released from, or not subject to, an obligation, liability, etc.: exempt from taxes.

-noun 3. someone who is exempt from, or not subject to, an obligation, duty, etc.

1. As can be seen, on its ordinary meaning an 'exemption' is akin to granting a person or a situation immunity from regulation or from the rules that would otherwise apply. To 'exempt' a person or a situation is to release that person or that situation from an obligation or duty that would otherwise apply, with the effect that they are not subject to that duty, obligation or liability. In a sense, an exemption or an immunity from obligation, duty or liability is one half of a binary system: you are either exempt from the obligation, duty or liability or you are bound by it. That is, if you are not exempt, you are required to comply with or meet the duty, obligation or liability, whereas if you are exempt you are not required to comply with or meet the duty, obligation or liability; there is no middle-ground or half-way house.
2. The examples given in the definitions extracted above provide everyday instances of where an exemption might be given. Those examples are of instances where a person is either required to comply with or meet the duty, obligation or liability, or they are exempt and they are not.
3. In the present situation, ARC has applied for an exemption from the application of section 44 of the EP Act in respect of a prescribed development activity. Consistent with the ordinary meaning of 'exemption' set out above, the exemption is only from an obligation to obtain a development licence and not any other obligations or duties under the EP Act.
4. In order to apply for an exemption under section 80 of the EP Act, an applicant must provide the Authority with certain information and the Authority (or the Tribunal on review) must take certain matters into account. The Authority (or the Tribunal on review) may decide to grant the exemption or refuse the exemption.
5. Further, and importantly in our view, the EP Act provides for the ability for an exemption to be granted 'subject to any conditions the Authority considers appropriate'[143] and the exemption 'has no effect unless the conditions to which it is subject are complied with'.[144] In this sense, the granting of an exemption is not an action that would, under the ordinary meaning expressed above, release a person from obligations or duties.
6. With respect to what those conditions may be, there is nothing in the EP Act or the EP Regulations that specifies what type of conditions may be imposed on an exemption or what they can address. We accept the Authority's position that the conditions must be relevant to the purposes of EP Act and are not unbounded. To our understanding, these conditions could be 'bespoke' conditions that are crafted specifically to address relevant matters for the conduct of the particular prescribed activity the subject of the exemption.
7. An exemption may be revoked or amended by the Authority using powers under section 80(6) of the EP Act. The EP Act does not require the Authority to give notice or explain why and nor does it provide any statutorily framed circumstances of when the Authority could or should exercise such powers. Further, there are no review rights by the holder of an exemption for such actions being imposed upon it. Consequently, the exemption, and the activities conducted under it, remain within the control and jurisdiction of the Authority.
8. An exemption issued under section 80 of the EP Act is required to be published in the 'Public Register' established and maintained under the EP Act,[145] as is the case with development licences, permits, pilot project licences, operating licences and registrations.[146] The Public Register is available for inspection by the public.[147] That an 'exemption' is included in the same publicly-available record as permissions such as licences give rise to the concept that the exemptions remains a visible form of control or oversight on the relevant prescribed activity.
9. We accept the Authority's submission that whereas a 'permission', which is defined[148] as being a licence, permit or registration, may be suspended[149] or revoked[150] and a breach of a condition of a licence is an indictable offence,[151] none of these forms of actions or controls strictly apply to an exemption. However the Authority can vary, amend or withdraw an exemption and to that extent, there are similar forms of control over an exemption as there are over other licences or other permissions.
10. We accept that the conditions imposed on an exemption under section 80(4)(a) of the EP Act are 'unenforceable' in the strict legal sense that a breach cannot lead to actions by the Authority. However that does not mean an exemption lies outside the regulatory environment. The consequence of non-compliance with any condition of an exemption is that the exemption no longer has any effect.[152] This serves as a self-executing enforcement mechanism. That is to say, if the holder of the exemption wishes to continue to conduct the activity allowed under the exemption, that person must continue to comply with the conditions. If the exemption holder ceases to comply with one or more conditions, they will be in a position where they cannot continue to conduct the activity until they obtain the relevant permission. In this case, this would be a development licence. In the absence of a development licence or an exemption, the person conducting the activity opens themselves up to a variety of offences and penalties under the EP Act if the activity continues without the benefit of the exemption.[153]
11. Accordingly, we find that the legislative context in which the exemption power exists supports the notion that there are tangible potential consequences for non-compliance with the conditions of an exemption. As such, we find that this is not a reason to read down or narrow the exemption power.
12. Rather, given the above, we consider that the combination of:
    1. the potential for conditions to be imposed;
    2. the fact that the Authority can withdraw, amend or vary an exemption; and
    3. the fact that non-compliance with conditions, in effect (if not in actuality) revokes the exemption,

are all important elements to take into account because it is these elements that provide a level of control and require oversight of the exemption by the Authority.

1. The effect is that this makes an exemption a form of authorisation to undertake an activity that remains within the remit of the Authority's control and oversight. Whilst not a permission within the definition of the EP Act, an exemption remains a means of authorising activities and has very similar functions to a permission.
2. The Authority submits that exemptions are only intended to be granted for matters that are 'secondary, incidental or ancillary to an existing permitted activity';[154] 'to provide for simple, limited or short-term exceptions for particular activities or operations.'[155]
3. We find that there is nothing in the text of section 80 or elsewhere in the EP Act or the EP Regulations that specifies that an exemption is only able to be obtained for an activity that is secondary, incidental or ancillary to an existing permitted activity or simple, limited or short-term exceptions for particular activities or operations.
4. It may well be that an activity that is of the manner described by the Authority fulfils the criteria contained in regulation 24 of the EP Regulations, thereby warranting the granting of an exemption. However, if this is the case, this determination will have properly occurred following assessment of the proposed activity against all of those criteria.
5. The Authority gave examples of exemptions that it has granted. We note that these examples do not limit the form or substance of what applications can be made. Rather they demonstrate an underlying analysis that falls within the purposes of the EP Act, key among these are the protection of human health and the environment from pollution and waste and the regulatory frameworks for permissions and management of wastes.
6. In our view such an assessment process is the proper course and should not be influenced by pre-conceived notions or the past practices and considerations of the repealed 1970 legislation.
7. The Authority's position is underpinned by a view that an activity of the nature of the proposal is one that should not be granted an exemption due to it posing an unacceptable risk to the public. We say this having regard to the Authority's submission that given the proposal involves a class A01 prescribed licence activity requiring the highest level of regulatory control, and the proposal is novel and untested, that it 'squarely attracts the regulatory oversight' of the Authority and an exemption would be 'antithetical' to the purpose of the EP Act.[156]
8. However, there is nothing in the EP Act or the EP Regulations that limits the type of prescribed development activity (or prescribed operating activity) that can be granted an exemption.
9. Rather, the very fact that an exemption can be obtained from the need to obtain a development licence (or an operating licence) suggests that even for activities that would normally attract the highest level of regulatory control, there may be instances where, having regard to the relevant assessment criteria, an exemption might be granted. That is, the fact that the proposed activity would otherwise require a development licence cannot reasonably be used as an argument against the granting of an exemption. For this reason, we reject this somewhat circular argument put by the Authority. If we were to accept this position, the exemptions available under section 80 of the EP Act would then only apply to activities that would otherwise not require a development licence (or operating licence, as the case may be). This would make section 80 redundant. Clearly those drafting section 80 intended it have work to do and this has been clearly expressed as granting an exemption after consideration and being satisfied of matters set out in the EP Regulations.
10. Further, in oral submissions the Authority repeatedly referred to ARC, through this process, 'selling treated asbestos contaminated waste to the general public'.[157]
11. Inadvertent or not, this comment discloses a view by the Authority that ARC will be selling treated contaminated waste from the premises, which is not the intention of this proposal. ARC intends to process the material to a point that it is 'fill material' as is defined under the regulatory framework. It is the fill material that will then leave the premises.
12. Whilst the Authority might doubt the ability for the material to be processed to the point that it is 'fill material' (and we address this later in these reasons), it is not the case, and it is unfair to suggest, that ARC intends to sell contaminated waste from the premises.
13. The Authority also points to the lack of public involvement in the exemption process as a reason why the exemption power should be read narrowly.[158] The unusual aspect to this argument is that the Charter specifically provides for public consultation, seemingly in alignment with regulation 24(g) of the EP Regulations. Further, in providing for public consultation, the Charter specifically states:
    • - In determining an exemption, EPA considers whether an applicant has adequately engaged with persons whose interests may be affected by the proposed exemption.
    • - Where there are applications that may benefit from community awareness we consider whether further consultation would be of benefit.
14. In response to the Tribunal's query regarding how the Authority undertakes the above, the Authority agreed that it was possible that the Authority might consider the extent of public consultation that has been undertaken by an applicant and then ask for certain additional things to occur.[159] In this proceeding, the Authority's position is that it is now a matter for the Tribunal whether the extent of public consultation has been sufficient. The Authority says it was not, based largely on the fact that it considers the interests of the public include anyone who may receive the treated soil from ARC.
15. Whilst we address the issue of public consultation later in these reasons, we note at this point that ARC did undertake public consultation and submits that it was not informed that the Authority considered this public consultation to be inadequate until January 2024.[160]
16. The Authority asserts that the public consultation that could occur for an exemption application pursuant to the Charter is no substitute for the public consultation that occurs pursuant to section 52 of the EP Act, being the provision that requires notice of applications for development licences to be published.
17. We accept that there may be differences in the level of public consultation between an application for a licence and an application for an exemption from the need to obtain a licence. We also accept that the public have a right to seek review of a decision to grant a development licence[161] whereas this right is not available in relation to a decision to grant an exemption.
18. However, in circumstances where regulation 24 of the EP Regulations and the Charter specifically deal with the extent of public consultation undertaken for an exemption application, with the Charter specifically envisaging that the Authority might 'consider whether further consultation would be of benefit', we do not accept that a reason to interpret the exemption power narrowly is that the EP Act does not require public consultation.
19. To be clear, notwithstanding the content of the Authority's submissions the Authority does not suggest that the Tribunal lacks the power to grant the exemption in the circumstances; that is, that the Tribunal lacks jurisdiction to grant the exemption. Rather, the Authority submits that the Tribunal is being asked to 'stretch that power beyond its intended scope',[162] in the context of the Authority being of the view that the exemption power is intended for an activity that is secondary, incidental or ancillary to an existing permitted activity or for simple, limited or short-term exceptions for particular activities or operations.
20. When asked by the Tribunal why the Authority contends that the exemption power is intended to be given this narrower interpretation - that is, whether there is any statement by Parliament in support of this approach - the Authority was not able to identify any specific legislative extrinsic materials in support of the Authority's interpretation.[163] Rather, the Authority referred to a comment in the Planning and Environment Victoria looseleaf service[164] made in relation to the exemption power contained in the Environment Protection Act 1970 (Vic) that:[165]

The power of the EPA to exempt occupiers of scheduled premises from the work's [sic] approval system is not intended to be exercised except in the most stringent circumstances.

1. Whilst it may be of general interest to consider the views of the authors of the Planning and Environment Victoria looseleaf service, and we do not question their experience in preparing the service, it is not appropriate practice to interpret legislative provisions in this way, to the extent that this was what the Authority was seeking to do.
2. Further, that comment was made in relation to an exemption power that existed in the former legislation, which is not relevant to the current legislative exemption. Even if we were to consider this commentary, we note that it follows from a detailed examination of the specified and somewhat limited circumstances for when an exemption may have been granted under the previous legislation. No such limitations are expressed in the present EP Act.
3. What we take from this exchange with the Authority is that in forming its views that the exemption should be narrowly construed, the Authority does so having regard to the language used in the legislation and the ordinary meaning of the term 'exemption' and not in reliance upon any Parliamentary documentation.
4. When we consider the language of the legislation and the ordinary meaning of the term 'exemption', we find that there is a disconnect between the ordinary understanding of what an exemption is and the 'exemption' that is contained in section 80 of the EP Act.
5. We say this in light of an exemption in section 80 of the EP Act:
   1. being able to be granted subject to any conditions the Authority (or the Tribunal on review) considers appropriate;
   2. having no effect unless the conditions to which it is subject are complied with;
   3. being potentially subject to public consultation; and
   4. being included in the Public Register that also contains permissions issued by the Authority.
6. The above factors are more commonly applied to permissions (in the broader meaning of this term) rather than exemptions and so have the form of a process that reflects an authorisation or regulation of an activity. This is to be compared to what we have set out earlier that an exemption is ordinarily an immunity from regulation or an immunity from the obligation, duty or liability.
7. Further we note that unless a person undertaking a prescribed development activity has either a form of specified permission or an exemption,[166] that person is open to prosecution for an indictable offence and liable to penalties: see sections 44(1) and 44(3).
8. In light of the foregoing, we find that the exemption that is contained in section 80 of the EP Act is, for all intents and purposes, a form of authorisation for an activity, be it development or operation, notwithstanding that an 'exemption' is not included in the definition of 'permission' in the EP Act. That is, although it is referred to as an exemption, in reality it is another regulatory tool or form of authorisation available under the EP Act to control specified activities, albeit at a lesser level of control.
9. Having regard to all of the above, we do not consider that there is warrant for reading the exemption provision narrowly or for refusing the exemption sought on the basis that the power is being sought to be stretched beyond an intended narrow scope.
10. Rather, we consider that we need to assess the exemption application having regard to all of the assessment criteria contained in regulation 24 of the EP Regulations, with a mind that if those criteria are, on balance, satisfactorily addressed then the exemption may be granted.

