Eco Cycle Materials Pty Ltd v Environment Protection Authority

The proposed variation

1. The proposed variation (Ex A) now comprises the insertion of a new category of waste "soils" meeting the descriptions under the existing columns of the table to Condition L2.1 and a new Condition L2.5 as set out below: Condition L2 "L2 Waste L2.1 The licensee must not cause, permit or allow any waste to be received at the premises, except the wastes expressly referred to in the column titled "Waste" and meeting the definition, if any, in the column titled "Description" in the table below. Any waste received at the premises must only be used for the activities referred to in relation to that waste in the column titled "Activity" in the table below. Any waste received at the premises is subject to those limits or conditions, if any, referred to in relation to that waste contained in the column titled "Other Limits" in the table below. This condition does not limit any other conditions in this licence. Code Waste Description Activity Other Limits N/A Virgin excavated natural material As defined in Schedule 1 of the POEO Act, in force from time to time Waste processing (non-thermal treatment) Waste storage The total amount of waste material stored at the premises at any one time must not exceed 205,000 tonnes. N/A Concrete, brick and asphalt Waste processing (non-thermal treatment) Waste storage The total amount of waste material stored at the premises at any one time must not exceed 205,000 tonnes Arsenic 40mg/kg; Cadmium 2mg/kg; Copper 200mg/kg; N/A Soils Soil that meet the CT1 thresholds for General Solid Waste in table 1 of the Waste Classification Guidelines as in force from time to time with the exception of the maximum threshold values for contaminants specified in the "Other Limits" column Waste processing (non-thermal treatment) Waste storage Mercury 1.5mg/kg; Zinc 600mg/kg; Petroleum Hydrocarbons C6-C9 150mg/kg; Petroleum Hydrocarbons C10-C36 1600mg/kg; Polycyclic aromatic hydrocarbons 80mg/kg; Polychlorinated biphenyls (individual) 1mg/kg. No Acid Sulfate Soil or Potential Acid Sulfate Soil is to be received at the Premises. Soil thresholds will be subject to review from time to time. Lead SCC 1,500mg/kg TCLP 5mg/L; Arsenic 40mg/kg; Cadmium 2mg/kg; Copper 200mg/kg; Mercury 1.5mg/kg; Zinc 600mg/kg; Petroleum Hydrocarbons C6-C9 150mg/kg; Petroleum Hydrocarbons C10-C36 1600mg/kg; Polycyclic aromatic hydrocarbons 80mg/kg; Polychlorinated biphenyls (individual) 1mg/kg. N/A Soils Soils containing building and demolition waste that meets the CT1 thresholds in table 1 of the Waste Classification Guidelines as in force from time to time with the exception of the maximum values for contaminants specified in the "Other Limits" column Waste processing (non-thermal treatment) Waste storage No Acid Sulfate Soil or Potential Acid Sulfate Soil is to be received at the Premises. Soil thresholds will be subject to review from time to time N/A Waste Any waste received on site that is below licensing thresholds in Schedule 1 of the POEO Act, as in force from time to time N/A

L2.2 The height of any stockpile of waste material at the premises must not exceed the height limit of four metres and 900 centimeters (4.9m). L2.3 The licensee must install and maintain stockpile height markers at the premises. The markers must show the stockpile height limit of four metres 900 centimetres (4.9m) and be positioned so that a visual check can be made of all stockpiles at the premises. L2.4 The authorised amount of waste permitted on the premises cannot exceed 205,000 tonnes at any time. L2.5 Soils classified as General Solid Waste (non-putrescible) referred to in the table above may only be accepted in accordance with the Materials Management Plan by ADE dated August 2020 (currently in draft form)."

1. The reference in the condition (Condition L2) to meeting "…the CT1 thresholds in table 1 of the [WCG]" is a reference to the maximum set values for classifying waste by chemical assessment without the need for TCLP testing. The "Other limits" column refers to the set values taken from Table 2 of the WCG for TCLP and SCC values for classifying waste by chemical assessment being the maximum values for leachable concentration and specific contaminant concentration when used together.

