Environment Protection Authority v Pullinger

Protection of the Environment Operations Act 1997

1. Relevant provisions of the POEO Act provide: Chapter 1 Preliminary … 3 Objects of Act The objects of this Act are as follows - (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, (b) to provide increased opportunities for public involvement and participation in environment protection, (c) to ensure that the community has access to relevant and meaningful information about pollution, (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following - (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001. … 6 Appropriate regulatory authority (1) EPA The EPA is the appropriate regulatory authority for the purposes of this Act, except as provided by this section. … Chapter 4 Environment Protection Notices … Part 4.2 Clean-up notices … 92 Clean-up by public authorities … (2) Voluntary clean-up action by public authorities If a public authority reasonably suspects that a pollution incident has occurred or is occurring, the public authority may take such clean-up action as it considers necessary. … (4) Taking of clean-up action A public authority may take clean-up action under this section by itself or by its employees, agents or contractors. … Part 4.5 Compliance costs 104 Compliance cost notices … (2) Clean-up by public authority A public authority that takes clean-up action under section 92 may, by notice in writing, require - (a) the occupier of the premises at or from which the authority reasonably suspects that the pollution incident occurred, or (b) the person who is reasonably suspected by the authority of having caused the pollution incident, or both, to pay all or any reasonable costs and expenses incurred by it in connection with the clean-up action. … 105 Recovery of amounts (1) Recovery of unpaid amounts A regulatory authority or public authority may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction. (2) Recovery by person given notice If the person given a compliance cost notice complies with the notice but was not the person who caused the pollution or pollution incident, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused the pollution or pollution incident. … Chapter 8 Criminal and other proceedings … Part 8.5 Evidentiary provisions … 257 Occupier of premises responsible for pollution from premises (1) In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that - (a) the pollution was caused by another person, and (b) the other person was not associated with the occupier at the time the pollution occurred, and (c) the occupier took all reasonable steps to prevent the pollution. A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier. (2) Subsection (1) does not prevent proceedings being taken under this Act against the person who actually caused the pollution. … Dictionary In this Act - … appropriate regulatory authority - see section 6. … occupier of premises means the person who has the management or control of the premises. … pollution incident means an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise. … public authority means a public or local authority constituted by or under an Act, and includes - (a) a government department, or (b) a statutory body representing the Crown, a State owned corporation or a local council, or (c) a member of staff or other person who exercises functions on behalf of a public authority. …

Civil Procedure Act 2005

1. Section 100 of the Civil Procedure Act 2005 (NSW) (CP Act) is extracted below: Part 7 Judgments and orders … Division 3 Payment of Interest 100 Interest up to judgment (1) In proceedings for the recovery of money (including any debt or damages or the value of any goods), the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit - (a) on the whole or any part of the money, and (b) for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect. (2) In proceedings for the recovery of a debt or damages in which payment of the whole or a part of the debt or damages has been made after the proceedings commenced but before, or without, judgment being given, the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit - (a) on the whole or any part of the money paid, and (b) for the whole or any part of the period from the time the cause of action arose until the time the money was paid. (3) This section - (a) does not authorise the giving of interest on any interest awarded under this section, and (b) does not authorise the giving of interest on a debt in respect of any period for which interest is payable as of right, whether by virtue of an agreement or otherwise, and (c) does not authorise the giving of interest in any proceedings for the recovery of money in which the amount claimed is less than such amount as may be prescribed by the uniform rules, and (d) does not affect the damages recoverable for the dishonour of a bill of exchange. (4) In any proceedings for damages, the court may not order the payment of interest under this section in respect of the period from when an appropriate settlement sum was offered (or first offered) by the defendant unless the special circumstances of the case warrant the making of such an order. (5) For the purposes of subsection (4), appropriate settlement sum means a sum offered in settlement of proceedings in which the amount for which judgment is given (including interest accrued up to and including the date of the offer) does not exceed the sum offered by more than 10 per cent.

EPA's statement of facts

1. The EPA provided the following statement of facts (SOF). While not agreed by Mr Pullinger in advance of the hearing I am not aware that any facts are disputed as it became clear in the hearing that the issues in dispute are relatively narrow. References to "the Act" in the SOF refer to the POEO Act. The SOF stated: 1. The Premises is located on Lot 29 of Deposited Plan 221102 at 62 Kyle Street Rutherford, NSW (the Premises). 2. The Respondent and Glowbye Pty Ltd ACN 054 785 054 (Glowbye) are the registered proprietors of the Premises as tenants in common in equal shares: (a) the Respondent has been a registered proprietor of the Premises since 29 November 1990; and (b) Glowbye has been a registered proprietor of the Premises since 14 January 1994. 3. Glowbye was deregistered by the Australian Securities and Investments Commission (ASIC) on 28 June 2020. The Respondent was the sole director and secretary of Glowbye from 2002 until it was deregistered. 4. The Premises is a former waste oil processing facility that was operated by Truegain Pty Limited ACN 055 126 497 (Truegain) from December 2000 until April 2016. 5. The following structures are located on the Premises: (a) a brick office building, including a laboratory, on the northern frontage to Kyle Street; (b) plant buildings associated with former waste oil processing facilities; (c) a spill containment system comprising 9 bunded areas around approximately 70 above-ground tanks, built on concrete hardstands with drains which drains [sic] liquids to an underground tank with approximately 60,000 litres of capacity (the underground tank), (together, the System); (d) access roads; and (e) various sheds and storage buildings across the Premises. 6. The Respondent was a director of Truegain from 26 March 1992 and the secretary of Truegain from 24 February 1997. From 26 August 2016, the Respondent was the sole director of Truegain. 7. A stormwater canal runs adjacent to the eastern boundary of the Premises and joins Stony Creek approximately 20 metres south of the Premises. 8. Stony Creek flows into Fishery Creek, Wallis Creek and the Hunter River. 9. Truegain formerly undertook the scheduled activities of waste oil processing and waste storage at the Premises under Environment Protection Licence number 7638 (the EPL) between 7 December 2000 and 1 April 2016. 10. Between 2000 and 2016, Truegain received, stored and processed waste oils and waste water at the Premises by refining and processing waste oils into re-usable petroleum-based products, and processed waste water for discharge to a sewer system operated by Hunter Water Corporation (Hunter Water). 11. Truegain also conducted waste oil processing activities at the Premises in conjunction with Australian Waste Oil Refineries Pty Ltd ACN 081 415 661 (AWOR). The Respondent was a director and secretary of AWOR until it was placed into liquidation on 14 September 2016 and deregistered by ASIC on 17 September 2018. 12. From 19 October 2005 to 24 February 2016, Truegain held a Major Trade Waste Permit issued by Hunter Water (Trade Waste Permit), which permitted Truegain to discharge liquid waste from the Premises to sewer subject to certain conditions. 13. On 19 August 2015, the EPA issued a Prevention Notice No. 1524877 under s 96 of the Act to Truegain to remove all liquids and waste materials from bunded areas and then to remove rainwater and accumulated waste water in the bunded areas after rainfall (the Truegain Prevention Notice). 14. On 24 February 2016, Hunter Water directed Truegain to stop discharging wastewater into Hunter Water's sewers due to Hunter Water detecting per- and poly-fluoroalkyl substances (collectively referred to in these Facts as "PFAS") in discharges from the Premises in samples taken by Hunter Water on 12 February 2016 15. On 27 February 2016, Hunter Water issued a letter to local residents warning that PFAS had been discharged into Fishery and Wallis Creeks and that water from those creeks were unsuitable for drinking, agricultural or fishing purposes. 16. On 9 March 2016, the EPA varied Truegain's EPL to require it to monitor rainfall at the Premises and conduct a mandatory environmental audit. 17. On 1 April 2016, the EPA suspended the EPL by Suspension Notice No. 1539166 (the Suspension Notice). On the same day, the EPA wrote to Truegain and directed it to store all waste in adequately bunded areas. 18. Truegain entered into liquidation on 14 September 2016 and the employment of all staff was terminated on that date. 19. On 15 September 2016, JLA Insolvency & Advisory Pty Ltd, the Administrator of Truegain (the Administrator) disclaimed Truegain's liabilities for the Premises. 20. On 30 September 2016, the EPA issued Prevention Notice 1545252 to the Respondent and Prevention Notice 1545280 to Glowbye respectively as owners and occupiers of the Premises pursuant to s 96(2) of the Act (the Prevention Notices). The Prevention Notices required the removal and lawful disposal off-site of all liquids or waste materials within bunded areas (including waste oil and contaminated rainwater) to prevent discharge of contaminated water from the Premises. 21. On 28 April 2017, the EPA issued a Draft Notice of Clean-up Action 1548804 to the Respondent inviting his comment on that notice (the Draft Clean-Up Notice). 22. On 30 May 2017, in response to the Draft Clean-Up Notice, the Respondent sent a letter to the EPA. 23. On 5 June 2017, the EPA issued Notice of Clean-Up Action No. 1548804 (the Clean-Up Notice) to the Respondent pursuant to s 91(1) of the Act. 24. At the time the Clean-Up Notice was issued, the EPA was the appropriate regulatory authority as the Premises was still subject to the EPL under s 6(1) of the Act. 25. The Respondent was the owner and occupier of the Premises when the Clean-Up Notice was issued. 26. On 26 June 2017, the Respondent sent a letter to the EPA in response to the Clean-Up Notice, which he stated: (a) he was "unable to lawfully dispose of the liquid waste at the Premises"; (b) since the Draft Clean-Up Notice was issued, he had contacted Enviro Services Group Pty Ltd to obtain a quote to remove the contaminated water in the bunds; (c) he had provided Enviro Services Group Pty Ltd with samples of water from the Premises, and they had advised they could not collect the wastewater due to the levels of PFAS contamination; and (d) Kosta Vujkovic, a person engaged by the Respondent to manage the site, was continuing to manage the Premises and monitor the levels of water in the bunded areas. 27. On 5 January 2018, the EPA revoked the EPL due to Truegain's non-payment of licence fees, financial inability to comply with the EPL and poor record of compliance with environment protection legislation. 28. On 21 March 2018, the EPA inspected the premises. 29. Between 21 March 2018 and 22 March 2018, the EPA undertook clean-up action under the Clean-Up Notice by engaging Toxfree to pump out 63,240 litres of contaminated water from the System and transport and dispose of it at Cleanaway's wastewater treatment plant at Homebush NSW at a cost of $281,233.81. 30. On 26 April 2018, the EPA gave notification to Maitland City Council pursuant to section 212C of the Act that the EPA intended to carry out the functions as the appropriate regulatory authority to ensure the clean-up and removal of the contaminated liquids within the System at the Premises. 31. On 3 May 2018, the EPA engaged GHD Pty Ltd (GHD) to provide a remediation options report to identify options to prevent further potential discharges from the Premises. GHD provided its report on 21 September 2018. 32. On 11 May 2018, the EPA sent a draft Variation of Clean-Up Notice No. 1564650 to the Respondent. 33. The EPA received the Respondent's comments on the draft Variation of Clean-Up notice on 17 May 2018. 34. On 17 May 2018, the EPA advised Mr Pullinger of its intention to undertake further clean-up actions at the Premises under s 92(2) of the Act by engaging a contractor. 35. On 6 March 2018, the Chief Environmental Regulator of the EPA approved the EPA commencing a selective tender process for the clean-up of the Premises, which involved the EPA approaching waste contractors to tender to provide pump out and wastewater treatment and disposal services at the Premises. 36. On 17 May 2018, the EPA released a selective tender to the top five market share organisation services in liquid waste collection services to remove contaminated liquid from the System. The tender period closed on 14 June 2018 with only one tender being received from Cleanaway Operations Pty Ltd (Cleanaway). On 18 May 2018, the EPA issued Variation of Notice of Clean-Up Action No. 1564650 to the Respondent (the Varied Clean-Up Notice) under s 110 of the Act. 37. The Respondent was the owner and occupier of the Premises when the Varied Clean-Up Notice was issued. 38. The Varied Clean-Up Notice was issued by the EPA as the appropriate regulatory authority as the Premises was, at 18 May 2018, being used for the scheduled activity of waste storage, namely more than 60 tonnes of waste oil and more than 5 tonnes of liquid waste. 39. On 24 August 2018, the EPA issued two notices requiring payment of reasonable costs and expenses under s 104(2) of the Act (Compliance Cost Notice Nos 1566748 and 1598403) to the Respondent and Glowbye, as the owners and occupiers of the Premises, for half shares of the EPA'S costs of $281,233.81 incurred in engaging Toxfree to take clean-up action at the Premises between 21 March 2018 and 28 May 2018 to remove and dispose of 63,240 litres of contaminated liquid. 40. On 29 August 2018, the EPA issued EPS [Enviropacific Services Pty Ltd] with Environment Protection Licence No. 21143 which authorised it to undertake the scheduled activity of mobile waste processing to treat PFAS-contaminated liquids at the Premises. 41. On 30 August 2018 the Respondent entered into a written contract with EPS for it to design, procure, commission and operate a water treatment system to treat 3ML of PFAS contaminated water at the Premises (the Contract). 42. During the period to 15 November 2018, EPS invoiced the Respondent the following amounts in accordance with the Contract: (a) On 31 August 2018, EPS invoiced work under Milestone 1 in the sum of $30,465.07 (exclusive of GST), by invoice number 1561; (b) On 17 September 2018, EPS invoiced work under Milestone 2 plus additional schedule of rate items in the sum of $79,728.30 (exclusive of GST), by invoice number 1738; (c) On 15 November 2018, EPS invoiced work under Milestone 3 in the sum of $74,752.16 (exclusive of GST), by invoice number 2655. 43. The Respondent made the following payments to EPS under the Contract: (a) $121,212.71 on 11 October 2018 for the Milestone 1 and Milestone 2 Invoices; and (b) $82,227.38 on 21 November 2018 for the Milestone 3 Invoice 44. On 26 February 2019, EPS issued the Respondent with an invoice for $115,029.66 for completion of Milestone 4 works namely, being ready to commence treatment of the second megalitre. The Respondent failed to make any payment toward the Milestone 4 invoice and EPS has not received payment for these works. 45. Between 14 February 2019 and 16 April 2019, EPS performed works associated with Milestone Payment 5, being the treatment of the second megalitre of contaminated water to a value of $22,859.14 (excluding GST). The Respondent failed to make any payment toward the Milestone 4 invoice and EPS has not received payment for these works. 46. Between 28 November 2018 and 14 April 2019, the EPS treated 1,866,900 litres and disposed of 1,761,850 litres from the Premises. 47. On 21 May 2019, EPS issued a notice to show cause under the Contract for non-payment of the Milestone 4 invoice, seeking payment by 3 June 2019. 48. The Respondent failed to pay EPS's Milestone 4 invoice by 3 June 2019 or at all. 49. On 4 June 2019, EPS issued a notice of suspension under the Contract, suspending all works and entitling it to claim $25,343.49 in damages incurred by reason of the suspension. 50. EPS terminated its contract with the Respondent on 31 July 2019. 51. At the termination of the contract, EPS demobilised its equipment from the Premises and removed certain liquid wastes, hazardous waste and general solid waste from the Premises. EPS left some tanks which it later transferred ownership [of] to the Respondent as the cost to EPS of removing them outweighed the benefit EPS would receive. 52. On 24 October 2019, EPS commenced civil legal proceedings against the Respondent in the District Court of NSW seeking judgment against the Respondent for $163,232.30 plus interest and costs. 53. On 30 September 2020, EPS obtained default judgment in the District Court proceedings for $163,232.30 plus interest and costs. 54. The works undertaken by EPS at the site never progressed past Phase 1, being the processing of liquids from the bunded areas, underground tank and surface waters. 55. Due to the Respondent's breach of contract and the termination of that contract, EPS never reached Phase 2, which involved the treatment and removal of liquids stored in the above ground tanks. 56. On 5 September 2019, the EPA issued the Respondent with Show Cause Letter No. 1584805 on the basis that the Respondent had breached s 91(5) of the Act by contravening Condition 7 of the Varied Clean-Up Notice by not processing, removing and lawfully disposing from the Premises all liquids contained within all above ground tanks by 31 August 2018. 57. On 1 July 2020, the Hon. Matt Kean MP, Minister for Energy and Environment, issued a draft notice of prohibition to the Respondent for comment, pursuant to s 101 of the Act. 58. The Respondent provided his comments on the draft prohibition notice on 12 July 2020. 59. On 25 August 2020, the Minister, issued a Prohibition Notice under s 101(2) of the Act as [sic] the occupier of the Premises and a person carrying on the activities of waste storage and keeping substances harmful to the environment at the Premises (the Prohibition Notice). 60. The Prohibition Notice was served personally on Mr Pullinger on 27 August 2020. 61. Between 26 May 2020 and 4 June 2020 the EPA inspected the Premises. The EPA inspected the Premises on other occasions between 3 June 2020 and 29 July 2020 to monitor water levels. 62. [sic]. 63. Between 22 June 2020 to 30 October 2020, the EPA engaged Cleanaway to pump liquid out of the System and remove from the Premises approximately 468,280 litres of contaminated rainwater. Cleanway [sic] issued two invoices for these works which amounted to $897,706.98. 64. Between 2018 and 2020, the EPA issued the following Compliance Cost Notices pursuant to section 104(2) of the Act to the Respondent in respect of clean-up actions undertaken by it under s 92(2) of the Act: Date of Notice Notice No. Purpose Amount 24 August 2018 1566748 For half of the clean-up costs incurred by the EPA in between 21 March 2018 and 28 May 2018 in engaging ToxFree to pump out, remove and lawfully dispose of 63,240 litres of contaminated liquid from the Premises (Glowbye was also issued a Compliance Cost Notice No. 1568898 for $140,616.90 on 24 August 2018 for half share of the same clean-up costs). $140,616.90 For Glowbye's share of the clean-up costs incurred by the EPA in between 21 March 2018 and 28 May 2018 in engaging ToxFree to pump out, remove and lawfully dispose of 63,240 litres of contaminated liquid from the Premises that were 20 August 2020 1598403 previously the subject of Compliance Cost Notice No. $140,616.90 1568898 as Glowbye was now deregistered. 1598934 For clean-up costs incurred by the EPA in between [10 June 2020 and 29 July 2020] [sic] in engaging Cleanaway to remove and lawfully dispose of 343,280 litres of contaminated liquid from the Premises. $897,706.98 Total $1,178,940.78

