Environment Protection Authority v Veolia Recycling & Recovery Pty Ltd [2025] VSC 696

a) Between July 2022 and September 2023, Veolia contravened condition OL_L5 of its Operating Licence by failing to take all practicable measures to prevent emissions of landfill gas from exceeding the action levels prescribed in Table 6.4 of the Best Practice Environment Management, Siting, Design, Operation and Rehabilitation of Landfills (EPA publication 788) (BPEM).[4] Although Veolia took a number of practicable measures to prevent landfill gas emissions, Veolia failed to take five practical measures, namely: > > 1. to have in place a consolidated document titled 'risk management and monitoring program' (RMMP) as at 15 December 2022. Veolia did have other risk-based management and monitoring plans in place at the time. Since September 2023, Veolia has had in place an RMMP verified by its EPA approved auditor;[5] > 2. to apply adequate daily cover of waste in the active cell at the Hallam Road Landfill on 28 August 2023;[6] > 3. to regularly inspect and maintain landfill gas wells at the Hallam Road Landfill and to repair gas wells in a timely manner. Veolia has since improved its inspection, maintenance and repair program including through obtaining expert advice in relation to managing landfill gas, making associated updates to its landfill gas management plan, extensively drilling new gas wells, and redrilling pre-existing gas wells to improve extraction efficiency;[7] > 4. to develop and implement a Landfill Gas Remediation Action Plan (LFGRAP) to remedy landfill gas exceedances at the Hallam Road Landfill. Veolia began developing an LFGRAP from October 2023 and its plan was ultimately verified by the EPA approved auditor in May 2024);[8] > 5. to undertake two measures identified in Table 10 of Veolia's Environmental Management Plan dated 29 September 2021, where landfill gas exceeded the action levels in the BPEM (since 15 September 2023). Veolia's Environmental Management Plan (EMP) has now been surpassed by the RMMP;[9] > > b) Between July 2022 and September 2023, Veolia contravened condition OL_A1.1 of its Operating Licence concerning the obligation to implement odour source controls that accord with the requirements of section 6.7.3 of the BPEM. Veolia did implement several odour source controls at the Hallam Road Landfill, but Veolia failed to provide adequate daily cover of waste in the active landfill cell on 28 August 2023, and it failed to develop and implement a LFGRAP for exceedances in landfill gas at the Hallam Road Landfill. As noted above, Veolia now has an LFGRAP;[10] > > c) On 28 August 2023, Veolia contravened condition OL_L6 of its Operating Licence by failing to apply adequate daily cover of waste in the active landfill cell at the Hallam Road Landfill;[11] > > d) Between July 2022 and June 2024, Veolia contravened condition OL_L4.1 of its Operating Licence, by failing to extract leachate on occasion from a number of the High Cells[12] at the Hallam Road Landfill such that the depth of leachate above the lowest point of the drainage layer does not exceed 300mm.[13] Veolia experienced considerable difficulty in achieving compliance with leachate level conditions.[14] Its approach to addressing the issue was informed by advice from the EPA‑approved independent auditor.[15] Veolia has implemented several measures to improve compliance. Veolia is seeking to manage and draw down leachate to achieve leachate level compliance in accordance with its Leachate Management Plan, which has been verified by Veolia's EPA approved auditor;[16] > > e) Between January and June 2024, Veolia breached Condition OL_L4.2.1 of its Operating Licence, by failing to ensure on occasion that leachate levels in the Low Cells[17] at the Hallam Road Landfill were maintained at least one and a half metres lower than the groundwater as measured at the nearest down gradient bore.[18] As above, Veolia experienced considerable difficulty in achieving compliance with leachate level conditions. Its approach to addressing the issue was informed by advice from the EPA‑approved independent auditor. Veolia is seeking to manage and drawn down leachate to achieve leachate level compliance in accordance with its Leachate Management Plan.

1. The GED in s 25(1) of the EP Act commenced operation when the Act came into force on 1 July 2021.
2. Section 25(1) provides:

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

1. Veolia admits that it breached the GED between July 2022 to September 2023 by failing to:

a) develop and implement a LFGRAP to remedy landfill gas exceedances at the Hallam Road Landfill; > > b) undertake two measures identified in Table 10 of the Defendant's EMP when the Defendant recorded exceedances of landfill gas at the Hallam Road Landfill's perimeter bores, namely: > > 1. confirm that the compressed air supply to the pneumatic leachate sumps is working and the system is functioning correctly; and > 2. assess the risk to neighbouring receptors and undertake additional monitoring of subsurface infrastructure and buildings.

1. The parties jointly submit that the Court should make the findings set out in paragraph [1] under the heading "Other matters" to record the contraventions admitted by Veolia.

PRINCIPLES APPLICABLE TO JOINT POSITIONS AS TO PECUNIARY PENALTIES

1. In civil penalty proceedings, Courts have recognised the desirability for a Court to act on a joint position of the parties regarding the appropriate penalty to be imposed for the contraventions.
2. This approach was endorsed by French CJ, Kiefel, Bell, Nettle and Gordon JJ in Commonwealth v Director, Fair Work Building Inspectorate[19] who relevantly said:

In contrast, in civil proceedings there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy. Accordingly, settlements of civil proceedings are commonplace and orders by consent for the payment of damages and other relief are unremarkable. So are court-approved compromises of proceedings on behalf of infants and persons otherwise lacking capacity, court‑approved custody and property settlements, court-approved compromises in group proceedings and court‑approved schemes of arrangement. More generally, it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate.

Possibly, there are exceptions to the general rule. There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant's compromise, a custody or property compromise, a group proceeding settlement or a scheme of arrangement.