The issue for determination

1. After the revision of the application the EPA no longer pressed Contentions 1, 2 and 3 of its SOFC in Reply. The sole issue remaining is whether, on the merits, the Court should grant the licence variation which proposes, in effect, that the concentration of lead permitted to be present in the soils received under the new proposed category in Condition L2.1 would be governed by the concentration limits for lead in Table 2 of the WCG for General Solid Waste instead of the CT1 thresholds.
2. This issue was addressed by the parties' waste industry experts Mr Ly (EPA) and Mr Mitchell (ECORR) in the joint report (Ex 1) and in oral evidence in Court.

Statutory framework

1. On appeal the Court in assessing and determining the application to vary the licence is exercising the functions conferred by s 58 of the POEO Act and in its consideration of the terms of s 58(6) must have regard to the matters in ss 45 and 50 of the POEO Act.
2. Section 287 of the POEO Act provides: 287 Appeals regarding licence applications and licences (1) Any person - (a) who makes a licence application and who is aggrieved by any decision of the appropriate regulatory authority with respect to the application, or (b) who is or was the holder of a licence and who is aggrieved by any decision of the appropriate regulatory authority with respect to the licence, may, within 21 days (or such other period as is prescribed instead by the regulations) after being given notice of the decision of that authority, appeal to the Land and Environment Court against the decision. (1A) The lodging of an appeal - (a) in the case of an appeal against a decision to suspend or revoke a licence (whether with or without conditions) - does not operate to stay the decision appealed against, and (b) in the case of an appeal against any other decision - does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the decision appealed against. (1B) For the avoidance of doubt, the Land and Environment Court has no jurisdiction to make an order staying a decision referred to in subsection (1A) (a). (2) An appeal under this section extends to a decision to refuse the licence application, to impose conditions on the issue of a licence, to vary the conditions of a licence, to revoke or suspend a licence, to refuse to approve the surrender of a licence, to impose conditions on a revocation, suspension or surrender of a licence or to attach any new conditions to, or to vary any conditions of, a suspension, revocation or surrender of a licence. Note - The Dictionary defines licence application to mean an application for the issue, transfer or variation of a licence or for approval of the surrender of a licence. (3) For the purposes of this section, a licence application is taken to have been refused - (a) in the case of an application for a variation of a licence about which the appropriate regulatory authority is required to invite and consider public submissions under section 58 (6), if the application is not granted within 90 days after it is duly made, or (b) in the case of an application for a licence relating to controlled development, if the application is not granted within 60 days after it is duly made or within 30 days after development consent is granted for the controlled development, whichever is the later, or (c) in any other case, if the application is not granted within 60 days after it is duly made. (4) The period commencing when an applicant is duly required under this Act to provide additional information within a specified period for the purposes of determining a licence application and ending when that information is provided or the specified period ends (whichever occurs first) is not to be taken into account in determining whether a licence application is taken to have been refused. (5) Nothing in this section prevents the determination of a licence application under this Act after the end of a period referred to in subsection (3). (6) There is no appeal under this section against a condition that is imposed on a licence, or varied or revoked, by the regulations. Note - Section 4.52 of the Environmental Planning and Assessment Act 1979 provides that, in the case of integrated development under that Act involving a licence application, the Court is under the same obligation as the appropriate regulatory authority with respect to the issue of the licence in accordance with the previous general terms of any approval by that authority.
3. Section 45 of the POEO Act provides: 45 Matters to be taken into consideration in licensing functions In exercising its functions under this Chapter, the appropriate regulatory authority is required to take into consideration such of the following matters as are of relevance - (a) any protection of the environment policies, (b) the objectives of the EPA as referred to in section 6 of the Protection of the Environment Administration Act 1991, (c) the pollution caused or likely to be caused by the carrying out of the activity or work concerned and the likely impact of that pollution on the environment, (d) the practical measures that could be taken - (i) to prevent, control, abate or mitigate that pollution, and (ii) to protect the environment from harm as a result of that pollution, (e) any relevant green offset scheme, green offset works or tradeable emission scheme or other scheme involving economic measures, as referred to in Part 9.3, (f) whether the person concerned is a fit and proper person, Note - See section 83 for provisions relating to the determination of whether a person is a fit and proper person for the purposes of this section. (f1) in relation to an activity or work that causes, is likely to cause or has caused water pollution - (i) the environmental values of water affected by the activity or work, and (ii) the practical measures that could be taken to restore or maintain those environmental values, (g) in connection with a licence application relating to the control of the carrying out of non-scheduled activities for the purpose of regulating water pollution - whether the applicant is the appropriate person to hold the licence having regard to the role of the applicant in connection with the carrying out of those activities, (h) in connection with a licence application - any documents accompanying the application, (i) in connection with a licence application - any relevant environmental impact statement, or other statement of environmental effects, prepared or obtained by the applicant under the Environmental Planning and Assessment Act 1979, (j) in connection with a licence application - any relevant species impact statement prepared or obtained by the applicant under the Threatened Species Conservation Act 1995 or Part 7A of the Fisheries Management Act 1994, (k) in connection with a licence application, any waste strategy in force under the Waste Avoidance and Resource Recovery Act 2001, (l) in connection with a licence application - (i) any public submission in relation to the licence application received by the appropriate regulatory authority under this Act, and (ii) any public submission that has been made under the Environmental Planning and Assessment Act 1979, in connection with the activity to which the licence application relates, and that has been received by the appropriate regulatory authority, (m) if the appropriate regulatory authority is not the EPA - any guidelines issued by the EPA to the authority relating to the exercise of functions under this Chapter.
4. Section 50 of the POEO Act provides: 50 Timing of licensing of development requiring consent under EP&A Act (1) Licensing of development controlled under EP&A Act This section applies to development that cannot be carried out without development consent under the Environmental Planning and Assessment Act 1979. This development is called controlled development in this section. (2) Licence to be concurrent A licence that relates to controlled development must not be granted or varied (other than on the initiative of the EPA) by the appropriate regulatory authority, unless development consent has been granted for the controlled development. However, this section does not prevent the consideration of a licence application by the appropriate regulatory authority before development consent is granted. (3) Existing use Without limiting the above, this section does not apply to the extent that development consent is not necessary under the Environmental Planning and Assessment Act 1979 because of an existing use. (4) Definitions In this section - development has the same meaning as in the Environmental Planning and Assessment Act 1979. development consent means consent under Part 4 of the Environmental Planning and Assessment Act 1979, and includes approval to carry out a project or infrastructure under Part 3A or Division 5.2 of that Act. existing use has the same meaning as in Division 4.11 of the Environmental Planning and Assessment Act 1979.
5. Section 58 of the POEO Act provides: 58 Variation of licences (1) The appropriate regulatory authority may vary a licence, including the conditions of the licence. (2) A variation includes the following - (a) attaching a condition to a licence, whether or not conditions are already attached to the licence, (b) substituting, omitting or amending a condition of a licence. (3) A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority. (4) A licence may be varied at any time during its currency, including on its being transferred to another person. (5) A licence is varied by notice in writing given to the holder of the licence. (6) If - (a) the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and (b) the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979, the appropriate regulatory authority is to invite and consider public submissions before it varies the licence.

