MEMBERS of the Shahin family dumped 2000 tonnes of contaminated, toxic soil in Mount Compass from a petrol station redevelopment in breach of environmental laws, a court has heard.

The Environment Protection Authority has accused the Shahins — operators of On The Run and Krispy Kreme — of employing up to 100 trucks to dump the waste soil over 10 days.

However, the Shahins on Wednesday told the Environment, Resources and Development Court that the watchdog was shifting the legislative goalposts to prosecute them.

Michael Abbott, QC, for the family, said the law gave the EPA the power to define what was and was not waste — and to change its mind as often as it liked.

“According to the EPA, waste — like beauty — is in the eye of the beholder ... what’s waste one minute can become non-waste another minute,” he said.

“They might say that the tissues inside a box are waste but the box isn’t because it’s a valuable recyclable material ... that’s the changing nature of the definition of ‘waste’.

“This is like Schrödinger’s Cat in quantum physics, this notion that a substance can flip-flop from waste to non-waste according to the EPA’s standards.”

In March, the EPA charged Khalil Shahin and Nasmin Pty Ltd with operating an unlicensed waste depot at a friend’s Mount Compass farm between January 2 and 13, 2012.

It further accused Salwa, Samer and Yasser Shahin, and Shahin Enterprises Pty Ltd, of “aiding, abetting, counselling or procuring” the operation of that depot.

The EPA has alleged the soil, from the corner of Anzac and Marion roads, Plympton, tested positive for hydrocarbons and “exceeded intermediate levels” of toxicity.

On Wednesday, Mr Abbott said the soil did not meet the legal definition of “waste” because it was destined to be used as fill at another site.

He compared the law to physicist Erwin Schrödinger’s theory that a cat, sealed in a box with poison that may or may not be released, was “both alive and dead” until the box was opened.

Mr Abbott asked the court to order the EPA to release its records of exemptions granted to other “limited use” depots since 2005.

“The EPA cannot keep hidden material which will substantially damage its case,” he said.

“It has a wealth of material that we say it is refusing to disclose.”

Liesl Chapman, SC, prosecuting, said all previous exemptions were sought and granted before materials were dumped.

“The defendants never made an application, prior to January 2, for a licence — that’s the end of the story, quite frankly,” she said.

Judge Jack Costello reserved his decision on the release of the records until next month.