65. The Respondent has to date failed to comply with Compliance Cost Notice Nos. 1566748, 1598403, and 1598394 by paying to the Applicant the amounts due and payable under those notices. 66. The EPA registered each of Compliance Cost Notice Nos. 1566748, 1598403 1598394, as charges on the title of the Premises pursuant to ss 106 and 107 of the Act to secure payment of the amounts owing under those notices.

EPA's evidence

1. While the EPA filed voluminous evidence, much was not needed given the limited issues ultimately in dispute, as will be discussed further below.
2. The documentary evidence tendered by the EPA was as follows: 1. Folio 103-662 of exhibit "JL-1" to Ms Jenny Lange's affidavit dated 4 November 2020 (Ex A). 2. Exhibit "MH-1" to Mr Michael Howat's affidavit dated 11 November 2020 (Ex B). 3. Folio 4754-4850 of exhibit "KM-1" to Ms Karen Marler's affidavit dated 3 December 2020 (Ex C). 4. Four pages of maps of the Premises (Ex D). 5. Two environment protection licences (EPLs) for the Cleanaway Operations Pty Ltd (Cleanaway) facilities at Homebush and Kooragang Island (Ex E). The EPLs do not show the code M270 which is the waste code for per- and poly-fluoroalkyl substances (PFAS). They show references to waste codes N140 (fire debris and fire wash waters), J100 (waste mineral oils unfit for intended use) and A100 (waste from surface treatment of metals and plastics). The EPLs were tendered in response to Mr Pullinger's case during the hearing. 6. Three bundles of invoices from Cleanaway and Suez Recycling & Recovery Pty Ltd for waste disposal from the Premises during the period 31 August 2020 to 31 August 2021 (Ex F). They were not referred to. 7. Exhibit "KM-2" (tabs 2, 3 and 4) to Ms Marler's second affidavit dated 20 September 2021 (Ex G). 8. A set of evidentiary certificates in folio 4918-4944 (Ex H). These were tendered during closing submissions to assist the Court.

Evidence not read

1. The Applicant did not read: 1. the affidavit of Ms Lisa Potter dated 3 November 2020; 2. exhibit "LP-1" to Ms Potter's affidavit dated 3 November 2020; 3. large parts of exhibit "KM-1" to Ms Marler's first affidavit dated 3 December 2020; 4. large parts of exhibit "JL-1" to Ms Lange's affidavit dated 4 November 2020; 5. large parts of the evidentiary certificates in the court book.

Reasonable suspicion pollution incident occurred (s 92(2) POEO Act)

2018 incident - Ms Lange's affidavit

1. Ms Lange, operations officer at the EPA, affirmed an affidavit dated 4 November 2020. Ms Lange dealt with the Premises first when inspecting it with other EPA officers, then as responsible officer for the Premises from 29 June 2019 and later as Acting Unit Head responsible for the Premises between 19 August 2019 and 7 September 2019. She deposed as to the EPA's regulatory conduct at the Premises, the 2018 and 2020 pollution incidents, and the clean-up notices issued. Where she did not have firsthand knowledge, Ms Lange relied on her understanding from reviewing business records and EPA files.
2. On 21 March 2018, Ms Lange inspected the Premises with Mr Kosta Vujkovic (a caretaker employed by Mr Pullinger to manage the Premises, see SOF par 26) and Mr Steve Matthews (see below in [37]). In the inspection report dated 21 March 2018 (in Ex A), Ms Lange made the following observations: … The purpose of the inspection was to determine the integrity of the spill containment system subject to the wet weather. The weather was wet with constant heavy rain. The following observations were made and conversations had during the inspection:- • The Premises had commenced to flood, a liquid with a hydrocarbon sheen was across the driveway to a depth of up to 200-300mm at the southern end of the driveway and adjacent to the underground tank, • I could not see the grates to the oil separator near the underground tank thorough the liquid. • The driveway was flooded from the front to the rear of the southern tank farm. • The bunds were at approximately 50% full and rapidly filling. • A strong hydrocarbon odour was present. • I went along the rear of the buildings adjoining the creek and observed liquid rushing from the Premises through a rectangular shape hole at the base of the colourbond wall sheeting. Liquid was flowing from the hole over the ground and into the creek. • The liquid was flowing from the driveway into and thorough [sic] the building and then out as described above into the creek. • Mr Matthews and Kosta [Mr Vujkovic] said they had not detected the discharge. • I notified FRNSW to undertake an assessment of the premises. • FR arrived on the premises at approximately 1.30pm, it was agreed to sandbag across the entrance to the premises, the entrance to the building, the rear of the western driveway and rear of IBC's at the end of the driveway. Steve Matthews and Kosta agreed to pump from the underground tank and into the southern tank farm to reduce the immediate flooding. • FRNSW checked the creek and advised that foaming had been observed in Stony Creek at the end of Gardner Street. Booms were installed at this location. • I spoke with Mark Hartwell who commenced arranging for tankers to pump out the liquid. • FRNSW assisted in collecting samples from the discharge point and upstream. The upstream point was in the creek to the south of Kyle Street but may still have been influenced by the discharge point due to turbulence and vegetation in the creek. There were no other safe locations to sample. • With sandbagging complete the discharge ceased. • EPA officer Matthew Corradin arrived on the premises at approximately 4pm. • I collected samples from the liquid on the hardstand driveway entrance and the southern tank farmbund. • I left the premises at approximately 4.45pm.
3. On 11 April 2018, Ms Lange received an email from the environmental forensics team at the Office of Environment and Heritage attaching analysis reports of samples taken at the Premises on 5 April 2018 (in Ex A). The results of the report of analysis dated 11 April 2018 indicated the presence of PFAS.

2020 incident - Ms Marler's affidavits

1. Ms Marler, a director of environmental solutions (chemicals, land and radiation) at the EPA, affirmed an affidavit dated 3 December 2020. She also affirmed a second affidavit dated 20 September 2021. Ms Marler dealt with the Premises since 2007 as a responsible officer and in senior managerial positions in the EPA Hunter Region. She deposed to the EPA's regulatory involvement with the Premises and the clean-up actions it took in 2018 and 2020. Ms Marler had access to the EPA's electronic files and public register under s 308 of the POEO Act. She accessed EPA files and the public register for the purposes of these proceedings and exhibited copies of relevant documents to her first affidavit (Ex C).
2. Ms Marler was aware that on 3 September 2019, Ms Lange and Mr Michael Howat, another EPA officer involved with regulation of the Premises (see below in [16]), attended the Premises to inspect its condition and water levels. During the inspection they spoke to Mr Vujkovic, who advised that Mr Pullinger was no longer paying him, and he was unsure about his future at the Premises. Ms Marler was aware that on 23 October 2019 Mr Howat attended the Premises for another inspection. Mr Vujkovic continued to manage the Premises by pumping water from the spill containment and surface water collection system's above ground tanks. There was limited capacity remaining in these tanks. Based on this, Ms Marler formed the view that the Premises was likely to discharge to the environment during rainfall unless action was taken to remove contaminated water from the spill containment and surface water collection system.
3. Ms Marler was aware that on 26 May 2020, Mr Howat had a conversation with Mr Vujkovic who advised that he was no longer employed by Mr Pullinger and was no longer attending or maintaining the Premises. Subsequent inspections of the Premises by EPA officers in early June 2020 confirmed that no one was present at the Premises and there was no active monitoring or management of the Premises. The EPA engaged AECOM Australia Pty Ltd (AECOM) in June 2020 to conduct sampling of liquids contained in the spill containment and surface water collection system and to assess its condition. Inspections by the EPA in early June 2020 confirmed that no one on the Premises was actively monitoring or managing the water levels and with rainfall expected it was Ms Marler's evidence that action was needed to remove the contaminated water. Between June and October 2020, EPA officers regularly attended the Premises to monitor for pollution incidents and arranged for clean-up action to be undertaken by Cleanaway. This included pumping out liquid and waste from the spill containment and surface water collection system after rainfall events when it threatened to discharge potentially contaminated liquids.

2020 incident - Mr Howat's affidavit

1. Mr Michael Howat, operations officer at the EPA, affirmed an affidavit dated 11 November 2020. Mr Howat was the lead person in the EPA's investigation into Mr Pullinger. His affidavit detailed the EPA's history with the Premises and events in 2020. Voluminous documents exhibited to his affidavit (Ex B) were derived from the EPA's electronic files and the public register, reflecting the EPA's investigations in respect of the Premises and included a number of inspection reports filed by Mr Howat.
2. On 23 October 2019, Mr Howat inspected the Premises with a colleague from the EPA and Mr Vujkovic. Mr Vujkovic told Mr Howat that he believed the above ground tanks were full. Mr Vujkovic stated that he had last added to or transferred from any above ground tanks at least a year beforehand. The external gauge tubes or electronic pressure sensors used to measure water levels were mostly broken or not operational and Mr Vujkovic confirmed he was not measuring volume in the tanks.
3. Mr Howat observed that one tank outside the bunded area was leaking. The area had clear staining and significant corrosion of concrete. A tanker parked on-site was also leaking. Mr Vujkovic told Mr Howat and his colleague that he was very limited in the options available to remedy the situation due to having no power, space or money to do major works.
4. On 26 May 2020, Mr Howat conducted an inspection of the Premises, accompanied by other EPA officers and AECOM staff. The inspection report filed 26 May 2020 was tendered (in Ex B). Mr Howat reported having a conversation with Mr Vujkovic in which the latter explained he had commenced other employment and was no longer engaged as caretaker of the Premises. To access the Premises and determine if a pollution incident was occurring Mr Howat cut the lock and chain on the western access gate (which he later replaced). It was recorded that the officers present inspected the Premises and discussed work health and safety issues and the likely timing of works. AECOM was to conduct sampling and a site structural risk assessment.
5. For several days in June 2020, AECOM staff and EPA authorised officers including Mr Howat, regularly attended the Premises to facilitate access for AECOM to conduct sampling of the spill containment and surface water collection system and to assess the condition of the Premises on behalf of the EPA.
6. An EPA inspection report filed by Mr Howat dated 4 June 2020 (amended on 19 June 2020) (in Ex B) recorded an inspection at which several EPA officers and AECOM staff were present. AECOM undertook sampling of above ground tanks and storage facilities (including bunds, underground tanks, and other storage containers). The inspection report noted that the Premises was not being actively managed by Mr Pullinger, his associates or representatives. The bunds appeared mostly full, with limited capacity. The underground tank also appeared full as indicated by backflow onto the roadway from a tank at the inlet point. The report considered that heavy or prolonged rain would put the Premises at significant risk of discharging into nearby waterways. Pollution would discharge if the Premises was not actively managed. Cleanaway was engaged to remove pollution from the Premises on 10, 12, 13 and 19 June 2020. On 19 June 2020, Minister for the Environment the Honourable Matt Kean MP, along with several representatives from the EPA, media, the community, Enviropacific Services Pty Ltd (EPS), Cleanaway and AECOM attended the Premises. Under the heading "follow up and further action required", Mr Howat wrote that the EPA was managing the Premises due to the risk of pollution from discharge.
7. Between June to October 2020, Mr Howat regularly attended the Premises. He monitored the potential for pollution incidents and arranged for clean-up action to be taken by the EPA's contractors, to pump out liquid and waste from the spill containment and surface water collection system after rainfall events, when the spill containment and surface water collection system threatened to discharge potentially contaminated liquids.