1. We have set out the purposes of the EP Act earlier in our reasons. Of key importance are the following purposes:
   1. the legislative framework for the protection of human health and the environment from pollution and waste;
   2. to provide for the GED, relevantly for the purpose of minimising risks of harm from pollution and waste;
   3. establishing a scheme of permissions to manage risks of harm so that they are minimised to the extent practicable;
   4. to provide for a framework to manage wastes; and
   5. to enable the Authority to ensure compliance with the EP Act and require actions to manage the risks of harm.
2. Regulation 24(a) requires us to consider whether the exemption sought would be consistent with the purposes of the EP Act. For the reasons that follow, exempting this proposal from a development licence does not offend these purposes.
3. The Authority submits that the EP Act and the EP Regulations establish a permissions framework based on the level of risk of harm. Licences are required where there is the highest risk of harm from an activity.[167]
4. We find that the text of the EP Act does not explicitly designate such a hierarchy or what activities have the highest risk of harm. However, we accept that a hierarchy of the permissions exists within the scheme based on levels of risk of harm from activities. This can be discerned from the framework under which the permissions operate under the EP Act in conjunction with the EP Regulations. In regard to the latter, this is particularly apparent from the operation of regulation 16 in conjunction with schedule 1 of the EP Regulations, which allocates the permissions needed to various prescribed activities.
5. Perhaps to re-affirm or otherwise avoid doubt about this hierarchy, in its submissions the Authority referred to and relied heavily on its Permissions Scheme Policy[168] to emphasise how the permissions scheme is based on addressing the hierarchy of risks of harm. We have considered this policy document. As a policy document it is a form of guidance, but it is not the law. We agree with the submissions of ARC that the Authority's reliance on the Permissions Scheme Policy to support the Authority's interpretation of the hierarchy under the EP Act perhaps places too much emphasis on the status of this document. We do however observe that the guidance aligns with the hierarchy of the permissions framework and the risks to be addressed as discerned from framework of the EP Act and the EP Regulations. As such, we accept that the Permissions Scheme Policy aligns with the structure of the EP Act and the EP Regulations.
6. It is common ground, and we accept, that ARC's proposal is prescribed activity 'A01' in Schedule 1 of the EP Regulations and that in the ordinary course of applying the permissions framework, a development licence and an operating licence are required. At first instance and in line with the Authority's hierarchy for permissions, this means the A01 activity has a risk of harm that requires the highest statutory level of oversight or management.
7. However, whilst we accept that the permissions hierarchy reflects the hierarchy of risks of harm that various prescribed activities may pose, it is not axiomatic that an activity at this high end of the risk hierarchy cannot be considered for an exemption of one or the other licences. Providing the ability to grant exemptions from such licences in appropriate circumstances is in line with the flexible regulatory regime that the Authority also referred to as a relevant element of the new regulatory framework established by the EP Act.
8. Given this flexibility, we would reject, or at the very least treat with great caution, the position put to us by the Authority that exemptions are intended to be considered or granted in only the most limited of circumstances. Those words do not appear or can be implied from the text of the EP Act.
9. In our view, each application needs to turn on its facts and circumstances as guided by the decision framework set out under the EP Regulations. The difficulty we have experienced with the Authority's approach in this proceeding has been a steadfast and somewhat circular view that if a development licence is required for this activity, then this indicates it falls within the highest level of the hierarchy for regulation under the permissions, and therefore an exemption should not be granted. We do not accept this notion or the application of the scheme in such a narrow, circular fashion for reasons we discuss further, below.
10. That said, we accept that where a prescribed activity requires a licence and an exemption is applied for, there is a need for careful scrutiny about the circumstances of the proposed activity. As we have said above, this careful scrutiny is framed by the EP Regulations.
11. We find that in requiring the purposes of the EP Act to be considered, the decision maker is being invited to consider whether the requested exemption would be consistent with, or at least not offend, the purpose for which the permissions framework and waste management framework have been established. Further, the decision maker is to consider whether the exemption would result in an activity that would result in unacceptable risk of harm, failing to provide protection to human and health and the environment to the level sought by the purposes of the Act, the principles of environmental protection and the GED.
12. To apply those concepts to the present proceeding, we ask:
    1. Is the proposal consistent with the waste management framework established for the management of asbestos waste? This includes a consideration of the risks posed by the asbestos waste and how that waste is to be managed within the existing framework to minimise that risk to the extent practicable;
    2. Regarding the permissions framework, is there the necessary level of regulatory control or overview of the activity to manage the level of risk? Put another way, is the established framework to manage the risks sufficient or is a greater degree of regulation required?
    3. The above questions require an assessment of the risks of harm posed by asbestos waste and by the process proposed by ARC.
13. Applying this approach of the purpose of the EP Act to ARC's application, we make the following findings.
14. We accept that the management of asbestos in soil is an activity that poses a high risk of harm and hence requires a high level of scrutiny, and, potentially, regulatory management through the permissions scheme, noting the designation of the activity as A01 (reportable priority waste management). However, as set out above, we have rejected the Authority's somewhat circular argument that because this activity warrants the highest level of permissions control an exemption cannot be contemplated. The text of section 80 does not support this nor the matters under regulation 24.
15. Rather, this activity may be exempt from the need to obtain a development licence if the specific facts and circumstances of ARC's proposal is found to satisfactorily address the matters set out under regulation 24 of the EP Regulations.
16. The following matters we find to be of note in our assessment of the proposal under regulation 24(a) but also regulation 24(b) and (c):
    1. ARC already holds an operating licence (albeit currently suspended) to accept soil containing asbestos (and packaged asbestos waste) at its premises for the prescribed activity A01. ARC therefore already has experience in and knowledge of the risks posed by the management of soil containing asbestos. We agree with ARC's submissions that this proposal reflects circumstances where in managing this waste, ARC would be able to adopt its current practices to accommodate diversion of the waste to a processing stream to recover soil as fill material, an outcome consistent with the object of section 111 of the EP Act;
    2. ARC already is required to comply with the requirements for classification of reportable priority waste transactions and transport as well as classification of reportable waste in respect to soil containing asbestos in its current operations;
    3. those sourcing or supplying soil containing asbestos to ARC's premises similarly must already comply with the applicable duties and requirements for generating, transacting and transporting soil containing asbestos, whether transporting and transacting this waste to the landfill for disposal or to the proposed treatment and recovery stream;
    4. so on these points, the proposal adopts and fits within the existing statutory framework and its requirements for the management of soil containing asbestos only; and
    5. that said, ARC then proposes additional layers of testing to address the risks of harm from the presence of friable asbestos.
17. We cannot stress highly enough the particularity of these circumstances in our decision. These circumstances have enabled us to conclude that the risks of harm posed by the siting and operation of the process do not present unacceptable risks to the surrounding environment or the health of workers within the other landfill operations or sensitive land uses in the wider area around ARC's boundaries.
18. As to the end stage of this process, which produces what ARC submits will be 'fill material' through ARC's proposed treatment process and verification steps for the absence of asbestos, we have had regard to the evidence that:
    1. the proposed method for treatment of the soil is accepted and adopted industry practice for the removal of visible asbestos;
    2. the Authority's own guidance confirms that if visible asbestos is removed from soil, that soil is no longer considered to be soil containing asbestos. There is no caveat on this classification, such as soil does not contain visible asbestos. It is a clear indication to those with duties under the waste management framework that removal of visible asbestos results in such an outcome;
    3. ARC's proposal to include sampling and analysis of incoming and post-treated soil for the presence of asbestos fibres goes beyond industry practice for the classification of soil suspected or known to contain asbestos. In fact, its gathering of additional data about site conditions and analytical results for the testing of other contamination, coupled with source site inspections (that we will require to always be undertaken) reflects the process for the weight of evidence approach to assessing for asbestos on contaminated land.
    4. In relation to the site inspections, we accept the evidence of Dr Bell that as part of the weight of evidence approach, an inspection of the source site is preferable. In our view the response of the experts also indicates to us that the decision making process of when to undertake an inspection may become too subjective or unclear. Accordingly, we have included a condition in the exemption to amend the ROMP so that the site inspections are always undertaken.
    5. As a waste processing proposal, this goes beyond the necessary level of assessment; an outcome that represents the application of the best available techniques in the assessment and classification of the waste.
    6. ARC's proposal for the dispersal of classified fill material applies the same waste assessment protocols and guidance presented in the Fill Determination that would apply to any site sourcing fill to another, including sites that may have been subject to removal of asbestos from soil. It is clear to us that the framework applies a lower level of supervision over fill material, but nevertheless we do not accept the position of the Authority that the distribution of fill material from ARC's proposal would be unregulated. This in our view misrepresents that framework that is in place.
19. We conclude therefore that subject to some minor amendments, ARC's proposal sits comfortably within and does not offend the waste management framework established as one of the purposes of the EP Act.
20. Nor does it seek to avoid or diminish the framework established to protect human health of the environment from waste. As we have already set out in respect to the location and nature of the physical development for which this exemption is sought, the development is well located on land that already receives and manages the risk of exposure from soil containing asbestos. Subject to conditions that we would consider address residual risks from dust and runoff, we consider that the proposed form of the development poses a negligible risk to those working and living around the proposal.
21. In respect to the process and recovery of fill material, we have concluded from the evidence that the risk of exposing future recipients or users of this material to risks of harm have been demonstrated to be negligible for the reasons we have explained above and elsewhere.
22. Therefore the purposes of the EP Act to establish a framework for the protection of human health and the environment are not offended by accepting that this proposal can be exempted from a development licence.
23. With respect to the permissions scheme, we do not accept that an exemption results in this proposal falling outside the scheme established under the EP Act, noting that we have found that whilst the exemption is not a permission as defined under the EP Act, it is a form of authorisation for an activity that remains under the control of the Authority and does not allow or provide for activities that would fall outside this framework.
24. For all of these above reasons and those that we address below, we find that the granting of an exemption in the particular circumstances of ARC's proposal would not offend the purposes of the EP Act.
25. The Authority and ARC held differing views about the relevance of the proposal meeting ARC's obligations under the GED. ARC submitted that compliance with the GED should be taken into account in considering the 'purposes of the Act' under regulation 24(a) of the EP Regulations.
26. As set out above, first and foremost, we have assessed the proposal against the purposes of the EP Act that are specified in section 1 of the EP Act.
27. However, we acknowledge that there might be other purposes of the EP Act that should be taken into account, noting that section 1 refers to those matters being 'the main purposes'.
28. To this end, section 1(g) specifically refers to a purpose being to provide for the GED.
29. Part 3.2 of the EP Act deals with the GED. We disagree with the Authority's assertion that all that section 1(g) seeks to do is establish the GED and having done this in the EP Act, that is all the purpose in section 1(g) speaks to. We find that the reference to the GED in section 1(g), and the reference in regulation 24 of the EP Regulations to having regard to the purposes of the EP Act, logically requires us to consider the GED in assessing this exemption application.
30. However, even if we are wrong about this, we regard the requirement contained in regulation 24(e) to consider whether granting the proposed exemption may adversely affect human health or the environment will also encompass consideration of the GED.
31. In saying this, we accept that, strictly, the wording used in regulation 24(e) is different to the wording in section 25 of the EP Act in that:
    1. the GED is a duty to minimise risks of harm to human health or the environment so far as reasonably practicable; whereas
    2. regulation 24(e) asks us to consider whether granting the proposed exemption may adversely affect human health or the environment.
32. However, both point to a consideration of the effect of the proposal on human health and the environment.
33. We are mindful that because:
    1. the GED applies to any person who is engaging in an activity that may give rise to risks to human health and the environment; and
    2. ARC will be engaging in an 'activity' for the purposes of the EP Act: it is a prescribed activity and one that involves the possession of wastes;

ARC is required to comply with the GED in undertaking the proposal. To do otherwise would result in an outcome that would be inconsistent with the purposes of the EP Act and this duty.

1. We disagree with ARC that if the Tribunal finds that the GED is met through this exemption application, 'it would require something pretty extraordinary in terms of countervailing relevant matters, to overcome this',[169] that 'it would require a very strong counterfactual relevant matter to overturn that presumption'.[170] We say this because we agree with the broad proposition put by the Authority that all applications for a permission are required to meet the GED and so compliance with the GED is a requirement, rather than something that should create a presumption of approval.
2. With respect to this issue, section 54 of the EP Act sets out the range of conditions that may be included in a permission. This includes:

... the Authority or council may specify that a permission is subject to a condition -

(a) specifying measures the permission holder must take to comply with the general environmental duty when engaging in the permission activity; ...

1. Thus there may be conditions that set out measures to comply with the GED but the imposition of such conditions on a permission is not mandatory. Nor is it stated anywhere in the EP Act that an activity undertaken in compliance with a permission or its conditions will be taken to mean the GED has been complied with.
2. However the ability to impose such conditions seems to us to be inconsistent with or counter to the Authority's submissions that whether compliance with the GED can be assessed prospectively cannot be 'the subject of any conclusive determination' because the Tribunal (or other decision maker) would be 'conducting a speculative exercise'.[171] Perhaps the wording by ARC about 'satisfying the GED' is not well phrased, however we do not accept these submissions to be the correct approach in so far as the Authority's submissions mean the decision cannot be forward looking and consider whether an activity to be licensed can or cannot meet the GED. This is clearly what the legislation invites the decision maker to do, at least in the situation of a development licence application: see section 69(3)(a) of the EP Act.
3. That said, we accept the Authority's submissions that compliance or the potential for compliance with the GED is not determinative of whether a proposed activity is or isn't acceptable, whether under a licence application or an exemption. It is or may be one of several factors to be weighed and considered.
4. In our view, central to the assessment criteria in regulation 24 and our assessment of the exemption application is the concept of risk: what risk is posed by the proposal?
5. We acknowledge that risk will be assessed differently under the exemption provision than if it was assessed for the purposes of a development licence application. In the development licence situation, section 69(4) of the EP Act provides that the Authority must refuse to issue a development licence if the Authority considers that the activity 'poses an unacceptable risk of harm to human health or the environment'.
6. Here, regulation 24 of the EP Regulations requires us to consider whether granting the exemption may adversely affect human health or the environment. The use of the term 'may' and a question of whether because of a proposal, there may be an 'adverse affect' requires the decision maker to consider what risks the proposal presents and whether those risks would or wouldn't be acceptably managed.
7. However, even though the legislation does not explicitly prohibit the granting of an exemption where the activity poses an unacceptable risk of harm to human health or the environment, we would think that an exemption granted in circumstances where it was found by the decision-maker that the activity posed an unacceptable risk of harm to human health and the environment would be counter to the principles of environmental protection, specifically those under sections 15, 16, 18, 20, 21 and 23 of the EP Act.
8. In terms of the question before us when we consider the GED, whether or not the proposal will minimise risks of harm to human health or the environment as far as reasonably practicable is a matter that we assess having regard to the evidence called by ARC and the Authority. We address this further below.

1. The Authority submits that granting an exemption would be contrary to the objectives of the Authority for two reasons that address section 357 of the EP Act, which sets out that:

(1) The objective of the Authority is to protect human health and the environment by reducing the harmful effects of pollution and waste.

(2) The Authority must exercise its powers and perform its duties and functions under this Act or any other Act for the purposes of achieving the objective set out in subsection (1) to the extent that it is practicable to do so having regard to the nature of the power being exercised or the duty or function being performed.

1. In relation to section 357(1) of the EP Act, the Authority submits that protecting human health and the environment is to be accomplished by reducing the harmful effects of pollution and waste.
2. It follows from our conclusions about the risk posed by ARC's proposal to human health and the environment (see below) that we are not persuaded by the Authority that this proposal offends or is contrary to this objective.
3. Indeed from an evidence based approach and from a fulsome consideration of the waste management framework, we have concluded that ARC's proposal addresses the risks of these effects and minimises them to the extent practicable. Perhaps more pointedly, in line with the framework for waste management established under the EP Act and the EP Regulations, in concert with the Waste Disposal Category, the process outlined by ARC's ROMP would manage soil containing asbestos wastes in a manner that is consistent with this framework.
4. The second of the aforementioned objectives asks, in essence, whether the Authority (and now the Tribunal) is exercising powers and performing duties and functions in relation to waste management to the extent practicable to do so to reduce the harmful effects of waste.
5. In relation to this objective, we conclude that granting an exemption that is subject to conditions requiring the development and processing of waste to be consistent with the ROMP is an appropriate and acceptable outcome for the Authority in performing its regulation of waste management in Victoria.
6. We say this not only because we are satisfied that the risks of harm are minimised to the extent practicable, but the risks of harm are so low as to be negligible while at the same time achieving the objectives for waste at section 111 of the EP Act to promote resource recovery while minimising the impact on human health and the environment.
7. This is for reasons that follow.

1. As extracted earlier, the objects of Chapter 6 -Waste are in section 111 of the EP Act, as follows:

(a) to minimise litter and waste disposal by encouraging the management of waste in accordance with the waste management hierarchy; and

(b) to promote waste reduction, resource recovery and resource efficiency; and

(c) to minimise the impact on human health and the environment from waste generation and waste disposal.

[Tribunal emphasis]

1. There are three arms to the objective for waste management. Sections 111(1)(a) and 111(1)(b) of the EP Act work in concert to reduce waste disposal and promote resource recovery. The data referred to by ARC highlights that asbestos in soil is a legacy issue and there is little to be done in respect to reducing the production of this waste. Rather, in recognising that waste asbestos is present in soil, the focus is rightly on minimising the volume of this waste and so advancing the recovery of the soil component of the waste for its re-use as fill material or similar use as it would have been used for, if not for the presence of the asbestos.
2. These are outcomes consistent with the waste hierarchy and the objective of Chapter 6.
3. The Authority's focus is, however, on the last of these objectives, which relates to achieving these outcomes while minimising the impact on human health and the environment from the waste generation and from the waste disposal.
4. It follows from what we conclude about the process described under the ROMP and the evidence of the experts that ARC's proposal contains sufficient checks and balances to reduce the likelihood of contamination carrying over into the material to be disposed of as fill material.
5. It is not only the ROMP that persuades us that the risk has been addressed. Rather, it is the fact that the procedure to follow the Fill Determination reflects the framework the Authority has established and is relied upon by those that conduct onsite remediation of soil containing asbestos only. In reality, if that risk is deemed acceptable by the Authority, we are not persuaded that the risk posed by ARC's proposal is any greater. It is, in fact, the expert evidence before us that by including the additional testing of the soil material on receipt and following remediation, there is an additional layer of testing that goes beyond present day practice.
6. Further, we think it fair to recognise that the waste being generated arises from the need to manage contaminated land so as to make good its condition to minimise the risk of harm. This is not disputed as a meritorious outcome and is consistent with the duty to manage contaminated land.
7. The Authority's position, however, is that practice of recovering and treating soil contaminated with asbestos on the source site and that source site then retains this treated soil for use as fill material is to be preferred over ARC's proposal. While on-site retention may occur at many remediated sites, given the expert evidence before us, it remains the case that the Authority's position fails to acknowledge that the same soil material after being treated on site could also be transported to other locations for the same use in full compliance with the Fill Determination.
8. We agree with ARC that its proposal, in fact, provides the Authority with a greater degree of control over this outcome and minimises the risk of impacts. This is because while the development of this proposal may be granted an exemption, the future operation would be subject to a licence or the permission regime which would give the Authority greater oversight and control of this outcome. This is to be compared with the lesser degree of regulatory control over the movement of onsite remediated soils.
9. For the above reasons we find that the proposal satisfactorily balances the objective of waste set out under section 111 of the EP Act.

