Tyres and fires: Landfill incurs large fines following use of shredded tyres as a landfill cover following fire

Bald Hill Quarry Pty Ltd (BHQ) has been fined $341,000 and ordered to pay the EPA’s costs of over $230,000 by the NSW Land and Environment Court for offences relating to the use of shredded rubber tyres as landfill cover material, in the absence of lawful authorisation.

K?e?y ?T?a?k?e?a?w?a?ys?

·?????? The Land and Environment Court has confirmed that there is a need for strict compliance with environmental licence conditions.

·?????? BHQ’s argument that the EPA was partially to blame for the commission of the offences due to a delay in approving a new leachate liner was rejected and in fact resulted in the Court finding that BHQ denied accountability for its offending, resulting in a higher penalty. ?

B?a?c?k?gr?o?u?n?d?

BHQ owned and operated a landfill and quarry pursuant to an Environment Protection Licence (EPL), which permitted it to carry out the scheduled activities of ‘extractive activities’ and ‘waste disposal (application to land)’. The EPL allowed BHQ to store and dispose of by application to land 40,000 tonnes of waste annually, including shredded tyre waste. The EPL also required that cover material must be Virgin Excavated Natural Material (VENM) unless otherwise approved by the EPA.

BHQ made several requests of the EPA for permission to use shredded rubber as a daily cover, however all were denied on the basis that the material:

·?????? formed a permeable layer whereas the cover should be somewhat resistant to rainfall infiltrating downwards and gas / odours leaking upward;

·?????? could not be compacted as well as soil and so would be less stable; and

·?????? presented a fire risk if the landfill were to catch fire.

BHQ nevertheless used shredded rubber tyres instead of VENM as daily cover, contrary to conditions of its EPL, between October 2021 and May 2022.

At 2:00am on 9 May 2022, a passing motorist called ‘000’ to report the fire. The RFS arrived at the site shortly thereafter and notified BHQ of the fire. A BHQ employee arrived at the property at approximately 3:30am. The EPA were then notified at 7:00am. Fire and Rescue NSW, the local Council and the relevant Health District were notified between 7:30am and 8:30am.

When the EPA arrived at the property, they saw flames up to one metre high and a fire front approximately 80 meters long. They also observed that water was not effectively smothering the fire and that there was a great deal of smoke.? The EPA also saw that a layer of shredded tyre waste was covering sections of the landfill and that there was no obvious use of VENM as a daily cover.

The EPA quickly issued a Clean-Up Notice requiring BHQ to engage an expert to prepare an Extinguishment Plan, and then a compliance report.

The surface fire was extinguished by noon on 9 May 2022 through the application of water, foam, crusher dust and crushed granite material from BHQ’s quarrying operations. On 24 June 2022, BHQ reported to the EPA that, after four weeks of monitoring the burnt area, there was no evidence of subsurface fires.

P?r?o?c?e?e?d?i?n?gs?

The EPA alleged that BHQ committed a number of offences under the POEO Act, specifically:

·?????? breaching condition O5.3 of its EPL by failing to use VENM to cover exposed landfill waste, contrary to section 64(1);

·?????? breaching condition O1.1 of its EPL by not carrying out licensed activities in a competent manner by using shredded rubber tyres as a daily cover instead of VENM, contrary to section 64(1);

·?????? dealing with the shredded rubber material in a manner that caused air pollution, contrary to section 126(1);

·?????? negligently disposing of waste in a manner than harmed, or was likely to harm the environment, contrary to section 115(1); and

·?????? failing to notify the relevant authorities immediately after becoming aware of the fire, contrary to section 152.

The parties disagreed on the cause of the fire, which the Court ultimately determined was by spontaneous combustion. The EPA alleged that the use of shredded rubber as a daily cover instead of VENM increased the risk of harm that would be caused if a fire occurred, and BHQ ultimately conceded that its use of the material meant that the landfill did not have the benefit of the suppressive effect of a layer of VENM.

BHQ made several arguments in defence of its use of the material, stating it had operational justifications for using shredded rubber over VENM. In particular, it argued that:

·?????? there were practical difficulties in using VENM in wet weather as a stable surface for landfill delivery trucks;

·?????? the rubber was burnable but not spontaneously combustible, unlike other waste types;

·?????? the rubber satisfied the requirements for daily cover and was fit for purpose; and

·?????? it did intend to leave the waste cell uncovered by VENM in the long-term, but this was a temporary measure pending approval to increase the height of the leachate liner.

BHQ also contended that the EPA’s delay in approving an increase in the leachate liner, resulting in waste being mounded into a battered slope away from the quarry walls, contributed to the spread of the fire. The Court rejected this argument, finding that BHQ’s reliance on this delay only further demonstrated their disregard of the need to comply with its licence conditions and increased the objective seriousness of its offending conduct.

J?u?d?gm?e?n?t?

The Court ultimately held that, while the fire was most likely caused by spontaneous combustion and not by the shredded rubber tyres themselves, the risk and effect of the fire was exacerbated by the rubber cover due to its combustible quality.

The Court referred to previous decisions in which it was said that the strict liability nature of many of the offences under the POEO Act, together with the size of the maximum penalties imposed, are indicators of the public expression by Parliament of the gravity of those offences. The Court stated that there is a need for strict compliance with EPL conditions as an EPL ‘sanctions dealings in waste by providing guardrails to avoid and minimise any environmental harm occasioned by its creation, transport, disposal and storage’, and a failure to observe the conditions of an EPL undermines the objects of the POEO Act.

The Court held that the fact that BHQ ‘deliberately defied the conditions of its licence and the repeated advice of the EPA’ which escalated the seriousness of the commission of each of the offences. The Court also held that the delay in notifying the various regulatory authorities ‘fundamentally undermined the regulatory regime’ due to the delay in relevant authorities becoming aware of the fire.

The maximum penalties for each of the offences were as follows:

·?????? $1,000,000 for an offences of breaching licence conditions under to s 64(1);

·?????? $1,000,000 for the air pollution offence under s 126(1); and

·?????? $2,000,000 for negligently disposing of waste under s 115(1)

·?????? $2,000,000 for failing to notify the relevant authorities under s 152.

The Court found that the licence breaches and waste disposal offences committed by BHQ were objectively serious as they were committed deliberately, caused transient environmental harm, and had the potential to cause further environmental harm, including harm to human health. The air pollution offence was also found to be serious, but not as serious as the other offences as it was not committed with a heightened state of mind. The notification offence was found to be in the low-range of seriousness.

The Court also found that BHQ’s conduct during the sentencing hearing reflected a lack of acceptance of and accountability for its offending, particularly as it argued that it could not comply with its licence obligations due to the EPA’s delay in approving an increase to its upper wall quarry liner.

P?e?n?a?l?t?i?e?s?

The Court ultimately fined BHQ for a total of $341,000, comprising:

·?????? $200,000 for the licence breaches;

·?????? $100,000 for the waste disposal offence;

·?????? $25,000 for the air pollution offence; and

·?????? $16,000 for the notification offence.

It was also ordered to pay the EPA’s costs totalling $236,250, amounting to a total financial consequence exceeding $577,000.

Published on 13 November 2024