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An important court case

An important decision was handed down by the NSW Land and Environment Court on 2 August this year.

His Honour Brian Preston CJ, among other observations concluded the following in relation to the decision of "asbestos waste" under the NSW environment legislation. The critical passage is reproduced below:

315. I find that the trial judge did err in finding that the issue of whether waste (or material) “contains asbestos” is “a matter of fact and degree… and must depend on the nature of waste and the volume”. This issue needed to be addressed in order to determine, first, whether the activity of stockpiling material on Lot 8 was the scheduled activity of “waste storage” in cl 42 of Sch 1 to the POEO Act, and, secondly, whether the excavated natural material exemption applied so as to make that activity a non-scheduled activity for the purposes of the POEO Act.
316. As to the first, the trial judge found that the activity of stockpiling the material was not the scheduled activity of “waste storage” because she found that “the five tonne limit in cl 42(3)(a) of Sch 1 for the storage of asbestos waste was not demonstrably triggered” (at [523]). This finding depended on the trial judge’s construction of the term “asbestos waste”.
317. The defined meaning of “waste that contains asbestos” does not import degrees of inclusion. The ordinary meaning of “contained” is “to have as its contents or constituent parts; comprise; include” (Macquarie Dictionary 5th Edition). Waste can include or have as its contents or constituent parts asbestos, regardless of how much asbestos is included in the waste. Whether waste “contains” asbestos is not dependent on the absolute amount of asbestos in the waste or the relative proportion of the amount of asbestos to the volume of waste.
318. As the EPA submitted, this wider construction of “asbestos waste” accords with the purpose of regulation of asbestos waste, including to protect, restore and enhance the quality of the environment (s 3(a) of the POEO Act) and to reduce risk to human health (s 3(d)). Very small amounts of asbestos can pose unacceptable risks to human health and the environment. Here, the trial judge found that the total amount of asbestos in the bulk samples was 634.64 grams (at [521]). Whilst that might be “incredibly minor” in comparison to the upper estimate of 44,000 tonnes of materials in the stockpiles (at [421]), it nevertheless wassufficient to cause severe risk to human health if people were to be exposed to the asbestos.

In essence this suggests that materials containing as little as 0.0000014% asbestos (even if it is bonded asbestos) still constitutes "asbestos waste" within the meaning of POEO Act.

His Honour's choice of wording of a "severe risk" is clearly inconsistent with enHealth's 2013 characterization which equates "high risk" as that were a worker (builder in this case) experiences "frequent exposure to high levels of asbestos" in the order of "100s to 1000s times the background levels" and on a "frequent" basis.

It is difficult to imagine how 0.0000014% content could generate a risk in the order suggested.

This may require publishing a response on the appropriateness of the language adopted and to state categorically the nature of the risk as supported by scientific evidence (and agreed between all health departments).

The full case can be accessed at:

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie - NSW Caselaw 

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