1. We have earlier set out the 11 principles of environment protection in sections 13 to 23 of the EP Act. Though we note the duty to take all into account 'the principles of environment protection', we also identify that 'taking into account' these principles does not mean all of them have equal bearing or indeed direct relevance to the application before us. The facts and circumstances here are such that the principle of conservation has limited if any application in this application. Notwithstanding the Authority noting waterways passing near the premises, no substantive concerns about impact on biodiversity or ecology were pressed. In any event, we are satisfied that practical means are available to mitigate concerns raised about air and stormwater emissions.
2. Our assessment of the remaining principles of environment protection follows.
3. The principles that stand out in this proceeding are:
   1. The waste management hierarchy.
   2. Proportionality.
   3. The primacy of prevention.
   4. Evidence-based decision making.
4. In response to these principles, what follows from our assessment of ARC's proposal is:
   1. In respect to the waste management hierarchy, ARC's proposal seeks to manage legacy issues of impacted soils, recovering such soil to reuse while containing the asbestos for its disposal. This aligns with this principle far more strongly than that of using landfill airspace to dispose of both the soil and the asbestos contained within it. As a legacy issue, avoidance of the waste cannot be achieved. However, the recycling and reuse of soil recovered from contaminated land sits higher in the waste hierarchy, and notably above containment and waste disposal. That said this does not of itself mean an exemption is appropriate, rather it supports the nature of the process being proposed and its outcomes.
   2. Simply put, the proportionality principle seeks actions or decisions that are proportional to the risk of harm. The Authority's focus on reasons to not grant an exemption are focussed on what it asserts is a high risk of harm and hence the need for the highest level of oversight through a development licence process. Our assessment of the risks, set out later in these reasons, identifies that ARC's proposal in fact sits comfortably within and under existing waste and contaminated land management frameworks. Under these frameworks, soil containing asbestos is already managed so as to minimise the risk of harm. ARC's proposal applies and adopts these same management frameworks. The substantive difference, as the Authority identifies, is that the soil containing asbestos is transported from the source site to the premises for treatment. Even then, the proposed sourcing, transport and on-premises treatment apply the same management frameworks for waste and contaminated soil. The degree of control and authority to proceed with the development can be seen to fall squarely within a well established framework to manage potential risks of harm. It therefore does not warrant the same level of control over the development process, as opposed to the operation of the facility where the substantive risks apprehended by the Authority and identified in the expert evidence arise. When viewed this way, the principle of proportionality supports the grant of an exemption, particularly in light of our findings that the exemption is a form of authorisation to proceed that retains a suitable level of control over the development.
   3. Another of the Authority's apprehensions about this proposal is that the fill material at the end of the process would contain asbestos. So delivered to off-site land, this would then result in contamination of that land. This brings to the fore the principle of prevention. We acknowledge that this is a key concern of the Authority, but we are persuaded by the expert evidence that the process, as outlined in the ROMP, presents an acceptably low probability of remedial action being required for soil that has been treated, tested and identified as meeting fill criteria. Put another way, the evidence of the experts leads us to conclude that there would not be an unacceptable probability of asbestos being present in the soil post treatment that would warrant remedial action or mitigation measures. We are therefore satisfied that this principle has been satisfactorily addressed.
   4. It follows from above that our decision rests to a substantive degree on the evidence of the experts, including Dr Bell, who was called by the Authority. Collectively these experts have reviewed the ROMP, with all identifying to varying degrees, further refinement, which in this application, ARC has adopted. We rely on the evidence of all the experts about what is the risk of harm from asbestos and its presence in the environment, how that risk can be managed and the means to minimise risks from this proposal to the extent not only practicable but also to a level that is acceptable and address the public's interests to avoid future exposure from abated soil / fill. While we acknowledge the concerns of the Authority, we find the evidence supports a view that the degree of the risk of harm is such that a lesser level of authorisation is sufficient to address and manage these risks rather than a full process under a development licence application. In our view this principle for evidence based decision making supports the grant of an exemption in the circumstances of this application.
5. In respect to the other remaining principles for environment protection, we make the following findings:
   1. In respect to the principle of shared responsibility we do not see that granting an exemption to this proposal from the need for a development licence offends this principle. The risks are well defined, understood and manageable by practical means well within the existing waste and contaminated land management frameworks. ARC's responsibilities under this proposal are clearly defined and understood. Equally, we conclude that in finding the risks to be well managed, the decision to grant the exemption does not offend this principle, as the form of authorisation still enables the Authority to oversee and maintain control over the proposed operations.
   2. In respect to the principle that the polluter pays, we are dealing with a third party service to those who may be the source of the waste. As such the principle has limited application. However we note that in providing such a service it aligns with other principles, including an economic means of abating and containing asbestos while addressing the hierarchy of waste management and section 111 objectives.
   3. The uncertainties about the potential presence of AF or FA in the source material or treated soil are raised by the Authority as reason for not issuing an exemption. This engages the precautionary principle. In its pursuit of this position it would appear that the Authority was expressing a view that the proposal was ultimately, an unacceptable risk of harm even for a development licence. We do not accept this position. The expert evidence is that the approach set out in the ROMP adopts industry practices that authorities already accept as being sufficient to address these risks. Added to this is that ARC's proposal includes additional sampling and testing of soils for AF that goes beyond adopted practice. This approach is consistent with a risk based and adaptive approach to managing the potential threats of harm apprehended by the Authority. In our view the ROMP presents measures that address the uncertainties raised by the Authority and therefore responds adequately to the precautionary principle.
   4. The principle of equity seeks through three provisions to recognise that all people are entitled to a safe and healthy living environment without being disproportionately affected by harm or risks of harm with the present generation ensuring 'the state of the environment is maintained or enhanced for the benefit of future generations'. The substance of the Authority's apprehensions about system failures and treated material that is distributed as fill still containing asbestos goes the heart of this principle of the public being impacted by contaminated soil. For reasons we have set out, we conclude that the proposal does not present an unacceptable risk of such harm. Accordingly this principle is satisfied.
   5. The Authority pressed the need for wider consultation as a reason for ARC's proposal to follow a development licence application process. It refers to the principle of accountability to support its view that the exemption process being unsatisfactory. The principle of accountability addresses the engagement of the public by various means and for various reasons. For reasons we address about the response of ARC to the Charter and is consultation process, we are satisfied that this principle has been satisfactorily responded to under ARC's application to the extent that community members ought be involved in exemption application. We note that in any event, the interests of the public, in terms of risk of harm have been adequately advanced by the Authority.
6. The first principle of environment protection calls for environmental, social and economic considerations to be taken into account. In its application in this proceeding, it essentially calls for integrated decision making. The economic considerations does not necessarily mean ARC's financial situation as advanced by ARC and Mr Radiotis' evidence. Nonetheless, the information about asbestos management in Victoria and the opportunity for a premise to assist in future management of this material is clearly of economic benefit to Victoria. Balanced with this must be the risk of managing this material. Our findings about the risk lead us to conclude that the risks are manageable under this proposal and so in having a benefit to Victoria's economy, would be a positive outcome if it were to proceed. Again however this does not lead us to conclude that an exemption ought be granted, but does support in principle a proposal such as this being approved.

ASSESSMENT: THE RISK TO HUMAN HEALTH AND THE ENVIRONMENT

1. The criteria / prescribed matters that deal with risk to human health and the environment posed by granting the exemption are set out in regulation 24 (e) and (f) of the EP Regulations.
2. This section deals with the following:

1. The parties' submissions. 2. Whether granting the proposed exemption may adversely affect - 1. human health or the environment; 2. the interests of any person other than the applicant; or 3. any environmental values identified in any relevant environment reference standard.

1. The best available techniques or technologies for engaging in the prescribed activity.
2. In summary, our findings are:
   1. that subject to minor amendments, sufficient processes are set out in the ROMP to minimise the risk of soil containing fibrous asbestos being accepted for treatment through ARC's proposed process. Rather, what will be accepted for treating is soil containing asbestos only;
   2. the management of asbestos on sites and the identification and notification of prescribed notified contaminants including fibrous asbestos is already managed under the EP Act, EP Regulations, OHS Act and OHS Regulations;
   3. the transport of soil containing asbestos only is already managed under the EP Act, EP Regulations and other documents;
   4. the ROMP satisfactorily identifies the risks of harm and how these can be minimised to the extent practicable and, relevantly to be acceptably low; and
   5. the dispatch of treated fill under the ROMP would be consistent with and meet the requirement of the Fill Determination.

1. The Authority submits that the threshold for consideration required by this criterion is more conservative than the question of whether risks have been minimised so far as reasonably practicable.
2. The Authority reviewed ARC's proposal in terms of its beginning, middle and end, where:
   1. the beginning refers to where the soil containing asbestos only is sourced from, and what are the potential contaminants present on those sites;
   2. the middle refers to the activity that is occurring on the premises in the processing compound; and
   3. the end refers to where the fill material goes initially and then possibly after that.
3. With respect to what occurs on the premises, the Authority is concerned about the risk of raised dust and hence airborne fibres from stockpiled soils. It pressed that the stockpile bays should be roofed.
4. The Authority is concerned that there will be no control over where the fill material may end up, notwithstanding that the intention is for the fill material to only be provided to non-sensitive sites. That is, there is nothing to prevent the recipient of the fill material from on-selling it to another site that might be a sensitive site: the process is unrestricted and uncontrolled because there is no way to control where the fill material may go after it goes to a non-sensitive site.
5. This is an issue because the Authority does not accept ARC's proposed method for meeting NEPM to 0.001% w/w, given there is not a NATA accredited method for testing to that level.

1. The Authority relied on the expert evidence of Dr Bell.
2. In respect of matters that may arise under section 44(1)(a) of the EP Act (the physical development), Dr Bell did not take issue with the onsite aspects of the development.
3. Dr Bell's evidence was that the processing facility could be enclosed in order to reduce the risk of airborne generated fibres. However it was also his evidence that the outdoor setting of the proposal within the landfill site is acceptable and the creation of an enclosure would involve diminishing returns in terms of the benefit in reducing risks of harm compared with the additional effort, resources and costs associated with such an enclosure.
4. In proportional terms we understand this evidence to be that given the site controls proposed to minimise the risk of airborne asbestos being generated, the cost of enclosing the processing would not be proportional to the additional reduction in risk.
5. The experts agree that the plant and equipment to be used in the processing of the soil containing asbestos only is not sophisticated or complex and is operated at many on-site remediation projects, as are measures to control dust and runoff.
6. It was also the evidence of Dr Bell that subject to these controls, buffer distances and other site management arrangements for the landfill, the controlled access to the premises all combine to prevent inadvertent exposure of people and surrounding environments to airborne asbestos fibres if such a release were to occur.
7. It was Dr Bell's evidence that there is a disconnect between the Fill Determination, the EP Regulations for classifying industrial waste and the management of ARC's post treatment soils.
8. Dr Bell's evidence about meeting the Fill Determination is that because regulation 62(1)(b) requires that soil not contain asbestos instead of referring to visible asbestos, then this requires a pragmatic and precautionary approach. He says that for soil material sourced from a contaminated site, such an approach will require minimising risks to the extent practicable to draw a conclusion that the risks are low and acceptable by:
   1. removal of all visible asbestos;
   2. use confirmatory testing based on NATA accredited testing to 0.01 % w/w and non-NATA reporting to 0.001% w/w; and
   3. multiple lines of evidence (i.e. site history, site inspections and conceptual site model for contamination) to be satisfied that AF or FA were not present or had a low probability of being present on the source site.
9. It was Dr Bell's evidence that in sourcing soils from multiple sites the above steps could not or would not be undertaken or accounted for in the management of ARC's treatment process. It was his belief that the specifications of clause 5(b) of the Fill Determination is directed to hard or inert wastes, as described under that clause and that ARC could not meet condition 6(2).
10. The Waste Disposal Category was central to Dr Bell's evidence.
11. Dr Bell's evidence in the 2024 proceeding included commentary about the fact that under the EP Act and the EP Regulation's framework for classifying waste, no laboratory testing for the presence asbestos is required. Rather it was a matter of whether visible asbestos was present.
12. This raised a number of concerns for Dr Bell.
13. It is important however to understand that this evidence statement included a review of ARC's proposal as it was at the time, based in part of a review of ARC's supplementary statement of contention.
14. We recognise that ARC's proposal has been refined since the time of that evidence being prepared.
15. Nevertheless the Authority relies on elements of that evidence, in particular concerns raised by Dr Bell from his analysis of the framework for managing asbestos waste under the environment protection legislation and that set out under the occupational health and safety legislation.
16. It is necessary to consider this evidence because ultimately it goes to a critical question about the degree of abatement that would reduce the risk of harm as well as the classification of the material following ARC's proposed processes of treatment (asbestos abatement).
17. Dr Bell's evidence was that:[172]

OHS Regulations under Division 5 and Regulation 225 - 232 would still apply to abated soils;

The EP Regulations 2021 do not identify a minimum concentration of asbestos in soil when identifying that fill material 'does not contain asbestos';

Whilst EPA guidance 1828.2 and 1968.1 indicate that if visible asbestos is removed from soil it is no longer classified and 'soil containing asbestos'; however:

Condition 6 (2) of the EPA Fill Material designation identified that the waste receiver must not accept any waste soil classified as fill material excavated from contaminated land unless the waste generator has provided evidence of the soil classification, including any laboratory analysis, carried out in accordance with Regulation 62(1)(b) of the Regulations, where:

EP Regulation 62 Classifying soil sourced on-site from contaminated land states:

(1) A person who has the management or control of soil sourced on-site from contaminated land that is industrial waste must, as soon as practicable after sourcing the soil, classify the soil by -

(a) determining whether the soil is also priority waste; and

(b) subject to subregulation (2), determining that the soil is priority waste if the soil -

(i) has contaminant concentrations exceeding the upper limits for fill material contaminant concentrations specified in the Waste Disposal Categories - Characteristics and Thresholds; or

(ii) contains asbestos.

As such, ARC would potentially be required to undertake sampling to classify the processed waste soils as fill material in accordance with Regulation 62 to demonstrate that the soil is not a priority waste, including confirming there is no asbestos in the soil, noting the Regulations do not state the asbestos has to be 'visible'.

[Original emphasis]

1. In his oral evidence in chief, Dr Bell was called upon to explain his concern. In response Dr Bell sought to respond to the fact that under the Waste Disposal Category the classification of fill material relies on visible asbestos not being present in or on the soil:
   1. the references to the Waste Disposal Category about removal only of visible asbestos do not accurately reflect OHS Regulations or the EP Regulations because the treated soils have the potential to contain asbestos and therefore would require classification to determine whether they are still a priority waste;
   2. the EP Regulations do not identify a minimum or any concentration of asbestos in soil when identifying fill is soil that does not contain asbestos; and
   3. what is set out in the Waste Disposal Category is at odds with the Fill Determination.
2. We understand Dr Bell's written evidence at that time to be ultimately expressing his opinion that even if all visible asbestos is removed, fine fibres of asbestos may remain in the soil that are difficult to detect by visual inspection. If these fibres remain in the soil, it is his evidence that the soil would still be a priority industrial waste and, most relevantly, possibly present a potential health risk.
3. It was Dr Bell's opinion in review of the prior ARC process that more sampling and analytical testing would be required to confirm the absence of asbestos or at least be satisfied that the fibres are present at a sufficiently low level so as to represent a negligible risk to human health.
4. It was in fact ARC's response to incorporate such advice for further testing, as well as other elements into its proposal that initiated the challenge by the Authority that it represented a new proposal.
5. In cross examination, Dr Bell acknowledged that ARC's present proposal is a workable approach subject to some further steps to clarify or 'tightening [it] up'. Such steps include an audit of the processing by an environmental auditor (appointed under the EP Act) and further details outlining procedural steps and the decision-making process for inspections of source sites. It was his evidence that including the sampling and analytical testing for the presence of asbestos in treated soil at a rate of 1 sample per 100m3 of soil was an acceptable approach.

1. ARC submits that in assessing this exemption application, the Authority began from an incorrect starting premise that there needed to be no risk posed by the proposal, rather than the duty being to minimise, so far as reasonably practicable, risks of harm to human health and the environment.
2. In terms of the applicable principles under the EP Act, ARC describes the proposal as implementing a 'rigorous and comprehensive screening, testing and tracking regime'.[173] ARC submits that there would need to be:[174]
   1. ... a failure at all steps of the process for soil contaminated with ACM, and/or AF/FA to be re-used as Fill Material offsite, and especially on sites which are used for sensitive purposes.
   2. The risk of this occurring, is very very low.
3. ARC submits that the proposal satisfies the GED and minimises the risk of harm to human health or to the environment, while using best available techniques and technologies in relation to the treatment of asbestos contaminated soil.[175]
4. ARC submits that it has made a number of changes to the proposal that was before the Tribunal in 2023.
5. ARC submits that it has put in place a system [to understand source conditions of site where soil comes from], noting that:[176]

It always makes commercial sense for ARC to have a full understanding of the nature of the source site that the contaminated soil has come from, and the nature of the contaminated soil, before accepting the soil for processing, and before undertaking the rigorous testing regime proposed. ARC will only want to process contaminated soil that is confirmed to have bonded ACM only. Otherwise, ARC will suffer a financial disbenefit in that it will incur the cost of testing and processing the soil, and, if the soil has any FA/AF in it, the cost of depositing that soil into Cell 7 (and the associated loss of Cell 7 airspace).

1. In terms of the changes between the proposals, ARC highlights:
   1. Fill material will only be sent to land that is used for non-sensitive purposes;[177]
   2. ARC will obtain a Laboratory Summary Findings Report in addition to the NATA AS4964 Laboratory report, with both being provided before two stages of the asbestos remediation process commence. That is, before the soil containing bonded ACM only is accepted for processing, and, after that soil is processed and before the processed soil is designated for use as fill material off-site. These two reports are required to satisfy the 0.001% w/w health screening level limit for friable asbestos and asbestos fines that is specified in the NEPM,[178] noting that the NATA AS4964 Laboratory report has a reporting limit of 0.01% w/w and, as such, is insufficient to meet the level in the NEPM;[179]
   3. The increased sampling frequency post processing and before the soil is designated for use as fill material off site, to 1 test per 100 cubic metres of soil, as recommended by Mr Eva;[180] and
   4. clarification that ARC, the licensed asbestos removal contractor and the independent hygienist will, if necessary, inspect the source site before the soil is accepted for processing at the processing compound, in particular if there is a concern that friable asbestos or asbestos fines may be present in the soil.[181]
2. ARC relies on the evidence of Mr Bos, an Environmental Auditor (Contaminated Land) with expertise in contaminated land management and remediation and management of asbestos, and Mr Eva, a Certified Occupational Hygienist and an Environmental Auditor (Industrial Facilities) with expertise in the identification, risk management and control of asbestos and other hazardous materials. [182]
3. ARC also relies on the evidence of Dr Bell, who although having been called as an expert witness for the Authority, acknowledged that the ROMP put forward by ARC represented the current state of technology and techniques for the management of risks arising from the presence and abating of asbestos in soils.
4. In respect to matters that may arise under section 44(1)(a) of the EP Act (the physical development), the expert evidence given by Messrs Bos and Eva have not taken issue with the onsite aspects of the development.
5. As stated earlier, the experts agree that the plant and equipment to be used in the processing of the soil containing asbestos only is not sophisticated or complex and is operated at many on-site remediation projects, as are measures to control dust and runoff.
6. What their evidence sought to address was focussed on matters arising from the processing of the soil containing asbestos only, therefore matters that would be relevant to a permission under section 44(1)(b) of the EP Act. Further this evidence addressed the issues raised about characterising the source material and post-treatment management of the fill to ensure no cross contamination and to verify the material transported off-site would meet fill criteria.

