Director-General of the Environmental Protection Agency v Hamcor Pty Ltd & Ors [2010] QPEC 1 (2010) QPELR 416

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Director-General of the Environmental Protection Agency v Hamcor Pty Ltd & Ors [2010] QPEC 1 PARTIES: TERRY WALL, DIRECTOR-GENERAL OF THE ENVIRONMENTAL PROTECTION AGENCY (applicant) v HAMCOR PTY LTD ACN 010141 429 (first respondent) WILLIAM MARTON HAYWARD (second respondent) DONALD CHARLES HAYWARD (third respondent) ANNA MARIE HAYWARD (fourth respondent) TERRENCE ARTHUR ARMSTRONG (fifth respondent) FILE NO/S: BD 3154 of 2006 DIVISION: District Court PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 14 January 2010 DELIVERED AT: Brisbane HEARING DATE: 13 January 2009 JUDGE: Robin QC DCJ ORDERS: As per judgment CATCHWORDS: ENVIRONMENTAL PROTECTION ACT 1994 – amendment of enforcement orders dealing with contaminated site requiring mediation COUNSEL: M Hinson SC for the applicant J Hunter SC with W Cochrane for the respondents SOLICITORS: Crown Law for the applicant Everingham Lawyers for the respondents [1] HIS HONOUR: The Court makes an order in terms of the initialled draft. It is ordered that: -- 1 of 6 -- 2 1. The Respondents must use their best endeavours to discharge water collected in the Binary dams in accordance with the order of Judge Robin QC dated 6 August 2009 and paragraphs 22 and 23 of the order of Judge Rackemann dated 10 October 2007 (as varied) (the terms of which are set out below in the Appendix) including, but not limited to, utilising the Respondents' trade waste agreement with Moreton Bay Regional Council to remove water in the Binary Site dams as soon as such water achieves the water quality discharge levels under that agreement and there is a sufficient volume of water to justify a discharge; 2. Notwithstanding paragraph 5 of the order of Judge Robin QC dated 6 August 2009 and paragraphs 22 and 23 of the order of Judge Rackemann dated 10 October 2007 (as varied) (the terms of which are set out below in the Appendix), where contaminated water is, in the opinion of the Applicant or its authorised agents, likely to be or is being released or removed from the Binary Site other than in accordance with the above mentioned orders due to an inability of the Binary Site infrastructure to cater for any influx of water or other material, the Respondents or their agents shall:- (a) At the direction of the Applicant (including direction as to the volume to be discharged) and under the Applicant's specific supervision, be permitted to pump stormwater from the Binary Site dams (the dams on Lot 69 on CP867910 and Lot 101 on CP895174) to the Applicant's Site dam (the large treatment dam on Lot 15 on SP102757) on the terms specified in paragraphs 3 and 4; (b) Not be specifically required to remove contaminated stormwater from the Binary Site dams by a regulated waste transport vehicles to a waste management facility except where the Applicant's Site dam can not be made available to receive such contaminated stormwater. 3. The Respondents will pay all costs associated with pumping, receiving and disposing of contaminated stormwater received into the Applicant's Site dam from the Binary Site dams, being:- (a) The costs of hiring and operation for any pumps and associated equipment to allow pumping and controlled and safe discharge to occur; (b) An amount of $3.00 per kilolitre of water pumped from the Binary dams (payable to -- 2 of 6 -- 3 Applicant) the volume of which will be calculated in accordance with the formula "V = t x d max " where: (i) V = the volume of water pumped; (ii) T = time that the control valve on the pipe is open (which is to be located on the Applicant's Site and to be operated only by the Applicant or its authorised agents) and water is being discharged through it; (iii) D max = the pump manufacturers maximum pumping rate specified in the design specifications of the pump used. (c) Any additional treatment or testing costs required for water pumped from the Binary Site dams to achieve the water quality discharge levels in accordance with Applicant's trade waste agreement with Moreton Bay Regional Council current at the time of the discharge to trade waste; (d) The cost to the Applicant of discharging from the Applicant's Site dam the water received from the Binary dams in accordance with Applicant's trade waste agreement with Moreton Bay Regional Council current at the time of the discharge to trade waste. 4. Paragraph 2 of this order is effective until 1 June 2010. 5. On 2 June 2010, and as quickly as is reasonably practicable thereafter, the Respondents will at its own cost drain water then remaining in the Applicant's Site dam (whether or not that water was pumped into the Applicant's Site dam from the Binary Site dams) and dispose of such water under the supervision of the Applicant:- (a) Where any such volume of water is able to be disposed of in accordance with Applicant's trade waste agreement with Moreton Bay Regional Council current at the time of the discharge to trade waste, in accordance with that agreement (to remove doubt this may be carried out by the Applicant on the Respondents' behalf); or (b) In accordance with paragraphs 22 and 23 of the order of Judge Rackemann dated 10 October 2007 (as varied); or (c) By pumping into the Binary dams is such dams then exist and satisfy the standards in paragraphs 15, 16 and 17 of the order of Judge Rackemann dated 10 October 2007 (as varied). 