.... Once it is understood that civil penalties are not retributive, but like most other civil remedies essentially deterrent or compensatory and therefore protective, there is nothing odd or exceptionable about a court approving an agreed settlement of a civil proceeding which involves the public interest; provided of course that the court is persuaded that the settlement is appropriate.

1. The parties note that relatively recently this Court, in Essential Services Commission v Sumo Power Pty Ltd & Anor[20] and Environment Protection Authority v Quaker Houghton Australia Pty Ltd[21] followed the approach established by the High Court.
2. When having regard to a joint proposal on penalty, the Court will not depart from a penalty figure jointly submitted by the parties "merely because [the Court] might otherwise have been disposed to select some other figure" provided, of course, that the figure advanced falls within a permissible range.[22]

THE PROPOSED RESTORATIVE PAYMENT BY VEOLIA IN LIEU OF A PECUNIARY PENALTY

1. Order 1 of the Proposed Orders provides for Veolia to make a payment of $1,000,000 into the Restorative Project Account established and maintained by the EPA under s 447 of the EP Act. The proposed order is to be made pursuant to s 332(2) of the EP Act (which is contained in Division 2 of Part 6 of the EPA Act).
2. Section 332 provides as follows:

(1) The Court may order the person to carry out a project for the restoration or enhancement of the environment in a public place or for the public benefit, whether or not the project is related to the offence or contravention.

(2) Without limiting subsection (1), an order under that subsection may require the person to pay an amount of money, for the carrying out of a project for the restoration or enhancement of the environment in a public place _or for the public benefit, to - _

(a) a specified person or organisation; or

(b) the Restorative Project Account.

1. An order for such a payment under s 332 is sought by the parties in lieu of the Court ordering payment of a pecuniary penalty under s 315(1)(a) of the EP Act. Such a course is permitted under the EP Act.

a) Firstly, sub-s 315(3) provides that nothing in s 315 is to be construed as limiting any other power of the Court. > > b) Secondly, s 327(b) provides that Part 6 of the EP Act (which includes the restorative project order in s 332) applies in civil proceedings if a person is found to have contravened a civil penalty provision. Sections 25(1) and 63(1) are each civil penalty provisions (see items 1 and 9 of the Table in s 314 of the EP Act). As such, all the orders available to the Court in Part 6 of the EP Act are available to the Court in this proceeding. > > c) Thirdly, s 328(1) makes it clear that the Court may impose any order in Division 2 of Part 6, in addition to, or instead of, any penalty that the Court may impose under the EP Act.

2. The parties jointly submit that the Order 1 of the Proposed Orders is appropriate for the following reasons.

a) Firstly, the proposed payment is intended to provide direct benefit to the public (namely, the community within the vicinity of the Hallam Road Landfill) having regard to the offsite amenity impacts resulting from landfill gas odour emanating from the Hallam Road Landfill during the period of the gas exceedances. Such an order is consistent with the purpose of restorative projective orders under s 332 of the EPA Act. > > b) Secondly, the quantum of the payment to be made, namely $1,000,000, is significant and will have significant deterrent value consistent with the primary purpose of the imposition of penalties in civil penalty proceedings. To the parties' knowledge, an order of this magnitude for environmental matters is unprecedented in Victoria: that is, the parties are unaware of an order of such a magnitude having previously been made, whether by way of a pecuniary penalty or a restorative project order.

3. Although s 328(2)(a) of the EP Act states that the amount of money that the Court may order a person to pay under Division 6 is not limited by any penalty that may be imposed under the EP Act, the parties submit that the sum of $1,000,000 proposed by Order 1 likely exceeds that which would otherwise be ordered by the Court if a pecuniary penalty were instead to be ordered by the Court for the contraventions.
4. In this regard, the submissions which follow address key provisions of the EP Act and the principles relevant to the imposition of a pecuniary penalty to assist the Court to determine the appropriateness of Order 1 of the Proposed Orders.

Relevant principles and provisions for assessing quantum

1. Civil penalty proceedings are protective; to deter, not to punish, wrongdoing, with a view to promoting the public interest in achieving compliance.[23]
2. In fixing a civil penalty, the Court is concerned with deterrence, that is specific deterrence of the contravener and general deterrence of other would‑be contraveners.[24]
3. In Minister for the Environment v Hansen,[25] the Court provided a detailed explanation of the role and importance of specific and general deterrence in environmental cases which can be summarised as follows:

a) To make wrongdoers "think twice" and decide not to act against the "strong public interest" in properly maintaining the environment; > > b) The cost and difficulties of enforcement of any environment protection law, from detection, through to investigation and on to commencing and conducting civil penalty proceedings make specific and general deterrence of particular importance; > > c) The more difficult detection and enforcement is, the greater the sanction required to make the risk/benefit equation less palatable for the potential wrongdoer; > > d) Those who voluntarily comply should see those that do not are appropriately dealt with; > > e) Where breaches depend on a degree of contemplation and choice, the right decision will more likely be made where the sanction is substantial relative to the possible gain of non-compliance.

4. In fixing the level of a pecuniary penalty, the Court must have regard to the maximum imposed by the legislature in the first instance.[26] In Markarian v The Queen[27] the High Court said:

...careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

1. The maximum penalty for a contravention of s 25(1) and s 63(1) by a body corporate is 10,000 penalty units. The value of a penalty unit between:

a) 1 July 2022 to 30 June 2023 was $184.92;[28] and > > b) 1 July 2023 to 30 June 2024 was $192.31.[29]

2. As such, the maximum pecuniary penalty ranged between $1,849,200 (1 July 2022 to 30 June 2023) and $1,923,100 (1 July 2023 and 30 June 2024).
3. Arriving at an appropriate penalty involves an instinctive synthesis of all relevant factors.[30] This involves a weighing together of all matters relevant to achieving deterrence by a reasoned and transparent process.[31]
4. Subsection 315(2) of the EP Act provides that, for the purposes of determining the amount of a civil penalty order, the Court may have regard to "any relevant matter" including the following:

(a) the nature and extent of the conduct constituting the contravention;

(b) the nature and extent of any loss or damage suffered as a result of the conduct including the cost of remedying any harm;

(c) the circumstances in which the contravention took place;

(d) whether the person who contravenes a civil penalty provision had previously contravened a civil penalty provision;

(e) any enforceable undertaking that is accepted by the Authority in relation to the conduct.

