EPA snubs quarry legal eagles
TWO of the best legal minds in Australia cannot convince the NSW Environment Protection Agency to give a Corindi family business a green light to continue to supply road base to the Pacific Hwy upgrade.
Since 2010 Joe and Louise Cauchi's business has supplied high quality road base to the Sapphire to Woolgoolga section of the upgrade, but hit what the family thought was a minor snag three months ago.
Company managing director Mrs Cauchi became aware the company had exceeded the limits of its licence and contacted the EPA to remedy the situation. She said it was an oversight as the family operated other quarries around the state working on big projects, like the Hume Hwy upgrade.
"We've never had a 'little licence' like this one before," Mrs Cauchi said.
"When we noticed what was happening, we contacted the EPA to find out what we needed to do to remedy the problem."
Instead of a quick fix the Cauchis found a forest of red tape. She said the quarry had a DA from the defunct Ulmarra Shire Council, but this document had been missing since control of the region switched to the Coffs Harbour City Council.
"The EPA would not accept this and have told us we need to get development approval from the council before it will give us a licence," Mrs Cauchi said.
She said despite crippling costs and the delay in production they had fulfilled most of the reports required for a DA. Desperate to get some revenue into the company for the 35 employees remaining on the books, the company applied for a licence, but the EPA knocked them back again.
In September company solicitor Warren Wells made what he thought was a crucial breakthrough when he discovered Clause 94 of SEPP 2007, which allowed quarries supplying government infrastructure projects to be given a licence without prior DA approval. "Clause 94 covered the Cauchis' situation exactly, so I wrote to the EPA informing them of what it said," Mr Wells said. "They sent me a four-line reply saying they didn't think clause 94 applied and the company needed DA approval."
Mr Wells said it appeared government bodies like the EPA and RMS thought clause 94 was too good to be true. "I've had meetings with them and the RMS and I tell them about clause 94 and they say 'it couldn't mean that'," he said.
Mr Wells asked two of Australia's most eminent barristers in this field, Peter McEwen SC and Timothy Robertson SC, to give their opinions. He said both agree clause 94 covers the Cauchis' situation and they had supplied their opinions in writing to the EPA.
"On Wednesday the EPA sent me the same four-line reply they sent me the first time," Mr Wells said.
He said there had never been an environmental complaint or a complaint from neighbours.
The EPA's full response:
The Environment Protection Authority (EPA) has defended the suspension of the licence for Corindi Quarry given that the EPA has provided repeated warnings about significant breaches of their extraction licence limits that have occurred repeatedly since 2011.
EPA Chair and CEO Barry Buffier said that the operators had seriously breached the extraction limit on their licence in all three reporting periods since the licence was issued in 2011. For the
2012-13 reporting period that breach was more than six times their allowable limit.
"The operators of Corindi Quarry are licensed to extract 50,000 tonnes of material in a reporting year and for 2012-13 they extracted more than 368,000 tonnes - that is more than six times their allowable limit," Mr Buffier said.
"Illegally operating at this significantly larger scale without proper development consent is not only unfair to neighbouring legitimate quarries who are doing the right thing but can also have serious impacts around air, dust, water and noise, as environmental controls for the larger operation have not been assessed and put in place.
"While the EPA regrets the impact this has on the workers caught in the middle it cannot allow a company to operate unlicensed and illegally, potentially impacting on the environment and disadvantaging similar companies and their employees who are doing the right thing."
Mr Buffier rejected claims by the operators that they could have an exemption under state planning laws to continue operations without development consent or an appropriate licence.
"The EPA and the Roads and Maritime Service, who is running the highway upgrades in the area, each sought independent legal reviews of this claim by the operators and have been advised that the exemption does not apply in this case," Mr Buffier said.
"As such the EPA cannot legally vary the site's environment protection licence until appropriate development consent is granted by local council under the Environment Planning and Assessment Act.
"The EPA has engaged with the Quarry operators since last year trying to resolve this issue and despite repeated assurances since January 2013 that they were in the process of gaining necessary development approval for the increased scale of operation this has not happened.
"Subsequently, after due warning, in August this year EPA issued a notice to suspend the company's environment protection licence. This included a statutory 30 day appeal period to which the operators also did not respond.
"The quarry is now suspended from operating until the operators either attain the necessary development approval from council or until their new 50,000 tonne reporting period starts in February next year."
The EPA's first media release about the licence suspension can be found here: http://www.epa.nsw.gov.au/epamedia/EPAMedia13083001.htm