2018 incident - Ms Lange's affidavit, Mr Howat's affidavit and Ms Marler's first affidavit

1. On 22 March 2018, Ms Lange was copied into an email from Ms Marler to Scott Morrison of Toxfree Australia Pty Ltd (Toxfree), who had been engaged by the EPA to remove contaminated liquid from the Premises. The email chain (in Ex A) shows a series of emails between Mr Morrison on behalf of Toxfree and the EPA. Mr Morrison stated in an email of 21 March 2018 that he deployed three liquid collection tankers to remove approximately 40,000 litres of possible "PFOS/PFOA" contaminated liquid waste. These trucks were to collect the waste on 22 March and transport it to Cleanaway's Kooragang Island facility for disposal. Mr Morrison confirmed on 22 March 2018 in an email to Ms Marler that Toxfree had loaded approximately 40,000 litres of waste onto trucks and unloaded it at Cleanaway's Kooragang Island facility. A further approximately 33,000 litres of wastewater had been loaded onto two more trucks to be brought to Cleanaway's Kooragang Island facility when it had capacity.
2. Mr Howat's affidavit noted that Ms Marler on behalf of the EPA sent a letter dated 6 April 2018 to Mr Pullinger (in Ex B). The letter outlined the EPA's response, purportedly under s 92(2) of the POEO Act, to the pollution incident of 21 March 2018. The letter referred to the 73,000 litres of liquid pumped out from the Premises and confirmed that two tankers containing a total of 33,000 litres of liquid remained at the Premises.
3. According to an email from Mr Pullinger to Ms Marler dated 21 April 2018 and the attached letter dated 20 April (in Ex C), two Toxfree trucks with waste remained at the Premises as of 20 April 2018. In an email to Mr Matthews, including Ms Lange and Mr Pullinger among others and dated 2 May 2018 (in Ex C), Ms Marler confirmed that the first load of wastewater, contained within a loaded truck parked on the Premises, would be delivered to Cleanaway's Homebush facility that morning. Another truck would be removed from the Premises by 3 May 2018. Toxfree would collect another partially loaded truck and remove it off the Premises by 7 May 2018. The evidence is therefore that the trucks were parked on-site for over six weeks.

2020 incident - Ms Marler's first affidavit

1. Between June and October 2020, the EPA's contractor Cleanaway pumped contaminated liquid out of the spill containment and surface water collection system and removed from the Premises approximately 468,280 litres of contaminated rainwater that threatened to discharge from the Premises. Invoices showing Cleanaway's costs for transport and disposal of waste were tendered (in Ex C).

Incurred costs in connection with clean-up action (s 104(2) POEO Act)

2018 incident - Ms Lange's affidavit

1. Between 21 March 2018 and 22 March 2018, Toxfree pumped out 63,240 litres of liquid waste from the spill containment and surface water collection system at the Premises and transported and disposed of it at Cleanaway's wastewater treatment plant in Homebush (see SOF par 29). Toxfree invoices (0246262, 0253565, 0258285, 0257257) were tendered (in Ex A) and show costs associated with hiring of tankers, waste tracking fees, storage and disposal of waste at a total cost of $264,442.42. Invoice No 0259846 (in Ex B) shows the invoice dated 29 May 2018 in the amount of $16,791.39. The total cost of the clean-up according to the Toxfree invoices from 29 March 2018 to 29 May 2018 was $281,233.81. The invoices show that the unit price for the disposal of PFAS material was $0.79.
2. Toxfree invoiced the EPA in respect of demurrage costs of $60,461 on 29 March 2018 and $159,500 on 30 April 2018. This totals $219,961 for demurrage and is the figure Mr Pullinger refers to in his affidavit (beginning in [72]) and his submissions below in [111].

2020 incident - Ms Marler's first affidavit

1. Cleanaway invoiced the EPA in the amount of $897,706.98 (invoices 1946331 and 1936818) for the work from 10 June 2020 to 29 July 2020 (in Ex C). The invoices show that the unit price for disposal of PFAS material was $1.95 from 10 June 2020 until 15 June 2020 and $2.45 from 18 June 2020 until 29 July 2020.

Reasonableness of costs and expenses (s 104(2) POEO Act)

2018 incident - Ms Marler's affidavits

1. The EPA maintains a list of preferred contractors for rapid clean-up responses to pollution incidents. When the discharge event occurred on 21 March 2018 following heavy rainfall, the circumstances were such that the EPA required immediate contractor services to respond to the incident and prevent further risk of discharge. Ms Marler decided to engage Toxfree because they were located near the Premises and they were on the EPA's preferred contractor list to undertake rapid response pumping, transport and disposal work.

2018 incident - Ms Lange's affidavit

1. Ms Lange filed an inspection report on 22 March 2018 (in Ex A). She recorded that Mr Steve Matthews (see below in [37]) advised her that he was in talks with EPS about the possibility of treatment and removal of pollution on the Premises if only hydrocarbons were present. Mr Matthews was proposing to pump water from the tank farm bund area into tanks. The volume left in the tanks was recorded as unknown. Later, Ms Lange noted that Mr Vujkovic identified three tanks with approximately 100,000 litres capacity on the Premises. There was no power or water on the Premises. Mr Matthews was saying that he did not see the need to source additional tankers to remove more liquid from the Premises. Ms Lange responded that if it rains again the capacity of the tanks was unknown. There was 150-300 millimetres of freeboard in the bunds with significantly reduced capacity since 20 March 2018. Mr Matthews suggested that, in light of the sluggishness of Cleanaway Kooragang Island in loading the material into intermediate bulk containers (IBCs), it would be better to load the material into tanks on the Premises. Ms Lange recorded her response to the effect that even moving 100,000 litres of contaminated liquid would not have given the spill containment system enough capacity if it rains again.

2020 incident - Ms Marler's affidavits

1. In relation to the reasonableness of the costs and expenses incurred by the EPA during the 2020 incident, Ms Marler noted in her first affidavit that having previously been the sole tenderer for the removal of contaminated water from the Premises, and being listed on the EPA's preferred contractor list for emergency clean-up actions, Cleanaway was approached by the EPA to pump out the underground tank at the Premises. Ms Marler was aware that the EPA had requested updated quotes from Cleanaway during late 2018 and early 2019 in the event that pumping out of the spill containment and surface water collection system was necessary to prevent discharge from the Premises.
2. Ms Marler deposed to the following in her second affidavit: 16. By 10 June 2020, rain was predicted in the Maitland area and I made the decision to engage Cleanaway to attend the premises to pump out the underground tank bunds as necessary to prevent discharge from the Premises. This continued throughout June and July 2020 in response to rainfall. 17. I did not consider it necessary or practical for the EPA to engage EPS to install mobile treatment plant on the suite after 18 April 2019 and before or on 10 June 2020 to prevent pollution from occurring. My reasons are summarised below: a) There was no power source at the premises from about 14 August 2019. EPS's mobile treatment plant would have required a power source to operate. Logistically, in the absence of a connected power source from Ausgrid, this meant the EPA would have to pay for the cost of generators operating onsite 24 hours a day to power the mobile treatment plant, and would have had to pay additional costs for amenities and security; b) The EPS plant was capable of separating PFAS from contaminated water but not treating or disposing of the PFAS waste. The PFAS waste, as well as the waste water, would need to be transported off site for disposal. I considered that engaging Cleanaway on a needs-basis to complete all the necessary actions to lawfully dispose of the water was more cost effective than engaging EPS and other contractors to operate onsite or be on call indefinitely. The EPA would have been required to pay EPS's and any other contractors costs even where there was no risk of rain or a pollution incident occurring; c) I am not aware of the comparative costs of installing mobile plant, electricity, amenities, off-site disposal, and other actions necessary to treat waste to prevent discharge from the premises, and maintain that equipment on site indefinitely versus engaging a contractor to remove waste from the premises to prevent discharge when needed; d) The EPA taking action to install and operate a mobile treatment plant and equipment on an ongoing basis on the premises would have also given rise to other risks. 18. Based on the reasons set out above, I consider the decision I made in engaging Cleanaway to respond to the pollution incident between 10 June-29 July 2020 was reasonable, practicable and necessary in the circumstances.

Respondent at all relevant times the occupier of premises (s 104(2) POEO Act)

1. Mr Pullinger admitted in his defence that he was at all relevant times the occupier of the Premises.

Payment required by notice in writing (s 104(2) POEO Act)

1. In her first affidavit Ms Marler deposed that on 20 August 2020 the EPA issued the following notices requiring payment of reasonable expenses, also known as compliance cost notices under s 104(2) of the POEO Act, to Mr Pullinger (together, the 2020 compliance cost notices). 1. Notice No. 1598403 required payment of $140,616.90, being half of the EPA's costs incurred between March 2018 to May 2018, originally the subject of the compliance cost notice to Glowbye Pty Ltd ACN 054 785 054 (Glowbye), which was withdrawn following Glowbye's deregistration by the Australian Securities and Investments Commission on 28 June 2020 and reissued to Mr Pullinger. 2. Notice No. 1598934 issued to Mr Pullinger on 20 August 2020 required payment of $897,706.98 in respect of the EPA's clean-up costs incurred in June 2020 to August 2020.
2. Notice No. 1566748 (in Ex H) was issued to Mr Pullinger on 24 August 2018 and required payment of $140,616.90, being half of the EPA's costs incurred between March 2018 and May 2018.

Additional topics of evidence to respond to Mr Pullinger's case

Mr Matthews' affidavit

1. The EPA read the affidavit of Mr Steve Matthews affirmed 24 October 2020. Mr Matthews has been Manager - New Business at EPS since 13 January 2020. He has previously worked at Toxfree and Cleanaway. Mr Matthews worked as General Manager in a business known as Clean Tech Partnerships (Clean Tech) of which Mr Pullinger was a director from March 2018. This was a business involved in treating PFAS. Mr Matthews commenced working full time on the Premises in March 2018. He would create plans to manage the Premises and Mr Vujkovic would physically execute and manage the works. Mr Vujkovic was not employed by Clean Tech. Mr Mathews reduced his involvement with Clean Tech from July 2018. His affidavit did not go to any contested issue in the proceedings.

Oral evidence of Mr Matthews

1. Mr Matthews was cross-examined by Mr Pullinger. Mr Matthews could not recall the amount of freeboard in the bunds in March 2018. He could recall having a conversation with Ms Lange in which he suggested that the material (approximately 30,000 litres) be moved into the tanks on the Premises given there was approximately 100,000 litres of space in the tanks (although Mr Matthews could not recall the precise amount). When asked by Mr Pullinger whether this would have been a better environmental outcome, he appeared to agree and added that the trucks in which Toxfree were storing the material were not parked in a bunded area. He agreed that the material stored for six weeks in the trucks could have been placed in the tanks in a bunded area. Mr Matthews was aware that EPS is participating in an ongoing tender process with the EPA to deal with pollution on the Premises. Mr Matthews was not aware whether Cleanaway's Kooragang Island facility was licenced to take and treat PFAS contaminated water. He knew Cleanaway's Homebush facility now had such a licence but did not know when that was acquired.

GHD report

1. Ms Marler, Mr Howat and Ms Lange all deposed that on 3 May 2018, the EPA engaged GHD Pty Ltd (GHD) to conduct an assessment to identify options to prevent further potential discharges from the Premises. After receiving a draft report on 1 June 2018, Ms Lange emailed Ms Alison Monkley of GHD on 23 August 2018 (in Ex A) asking her to include some changes and additional details in the report, including an amended disposal cost estimate of $1.95 per litre rather than the $0.90 per litre figure used previously. GHD provided a report dated 21 September 2018 outlining remediation options and costs.

Email about licencing of the Cleanaway Homebush facility to treat PFAS

1. An email from Mr Sam Waskett of the EPA to Ms Lange dated 26 March 2018 was exhibited to Mr Howat's affidavit (Ex B). Mr Waskett stated that there were only two licenced mobile PFAS contaminated water treatment plant operators in NSW, being South Coast Liquid Treatment Pty Ltd and Haldon Industries Pty Ltd (Haldon). Mr Waskett could not see any reference to a licence to store or treat PFAS waste on the Cleanaway Homebush EPL. Mr Waskett stated that "a review of the Cleanaway Homebush EPL suggests they may have applied to vary their licence to treat/store [P]FAS [sic] waste, but this does not appear to have been granted".

Tender process 2018

1. Ms Marler deposed in her first affidavit that on 17 May 2018 the EPA released a selective tender to the top five market share organisations in liquid waste collection services to remove contaminated water from the spill containment and surface water collection system at the Premises. The tender period closed on 14 June 2018 with only one tender being received from Cleanaway. The commencement of this tender process was approved on 6 March 2018: see also SOF pars 35, 36. The tender was not ultimately awarded: see below in [62].