1. Section 322(2) of the EP Act provides that a person is not liable to pay more than one civil penalty in relation to the same conduct and reflects the well- established principle against double counting the same conduct when imposing penalties across different breaches.[32]
2. Further, the course of conduct principle is also to be applied and is reflected in s 323 of the EP Act which permits the Court to impose a single civil penalty for multiple contraventions of a civil penalty provision if the multiple contraventions are based on the same facts or they form, or are part of, a series of contraventions of the same or similar nature.
3. Lastly, the Court is to make any adjustment to a pecuniary penalty imposed having regard to the totality principle. The totality principle is a "final check to be applied to ensure that a final, total or aggregate, penalty is not unjust or out of proportion to the circumstances of the case"[33]

The appropriateness of the $1,000,000 payment in this case

1. The parties submit that the following factors point to the appropriateness of the quantum of the restorative project payment, in lieu of a pecuniary penalty, in this proceeding.

1. Veolia, in compliance with the Operating Licence, notified the EPA of the exceedances of landfill gas in contravention of condition OL_L5 of its Operating Licence.[34]
2. The nature of the breaches of the conditions concerning landfill gas (OL_L5) and odour management (OL_A1.1) is that Veolia failed to take all practicable measures (namely, those identified in its admissions) as required by OL_L5 and each of the odour source controls required by OL_A1.1 (identified in its admissions).
3. Although Veolia admits it failed to take all practicable measures, it is relevant, for the purpose of determining penalty, to note Veolia did implement other practicable measures and odour source controls as acknowledged in the SOAF.[35]
4. The Court should also consider that Veolia has, during and since the relevant period for the breaches of the EP Act, undertaken a range of remedial measures described in the SOAF.[36] Further, Veolia has consented to orders requiring it to undertake further measures to remedy its contraventions of the EP Act.[37]
5. The impact of Veolia's breaches of these licence conditions is relevant to the Court's assessment of penalty. Until October 2023, the EPA received many community reports complaining about offsite odour from the Hallam Road Landfill.[38] EPA officers also observed offsite odours typically associated with landfill gas on 21 April 2023 and between July and September 2023.[39]
6. Some offsite landfill gas odour has occurred in connection with Veolia's breaches of conditions OL_L5 and OL_A1.1 of its Operating Licence resulting in an adverse impact on the amenity of land within the vicinity of the Hallam Road Landfill.[40] EPA does not allege any other form of harm to the environment or human health other than an adverse impact on amenity.
7. The precise consequence of Veolia's breaches of conditions OL_L5 and OL_A1.1 of its Operating Licence is difficult to ascertain. There were other factors at the time, outside of Veolia's control, which contributed to the egress of odour and associated offsite amenity impacts:

a) As McDonald J found in Anderson,[41] in relation to the same period of time as the EPA's claim in this proceeding, landfill gas was escaping from Cells 12 and 13 due to fault in the design and construction of the cells, which faults were not attributable to Veolia and did not constitute a breach by Veolia of its licence or the GED; > > b) Further, Veolia has recently had its operations at the Hallam Road Landfill audited for the period July 2022 to June 2024 by an EPA approved auditor (Operations Audit Report). The Operations Audit Report found there was a noticeable decline in odour complaints once Veolia covered the drainage layer of Cell 14 with waste at the end of August 2023 and when a sacrificial geomembrane barrier was applied to the sidewall drainage layer for Cells 11, 12 and 13.[42]

8. Veolia took action to deal with the issue of odour at the Hallam Road Landfill as set out in the SOAF.[43]

1. Veolia, in compliance with the Operating Licence, also notified the EPA of the exceedances concerning leachate levels (conditions OL_L4.1 and OL_L4.2.1).[44]
2. The Court should have regard to the fact that there are historical factors, predating the introduction of the EP Act and dating back to 2019, which explain why Veolia has experienced considerable difficulty in achieving compliance with the two leachate level conditions. Veolia has been, and remains, limited in its capability to extract, treat and dispose of leachate so as to achieve compliance with its operating licence due to:

a) the capacity constraints of its leachate management and treatment system; and > > b) the lack of an available market to accept leachate of the type generated by the Hallam Road Landfill for disposal.[45]

3. Veolia has sought and obtained expert evidence in relation to managing this leachate compliance issue. Veolia has been working towards minimising any risk of harm to human health and the environment as reasonably practicable through a range of measures, including by:

a) updating its leachate management infrastructure which includes new and reconfigured infrastructure; > > b) developing and implementing its Leachate Management Plan, which includes a draw down timeline that Veolia is working towards to bring itself into compliance with the leachate level conditions.[46]

4. The Court will also note that the parties jointly submit that the Court should make a further order, Proposed Order 3, under s 309(1) and s 311 of the EP Act, which further addresses the issue of non-compliance by Veolia with conditions OL_L4.1 and OL_L4.2.1 of the operating licence.