6. The Applicant will:- -- 3 of 6 -- 4 (a) Use its best endeavours to discharge from the Applicant's Site dam water pumped from the Binary Site dams in accordance with Applicant's trade waste agreement with Moreton Bay Regional Council current at the intended time of the discharge to trade waste as soon as such water achieves the water quality discharge levels under that agreement and there is a sufficient volume of water to justify a discharge; (b) Invoice the Respondents for any costs mentioned in paragraph 2 hereof as soon as practicable after the cost has been incurred, and in the case of the cost mentioned in paragraph 3(b), as soon as practicable after the water is received in the Applicant's Site dam. 7. All costs recoverable by the Applicant from the Respondents in accordance with this order are recoverable as a debt due and payable to the State of Queensland. 8. In the event that a Remediation Action Plan is not approved by Applicant for the Binary Site by 31 January 2010, the Respondents have liberty to apply upon 3 days notice to the Applicant to seek a variation of these orders. Appendix Paragraph 5 of Order of Judge Robin QC dated 6 August 2009. "The Respondents or their agents must not wilfully or negligently release or remove contaminated stormwater from dams, sumps or associated conduits on the land the subject of these proceedings other than in accordance with paragraphs 22 or 23 of the order of His Honour Judge Rackemann dated 10 October 2007 (as varied) unless otherwise authorised by the Applicant or the local government." Paragraph 22 of Order of Judge Rackemann dated 10 October 2007 (as varied). "For the purposes of this Order, any removal and/or transport of the material (including solids, liquids, sludges, tanks, demolished building materials, contaminants, contaminated stormwater or contaminated materials) from the land, must only be carried out by a regulated waste transporter holding all approvals required by the Environment Protection Act 1994." -- 4 of 6 -- 5 Paragraph 23 of Order of Judge Rackemann dated 10 October 2007 (as varied). "For the purposes of this Order, any materials (including solids, liquids, sludges, tanks, demolished building materials, contaminants, contaminated stormwater or contaminated materials) removed from the land, must only be taken to a waste management facility holding all approvals required by the Environmental Protection Act 1994 for the storage, treatment, disposal, recycling or reuse of the materials." [2] The circumstances underlying this proceeding and the hearing set down for yesterday and today are dramatic. The first respondent operated a chemical plant at an industrial estate at Narangba, known by the name Binary. Given the nature of activities there, it's unsurprising that the applicant was fairly closely involved in monitoring circumstances from the outset. [3] A catastrophic fire occurred in the first respondent's premises on the 25th of August 2005 which resulted in consternation regarding possible consequences of toxins which had become relatively uncontrolled for the environment and indeed, for human health. [4] The Court became involved by way of making enforcement orders under section 507 and following of the Environmental Protection Act 1994; detailed orders were made by Judge Rackemann on the 10th of October 2007 and varied by me on the 6th of August 2009. [5] The processes which have led to identification of the appropriate ways remediate the site to render it available for future use have been protracted. [6] It has been much more than a case of identifying materials on site which are problematic and arranging their removal to places of safe storage. Until that removal occurs, there is concern about the effect of storm waters in large storm events which wash materials off the site, if dam storage on it proves inadequate, via waterways, the principal of which has been called Tributary D, which shortly connect with Hayes Inlet. Fortunately, the applicant’s department has dam storage on an adjoining site of its own which may be used in need, on a costs recovery basis. [7] There is considerable scientific disagreement as to the appropriateness of the concerns expressed by the applicant. The simple proposition that storm waters, in large rainfall events, may be a blessing as they produce dilution is challenged. In this context, in heavy -- 5 of 6 -- 6 rainfall events, materials that are usually “safely” located may be dispersed, exacerbating the situation. [8] The Court has responsibilities under the legislation referred to, to be satisfied of certain matters, going to its jurisdiction and identification of orders, if any, appropriate to be made. The provisions, in my view, impose a continuing obligation. Keeping the situation under review is obviously appropriate in the circumstances such as the present, as things may change and the parties' best judgment as to how to deal with circumstances may change. [9] The Court has been relieved of having to adjudicate upon the matters of difference between the parties which involve some important scientific questions. A detailed “consent order” has been worked out of considerable negotiation. Nonetheless, the Court ought not to make orders as a means of resolving the situation, unless satisfied that orders the parties agree on fall within the range of what the Court might consider appropriate. There's no difficulty in that regard at present. [10] There will be orders in terms as set out above. There is plainly going to be required a good deal of monitoring that does not appear likely to involve the Court in the close supervision of conduct of parties which the Court normally tries to avoid. [11] The Court is available for future recourse to it, which may be necessary. As circumstances which may lead to the Court's involvement, acknowledged in today's order, include the non-finalisation of the remediation action plan by the end of this month and also the situation envisaged as rising on the 2nd of June 2010. That's all thanks. ----- -- 6 of 6 --