Whether granting the proposed exemption may result in adverse effects

1. The criteria under regulation 24(e) of the EP Regulations require assessment of whether the exemption may adversely affect human health or the environment, the interests of any person or any environmental values identified in any relevant environmental reference standard.
2. A key issue in contention in this proceeding involves the degree of risk of harm and whether those risks can be acceptably reduced to the extent practicable. More particularly this risk can be thought of in terms of the:
   1. the risk of harm associated with the physical aspects of the development per an exemption from section 44(1)(a) of the EP Act; and
   2. the risk of harm associated with the processing of the waste per an exemption from section 44(1)(b) of the EP Act.
3. In terms of the proposed process that is the subject of the exemption, the issue is whether any asbestos will remain in the soil after it is treated by ARC's proposed development and treatment system and so what, therefore, is the risk posed to human health?
4. The Authority's submissions and the evidence identifies the following matters that are relevant to this question of human health risk:
   1. The nature of the source material and the form of asbestos in that material, specifically the level of confidence that the 'soil containing asbestos only' contains visible bonded ACM and not friable asbestos or asbestos fibres.
   2. The level of confidence in assessing the material to address the above question.
   3. The level of confidence in ARC's proposed material receival process to confirm the soil waste contains only bonded ACM material.
   4. The level of confidence that the ARC process can remove all of the bonded ACM without generating asbestos fibres and / or identifying friable asbestos or asbestos fibres.
   5. The level of confidence in testing and site management regimes to ensure asbestos does not remain in treated soil and therefore dispatched soil as fill material does not contain asbestos. This includes a consideration of:
      1. The testing regimes;
      2. Soil stockpile management; and
      3. Manage of risks from cross contamination from adjoining processes and generation of airborne fibres that may re-contaminate or contaminate treated stockpiles while waiting for test results or dispatch.
5. It appears to us that the Authority's key concerns relate to the development of the process.[183] That is, the process involving the sourcing of material from multiple sites, the risks of cross contamination, the possibility of material containing friable asbestos or asbestos fibres, the failure to identify or remove friable asbestos or asbestos fibres, and therefore the ultimate ability to deliver fill for re-use that doesn't contain asbestos.
6. There was relatively limited attack on the development / installation plans relied on by ARC and the proposed layout of the compound, its design elements and risks of harm to the immediate and adjoining environment and the health of those living or working in or on the adjoining land. There was no direct or emphatic attack on the proposed use of the screening machinery, the layout of the compound or measures to be employed on the premises to manage risks arising from the potential release of asbestos fibres into the air environment.
7. In so far as it mounted any attack on the actual physical development aspects of the proposal relevant to an exemption from section 44(1)(a) of the EP Act, it was the Authority's position that the proposal did not seek to use the Best Available Technology or Techniques ('BATT'), in particular the management of dust emissions and stormwater runoff.
8. To be clear about our findings on these latter matters, subject to conditions requiring some amendments to the ROMP and site plans, we are satisfied that the plant, equipment and design of the activity site are acceptable.
9. With all that said, it remains our task, when having regard to the matters set out under regulation 24 of the EP Regulations, to consider both the physical nature of the development proposal as well as the processing, as matters relevant to the exemptions sought from section 44(1)(a) and 44(1)(b) of the EP Act.
10. Further, because of the Authority's position that on-site remediation of soil containing asbestos is preferable, in assessing this proposal, we have considered how asbestos is presently managed and remediated on development sites, and how ARC's proposal differs from that process. That is, does ARC's proposal present a greater risk, a lesser risk or effectively the same level of risk?
11. We have also considered the current level of risk associated with ARC's licensed landfill operations in respect to managing asbestos wastes, notwithstanding that these operations are presently suspended. These are confined to:
    1. the receipt of soil containing asbestos (Waste code N120) and disposal to landfill (Treatment Code D19); and
    2. receipt of waste asbestos (Waste code N220) and disposal to landfill as packaged waste asbestos (Treatment Code D20),

as set out in Appendix 4 - waste acceptance table of that licence and conditions OL_WA2 and OL_L7.1.

1. Condition OL_L7.1 requires the following additional treatment of waste asbestos (with waste code N220 and treatment code D20):

You must cover waste asbestos immediately upon deposition in one of these ways: a) with a layer of waste (not including waste asbestos) at least 1 metre thick or a layer of soil at least 0.3 metres thick; or b) using alternative cover approved by the Authority in writing.

1. There is no such condition in respect of soil containing asbestos (waste code N120) and it is unclear whether this condition was intended to apply to soil containing asbestos only. This is not determinative of our decision and for present purposes we highlight this condition only in so far as we are outlining what asbestos waste can be received and how it is to be treated under the operating licence.
2. Two other operating licence conditions are relevant here:
   1. condition OL_L10 prevents recovery and reprocessing of previously deposited waste unless with written approval of the Authority; and
   2. condition OL_L11 requires all waste to be deposited in a cell and not to be stockpiled.
3. We understand that these conditions of the landfill's Operation Licence reflect industry practice to minimise the risk of harm. As we have earlier stated, ARC's proposal can be viewed at one level as being one that builds on its experience and capacity to manage the risks associated with asbestos waste while also fulfilling its obligation under the objects of waste management under section 111(1) of the EP Act to minimise waste disposal and manage waste in accordance with the waste hierarchy.

1. The first stage of the ARC proposal involves:
   1. identifying soil containing asbestos only on development sites that can be accepted for processing under this proposal; and
   2. the transport of that soil containing asbestos only to the premises.
2. The Authority was concerned about friable asbestos being present in the soil that is brought to the premises. The Authority was also concerned about the mixing of soil from different sources once at the premises.
3. Broadly, the Authority's position is that the receipt from multiple off-site sources and the redistribution (as fill) distinguishes this proposal from the use of technology during on-site remedial works to remove asbestos from soil and re-use the fill on that site, be it for the purposes of structural fill or encapsulating the treated soil as a further risk management measure.
4. We are satisfied that ARC's proposal addresses these concerns for the following reasons.

Soil containing fibrous asbestos will not be accepted

1. Regulations 69 and 70 of the EP Regulations require records of the classification of waste to be kept by the person with management or control of priority waste, and, that priority waste must not be mixed, blended or diluted in a manner that would change the waste classification.
2. Having reviewed the detail of the process set out under the ROMP for receival of material, it is our observation that what is proposed reflects a robust system that builds upon but very much reflects the statutory requirements under these regulations for the classification, transport and receipt of priority industrial waste.
3. In the table of responsibilities and the details of the processing set out in the ROMP, it is clear that ARC would retain oversight of the contractors it uses, and ARC can reject material at a source site before it is transported to the premises. A further check will then occur at the premises gates when the relevant paperwork and loads are inspected.
4. Not only is this consistent with the waste management framework it is consistent with current landfill operations. However, the ROMP adds additional layers of management through site inspections and requirements for information, such as site history and assessment of site conditions, that address Dr Bell's opinion that it is necessary to have a 'weight of evidence approach' to assess the risk of FA or AF being present at the source site.
5. Further we observe that Dr Bell's evidence about the 'weight of evidence approach' in managing the soil containing asbestos on contaminated sites is consistent with the guidance in the Industrial Waste Guideline, including the flowchart extracted earlier.
6. To ensure the integrity of this weight of evidence approach however, we will include a condition that the ROMP be amended to ensure that a site inspection of each source site is undertaken. We agree with the Authority and Dr Bell's evidence that to do otherwise, i.e. leave it to a judgement call, opens the process to an unacceptable weakening of the 'weight of evidence approach'.
7. As set out earlier, the management of asbestos on development sites involves processes under the OHS Act and OHS Regulations and also under the EP Act and EP Regulations.
8. In terms of specific provisions of the EP Act:
   1. section 39 of the EP Act sets out the duties of a person in management or control of contaminated land. That duty is to minimise the risk of harm from the contaminated land so far as is reasonably practicable;
   2. section 40 of the EP Act sets out duties for when the Authority is to be notified about contaminated land. This duty arises only if the land is contaminated by notifiable contamination. What is notifiable contamination is defined at section 37, being prescribed notifiable contamination or where the 'reasonable cost' for remediation exceeds the set dollar amount or prescribed cost; and
   3. unless the asbestos in soil meets the test of section 37(a), or arguably the alternative test under section 37(b) about remediation costs, the Authority need not be notified about the presence of asbestos in soil nor be involved in the completion of duties by a person to minimise risks of harm to the contamination per section 39 of the EP Act.
9. Further, under duties to notify the Authority about contaminated land at section 40 of the EP Act, such notification is exempt per section 40(4)(b) and regulation 13(d) if in relation to asbestos:

... contamination of land arising from a particular waste or a chemical substance that is not specified in section 6 of Schedule B1 to the NEPM (ASC), other than contamination arising from -

(i) asbestos described in regulation 9;

1. Setting aside remediation costs for present purposes, regulation 9 sets the benchmark of what is notifiable contamination in respect to asbestos in or on soil and engaging the Authority.
2. Regulation 9 of the EP Regulations sets out that:

For the purposes of section 37(a) of the Act, the presence of friable asbestos in or on soil on land is prescribed notifiable contamination if a person is, or is likely to be, exposed to airborne asbestos fibre levels of above 0·01 fibres per millilitre by means of inhalation.

1. We make two observations about the terms of regulation 9.
2. First is that it is only the presence of friable asbestos 'in or on soil on land' that can be a prescribed notifiable form of contamination. Not 'asbestos' per se, i.e. not all and any asbestos, and not bonded, non-friable asbestos or ACM. The first limb of regulation is only engaged if friable asbestos is present.
3. Second the presence of the friable asbestos 'in or on soil on land' is only prescribed notifiable contamination if the friable asbestos would or is likely to result in the exposure of a person to inhaling airborne asbestos fibre levels above 0.01 fibres per millilitre.
4. We acknowledge that the EP Regulations and the EP Act are silent on how the likelihood of exposure to airborne asbestos fibre levels above 0.01 f/ml by inhalation is to be determined. Further, we note that the WADOH Guidelines at section 1.7 highlights that:

There are many uncertainties related to understanding the exposure to airborne asbestos fibres. Complications for completing an exposure assessment include the:

• uncertainty associated with determining the degree, nature and extent of the asbestos impacts, especially respirable fibre
• concentration of respirable dust that may be released from different soils for different activities
• duration and frequency of exposure to airborne fibres from current and future activities in a contaminated area.

1. However, the evidence before us, based on the NEPM and WADOH guidance, is that the likelihood of generating this level of fibres in the atmosphere is negligible for a soil concentration of 0.01% w/w of asbestos fibres - in fact at this soil concentration the risk of airborne fibres is less than 0.001 fibres/ml.[184] Therefore, if there were to be friable asbestos still present 'in or on soil on land at or below 0.01 w/w', it would not or is not likely to give rise to a person being exposed to airborne asbestos fibre levels above 0.01 fibres per millilitre (0.01f/ml) by inhalation. At these trace levels of asbestos fibre the risk of harm would be so low as to be negligible.
2. The evidence of Dr Bell and Messer's Bos and Eva refer to and rely on the above information provided in the WADOH and NEPM guidance about the relationship between concentrations of asbestos fibres in or on soil and airborne concentrations. We were given no reason to not accept their evidence on this point.
3. It follows that in applying the contaminated land framework to ARC's proposal and the concerns raised by the Authority, if the soil had a risk of containing friable asbestos, it would be necessary for those in control of that site to have undertaken the necessary assessments to determine whether the proposed source site was notifiable contaminated land.
4. If it is identified as notifiable contaminated land because of the presence of friable asbestos, not only would the Authority therefore be aware of the form and extent of asbestos risk present at this land, but ARC would also be made aware of this through the necessary site assessment documents it requires under the first steps of its process. According to what it has set out in this process, ARC would therefore not accept soil from such a site.
5. In our view, the degree of concern expressed by the Authority about the risk of soil containing sufficient friable asbestos to present a risk of harm being processed by ARC does not align with this process for management of contaminated land set out in the EP Act's framework which is reflected in the ROMP. While we are satisfied that the ROMP has set out processes to avoid source sites that may contain asbestos fibres or friable asbestos, we consider that a further condition to not receive soil containing asbestos only from land identified to be containing notifiable contamination to be an appropriate and additional measure to ensure the risk is reduced to this acceptable level.
6. While satisfied about addressing risks under the EP Act's contaminated land framework, we have also considered how the pre-treatment stage of the ROMP would operate to manage risks of harm in accordance with the waste management framework of the EP Act.
7. As we have set out in some detail, the waste management framework requires classification of waste material, including soil containing asbestos for any transactions or transport of this material. The documentation required from the source sites and transporters, as set out in the ROMP goes beyond that framework. The early review of the documentation required under the ROMP is intended to and we accept, make ARC aware of the probability of friable asbestos or asbestos fibres being present and if present that material would be rejected before receival at the proposed facility.
8. If the Authority is satisfied that these two statutory frameworks deal with the characterisation of soil prior to its receival for disposal, then it should follow that these same frameworks should be acceptable for classifying the soil prior to its off-site treatment at the ARC premises. We acknowledge that the end outcome for treatment is different and is intended to provide reclaimed material for re-use, however the classification of the material for receipt is nonetheless equally important in both the landfill operations as well as the pre-receipt of soil for treatment.
9. Ultimately the key concern about the receipt of the soil containing asbestos only is about whether the soil contains friable asbestos or asbestos fibres and not just ACM. For the reasons we have set out above, we are satisfied that subject to some additional conditions, the ROMP sets out an acceptable process for characterising the soil material to be processed at ARC's proposed facility prior to its transport and receival.

The transport of soil containing asbestos only is already regulated.

1. The delivery and management of soil containing asbestos only has the same level of removal and transport risks as the current licensed operation which are managed under separate and existing approvals.
2. In respect to the receipt and validation of the material from the source site at the gate, we see little difference between the level of risk and processes presently licensed for the landfill operations and that which is set out for this proposal.
3. The substantive differences and the risks of harm once transported to the facility lie with the management of the material when on-site and the use of treated material when certified as being free of asbestos.
4. It is these matters that we now turn to.

The receival and treatment stage of the ARC proposal

1. The Authority's concerns with this stage of ARC's proposal relate to the screening and treatment processes proposed to be undertaken on the premises.

1. The proposal itself comprises the physical development components (i.e. the plant and equipment) and the process that is to be undertaken using that plant and equipment.
2. In terms of plant and equipment, we are persuaded by the agreement of the experts that the plant and equipment to be used in the processing of the soil containing asbestos only is not sophisticated or complex and is operated at many on-site remediation projects, as are measures to control dust and runoff. We note that there was no challenge to the way the actual processing equipment would be used or that it posed a significant or material risk of harm to the air environment. We will return to potential off-site impacts shortly.
3. We find that the physical development components of the proposal present a low order risk of harm.
4. Much of the Authority's grounds and concerns go to the lack of confidence in the process rather than the actual physical development of the treatment site.

Process undertaken using the plant and equipment

1. In terms of the process to be undertaken on the plant and equipment, a key concern was again the risk that friable asbestos might be present in the soil received at the premises and that this might go undetected through the treatment process.
2. The first way in which this risk is addressed is that, as stated above, ARC does not intend to treat soil containing asbestos that is in a friable state or to treat soils being sourced from sites where there is the potential for friable asbestos to be present.
3. For reason we have outlined already, we have found that the approach to manage the risk in this way aligns with the duties and obligations for depositing and generating waste at Parts 6.4 and 6.5 of the EP Act. It also aligns with duties for contaminated land under Part 3.5 of the EP Act.
4. The second way in which this risk is addressed is through ARC's processing of the material on the premises.
5. The ROMP outlines how ARC proposes to address the risk of friable asbestos being present by the following steps:
   1. on receipt of the waste, inspect the load to confirm that no friable asbestos is present;
   2. use 7mm by 7mm sieves to obtain a sample to analyse for the presence of non-visible asbestos fibres. This sampling is proposed on the basis of one sample per a 500m3 stockpile.
   3. rejecting any load that is identified by this process as containing or has a possibility of containing friable asbestos;
   4. testing soil post screening for the presence of asbestos fibres and transferring any batches to the landfill where fibres are detected above the 0.001 % w/w (for use as daily cover or for disposal if fibres are present above 0.01% w/w - the latter indicating it would be comparable to notifiable prescribed contamination).
6. Through the Authority's submissions and cross examination, the point was made that asbestos that is present in the soil that is received on the premises may be subject to weathering and other influences, such a crushing or disturbance which could see it covert to a friable form. We accept that this could occur. However it is ARC's aim is to remove bonded ACM/non-friable asbestos and dispose of this material before it raises such risks or has reached this state. In combination with the screening process to detect fibres, a responsive time frame to remove ACM is intended to avoid soil containing friable asbestos from entering its process train. This is a reasonable approach to remove the possibility of longer term break down of ACM into friable forms. In fact it is in our view, self-evident that if the ARC process removes all visible ACM, then there would be no ACM to further degrade.
7. However self-evident, we are also persuaded by Dr Bell's acknowledgment that ARC's proposal is a workable approach subject to some further steps to clarify or 'tightening [it] up', such as:
   1. an audit of the processing by an environmental auditor; and
   2. further details outlining procedural steps and the decision-making process for inspections of source sites.
8. In regard to the latter, we have already acknowledged the basis of this concern and agree that the alternative for site inspections to be undertaken at all source sites is appropriate.
9. We are also persuaded that the proposal can acceptably manage risks given Dr Bell's support for the sampling and analytical testing for the presence of asbestos of incoming soil at a rate of 1 sample per 500m3 of soil. Again however we consider it appropriate to tighten this approach by ensuring that smaller loads from a source site are also subject to this sampling and analytical testing. Accordingly we have included a condition to require sampling at a rate of one sample per 500m3 or part thereof, from any one source site.
10. We acknowledge and have no reason to question Dr Bells' concessions about the revised ARC process that is now the subject of this proceeding.
11. However we consider it necessary to consider and be satisfied that this properly addresses the waste classification process and provides sufficient basis to be satisfied the risk to human health or the wider question of the risk of harm are satisfactorily addressed.
12. We have earlier set out the approaches for managing risks of harm from asbestos in soils as set out under the NEPM and WADOH Guidelines. In both these guidelines, a HSL criteria of Soil that has contaminant concentrations exceeding the upper limits for fill material contaminant concentrations specified in the Waste Disposal Categories - Characteristics and Thresholds or contains asbestos.