1. The Court should have regard to Veolia's cooperation in making admissions and resolving the proceedings at an early stage,[47] including the fact that it made several admissions in its Defence. Veolia self-reported licence breaches at the earliest opportunity (which it was required to do by its Operating Licence).[48] Veolia's early admissions and the action it has taken to remedy the contraventions demonstrates contrition, insight and remorse.
2. In resolving the proceeding, the resources of both the Court and the regulator are freed up. This demonstrates a willingness on the part of Veolia to facilitate the course of justice and should be considered for the purposes of moderating penalty.[49]

Double counting, course of conduct and totality principles

1. In fixing any pecuniary penalty, the Court would be required to have regard to ss 322(2) and 323 of the EP Act, and the totality principle. Had the parties sought a pecuniary penalty for any of these breaches, the application of section 322(2) and 323 as well as the application of the course of conduct principle (generally) and the totality principle would have resulted in a significant moderation to the number of penalties to be imposed as well as the aggregate amount.

1. Taking into account all of the above, the parties jointly submit that the proposed payment of $1,000,000 can be regarded by the Court as an appropriate amount to be paid by Veolia into the Restorative Project Account (see paragraph [18] above). Considering the double counting, course of conduct and totality principles, as well as the factors concerning the nature and impact of the contraventions, and the steps taken by Veolia to remediate the contraventions, the parties jointly submit that this is an appropriate amount, such that it should not be departed from. As the parties have submitted, the amount is unprecedented in Victoria for environmental matters. It is also relevant to bear in mind the entire package of orders proposed, including the findings sought to be made and the adverse publicity order being made, both of which further contribute to the object of deterrence.

1. The parties also submit that it is appropriate for the Court to make the adverse publicity order under s 330 of the EP Act as proposed by Proposed Order 2.
2. Section 330 provides:

The Court _may order the person to do one or more of the following - _

(a) take any specified action that the Court _considers reasonably necessary to publicise - _

(i) the person's offence or contravention; or

(ii) any impacts on human health or the environment or other consequences arising or resulting from the offence or contravention; and

(iii) any penalties imposed, or other orders made, as a result of the commission of the offence or contravention; and

(iv) any additional information the Court considers appropriate;

(b) take any specified action that the Court considers reasonably necessary to notify a specified person or class of person of the matters listed in paragraph (a).

1. The proposed adverse publicity order is set out in Annexure A to the Proposed Orders. The publication requirement requires Veolia to publish the notice in an immediately visible area of its website for a minimum period of 120 days (four months) and an industry publication. As for the content of the proposed publication, the Court can be satisfied that it complies with the requirements of s 330 of the EP Act as it provides for an accurate summary of the contraventions, impacts on the environment and the orders proposed to be made.

PROPOSED CONSENT ORDER REQUIRING VEOLIA TO TAKE CERTAIN ACTION

1. Section 309(1) of the EP Act provides that the Court may make an order requiring a person to take any specific action in such terms as the Court considers appropriate and section 311 provides that the Court can that order of all parties in the proceeding give their consent.
2. By Proposed Order 3, the parties submit that, by consent, it is appropriate for the Court to also make an order requiring Veolia to:

a) undertake monitoring of landfill gas emissions on internal landfill waste batters at the Hallam Road Landfill for 12 months from the date of the orders and if landfill gas emissions exceed the action limits prescribed in Table 6.4 of the BPEM (200 parts per million) Veolia must: > > 1. install sacrificial geomembranes on the Cell 15 internal western batter within 4 months of the batter reaching final height as specified in the auditor verified Cell 15 Filling Plan, and before the layback on Cell 16 is completed; > 2. as soon as reasonably practicable after an exceedance is identified, prepare and submit to the EPA an individual remediation action plan in relation to the relevant exceedance(s); > > b) until 31 December 2027, provide six monthly reports to the EPA tracking progress against the following matters relied upon by Veolia to manage leachate at the Hallam Road Landfill during the reporting period (being the six-month period immediately prior to the date of each report): > > 1. the leachate generation and water balance model outlined in the Defendant's Leachate Management Plan (Revision 3, 7 June 2024) or as amended by auditor verification from time to time; > 2. the leachate drawdown timeline outlined in the Defendant's Leachate Management Plan (Revision 3, 7 June 2024) or as amended by auditor verification from time to time,

with the first sixth monthly report to be provided within 6 months of this order;

1. by 1 June 2026 provide an auditor verified report via the EPA portal that demonstrates, based on the available data and water balance model forecasts, that compliance with leachate levels required by Condition OL_L4.1 and OL_L4.2.1 can be achieved by 31 January 2027, or if the current infrastructure and conditions has not proved capable of reaching a throughput that achieves compliance with Condition OL_L4.1 and OL_L4.2.1 by 31 January 2027, additional leachate treatment capacity must be built, with consideration to what is reasonably practicable, to expedite leachate levels into compliance.

1. The parties submit that such an order is appropriate because it:

a) provides a regime, in addition to the requirements of the Operating Licence, to deal with landfill gas emissions (if they were to arise); and > > b) further strengthens the measures Veolia has in place to bring itself into compliance with the conditions OL_4.1 and OL_4.2.1 of the Operating Licence: > > 1. EPA will be provided with reports concerning Veolia's compliance and key matters which may impact on the generation and management of leachate at the Hallam Road Landfill; and > 2. There will be auditor verification by 1 June 2026 that compliance with the two conditions can be achieved by 31 January 2027, failing which there is a requirement for additional leachate treatment capacity to be built, with consideration as to what is reasonably practicable, to expedite leachate levels into compliance.

1. Lastly, the parties invite the Court to make the agreed order in relation to costs. Costs follow the event and there is no reason to depart from this position in this case.

EMISSIONS OF ODOUR FROM HALLAM ROAD LAND FILL IN 2022 AND 2023

The Supreme Court of Victoria has ordered Veolia Recycling & Recovery Pty Ltd to publish this adverse publicity notice.

