Environment Protection Authority v Associated Dairies Pty Ltd
[2000] NSWLEC 26
•02/11/2000
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v Associated Dairies Pty Ltd [2000] NSWLEC 26 PARTIES: PROSECUTOR:
DEFENDANT:
Environment Protection Authority
Associated Dairies Pty LtdFILE NUMBER(S): 50034 of 1999; 50035 of 1999 CORAM: Talbot J KEY ISSUES: Prosecution :- Pollution of waters:- costs and penalty LEGISLATION CITED: Clean Waters Act 1970 s 16(1)
Environmental Offences and Penalties Act 1989 s 9
Protection of the Environment Operations Act 1997 s 241CASES CITED: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
EPA v Associated Dairies Pty Ltd (unreported LEC50004 of 1995 5 September 1995);
EPA v Associated Dairies Pty Ltd (unreported LEC50047 of 1996 15 June 1998)DATES OF HEARING: 7/02/2000 DATE OF JUDGMENT:
02/11/2000LEGAL REPRESENTATIVES: DEFENDANT:
PROSECUTOR:
Mr S Simington (Solicitor)
SOLICITORS:
Environment Protection Authority
Mr S Norrish QC
SOLICITORS:
Grahame Goldberg Partners
JUDGMENT:
IN THE LAND AND Matter No. 50034-5 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 11 February, 2000
Defendant
1. The defendant appears to plead guilty to two charges that at Berkshire Park it committed an offence against the Environmental Offences and Penalties Act 1989 (the EOP Act) in that it did pollute waters contrary to s 16(1) of the Clean Waters Act 1970 (the CW Act). The offences occurred on 24 June 1998 and 6 July 1998 when, contrary to the conditions of its pollution control licence, there was a discharge of a milky coloured liquid from a calf shed on the property known as the Clydesdale Dairy.
2. Following the entry of the pleas of guilty on 17 September 1999, a Statement of Agreed Facts has been generated.
3. The discharges took place through a PVC pipe into an open drain flowing to an effluent dam, from which it overflowed along a channel which led to Tributary Creek.
4. The material which originated from the calf shed was a mixture of cow manure, cow urine, cow milk and water.
5. The PVC pipe referred to collected run off from a spoon drain in the concrete floor of the calf shed. A smaller PVC pipe discharged septic tank effluent from a nearby house into the open drain. It is not contended by the prosecutor that the septic tank was a primary source of the effluent discharge on either day.
6. Sampling in the open drain above the effluent dam and in the channel between the dam and Tributary Creek disclosed that on 24 June 1998 there were very high concentrations of Biochemical Oxygen Demand (BOD), Ammonia-Nitrogen, Free Reactive Phosphorous (FRP), Total Phosphorous (TP), Nitrogen (nitrate plus nitrite) (NOX), Total Kjeldhal Nitrogren (TKN) and Faecal Bacteria Densities (FBD).
7. The flow rate of liquid entering the creek on 24 June 1998 has been estimated at approximately three litres per minute. The defendant agrees that a similar flow rate can be inferred for the discharge which took place on 6 July 1998.
8. Further sampling took place upstream and downstream of the junction between the channel and Tributary Creek. This sampling taken on 24 June 1998 showed an increasing trend of concentrations for all five measured water quality variables downstream of the confluence with the channel, namely increases in BOD by 67 per cent, ammonia by 250 per cent, FRP by 83 per cent, TP by 42 per cent, TKN by 25 per cent and NOX by 4 per cent. This indicates that the effluent decreased the water quality in the creek, potentially causing harm to animals and plants living in the riparian environment.
9. The overall analyses of samples collected on 6 July 1998 showed the same patterns as those taken on 24 June 1998, namely, very high pollutant concentrations of BOD, Ammonia-Nitrogen, FRP, TP and TKN in both the channel and open drain, and elevated levels in Tributary Creek, downstream of the discharge point. In the opinion of Dr Tsuyoshi Kobayashi, an Environment Protection Officer employed by the prosecutor, the samples collected showed a relatively high proportion of TP concentrations in readily bio-available form, which suggests that the phosphorous inputs to the creek had a strong potential to contribute to the growth of algae, including blue-green algae and/or potential to encourage the growth of nuisance aquatic plants further downstream. The comparative samples taken in Tributary Creek itself showed an increase in concentrations of all five measured water quality variables downstream of the junction with the channel, indicating that the effluent had an immediate adverse effect on the water quality of the creek.
