Thirteenth Beach Coast Watch Inc. v EPA [2008] VCAT 1880

1. The decision of the Environment Protection Authority is affirmed.
2. Pursuant to section 37 of the Environment Protection Act 1970, in works approval application WA62709, a works approval is directed to be issued for the land at Black Rock Road, Connewarre subject to the conditions specified in Appendix A. The works approval allows the construction of works on the land for the purpose of a Biosolids Thermal Drying Facility.

Ms Sharon Marshall in person. Ms Marshall called the following witness:

For the Environment Protection Authority Executive Director Regional Services

Mr Gerald Purcell, barrister, instructed by Ms Louise Paech, Office of the EPA Solicitor. Mr Purcell called the following witness:

For Plenary Environment (Barwon) Pty Ltd - Applicant for Works Approval

Mr Matthew Townsend, barrister, instructed by Clayton Utz, solicitors. Mr Townsend called the following witnesses:

• Mr Carl Bicknell
• Mr Peter Everist
• Dr Graeme Ross
• Mr Carlo Retschko
• Mr Tony Truman

Mr Townsend also relied upon witness statements for the following witnesses (not required by other parties to be called):

• Mr Michael Cramer
• Mr Graeme Campbell
• Ms Catherine Costello

(given orally on 9 September 2008 and subsequently revised)