The Supreme Court of Victoria has ordered Veolia Recycling & Recovery Pty Ltd (Veolia) to pay $1 million into a restorative justice project account, established under the Environment Protection Act 2017 (Vic) (EP Act), to fund a project or a series of projects benefiting the community in the vicinity of the Hallam Road Landfill located at 274‑310 Hallam Road in Hampton Park.

Veolia consented to the making of the order after admitting to:

• various breaches of its operating licence; and
• failing to comply with its general environmental duty, owed under section 25 of the EP Act, to minimise, so far as reasonably practicable, the risk of landfill gas emissions adversely affecting the amenity of land, in the vicinity of the Hallam Road Landfill.

In 2022 and 2023 EPA received complaints from the public about odour believed to have been emitted from the Hallam Road Landfill. Veolia admits that it failed to comply with certain conditions of its operating licence which included, among other things, a requirement that it take certain reasonably practicable measures to prevent landfill gas emissions from exceeding levels prescribed in the Best Practice Environment Management, Siting, Design, Operation, and Rehabilitation of Landfills (Environment Protection Authority Publication 788) and maintain leachate below levels stipulated in the operating licence. Veolia accepts that it breached its general environmental duty by failing to do all things reasonably practicable to minimise the risk of landfill gas emissions adversely affecting the amenity of land nearby, including developing a Landfill Gas Remediation Action Plan and managing the risk that landfill gas posed to its neighbours.

An EPA-approved independent auditor has prepared an Operations Audit Report that covers the majority of the relevant period. The Report noted that Veolia has made improvements to its management of the site, and found that the active landfill cell is now unlikely to be a significant odour source provided it is operated in accordance with the management framework currently in place at the site.

Veolia has co-operated with the EPA in its investigation and throughout this proceeding, expressed remorse for its contraventions, undertaken substantial works to improve its leachate management infrastructure, and also consented to orders requiring it to undertake certain activities to further improve regulatory compliance at the Hallam Road Landfill. Veolia has also agreed to contribute $75,000 to EPA's legal costs.

Further information about the incident and the Court's orders can be found in the Court's judgment (accessible at www.austlii.edu.au) and on the EPA's website (www.epa.vic.gov.au).

VEOLIA RECYCLING & RECOVERY PTY LTD (ACN 002 902 650)

1. For the purposes of this proceeding, and pursuant to section 191 of the Evidence Act 2008 (Vic), the Plaintiff and the Defendant agree on the following facts in this statement of agreed facts and documents (SOAF).
2. There are three separate annexures to this SOAF:

(a) Annexure A, which contains the proposed order for final relief as agreed between the parties;

(b) Annexure B, which contains the parties' joint submissions in support of the proposed orders; and

(c) Annexure C, which contains a bundle of documents referred to in this SOAF.

1. The Plaintiff (EPA), is and was at all material times:

(a) a statutory authority established pursuant to section 5(1) of the Environment Protection Act 1970 (Vic) (the 1970 EP Act);

(b) capable of suing and being sued as provided for in section 356(2)(c) of the Environment Protection Act 2017 (Vic) (the EP Act); and

(c) the statutory authority charged with administering the EP Act.

1. The Defendant (Veolia), is and was at all material times:

(a) incorporated pursuant to law;

(b) a "person" for the purposes of sections 25(1) and 63(1) of the EP Act;

(c) engaged in the activity of storage and/or possession of waste at a landfill site situated at 274 - 310 Hallam Road, Hampton Park (the Hallam Road Landfill); and

(d) in operating the Hallam Road Landfill, conducting a business or undertaking for the purposes of section 314(3)(a) of the EP Act.

1. On or about 23 December 2011, EPA issued a licence to SUEZ Recycling & Recovery Pty Ltd pursuant to section 20 of the 1970 EP Act to operate a landfill (category A05) at the Hallam Road Landfill (the Licence).
2. Veolia was known as SUEZ Recycling & Recovery Pty Ltd prior to 22 June 2022.
3. The Licence was amended from time to time after 23 December 2011 and before 1 July 2021.
4. On and from 1 July 2021, the Licence, pursuant to section 470 and 471 of the EP Act, constituted, or transitioned into, a new prescribed permission, under the EP Act to operate a landfill (category A05a) at the Hallam Road Landfill.
5. The Licence was further amended from time to time between 1 July 2021 and 12 May 2023.
6. A copy of the Licence, as amended on 12 May 2023, appears at page 2 of Annexure C.
7. The Licence has recently been further amended on 6 June 2025. A copy of the Licence, as amended on 6 June 2025, appears at page 38 of Annexure C.
8. At all material times it was a condition of the Licence, among others, that Veolia must:

(a) under Condition OL_L5, take all practicable measures to prevent emissions of landfill gas from exceeding the action levels specified in Table 6.4 of the Best Practice Environment Management, Siting, Design, Operation and Rehabilitation of Landfills (EPA Publication 788) (BPEM) at the Hallam Road Landfill (Action Levels);

(b) under Condition OL_A1.1, implement odour source controls at the Hallam Road Landfill that accord with the requirements of section 6.7.3 of BPEM including, but not limited to:

1. managing landfill gas odour;
2. ensuring waste is covered appropriately and on time; and
3. managing and treating leachate, where required, to prevent offensive odours off-site;

(c) under Condition OL_L6, at all times cover waste in the cells listed in Appendix 7 of the Licence (apart from the active tipping face);

(d) under Condition OL_L4.1, extract leachate from cells 4, 5, 7, 8, 9A, 9B, 14A, 10A, 10B, 11A-P1, 11A‑P2, 12‑P1, 12‑P2, 13‑P1, 13‑P2 and (from but not prior to 28 March 2023) 14B (the High Cells) at the Hallam Road Landfill such that the depth of leachate above the lowest point of the drainage layer does not exceed 300mm (the 300mm Requirement); and

(e) under Condition OL_L4.2.1, ensure that leachate levels within all landfill cells (except the High Cells) at the Hallam Road Landfill are maintained at least one and a half meters lower than the groundwater level as measured at the nearest down gradient bore (the Groundwater Level Requirement).