Enviropacific Services Pty Ltd involvement with the Premises from March 2018

1. In Ms Lange's inspection report of 22 March 2018 (in Ex A) she recorded that Mr Matthews advised her that he was talking to EPS about possible treatment and removal of polluted material if only hydrocarbons were present. In an inspection report of 26 March 2018 (in Ex A), Ms Lange noted that there was to be a meeting on 28 March 2018 with EPS, labelling it "on-site processing meeting". In a letter from Mr Matthews to the EPA dated 29 March 2018 (in Ex A), Mr Matthews outlined plans to clean-up the Premises, including by nominating a technical partner for treatment of PFAS contaminated water. He noted that Clean Tech was in discussion with three companies to treat contaminated water on the Premises. On 13 April 2018 a meeting occurred between members of the EPA including Ms Lange and Ms Marler and Mr Pullinger and Mr Matthews. The minutes of the meeting (in Ex A) confirmed that EPS was likely to be selected as the processor for PFAS contaminated water on the Premises but did not yet have an EPL to do so. The EPA advised that EPS should apply for an EPL straight away.
2. In a letter of 20 April 2018 from Mr Pullinger to the EPA (in Ex C), Mr Pullinger noted that Mr Nick Cowman of EPS had been attempting to contact the EPA about licencing requirements to dispose of waste at the Premises. An email of 27 April 2018 from Mr Mark Hartwell of the EPA to Ms Marler and Ms Lange, noting key issues from a meeting with Mr Pullinger, Mr Matthews and Maitland City Council that day, recorded in more detail the proposal from EPS to operate a mobile PFAS contaminated liquid treatment system on the Premises (in Ex C). Mr Howat deposed that on 1 May 2018, EPS applied for an EPL. In an email of 27 April 2018 from Mr Matthews to Ms Marler (in Ex C), Mr Matthews detailed a proposal whereby PFAS contaminated water would be stored on the Premises by EPS, who would begin processing the liquid once they received their EPL in around three to four weeks. In an email of 2 May 2018 from Ms Marler to Mr Matthews (in Ex C), Ms Marler declined Mr Matthews' proposal. Mr Matthews responded on 2 May 2018 to the effect that Mr Pullinger and Clean Tech would proceed with the EPS proposal once they obtained an EPL. Ms Marler's email on 4 May 2018 in reply was internal to the EPA and asked for Ms Lange to be kept "in the loop" on the progress of EPS's mobile EPL application.
3. Ms Marler deposed in her first affidavit that during the period of the tender process, Mr Pullinger engaged EPS to install a mobile treatment plant on the Premises to treat contaminated water before disposing of treated water off-site to the Hunter Water Corporation sewerage system. Mr Howat deposed that EPS submitted a revised application for an EPL on 13 June 2018. On 29 June 2018, the EPA wrote to EPS advising it had reviewed the revised application and needed further information, which was subsequently provided on 6 July 2018. On 9 July 2018, the EPA provided in-principle approval for EPS' application for an EPL. On 17 August 2018, a draft EPL was issued to EPS for comment. EPS submitted a formal proposal to Mr Pullinger and Mr Matthews to treat PFAS contaminated water at the Premises on 21 August 2018. EPS was issued with an EPL on 29 August 2018. EPS was ultimately engaged by Mr Pullinger to treat and remove approximately 1,700,000 litres of contaminated liquid from the Premises but ceased work on the Premises on 12 April 2019 due to unpaid fees.

Mr Pullinger's request for a grant from the EPA

1. By letter dated 6 September 2019 from Mr Chris Kintis of ClarkeKann Lawyers to Mr Mark Gifford of the EPA (in Ex B), Mr Pullinger and Glowbye through Mr Kintis requested a grant of $500,000 from the EPA so that they could comply with the EPA's instructions in its letter of 27 June 2019 and carry out remediation works at the Premises.

Oral evidence of Ms Lange

1. Mr Pullinger cross-examined Ms Lange. She accepted that in 2018 there was space in the bunds. She emphasised that the spill containment and surface water collection system relied on an underground tank which was a third to a half full (around 25,000 to 30,000 litres capacity) because it was filled with sludge. She accepted that there was approximately 170 millimetres of freeboard in the bunds.
2. Ms Lange accepted that 43,000 of the approximately 63,000 litres pumped out of the Premises on 22 March 2018 was taken to Cleanaway's Kooragang Island facility. She accepted that Cleanaway Kooragang Island could not process that product because it was not licenced to do so. She agreed that the Kooragang Island facility was not licenced to process PFAS contaminated water at the time. She did not know whether the facility could receive and store PFAS contaminated water.
3. When asked why the EPA rejected the proposal from Mr Matthews (described above in [31], [38]) to store the contaminated water in tanks bunded on the Premises, Ms Lange answered that the EPA was still concerned, if further rainfall occurred, that if water was pumped back into the Premises it would re-contaminate further areas on the Premises and there would not be capacity to deal with a further rainfall event. The level of water in the tanks had gone from 150-300 millimetres (varying across the Premises) and if it continued to rain there would have been discharge. The capacity in the tanks could be used to manage future rainfall events, and the tankers parked on-site enabled the capacity to be used in this way.
4. Ms Lange did not agree that the waste could have been pumped into tanks and stored in a safer location. Anything that leaked from the trucks would have been captured by the secondary containment system and ultimately flowed to the underground tanks. When Mr Pullinger asked Ms Lange if she knew that, had the trucks been opened, the waste would have leaked onto neighbouring property, Ms Lange answered that she did not know about this. Ms Lange was not aware that, according to Mr Pullinger, thieves came on to the Premises and stole diesel from the Toxfree trucks when they were parked on-site. Ms Lange agreed that there may have been space on the Premises to store the contaminated water, at least according to Mr Vujkovic. She nevertheless maintained this was not the best course of action because of the need for capacity for future rainfall events.
5. Ms Lange was asked why she told GHD (see above in [39]) in an email dated 23 August 2018 that the $0.90 per litre disposal cost for the March 2018 discharge should be amended to $1.95 per litre on the basis of final invoices for the March 2018 discharge. She responded that this was her calculation based on Toxfree invoices for March 2018, coming up with a reasonable cost of what would be expected for a clean-up of the Premises. Furthermore, the email to GHD was for the purpose of GHD assessing options to clean up the Premises in the future. The calculation was not exactly what was on the invoices but based on what would be a reasonable cost having regard to what the contractor charged at the time. Ms Lange initially accepted that she may have got her figures wrong with respect to the $1.95 per litre estimate. She later revised that to the effect that if anything she had underestimated the cost, given the EPA's costs of clean-up in September 2021 were higher than $1.95 per litre. For the purposes of the email, the figure was actually correct.
6. Ms Lange agreed that it was always better not to transport liquid waste. Not transporting waste is a key objective where it is safe to do so.
7. Mr Pullinger asserted to Ms Lange that Sydney Water was not accepting any PFAS contaminated water except from within the Sydney water area. Ms Lange was unaware of this. She sought advice from within the EPA about whether the water could go to Sydney Water.
8. Ms Lange agreed that EPS, which treated wastewater on-site and then removed water for transport and disposal at the Hunter Water facility at Burwood, did a good job. The onsite treatment by EPS was acceptable to the EPA.
9. When asked whether the Premises was being adequately managed by Mr Vujkovic between October 2016 and May 2020 (excluding the March 2018 incident), Ms Lange noted that Mr Vujkovic did not detect that the Premises was discharging water on 21 March 2018.
10. Ms Lange was asked whether the price that Cleanaway charged the EPA to dispose of PFAS waste in respect of the 2020 incident was far out of proportion compared with the $0.80 per litre that Toxfree quoted Mr Pullinger in 2017 and the $0.79 per litre Toxfree quoted the EPA in 2018. Ms Lange acknowledged there was a difference but noted that she did not see Mr Pullinger's quote. She did not accept that the price was unreasonable and responded that it seemed to be market value.

Oral evidence of Ms Marler

1. Mr Pullinger cross-examined Ms Marler. In respect of the 2018 incident, Ms Marler accepted that the volume of contaminated liquid was a relatively small amount compared to the total volume of capacity in the bunds.
2. Ms Marler believed that water was safely stored in the tankers on-site and it would be an incorrect decision on her behalf to place the contaminated water back into a bund system that was at risk of overflow. She could not foresee what the rainfall conditions would be going forward and she did not want to further decrease the available freeboard in the spill containment and surface water collection system. At the time of the March 2018 incident, EPS did not have a licence to treat PFAS contaminated water. There was no guarantee that Mr Pullinger could treat the contaminated water on-site. Ms Marler did not know how long the trucks parked on the Premises at Mr Pullinger's direction would be on the Premises. In her opinion, it would have been a poor decision on her part to discharge contaminated water back into a bund or tank knowing of the risk of future overflow without the possibility of on-site treatment being available at that time. The EPA's actions were reasonable in terms of costs in the circumstances.
3. When it was put to Ms Marler in cross-examination that, had the contaminated water been stored on the Premises, Cleanaway could have come back to the Premises to pump out the bunds if there was another significant rainfall event after March 2018, Ms Marler responded that this was an unknown possibility. Cleanaway may not have been available. She made a risk-based assessment to keep the material where it was. The bunds were not a waste storage facility but an emergency provision to collect what is stored in the tanks in the event of tank failure. They are meant to be dry. The bunds were also full of waste material at the time.
4. When it was put to Ms Marler that, in light of diesel having been stolen from the trucks parked on-site, it was safer to put the water into the tanks on-site, she answered that in her opinion it would not have been.
5. In respect of the 2018 incident, Ms Marler agreed that there was a period of a few weeks in which the Cleanaway Homebush and Kooragang Island facilities could not dispose of PFAS waste. In this period the contaminated water went to Melbourne for disposal, before the Homebush facility was appropriately licenced. Only some of the material stored at Homebush was taken to Melbourne. Whether Cleanaway took material to Homebush or decided to handle and dispose of the waste lawfully at another location was not the EPA's decision. Ms Marler believed Kooragang Island was licenced to store PFAS waste. The waste code N140 for fire debris and fire wash waters could include PFAS if a broad interpretation was taken. Ms Marler accepted that the N140 waste code may not relate to PFAS in water that has not been through a fire. There were other waste codes that could relate to PFAS, such as J100 (waste mineral oils unfit for intended use) and A100 (waste from surface treatment of metals and plastics). At least in 2018, there may not have been licences in NSW that would have had a waste code specific to PFAS treatment apart from mobile licences.
6. It was put to Ms Marler that, given the cost of disposal of liquid waste went from $0.79 per litre in 2018 to $2.45 per litre by 18 June 2020, it would have been better to accept the unsolicited proposal from EPS in 2018 (see above in [43]). Ms Marler answered that she could not, on behalf of the EPA, accept an unsolicited proposal. Ms Marler agreed that EPS did later prove it could treat water on-site in 2018 and 2019. However, the EPA was bound by government procurement processes, having regard to public value, fairness, and transparency, and needed to go to market for contracts over a certain value. The EPA invited EPS to tender. Ms Marler agreed that there probably would have been more "public value" in installing a mobile treatment plant. She could not dispute that the EPS proposal would have been cheaper. She also stated that there were other considerations, including that this would involve the government stepping in and undertaking actions to install equipment and processes on a site it does not own or occupy, and that the EPA may not have the legal authority to take such actions. Ms Marler did not know whether Haldon was treating water on-site currently. Furthermore, the EPS proposal would involve a piece of equipment being on-site "forever", which was not the EPA's desired solution. The EPA issued a tender for a medium to long-term solution for the Premises.
7. Ms Marler accepted that she knew EPS was applying to obtain a mobile licence to treat PFAS prior to the EPA's tender on 17 May 2018 (see above in [42], [43]). EPS did not have a licence before 17 May and the work leading up to the tender commenced many months before it was issued. The tender was ultimately not awarded in 2018 because Mr Pullinger proceeded to establish EPS on-site treating the contaminated material. In June 2020, Cleanaway was contacted to manage the Premises because it was the only tenderer in 2018. Haldon was not asked to operate a mobile treatment plant on-site because the EPA needed to go through proper processes. The EPA hired GHD to consider other longer-term options for the Premises.
8. When asked why there was an increase from $1.95 a litre disposal cost in 2018 to $2.45 a litre disposal cost in June 2020, Ms Marler answered that she believed the actual concentration of PFAS increased during that period.
9. Ms Marler was later cross-examined by Mr Pullinger in relation to her second affidavit of 20 September 2021, the primary purpose of which was to respond to Mr Pullinger's case as emerged during the hearing in relation to reasonable costs and expenses. Ms Marler stated that the EPA has never taken a proactive or preventative course of action where there was no risk of pollution occurring. Given the drought conditions, the point at which rainfall exceeded evaporation and the risk of pollution occurred was unknown. It would have been a difficult decision for the EPA to invest in on-site infrastructure between the March 2018 and June/July 2020 incidents if there was no risk of pollution occurring. The EPA was monitoring rainfall every day; the EPA's approach was to monitor the Premises. When asked why the EPA did not look at longer term options between the March 2018 and June/July 2020 incidents, Ms Marler answered that EPS were doing an effective job until April 2019 and it had taken a much longer period to organise for a complete remediation of the site - a process in which the EPA is currently involved - that would provide a real long term solution.
10. When asked why the EPA did not proactively manage the Premises by installing on-site treatment after 18 April 2018 and before 10 June 2020, Ms Marler answered that proactive management was the responsibility of the landowner not the EPA. The EPA's responsibility was to give effect to the clean-up notice to prevent a pollution incident occurring. The EPA could have gone to the expense of installing on-site treatment capacity and having the electricity reconnected (or alternatively obtaining diesel generation) and providing for other necessary amenities, but rainfall did not exceed evaporation for two years from the March 2018 incident. That would have been an unnecessary ongoing expense for the EPA.
11. When it was put to Ms Marler that the electricity was disconnected from the Premises in 2017, not 2019 as she affirmed in her second affidavit (see above in [33]), she replied that she was unaware of this. Likewise it was asserted in cross-examination that all on-site treatment facilities, including Haldon and EPS mobile treatment facilities, used diesel generators for power. Ms Marler stated she was not aware of this but acknowledged that this must be the case given Haldon was on the Premises treating the waste and there was no power connected.
12. Ms Marler was not aware why all of the 73,000 litres she says was pumped out from the Premises in a letter from the EPA to Mr Pullinger dated 6 April 2018 (see above in [24]), was not included in the 63,240 litres recorded as being sent to Cleanaway Homebush (see in SOF pars 29, 39 and above in [27]). She did not know where approximately 10,000 litres went.
13. When asked why Mr Pullinger and Truegain Pty Limited ACN 055 126 497 (Truegain) were not informed about the dangers of PFAS in 2012, Ms Marler answered that the EPA only had an emerging understanding of PFAS in 2012. Ms Marler was not sure that the EPA had a regulatory role or duty of care to inform operations like Mr Pullinger's about PFAS in 2012. The EPA had no information to support a decision to change wastewater treatment collection of licenced wastewater treatment operations. This was before any human health or ecological risk assessment was undertaken. Ms Marler was not aware there was any other PFAS contamination around the area in 2014 other than at the Royal Australian Air Force (RAAF) base at Williamtown.
14. When questioned about why the EPA did not provide a grant to Mr Pullinger to fund his own remediation works, Ms Marler responded that there was no grant program in existence with which to fund Mr Pullinger's proposal.

