Court action against EPA underway to reopen Mangrove Mountain Landfill.
Verde Terra, the owners of the Mangrove Mountain Landfill site, have commenced action in the NSW Land and Environment Court (LEC) against the NSW Environment Protection Agency (EPA). Meanwhile the NSW Opposition has called for the Premier to strip responsibility for the EPA from Environment Minister, Ms Gabrielle Upton, after a damning report from the NSW Auditor-General, Ms Margaret Crawford.
The report, released on June 28, found that the EPA was failing to fulfil its basic functions to properly regulate and monitor licences that impact on NSW drinking water supplies and failing to stop illegal dumping. The report indicated that these failures could harm the environment and risk human health. “Rarely do Auditor-General’s reports come as damning as this one,” said Shadow NSW Environment Minister, Ms Penny Sharpe. Verde Terra have lodged an appeal with the NSW Land and Environment Court over the deemed refusal of variations to their Environmental Protection Licence (EPL) by the EPA. Those variations stemmed from LEC orders issued in 2014, following legal action by the former Gosford Council. According to the Office of the Chief Justice of the Supreme Court of NSW, Verde Terra filed their action on May 31. It is listed as a Class 1 Miscellaneous appeal under the Protection of the Environment Operations Act 1992. Verde Terra has made its claim under s287 of that Act for an appeal against a decision concerning or refusal of an Environmental Protection Licence (EPL).
It is understood the landfill owner is seeking orders from the LEC, including the upholding of its appeal to have its EPL varied, so it can recommence operations at the Mangrove Mountain Landfill. The matter refers to a licence application made by Verde Terra on September 21, 2015, that was received by the EPA on September 25, 2015. Coast Community News has asked for comments about the legal action from the EPA, Central Coast Council and Verde Terra. In a written response, the EPA said: “As this is now a matter before the Land and Environment Court, the EPA will not be providing any further comment.” Central Coast Council also sent a written statement: “Council is aware of the proceedings, is not currently a party to those proceedings, but otherwise makes no comment.” In February, Acting CEO of Central Coast Council, Mr Brian Glendenning, said it was likely Council, as development consent authority, would take further legal action against the landfill operator.
Council’s Mangrove Mountain Advisory Committee meetings have recently been closed to the public and members cannot speak with the media about committee matters. Mountain Districts Association (MDA) spokesperson, Dr Stephen Goodwin, said that the community was surprised to learn of the legal proceedings. “There are three parties with legal responsibilities for Mangrove Mountain Landfill: the site operator, Verde Terra Pty Ltd; Central Coast Council (development consent); and, the EPA (licensed activities),” Dr Goodwin said. ‘It is clear to us that the parties had been circling this issue for the past year or so, although Central Coast Council had made public its intention to take the operator to Court, but this could be placed in doubt with the latest action in the LEC,” he said.
“MDA reiterates that the community’s goal is to have the landfill closed down and remediated. “We have major concerns that the events of 2014 in the first Land and Environment Court case will be repeated with a decision made, behind closed doors, which benefits vested interests, but which fails to address public concerns about drinking water quality and the underlying aquifer.” According to Dr Goodwin, in June, 2017, Council told MDA it had written to Verde Terra advising that matters around the development consent would need to be resolved before the landfill could recommence operations, and that this was a matter for the site operator to address with Council and the Land and Environment Court. “To date, MDA is not aware that the site operator has advised Council of its intentions in relation to this matter,” he said.
“The ball has been in the site operator’s court and it would appear to have done nothing that would result in the landfill being able to re-open, up until now. “It is possible that Verde Terra believed that it may end up in the LEC anyway and decided to take the initiative by going on the offensive with its own action, in the hope of getting a judgment approving its application to vary EPL 11395. “Seeking to have the EPL varied still ignores the unresolved development consent issue. “As the EPL is meant to reflect the Consent, it is difficult to see how a varied licence could enable the operator to re-open the landfill.” In May, 2017, the EPA told MDA that it proposed to write to Council noting it would be able to license the proposed activity based on the revised plans, and seeking advice from Council as to whether the revised plans could be implemented in accordance with the 2014 Consent Orders (LEC 40900 of 2012).
The EPA said it would not proceed to vary the licence until Council could advise them on this matter and the EPA received and considered a valid application to vary the licence from the licensee (Verde Terra Pty Ltd). “The last statement is at odds with MDA’s information. “MDA believes that an application to vary EPL 11395 was made by Verde Terra in September, 2015, almost three years ago,” Dr Goodwin said. “The EPA’s advice shows again that the EPL is subservient to the Consent.
“It begs the question, did Council respond to the 2017 request from the EPA? ‘Mountain Districts Association is aware of the strong community interest in this issue, not just in the Mountain Districts, but by concerned residents of Gosford and Wyong, who are aware of the threat posed by the Landfill to their drinking water supply and groundwater. “MDA is following this Court action with concern. “It does not want to be shut out of the process again,” Dr Goodwin said. The NSW Auditor General’s damning performance audit report, ‘Regulation of Water Pollution of Drinking Water Catchments and Illegal Disposal of Waste’, reported that deficiencies identified meant the EPA could not be confident that it conducted compliance and enforcement activities consistently across the state, and that licensees were actually complying with their licence conditions or the Act.
It also found that the EPA does not monitor the consistency or quality of its regulatory activities conducted across the state. Another finding was that the EPA cannot be sure that correct licence conditions have been set for discharges into water catchments. The EPA’s unreliable detection practices and weaknesses in its governance approach limits its effectiveness to consistently apply regulatory action, according to the report. “Given our finding that the EPA does not effectively detect breaches and noncompliance, there is a risk that it is not applying appropriate regulatory actions for many breaches and noncompliance,” it said.
“The EPA did not achieve the strategic target of a 30 per cent reduction, over four years, in instances of large-scale illegal dumping”, including on the Central Coast. “The EPA does limited monitoring of its performance in protecting the environment. The Auditor-General made seven recommendations to address the EPA’s deficiencies. “The only way these recommendations can be addressed is if the current Minister is not in charge of implementing them,” Ms Sharpe said.
“This report has found that NSW’s environment protection agency cannot fulfil its basic functions – functions that the community relies on to protect our environment and human health,” she said. “When an agency does not know how much pollution is going into our waterways when the quality of our drinking water is declining when illegal dumping is increasing, and when clear breaches or deliberate pollution are occurring, and the agency is doing nothing, it is time for the Premier to step in.” The first directions hearing for Verde Terra v EPA is set down for July 20, in Sydney.
Sources: Media statement, Jul 1 Supreme Court of NSW media Media release, Jul 2 Stephen Goodwin, Mountain Districts Association Media statement, Jul 4 Central Coast Council media Media statement, Jul 4 Environment Protection Authority media Media release, Jun 28 Bronwen Matherson, office of Penny Sharpe Jackie Pearson, journalist