1. From about January 2022 to about December 2023 (Relevant Period), EPA received many community reports complaining about odour the reporter claimed to be from the Hallam Road Landfill. The number of reports was approximately 1,348.
2. The landfill gas odour emitted from the Hallam Road Landfill had an adverse impact on the amenity of land within the vicinity of the Hallam Road Landfill.
3. On 21 April 2023 EPA authorised officers conducted odour surveys of areas where members of the public had complained of offensive odour. Those authorised officers detected offensive odour. The observations of the authorised officers were recorded in field activity report numbered FAR- 00010440. A copy of the report appears at page 69 of Annexure C.
4. Between July and September 2023 authorised officers conducted targeted odour inspections of areas where odour reports had been received. Those authorised officers detected offensive odour. The observations of the authorised officers are summarised in an odour surveillance summary report. A copy of the report appears at pages 70 to 76 of Annexure C.

1. Each month, from about July 2022 to September 2023, Veolia notified EPA that landfill gas at the Hallam Road Landfill exceeded the Action Levels in several landfill gas wells. A bundle of notifications sent by Veolia and received by EPA appears at pages 77 to 218 of Annexure C.

(a) Between August 2022 and June 2024, Veolia notified EPA that the depth of leachate in several High Cells exceeded the 300mm Requirement; and

(b) Between January to June 2024, Veolia notified EPA that the depth of leachate in cells 1 to 3 and 6 (the Low Cells) exceeded the Groundwater Level Requirement.

A bundle of notifications sent by Veolia and received by EPA appears at pages 219 to 431 of Annexure C.

1. Section 6 of the BPEM enumerates a range of measures that can be implemented by landfill operators to prevent emissions of landfill gas from exceeding the Action Levels. Those measures include (among other things):

(a) daily covering of waste;

(b) a site-specific landfill gas risk assessment;

(c) development of a landfill gas remediation plan for exceedances in landfill gas; and

(d) development, installation, and maintenance of a leachate collection system appropriate to the landfill.

Veolia's failure to implement all practicable measures to manage landfill gas

1. Between July 2022 and September 2023, although Veolia implemented several practicable measures, as required by Condition OL_L5, and several odour source controls as required by Condition OL_A1.1, Veolia did not implement all practicable measures and all odour source controls which could have been implemented.
2. Veolia:

(a) did not have in place an auditor-verified version of a document titled 'Risk Management and Monitoring Plan' (RMMP) until 15 September 2023, although it had in place a plan which was risk-based and contained monitoring measures to reduce the risk of harm to human health and the environment at the landfill from at least around 2016; and

(b) did not develop a landfill gas remediation action plan for exceedances in landfill gas at the Hallam Road Landfill until 31 October 2023, although it began developing one from October 2023, which was ultimately verified by the independent environmental auditor in May 2024.

1. On 28 August 2023, EPA officers inspected the Hallam Road Landfill and observed areas of waste in the active landfill that did not have adequate cover. A copy of that report appears at page 432 of Annexure C.
2. Between July 2022 and September 2023, Veolia did not regularly inspect and maintain certain landfill gas wells at the Hallam Road Landfill. Nor did Veolia repair gas wells within a timely manner.
3. Where landfill gas exceeded the Action Levels, Veolia failed to undertake two measures identified in Table 10 of Veolia's Environmental Management Plan (EMP), namely:

(a) prior to March 2023, Veolia failed to confirm that the compressed air supply to the pneumatic leachate sumps was working, and the system was functioning; and

(b) prior to the auditor verification of the RMMP on 15 September 2023, Veolia failed to assess the risk to neighbouring receptors and undertake additional monitoring of subsurface infrastructure and buildings.

1. Veolia provided monitoring data to its auditor at yearly or two-yearly intervals to receive advice about risk and any further monitoring and management required instead of undertaking a unique assessment of the risk to neighbouring receptors and additional monitoring of subsurface infrastructure and buildings for each discrete exceedance detected.

1. Veolia breached the following conditions of the Licence:

(a) Between July 2022 and September 2023, Condition OL_L5, by failing to take all practicable measures (being the measures described in paragraphs 20 to 24 above) to prevent emissions of landfill gas exceeding the Action Levels (as described above at paragraph 17 of the SOAF);

(b) Between July 2022 and September 2023, Condition OL_A1.1, by failing to implement the odour source controls of:

1. providing adequate daily cover on 28 August 2023 (as described above at paragraph 22 of the SOAF); and
2. developing a landfill gas remediation action plan for exceedances in landfill gas (as described above at paragraph 21(b) of the SOAF);

(c) On 28 August 2023, Condition OL_L6, by failing to apply adequate daily cover of waste in the active landfill cell at the Hallam Road Landfill (as described above at paragraph 22 of the SOAF);

(d) Between August 2022 and June 2024, Condition OL_L4.1, by failing to extract leachate from several High Cells to ensure that the depth of leachate in the High Cells did not exceed the 300mm Requirement (as described above at paragraph 18(a) of the SOAF); and

(e) Between January and June 2024, Condition OL_L4.2.1, by failing to maintain leachate levels in the Low Cells below the Groundwater Level (as described above at paragraph 18(b) of the SOAF).

