IT'S been going on for nearly ten years, cost almost $3 million in legal fees and more than $180,000 for the EPA to investigate.
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Last year, former Port Stephens mayor Bruce MacKenzie's family company, Grafil Pty Ltd, and his son Robert were found guilty of running an unlawful waste dump at their Salt Ash business.
Grafil and Robert MacKenzie, who manages Macka's Sand at Salt Ash, were found guilty of allowing trucks to unlawfully dump Sydney demolition waste that was contaminated with asbestos at the business between October 2012 and May 2013.
But on sentencing last month, the Land and Environment Court's Justice Nicola Pain found Mr Mackenzie and Grafil had "no knowledge" of asbestos in the material and "no ability to prevent its arrival".
She dismissed the charge against Mr MacKenzie without proceeding to conviction and ordered Grafil to cap and cover two large stockpiles of waste still situated on its land at Salt Ash at a cost of about $250,000.
Grafil and Mr MacKenzie pleaded guilty last year after he was charged with executive liability for operating a waste facility without lawful authority.
Initially the Environment Protection Authority (EPA) was pushing to have the large stockpiles removed, which would have cost up to $20 million, but during the sentencing hearing the watchdog agreed to a cap and cover order.
"Until the beginning of the fifth day of the sentencing hearing the EPA maintained that an order for removal of that material, which it agreed would cost in the range of about $15-$20 million, should be made," Justice Pain said.
"On any view such an order would have been a massive impost on the defendants who were entirely unwitting consumers in relation to the presence of asbestos in the material they received."
According to Mr MacKenzie, tens of thousands of tonnes of Sydney demolition material, delivered to the site by four Sydney-based waste contractors, was to be used to build an access road to his family sand extraction business, rather than being dumped at an unlawful waste facility.
He told the court the lengthy legal battle had impacted his mental health and he was undergoing treatment for depression as a result.
The EPA raided his property and his accountant's office as part of its investigation.
Mr Mackenzie said he felt a sense of injustice at what has happened, his personal relationships had suffered and his performance at work diminished.
He told the court he had not gotten over the feeling of being "bullied and belittled" when the EPA raided the property in May 2013.
"Since the commencement of these proceedings, Mr Mackenzie's family business has suffered reputational harm," Justice Paine said referring to Mr MacKenzie's oral evidence.
"It has struggled to maintain customers in the Sydney region due to bad publicity. Its relationship with the local Aboriginal community has been strained. Mr Mackenzie's children have had to deal with the proceedings. The proceedings continue to be mentioned in what would otherwise be 'good news stories' for his business."
The Worimi Local Aboriginal Land Council receives royalties from the sale of sand from the Salt Ash site.
Justice Pain initially found Mr MacKenzie and Grafil not guilty of the charges in July 2018, but the EPA successfully appealed the decision in the Criminal Court of Appeal.
Up to March this year, Grafil and Mr MacKenzie had spent $1.65 million in legal and expert witness fees and the EPA estimated it had spent $1.142 to April.
The EPA also spent $187,088 investigating the matter.
The court heard 634 grams of asbestos was found in 575 kilograms of 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".
Justice Pain said "given the low objective seriousness of the offence" and absence of "actual environmental harm" she ordered Grafil to pay 25 per cent of the EPA's legal fees and investigation costs, estimated to be at least $332,315.
She also ordered the company to cap and cover, with sand from the site, the stockpiles, which she estimated would cost about $250,000.
No additional penalties were imposed and the charge against Mr MacKenzie was dismissed without conviction.
Justice Pain estimated the cost to Grafil would be at least $582,513, plus it's own legal fees.
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