Oral evidence of Mr Howat

1. Mr Pullinger cross-examined Mr Howat. Mr Howat confirmed that to his knowledge when he took samples from the tanks on the Premises in 2020, they tested positive for PFAS. Mr Howat accepted that EPS submitted an application to the EPA for an EPL on 1 May 2018 in support of an application to process wastewater on-site. To the best of his knowledge, Mr Howat accepted that the EPA issued an in-principle approval for EPS's application to process wastewater on the Premises. The EPL was issued on 29 August 2018.
2. Mr Howat was not aware whether the EPL for Cleanaway's Homebush facility permitted treatment of PFAS contaminated water.

Mr Pullinger's evidence

1. Mr Pullinger swore an affidavit dated 8 September 2021. In his affidavit, the page numbering referred to appears to be the page numbering of the evidence bundle attached to his affidavit (Ex 1). He is therefore referring to documentary evidence in Ex 1. He deposed as follows: In February of 2016 the Dept of Foreign Affairs and Trade Reference Committee released the findings of an inquiry into firefighting contamination Part A - RAAF Base Williamtown NSW. Amongst the findings the following was reported; P 10 Pt 2.25 2nd May 2012. The Defence Dept contacts the NSW EPA and advises of surface water leaving the site and other issues. P 12 Pt 2.35 20th June 2013. Then Minister of the Environment, Robyn Parker MP, received a brief on groundwater contamination at the RAAF Base, Williamtown. At no point were waste operators, in particular our operating company, advised of the potential problem of collecting waste water and, in our case, waste oil and water from the base or surrounding businesses. P 12 - 18 Pt 2.36 - 2.66. A number of reports and environmental investigations are commissioned. Including Hunter Water makes a decision to embargo Pump Stations 7 and 9 for water supply purposes based on the risk of drawing PFOS/PFOA contaminants towards borderlines. At no stage did Hunter Water inform license holders and waste operators of the potential issues of PFOS/PFOA in their sewerage system. P 20 - 30 Relate to the Health issues associated with these chemicals. Note P21 3.9 In 2006 the Persistent Organic Pollutants Review Committee of the Stockho[l]m [sic] Convention concluded "that PFOS is likely, as a result of its long-range environmental transport, to lead to significant adverse human health and environmental effects, such that global action is warranted" P 40 - 62 Government Response 5.2 Ms Washington, the local member for the Port Stephens area commented. "It has been difficult to stomach the fundamental question: if Defence, the EPA, Port Stephens Council and Hunter Water all knew about the contaminants exiting the base in 2012, why wasn't our community given the benefit of same information? In particular, "IN particular [sic] she noted, earlier notification would presumably have allowed people to have had "less exposure to the contaminants". P 65 Committee view and recommendations. P 71 Pt 6.46 "There are likely to be many other military and civilian airports, firefighting training sites as well as other facilities which will have legacy PFOS/PFOA contamination through the use of firefighting foams." At no time did the NSW EPA advise Truegain Pty Ltd, the EPA license holder as to the risks of potentially collecting these contaminants, PFOS/PFOA. Hunter Water did not advise the land owner, as the licensee of the sewerage release, as to the environmental risks associated with these contaminants, PFAS/PFOA. At no time were we notified that these chemicals posed a significant health issue and water must be treated to a certain standard before disposal into the sewer. As we were collecting waste oil and waters from all over NSW, and based in the Hunter Valley, I would have thought that this type of communication would have been mandatory considering the health risks that had been identified. Pages 92 - 97. Email trail with Cleanaway/Toxfree people showing loads cannot be accepted at Kooragang Island facility as PFOS/PFOA was detected. Could have an option at Homebush but need to get approval from Sydney Water to accept these loads from outside of the Sydney Water District. However, water with no apparent contamination was removed. P 98. Correspondence with Director Hunter EPA dated 12th October 2016 concerning the inability to have removed PFOS/PFOA from site. Also asking for assistance in dealing with this issue. Also informing the [EPA] [sic] I had employed a manager to control the site as per agreement with [EPA] [sic]. P 99. Further correspondence dated 8th November 2016 with EPA Hunter Region to Bill George. Shows I attempted to have waste companies remove the contaminated water with a negative response from all on such removal. Asked for assistance again to no avail either financially or otherwise. P 100 - 101. Correspondence dated 29th November 2016 to Director Contaminated Land Management Re Draft Preliminary Investigation Order 62 Kyle Street Rutherford. Setting out the issues relating to discharge and removal of contaminated chemicals from site. During this process we developed a distillation and filtering process to remove PFOS/PFOA from the water. This was rejected by the [EPA] [sic]. As a result Truegain was placed into administration and a liquidator appointed. Again I asked for urgent assistance in dealing with the removal of PFOS/PFOA all to no avail. P 102 - 127. EPA License for Truegain Pty Ltd. P 128 - 130. Email dated 22nd February 2017 to Bill George re our ability to process PFOA/PFOS by distillation and separating these contaminants. Email shows test results and a diagram of how this would be achieved. No reply was received. P 131. Letter dated 30th May 2017 addressed to Director Hunter EPA re. Draft Notice of Cleanup Action (Notice 1548804) setting out the position I found myself in at the time. P 132 - 136. letter dated 26th June 2017 addressed to Director Hunter EPA Re Cleanup Action (Notice 1548804) Re Enviro Services Group unable to remove to waste water due to PFAS contamination. Certificate of Analysis is included. I was told that Sydney Water wouldn't allow any PFAS contaminated water to enter the Sydney Water Region. P 137 - 138. Emails dated 25th July 2017 to Jenny Lange re locking off all tanks so they are secure. All tanks were locked off and photos sent through to Jenny Lange. P 139 - 142. EPA PFAS investigation into the Rutherford Industrial Estate. The topography of this estate shows that 62 Kyle St Rutherford is the lowest point from the New England Highway. Hence all contaminants would flow down toward the site. In fact the report shows on multiple occasions that the stormwater drain 200m upstream of Truegain premises has the highest concentrations of PFOS/PFHxS. It is also reported in a stormwater drain downstream of Maitland airport, which is north of the New England Highway. P 143 - 146. Rutherford timeline and clean-up actions, meetings to try and resolve the issues with EPA, especially with regard to the water that was removed from bunds on the 21/3/2018 and 22/3/2018. The pollution incident that caused the site to overflow on the 21/3 was caused by an extraordinary amount of rain on the roadways within the site and the underground tank was full to capacity at the time. When Kosta arrived he pumped out the underground tank and the incident was contained within the site. A sandbag had been dislodged and this is what caused the issue. The bunds did not overflow in fact they had approx. 175mm of freeboard at the end of the downpour. The amount of 70,000 litres that was pumped from the bunds only related to approx. 2-3mm difference in the levels within the bunds. This was pointed out to Jenny Lange at the time. However it was decided that the pump out continue. We also had approx. 150,000 litres of empty tank space that the water held in the trucks could have been pumped into. Again this was rejected by the EPA. Cleanaway had no legal means of disposing of this water therefore the water had to be held in trucks at Kooragang Island and at our site. The rain ceased on the 22/3. In addition to the 150,000 litres of empty storage on the 4/4/2018 I purchased another 69,000 litres of tank storage capacity. Pumping the trucks out into the available storage tanks was rejected. The demurrage costs continued to rise to a total of approx. $220,000 of the total bill of approx. $281,000. The water was eventually taken to Cleanaway's Homebush site which, as per information, didn't have approval to receive this waste at the time. When taking off the demurrage from the bill, which equates to approx. $3.15 per litre. To have it processed at Homebush equates to $0.8714c/litre. Which is very expensive compared to the quotes we received from EPS and Haldon Engineering. P 144 26th April 2018. Meeting with EPA, Maitland City Council and EPS re supporting onsite processing, which was agreed to; During this time we informed the EPA that we had arrived at an agreement with Enviropacific Solutions (EPS) to process all of the water onsite. We also had an eventual agreement with Hunter Water that they would accept this "clean" water, subject to NATA laboratory certificate, into their Treatment facility at Newcastle. On the 30/4/2018 EPS submitted their application to the EPA for an Environment Processing License to process the water onsite. This information was known to the EPA by applying for the EPL license and we informed the Newcastle Office of same. On the 29/8/2018 the EPL was finally given to EPS to process PFAS waters onsite. P 147 - 149. Emails to Karen Marler re pump out and storage of waste water onsite rather than in trucks costing a large amount of money. Ms Marler has stated previously that I didn't have the ability to process onsite, which is wrong given the agreement with EPL. Also this would have been the cheapest option for all concerned. Note Cleanaway intended to transport the waste into Queensland, however, the approval didn't come through for disposal, leaving the EPA with this waste still sitting in trucks and costing a fortune. P 150 - 156. Variation of Clean-up Notice (1564650) and my solicitors reply. P 157 - 159. General update emails to EPA[.] P 160 - 166. 62 Kyle St Rutherford - Site Progress Report - December 2018. Shows the environmental clean-up work completed so far and what is left to do and the available funds to complete the works. Unfortunately the funder reneged on paying further funds that were approved and interest paid after 4 months. A satisfactory explanation was not forthcoming other than they had the premises valued again. P 167 Sept 19th 2019. Email to Jenny Lange re my current position and flagging the issue of obtaining a loan/grant to complete the clean-up works and have a solid foundation for the future both for the site and for NSW in the processing of PFAS. P 168 - 169 5th June 2020. Email from Michael Howat, EPA, re recent notices and I requested a meeting with Karen Marler, which didn't eventuate. P 170 - 171 22 nd June 2020. Letter to Mark Hartwell re discussion points for a meeting with Karen Marler and Hartwell. P 172 - 179 1 st July 2020. Draft Prohibition Notice issued. P 180 - 183. Reply to David Fowler Draft Notice of Prohibition. Correcting some of the inconsistencies in the Notice. P 184 23rd July 2020. Request for a meeting with the Minister Hon Matt Kean to discuss the current position and for loan/grant assistance. P 185 29th July 2020. Rejection of such meeting from the Minister. P 186 - 193 25th August 2020. Prohibition Notice issued together with letter from the Minister. P 194 - 195 12th October 2020. Re Show Cause Response suggesting a meeting and benefits that could be obtained. P 196 - 197 16th October 2020. Response from Carmen Dwyer to letter sent to Karen Marler. P 199 - 200 19th October 2020. Response from R Pullinger to Carmen Dwyer re the above letter. P 201 - 202 28th October 2020. Response from Carmen Dwyer re my email of the 19th. P 203 - 207 7th December 2020. Notice of intention to take clean-up Action. P 208 16th December 2020. Reply to Brett Nudd to the Clean-up action notice. P 209 - 218 Accepted Tender Proposal from Enviropacific for the treatment of 3,000,000 litres of PFAS contaminated water. The total cost for the treatment of this water is $302,158.61. Under the agreement we had with Hunter Water the water could be trucked to a sewerage plant in Newcastle at a cost of $0.04c/l. The water is then of an ecological standard and would not present a problem should a truck accident occur as opposed to the method employed by the EPA where PFAS contaminated water was shipped to the Cleanaway site at Kooragang Island. Which is unlicensed to treat PFAS waters. Makes no sense. P 219 - 232 EPA statement and Invoices from 20th November 2020 to 17th February 2021. In summary there are 4 invoices totally $2,306,914.52 for removing and transporting 918,3001itres to an unlicensed facility to accept PFAS. This is in addition to the amount claimed in this action by the EPA. P 233 - 234 Email from Philippa Clark President Nelson Parade Action Group. Re the remediation of some of the homes in Nelson Parade, Hunters Hill due to left over contamination of the original site which was privately owned and closed down in the 1920s. The New South Wales Government is paying for the total clean-up and restoration of the sites. Contrary to what I've been informed the NSW Government does.