1. The Authority submits that because the text 'or contains asbestos' is not qualified by reference to the 'Waste Disposal Categories - Characteristics and Thresholds' (i.e. the Waste Disposal Category) in the way that the reference to contaminant concentrations is, this means the definition should not have regard to what is contained in the Waste Disposal Category.
2. As stated earlier, the Waste Disposal Category, which is incorporated into the EP Regulations, states that any reference in it to 'soil that contains asbestos' does not include soil from which the visible asbestos-containing material has been removed.
3. We are satisfied that the intention of the legislation is to apply the whole of the Waste Disposal Categories as set out in that document. Our reasons follow.
4. Below we provide an extract of one of several tables in the endnote to the EP Regulations:

1. This table sits under the following heading and explanation in the endnote:

Table of Applied, Adopted or Incorporated Matter

The following table of applied, adopted or incorporated matter was included in S.R. No. 47/2021 in accordance with the requirements of regulation 5 of the Subordinate Legislation Regulations 2014.

1. The Subordinate Legislation Regulations 2014 (Vic) have since been repealed and replaced with the Subordinate Legislation Regulations 2024 (Vic) ('SL Regulations'). Regulation 5 of the SL Regulations sets out as follows:

Publishing with table of incorporated matter

(1) If a statutory rule applies, adopts or incorporates any matter contained in a document, the statutory rule must be published with a footnote or endnote containing a table -

1. specifying the document referred to in the statutory rule that contains the matter that is applied, adopted or incorporated; and
2. indicating the provision of the statutory rule to which the matter applied, adopted or incorporated relates.

1. The above table shows that the whole of the Waste Disposal Categories is incorporated into the regulations and applies to regulation 4 specifically the definition of fill, regulation 62 and to Schedules 1, 5 and 6.
2. We have had regard to the Interpretation of Legislation Act 1984 (Vic) ('IL Act') particularly sections 36(3) and 36(4) that sets out that:

(3) No marginal note, footnote or endnote in an Act or subordinate instrument and no heading to a provision of an Act or subordinate instrument (not being a heading that forms part of the Act or subordinate instrument by force of subsection (1), (1A) or (2A)) shall be taken to form part of the Act or subordinate instrument.

(4) Nothing in subsection (3) shall be construed as preventing in the interpretation of a provision of an Act or subordinate instrument, the consideration pursuant to section 35(b) of any marginal note, footnote, endnote or heading not forming part of that Act or subordinate instrument.

1. For completeness, section 35 of the IL Act sets out:

35 Principles of and aids to interpretation > > In the interpretation of a provision of an Act or subordinate instrument -

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

(b) consideration may be given to any matter or document that is relevant including but not limited to -

(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation; ...

1. Applying these principles and aids to interpretation under the IL Act along with regulation 5 of the SL Regulations it is apparent to us that there is an expressed and clear intention to apply the whole of the Waste Disposal Categories to:
   1. The definition of fill material,
   2. The terms of N120 in schedule 5, and
   3. Regulation 62, including regulation 62(2)(b) of the EP Regulations to which Dr Bell referred.
2. Accordingly, when each of these regulation provisions refers to:

soil -

(i) [that] has contaminant concentrations exceeding the upper limits for fill material contaminant concentrations specified in the Waste Disposal Categories - Characteristics and Thresholds; or

(ii) contains asbestos;

the separation of the asbestos from other contaminants by way of the text in each provision does not separate the application of the whole of the Waste Disposal Categories.

1. Rather when applied as a whole, the Waste Disposal Categories reflects the same text and makes it clear, as we have set out earlier, that soil does not contain asbestos if all visible asbestos has been removed so far as is reasonably practicable.
2. Accordingly, the removal of visible asbestos by ARC would be sufficient to meet this characterisation as soil that does not contain asbestos. However, the ROMP sets out a process for further sampling and analysis as a further step in determining where friable asbestos may have or remains present with actions to ensure where present above an unacceptable threshold, such soil would not be re-used as fill.
3. In our view these additional steps above and beyond that necessary to meet regulatory requirements demonstrates a process that satisfactory addresses the risk of harm and need not be subject to further scrutiny under a development licence process.
4. Critically one of the fundamental concerns that the Authority seems to base its objection on, and was also one of Dr Bell's concerns was that the waste soils from multiple sites would be mixed.
5. We agree with the Authority's position and Dr Bell's evidence that mixing waste soils would be unsatisfactory. It would limit the ability to track waste from individual sites and apply the weight of evidence approach along with other necessary steps and data collation about each batch of soil's pre-treatment conditions and post treatment risks of containing dispersed asbestos fibres. However, ACR does not propose or rely on such an approach.
6. The ARC proposal relies on technology that would be adopted for an individual site and relies on a proposal to treat batches of soil from each induvial source site separately.
7. In this respect, the pragmatic and weight of evidence approach set out by Dr Bell remains valid and can be applied.
8. The only difference is that the treatment occurs off-site in a controlled environment, away from sensitive uses. We find that doing so addresses and reduces risk of off-site harm.
9. Ultimately the question of the site management, the arrangement of equipment and stockpiles are in our view of limited concern and are matters readily dealt with by conditions. These matters are dealt with in the ROMP. Our exemption is contingent on the ROMP being approved and adhered to during the establishment and commissioning of the development. Our conditions for the exemption therefore require the ROMP to be prepared as part of the development process and for adherence during the commissioning phase. Post commissioning conditions require any amendments to the ROMP to refine the operations also form a part of our conditions.
10. The import of the collective expert evidence is that the risks arising from the development on the premises are well understood and at a level of risk that can be readily addressed through well accepted site management practices. We accept that this is the case in this application.
11. Accordingly, we conclude that the proposal does not warrant the full scrutiny of a development licence process. The licence exemption process and the condition under the exemption authority are sufficient to manage the risks arising from this proposal.

Potential for impacts outside of the premises from process on the premises

1. The third way in which the risk posed by the presence of friable asbestos is to be addressed is through the measures to prevent off-site emissions of asbestos fibres. The Authority directed our attention to certain segments of the environment that are relevant to the environmental reference standards, namely air, water and soil quality.
2. We agree with ARC and accept the relevant evidence of the experts that in locating the treatment process inside the boundaries of the landfill, it is isolated from sensitive uses and reduces the risk of exposure to airborne release of fibres if this were to occur.
3. The unchallenged evidence of Dr Bell and Mr Eva is that the proposed development, i.e. the layout of the plant and equipment and the treatment compound satisfactorily addresses the risks of such releases, albeit we accept Dr Bell's evidence that this is subject to condition for a more pro-active response to minimise the generation of raised dust and the control of runoff out of the compound. These requirements can be readily addressed through conditions.
4. Hence, in terms of the potential pathways for impacts on receiving environments, if an event of airborne fibres were to occur, the evidence indicates that the compound's location within the landfill and its distance from sensitive land uses would be protective of human health. Further, internal control of runoff to prevent migration of sediment containing asbestos fibres would protect surrounding land and water environments.
5. We are persuaded that the likelihood of any airborne fibre releases to be low in the first instance, given the proposed screening of the soil material.
6. But regardless of that, if friable asbestos was to be present, ready management to prevent raised dust can be put in place to prevent such emissions from occurring.
7. This is the first element in the risk management model espoused by Dr Bell: the removal of limited risk posed by sources of hazard.
8. Further to this site context, airborne monitoring and auditing of site practices are proposed to monitor these pathways. Any events can therefore be responded to assess impacts and take responsive actions to remediate impacted areas and review site management.
9. Our conditions are framed to make these requirements clear and be responded to satisfactorily, including by way of the site development and soil management processes being audited by an independent environmental auditor.

1. The third, post treatment stage of ARC's proposal involves the validation of the treated soil material as fill and the release of this fill material from the premises to external sites.
2. We refer to and rely on our reasons set out earlier that the transport and use of fill material is regulated under the EP Act and EP Regulations, along with the Fill Determination. We also refer to our earlier commentary that the Authority accepts that on-site treatment processes that ARC proposes to replicate are sufficient to treat soils to a level consistent with fill material. This poses the question: why should there be a concern about translocation of the same process to an offsite facility?
3. We understand the position of the Authority in answer to this question is about the loss of control over material being treated and possible risks, largely arising from concerns about properly characterising the material to be containing only visible, bonded ACM. For the reasons we have set out above, we are satisfied that these concerns can not only be satisfactorily addressed, but the means to do so also fall well within the existing frameworks for waste and contaminated soil management. This has led us to conclude that the risk of harm is acceptably low and consistent with the outcomes sought under the waste management regime established under the EP Act and regulatory framework.
4. It also follows from our reasons that if the fill material produced through ARC's proposal meets the classification as industrial waste for fill (as soil material only), the future use of this fill can be readily managed within the existing waste management framework established under the EP Act and EP Regulations. Notably this is the role of the Fill Determination.
5. That said, the risk of harm is further addressed by the fact that if all visible asbestos is removed from the soil (or what would be the soil's surface) and sufficient sampling and gravimetric analysis indicates the presence of asbestos fibres is less than 0.001% w/w, the risk to human health is negligible or put another way, no greater than the accepted population risk from people's exposure general open air conditions.
6. We have had regard to ARC's proposal that it would only supply the fill to sites of non-sensitive use. The Authority and Dr Bell highlight that once outside the control of ARC, this fill might be supplied to another more sensitive site. We accept that this may well occur. However it is also apparent that any future transfer of the fill from ARC would also be subject to the Fill Determination.
7. We are mindful that Dr Bell's evidence was that there is a disconnect between the terms of the Fill Determination, the EP Regulations and the EP Act for classifying industrial waste, the proposal now before us and the OHS Regulations. We find no such disconnection, at least to the degree of Dr Bell's concern.
8. First, we observe that the wording of clause 5(b) is inclusive and not exclusive. The requirement to remove, so far as reasonably practicable 'any wastes or physical contaminants' is not limited to those described in this sub-clause. It is clear to us that asbestos would equally fall within the character of 'any waste' or 'a physical contaminant'. It is not co-listed along with chemical contaminants in any of the guidelines; it attracts its own criteria and its own guidance about management as a solid or physical waste.
9. It is also apparent to us that in applying the waste classification guidelines, removal of visible asbestos is what is required for the soil to be considered 'soil that does not contain asbestos'.
10. We agree that there is an apparent disconnect between the wording of regulation 62(1)(b)(ii) of the EP Regulations about classifying soils that do not contain asbestos. However, the purpose of the Fill Determination is directed to regulation 63(b) of the EP Regulations and not regulation 62(1)(b)(ii).
11. In any event, as we have set out above in addressing the operation of the waste classification framework, the Waste Disposal Category makes it clear that soil containing asbestos is not a reference to soil from which visible ACM has been removed so far as reasonably practicable.
12. Second, as we have set out above, the Waste Disposal Category refers to and relies on the definition of soil that does or does not contain asbestos as set out in regulation 217 of the OHS Regulations. When so read, this text is not applying that or any other OHS Regulation. What this text does is explain that it adopts the same definition as that under the OHS Regulations. It is apparent to us that this is intended to align outcomes for the management of soil as an industrial waste under the EP Act with the outcomes of the OHS Act and OHS Regulations.
13. The introduction in the Waste Disposal Category states that the intention is that if all visible asbestos is removed from the soil, then for the purposes of waste classification, that material is soil industrial waste to be managed in accordance with the waste management framework. This outcome aligns with the outcomes of the OHS Regulations for the same material.
14. To be clear on this point, the operation of regulation 217 of the OHS Regulations means soil that does not contain visible asbestos is not subject to the restrictions of regulations 219 to 223 and 224(c) of the OHS Regulations: being prohibitions on supply, storage, transport, sale, use or re-use of asbestos. Put another way, the soil material / industrial waste is no longer considered under the EP Regulations to be a priority waste of soil containing asbestos only or for the purposes of the OHS Regulations asbestos as defined under that regulatory framework.
15. We further observe that the expert evidence is that this is the statutory framework under which on-site remediation of soils containing asbestos operates. The result of these on-site remediation operations is that once free of visible asbestos and the soil is verified to not contain other contaminants above the fill category thresholds set out in the Waste Disposal Category, the soil can be re-used on site as fill or subject to the Fill Determination, be exported off-site. ARC's process not only adopts this approach, it bolsters it by applying the additional sampling and analytical regime of one sample per 100m3 of treated soil and applying the HSL's limits to soil that would be released as fill material.
16. Third, in respect to meeting the overall specifications and conditions of the Fill Determination, in cross examination Dr Bell acknowledged that the ARC proposal now before us included steps to undertaken acceptable levels of analytical testing of the soils prior to and after treatment. Subject to the caveats discussed earlier that Dr Bell put into his evidence, ARC could take steps to incorporate a weight of evidence approach to assessing the likelihood of friable asbestos being present prior to acceptance of the waste soil and reject such loads as necessary on the basis that this material is not fit for purpose. We have accepted this evidence and include conditions to ensure that approach is applied.
17. We are therefore satisfied from the evidence of Dr Bell and Messrs Bos and Eva that the approach adopted by ARC under this third stage of its process meets, and in fact exceeds, the requirements of the Fill Determination.
18. For present purposes we are content to not disturb ARC's proposal to deliver fill only to non-sensitive sites. However with that said, we are also satisfied that the existing waste management framework, through the operation of the Fill Determination is sufficient to manage any future movement of fill from such sites to other sites.

The best available techniques or technologies for engaging in the prescribed activity

1. Dr Bell's initial evidence in the earlier proceeding was that the proposal did not meet best available techniques or technology ('BATT') because the stockpile of received soils and the processing did not occur within an enclosed (and negative pressured) building. He also considered that the application of the NEPM sampling and analysis criteria did not apply to an industrial facility operation as proposed by ARC, but rather on-site treatment. The submissions for the Authority reflected this evidence.
2. However, in the conclave report and in oral evidence in this proceeding, Dr Bell agreed that subject to certain matters being addressed through on-site management measures and management of receivals, the processing would reflect industry practices.
3. His caveats comprised of rejecting any material with risks of friable asbestos or AF being present in the soil, use of dust suppression measures, segregation of stockpiles from different source sites, and separately processing materials from different source sites. These are all measures that have been set out in the ROMP, and we have addressed further, as appropriate, by way of exemption conditions.
4. In light of his revised evidence about the adequacy of the site controls to minimise the risk of airborne asbestos being generated, Dr Bell also acknowledged that the cost of enclosing the processing would not be proportional to the additional reduction in risk.
5. The expert evidence leads us to conclude that the techniques and technology proposed by ARC are adopted industry standards for on-site treatment of 'soil containing asbestos only'. The question that arises under regulation 24 is whether these represent the BATT.
6. In our view, this question is to be answered that it does in part, represent a better regime for the management of industrial waste soil containing asbestos only because of the additional sampling and analysis put forward to assess for the presence of asbestos fibres or friable asbestos. In that sense of this test addressing risks of harm we are satisfied on this point.
7. In terms of technology, we accept ARC's position, as advanced through Dr Bell's cross examination, that a proportional response can be applied. It is evident that enclosing the facility would represent the very best in technology to manage the risk of airborne emissions. However, the techniques or process put forward to assess soil prior to receival reduces and manages the risk. It represents a higher and better level of waste management than say receival of this waste going to landfill and relevantly reduces the need for an enclosed facility.
8. When so viewed we conclude that ARC's proposal sufficiently meets the test for applying the BATT that address the level of risk of harm.

