By James Prest
Environmental activists aiming to "blow the lid on the pollution licensing system in New South Wales" have been permitted to begin a court action against the NSW Environment Protection Authority and pulp and paper manufacturer North Broken Hill (NBH) in an important decision of the NSW Land and Environment Court.
According to A.J. Brown, the law student and environmental activist who is the nominal plaintiff in the case, the implications are far reaching. "This case is not about just another polluting factory. There are 3000 licences to pollute in NSW, and the entire system is our target", he said.
The case will continue on September 21 as the Environmental Defender's Office seeks to test the legality of the EPA's latest pollution control policy, "prosecutable reality".
"Prosecutable reality" was invented by former environment minister Tim Moore and the EPA chairperson, Professor John Niland, according to Brown.
Brown said that the EPA has been systematically raising the permitted quantities of pollutants in companies' pollution licences whenever they come up for renewal. "Prosecutable reality has legalised much current pollution, regardless of whether it is preventable or not", he said.
The EDO is using a pulp mill operated at Shoalhaven by Associated Pulp and Paper Mills (APPM), a subsidiary of North Broken Hill, as the test case.
Mercury and other heavy metals have been recorded in the river below the mill, and several "fish kills" have occurred, according to Brown.
He described the licence granted by the EPA to APPM as a "joke", saying that it failed to set any prohibited levels of organochlorine compounds, including the notorious dioxin family. However, he said it was impossible to attribute sole responsibility for the damage to APPM because of the EPA's failure to adequately monitor pollution levels in the area.
Brown described "prosecutable reality" in the context of the Shoalhaven mill. An earlier licence permitted effluent with a maximum biochemical oxygen demand (BOD) of 50 mg/litre. Under the new regime, the maximum BOD level of effluent permitted in a new licence issued in October 1991 rose to 720 mg/litre.
In court the EDO argued the EPA was acting in breach of the Pollution Control Act. It argued that the act prohibits the EPA from considering economic criteria in licence decisions. Yet, according to Brown, this is precisely what is occurring under the new policy.
If the EPA's decision of October 1991 to grant APPM a pollution licence is held to have involved a breach of the act, then the licence will be ruled invalid and it is likely that the policy of "prosecutable reality" will grind to a halt, said Brown.
Concerned about the June 26 decision which allowed Brown and the EDO to begin proceedings, the EPA and NBH appealed. However, on July 27 the appeal failed. In response to a claim by lawyers for EPA that an in-depth hearing was "not in the public interest", Chief Justice Stein said: "I have difficulty in comprehending how the EPA can seriously submit that a
proceeding which alleges a serious breach of the Pollution Control Act ... is not in the public interest".
This is the first time a private citizen has convinced the NSW courts that a breach of pollution laws should be investigated.
Brown recounted that, despite his poverty-stricken student lifestyle, the NSW Legal Aid Commission refused him legal aid for the bid, stating no reasons.
Answering critics who allege that his aim is to shut down the mill, Brown argued that the real target of the suit was the EPA, not APPM. He argued that the "win-win" solution to the pollution problem is a complete overhaul and redesign of APPM's industrial processes, based on a philosophy of toxics use reduction and pollution prevention.