1. Thirteenth Beach Coast Watch Inc. and Clean Ocean Foundation Inc. have jointly sought to review the decision of the Environment Protection Authority ('EPA') to grant a works approval for a biosolids treatment facility at Black Rock Road, Connewarre.
2. In addition to the EPA, the project proponent Plenary Environment (Barwon) Pty Ltd ('Plenary') appeared as a respondent to the application.
3. The biosolids treatment facility is proposed to be co-located adjacent to the existing Black Rock Water Reclamation Plant operated by Barwon Water. This plant is approximately 18 kms south-east of Geelong, and within a few hundred metres of the Barwon Coast, and treats sewerage waste from Geelong and adjoining areas with some of the treated wastewater being discharged via an ocean outfall under an existing EPA licence. The land is zoned for Public Use under the Greater Geelong Planning Scheme, and there are no overlay controls under the scheme affecting the land to be leased by Plenary for the biosolids treatment facility. The site is more than 1.2 kms from the nearest non-stakeholder residence.
4. As a result of community concerns in or around 2000 with odour from storage lagoons at Black Rock, the dewatered sludge from the Black Rock Water Reclamation Plant and other smaller Barwon Water treatment plants[1] has for the past few years been transported to Melbourne Water's Western Treatment Plant at Werribee under a temporary arrangement through which it is stockpiled and air-dried.
5. The biosolids treatment facility proposes a longer-term solution for the treatment and reuse of the sludge. Essentially, the facility utilises an indirect heating or 'thermal drying' of the biosolids, which are transformed into stable pellets suitable for a beneficial re-use either for land application in agriculture or as a bio-fuel.
6. The facility will be operated by Plenary under an agreement with Barwon Water. Plenary is the 'local' arm of a company that we were informed had successfully operated similar facilities overseas. We were provided with a copy of a Project Deed that includes stringent environmental conditions, including the standards for waste capable of being received by the facility as 'inputs' and the standards for the limited emissions and 'outputs' from the facility.
7. The application for review has been brought under s 33B of the Environment Protection Act 1970. The available grounds for a third party review are limited by the Act to those set out in ss 33B(2), namely:
   • (a) that if the works are completed in accordance with the works approval, the use of the works will result in a discharge, emission or deposit of waste which will unreasonably and adversely affect the interests, whether wholly or partly of that person [ie the person seeking the review]; and/or
   • (b) that if the works are completed in accordance with the works approval, the use of the works will result in a discharge, emission or deposit of waste which-
     • (i) will be inconsistent with State environment protection policy established for the area in which the discharge, emission or deposit will occur; or
     • (ii) where there is no State environment protection policy established for that area, would cause pollution.
8. We are satisfied that the two incorporated associations jointly bringing the application for review had sufficient standing to do so[2]. From an examination of the objectives of each association, it would seem that the 'interests' of the Clean Ocean Foundation Inc would perhaps be more limited to the indirect augmentation of wastewater discharged from the ocean outfall of the existing Black Rock Water Reclamation Plant than the use of the biosolids treatment facility itself. In any event, the legal standing of the two co-applicants was not materially contested by either the EPA or Plenary.
9. Despite having standing, it is our view that the application for review comprehensively fails on a number of grounds.
10. There is a long line of consistent decisions of this Tribunal and its predecessors that has considered the very limited ambit of third party reviews under s 33B(2) and the 'very high bar' that an applicant for review must attain in order to succeed[3]. We endorse the general statements of principle evident from these decisions. Without specifically referring to these decisions, the Tribunal in the recent decision in Santos (NT) Pty Ltd v East Gippsland Shire Council[4] also reiterated these principles.
11. We have little doubt that Ms Marshall, on behalf of the applicants for review, well understood the limited ambit of third party reviews under s33B(2). Whilst the limited third party rights may be frustrating to objectors, it serves little purpose to treat the Tribunal hearing as a de facto EES review, planning review, or a general forum for grievance, in circumstances where the Tribunal has no jurisdiction to consider or make findings on such matters.
12. Many (and perhaps most) of the concerns raised were about possible risks and dangers associated with the proposal, or possible operational issues associated with the use, or hypothetical emissions of concern. However, under s 33B, the applicants for review must establish that, based on an assumption that the works will be completed in accordance with the works approval, the works will still result in a discharge or emission etc. that will unreasonably and adversely affect their interests or will be inconsistent with a SEPP. Despite the obvious passion evident in Ms Marshall's presentation to the Tribunal, unsupported or unsubstantiated assertions that any of these events may (as opposed to will) arise is insufficient to found a successful application under s 33B.
13. During the course of her presentation, Ms Marshall failed or was unable to answer straightforward questions from the Tribunal about the particular types or quantities of discharges or emissions etc that would arise from the facility, or how these would objectively and specifically affect the interests of the two associations she represented or be inconsistent with relevant SEPPs. Moreover, in alleging that the use of the facility would unreasonably affect the interests of these associations, Ms Marshall was unable or unwilling to indicate what might be a reasonable impact for these associations to accept. Indeed, a stated 'vision' of Thirteenth Beach Coast Watch Inc is simply 'to stop the sewage sludge factory that is to be built at Black Rock'. It would seem that there is no room for objectivity or compromise in this vision.
14. In an endeavour to allow Ms Marshall the best possible opportunity to present relevant material in support of the application for review and within the confines of the grounds under s 33B(2), she was granted leave to file a supplementary submission after her general presentation and submissions had concluded. Included within this was a document headed 'Appendix A' that purported to show various contaminants contained in the sludge arriving at the facility (based on annually reported data from Barwon Water), and the contaminants in the dried pellets (based on data in the works approval application). Ms Marshall sought to have us draw two conclusions from this material:
    • There was a material gap in the amount of contaminants contained in the 'input' sludge compared with the 'output' pellets, and these 'missing' contaminants were therefore comprised in air emissions or would be contained in wastewater discharges; and
    • The pellets themselves would still contain contaminants that were of concern to the objectors, and ought not to be capable of being used for agricultural purposes in the area.
15. In our view, neither of these conclusions can be drawn from the material, and Ms Marshall's assertions to the contrary do not withstand objective scrutiny, largely for the following reasons:
    • In her Appendix A, Ms Marshall had compared the sludge input data from a different reporting period to that used for the pellet output data. We are satisfied on the evidence of Plenary's consultants that there is no material gap in the amount of input and output contaminants, and the likely emissions and discharges from the facility are all below (and, in most cases, orders of magnitude below) the relevant SEPP levels or levels that might be of environmental concern;
    • The contaminant levels of the 'input' sludge are strictly regulated for those compounds and elements regulated under environmental law, as are the outputs. This does not mean that there are no contaminants - all matter may contain trace elements of various contaminants that are at very low concentrations, low risk and/or difficult to remove. However, even if there are 'missing' amounts of contaminants in the amounts alleged in Ms Marshall's Appendix A (i.e. contrary to our initial finding), we accept the evidence that these are still well below relevant SEPP levels or levels that might be of environmental concern. Considered objectively, the emission or discharge of these remaining trace elements could not therefore be considered to unreasonably and adversely affect the interests of the two applicants for review;
    • The contaminant levels in the dried pellets will meet strict guidelines for their beneficial reuse, under the 'Guidelines for Environmental Management - Biosolids Land Application'[5]. In particular, the pellets will meet the highest treatment grade (T1) under those guidelines, and will meet a contaminant grading (C2 - the same as the input material) that imposes upper limits to conservatively ensure that contaminant levels are not excessive or inappropriate for land application.
    • Whilst it is not strictly relevant to our consideration of the works approval whether the pellets may be used in agriculture or land application near to the site, there was no evidence that this would necessarily be the case. The pellets are perhaps more likely to be used in commercial quantities elsewhere. In any event, the pellets are capable of being used beneficially in accordance with the Guidelines and we cannot see how that beneficial reuse (eg in agriculture) could unreasonably and adversely affect the interests of the two applicants for review having regard to the corporate objectives of those associations.
16. In the supplementary submission, Ms Marshall also listed the clauses of four State environment protection policies[6] where the applicants for review alleged the works would be inconsistent with those SEPPs. Again, however, these assertions do not withstand scrutiny. Most of the clauses referred to by the applicants for review refer only to broadly based policy principles that underscore the SEPPs, rather than to specific regulatory design criteria, emission limits, indicators, or standards. Section 33B(2)(b) however requires the applicants for review to establish that 'the use of the works [in accordance with the works approval] will result in a discharge or emission etc which will be inconsistent with a SEPP established for the area'. There is no evidence that there will be any specific discharge or emission that will exceed or breach any specific SEPP standard, emission limit or indicator - indeed, the evidence before us is all to the contrary. There is also no evidence that any specific beneficial use will not be adequately protected, nor that the works approval fails to include practical measures to prevent contamination or pollution.
17. We accept the evidence of Mr Frame, an officer of the EPA, that his review discloses no inconsistency with any SEPP or WMP (waste management policy), even in relation to the broadly based principles that underscore these policies. We note that Mr Fame's detailed witness statement (in stark contrast to the applicants for review) dealt with the specific components of the SEPPs relevant to the issues before us in reaching this view. It is also perhaps relevant that Mr Frame was not the officer who had initially assessed the works approval application, but had conducted an internal peer review for the Tribunal hearing.
18. Ms Marshall also relied generally upon the 'precautionary principle', suggesting that a works approval should not be issued where there were unknown risks associated with it, where there might be unknown matter contained in the sludge, or where there might be unregulated or untested compounds containing dioxins, furans, pathogens, heavy metals etc. The proper application of the precautionary principle under Australian law is however that there must first be established a threat of serious and irreversible environmental damage. Ms Marshall provided no evidence to overcome this threshold test. As we have indicated, we accept that there may be trace elements of a variety of contaminants. However, we again accept the evidence of the EPA and Plenary's expert witnesses that sufficient sampling has been done as part of the works approval application (albeit not testing of every conceivable compond) to satisfy the regulators that these remaining contaminants (if any) will at most arise at very low concentrations and/or of low risk and/or be at levels well below relevant SEPP standards or levels that might be considered to be of irreversible environmental concern.
19. At the heart of Ms Marshall's concerns on several issues also appeared to be the decision to site the biosolids treatment facility at the Black Rock site specifically. Section 37A of the Environment Protection Act 1970 requires us to take into account any relevant planning scheme. Ms Marshall sought to argue against the proposal to locate the facility at Black Rock and near to the Barwon Coast, having regard to environmental and coastal policies in the Greater Geelong Planning Scheme, the potential for visual blight, the potential impact on nearby wetlands protected by an Environmental Significance Overlay, and the potential for coastal inundation caused by climate change. The requirement to consider the planning scheme however is not limited to these aspects. In particular:
    • The land is in a Public Use Zone;
    • No planning permit is required for either the use or development, meaning that most (if not all) of the planning policies raised by Ms Marshall do not apply in this case;
    • The works approval does not affect the land covered by the Environmental Significance Overlay, and there are no other overlay controls affecting the land;
    • There are no zone, overlay or particular provisions for this site that specifically protect visual amenity or deal with possible coastal inundation.
20. Even to the extent the planning policies raised by Ms Marshall might be of relevance, they would need to be balanced against other planning considerations, such as the benefits of co-location of the biosolids treatment facility with the existing water reclamation plant. In the absence of a separate planning permit trigger for the facility, we make no formal finding on planning matters save to confirm that we have taken the planning scheme into account and do not consider that it raises any material issue that militates against the issue of the works approval.
21. Moreover, it is not appropriate in the context of the matters before us to consider any possible alternative sites for the biosolids treatment facility.
