> Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Panther Resources Pty Ltd & Anor [2003] NSWLEC 192 APPLICANT Environment Protection Authority PARTIES : FIRST RESPONDENT Panther Resources Pty Ltd (A.C.N. 093 302 428) SECOND RESPONDENT Andrew Thaler FILE NUMBER(S) : 40261 of 2002 CORAM: Cowdroy J KEY ISSUES: Environmental Offences - Prosecution :- operating waste facility - hazardous waste - lead batteries stored in manner that leakage can occur into stormwater drainage systems and rivers - no licence to permit storage of dangerous goods - no appearance by respondents LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 48, s 144, s 211, s 252, Sch 1 CASES CITED: DATES OF HEARING: 16/08/2002 EX TEMPORE JUDGMENT DATE : 08/16/2002 APPLICANT Ms J. Jagot (Barrister) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40261 of 2002 Cowdroy J 16 August 2002 Environment Protection Authority Applicant v Panther Resources Pty Ltd (A.C.N. 093 302 428) First Respondent Andrew Thaler Second Respondent Judgment Facts 1 In this matter the applicant seeks declarations and orders against each of the respondents. The evidence is contained in the affidavits of various witnesses. I shall not state the evidence in full but rather indicate the material relied upon by the applicant. 2 These are proceedings brought pursuant to s 252 of the Protection of the Environment Operations Act 1997 ("the Act"). There is no question arising in this case of any criminal prosecution or the imposition of any criminal penalty. 3 The respondents have chosen not to appear in Court today, although Mr Christopher Thaler, who is the father of the second respondent has attended. Mr Christopher Thaler is not a director of the first respondent. Accordingly the proceedings will be considered as an ex parte hearing. 4 The applicant alleges that the respondents are operating a waste facility as defined in the Act at premises known as 51 Hincksman Street, Queanbeyan. Those premises are occupied pursuant to an expired lease by the first respondent. The second respondent is a director of the first respondent. 5 The evidence is contained in the affidavit of Craig Robert Jones sworn 25 June 2002, Martina Sangster sworn 12 June 2002, Ross Hyne sworn 4 July 2002 and 29 July 2002, and Simone Maria Stimpson sworn 30 May 2002 and 4 July 2002. That evidence overwhelmingly establishes a prima facie case against the respondents. 6 The evidence establishes that the material being stored on the premises consists substantially of used lead batteries, cabling and other industrial products. The batteries are stored in such a manner that leakage can occur from the premises into stormwater drainage systems and into the Queanbeyan River catchment. 7 The evidence of Ross Hyne sets out the sampling that has been undertaken. His affidavit contains scientific readings from various sampling points and in summary he concluded:- It is my opinion that water and sediment containing the heavy metals as occurred in this case, should not be released into natural waters because of the potential for the long term contamination of the receiving waters. Mr Hyne also concluded that heavy metals being elements do not break down or biodegrade over time. 8 The evidence of Martina Sangster establishes that prima facie the materials being stored on the premises are hazardous materials. Her affidavit of 12 June 2002 has provided classifications for lead acid batteries which are stored on the premises. Such batteries are categorised within the guidelines entitled, "Environmental Guidelines: Assessment Classification and Management of Liquid and Non Liquid Wastes" a publication of the Environment Protection Authority which was tendered in evidence as Exhibit B and named the "Waste Guidelines". The definition of waste as contained in the Act makes specific reference to such guidelines and to products of a type that are referred to in the evidence as being stored on the subject property. 9 Section 48 of the Act makes provision for licensing of premises where dangerous goods are sought to be stored. No licence has been issued for the premises at 51 Hincksman Street, Queanbeyan. 10 Section 144 of the Act imposes penalties for illegal use of premises where they are not licensed for the purposes of carrying out processes dealing with waste. 11 The Court is satisfied on the evidence that the relevant criteria entitling the applicant to the declarations and orders sought has been made out. 12 The evidence establishes that previous notices issued to the respondents have been fruitless. Accordingly the applicant has found it necessary to come to this Court to obtain orders which will ensure compliance with the statutory provisions. 13 As contained in Sch 1 of the Act, hazardous waste is relevantly defined as meaning anything liquid or non liquid that is otherwise assessed and classified as hazardous waste in accordance with the procedures set out in the "Waste Guidelines". Table 4 of the "Waste Guidelines" lists corrosive substances. In Ms Sangster's opinion, such batteries are corrosive substances and are therefore "hazardous waste" as defined in the Act. 14 Table A3 of the "Waste Guidelines" sets out contaminant threshold values for waste classification of non-liquid waste. Under the heading of the contaminant "lead" the reading of 400 is specified. The waste in the present case is classified as hazardous waste. 15 The respondents were ordered to file and serve affidavits to raise any defence. That order was made on 5 July 2002 and the date for compliance was 31 July 2002. No evidence of any kind has been filed in the Court. Secondly, the annexures to the affidavits clearly demonstrate that the respondents either have no comprehension of the environmental laws, or deliberately choose not to abide by them. 16 I consider that the respondents have had ample opportunity to take any steps to raise a valid defence before today. Accordingly the Court has declined a request made in writing that the proceedings be adjourned because it was inconvenient to the respondents to appear in Court today. The Court will therefore make the orders sought in the proceedings with variations. Orders 1. In respect of the class 4 amended application the Court makes the declarations in paragraph 1 and paragraph 2. Since the evidence establishes that the respondents have failed to comply with the requirements of s 211 of the Act, the Court will make the declaration in paragraph 5. 2. The Court makes the order in paragraph 6 of the class 4 amended application; 3. The Court makes the order in paragraph 8 of the class 4 amended application, changing the date of 14 days to 30 days; 4. The Court makes the order in paragraph 9 of the class 4 amended application; 5. The Court makes the order in paragraph 10 of the class 4 amended application but in lieu of 21 days inserts 45 days; 6. The Court makes the order in paragraph 11 of the class 4 amended application; 7. The Court makes the order in paragraph 12 of the class 4 amended application, substituting 45 days instead of 21; 8. The Court makes the order in paragraph 13 of the class 4 amended application; 9. The Court makes the order in paragraph 14 of the class 4 amended application, substituting 60 days instead of 25 days; 10. The Court makes the order in paragraph 15 of the class 4 amended application; 11. The Court suspends the orders made today for a period of 28 days; 12. The Court orders that the exhibits be returned. 17 His Honour: Now Mr Thaler, what that means is this, if your son, or the company wish to challenge the Court's orders they can do so within 28 days. Otherwise, the orders take effect. I just want to warn you in case you don't know that there are serious penalties for a breach of the order, including fines and/or imprisonment for the directors of the company if the Court orders made today are not obeyed, unless the orders are varied or set aside. In summary, they can't be ignored. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.