EPA's submissions

1. The issues for determination, in relation to each pollution incident as defined in the Dictionary to the POEO Act are: 1. whether the EPA had a "reasonable suspicion" that a "pollution incident", as defined in the Dictionary to the POEO Act, had occurred or was occurring at the Premises on each of 21 March 2018 and from 26 May 2020 to June 2020; 2. whether under s 92(2) of the POEO Act the EPA was entitled to take the clean-up action it considered necessary to respond to each of the two pollution incidents; 3. whether under s 104(2) of the POEO Act the EPA was entitled in the circumstances to issue the compliance cost notices the subject of these proceedings to Mr Pullinger, as the occupier of the Premises, for the reasonable costs and expenses incurred by the EPA in taking the clean-up action under s 92(2) of the POEO Act in response to each of the two pollution incidents; and 4. whether the costs and expenses incurred by the EPA in taking clean-up action following each of the two pollution incidents are reasonable.
2. On the EPA's case, only issues (a) and (d) engage any subjective test of reasonableness, issues (b) and (c) being within the EPA's power as a matter of law once the reasonable suspicion of a pollution incident is established under issue (a).
3. The EPA submitted that the statutory regime is undemanding, citing Kempsey Shire Council v Slade (2015) 214 LGERA 214; [2015] NSWLEC 135 (Slade No 1), in which Biscoe J noted at [4] that "[t]he most remarkable aspect of the scheme is that it is based merely on reasonable suspicion and is therefore undemanding". The facts in Slade No 1 differed from this case, in that a local council had carried out work pursuant to a direction from the EPA under s 92(1), rather than work being carried out by the EPA itself (or through its contractors) under ss 92(2) and 92(4). However, since both cases involve compliance costs notices issued under s 104(2) and recovery of those costs under s 105(1), the principles to be applied are not materially different.
4. In Slade No 1 at [23], considering s 104(2), Biscoe J stated: The injection of the word "reasonably" into the statutory provision requires the Court on a judicial review to determine objectively the reasonableness of the suspicion (not merely whether it was manifestly unreasonable in the Wednesbury sense), on the evidence before the Court. …
5. The EPA submitted that whether the scope and nature of the works was reasonable and whether there was a better and/or more cost effective alternative available does not arise under the legislative scheme in the POEO Act, and as identified in the few cases to consider these sections. Only Mistring, Slade No 1, Kempsey Shire Council v Slade (No 2) [2017] NSWLEC 10 (Slade No 2), Slade v Kempsey Shire Council (2018) 231 LGERA 1; [2018] NSWCA 25 (Slade CA) have considered the legislative scheme.
6. In relation to the two separate periods of pollution incidents at the Premises the EPA must establish firstly, whether it had a reasonable basis for suspicion that pollution incident occurred, and, secondly, whether the costs were reasonable in relation to the work carried out. In respect of each incident, the EPA submitted that it took clean-up action pursuant to s 92(2) of the POEO Act. As permitted by s 92(4), the EPA engaged contractors to carry out the clean-up action. Accordingly, the EPA incurred costs and expenses associated with the clean-up action and was entitled to issue compliance costs notices under s 104. Those notices having not been complied with, the EPA is entitled to recover the costs the subject of those notices under s 105 by application to this Court.
7. The EPA submitted that the evidence (particularly as set out in [10]-[36] above) supports the necessary matters required under ss 92, 104 and 105.
8. The evidence establishes that the EPA: 1. reasonably suspected a pollution incident had occurred or was occurring on 21 March 2018, and in May-June 2020; 2. took clean-up action; 3. incurred costs in connection with clean-up action; 4. the costs and expenses incurred were reasonable; 5. Mr Pullinger was at all times the occupier of the Premises; and 6. payment was required in writing (three compliance notices issued) and payment was not received.
9. The evidence demonstrates that at various times in and after 2016, the EPA became aware of incidents which fall within the definition of "pollution incident" including evidence of contaminants in the liquid contained in the spill containment system, faults within the infrastructure of the system and liquid contaminated with hydrocarbons draining from the spill containment system.
10. On 21 March 2018, Ms Lange of the EPA attended the Premises and observed flooding and, amongst other things, an odour and sheen indicating the presence of hydrocarbon in the floodwater (see above in [11]). This was sufficient basis to "reasonably suspect" that the first pollution incident occurred on 21 March 2018.
11. In relation to the second pollution incident, several site inspections led EPA officers to suspect a pollution incident had occurred including notably site visits by Mr Howat of the EPA on 26 May 2020 and 4 June 2020 (see above in [17]-[22]). Combined with substantial other evidence regarding the Premises including that it was not being actively managed, these observations meet the test of "reasonable suspicion" of a pollution incident in May to June 2020.
12. The EPA does not in these proceedings have to demonstrate that pollution incidents actually occurred, although there is in fact ample evidence before the Court that they did. The threshold required by s 104 is met because, to adopt the language of Biscoe J in Slade No 1 at [22]: 1. there was an objective and factual basis for a suspicion that a pollution incident had occurred in the form of information gathered by EPA officers in relation to the Premises; and 2. that information supported a belief that it was more than a possibility that pollution had occurred.
13. For these reasons it follows that in respect of both pollution incidents, the EPA: 1. reasonably suspected a pollution incident within the test established in Slade No 1; 2. was accordingly entitled to take clean-up action pursuant to s 92(2); and 3. was entitled to issue compliance costs notices to Mr Pullinger as occupier of the Premises.
14. Mr Pullinger did not appear to dispute any of these matters.
15. The principal issue in dispute is the meaning of "reasonable costs and expenses" in the tailpiece to s 104(2). In summary, the EPA submitted that "reasonable costs" in the context of s 104 goes only to whether the costs incurred were reasonable in relation to the work which was in fact carried out. Disputing the reasonableness of costs under s 104 would require, for example, evidence from another contractor or an expert in the field that the costs of the actual work carried out were unreasonable. There is no such evidence before the Court.
16. Whether works were deemed necessary is covered by s 92(2) and relates to the decision to undertake clean-up works. The Court's only inquiry into necessity is whether the authority considered it necessary, not whether it was in fact necessary. The necessity of the works is not re-invigorated by s 104(2), which relates to the quantum of costs incurred in undertaking the work. Nor does "reasonable" appear in relation to "such clean-up action" in s 92(2); the absence of the word "reasonable" is significant. Like any decision of a public authority, the decision must not be legally unreasonable in the Wednesbury (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223) or administrative law sense, however this is a very high threshold.
17. Further, as noted above, considering that the purpose of the costs recovery regime is to facilitate urgent clean-up action by authorities, it would not be reasonable to read into the regime a requirement for due diligence as to the best or most effective approach in every situation.
18. While the quantum of costs was considered by Sheahan J in Slade No 2, there does not appear to have been rigorous argument about what amounted to reasonable costs in that case. However, his Honour does note at [85] and [88]-[89]: 85 The statute is clear. Once asbestos was found, Council could, of its own volition, undertake a clean-up, whether or not the EPA intervened, and, once the clean-up was done, Council became entitled to claim reimbursement, even if there may be some defect in its compliance with any EPA notice. … 88 The amounts claimed are amply supported by Council's evidence, which has gone largely unchallenged. 89 Council was perfectly entitled to engage and rely upon Ellis and ERM, as "appropriately qualified experts" to "assess, project manage, and safely remove and dispose of" the asbestos-affected waste on its behalf (subs par 22). The EPA notice was not necessary.
19. Read together, these passages appear to support the EPA's submission that, having formed a reasonable suspicion of a pollution incident, it was a matter for the authority to determine the work required and that it was entitled to recover the cost of that work absent proof that either the costs were not incurred or that they were unreasonable.
20. In oral closing submissions the EPA submitted that s 105(2) of the POEO Act ameliorates the harshness of the statutory compliance costs notice regime under ss 92, 104(2) and 105(1). Under s 105(2), if the person given a costs compliance notice complies with the notice but was not the person who caused the pollution incident, the cost of compliance may be recovered as a debt from the person who caused the incident. This comfort provided by the legislation is important context for the legislative regime in question in these proceedings because the regime as interpreted by the EPA does not leave the occupier with no recourse.
21. The EPA can demonstrate on the evidence that costs claimed were "reasonable costs and expenses". In relation to the 2018 incident, the EPA engaged Toxfree because they were located near the Premises and were on the EPA's preferred contractor list (see above in [30]). Mr Pullinger's issue appears to be not with the initial clean-up action, but that Ms Marler did not authorise the wastewater to be treated and released back on to the Premises rather than retained in trucks. Ms Marler stated in her oral evidence that she considered that to carry an unreasonable environmental risk.
22. In relation to the 2020 incident, Ms Marler has given evidence orally and in her second affidavit (see above in [32]) that the EPA engaged Cleanaway because it had been the sole tenderer in response to a tender for similar work which was contemplated by the EPA later in 2018 than the 2018 incident, but did not become necessary until 2020. In turn, Cleanaway was invited to tender because it was on the preferred contractor list. Cleanaway could not have been aware that it would be the only service to tender for the work. Accordingly it is reasonable to assume the tender represented a fair market value for the work to be carried out by a suitably experienced contractor. There is no substantive evidence to the contrary.
23. In any event, the EPA submitted it could demonstrate on the evidence that the scope of work was reasonable, noting particularly Ms Marler's evidence summarised above in [30] in relation to the 2018 incident and Ms Marler's evidence above in [33] in relation to the 2020 incident.

Interest

1. The EPA made further written submissions in respect of the interest it seeks under s 100 of the CP Act. Section 100 is extracted above in [5].
2. The Court's Pre-Judgment Interest Rates Practice Note dated 22 June 2010 states that in determining any such claim for interest the parties may expect the Court to have regard to the cash rate last published by the Reserve Bank of Australia, as at 30 June or 30 December immediately preceding the relevant interest period, plus 4%. Accordingly the interest claim calculations (which are also set out in the Applicant's points of claim filed 4 December 2020) are as follows, with each rate based on the cash rate for the relevant period plus 4%:
3. Any interest awarded related to interest after the commencement of proceedings but before the date of judgment, could be calculated on a similar basis at the appropriate time.
4. I note that the amount of "$120,5704" mentioned in the second table reproduced above in [97] should read "$120.5704".

Mr Pullinger's submissions

1. Mr Pullinger submitted that the Court must determine whether the scope and nature of works carried out in March-May 2018 and June-July 2020 were reasonable, and whether there were better and more cost effective alternatives available that should have been adopted by the EPA.

Failure to inform Mr Pullinger about PFAS issue

1. The EPA conceded at the hearing that it did not advise and has never advised Truegain, Glowbye or Mr Pullinger about potential or actual PFAS contamination issues. This is despite the EPA being aware of PFAS issues at and near the RAAF Williamtown Air Force Base (RAAF Base Williamtown) as early as 2009 (if not before) as referred to in the report of the Senate Foreign Affairs, Defence and Trade References Committee, Inquiry into firefighting foam contamination Part A - RAAF Base Williamtown, (February 2016). This report is in evidence, see the first paragraph of Mr Pullinger's affidavit above in [72]. The EPA knew that Truegain was operating a site that was collecting wastewater and waste oil from RAAF Base Williamtown, Richmond Air Force Base, the Singleton area and other places the EPA knew, reasonably should have known or at least suspected, to be contaminated with PFAS.
2. As soon as the EPA was informed of the existence of PFAS on the Premises the 'cat was out of the bag' and immediately media releases were sent out by the EPA to all residents warning of the dangers of PFAS. If not for Hunter Water detecting PFAS, it is impossible to tell when or if the EPA would have communicated these matters to Truegain, Glowbye and Mr Pullinger.
3. In these circumstances, it is unreasonable for the EPA to claim any costs. They have totally failed to maintain or discharge their duty of care towards the public and the environment in respect of PFAS. Specifically, they failed to communicate, educate, alert, explain, put on notice or impose regulations on licenced waste collectors operating throughout the state.

2018 incident

1. The overflow from the underground tank on the Premises was caused by a very large rainstorm on 21 March 2018. This overflow was a result of a sandbag that was displaced (see Mr Pullinger's affidavit in [72]) and a spill occurred for approximately one hour before the fault was rectified. This was not challenged by the EPA at the hearing. This incident is starkly different from a negligent or reckless action by a person or entity.
2. The EPA arrived at the Premises after the overflow event of 21 March 2018, found the spill and contacted Toxfree to pump out the underground tank, which was the spill containment system for the roadways. Toxfree pumped approximately 43,000 litres from the underground tank and associated roadways. This product was transferred to Cleanaway's Kooragang Island facility and placed in IBCs (1,000 litres plastic containers) and stored on-site at that facility.

Licencing issue

1. Cleanaway's Kooragang Island facility was not licensed to store or treat PFAS contaminated liquids. No licence for the that facility is in evidence showing waste code M270 for the storage or treatment of PFAS contaminated liquids. The licence tendered by the EPA (Ex E) allegedly justifying the ability of the Cleanaway's Kooragang Island facility to store or treat PFAS contaminated liquid does not contain the waste code M270 being the waste code for PFAS (see above in [8(5)] and Ms Marler's cross-examination in [60]). The EPA was allowing the transporting to and storing of contaminated water at unlicenced facilities without the approval of Sydney Water, as confirmed by Cleanaway. This demonstrates a negligent discharge of the EPA's duties and responsibilities. The EPA is now seeking to claim the costs of those actions against Mr Pullinger.
2. The PFAS contaminated liquids that were taken to the Kooragang Island facility were, after being stored there unlawfully, subsequently taken to Cleanaway's Homebush facility, which also did not have a license to receive this waste. Mr Pullinger relied on an email in Ex B from Mr Waskett of the EPA to Ms Lange dated 26 March 2018 to support this submission (see above in [40]). The licence for Cleanaway's Homebush facility (Ex E) allegedly justifying the ability of Cleanaway's Homebush facility to store or treat PFAS contaminated liquid does not contain the waste code M270 (see above in [8(5)] and Ms Marler's cross-examination in [60]). Mr Pullinger also relied on an email dated 30 August 2016 from Mr Glenn Horne, NSW Regional Manager at Cleanaway Kooragang Island, to Mr Pullinger (see Ex 1, pp 92-97 as summarised in Mr Pullinger's affidavit in [72]). In the email Mr Horne confirmed that the "attached result for the bund water showed PFOS/PFOA levels. Although low cannot take any more water in KI. We may have an option to take it in Homebush but this will take time … I will need to get approval of Sydney Water 1st". In these circumstances, Mr Pullinger submitted that it is unreasonable and unjust for the EPA to seek costs for unlicenced storage and treatment of PFAS contaminated liquid that it had arranged. The costs also represent a duplication because the transported liquid had to be re-transported to Homebush from Kooragang Island.
3. The Court should accept that the EPA were unaware who it could lawfully contract to transport, store and treat PFAS contaminated liquid and where this could be done. This is something that the EPA should have known and is a further reason why the claim for costs are unreasonable.

Unreasonable costs - 2018

1. The EPA had Toxfree pump water from the bunds into two trucks which were left on the Premises. They were full, containing approximately 33,000 litres of allegedly PFAS contaminated liquid. This is evidenced by the Toxfree invoices dated 29 March 2018 and 30 April 2018 (see above in [27]).
2. The EPA were advised by staff at the Premises that there were 100,000 litres of empty tank space within the bunded area section of the Premises where the alleged PFAS contaminated liquid could have been safely stored (as opposed to sitting in trucks on the Premises) until a licensed facility was found that could lawfully take that liquid (see above in [31]). This offer was rejected by the EPA due to the possibility of further rainfall. There was approximately 200-250 millimetres of freeboard in the bunds at the time in addition to empty tank space within the bunded area. This rejection was nonsensical. If the contents of the trucks parked up on roadways on the Premises - approximately 33,000 litres in total - were pumped into empty tanks with a 100,000 litre capacity in a safely bunded area, this would have been a preferable position in terms of environmental safety rather than storage in trucks on the roadway. This decision would not have cost anything.
3. The east coast rain event in March 2018 lasted one day. Yet the trucks were parked on the Premises for almost seven weeks with PFAS contaminated liquid. Had they been emptied on the Premises a demurrage cost of approximately $220,000 would have been saved (see above in [28]). Should a major rain event threaten the Premises again the same trucks could have been sent to pump out liquid if a spill was threatening the environment. Therefore, the costs claimed are unreasonable including the processing costs.
4. Furthermore, approximately 10,000 litres of alleged PFAS liquid was "lost" from the total of litres trucked to the Homebush facility. Seventy-three thousand litres were removed in trucks. Yet only 63,240 litres were received at the Homebush facility according to the evidence (see above in [24], [67]). This further demonstrates how unreasonable the EPA's actions were.