1. We have concluded that the pre-treatment and post- treatment stages of ARC's proposal, involving assessing the conditions of the inbound and outbound soil wastes, align with the systems in place under the present statutory framework. To be clear about this, we mean that ARC's proposal for receipt of soil containing asbestos only reflects, indeed parallels, the very processes that the transport of the same priority industrial waste must follow if this waste to go to its landfill. As we have set out earlier, this would be all the necessary documentation required for release of the soil waste from the source site to the landfill (as priority waste transaction) and for transport (as a priority waste transport).
2. At the post-treatment stage of the process, with the abated soil certified through the regulated inspection process by a licensed hygienist and complimentary analytical process, the release and transport of the fill would occur in accordance with the Fill Determination. Alternatively, rejected soil would be subject to final documentation and transaction processes for its disposal to the landfill.
3. The treatment processes adopt accepted industry practice for the abatement of ACM from soil with additional testing regimes to address and enable management of soils containing friable asbestos or asbestos fibres. The use of dedicated facility also enables proven and accepted technologies and processes / techniques to be applied to manage potential emissions.
4. When viewed in this light, we are not persuaded by the submissions of the Authority that this represents an elevated risk of harm to human health or the environment that warrants a development licence assessment process.
5. We also conclude that the exemption application sits comfortably within and responds to the existing legislative framework for the identification, classification and management of soil containing asbestos only.
6. As said by the Authority, there is a novel aspect of this proposal. That aspect is that the location of the treatment is moved from the source site of the material to an offsite location.
7. However we agree with ARC that this novel aspect does not render the application an unworthy contender for an exemption in light of what we have set out above.
8. The sourcing and transport of the waste to the premises adopts and mirrors the very framework for waste management established under the regulatory provisions of the EP Act and the EP Regulations with oversight by the Authority.
9. To the extent that there are aspects of the overall proposal that will require regulation by an operating licence, these are outside of the scope of our consideration in this development licence exemption application. However, given the interrelationship between what is permitted by, or exempted from, the need for a development licence, and the overall operation, it is appropriate for us to understand the proposal as a whole.
10. ARC has provided the detail of the whole proposal and this has been assessed by the expert witnesses. Apart from Dr Bell's concerns about conflicts between the two statutory regimes we have addressed earlier, all agree that technically the process proposed by ARC applies accepted technology to remove visible asbestos from the soil.
11. Dr Bell agrees that the additional sampling and analytical testing of the soils addresses his concerns about the risk of asbestos fibres being present, while Mr Bos and Mr Eva say the additional testing goes beyond standard practice (in view of the need to only confirm the absence of visible asbestos) and therefore represents the best available techniques for confirmatory testing.
12. We are imposing conditions on the exemption. We are mindful that whatever form of operating permission is applied for following completion of the development, e.g. a new operating licence, or an amendment to the existing operating licence, may also be subject to conditions.
13. For the above reasons we are satisfied that that ARC's proposal presents a low risk of harm with the relevant levels of risk posed by the development being able to be managed through the development licence exemption process.

ASSESSMENT: THE PROCESSING OF THE EXEMPTION APPLICATION AND THE IDENTITY OF THE APPLICANT

1. The criteria / prescribed matters that deal with the processing of the exemption application and the identity of the applicant are in regulation 24 (g), (h) and (i) of the EP Regulations.
2. This part of our reasons is arranged under the following headings:
   1. Parties' submissions;
   2. Whether the applicant has adequately engaged with any person whose interests may be affected by the proposed exemption, taking into account the Charter developed under section 53 of the EP Act;
   3. Whether the applicant is a fit and proper person for the purposes of Chapter 4 of the EP Act; and
   4. Whether, if the Authority has requested further information from the applicant, the applicant has provided sufficient information within a reasonable time.
3. In summary we conclude that:
   1. ARC has adequately engaged with persons with an interest by way of effects of this proposal;
   2. The reasons that the Authority advances for ARC not being a fit and proper person, which we accept, on balance with all the other criteria does not give us reason to refuse the exemption; and
   3. While not at issue in this proceeding about requests for further information, we are satisfied that sufficient information is before us to support the application for the exemption and for the conclusions we have reached.

1. The Authority submits that ARC has not adequately engaged with potentially affected persons and that the community consultation plan is outdated.[185] It says the preferable course is for a development licence application to be made so that mechanisms for potentially affected persons can be properly notified and consulted.
2. It is the Authority's position that the potentially affected persons who need to be properly consulted are member of the general public who are at risk of adverse health impacts for mismanagement and loss of control over ARC's processes. It is this broader body of the general public that the Authority submits should be consulted and be consulted through a development licence application process.
3. In oral submissions the Authority says that a letterbox drop that ARC undertook was not adequate because the information provided in the letter[186] did not described ARC's proposed process adequately.
4. Notwithstanding the above, the Authority's position in respect to section 24(g) is that it is now a matter for the Tribunal about the adequacy of the consultation.
5. In opening, the Authority submitted that in respect to the tests under section 66 of the EP Act, ARC is not a fit and proper person because:[187]
   1. ARC has failed to provide a financial assurance in respect of the Operating Licence, specifically conditions OL_G6.2 of that licence and it is therefore not compliant with the EP Act.
   2. As a result of failing to provide the financial assurance, ARC is prohibited from accepting waste at the landfill.
   3. ARC has not demonstrated a financial capacity to comply with any obligations imposed by any permission.
6. In oral submissions it pressed the last of these reasons as being significant as it is a matter directly raised by section 66(1(b) of the EP Act:

... whether the person has demonstrated to the Authority or council that the person has the financial capacity to comply with any obligations imposed by a permission; ...

1. The Authority submits that the purpose of the fit and proper questions in the exemption application and more pointedly the question about the forward estimate of the projecting cost'[188] is to address the above requirement of the EP Act. The Authority says that the failure to provide projected operating costs is:

a critical piece of information that's lacking for the tribunal ... to assess ARC's financial capacity to meet the costs of all the controls necessary in this proposal if they were attached as obligations imposed by a permission.

1. In conjunction with the failure to provide a financial assurance, the Authority believes that the failure to provide projected operating costs means it and now the Tribunal cannot be satisfied ARC has the financial capacity to comply with any obligations imposed on it by conditions of the exemption.
2. The Authority submits that the criterion about the applicant providing further information is not applicable in the present circumstances.[189]

1. ARC submits that is has adequately engaged in consultation under the Charter. ARC submits that firstly the text refers to 'any persons whose interests may be affected by the proposed exemption'. It agrees with the Authority that the test of interest is not a wide public interest test.[190]
2. In oral submissions ARC first notes that at no time during what has been a vigorous contest of the exemption application was any mention made of the public consultation being inadequate. Apart from this complaint, ARC's response was to take us through its consultation program, which involved not only the letterbox drop to 12,693 households in the local communities, but web based information, an open day and meetings with various stakeholder groups. It relies on this program to demonstrate how it has made relevant stakeholders aware of its proposal and undertaken adequate consultation.
3. ARC submits that it and its directors are a fit and proper person for the purposes of regulation 24(h) of the EP Regulations, noting that:
   1. the rehabilitation of the landfill has been substantially completed despite ARC receiving no income from the deposit of waste in the landfill cells other than that obtained under the improvement notice operations;
   2. there is a reasonable explanation as to why ARC has not provided the financial assurance; and
   3. a portion[191] of the financial assurance is the operational financial assurance and ARC is not currently operating the landfill.[192]
4. ARC submits that the Authority is setting:
   1. ... a much higher standard for ARC than for other soil processing facilities. The cost, for ARC to process soil contaminated with bonded ACM only, will be higher in comparison to these other operations.

1. ... ARC has put its proposal forward on the basis that it agrees to implement a robust and comprehensive screening and testing regime. The consequence of this is that the ARC proposal will have a lower risk of causing harm to human health or the environment than other soil processing operations.
2. ARC should receive credit for adopting this approach. It is not a factor militating against the grant of the exemption.
3. Further and in any case, if it is uneconomic to process soil as a result of the cost, ultimately this is a matter for ARC. This would be an unfortunate outcome, given the systemic issues in Victoria in the form of increasing asbestos waste, decreasing landfill capacity to receive that waste, and the identification of the lack of convenient disposal options as a cause of the illegal dumping of asbestos.
4. ARC agrees with the Authority that the criteria dealing with responding to a request for further information is not applicable in the present circumstances.[193]

1. We do not agree with the Authority's representation of the letter circulated by ARC. We have considered the full text of this letter. It sets out:
   1. That ARC is undertaking various programs at the landfill to bring the operation into 'contemporary standards and community expectations'.
   2. Part of this program is to remediate 'asbestos-contaminated soil on-site'. Below we set out the full text of this paragraph. Here we note that this text describes an overview of what will be done, i.e. remove asbestos from the soil, dispose of the asbestos in the landfill and repurpose the treated soil for use in the community.
   3. Apart from what ARC admits may have been 'a stretch' in saying the Authority endorses the process, the letter nevertheless acknowledges concerns about asbestos and health impacts, concerns of the community and correctly identifies (in view of the evidence we have heard) that the process it proposes is routinely undertaken at building sites across Victoria.
   4. The letter sets out an overview of how ARC proposes to manage the risks. This overview summary is consistent with what is before us and set out in the ROMP.
   5. Encourages feedback of any type.
   6. Invites members of the public to an on-site meeting and how further information may be presented on an ARC website and through a social media platform.
2. The full text of the relevant paragraph referred to be the Authority is as follows:

As part of the transitioning works, ARC intends to include the remediation of asbestos-contaminated soil on-site. This will involve taking asbestos contaminated soil from the community and remediating the material at ARC. The remediation works involve separating the asbestos material from the soil. This will involve the use of specialised equipment. The asbestos will be permanently disposed into ARC's EPA licensed landfill cell. The soil will be repurposed to benefit the community, rather than taking up critical landfill space.

1. Several points are to be made about this letter, the above text and ARC's overall approach in the context of what is proposed under this exemption application.
2. ARC is correct in identifying that the process is not novel and occurs across building or remediation sites. Setting aside some liberties in language, it presents an overview of the proposal at a level commensurate with the Tribunal's experience in public consultation, i.e. that it is not overly technical but nevertheless delivers a fair summary of what would occur.
3. The communication is open about the process and acknowledges risks. It also provides key points of the ROMP to explain how these risks would be managed.
4. The communications are directed to those most at risk from the proposed development of the facility and its operation. These are some 12,000 residential community members.
5. It is self-evident that the public may be recipients of fill after ARC's treatment process is completed. However, this could be said to be true of all recycled or reclaimed material. That said, we question the need for wider consultation on this basis given that the receipt of fill already has a process set out under the Fill Determination that is intended to protect the public from inadvertent supply of material that does not meet the fill criteria. In short, we do not agree that wider public consultation is necessary or of value to determining this exemption when such a safeguard is already in place. The relevant and substantive question in terms of the interests of those that may be affected by use of the fill, which we have already addressed, is whether the proposal results in outcomes consistent with and meets the requirements of this Fill Determination.
6. When the community letter is read as a whole, the claim of a misleading statement fails to have traction. In particular, the above paragraph is a statement of fact that reclaiming soil will indeed save landfill airspace, which is well understood to be a critical issue in Victoria's waste management. Repurposing soil as a community benefit, may be viewed as an element of 'spin' but nevertheless the recovery and re-use of resources is promoted under the EP Act, and would benefit the community.
7. In our view, the appropriate public members who have an interest or may be affected by the proposal, bearing in my mind what we have set out above, have been sufficiently consulted.
8. Ultimately our decision and that of the Authority, while having regard to community views, should be an evidence-based decision that carefully weighs risks of harm and whether these are minimised to the extent not only practicable but also acceptable to standards that address community risks. Concerns may be raised through a consultative process, but those concerns of themselves should not drive a final decision if these concerns are not grounded or supported by evidence-based findings. Here the interests of the community are, as identified by the Authority, the risk of harm to human health. These risks are well understood, and we have found these to be satisfactorily addressed. In our view, there is no benefit from conducting further consultation beyond that conducted by ARC.
9. Lest this be thought to be counter to the principle of accountability under section 21 of the EP Act, this principle deals with accountability under three points. One is at a higher level of providing access to reliable and relevant information in appropriate forms to facilitate a 'good understanding' about risks of harm and how decisions are made. This is broad principle we understand to be a general statement for the Authority to be accountable in providing such information. The second and third points relate to decision making, with public involvement in decision making 'where appropriate' and for the public's interests to be taken into account in decisions made under the EP Act.
10. Though regulation 24(g) of the EP Regulations refers to the consultation under the auspices of the Charter, we must also be satisfied that the principle of accountability is satisfied. For the reasons set out above, we are satisfied that the consultation undertaken in this application acceptably responds this principle.
11. In response to regulation 24(g) of the EP Regulations, we refer to those relevant aspects of the Charter we have set out earlier in these reasons. We note that notwithstanding the Authority's position that wide notification of the proposal should be undertaken, the Charter makes constant reference to local communities and relevant stakeholders. The extent of consultation is therefore not unqualified. It involves those whose direct interests may be affected.[194] Further while the permissions profile assessment set out in the Charter calls for a consideration of what are the potential community impact and interests it is not the sole factor. Other factors include the complexity of the proposal, relevant (unspecified factors) about the operator and site history, strategic importance and state-wide significance, and the potential for risk of harm.
12. For the reasons set out above, we are satisfied that those with the most direct interests, land owners and occupants around the landfill, have been consulted. The wider interests of users of the reclaimed fill are accounted for by an evidenced based assessment of the process and risks of harm, the fact that the proposal is straight forward and not technically complex and the ROMP sets out a satisfactory means of managing relevant risks that may affect future users of the reclaimed soil. In our view there is little further to be gained from wider consultation that the Authority says the proposal and the decision before us would benefit from.
13. We are therefore satisfied that sufficient consultation has occurred. We do not find this factor to be a reason to refuse the exemption.

1. We are mindful that the matters set out under regulation 24 are required to be considered per section 80(5) of the Act, the latter expressing that the prescribed matters must be considered, but that these matters are applied to all licence exemptions. Thus we accept that what ARC says about financial assurances and capacity to cover financial costs for the operation of the proposal and any response arising from that operation are more applicable to an operating licence.
2. This observation by ARC is consistent with the examples of exemptions provided by the Authority.[195] All of these examples were exemptions from development licences allowing the construction of certain works in circumstances where operating licences already applied to each premises. The developments constituted works to allow ongoing regulated processes at each premises. None of the exemptions contained conditions for financial assurances.
3. What is before us is similar to these examples, an exemption from a development licence in circumstances where an operating licence already applies for broadly the same defined activity, though we accept for a new process. The question that the Authority says was not answered and weighs against ARC being a fit and proper person is not so much the failure to provide a financial assurance, but an indication by the failure that ARC may not be in position to support the proposal's operating costs. It was not about costs to construct the development or put in place the processes to be operated. In any event, in respect to these latter costs, the evidence before us demonstrates that the plant, equipment and development for the proposal are minimal and, in some instances, normal plant to be found at a landfill (e,g, low loaders, dividing walls, security fencing). The plant to screen the soil containing asbestos is existing mobile plant to be provided by a contractor.
4. Thus, the actual development is straight forward and does not use sophisticated or complex machinery or treatment processes. Even if we were persuaded that a financial assurance was required, it would be a nominal amount and given the expenditure of ARC in its clean-up of over $20 million, we accept ARC's submissions that it would not be beyond its financial capacity.
5. However we also agree with ARC that the matter for operating costs and any associated demonstration of financial capacity is a matter for an operating licence.
6. There is no dispute that ARC had at the time of the hearing, been in breach of a condition on the Operating Licence by way of failing to provide a financial assurance under that licence. Strictly ARC does not meet the fit and proper person test. This would weigh against the grant of the exemption.
7. However, the underlying reasons for the Authority's position is not about meeting this test. It is about a risk that ARC would not be able to provide a financial assurance or meet the costs of this proposal. In circumstances where it is not necessary to provide a financial assurance under this exemption, we conclude that failing to meet the fit and proper person test in this instance is not sufficient reason to refuse the exemption.

1. The parties agree that this criterion has no influence in the decision before us. We accept that the Authority did not request further information and, as such, ARC did not provide any further information. However, the circumstances that gave rise to this application are unusual, given the earlier application to the Authority and, subsequently, the application made to the Tribunal. We are therefore not persuaded that this criterion has no work to do in this application.
2. It is a matter of record that the Authority's consideration of the application occurred at the invitation of the Tribunal pursuant to powers under section 51A of the VCAT Act. In those circumstances, no time was allowed for the calling of further information. It was invited to make a fresh decision based on the application that was before the Tribunal.
3. The terms of this criterion of the regulations require some scrutiny. If the Authority requested further information, the question that arises from the phrasing is whether ARC provided sufficient information within a reasonable time. There are therefore three aspects to this criterion: For what purpose or to what end was the information requested; was the response sufficient to meet that purpose; and was that information provided in a timely manner.
4. It cannot be said that the application before us is a fresh application that has lacked substantive consideration by the Authority (or now the Tribunal). The present application arises from the initial application made in 2023. In that application the Authority did not make a decision within the regulatory timeline which resulted in the first 2023 application. However before that review application the Authority did consider and did request further information. As has been outlined in ARC's submissions and the affidavit of Mr Radiotis, at no time did the Authority indicate to ARC during this process a fundamental objection to the proposal being exempt from a development licence. As far as we can ascertain from Mr Radiotis's affidavit and the records of correspondence, ARC responded to and met with Authority officers to progress the application and address the Authority's concerns or matters it raised about the proposed process.
5. The real and substantive result of that process and the first review application is that ARC did develop responses to the Authority's questions and critique of the proposal that amount to the final proposal now before us.
6. As such we recognise that the proposal has developed beyond that originally proposed across 2022 and 2023. Dr Bell agreed in cross examination that the proposal and the ROMP that now forms part of the present proposal has addressed and responded to his critique of the earlier proposal. In particular, the proposal now includes additional sampling and analysis for asbestos beyond visual inspections, it provides for information to be provided to ARC and its hygienist and asbestos removal contractors to use multiple lines of evidence to assess for the potential presence of friable asbestos and therefore determine whether the material can and should be processed at the ACR facility with a higher degree of confidence than that which he was critical of in 2023/2024. Dr Bell agrees that these were significant steps in addressing his concerns.
7. Dr Bell also agreed that limiting the re-use of the fill material to non-sensitive uses also reduced the likelihood and risk to human health. However he also maintained his concerns about the ongoing possibility of that fill being transported to other sites beyond the control of ARC and the risks that this may result in. We recognise that this is a potential outcome that we have addressed elsewhere in our reasons.
8. However from the point of view of this criterion, we recognise that the proposal has been advanced and reformulated to address many of the risk pathways raised by Dr Bell. This supports a finding that the proposal has been subject to an appropriate degree of scrutiny and testing.
9. So while we agree the present proposal was not subject to request for further information, it arises from a much longer process where the fundamentals principles and aspects have been subject to a high degree of review and consideration.
10. We find that these outcomes do not weigh against the grant of an exemption.