Section 50(2)

1. Section 50(2) of the POEO Act precludes the grant of the licence variation if this would permit the carrying out of development which is not the subject of development consent granted under the Environmental Planning and Assessment Act 1979 (EPA Act). As noted, after confinement of the proposed variation the EPA no longer raised a contention that s 50(2) of the POEO Act presented a jurisdictional bar to the granting of the revised variation of the EPL. I am also of that opinion given that the operative consent clearly authorises use of the premises as a road materials recycling facility and allows for the receipt of the material proposed by the variation.
2. In forming that view I note that Condition 1 of DA 920/99 granted under Pt 4 of the EPA Act by Fairfield City Council on 5 January 2000 provides: "The works and operations, the subject of this approval, shall be conducted in accordance with the Environmental Impact Statement prepared by Granherne Pty Ltd (dated 21 April 1999) and its supplements except as modified by the conditions of this consent."
3. Relevantly, there is no condition of consent which directly governs or modifies the wastes or materials that may be received on the Land. However, the consent by Condition 1 expressly incorporates the Environmental Impact Statement prepared by Granherne Pty Ltd dated 21 April 1999 (Ex B at pp135-630) (EIS) that sets a limitation. Paragraph 51(d) of the EIS document refers to the acceptance of road base materials such as sandstone, shale, sand concrete, bricks and clays onto the site for recycling (see also p 42 of the EIS Table 2.1 - the list of products from the proposed facility).
4. For the reasons outlined above as submitted by the applicant (AWS in Opening on pp 10-11 at pars 43-54), the additional material now sought to be received on the Land, by the revised variation, is clearly within the terms of the development consent for the Land. Therefore, the proposed licence variation would not infringe against the provision made by s 50(2).