Veolia's breach of the General Environmental Duty

1. During the period July 2022 and September 2023, Veolia breached the General Environmental Duty (GED) it owed under section 25(1) of the EP Act by:

(a) failing to have a Landfill Gas Remediation Action Plan; and

(b) failing to undertake two measures identified in Table 10 of Veolia's EMP when Veolia recorded exceedances of landfill gas at the Hallam Road Landfill perimeter bores as follows:

1. until March 2023, Veolia failed to confirm that the compressed air supply to the pneumatic leachate sumps was working and the system was functioning correctly; and
2. until 15 September 2023 (when the auditor verified the RMMP), Veolia failed to assess the risk to neighbouring receptors and undertake additional monitoring of subsurface infrastructure and buildings.

1. The measures in the preceding paragraph, of this SOAF, were each reasonably practicable measures available to minimise the risk of an adverse effect on the amenity of land within the vicinity of the Hallam Road Landfill from the emission of offensive landfill gas odours from the Hallam Road Landfill.
2. Following the breaches outlined in paragraph 27, the Landfill Gas Remediation Action Plan commenced in October 2023, which was ultimately verified by the independent environmental auditor in May 2024.

Further circumstances of the contravening conduct

1. During the relevant period, the landfill gas odour detected offsite was materially contributed to by a combination of factors being:

(a) Veolia's non-compliance with Conditions OL_L5 and OL_A1.1 of its Licence (as referred to above at 25(a) and 25(b) of the SOAF); and

(b) the design of Cells 11, 12 and 13 were verified by an EPA appointed auditor and relied on by Veolia.

1. The EPA approved independent auditor has prepared an Operations Audit Report for the Hallam Road Landfill dated 1 April 2025 (Operations Audit Report). The Operations Audit Report concerns the audit period 1 July 2022 to 30 June 2024, thus overlapping with the majority of the Relevant Period. Relevantly, the Operations Audit Report finds that:

(a) landfill gas emissions did not result in any unacceptable risk of landfill gas hazard, and that landfill gas emissions continue to be monitored and managed by Veolia;

(b) the leachate levels are being managed and monitored by Veolia by the implementation of its auditor verified Leachate Management Plan and the introduction of new and reconfigured infrastructure and other measures, including:

1. new south boundary leachate holding/pre-treatment ponds completed in April 2024;
2. reconfiguration of the treatment system, following a review completed by Veolia, which is aimed at improving treatment and discharge rates. Pond 1 is now used as a dedicated first stage treatment pond which flows into Pond 2 for a second stage of treatment. There will further augmentation of the system by the construction of two 1.75ML holding/discharge tanks (to be commissioned prior to the commissioning of Cell 15);

(c) the spike in odour complaints reduced from October 2023;

(d) Veolia has in place an RMMP and a range of other operational and risk based documents to manage the landfill; and Veolia as operator generally met its requirements under the Licence for environmental management and monitoring over the audit period. The 2021 update of the Hydrogeological Assessment and the broader risk framework for the Hallam Road Landfill that was reassessed to inform a recent update to the RMMP in 2025 are both considered to provide an appropriate assessment of the risk context of the Hallam Road Landfill, and the report makes no other recommendations in relation to operation of the Hallam Road Landfill.

1. Further, the Operations Audit Report also found there was a noticeable decline in odour complaints once Veolia covered the drainage layer of Cell 14 with waste at the end of August 2023 and when a sacrificial geomembrane barrier was applied to the sidewall drainage layer for Cells 11, 12 and 13.
2. This significant reduction in complaints is so despite leachate level exceedances still occurring. Leachate level management and extraction system improvements have been implemented and are ongoing at the site in accordance with the Leachate Management Plan verified in June 2024, and the measures proposed in order 3 of the order for final relief (see Annexure A). For the period 2019 to present, Veolia states capital leachate infrastructure investment is approximately $2.1 million.
3. In relation to the self-reported exceedances related to leachate levels at the Hallam Road Landfill in terms of compliance with Conditions OL_L4.1 and OL_L4.2.1 of the Licence, while compliance was not achieved, Veolia's approach to addressing this issue was informed by the EPA-approved independent auditor statement in the 12 February 2021 verification of the Hydrogeological Assessment that:

"At this point the greatest environmental risk at the site appears to relate to odour management. The Auditor concludes that managing the risk of odour from the leachate pond and pre-treatment system should be prioritised over targeting rapid reductions in cell leachate heads, particularly in the newer cells where leachate remains acetogenic. It is clear from the HA findings that the leachate currently remaining in the cells above compliance levels poses relatively little risk to the groundwater environment. It is the Auditor's opinion that it makes little sense to prioritise rapid leachate level reduction simply to reach "compliance" with the potential associated odour issues that accompany this approach. Instead, a steady, managed approach to leachate extraction, pre- treatment and discharge that avoids occurrences of offsite nuisance odour to the extent practicable is a lower risk strategy overall."

Historical context for leachate non-compliances prior to Relevant Period

1. Prior to the Relevant Period, relevant historical context that led to Veolia experiencing considerable difficulty in achieving compliance with leachate level conditions, included:

(a) Veolia experiencing a significant reduction in leachate treatment capacity in around 2019, in connection with the decommissioning of two treatment ponds due to the construction of a new landfill cell;

(b) the lack of an available offsite market to accept leachate of the type generated by the Hallam Road Landfill; and

(c) Veolia taking various actions in an effort to prevent leachate levels from becoming non-compliant, including:

1. in around 2019 and 2020, Veolia applying to the EPA, and obtaining, an emergency approval to enable leachate to be transferred to the Taylors Road landfill for treatment and discharge to the extent practicable;
2. in 2019, Veolia applying to the EPA for a works approval to construct three new leachate treatment ponds; and
3. Veolia completing construction and commissioning of these two new treatment ponds in around October 2020 following the EPA issuing an amended works approval for the construction of these two ponds. Receiving this final approval had been delayed by objector proceedings initiated at the Victorian Civil and Administrative Tribunal. Commissioning occurred within approximately seven months of Veolia receiving this amended approval from the EPA, following resolution of these proceedings.