ASSESSMENT: WHETHER IT IS IN THE PUBLIC INTEREST TO GRANT THE EXEMPTION

1. The criteria / prescribed matter that asks whether it is in the public interest to grant the exemption is in regulation 24(j).
2. In short, we find that ARC's proposal is in the public interest for several reasons:
   1. the public interest in health and the environment will not be adversely impacted because there is a negligible risk of airborne asbestos fibres being inhaled at a level that presents an unacceptable risk to the community as a consequence of the generation of the fill material, given the processing and testing that will be undertaken by ARC;
   2. there is a wider public interest in enabling waste to be managed and treated so as to reduce landfill disposal and recover and re-use a resource, being the soil fill material; and
   3. there is public interest in this activity being well-regulated under the EP Act and this can be achieved through the exemption process because it has a relatively low risk profile.

1. As the term 'public interest' is not defined in the EP Act or the EP Regulations, the Authority submits that it is a term that may take into account various matters and that there are several aspects of the public interest to compel the conclusion that the exemption ought not be granted.
2. In short, the Authority submits that:
   1. the protection of human health by reducing the harmful effects of asbestos is the overriding consideration in assessing where the public interest lies;
   2. refusing the exemption serves the public interest by maintaining confidence that a person seeking to engage in a prescribed activity must obtain the correct permission. Refusal would also maintain consistency in the policy and practice of how exemptions are granted, referring to the 'Permissions Scheme policy' (EPA Publication 1799.2) ('Permissions Policy'),[196] to support this position;[197]
   3. there is significant public interest in preventing far more costly remedial and mitigation measures when these risks eventuate; and
   4. as a matter of statutory construction, ARC's economic interests are extraneous to the EP Act's objectives and ought not be taken into account in considering the criterion of public interest.[198]
3. The Authority submits that there is also a public interest in ensuring a level playing field between ARC and commercial competitors, such as the Hi-Quality Quarry Products Pty Ltd landfill located in proximity to the premises. This is because the costs associated with obtaining a development licence, including the need to provide a financial assurance as required by the Authority for a development licence, will contribute to the overheads of an operation and what it then needs to charge for its service. This is to be contrasted with an operator who does not need to account for those expenses when pricing its services because it has obtained an exemption and is not able to be subject to a financial assurance.
4. The Authority also points to the asbestos-contaminated mulch incidents in Victoria and New South Wales during 2024 and the impact that this had on public confidence in the regulation of waste asbestos. This level of community concern is said to amount to a public interest.

1. ARC submits that there is public interest in allowing the proposal because this will facilitate the final clean-up of the Bulla landfill.
2. Further, it is submitted that allowing the proposal will enable more of the landfill air space / capacity to be used to dispose of waste, rather than having that area consumed by soil containing asbestos only.
3. ARC refers to the fact that the proposal will result in a reduction in the amount of 'waste' going to landfill. ARC submits that this is in the public interest, having regard to the forward projections regarding limited capacity of disposal sites across the State for disposal of asbestos and the scale of the problem regarding asbestos disposal.

Is it in the public interest to grant the exemption?

1. Given that what is meant by 'public interest' is not defined in the EP Act, the concept of what is in the public interest may, in fact, be rather broad.
2. In the absence of a definition in the EP Act, it is necessary to consider what may be the public interest that the purposes of the EP Act seek to address. These might include:
   1. establishing the GED and a legislative framework to protect human health and the environment (albeit focussed on the management of pollution and waste);
   2. acknowledging that risks cannot be eliminated but that the risks of harm to human health and the environment are to be minimised to the extent practicable; and
   3. establishing and adhering to legislative frameworks to manage wastes, pollution and the permitting of activities that may present risks of harm.
3. These are all matters that affect or impinge on the public's interests.
4. Thus we accept that broadly the Authority has identified relevant matters of public interest that arise from the risks of harm, impacts on human health and the environment and ensuring that approvals or authority to conduct activities that may present a risk of harm are properly regulated.
5. Whether this extends to one operator obtaining a commercial advantage over another is not, in our view, so readily a matter of public interest.
6. What is of public interest is that any such advantage is not achieved by an inappropriate side stepping of regulatory requirements that would also seek to avoid other outcomes that are in the public interest.
7. That said, we do not accept much of the Authority's submissions in response to this criterion. The Authority's position follows from its view that the risks of harm to human health and the environment have not been, and cannot be, minimised to an acceptable level by ARC's proposal.
8. We disagree for reasons we have set out above. We have found that ARC's proposal minimises those risks to the extent practicable and to an acceptable degree. The evidence is clear that:
   1. fill material will be produced, so classified because not only is visible asbestos removed but testing confirms the presence of asbestos fibres would be less than 0.001% w/w in that material; and
   2. there is negligible risk of airborne asbestos fibres being inhaled at a level that presents an unacceptable risk to the community.
9. As such, the public interest in health and the environment would not be adversely impacted by the grant of an exemption in this instance.
10. Further, we agree with ARC that if waste can be managed and treated so as to reduce landfill disposal and recover and re-use a resource, being the soil fill material, this is also in the wider public interest.
11. These outcomes align with the legislated framework for waste management and management of contaminated land, which are also in the public interest.
12. We find that the merits of ARC's proposal are, on balance, not against the public interest in respect to these matters about the risks of harm and waste management.
13. We turn therefore to the question of whether the public consultation has been adequate and sufficient, as well as whether an exemption will undermine the confidence of the public in the application of the waste management and permissions framework.
14. Having considered the merits of the proposal against these frameworks, we do not find that this would be the case. Our conclusion is that the proposal aligns with, and in fact adopts and includes, already well-established regulatory steps and processes for the management of waste. ARC's proposal does not offend or seek to remove itself from that regulatory framework. Because of this we consider that the proposal also does not need to engage the permissions framework to the same extent as a new or novel A01 process would need to do so in the ordinary course. The evidence demonstrates a low risk at first instance in managing soil that contains bonded ACM which is this material that is the focus of this proposal. The evidence supports findings that the process itself is of low risk and can be adequately managed by well proven industry practices, enhanced through a greater level of materials testing.
15. This leads to a conclusion that the granting an exemption for the development is appropriate, noting that we have found that this exemption will not result in ARC's proposal being unregulated.
16. Rather, the exemption will enable the development of ARC's premises to accommodate the necessary plant and equipment to undertake the process. The processing itself will be subject to ongoing regulation. The public interest in having a well-regulated activity, albeit one with a relatively low risk that can be readily managed, will continue to be served.

1. It follows from the reasons above that we are satisfied that an exemption from a development licence can be granted for ARC's proposal. We have reached this conclusion on the basis of the particular facts and circumstances of this application and our findings that the development proposal presents a lower scale risk of harm that can be appropriately managed through an exemption, which is a form of authorisation available to the Authority in such circumstances.
2. Our order directs the grant of an exemption subject to conditions that we have referred to in our reasons and are set out in the attached appendix of this order. These conditions have been prepared having considered the draft conditions provided on a 'without prejudice basis' from the Authority and the respective submissions of each party.
3. The conditions reflect our findings that the ROMP is a key document for the development and operation of the proposed facility. Amongst other matters the conditions seek amendments to the ROMP that follow from our reasons. We have also included conditions to require appropriate levels of oversight by the Authority and an independent environmental auditor during the preparation and approval of this document.

You must immediately notify the Authority by calling 1300 EPA VIC (1300 372 842) in the event of:

(a) a discharge, emission or deposit which gives rise to, or may give rise to, actual or potential harm to human health or the environment;

(b) a malfunction, breakdown or failure of risk control measures at the site which could reasonably be expected to give rise to actual or potential harm to human health or the environment; or

(c) any breach of this exemption.

You must notify the Authority within 48 hours of the occurrence of any the following:

(a) any change to your name or address (including your registered address and site as applicable); or

(b) a change to an officer (as defined in the Act).

You must update the EPA Portal if any other relevant administrative details for your business change.

Waste from the activity site allowed under this exemption must not be discharged or disposed of to the environment except in accordance with this exemption or with any permission or approval issued by the Authority that may relate to the activity site.

A copy of this exemption must be kept at the activity site and be easily accessible to persons who are engaging in an activity conducted at the activity site. Information regarding the requirements of the exemption and the Act duties must be included in site induction and training information.

This exemption expires:

(a) on the issue or amendment of an operating licence or permit relating to all activities covered by this exemption;

(b) when the Authority advises in writing that all activities covered by this exemption have been satisfactorily completed and the issue or amendment of an operating licence or permit is not required; or

(c) on the expiry date listed on the front page of this exemption.

Subject to the conditions of this exemption, you are authorised to: install, construct and commission on Cell 3 of the 500 Sunbury Road facilities, processing plant, equipment and a secure activity area to receive and process soil containing only visible bonded asbestos material for the purpose of removing asbestos by using a screening plant and spreading the soil and hand raking and hand picking.

Other than for the purposes of commissioning of plant, equipment and processes hereby authorised under this exemption you are not authorised under this exemption for any other operation of said plant or equipment or receipt of loads of soil containing asbestos only for treatment.

The processing plant and equipment covered by this exemption includes the installation of the following:

(a) a screening plant and associated plant and equipment needed to support the screening plant operations as per the application;

(b) incoming soil storage bays as per the application and requirements in EX_D01 (c) and (d);

(c) screened soil storage bays as per the application and the requirements in EX_D01 (c) and (d);

(d) dust suppression control measures as per the application and the requirements in EX_D01 (e) and (f);

(e) an impermeable geofabric layer overlain by compacted rock or compacted earth layer over the 50,000 m2 processing activities area as per the application and requirements in EX_D01 (g); and

(f) a contaminated stormwater collection and treatment system for the entire activity area as per the application and the requirements in EX_D01 (h).

1. You must develop a Risk Management and Monitoring Program (RMMP) for your activities which is consistent with the Remediation Operations Management Plan (ROMP) as amended in accordance with condition EX_09, which addresses, but is not limited to, the following matters:

(a) identifies all the risks of harm to human health and the environment which may arise from the activities you are engaging in at your activity site;

(b) clearly defines your environmental performance objectives;

(c) clearly defines your risk control performance objectives;

(d) describes how the environmental and risk control performance objectives will be achieved;

(e) identifies and describes how you will continue to eliminate or minimise the risks in 1(a) (above) so far as reasonably practicable; and

(f) describes how the information collated in compliance with this clause, is or will be disseminated, used or otherwise considered by you or any other entity.

(a) documented in writing;

(b) signed by a duly authorised officer of the licensed entity; and

(c) submitted to the Authority for its approval.

1. You must prepare a Remediation Operations Management Plan (ROMP) generally in accordance with the Remediation Operations Management Plan (ROMP) dated November 2023 prepared by Prensa submitted with the application but amended as follows:

(a) Clearly state that soil received for treatment must only contain visible asbestos or visible asbestos containing materials.

(b) Clearly state that soil must not be sourced from land that is part of notifiable contaminated land because of the presence of friable asbestos in or on the soil on that land as defined by section 37 of the Environment Protection Act 2017 and regulation 9 of the Environment Protection Regulations 2021.

(c) Require that prior to the acceptance of soil at the activity area hereby authorised under the exemption:

(i) All sites from which soil containing visible asbestos is sourced must be inspected by the environmental scientist/hygienist and the licensed asbestos removal contractor.

(ii) Following the source site inspection, the environmental scientist/hygienist and licensed asbestos removal contractor must confirm in writing to the exemption holder that the soil material is acceptable for treatment in accordance with the approved ROMP and RMMP or otherwise state that the soil is not acceptable.

(d) Incoming loads of soil must be sampled for laboratory analysis in accordance with the ROMP at the following rates:

(i) for multiple loads from the same source site, at a rate of 1 sample per 500 cubic metres or part there of

(ii) for any load from a single source site that is not greater than 500 cubic metres, one sample per each load received from that source site.

(e) Provide further details of dust suppression measures to reduce the likelihood of airborne emissions from the stockpiles, including but not limited to boundary mist systems, dust suppression systems directed onto pre- and post- treatment soil stockpiles and treatment trains.

(f) Provide further details of the air monitoring program and remedial responses to any incident of asbestos fibres being detected in the air at a level of more than 0.01 fibres/ml.

(a) documented in writing;

(b) signed by a duly authorised officer of the licensed entity; and

(c) submitted to the Authority for its approval.

Prior to the commissioning of the plant, equipment and processes hereby authorised under the exemption you must:

(a) Appoint an independent Licensed Asbestos Removal Contractor to carry out the assigned duties in the approved ROMP, which must include but are not limited to:

(i) inspect source sites to evaluate if the condition of soil is acceptable for processing;

(ii) have an understanding of the asbestos contamination being received at the site;

(iii) prepare and implement risk minimisation plans for asbestos remediation works;

(iv) handpick and remove visible asbestos containing materials from soil where identified;

(v) appropriately package asbestos waste materials for disposal in the onsite cell;

(vi) implement contingency procedures in the event of friable asbestos being identified; and

(vii) ensure stockpiles are managed to proactively minimise dust risks and cross contamination.

(b) Appoint an independent Environmental Consultant/Hygienist to carry out the assigned duties in the approved ROMP, which must include but are not limited to:

(i) inspect source sites to evaluate if the condition of soil is appropriate for processing;

(ii) review environmental site assessment including site history and waste classification documentation prior to loads arriving onsite to confirm that there is no likelihood of friable asbestos or disintegrated bonded asbestos being present in the loads;

(iii) evaluate whether asbestos has been appropriately characterised at source sites and make recommendations for further assessment;

(iv) undertake soil sampling for laboratory analysis in accordance with the most current version of the standard AS 4964 at pre-acceptance and pre-dispatchment of soil;

(v) visually inspect soil (at pre-acceptance, processing and pre-dispatchment) for the presence of friable asbestos or asbestos fibres;

(vi) assist with stockpile management and establishing environmental control measures;

(vii) assist with implementing contingency procedures;

(viii) monitor compliance with environmental commitments and obligations;

(ix) assist with achieving hygiene requirements of asbestos remediation work (i.e. providing air monitoring, conducting clearance inspection and issuing clearance certificates); and

(x) liaise with site management regarding corrective, preventative improvement actions to better manage the overall soil processing operation.

(c) Engage an Environmental Auditor (appointed under the Environment Protection Act 2017) to:

(i) Conduct independent reviews and endorsements of the RMMP and ROMP prepared under conditions EX_08 and EX_09 of this exemption to confirm that these documents satisfactorily meet the conditions of this exemption;

(ii) Prior to the application to commence commissioning in accordance with the Commissioning Plan, provide written independent confirmation that the development has been prepared and completed in accordance with all the requirements and authorisations set out under this exemption and is consistent with the approved ROMP and RMMP.

(iii) Conduct an independent review and endorse the Commissioning Plan to confirm that the Commissioning Plan is consistent with the RMMP and ROMP and any other operational requirements of the development hereby authorised under this exemption.

(iv) Independently confirm in a written statement that the commission activities carried out under this exemption have been undertaken in accordance with the conditions of this exemption, and the ROMP and RMMP, including by way of on-site observations and verification of data in the commissioning report, and state whether the environmental auditor agrees or disagrees with conclusions drawn from the commissioning report about the performance of the development in the commissioning phase and make any recommendations for the future operation of the development so as to meet the performance requirements set out in the ROMP and RMMP or otherwise comply with all relevant duties under the Environment Protection Act 2017.

1. Prior to submitting the RMMP and ROMP to the Authority for its approval, the Environmental Auditor engaged by you must:

(a) Conduct independent reviews and endorsements of the RMMP and ROMP prepared under conditions EX_08 and EX_09 of this exemption to confirm that these documents satisfactorily meet the conditions and requirements of this exemption.

(b) Provide a written statement to you confirming that the RMMP and ROMP satisfy the conditions and requirements of this exemption.

1. You must provide a copy of the written statement required under condition EX_11(1)(b) to the Authority when submitting the RMMP and ROMP for approval as required under EX_R01.

Commissioning activities must be undertaken in accordance with the approved Commissioning Plan.

Commissioning must not cause or result in any breach of any permission or exemption issued by the Authority for the permission or exempted activity, except where authorised by a condition of this exemption.

During the commissioning period, you must only operate the development hereby authorised by this exemption in accordance with the approved Commissioning Plan and the requirements of EX_RO1.

1. Within 90 days of the completion of the approved commissioning activities, you must provide to EPA a written Commissioning Report that summarises the commissioning activities undertaken and includes but is not limited to reporting the following:

(a) average testing times (laboratory testing turnaround times) required for incoming and screened materials;

(b) maximum and mean throughput rates recorded during the commissioning period;

(c) a mass balance over the commissioning period for incoming and outgoing materials and material disposed to landfill;

(d) used and available storage capacities at the start and end of each day during the commissioning period;

(e) a summary of air emissions monitoring results (with appended results for all air emissions testing) indicating mean, upper and lower detection concentrations of asbestos fibres.

(f) assessment of the projected performance to demonstrate that the air emissions from the asbestos containing soil processing operation can be improved or maintained at acceptable levels; and

(g) results from Pre-acceptance and Pre-dispatchment Testing and Evaluation Programs and confirmation of the effectiveness of the Post Abatement Clearance Certificate Process as specified in the approved ROMP, but not be limited to, the following:

(i) details of the soil source sites including location, dates, volumes;

(ii) results and findings of source site inspections and soil testing;

(iii) quality (e.g. description of soil including any contaminants, clay, moisture content) and quantity of soil received for processing;

(iv) quality (e.g. description of soil including any contaminants, clay, moisture content) and quantity of soil dispatched from the site;

(v) quantity of asbestos containing material disposed of at the landfill;

(vi) details of the post abatement soil receiver sites including location, dates, volumes and receiver inspection and testing information.

