A FAMILY-OWNED business at Lake Macquarie says it is on the brink of collapse after a drawn-out battle with the Environment Protection Authority cost it $1.5 million in legal fees.
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Damien Jensen owns JET Group, a green waste recycling business with a separate arm that sells to the public under Oz Landscape Supplies/Oz Mulch.
In 2018, Mr Jensen was granted an Environment Protection Licence (EPL) to undertake composting, resource recovery and waste storage activities.
NSW Environment Protection Authority (EPA) officers raided the property three times in 2022, and then, in May 2023, the EPA suspended his licence for "multiple breaches" of its conditions which the EPA argues may have resulted in ammonia levels 10 times higher than the guideline values in groundwater downstream.
"I can't express the toll this has taken on me," Mr Jensen said.
"Financially, emotionally, I'm destroyed. I'm nowhere near the person I used to be.
"It's completely and utterly destroyed me, I don't sleep anymore."
Mr Jensen believes his business has been unfairly targeted due to a conflict of interest caused by personal relationships and a bitter history with the EPA following a previous court battle.
The EPA has since launched an internal investigation into its handling of Mr Jensen's case.
Battle in the court
In its suspension notice, the EPA ordered Mr Jensen to remove all wood waste, including unpainted and untreated timber pallets from the premises as well as all organic waste.
Mr Jensen took the EPA to court about the suspension, arguing he faced issues securing a long-term lease on the land at Toronto which prevented him from undertaking the costly works the EPA wanted done before lifting his suspension.
Waste resource recovery businesses can store, process or dispose of 1000 tonnes or 1000m3 on-site at any one time without needing an EPA licence.
NSW Land and Environment Court (NSWLEC) documents show JET Group argued it should be able to undertake activities while suspended below the threshold that would trigger its licence conditions.
NSWLEC Senior Commissioner Dixon rejected that logic, instead giving Mr Jensen six months to complete the works demanded by the EPA or potentially face his licence being revoked.
An EPA spokeswoman said the company had failed to install leachate and stormwater controls on-site while continuing to receive waste, in breach of both its 2015 Lake Macquarie council development consent and the licence conditions.
"EPA testing of the groundwater downstream found ammonia up to 10 times above the guideline values," she said.
"This is unacceptable as it has the potential to pollute water and cause environmental damage," she said.
The EPA spokeswoman said it carefully considers whether suspending a licence is appropriate.
"When considering a suspension, a range of factors are taken into account, including the seriousness of contraventions of a licence, previous compliance history, and the level and extent of harm or potential harm to the environment and community," she said.
The NSWLEC found the EPA had acted within its powers in issuing the suspension notice, and court documents noted that JET Group accepted it had contravened the conditions of its licence and the suspension was appropriate.
Court documents show JET Group also conceded that pollution has occurred at the premises and that it is possible or likely some of the contamination detected by the EPA was in part due to a former uncontrolled landfill and prior composting activities carried out uphill of the leachate pond.
A joint report submitted to the NSWLEC written by two independent environmental experts agreed the previous composting and pasteurising operation did not appear to have impacted water quality (groundwater or surface water) much beyond a localised area near one of the dams, nor appear to have impacted beyond the boundary of the premises.
The experts also agreed that, provided appropriate management was in place and maintained, it was unlikely that if Mr Jensen operated at a level below a certain threshold, his operation would adversely impact surface water and groundwater.
DA hanging in the balance
Mr Jensen has until the end of the month to have a DA modification approved with Lake Macquarie City Council that could allow him to continue operating at a lower level.
But Mr Jensen said the council has dragged its heels on the DA and, with the deadline fast approaching, he fears the EPA will revoke his licence altogether, and the community could lose its recycling service for good.
"There is absolutely no environmental harm and never has there ever been," he said.
"They never say it's no risk, but it's low risk, and low risk is the lowest possible outcome you can have, yet I'm still sitting here with business closed."
Mr Jensen lodged the DA modification with Lake Macquarie council in January 2023.
Almost two years later, his application still hangs in the balance.
A Lake Macquarie council spokesman said that the proposed wording of the DA modification would impact operations at the site. He said the implications are "complex" and require an "involved assessment".
The spokesman said the DA seeks to modify the consent to introduce thresholds for certain wastes to be received at the site and delay the delivery of environmental protection works until the thresholds are reached.
"Assessment of the application has been ongoing and three requests for information have been requested by council staff to help with that assessment," he said.
"In August 2024, a detailed response, including external reports, was provided by the applicant to the most recent request for information, and we are assessing this information."
The council spokesman said that until August, Mr Jensen's responses had not "adequately addressed" its requests for information, so the application could not progress.
Mr Jensen said he has tried to be as compliant as possible and work with the council.
"They said to provide all the information you can, new documents, new plans, new environmental reports, which we did," he said.
"We've done that now, we've provided way more than we have to, which makes it a lot more complicated, but we feel like we've ticked every single box above and beyond anyone else and we're still sitting here unsure if we're going to get an approval or not."
MP hears 'alarm bells'
Having reviewed Mr Jensen's case, Greens MP and environmental lawyer Sue Higginson is calling for an inquiry into the EPA.
Ms Higginson said the details of Mr Jensen's case "rang alarm bells" and left her with more questions than answers.
"I have looked at Damien's matter and it does concern me that the weight of the hand that is being dealt to him and his business does not seem like what I see when I see the EPA dealing with some of the really big polluters out there," she said.
"Why does there seem to be such a propensity to work with the big guys to keep them open, to adjust their licences to fit and suit the operation, and here we have a smaller operator and the threat seems to be, 'No, if you're not complying and we say so, we will shut you down or we will just revoke your licence'?
"I think there is a fundamental missing piece here, and that is, who is overseeing the EPA? And the answer to that is no one."
Ms Higginson has since written to EPA chief executive Tony Chappel asking for any regulatory action against JET Group to be deferred until the internal review is complete.