Remedial actions taken by Veolia during and since the Relevant Period

1. Since the Relevant Period, Veolia has been actively working towards minimising the risk of harm to human health and the environment as reasonably practicable through a range of measures. In relation to management of landfill gas extraction, associated infrastructure, and community odour concerns, these measures have included:

(a) since October 2023 developing a Landfill Gas Remediation Action Plan verified by an independent environmental auditor in May 2024;

(b) engaging a third party contractor, LMS, to inspect and maintain gas wells, and extract landfill gas, on a monthly basis;

(c) engaging a third party contractor to update its gas extraction infrastructure to improve efficiency of landfill gas extraction including, from the period since January 2022 to the date of this SOAF:

1. drilling at least 82 new gas wells;
2. redrilling 28 pre-existing gas wells; and

(d) holding monthly meetings with relevant stakeholders, including members of the community, regarding operations at the Hallam Road Landfill and initiatives to address any matters of concern raised.

1. While Veolia accepts that it breached the GED and certain conditions of its Operating Licence, as outlined above, it did undertake the following actions:

(a) extracting, treating and disposing of leachate as far as practicable, having regard to the risk and constraints identified in paragraphs 34‑35 above of the SOAF;

(b) in around 2022, applying to the EPA for, and obtaining, an emergency approval to enable some of the leachate to be transferred to the Taylors Road landfill for treatment and discharge until 30 January 2023; and

(c) seeking out expert advice concerning leachate management, including the preparation of leachate management plans (which includes a leachate) drawdown table for Veolia to work towards to bring itself into compliance with the Licence) and implementing the plans to the extent practicable.

1. Veolia has also agreed to further measures as part of its continued effort to reduce leachate levels at the Hallam Road Landfill, which have been incorporated into proposed order 3 of the proposed order attached as Annexure A.

Veolia's co-operation in this proceeding and EPA's investigation

1. At all material times, Veolia co-operated with the EPA in its investigation into the matters the subject of this proceeding.
2. Veolia self-reported on the licence breaches, as required by Licence condition OL_G02c), the subject of this proceeding at the earliest practicable opportunity during the Relevant Period.
3. Veolia co-operated with the EPA by entering this SOAF, following a mediation between the parties held on 23 April 2025.
4. Veolia co-operated with the EPA by agreeing to proposed findings and orders (including the terms of an adverse publicity order).
5. Veolia co-operated with the EPA by agreeing to contribute to the EPA's costs of this proceeding, fixed in the sum of $75,000.
6. The co-operation of Veolia has had the effect of avoiding the need to prepare for, or conduct, a contested hearing in relation to liability and relief. This cooperation has resulted in a saving of cost and time for the Court, as well as for the EPA, and allowed for greater allocation of resources towards improving environmental outcomes at the facility and the surrounding community

1. The parties have agreed to a proposed form of order for final relief. The proposed order appears in Annexure A.
2. The parties have prepared joint submissions in support of the proposed orders. These submissions appear in Annexure B.

[1] High Cells is defined to be 'cells 4, 5, 7, 8, 9A, 9B, 14A, 10A, 10B, 11A‑P1, 11A‑P2, 12‑P1, 12‑P2, 13‑P1, 13‑P2 and (from but not prior to 28 March 2023) 14B'.

[2] Low Cells is defined to be 'cells 1 to 3 and 6', namely 'all landfill cells (except the High Cells)', [12(e)].

[10] SOAF, [20], [21(b)], [22], and [26(b)].

[12] "High Cells" is defined at [12(d)] of the SOAF to be "cells 4, 5, 7, 8, 9A, 9B, 14A, 10A, 10B, 11A‑P1, 11A‑P2, 12‑P1, 12‑P2, 13‑P1, 13‑P2 and (from but not prior to 28 March 2023) 14B".

[17] "Low Cells" is defined at [17(b)] of the SOAF to be "cells 1 to 3 and 6", namely "all landfill cells (except the High Cells)", [12(e)].

[19] [2015] HCA 46 at [57] to [60] (footnotes omitted).

[20] [2024] VSC 758, [261]-[262] (Osborn J).

[21] [2025] VSC 481 (Quigley J).

[22] Commonwealth v Director, Fair Work Building Inspectorate [2015] HCA 46, [47].

1. [23] Minister for the Environment v Hansen [2016] FCA 1146 ('Hansen'), [54], citing the High Court in Commonwealth v Director, Fair Work Building Inspectorate [2015] HCA 46, [55].
2. [24] ABCC v CFMEU (2018) 262 CLR 157, [116]; ABCC v Pattinson [2022] HCA 13; (2022) 274 CLR 450, [9]; see also Minister for the Environment v JN and KC Basile Pty Ltd [2020] FCA 380, [19].

[27] [2005] HCA 25, [31].

[28] Victorian Government Gazette, G16 dated 22 April 2022.

[29] Victorian Government Gazette, S256 dated 23 May 2023.

[30] ACCC v Reckitt Benkiser (2016) 340 ALR 25, [175].

[31] ACCC v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996; (2019) 374 ALR 776, [79].

[32] See for example ACCC v Campbell (No 3) [2021] FCA 528, [114] and see Commonwealth of Australia v Harrison (No 2) [2020] FCA 786, [29]-[38] for the interpretation of the phrase "the same conduct" in a comparable legislative provision.

[33] Mornington Inn Pty Ltd v Jordan [(2008) [2008] FCAFC 70; 168 FCR 383 (Mornington) at [42]. As to the method for making any adjustment in light of the totality principle, see EPA v Ghossayn Group Pty Ltd [2023] NSWLEC 127 at [128] (Preston CJ).

[38] SOAF, [13], [31(c)] and [32].