Section 58(6)

1. There is no contention put by the EPA or evidence before the Court which suggests that the proposed variation would authorise a significant increase in the environmental impact of the activities authorised or controlled by ECORR's EPL.
2. In that regard, I accept that the licence variation application will permit under the POEA Act, an activity that is consistent with the EIS that was publicly exhibited with the DA prior to the grant of consent. Accordingly, in those circumstances there is no need for further public submissions to be invited or considered in my assessment of the merits of the application.
3. Having considered both limbs of s 58(6) there is no basis under that provision to prevent an approval of the variation of the condition.

Section 45(a)

1. ECORR submits that it is not aware of any protection of the environment policies that have any relevant application, and the EPA does not contend otherwise (noting that "protection of the environment policies" are policies made under Ch 2 of the POEO Act).
2. Mr Ly gave evidence that the variation would not support the EPA Resource Recovery Guidelines, at p 5 in Part D in respect to blending to reduce the concentrations of harmful contaminants which he believed applied to material prior to testing (Tcpt, 5 July 2022, pp 135(21)-136(10)). The applicant disagreed and submitted these Guidelines are not policies made under Ch 2 of the POEO Act. Nonetheless, even if they were relevant on further interrogation of Mr Ly's evidence, it seems he was referring to blending to reduce harmful contaminants before characterisation. Mr Mitchell explained what actually happens on the site in some detail and based on that explanation, I do not understand that these Guidelines are breached by the proposed activities as there is no blending to reduce contaminants (Tcpt, 5 July 2022, pp 136(35)-138(50)).

Section 45(b)

1. During concurrent evidence, the experts agreed that the business carried out by ECORR promoted the objectives under s 6(1) of the Protection of the Environment Administration Act 1991 (POEA Act). In that regard, I note: 1. The objective under s 6(1)(a) "to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development" is a relevant consideration. The objective expressly incorporates the need to maintain ecologically sustainable development and I accept that this objective is promoted by the re-use and recovery of resources and their diversion from landfill. I also accept that the proposed variation would further promote this objective by permitting ECORR to recover and re-use waste soils containing building and demolition wastes that it is presently not permitted to receive. 1. The objective under s 6(1)(b) "to reduce the risks to human health and prevent the degradation of the environment", by means such as then set out in that subsection is relevant. In particular, that objective expressly incorporates under its fifth dot point "encouraging the re-use and recycling of materials and encouraging material recovery". Again, I accept that the proposed variation would promote this objective. With respect to health risks, I deal with this shortly but later and accept Mr Mitchell's evidence that there is no issue.

Section 45(c) and (d)