1. The written report under this condition is to be independently verified by the engaged Environmental Auditor required under condition EX_10(c)(iv) of this exemption prior to submission to EPA of the report.
2. The statement from the Environmental Auditor prepared in accordance with condition EX_10(c)(iv) and required by condition EX_CO4(2) must be appended to the Commissioning Report.

1. Prior to commencing any activities authorised under this exemption, you must submit to the Authority for approval:

(a) A revised site layout plan showing where the incoming, processed and outgoing materials will be stored.

(b) Calculations of the capacity of the storage areas and systems put in place to prevent excess materials being retained on the site.

(c) Design of walled storage bays to store incoming and screened soil material.

(d) Dimensions of the stockpiles to be stored in the walled storage bays. This must include requirements that stockpiles must not exceed a maximum height of 3 m and exceed maximum volumes of 500 cubic metres for incoming (received untreated) soil material and 100 cubic metres of treated soil stored within each bay.

(e) Design of dust suppression sprinkling and misting systems to cover the entire activity areas, including automated systems.

(f) Design of the dust control measures at the screening plant (including screening and raking operations) to maintain soil in a damp condition by using water sprays and/or misters.

(g) Design of ground cover, such as geofabric material, or compaction clay layer, with permeability of 10-9 m/s for the entire site, as appropriate, with a protective cover layer.

(h) Design of the stormwater management system for the entire soil processing area (i.e. Cell 3) directing contaminated runoff to appropriate points of discharge or treatment systems. The stormwater management system must be designed for 1 in 20-year stormwater event.

(i) Design of an air monitoring program and air monitoring stations for dust and asbestos to confirm that the risk to human health and the environment is minimised (i.e. asbestos in air is less than 0.01 fibres/mL) within and beyond the boundaries of the activity area.

1. You must provide a construction verification report prepared by a suitably qualified person or persons detailing construction of the security fencing, ground cover and the stormwater management systems for the entire activity site as per the specifications of the application and the requirements approved by the Authority under EX_D01 above, including but not limited to:

(a) the permeability of the ground cover and liner thickness;

(b) the effectiveness of stormwater control system; and

(c) installation of dust suppression measures and air quality monitoring infrastructure.

1. The report required under EX_D02 must be accompanied by the written confirmation by the Environmental Auditor set out in condition EX_10(3)(ii).

This exemption does not allow you to commission the developments that are the subject of your application, until you have received written approval from the Authority that conditions EX_D01, EX_D02 and EX_R01 of this exemption have been met.

You must notify the Authority when the developments covered by this exemption has been completed.

This exemption does not allow you to undertake any activities that are the subject of your application until the Authority has inspected the completed developments and provides written approval that such activities can be undertaken.

Following the completion of development and commissioning activities to the satisfaction of the Authority, you must submit an application for an Operating Licence or Operating Licence amendment for ongoing operation of the development works set out in condition EX_D01, including as necessary, a revised site plan. This application must be made at least 60 days prior to the expiry date of this approval.

At least 45 days before the commencement of any commissioning, you must submit to the Authority for approval:

(a) The RMMP as reviewed by the environmental auditor appointed under condition EX_10(3).

(b) The ROMP as reviewed by the environmental auditor appointed under condition EX_10(3).

(c) The written confirmation of the environmental auditor that confirms that the RMMP and ROMP have been prepared in accordance with the conditions of this exemption.

(d) A Commissioning Plan covering proof of performance for an adequate duration demonstrating how the new installations and pollution control measures are effective and the effectiveness of the approved ROMP. The proof of performance period must be adequate to gather statistically valid information from testing and analysis from a range of soil source sites representing the range of soil conditions and source sites likely to be encountered in future operations and address any other requirements of the Commissioning Report required under EX_C04.

(e) Detailed Contingency Procedures which will be followed in the event of friable asbestos or asbestos fibres being detected during the commissioning phase and any the detection of air emissions exceeding the limit of 0.01 Fibres/ml by the air monitoring program.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Operating licence OL000011758 issued to ARC Pty Ltd, first issued on 14 February 1994 and amended 28 June 2022. Appendix 4 of that licence details the waste that may disposed of to the landfill which includes Treatment code D19 - landfill disposal of soil with asbestos only and D20 - landfill disposal of packaged waste asbestos: see TB p50.

[4] Sections 44 and 45 of the Environment Protection Act 2017 (Vic) apply.

[5] Guidelines for the Assessment, Remediation and Management of Asbestos Contaminated Sites in Western Australia, Government of Western Australia Department of Health, section 1.4 ('WADOH Guidelines'); Tribunal Book ('TB'), p5824.

[7] Sustainability Victoria, February 2021 (most recent update December 2022) ('ADM Plan'). Supplementary Tribunal Book ('STB'), p120.

[10] WADOH Guidelines, section 1.5.1; TB p5825.

[11] Ibid. See also the National Environment Protection Measures Schedule B1 - Guideline on Investigation Levels for Soil and Groundwater ('NEPM Schedule B1'), p77; TB p6009.

[13] WADOH Guidelines, section 1.5.2; TB p5825.

[15] Ibid. See also the NEPM Schedule B1, p78; TB p6010.

[16] WADOH Guidelines, section 1.5.3; TB p5826. See also NEPM Schedule B1, p77; TB p6009.

[17] https://www.epa.vic.gov.au/for-community/environmental-information/household-waste/about-asbestos; https://www.asbestos.vic.gov.au/about-asbestos/health-facts

[18] https://www.asbestos.vic.gov.au/about-asbestos/health-facts

[20] For instance, when asbestos was found in a playground in a western suburb of Melbourne in April of 2024.

[21] Edition 2, December 2019, WorkSafe Victoria.

[22] To the extent that that document deals with their duties or obligations under that legislation. See the Compliance Code, p2.

[27] OHS Regulations Part 4.4 Asbestos and as discussed in the Compliance Code [235]-[246].

[28] ADM Plan, page 2, 5; STB pp124 and 127.

[29] Footnote from quote: 'Note that there are additional privately-owned landfills that manage their own asbestos and are not included in statewide infrastructure planning.'

[30] Footnote from quote: 'A desktop review of differences between EPA's Waste Transport Certificates (i.e. asbestos not disposed of by household removalists) and landfill levy (all disposed asbestos) data over a 12-year period demonstrates some variation, for which there are likely several causes. This data is expected to improve with better use of waste codes and with data collected through the work of the Asbestos Plan.'

[32] Footnote from quote: 'Population figures have been based on 2016 ABS census data'.

[34] Notice of making of a Determination in accordance with Regulation 5(5) of the Environment Protection Regulations 2021, Victoria Government Gazette, No. S 301 Friday 18 June 2021.

[36] Department of Climate Change, Energy, the Environment and Water.

[37] Guidelines for the Assessment, Remediation and Management of Asbestos-Contaminated Sites in Western Australia, 2021.

[38] Section 9 of the EP Act explains that 'A simplified outline of any portion of this Act set out in a section of this Act is intended only as a guide to readers as to the general scheme and effect of that portion of this Act'.

[47] Such a determination is made under regulation 5 of the EP Regulations.

[51] Dated April 2021; Release date 15 June 2021.

[58] See Fill Determination, clause 5. TB, p5686. We note here the clause 2 of the Fill Determination refers to receiving fill at a place or premises 'in accordance with the specifications set out in Clause 4...'. However, Clause 4 is headed 'Application' and details what waste or activity the Fill Determination does or does not apply to. Clause 5 is headed 'Specifications' and sets out the specifications to be met for the purposes of Regulation 63(b) of the EP Regulations. We have referred to the appropriate operation clause of this Fill Determination in our reasons.

[59] Source: https://www.epa.vic.gov.au/for-business/waste/waste-classification/how-to-classify-waste.

[60] Item 85 of Schedule 5 is also a solid and sludge waste requiring special handling, being waste acid sulfate [sic] soil (Actual Acid Sulfate [sic] Soil and Potential Acid Sulfate [sic] Soil), other than item 83 of the table in Schedule 5.

[61] Waste Disposal Categories, p3; TB p5708.

[64] Waste Disposal Categories, p4; TB p5709.

[65] Waste Disposal Categories, p5; TB p5710.

[66] August 2021. Commencing at TB p5749.

[67] At page 2 of Publication 1968.1. TB p5750.

[68] At page 3 of Publication 1968.1. TB p5751.

[69] With respect to what is relevant to this proceeding.

[70] Pages 6-8 of Publication 1968.1. TB p5754-56.

[71] See pages 19 to 33 of Publication 1968.1. TB pp 5767-5781.

[72] Figure 10 of Publication 1968.1. TB p5767.

[73] Whether in conjunction with other contaminants at concentrations above Category D or not.

[74] Either Waste Tracker or an authorised alternative.

[78] See endnote Table of Applied, Adopted or Incorporated Matter included in the EP Regulations S.R. No. 47/2021, and regulations 4, 8, 11 and 13 of the EP Regulations.

[79] For completeness we note there is a comparable definition of friable asbestos in the OHS Regulations.

[81] WADOH Guidelines at section 3.8; TB p5844.

[85] Section 4.9 through to 4.11 of the NEPM; TB p5962-5966.

[86] The most recent amendment of which is dated 28 June 2022.

[87] EP Regulations, r 16(2) and schedule 1 Table items A05a and A01.

[88] Outline of Submissions on Behalf of Australian Recycling Corporation Pty Ltd, Part A - Comparative Assessment, 13 October 2023, [9]. Our emphasis added.

[89] Decision-Maker's Submission on Preliminary Question, 13 October 2023, [30].

[90] Schedule 5, item 83 of the EP Regulations.

[91] Regulations 16(1)-(2) and Schedule 1, table, item 1 of the EP Regulations.

[92] ARC's written submissions, [37]; STB, p78. This Improvement Notice replaced a clean up notice first issued in June 2018.

[93] The applicant became the registered proprietor of the premises on 3 December 2019: See ARC's written submissions, [34]; STB p78.

[94] ARC's written submissions, [38]; STB p78.

[95] See the application form at TB p1970 and description of the proposal at TB pp1984 and 1990 in supporting documentation.

[96] A01 Exemption Application - Asbestos in Soil Processing ARC, 500 Sunbury Road, Bulla, prepared by Prensa, November 2023; TB p1979.

[97] This schematic is contained in the Applicant Report November 2023 prepared by Prensa (TB p2027) and in the Asbestos in Soil Processing Area Plan August 2023 prepared by Prensa (TB p2202).

[98] The following summary is drawn from the Asbestos in Soil Processing Area Plan August 2023 prepared by Prensa, commencing at TB p2208 and Table 3 at section 10 of the Remediation Operations Management Plan ('ROMP') at Appendix I of the Prensa application report at TB pp2144-2146.

[99] Refer to the second exemption application prepared by Prensa in November 2023 at section 10 of Appendix I, TB pp2144-2146.

[100] The ROMP was presented as Appendix I in the supporting document that accompanied ARC's application; See TB, p2127.

[101] Set in sections 11 (Table 4), 12 (Table 5) and 13 (Table 6) of the ROMP, commencing at TB p2147.

[102] We have drawn on information from the Application Report dated November 2023 prepared by Prensa (commencing at TB 1979), the draft premises plan found at TB p2027 and Appendices I and J of that report: Asbestos in Soil Remediation Operations Management Plan commencing at TB 2128 and Asbestos in Soil Processing Area Plan August 2023 prepared by Prensa, commencing at TB p2202.

[103] Limit of reporting for a laboratory analytical method.

[104] [2023] VSC 353 ('Hanson Construction Materials').

[105] Conveniently the Tribunal Book filed in this proceeding includes this evidence and materials and from the first review proceeding. When we have referred to or relied on those matters, our citations will refer to the point references in this proceeding's Tribunal Book.

[106] As described in the Statement submitted pursuant to order 3 of the Tribunal's orders of 28 September 2023, 2 October 2023, [7k].

[107] See regulation 67 and schedule 6 of the EP Regulations.

[109] Regulation 16(2) of the EP Regulations states that 'For the purposes of section 45 of the Act, an activity set out in column 3 of the Table in Schedule 1 is a prescribed operating activity if the corresponding entry in column 4 of that Table specifies that the activity is a prescribed operating activity'.

[111] EPA's opening submission, 9 April 2024, [4].

[112] EPA's opening submission, 9 April 2024, [5].

[113] EPA's opening submission, 9 April 2024, [6].

[114] EPA's opening submission, 9 April 2024, [6].

[115] EPA's opening submission, 9 April 2024, [9].

[116] EPA's opening submission, 9 April 2024, [13].

[117] EPA's opening submission, 9 April 2024, [14], quoting from the Ministerial Advisory Committee independent inquiry into the EPA, page 230.

[118] EPA's opening submission, 9 April 2024, [15], quoting from the Explanatory Memorandum to the Environment Protection Amendment Bill 2018, Key Reforms at pages 2-3.

[119] EPA's opening submission, 9 April 2024, [20].

[120] EPA's opening submission, 9 April 2024, [21].

[121] Transcript of 18 June 2024, page 76, line 31.

[122] EPA's opening submission, 9 April 2024, [21.1].

[123] EPA's opening submission, 9 April 2024, [21.2].

[124] EPA's opening submission, 9 April 2024, [21.3].

[125] EPA's opening submission, 9 April 2024, [21.4].

[126] EPA's opening submission, 9 April 2024, [21.5].

[127] EPA's opening submission, 9 April 2024, [21.6].

[128] EPA's opening submission, 9 April 2024, [21.7].

[129] EPA's opening submission, 9 April 2024, [21.8].

[130] EPA's opening submission, 9 April 2024, [21.9].

[131] For instance, Argus Tallow Merchants Pty Ltd (EXM000300055); ACM Processing Pty Ltd (EXM000300111).

[132] Transcript of 18 June 2024, page 69, lines 3-4.

[133] See section 69(3)(a) and 74(3)(a) of the EP Act.

[134] Transcript of 18 June 2024, pp 24-28 and pp 34-38.

[135] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2024, Revised 31 May 2024, [86].

[136] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2024, Revised 31 May 2024, [87].

[137] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2024, Revised 31 May 2024 [88]-[91].

[138] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2024, Revised 31 May 2024 [92].

[139] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2024, Revised 31 May 2024 [6], [9] and [10].

[140] Transcript of 18 June 2024, page 101, lines 25-26.

[141] Macquarie Dictionary online, Pan Macmillan Australia 2025.

[142] Macquarie Dictionary online, Pan Macmillan Australia 2025.

[145] Pursuant to section 455 of the EP Act.

[146] EP Act, s 456(1)(b) and as explained in the Charter, pages 15-17.

[154] Transcript of 18 June 2024, page 72, lines 28-29.

[155] EPA's opening submission, 9 April 2024, [21].

[156] EPA's opening submission, 9 April 2024, [6].

[157] Transcript of 18 June 2024, page 28, lines 6-31.

[158] EPA's opening submission, 9 April 2024, [21.4].

[159] Transcript of 18 June 2024, page 43, lines 12-16 in the context of the broader discussion at page 41, lines 13-31; page 42, lines 1-31; page 43, lines 1-31; page 44, lines 1-2.

[160] Transcript of 21 June 2024 page 483, lines 15-25.

[162] Transcript of 18 June 2024, page 69, lines 3-4.

[163] Transcript of 18 June 2024, page 23 lines 23-31, page 24 lines 1-19, page 73 lines 23-29.

[164] Provided by Lexi Nexis Publishers.

[165] Transcript of 18 June 2024, page 24 lines 1-10.

[168] Publication 1799.2, June 2021; commencing at TB p5720.

[169] Transcript of 18 June 2024, page 88, lines 12-14.

[170] Transcript of 18 June 2024, page 88, lines 19-21.

[171] Transcript of 18 June 2024, page 36.

[172] Evidence statement dated 19 July 2023 at [5.28.1] - [5.28.3]; TB p616.

[173] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2023, [75].

[174] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2023, [75]-[76].

[175] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2023, [77]-[79].

[176] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2023, [23].

[177] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2023, [14].

[178] At Schedule B1, section 4.8, table 7 along with the WADOH Guidelines at section 3.8, table 3.

[179] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2023, [15]-[19].

[180] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2023, [21].

[181] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2023, [22].

[182] Environmental auditors are appointed by the Authority under Part 8.3 of the EP Act.

[183] See for example the Authority's closing submissions. Transcript of 21 June 2025, p27/138 Lines 14-25.

[184] See section 4.7 of the NEPM; TB p5961.

[185] EPA's opening submission, 9 April 2024, [42].

[187] EPA's opening submission, 9 April 2024, [43]-[44].

[188] Transcript of 21 June 2024, page 431, lines 6-7.

[189] EPA's opening submission, 9 April 2024, [45].

[190] Transcript of 21 June 2024, page 483, lines 26-28.

[192] Outline of submissions on behalf of Australian Recycling Corporation Pty Ltd, 9 April 2023, [80]-[84].

[193] EPA's opening submission, 9 April 2024, [45].

[194] This likely reflects the limits on interests under section 434 of the EP Act for third party reviews of development licence decisions.

[196] Published by the Authority and publicly available on its website since 23 June 2021

[197] EPA's opening submission, 9 April 2024, [10].

[198] EPA's opening submission, 9 April 2024, [46]-[55].