Appeal: Former Port Stephens mayor Bruce MacKenzie and son Robert at Stockton. The NSW Environment Protection Authority will appeal a court decision that found Macka’s Sand at Salt Ash was not operating an unlawful waste dump. THE state’s environment watchdog will appeal a Land and Environment Court decision that slammedtheattempted prosecution of former Port Stephens mayor Bruce MacKenzie and his son for running an unlawful waste dump.
The NSW Environment Protection Authority confirmed the appeal on Tuesday, nearly four weeks after the decision against it that saved Bruce and Robert MacKenzie’s company Grafil a possible $12 million in asbestos waste disposal fees.
Grafil and Robert MacKenzie, who manages Macka’s Sand at Salt Ash,were charged with allowing trucks to unlawfully dump Sydneydemolition waste at the Salt Ash site between October 2012 and May 2013.
But during hearings in February and March this year the EPA was forced to reduce the estimated amount of material by almost half, from nearly 69,000 tonnes to 35,500 tonnes after Land and Environment Court Justice Nicola Pain found its assessment was “deeply flawed”.
Justice Pain found the EPA’s case “consistently failed to recognise” a 2009 sand extraction approval that included road constructionon the MacKenzie property.
The approval provided Grafilwith a defence thattens of thousands of tonnes of Sydney demolition materialwas stockpiled to build the roads, rather than being dumped at an unlawful waste facility.
Justice Pain ruled the material was not waste as defined under NSW environment law, was temporarily stockpiled and not “deposited on the land”, and there was no requirement for Grafil to hold an environment protection licence.
Justice Pain also foundRobert MacKenzie not guilty after he was charged with executive liability for operating a waste facility without lawful authority.
Justice Pain also rejected an EPA assessment that two large stockpiles of possibly 44,000 tonnes of demolition material was “special waste” because it contained asbestos, after Grafil successfully challenged sampling and testing methods.
The court heard634 grams of asbestos was found in575 kilogramsof material sampled, which Justice Pain described as “minor” and “very small”, while acknowledging “I am not seeking to downplay the significance of asbestos and attendant health risks”.
Any risk tohuman health was reduced if the material was used as road base, as intended, and was not screened, Justice Pain.
The EPA did not comment after confirming the appeal. Bruce MacKenzie declined to comment until after the appeal is determined.