1. There is no evidence that the granting of the application would cause any pollution or consequential likely impact on the environment.
2. Nonetheless, if the permission to receive soils with higher concentration of lead than currently permitted did carry with it any risk at all of pollution and mindful of the matters in s 45(d), then the evidence of Mr Mitchell after inspection of the operating site on 16 May 2022 that the site is well managed (Tcpt, 5 July 2022, pp 130(42) & 131(23-43)) and the following matters lend support to the granting of the application: 1. the incorporation of the draft Materials Management Plan (draft MMP) under proposed Condition L2.5; 2. the fact that ECORR's existing Quality Control and Environmental Management Systems are certified as meeting the requirements of Australian and global standards, respectively ISO 9001 (Quality Management Systems) and ISO 14001 (Environmental Management Systems); 3. the fact that ECORR engages third party consultants to take samples of their waste streams (whereas many other facilities conduct their own sampling); 4. the fact that ECORR, on its own initiative, has taken steps to satisfy additional requirements which had been proposed under an EPA consultation draft of a revised resource recovery order (RRO) and exemption (RRE) for recovered fines (Tcpt, 5 July 2022, p 131(38-43)); and 5. the evidence that the site is well managed in that regard (Gold star according to Mr Mitchell) (Tcpt, 5 July 2022, p 131(4-44) and p 132(13-35)).
3. In response to the following question from Mr Howard: "…would the permission granted to take up a maximum concentration of 1500 milligrams per kilogram of lead, subject to leachable concentration, create any risk of material harm being caused to the environment elsewhere in New South Wales and on the assumption that all other laws are complied with, including the provisions of the resource recovery orders and exemptions, and all other legislation", Mr Mitchell gave evidence that: "…the material lawfully leaves the ECORR premises either to go to landfill or out under a resource recovery order and exemption, … those orders and exemptions are quite stringent with many associated rules which adaptably control the risk (Tcpt, 5 July 2022, p128(34-39), and pp 128(48)-129(1)).
4. In Court Mr Ly agreed with Mr Mitchell that it was unlikely that receipt of the material at the 1,500 mg/kg of lead would present a risk of harm to other sites if the material met a relevant and appropriate RRO and RRE (Tcpt, 5 July 2022, p 128(42-45)). He accepted the health-based investigation level for lead for a commercial industrial premises at 1,500 mg/kg - (in the National Environment Protection Measures (NEPM) in Schedule B1). However, he did not believe that that this lead number was relevant for the use proposed by ECORR as he was concerned about the risk to the health of the workers coming into contact with lead in soil at 1,500 mg/kg during unloading, sorting and processing - using a front end loader. He described these as exposure scenarios that he believed had not been taken into account in the NEPM. Nor did he think that the draft MMP with its specific Quality Assurance/Quality Control protocols developed for these materials will avoid this risk.
5. While I appreciate Mr Ly concerns for the health of employees associated with receipt and processing of the proposed material his expert assessment was limited to a desk top analysis with no detailed understanding of how the business actually operates on the ground. He did not visit the site to inspect the premises, processes and practices which currently safeguard the health risks to employees nor appreciate how the draft MMP would integrate into existing safeguards. For these reasons, I prefer Mr Michell's expert assessment that the site is presently well-managed, to a "gold star" level and with the imposition of the draft MMP and continued independent auditing will continue to be so in the event of an approval of the application.

Section 45(e)

1. ECORR is not aware of any green offset works, tradeable emission scheme or other scheme involving economic measures as referred to in Pt 9.3 of the POEO Act having any relevant application and the EPA does not contend otherwise.

Section 45(f)

1. Based on the evidence before me, I consider ECORR to be a fit and proper person (having had regard to s 83 of the POEO Act), and there is no contrary contention raised by the EPA.

Section 45(f1)

1. There is no suggestion or evidence that the proposed variation concerns any activity that has caused or would be likely to cause water pollution. This head of consideration is not relevant.

Section 45(g)

1. As ECORR's licence variation application does not relate to the carrying out of non-scheduled activities for the purpose of regulating water pollution, this subsection is not relevant.

Section 45(h)

1. I have considered the documents accompanying the application as included in Ex B, but subject to the clarification and confinement of the application during the course of the hearing as required by s 45(h).

Section 45(i)

1. I have also had regard to the EIS forming part of Ex B. For the reasons identified above, the substance of this document lends weight to the granting of the application, because as Mr Mitchell identified during concurrent evidence - what is sought by way of the variation more closely aligns the EPL with the development consent.