22. Apart from general submissions, the only formal evidence called by Ms Marshall was from Dr Boyd Blackwell, who could best be described as being from the emerging field of 'environmental economics'. His evidence was that there was an opportunity cost for the foregone conservation benefits of the site and/or the impacts to nearby beach and marine users, or non-users valuing such benefits. His key conclusion was that a proper social cost benefit assessment may reveal that the project fails on such a basis. Interesting though Dr Blackwell's views were, they are largely irrelevant to the matters we must consider under the Environment Protection Act 1970. Moreover:
    • Dr Blackwell had not undertaken a social cost benefit assessment, nor undertaken the surveys he indicated would underscore such an assessment. His views were purely hypothetical;
    • There was no evidence to support his view that Victorians might (on average) pay the $15 per head necessary to 'match' the likely cost of development of the biosolids treatment facility - nor even that a 'social opportunity cost' and 'development cost' are relevantly comparable costs;
    • In considering only beach and coastal values, the analysis ignored other potential social and environmental benefits from the facility, the opportunity cost of existing or alternative biosolid treatment regimes or locations, and the fact that the beneficial and recreational uses in the immediate coastal area (including surfing etc) were not actually prevented by the works approval and development.
23. It follows from all of the above that the applicants for review have failed to substantiate their objections within the limited grounds available under s33B. We agree with the EPA that the application must fail due to an absence of any real evidence to support the claims.
24. Despite the application failing at a threshhold level, we are also satisfied on the basis of the detailed expert evidence provided by the EPA and Plenary that it is appropriate that a works approval be issued. That evidence was in our view comprehensive and compelling. Moreover, it was either uncontroverted following extensive cross-examination, or uncontested. We do not propose to analyse this material in detail - the various expert reports and witness statements remain on the Tribunal file as a matter of record. It is sufficient to summarise our main findings as follows:
    • We accept the evidence of Plenary to the effect that the facility 'outputs' are essentially limited to the biosolids (in the form of the pellets), and emissions to air, water and by way of noise;
    • In relation to the biosolids, we accept the evidence of Plenary and the EPA that, following treatment, the biosolids will be nutrient-rich, pathogen-free and dust-free[7], classified as T1/C2 grade under EPA Guidelines, and capable of use as Class A soil improver for land remediation or as a biofuel or green energy fuel, feedstock for brick production, or as an agricultural fertiliser. This high value product output is to our mind significantly preferable to the existing treatment regime at Werribee;
    • The proposed twin-stream thermal biosolids drying technology requires a relatively low temperature and no combustion of the biosolids, and utilises indirect heating that avoids dangerous or odorous flue gases that would otherwise require further treatment;
    • In relation to possible air emissions, the conveyor and building are enclosed. We accept the evidence that all building air will pass through a biofilter that uses natural biological processes to eliminate odour. Water driven off the wet biosolids will be condensed, with any remaining non-condensable substances incinerated via a reactive thermal oxidiser (RTO) to further eliminate odour. We accept that appropriate 'typical' compounds have been sampled and modelled, and that the Ausplume modelling evidence is that there will be less than one odour unit perceptible at the Plenary lease boundary - this itself being well within the broader Barwon Water landholding. It follows that there will be no odour emanating to the public realm that could be said to unreasonably or adversely affect the interests of the applicants for review, or lead to an odour emission inconsistent with any SEPP;
    • In relation to other possible air emissions (ie, the emission of contaminants, as opposed to odour), we have previously noted that we also accept the evidence of the EPA and Plenary that these will be of very low concentrations (if any) and comply with the SEPP (Air Quality Management). We are satisfied that any issues beyond those relevant to the works approval are dealt with in the Project Deed, or capable of being dealt with via an EPA licence;
    • In relation to greenhouse gas emissions, we accept the uncontested evidence of Michael Cramer (supported by the EPA) that the nett greenhouse gas emissions will be significantly less as a result of the operation of the biosolids treatment facility. Whilst the treatment facility itself will lead to greenhouse gas emissions, these will be more than off-set by the reductions gained from avoiding the road transport of biosolids for treatment at Werribee;
25. We have not dealt with other unsubstantiated assertions from the objectors that there will be increased risk of fire, weed infestation, vegetation clearance or the potential to cause acid sulphate soils. We also accept the evidence and submissions of the EPA and Plenary on these issues.
26. On any objective assessment, there can be no possible finding that the interests of either the Clean Ocean Foundation Inc or Thirteenth Beach Coast Watch Inc are unreasonably and adversely affected, or that the use of the works will be inconsistent with any relevant SEPP or WMP in the area. As we have indicated, it is appropriate that the works approval be issued, subject to conditions.
27. We consider the conditions proposed for the works approval to be generally adequate, including those dealing with construction activities, subject to the following:
    • As a result of the evidence of John Frame from the EPA, we suggested a further condition might be added to deal with the clay and HDPE liners for the wastewater treatment lagoon to address the specific concerns of the objectors regarding possible leakage. We have adopted a condition proposed jointly by the EPA and Plenary at the conclusion of the hearing;
    • We have also adopted additional pre-commissioning conditions proposed jointly by the EPA and Plenary, relating to the wastewater treatment lagoon liners, Class 3 indicator emissions, stormwater and groundwater quality monitoring, odour monitoring, and performance monitoring for the reactive thermal oxidiser (RTO). Despite our view that some of these additional conditions are not strictly required, they represent a good faith response by Plenary and the EPA to some of the broader concerns raised by the applicants for review;
    • As requested by Plenary, we have extended the time for its report to the EPA on biosolids reuse (agreed by the EPA) and amended condition 1.1 such that the works must be constructed 'generally' in accordance with the works approval application;
    • We do not agree with the conditions proposed by Ms Marshall. In our view, the Project Deed commitments do not need to be separately included as works approval conditions. It is also unnecessary to require compliance with SEPPs generally, as a requirement to comply arises independently of the works approval. Class 2 indicators do not need to be included in the proposed additional monitoring condition as these indicators relate only to odour, which on the evidence is not of material concern. The proposal for a further risk assessment to be undertaken, and for a guarantee that the facility won't cause pollution are too vague to comprise a works approval condition, and also contrary to the evidence before us.
28. The amended works approval conditions are attached to these Reasons.

