Environment Protection Authority v ADI Ltd - [1999] NSWLEC 14

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority -V- Adi Ltd [1999] NSWLEC 14

This judgment revised on:

09/03/99

PARTIES

PROSECUTOR:
Environment Protection Authority

DEFENDANTS:
Adi Ltd

NUMBER:

50075 of 1998

CORAM:

Talbot J

KEY ISSUES:

:- Crimes - Pollution; Prosecution, plea of guilty, admission of tendency evidence in relation to penalty assessment

LEGISLATION CITED:

Clean Waters Act

DATES OF HEARING:

02/01/1999; 02/02/1999

DATE OF JUDGMENT DELIVERY:

02/10/1999

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr D A Buchanan SC
With Mr C J Leggat Bar Instructed by
Environment Protection Authority
DEFENDANTS:
Mr P R Rigg Solicitor Of Deacons Graham & James

JUDGMENT:

IN THE LAND AND MATTER No. 50075 of 1998

ENVIRONMENT COURT CORAM: Talbot J

OF NEW SOUTH WALES DECISION DATE: 10 February 1999

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

ADI LTD

Defendant

REASONS FOR JUDGMENT

1. On 6 November 1998 I found that the defendant company committed the offence charged that on 23 April 1997 it polluted the waters of the Murray River by introducing solid wastes and ethanol contrary to s 16(1) of the Clean Waters Act.

2. The Court was not satisfied on the balance of probabilities that the discharge of the waste from the defendant’s premises was authorised by conditions of a licence issued to the defendant under the Pollution Control Act and that accordingly s 16(6) of the Clean Waters Act did not provide an excuse, justification or exculpation for not complying with the obligation in s 16(1).

3. A licence condition permitted a discharge which did not contain more than 45 mg/L of non-filtrable residue (NFR) at an authorised point adjacent to the boundary of the premises. Ethanol was not referred to specifically in the licence conditions.

4. Samples were taken on 23 April 1997 at or adjacent to the confluence of a drain, leading from the defendant’s premises, with the Murray River.

5. Chemical analysis of two samples taken on 23 April 1997 showed a level of total suspended solids of 330 mg/L and 410 mg/L. Two other samples taken on that day showed presence of ethanol in concentrations of 2,200 mg/L and 2,600 mg/L.

6. The suspended solids were identified as containing nitrocellulose.

7. The prosecutor relies on the evidence of Dr Ross Hyne who is a principal research ecotoxicologist at the EPA’s Centre for Ecotoxicology and his opinion that the concentration and composition of chemicals in the effluent would be sufficient to cause harm to biota in the Murray River. Dr Hyne was not able to say that the NFR did actually cause toxicity problems to any biota.

8. The potential for harm must be regarded in the light of the evidence of Bruce Henry Gardiner, an Environment Protection Officer employed by the prosecutor, that the Murray River in the vicinity of the discharge point has significant environmental amenity and is used extensively for recreational purposes. Furthermore, the river water in the area is generally of high quality and provides potable, irrigation and stock water to New South Wales and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Environment Protection Authority v ADI Ltd

Details

AGLC: Environment Protection Authority v ADI Ltd [1999] NSWLEC 14
Case: [1999] NSWLEC 14
Decision Date: 10 February 1999

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority prosecuted ADI Ltd for polluting the Murray River by introducing solid wastes and ethanol, in contravention of the Clean Waters Act. The court found that the company committed the offence by discharging wastes that exceeded the permitted levels under its licence. The potential for environmental harm was significant given the river's use for recreation, potable water, irrigation, and stock. Although there was no evidence of actual harm, the potential harm was real. The court emphasised the company's responsibility, especially since it held a licence, and its awareness of the regular occurrence of unauthorised discharges.

The court considered the appropriate penalty, noting the maximum penalty prescribed by law and the need for individual deterrence. The company had taken some steps to mitigate the problem, but these were deemed inadequate. The court determined a penalty of $25,000, considering the seriousness of the offence and the company's failure to prevent recurrence. The court also ordered the company to pay the prosecutor's costs.

Orders