Section 45(j)

1. As there is no relevant species impact statement, this matter is not a relevant consideration.

Section 45(k)

1. The experts agree that the waste strategy presently in force under the Waste Avoidance and Resource Recovery Act 2001 (WARR Act) is the Department of Planning, Industry and Environment publication entitled "NSW Waste and Sustainable Materials Strategy 2041, Stage 1: 2021 - 2027, dated ("First Published") June 2021 (the NSW 2021 Waste Strategy).
2. This document embodies a strategy which underlines the desirability of granting a licence variation that will promote the increased recovery and re-use of materials (Minister's message p 4).
3. Part 1 of the NSW 2021 Waste Strategy (p 9) refers to the circular economy, to which the State of New South Wales is transitioning, and the need to keep materials in use and reduce the volume of materials going to waste at landfill sites. Both experts agreed that the licence as proposed to be varied would meet the objectives of the NSW 2021 Waste Strategy (Tcpt, 5 July 2022, pp 133-134)). I am satisfied that the proposed licence variation is entirely consistent with the NSW 2021 Waste Strategy and is furthered by the granting of this application.

Section 45(l)

1. There were no public submissions made in relation to the licence variation. The EPA did not call for public submissions and there is no statutory procedure under the POEO Act for public submissions in relation to licence variations, subject only to the provision made by s 58(6) of the POEO Act, which I have earlier addressed.
2. I am also not aware of any public submission made under the EPA Act received by the EPA as the appropriate regulatory authority.

Section 45(m)

1. The EPA is the appropriate regulatory authority. This provision is not relevant as this provision is reserved for situations where other statutory authorities such as local councils play the role of appropriate regulatory authority.

Relevant objects of the POEO Act

1. Section 45 of the POEO Act does not mandate that the Court consider the objects of the POEO Act, as set out in s 3 of the Act. However, where relevant they ought to be considered and in that regard, I note that the experts were in agreement that the variation proposed is not contrary to any of the stated objectives of the POEO Act (Tcpt, 5 July 2022, p 134).

Section 3(a)

1. The objective in s 3(a) of the POEO Act is the same as that stated in s 6(1)(a) of the POEA Act which is required to be considered under s 45(b) of the POEO Act and which has been addressed earlier.

Section 3(d)(iii)

1. Pursuant to s 3(d)(iii) of the POEO Act, it is an object of the Act to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote "the reduction in the use of materials and the re-use, recovery or recycling of materials". This is an object which is consistent with the policy and strategy described in the NSW 2021 Waste Strategy and which has been addressed earlier. For the same reasons as the NSW 2021 Waste Strategy, I consider s 3(d)(iii) of the POEO Act would support the granting of the application.

Section 3(g) - the objects of the WARR Act

1. It is an object of the POEO Act to assist in the achievement of the objects of the WARR Act.
2. All of the objects of the WARR Act are directly relevant to this application and based on the agreed evidence of the experts, I consider those objects would support the granting of the licence variation application. In summary, the experts agreed that: 1. the activities carried out by ECORR promote the objective of recovering, reusing and recycling resource materials; 2. the activities carried out by ECORR promote the waste hierarchy as set out in the WARR Act; 3. the activities carried out by ECORR promote the objective of minimising the consumption of natural resources and the final disposal of waste by encouraging the avoidance of waste and the re-use and recycling of waste; 4. the proposed variation to the licence concerning the concentration limit for lead would further promote the objective of the avoidance of waste and re-use and recycling of waste (albeit Mr Ly's answer was qualified by the statement that "I think they would need to be able to supply that waste under an appropriate relevant order and exemption, but it may amount to diluting or blending of that waste in order to meet one of those orders and exemptions"); and 5. the granting of the variation would meet the objectives of the POEO Act. (Tcpt, 5 July 2022, pp 132(37)-134(36)).
3. In fact, Mr Mitchell's evidence to the Court was that: "By increasing the criteria for just lead, then they will have access to a greater amount of material that they can take in and the more material that they can take in, the more material comes available under the resource recovery framework of beneficiary use." (Tcpt, 5 July 2022, p 133(43-49))

The proposed variation poses no risk of environmental harm

1. As stated at the outset, the EPA, which has dealt with this application on the basis of the proposal to incorporate the Table 2 WCG concentration limits for lead, has not presented any merit contention in relation to this aspect of the proposal. Nevertheless, the Court must consider whether the applicable concentration limit for lead proposed would risk causing any material harm to the environment. Mr Mitchell and Mr Ly canvassed this issue on day 2 of the hearing - focussing both on any risk of harm to the environment at or near the ECORR premises and on any risk of any consequential environmental harm anywhere else in New South Wales.
2. As earlier identified when dealing the statutory provisions, the experts were agreed that there is unlikely to be any risk to the environment. That evidence weighs heavily in support of an approval of the application on the merits.