[Note: This Appendix only sets out the Works Approval conditions. Introductory components of the Works Approval (Works Description, Works Approval Objectives etc) and the 'Plan of Premises' (Site Locality Plan and Plant Layout etc) are not included in this Appendix - these remain as set out in the draft Works Approval submitted by the Environment Protection Authority at the conclusion of hearing.]

The construction of works on the land for the purpose of a Biosolids Thermal Drying Facility

1.1. The works must be constructed generally in accordance with the works approval application accepted on 18 October 2007 except that in the event of any inconsistency arising between the application and the conditions of this works approval the conditions of this works approval shall apply.

1.2. This works approval will expire:

1. on the issue or amendment of a licence relating to all works covered by the works approval; or

2. on the issue of written notification from EPA confirming that all works covered by the works approval are complete and that no licence or licence amendment is required to operate the works; or

3. two years from the date of issue unless the works have been commenced by that date to the satisfaction of the EPA.

2.1. The occupier must ensure that all construction activities are conducted in accordance with EPA publication TG 302/92, Noise Control Guidelines.

2.2. The occupier must design and construct the plant so as to ensure the noise emissions from the plant, when measured at residential premises, meet the noise limits determined in accordance with the procedures set out in EPA publication N3/89, Interim Guidelines for Control of Noise from Industry in Country Victoria.

2.3 All biosolids must be unloaded, treated, stored and loaded in secure bunded areas.

2.4 The bunded areas referred to in condition 2.3 must be constructed, operated and maintained in accordance with EPA publication 347, Bunding Guidelines.

2.5 All stormwater captured during the construction and operation of the facility must be managed in a manner that considers the unique site and soil conditions and minimises the impact to any sensitive receiving environments.

2.6 The storage of untreated biosolids must be limited to a total of 1200 m3.

2.7 The storage of treated biosolids must be limited to a total of 200 m3.

2.8 The wastewater treatment lagoons must be constructed with a liner (or composite liner) to the following equivalent or higher standards:

1. For the primary wastewater treatment lagoon, the liner must be not less than 200 mm of clay with at least a permeability of 1x10-9 m/s, overlain by a 1.5 mm HDPE liner; and
2. For the emergency wastewater treatment lagoon, the liner must be not less than 300 mm of clay with at least a permeability of 1x10-9 m/s, overlain by a 150 -200 mm topsoil covering.

3.1. The occupier must submit a Construction Environment Management Plan "CEMP" to EPA for approval prior to commencement of the works.