Tender

1. The tender process of May 2018 was not an open tender, as Ms Marler stated (see above in [41]). The other tenderers invited had no lawful means of treating PFAS material in NSW. Naturally, only Cleanaway could accept and submit a tender proposal.
2. Ms Marler confirmed that she received a proposal from EPS to do on-site treatment during the period of the tender process in 2018 (see above in [41]-[44]). Mr Pullinger submitted that Ms Marler was aware EPS had already applied for an EPL to treat the liquid on the Premises, on a much reduced cost basis compared with Toxfree/Cleanaway (see above in [43]). However, as Ms Marler testified, this proposal was classed as an unsolicited tender (see above in [61]). A letter was sent to EPS advising them that as their proposal was an unsolicited tender, they should submit the same proposal to the NSW Government tender office. This tender presented a dramatically lower cost than the Cleanaway offer and would have produced a better environment outcome over the longer term. The evidence also shows that EPS had successfully treated PFAS contaminated water at the RAAF Base Williamtown. The EPA was aware of this.

Mr Pullinger's request for grant from the EPA

1. Mr Pullinger submitted that he and his solicitors asked on numerous occasions about a grant for technology to process PFAS contaminated water on the Premises utilising technology on the Premises and additions to it (see above in [45]). The maximum quantum asked for was $1,500,000. In oral evidence Ms Marler stated that the EPA did not provide grants (see above in [69]). According to the EPA website, this is wrong. The New South Wales Environment Protection Authority, Waste Avoidance and Resource Recovery Strategy (12 December 2018) outlined that $465,700,000 was available for waste recycling and improvements across NSW.

2020 incident

1. Ms Lange gave evidence (see above in [50]) regarding an email to environmental consultants GHD on 23 August 2018. GHD were hired to investigate medium to long term options to remediate the Premises. GHD identified the price of processing PFAS contaminated water as $0.90 per litre. Cleanaway had treated PFAS water earlier in 2018 for approximately $0.87 per litre. Ms Lange specifically asked GHD to increase the price to $1.95 per litre as "this is based on final invoices for discharge in March 2018 invoices". At no time could she justify or explain how she arrived at this price in cross-examination.
2. In 2020, when Cleanaway removed and treated contaminated liquid from the Premises it was at the rate of $1.95 per litre plus transport. This is shown in the Cleanaway invoice dated 15 July 2020. One week later the price was increased to $2.45 per litre plus transport, as shown in the same invoice (see above in [26], [29]).
3. A total of $897,706.98 was invoiced for the removal of approximately 350,000 litres of contaminated liquid during the 2020 incident (see above in [29]). This price is unreasonable when considering the previous rates from 2018, namely $0.79 per litre, as shown by the relevant Toxfree receipts. It was also unreasonable relative to the proven option of on-site treatment at the rate of approximately $0.11 per litre plus transport of $0.04 per litre, identified in the EPS proposal to Mr Pullinger of 21 August 2018 (Ex 1) (see above in [44] and in Mr Pullinger's evidence above in [72]). This would have resulted in disposal of PFAS contaminated liquid at a Hunter Water facility that met environmental health standards for subsequent disposal to the sewer.
4. The EPA was aware of such cheaper options and intentionally decided not to pursue them. No explanation for that decision was given in cross-examination. If the other options available were not ignored, a large amount - in the millions of dollars - could have been saved. There were reasonably priced options for treatment and disposal rather than the reactive and unreasonably expensive option employed by the EPA. On-site treatment options were not properly considered. This form of treatment has proven very successful and is used at Department of Defence bases throughout Australia. The EPA would have been aware of this from the Senate inquiry report referred to in [101]. This option, if considered, would have provided a site safeguard in case of further heavy rains. It would have enabled all waters on the Premises to be treated and disposed of in a timely and cost-effective way.
5. There was no communication from the EPA to the landowner regarding the reasonableness of these costs nor the treatment options available.
6. In summary, Mr Pullinger submitted that the Court must find that the cost and expenses incurred in connection with the clean-up notices were unreasonable. There has been no objective analysis of the management of the Premises by the EPA despite knowledge of what was occurring on the Premises when rain falls. Rain is the major cause of the increase in the pollutant on the Premises. Large rainfalls are part of the world environment and it was predictable that they would occur. In selecting its preferred method of transport and disposal of PFAS waste in relation to the Premises, the EPA have been reactive and unreasonable rather than proactive in protecting the environment.

Consideration

1. The EPA has addressed in its evidence and its submissions all aspects of the statutory regime under the POEO Act which enable it to exercise its power as a public authority to take clean-up action under ss 92(2) and (4) of the POEO Act when it reasonably suspects that a pollution incident is occurring, incur costs and to issue a written compliance costs notice to an occupier to pay those costs incurred under s 104. Recovery of such an amount if unpaid is enabled under s 105(1). "Pollution incident" is broadly defined in the Dictionary to the POEO Act to include circumstances which result in pollution or are likely to as result of a leak or spill inter alia.
2. As is clear from the summary above in [7]-[71] a large amount of evidence was placed before the Court by the EPA. The SOF provided to the Court (above in [6]) was not agreed in advance of the hearing. Unfortunately it was unclear until the hearing the matters which Mr Pullinger intended to dispute. No criticism of him is intended by this observation and I appreciate as an unrepresented party he is in a difficult position. I am simply providing an explanation for why the evidence is extensive when the issues in dispute ended up being relatively narrow compared to the evidence adduced. The Court was at all times mindful of its duties to self-represented litigants, identified in Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[316] (Beazley JA, Giles and Whealy JJA agreeing).
3. Mr Pullinger admits in his defence that he was at all relevant times the occupier of the Premises. There is no dispute that a pollution incident occurred on 21 March 2018 due to heavy rain falling on the Premises. The EPA officer Ms Lange reasonably suspected that a pollution incident was occurring at the Premises and took action by engaging contractors to remove PFAS contaminated water. The EPA paid those contractors for the work they were engaged to do, a requirement for payment in writing was sent to Mr Pullinger and the EPA now seeks to recover the costs incurred of $281,233.81 from Mr Pullinger.
4. In relation to the 2020 incident, there is no dispute there was a reasonable suspicion of a pollution incident (and I accept there is evidence to support that reasonable suspicion, see Ms Marler's first affidavit summarised above in [14], [15] and Mr Howat's affidavit summarised above in [17]-[22]), clean-up action was taken from June to July 2020, costs were incurred in relation to the clean-up of $897,706.98 and paid by the EPA. Payment in writing was required of Mr Pullinger and has not been received.
5. Mr Pullinger seeks to raise several issues that he says means that the EPA acted unreasonably in relation to both incidents and should not therefore obtain these costs. A statutory construction issue arises of whether these issues can be raised at all in relation to these claims.

Statutory construction of ss 92, 104, 105

1. The principle issue of statutory construction that emerged during the hearing in relation to the operation of the statutory scheme is whether the assessment of "reasonable costs and expenses" in the tailpiece of s 104(2) requires or enables the Court to determine if the works for which clean-up costs are payable are themselves a reasonable response to a pollution incident. If I were to determine that s 104(2) so requires or enables, then at issue would be whether the actions which resulted in the costs and expenses being incurred by the EPA in taking clean-up action following each of the two pollution incidents were reasonable. The EPA submitted that reasonable relates only to the actual costs and expenses incurred, not whether the actions for which they have been incurred were reasonable.
2. As identified in the EPA's submissions few cases have considered ss 92, 104 and 105. In Mistring the issue arising for determination was whether the Court had jurisdiction to determine a claim for clean-up costs under s 105(1) of the POEO Act following the issue of a compliance costs notice under s 104. The Court answered in the affirmative.
3. In Slade No 1, the council was seeking to recover clean-up costs from the occupier of land in relation to which costs were incurred by the council as a result of it acting under ss 92(1) and 92(4) and as provided by ss 104(2) and 105. Biscoe J found at [4]: 4. The statutory debt is said to arise under the pollution clean-up and cost recovery scheme created by ss 92, 104 and 105 of the POEO Act. The most remarkable aspect of the scheme is that it is based merely on reasonable suspicion and is therefore undemanding. Relevantly, if: 1. the Environment Protection Authority (EPA) reasonably suspects that a pollution incident has occurred or is occurring: s 92(1); 2. the EPA directs, by notice in writing, a public authority to take clean-up action (a "clean-up notice": s 92(1)); 3. the public authority takes that clean-up action, as it is required to do: s 92(1); 4. the public authority, by notice in writing (called a "compliance cost notice"), requires the person whom the public authority reasonably suspects of having caused the pollution incident to pay all or any reasonable costs and expenses incurred by it in connection with the clean-up action: s 104(2)(b); then the public authority may recover any unpaid amounts specified in the compliance cost notice from the recipient of the compliance cost notice as a debt in a court of competent jurisdiction: s 105(1). The Land and Environment Court is a court of competent jurisdiction for this purpose: Environment Protection Authority v Mistring Pty Ltd [2013] NSWLEC 9, 82 NSWLR 784 (Biscoe J).
4. At issue in that case was whether the council's subjective suspicion that the respondents caused the pollution incident was objectively reasonable, at [116]. The meaning of reasonable suspicion was considered at [19]-[23]. The Court concluded at [117] that it was reasonable for the council to suspect that the respondents caused the pollution. The issue that arises here did not need to be considered.
5. In Slade (No 2) the council sought to recover a statutory debt pursuant to s 105(1). The respondents were unrepresented. They sought to argue that the asbestos present on the land which was cleaned up was not as a result of their actions, the costs claimed were excessive for the work required under the clean-up notice inter alia. At [84] Sheahan J identified that the respondents failed to engage with the elements of expenditure claimed by the council but continued to argue that the council was not entitled to be paid, an issue already determined in Slade No 1. The only issue before Sheahan J was the determination of the amount. At [88]-[89] Sheahan J considered that the evidence supplied by the council supported the amount claimed. At [92] Sheahan J stated that there was no evidence that the council acted "otherwise than reasonably" in complying with the clean-up notice issued by the EPA, citing Maritime Services Board of New South Wales v Posiden Navigation Incorporated; Maritime Services Board of New South Wales v Liberian Cross Transports Incorporated [1982] 1 NSWLR 72. The statutory construction issue that arises in this matter was not identified by the unrepresented respondents it appears. The observation at [92] does not arise on the EPA's construction of s 104(2) of whether its actions in cleaning up were reasonable. Slade No 2 does not assist the EPA in its construction of s 104. If anything [92] suggests that whether the EPA's actions were reasonable can be considered, although unlike s 92(2), s 92(1) involves a notice issued by the EPA to a public authority and this relevantly distinguishes Sheahan J's observations. I regard the statutory construction of the words in the tailpiece of s 104 as essentially undetermined. Slade CA dismissed challenges to the decisions in Slade No 1 and Slade No 2. The issues before me were not considered and the reasoning otherwise does not assist in deciding this case.
6. The contemporary approach to statutory interpretation was stated by the plurality of the High Court (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] as follows: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
7. In SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [64], Edelman J further elucidated the court's task when interpreting text in context, as follows: The task of statutory construction involves the legal application of the meaning of statutory words, as interpreted, to the facts of a case. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd, this Court said that the task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where "the clearer the natural meaning the more difficult it is to justify departing from it", so too in statutory interpretation "questions of degree arise" and it will be more difficult to displace an interpretation that "has a powerful advantage in ordinary meaning and grammatical sense".
8. "Context" is to be understood in a broad sense, going beyond the immediate statute the subject of interpretation and extending to include the existing state of the law, legislative purpose and any mischief which the statute was intended to remedy: Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 (Sydney Seaplanes) at [30] (Bell P, Leeming JA and Emmett AJA agreeing) citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
9. The NSW Parliament has determined that the construction that would promote the purpose or object underlying the Act being interpreted must be preferred to one which would not do so: s 33 of the Interpretation Act 1987 (NSW). The court is to have regard to the statutory purpose in determining whether more than one construction is open, not only after ambiguity is identified: Mills v Meeking (1990) 169 CLR 214; [1990] HCA 6 at [19] (Dawson J); Whitfield v Melenewycz (2016) 92 NSWLR 624; [2016] NSWCA 235 at [20] (Meagher JA, Simpson JA and Sackville AJA agreeing). In Sydney Seaplanes at [35], the Court of Appeal stated that: Some statutes will identify the "Objects of the Act" or of a Part or Division of the Act. Others will explicitly spell out the purpose of the Act. These are not "exercise[s] in apologetics" but may give practical content to particular terms used in a statute which may otherwise be elastic in their meaning: Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 at [5].
10. The objects of the POEO Act are extracted above in [4]. Pursuant to objects (a) and (d), Chapter 4 of the POEO Act creates a regime in which the public authority can take voluntary clean-up action which it considers necessary if it reasonably suspects a pollution incident has occurred or is occurring. It can do so through contractors. It can then require by written notice an occupier of the premises from which the authority reasonably suspected the pollution incident occurred, or a person who is reasonably suspected by the authority of having caused the pollution incident, to pay reasonable costs and expenses incurred by it in connection with the clean-up action. As Biscoe J stated in Slade No 1, the statutory regime is undemanding. I consider the evident purpose of the statutory regime is to facilitate the speedy and effective clean-up of pollution incidents in line with the purposes of the POEO Act. As the EPA submitted an interpretation which confers broad powers on the clean-up authority is consistent with the purpose of the statutory scheme. That scheme is designed to ensure that action can be taken to remedy a pollution incident and that the public authority can recover its costs.
11. If the statutory regime empowers the public authority to take voluntary clean-up action in s 92(2) at the low threshold of reasonable suspicion as identified in Slade No 1, and employs only the criterion of necessity for the work permitted, it would be counterproductive to find that a "reasonableness" test applies to the scope of work at the later stage of requiring payment of costs and expenses under s 104(2). Such an interpretation, effectively urged by Mr Pullinger, is undermined by the absence of the word "reasonable" in relation to the works which can be carried out by the public authority under s 92 of the POEO Act. Mr Pullinger's interpretation would be inconsistent with the objects of the POEO Act and the specific statutory regime and I am obliged to prefer an object that would promote the objects of the Act.
12. I note that although the regime confers broad powers on a clean-up authority, the regime requires that there be a reasonable suspicion a pollution incident was occurring or did occur as identified by Biscoe J in Slade No 1. This is a partly objective partly subjective jurisdictional fact enlivening the power under s 104(2), as stated by Biscoe J in Slade No 1 at [23]. The EPA cannot exercise its discretion to take clean-up action under s 92(2) unreasonably in the sense discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [66]-[76] (Hayne, Kiefel and Bell JJ) and in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [11] (Kiefel CJ), [51]-[60] (Gageler J) and [78]-[87] (Nettle and Gordon JJ). The costs claimed against the recipient of the notice also cannot be unreasonable vis-à-vis the work actually done, and not merely in the administrative law sense. As the EPA submitted, under s 105(2) of the POEO Act if the person given a costs compliance notice complies with the notice but was not the person who caused the pollution incident, the cost of compliance may be recovered as a debt from the person who caused the incident, a matter which the EPA relied on to support its construction of the sections in issue. I agree this underscores that the purpose of these provisions is to encourage prompt action in relation to the clean-up of a pollution incident. I realise that this mechanism is not available to assist Mr Pullinger.
13. Essentially Mr Pullinger's argument requires that the word "reasonable" appear in s 92(2), and it does not. There is no purposive reason to imply it in s 92(2).
14. I cannot consider whether the EPA's actions in responding to a pollution incident or likelihood of such an incident, which resulted in costs and expenses being incurred, were reasonable. I am not able to "second guess" the EPA's approach to a clean-up incident. There is no suggestion, nor could there be on the evidence, that the EPA's approach to the clean-up action was legally unreasonable and therefore beyond power in the administrative law sense described above in [138].
15. This conclusion means that the overarching issues identified by Mr Pullinger are not relevant to the issue before me. These issues follow.
16. Firstly, Mr Pullinger submitted that the EPA failed to alert him to the hazards of collecting PFAS contaminated water which was escaping from the RAAF Base Williamtown, which had a very negative outcome for his business. Mr Pullinger's affidavit dated 8 September 2021 is set out in full above in [72]. His business Truegain, collected wastewater from many sources, including the RAAF Base Williamtown, which he was not aware contained PFAS. In 2016 Hunter Water determined not to allow disposal of PFAS contaminated water in its system including from the Premises.
17. As I understand Mr Pullinger's evidence and submissions at the hearing this ultimately caused him to have to close down Truegain during 2016 and an administrator was appointed to that company. Mr Pullinger continued managing the Premises after this through employing Mr Vujkovic and investigating methods of dealing with PFAS contaminated water, a challenging task which is detailed in his affidavit. His affidavit attests to numerous discussions with the EPA concerning methods to treat PFAS contaminated water over many months and years. Attempts to have PFAS contaminated water removed were unsuccessful as operators of waste treatment facilities were not able to manage PFAS. Mr Pullinger investigated on-site treatment of PFAS contaminated water with EPS as discussed in a meeting with the EPA on 13 April 2018. An EPL to allow this was issued to EPS on 29 August 2018. Mr Pullinger continued to seek solutions to PFAS contaminated water treatment throughout 2019/2020, including asking the EPA for a grant as he could no longer fund this work. No grant was able to be provided. While these circumstances are highly unfortunate for Mr Pullinger and he essentially blames the EPA for failing to warn him about PFAS contaminated water, which he considers they were aware of from about 2012, the POEO Act scheme I am considering does not allow me to take these circumstances into account.
18. Secondly, Mr Pullinger also submitted that the EPA failed to provide him with a grant to enable development of technology for the on-site treatment of PFAS contaminated water (see above in [115]). Once again I do not consider that is a matter that can inform the circumstances of whether the EPA has acted unreasonably in relation to the clean-up costs claimed.
19. Turning to the 2018 incident, Mr Pullinger submitted that the EPA had available to it far more efficient, cost effective and environmentally safer means of dealing with that incident. This would have required, he submitted, taking up the offer of Mr Matthews to store the PFAS contaminated water in the spill containment and surface water collection system on the Premises (rather than in trucks parked on the Premises) (see above in [31], [38], [110]) and accepting EPS' unsolicited proposal to treat the PFAS contaminated water on the Premises rather than responding on an incident by incident basis (see above in [42]-[44], [114]). Evidence of Ms Marler was read about a tender issued by the EPA seeking expressions of interest for treatment of PFAS contaminated water at the Premises in May to June 2018. In oral evidence Ms Marler stated that the tender had not been awarded at that time. It is difficult to see how these matters can be taken into account given the statutory scheme.
20. Mr Pullinger submitted that the demurrage costs of parking trucks with PFAS contaminated water on the Premises for almost seven weeks, at a cost of approximately $220,000, could have been avoided by the EPA taking a different approach of placing PFAS contaminated water back into tanks on-site where there was extra capacity. According to Ms Marler's evidence above in [57]-[58] and Ms Lange's evidence in [31], [48] this approach was not appropriate as more rain would have created the same storage capacity limitations which gave rise to the first incident. No basis was provided by Mr Pullinger for why this judgement by EPA officers was unreasonable in the circumstances which presented themselves. Nor has Mr Pullinger established that the EPA should have accepted EPS' unsolicited proposal given it was bound by procurement processes (see above in [61]). Ms Marler did concede that an on-site treatment option would have been cheaper and produced more public value, but correctly pointed out that this was not the only consideration.
21. Mr Pullinger put a number of propositions to the EPA's witnesses which were not supported by evidence in these proceedings, such as: 1. that PFAS contaminated water could not be taken to sites in Sydney; 2. that if the trucks parked on the Premises in 2018 had been opened the PFAS contaminated water would have leaked onto neighbouring property; 3. that thieves came on to the Premises and stole diesel from the Toxfree trucks when they were parked on the Premises in 2018; 4. that the electricity on the Premises was disconnected in 2017; and 5. that all on-site treatment facilities, including Haldon and EPS mobile treatment facilities, used diesel generators for power.
22. Consistent with my findings on statutory construction above in [137]-[140], these issues also cannot be considered in relation to s 104 as that requires second guessing the EPA's approach to the clean-up incident.
23. A further criticism by Mr Pullinger of, in his view, the reasonableness of the EPA's clean-up actions was that the PFAS contaminated water which derived from the 2018 pollution incident should not have been taken to the Cleanaway Kooragang Island or Homebush facilities as the EPLs for those facilities did not allow this. According to Mr Pullinger as the code M270 which designated PFAS did not appear in the relevant licence PFAS could not be treated or stored there. The evidence is that the PFAS contaminated water from the Premises was stored at Cleanaway's Kooragang Island facility. There is no evidence of treatment of PFAS contaminated water transported from the Premises at that facility for the 2018 pollution incident.
24. The EPA submitted based on Ms Marler's evidence (see above in [60]) that the EPLs showed that other categories of waste which could be treated and stored at the Cleanaway facilities could include PFAS contaminated water, such as fire debris and fire wash waters (N140 waste code), waste mineral oils unfit for intended use (J100 waste code) and waste from surface treatment of metals and plastics (A100 waste code). The emails relied on by Mr Pullinger, summarised above in [40] and in Ex 1, pp 92-97 as summarised in Mr Pullinger's affidavit in [72], were not conclusive that the EPA was unreasonably disposing of PFAS contaminated waste at a unlicensed facility. The email from Mr Waskett of the EPA to Ms Lange dated 26 March 2018 stated that he could not see that the Cleanaway Homebush site EPL had a licence to store or treat PFAS waste. The 2016 email from Mr Horne in Ex 1 and quoted in Mr Pullinger's submissions (see above in [107]) does not establish that the Cleanaway Kooragang Island or Homebush facilitates were not appropriately licenced to receive PFAS contaminated water. I do not consider that Mr Pullinger has proved on the evidence before me his suspicion that PFAS contaminated water taken from the Premises in 2018 was not stored or treated correctly.