Does ECORR need to have a supply agreement under an existing RRO/RRE?

1. The EPA, in effect, submitted that before ECORR is permitted to receive material containing a concentration of lead above the CT1 levels, it should first demonstrate that it has a supply agreement under an existing RRE and RRO which allows material with the same concentration of lead to be applied to the Land without an EPL.
2. ECORR disagrees and contends that the EPA has misunderstood the independent regulatory functions of licencing on the one hand and RREs and RROs on the other. This is said to be made plain by the fact that ECORR's licence was granted 8 years before the first RREs came into existence (May 2008) and about 14 years before RROs were first promulgated. It submits that RREs and RROs comprise an independent and alternative lawful authority to apply to land waste materials which would otherwise require authorisation under an EPL. Therefore, to suggest that these separate categories of regulatory instruments are interdependent is without legislative foundation and without precedent.
3. ECORR also submits that the requirement to receive material only with an existing RRE and RRO in place is unfeasible and impractical. Accepting that the EPA issues both general RREs and RROs (which apply to all citizens across the State) and specific RREs and RROs pertaining to particular infrastructure and development sites, ECORR submits that it would be unworkable to require a variation of its EPL each time a new RRE or RRO issued provided it with an opportunity to lawfully supply material. The position advocated by the EPA for a specific RRE and RRO is said to be all the more unreasonable when the EPA takes the position that the specific RREs and RROs are issued confidentially, and it will not publish or otherwise provide details which would identify the entity or project or activity to which any specific RRE/RRO applies.
4. Relying on the redacted versions of the specific RREs and RROs produced by the EPA in response to ECORR's notice to produce the applicant submits there are a variety of regulatory notices issued over recent years with significant variation in the permissible chemical/physical parameters of the processed waste that they permit to be applied to various sites. As these specific RREs and RROs apply for relatively short periods of time ECORR submits that it is not possible to predict what new RREs and RROs will be issued and what the EPA will stipulate in terms of the concentration levels of substances, such as lead, that material supplied under them can contain.
5. ECORR submits that if its licence variation is approved then it can receive this material at its site and supply the material lawfully pursuant to whatever specific RREs or RROs are prevailing at the time, or it can otherwise supply or use the material in accordance with the law. If it receives soil that contains a concentration of lead that exceeds what it could lawfully supply or use, then, like anyone else, it has the right to then lawfully dispose of such material to a landfill or other facility that is lawfully entitled to receive such material. If it has to dispose of the material to landfill by reason of there being no option for lawful re-use of the material, then the material would necessarily be going to landfill anyway.