3.2. The CEMP must meet the requirements outlined in EPA Publication 480, Environmental Guidelines for Major Construction Sites and EPA Publication 275, Construction Techniques for Sediment Pollution Control. In particular, it must include details for construction vehicle movement and wash down.

3.3. The CEMP must include a detailed investigation on the treatment measures for stormwater runoff, including a thorough assessment of best practice stormwater management during both construction and operation.

3.4. The CEMP stormwater management component must make clear that

1. the unique site and soil conditions have been taken into consideration;

b) treatment measures are suitable and effective for the location; and

c) impact to any sensitive receiving environment is minimised.

3.5. The occupier must submit to EPA for approval, a plan indicating the location for the installation of the groundwater monitoring bores.

3.6. The occupier must install groundwater bores within six months of the date of this works approval to monitor groundwater during construction and operation of the facility.

3.7. Within nine (9) months from the date of issue of this Works Approval, the occupier must submit a report to EPA detailing investigations on reuse of the treated biosolids. The investigation must include:

3.8. Prior to commissioning the works the occupier must submit to EPA in writing:

1. a report by an appropriately qualified expert demonstrating that the wastewater treatment lagoon liners as constructed meets the requirements specified in condition 2.8; and

2. an assessment by an appropriately qualified expert demonstrating that emissions for any Class 3 indicator expected to be discharged by the Reactive Thermal Oxidiser ("RTO") at a rate greater than 0.1 g/min are minimised to the maximum extent achievable.

3.9. Prior to commissioning the works the occupier must submit to EPA for approval a written program that includes the following:

1. a system for monitoring the quality of any water discharged from the stormwater lagoon;

1. a method that will demonstrate whether odour emissions from the biofilter and the RTO will achieve the odour emissions predicted in the works approval application accepted on 18 October 2007, including source sampling and ambient odour surveys; and

1. a method to monitor the performance of the RTO which includes source monitoring and any continuous process parameters.

3.10. The occupier must submit an Environment Improvement Plan (EIP) to EPA for approval prior to commencement of the operation.

3.11. The EIP must include, but not limited to:

a) monitoring, recording and reporting program, including:

1. monitoring the quantity and quality of incoming untreated biosolids;
2. monitoring the quantity and quality of biosolids after treatment;
3. monitoring of emissions from the biofilter; and monitoring of groundwater.

1. monitoring of biosolids required in condition 3.8 a) must be done in accordance with the Guidelines for EPA publication 943 Environmental Management for Biosolids Land Application

1. telemetry system operation for critical parts of the facility, in particular alarm monitoring;
2. maintenance and performance of back-up power supply; and
   1. biofilter maintenance and replacement.

1. recording and reporting of incidents through the development of a plan detailing the circumstances under which the occupier is to notify EPA of any spills, leaks or non-routine discharges to the environment from the facility.
2. recording and reporting of all complaints received during the construction of the facility and make these records available to EPA if requested.

1. untreated biosolids that do not meet the required specifications for treatment; and
2. treated biosolids that do not meet T1/C2 classification for beneficial reuse.

3.12. EPA must approve the EIP before commissioning of the facility commences.

[1] Such as at Colac, Lorne, Anglesea and Apollo Bay

[2] from an examination of their respective corporate objectives or mission statements

[3] This includes the decisions referred to by the EPA before us, namely Staffbelt v Environment Protection Authority (unreported, Appeal 00579/95, 29 March 1995), 58th Colro Pty Ltd v Environment Protection Authority (1989) 3 AATR 266, and McKinlay v Environment Protection Authority (1986) 24 APA 294. These and other similar decisions are also usefully summarised in a paper 'Third Party Appeals against Works Approvals - A Personal Journey' by then Justice Stuart Morris (20 April 2004), available on the VCAT website. Ms Marshall for the applicants for review indicated an awareness of this paper.

[4] [2008] VCAT 1658, particularly at [35] to [40]

[5] EPA Publication 943, April 2004, published pursuant to s 13(l) of the Environment Protection Act 1970.

[6] SEPP (Air Quality Management), SEPP (Waters of Victoria), SEPP (Groundwaters of Victoria) and SEPP (Prevention and Management of Contamination of Land)

[7] Ms Marshall argued this was incorrect. The term 'pathogen-free' is potentially a misnomer to the extent minor particles may remain although the defined standard is technically met. We are nonetheless satisfied on the evidence that the relevant standard will be met.