Were costs incurred pursuant to s104(2) unreasonable?

1. I have found above that I cannot consider whether the actions which resulted in costs and expenses being incurred were reasonable. Mr Pullinger further argued that the costs incurred in relation to the 2018 and 2020 pollution incidents were unreasonable. That is a matter which can be argued insofar as it relates to the actual work performed given the inclusion in s 104(2) of "reasonable costs and expenses".
2. No basis for finding the EPA has not incurred reasonable costs and expenses within the scope of s 104(2) in relation to the 2018 pollution incident has been identified by Mr Pullinger. Evidence that the demurrage charge of approximately $220,000 was unreasonable in those circumstances could be relevant. No evidence on those matters was provided. The criticisms outlined above in [110], [111], [114], [118] and [119] address whether the EPA's actions were reasonable in the circumstances, an impermissible matter to consider under the statutory scheme as I have found immediately above in [137]-[140].
3. In relation to the 2020 incident Mr Pullinger argued that the cost per litre for disposal of PFAS contaminated water was excessive. In 2018 Toxfree's rate was $0.79 per litre (see above in [27]). Cleanaway charged $1.95 per litre, then a few days later $2.45 per litre, in 2020 (see above in [29]). In Mr Pullinger's view this increase was unwarranted. According to Ms Marler's evidence in cross-examination the increase from $1.95 to $2.45 per litre arose from the increase in concentration of PFAS in the water being transported (see above in [63]). Ms Lange's evidence is that the 2020 price reflected market value (see above in [55]). As the EPA submitted, Cleanaway was the only tenderer in 2018 and was asked to perform the clean-up work in 2020 for that reason. It is reasonable to assume the work was for market value and there is no substantive evidence to the contrary. Apart from assertions that the rate should have been the same as Toxfree charged several years earlier, no evidential basis was established by Mr Pullinger to support a finding that the rate was excessive. The evidence shows that the rate which Cleanaway charged the EPA and what the EPA has paid and now seeks to recover was reasonable.
4. Mr Pullinger's submissions in respect of Ms Lange's request that GHD increase the assumed price of disposal from $0.90 per litre to $1.95 per litre (see above in [116]) are not relevant to this issue. GHD was being asked to conduct a report into future options for the Premises. The numbers it used in providing estimates were not shown to determine future prices charged by Cleanaway in 2020.
5. No basis for finding the EPA has not incurred reasonable costs and expenses within the scope of s 104(2) in relation to the 2020 pollution incident has been identified by Mr Pullinger.
6. I have no sworn evidence of Mr Pullinger's financial means. Based Mr Pullinger's comments during the hearing he appears to have limited ability to pay the large amounts of money the EPA is seeking to recover. The statutory scheme enables the EPA's claim and there is no basis established by Mr Pullinger in the context of the statutory scheme not to award the EPA the three amounts sought for the 2018 and the 2020 incidents respectively.

Interest under s 100 CP Act

1. The EPA also seeks interest under s 100 of the CP Act, which provides power to the Court to award interest in its discretion for the whole or part of any money payable as a debt, and for the whole or part of any period from the period the cause of action arose until judgment takes effect.
2. I note that the EPA's summons dated 20 October 2020 sought interest calculated from 25 September 2018 to 19 October 2020 in the sum of $18,143.05 and interest from 19 October 2020 until judgment accruing at the daily rate of $136.8989.
3. In the EPA's points of claim dated 4 December 2020 it claimed interest: 1. from 25 September 2018 to 20 October 2020 on the sum of $140,616.90 (being compliance cost notice 1566748), totalling $14,783.41; 2. from 22 September 2020 to 20 October 2020 on the sum of $1,038,323.88 (being compliance cost notices 1598403 and 1598934) calculated in the sum of $3,496.54; and 3. from 20 October 2020 until judgment is obtained on the sum of $1,178,940.78 accruing at a daily rate of $136.8989.
4. The EPA's submissions on interest referred to the orders sought in the points of claim, and I assume those are the orders pressed.
5. An order for the payment of interest is discretionary: Maelstrale v Aspite (No 2) [2014] NSWCA 302 at [8]. In Kalls Enterprises Pty Ltd (in liq) v Baloglow (No 3) [2007] NSWCA 298 at [10] the Court of Appeal stated some basic principles in relation to s 100 of the CP Act: The purpose is to compensate the plaintiff for being kept out of its money (Bennett v Jones (1977) 2 NSWLR 355 at 367, 380; MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663; Grincelis v House (2000) 201 CLR 321 at [16]), not to punish it for delay (Bennett v Jones at 367; Geoffrey W Hill & Associates (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Ins Cas 61-012 at 76,768; Clarke v Foodland Stores Pty Ltd (1993) 2 VR 382 at 397). Interest should be included unless good cause be shown, in order to fulfil the purpose (Ruby v Marsh (1975) 132 CLR 642 at 644; Falkner v Bourke (1990) 19 NSWLR 574 at 576); Clarke v Foodland Stores Pty Ltd at 389).
6. In Slade No 2 Sheahan J noted at [95]-[96]: 95. Section 100 is discretionary, but Ritchie's Uniform Civil Procedure (NSW) Practice records (p2702) that "successful plaintiffs who obtain a money judgment will generally be entitled to an award of interest: Ruby v Marsh (1975) 132 CLR 642, at 644. … ", and the section leaves the rate to be set by the Court. 96 If the Council decides to press the question, despite the apparent (and acknowledged) impecuniosity of the respondents, the Slades are entitled to be heard on both the exercise of the discretion, and the rate.
7. The Court has a relevant practice note, the Pre-Judgment Interest Rates Practice Note dated 22 June 2010.
8. I will exercise my discretion to award interest up until the final hearing date of 23 September 2021. I am not awarding interest for the time taken to prepare this lengthy judgment.
9. I will make order 1(a) sought in the EPA's summons dated 20 October 2020 in due course. The EPA is to submit final orders with the quantum of interest identified in the points of claim as set out in [159] and as otherwise amended in accordance with this judgment, in a timeframe to be agreed.

Costs of proceedings

1. The EPA seeks its costs of these debt recovery proceedings. The usual rule in Class 4 proceedings is that costs follow the event, in the absence of any disentitling conduct of a party seeking costs. The EPA has been successful in obtaining orders, and there is no disentitling conduct. Its costs should be paid by Mr Pullinger. An order to that effect (summons 1(d)) will be included in the final orders to be made shortly.

Addendum made on 13 December 2021

1. Further to my judgment of 9 December 2021, the EPA provided final orders and a document particularising the quantum of interest, see "Annexure A".
2. The Court orders: 1. The Respondent must pay to the Applicant: 1. the sum of $1,178,940.78; 2. interest in the amount of $63,362.77, calculated in accordance with s 100 of the Civil Procedure Act 2005 (NSW) from 25 September 2018 to 23 September 2021; and 3. the Applicant's costs of these proceedings as agreed or assessed. 1. The exhibits are to be returned. Annexure A (24430, pdf)

Amendments 14 December 2021 - Addendum added 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: 14 December 2021