Examples of general and specific RREs and RROs

1. ECORR relies on the following general and specific RREs and RROs as examples of the limitation which prevents ECORR from receiving at its site material which it can lawfully supply under existing RREs/RROs. General RREs/RROs a) The Recovered Aggregate RRE/RRO 2014 b) The Excavated Public Roads Material RRE/RRO 2014 Specific RREs/RROs c) The WestConnex Imported Tunnel Material RRE/RRO 2021 d) The Port Kembla Steelworks RRE/RRO 2020 e) The Great River Excavated Material RRE/RRO 2021
2. Mr Mitchell and Mr Ly in their joint report cited two other EPLs for resource recovery facilities which are permitted to receive material containing a concentration of lead with an SCC concentration of 1,500mg/kg and a TCLP concentration of 5mg/L. ECORR submits that this accords with the risk-based limit identified in Table 2 of the WCG.
3. At the hearing the EPA sought to restrict the RROs and RREs which ECORR proposed to rely upon to those listed in the joint report (Ex 1) at par 8 with a maximum level of lead of 250 mg/kg (Tcpt, 18 July 2022, p 142). However, ECORR refuted this and submitted that it should not be required to justify the increase proposed based on those identified in the joint report. It would also like to produce under the WestConnex RROs. Noting, that the maximum lead level in soils permitted under any of those orders is 500 mg/kg (Tcpt, 18 July 2022, p 149). Additionally, ECORR said that it hoped to pursue the Airport Gateway Project which would take materials with lead concentrations of up to 1,500mg/kg (see Ex H p 27.31, Sch 3 soil pollution accepted limits - with an explanation in cl 1.01 Table 1 in subclause (1), and then item number 14 identifies lead with an accepted limit of 1,500mg/kg).
4. I accept, on the evidence, that at present ECORR's licence conditions are more restrictive than various resource recovery provisions.

Conclusion

1. For the reasons set out above, I am satisfied that the application to vary the EPL may be granted. Condition L2 of that EPL is amended in the terms proposed in Ex A.
2. Further, I am satisfied that granting the variation proposed by ECORR will be consistent with and will promote the relevant statutory and policy objectives that are mandatory considerations when determining the application. I am also satisfied that by allowing the variation, the carrying out of the development work to which the licence, as varied, relates will not create risk of any material environmental harm.
3. A requirement to undertake that work in accordance with the draft MMP dated 13 August 2020 should be incorporated expressly by Condition L2.5 as proposed. That draft MMP sets out a detailed protocol for the receipt and management of materials on the site. As Mr Mitchell emphasised in his evidence, ECORR will still be required to comply with all of the conditions of any RRO under which it wishes to supply materials to third parties. In short, the licence will control the management of the materials brought to the site as well as conditioning the processing and management of materials being taken from the site for supply to customers.
4. Should ECORR seek to depart from the management and operational requirements imposed by Condition L2.5, as now framed, any such departure would require both the preparation of a new management plan and approval of a further variation to its licence before departing from the present provisions of the MMP. ECORR accepted that consequence. Mr Mitchell was confident that the MMP, as now framed, was appropriate to manage and control ECORR's intended activities. Having considered the discussion about the draft MMP in the joint report of Mr Ly and Mr Mitchell, I am also satisfied that carrying out ECORR's activities in compliance with the draft MMP will result in development work that meets the requirements of the POEO Act for the EPL.
5. The evidence is that ECORR's licence conditions are presently more stringent than those ordinarily imposed in other resource recovery licences. For example, the excavated public roads material RRE/RRO of 2014 imposes no limit upon the content of lead in the material. Therefore, in the present case, a limitation of 1,500 mg/kg of lead could be provided, supplied and applied to land without breaching the relevant exemption or order (Tcpt, 18 July 2022, p152(46), and p153(1-20)). Examples from other infrastructure projects where conditions directed to resource recovery stipulate a maximum level of lead in material were discussed in evidence, being levels that were either left open in relevant waste recovery exemptions or orders. Consideration of those examples demonstrated that ECORR is able to receive and supply material up to the level of lead proposed without exceeding a maximum level that exceeds that stipulated in any present exemption or order.
6. That said, in the absence of any evidence of material harm to the environment there is no justification for requiring the subject licence variation to be contingent upon ECORR having a supply contract under an existing RRE/RRO that would permit application of material with the same concentration of lead.
7. I find that it is both unnecessary and unworkable for ECORR's licence conditions to be contingent upon, or cross referenced to, specific RREs and RROs for the reasons submitted by ECORR as summarised above.
8. Accordingly, the Court orders: 1. The appeal is upheld. 2. Licence variation application no. 1599923 to vary Condition L2 of EPL 10699 is granted consent in accordance with the terms in Annexure A. 3. The exhibits are returned, except for A, B, E and 3. ……………………. S Dixon Senior Commissioner of the Court Annexure A (117774, pdf)

Amendments 25 October 2022 - Correction to typographical errors at [39], [41] and [49]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2022