10. On 6 July 1998 a high rate of discharge directly to the ground was observed from the end of a PVC pipe which extended from the effluent pond to the land on the opposite side of Tributary Creek. The evidence is that the effluent from the dam was being pumped across to a paddock and used for flood irrigation.
11. According to Dr Kobayashi, the ecosystem of Tributary Creek seems to be already under stress. The concentrations of TP, Ammonia-Nitrogen and Total Nitrogen upstream of the discharge point were all shown to be in excess of those recommended in the ANZECC (1992) National Guidelines for the Protection of Aquatic Ecosystems. Any additional input of phosphorous and nitrogen would only stress the system further, reducing the ability of the creek to maintain ecosystem health and adversely affecting its ability to recover from such incidents. Further, Dr Kobayashi said that if the discharge from the dam into Tributary Creek had been occurring over a prolonged period on a regular basis, the discharge would have had an additional deleterious effect on the water quality and aquatic flora and fauna of the downstream Tributary Creek. However, there is no evidence that the discharge of pollutants into Tributary Creek has occurred at any other time apart from the two dates in question in these proceedings.
12. The General Manager of Associated Dairies Group, Barry James French, told the Court that immediately following advice of the incident which occurred on 25 June 1998, he gave instructions that the levels in the effluent dam were to be monitored and regular pumping undertaken to avoid a recurrence of the discharge. He realised when the second event, which occurred on 6 July 1998, was reported to him that either his instructions were ignored or were inadequate. Accordingly, he instructed that various works be completed over the following weeks. Those works included:-The company’s response
(i) all rainwater was diverted from the calf shed roof so that it no longer flowed into the “Calf Pit”;
(ii) contour banks were built in the “Calf Pit” paddock to divert rainwater in the paddock away from the pit;
(iii) a new and larger pit was constructed to hold what is estimated to be between 20 to 30 days of run-off from the calf shed;
(v) a separator pit was built to separate manure solids coming from the calf shed away from the “Calf Pit”.(iv) a newly reconditioned pump and motor was place at the “Calf Pit” for irrigating directly from it;
13. Further, the farm staff were directed to undertake irrigation from the effluent dam at a distance away from the tributary much greater than was the practice in June and July 1998 as a “cautionary mechanism” to stop any possibility of irrigation run off entering Tributary Creek.
14. Steven Garry Humphreys is a biology technician retained by the defendant to give evidence in relation to the existing condition of Tributary Creek and South Creek into which it flows. When he inspected the upper reaches of Tributary Creek he observed a Sydney Water Sewerage Pumping Station at Hartog Reserve.
15. Mr Humphreys considered available data on the pollutant levels in Tributary Creek and South Creek.
16. He acknowledges that the discharge did affect the water quality of Tributary Creek. However, he has little doubt that when the flow that reached Tributary Creek travelled approximately 800 metres downstream of the discharge and joined South Creek, any nutrient load contributing to ecosystem deterioration was drowned by the discharge of the treated sewerage.
The appropriate sentence
17. The maximum penalty provided by the legislation is $125,000. This of course is to be imposed only where the case falls into the worst category of offences.
18. The relevance of general deterrence in sentencing in pollution offences is generally self evident, as it is in this case, there being a significant public interest in the protection of the environment.
19. Following the first incident in June and a recurrence in July, it became apparent to the defendant that a mere instruction to employees directing them to follow specified procedures was not adequate. It was only after the second event that the company elected to incur a direct cost by expenditure on remedial works. This company has a record of two earlier convictions. It is apparent that the penalty should reflect an element of personal deterrence to encourage this defendant to be more diligent in the pursuit of its obligations.
20. There is evidence of actual and potential harm to the environment of Tributary Creek. The discharge contained wastes well beyond the concentrations recommended in relevant guidelines. In the defendant’s favour, there is no evidence of a discharge beyond the periods observed on 24 June 1998 and 6 July 1998.
21. It is not generally to the point that Tributary Creek was already experiencing environmental stress due to elevated pollutant levels. It is nevertheless relevant to the extent of actual or likely harm.
22. The defendant is at pains to demonstrate that the pollutants discharged from the dairy were quickly subsumed by the pollutants discharged from other sources. However, the defendant does not submit that because the creek is already under stress and South Creek is itself polluted, the defendant is entitled to make it worse. It is, as I have already said, relevant that there is an existing problem in assessing the likely and actual harm that needs to be taken into account pursuant to s 241(1)(a) of the Protection of the Environment Operations Act 1997.
23. That there were practical measures that could have been taken to prevent, control, abate or mitigate the harm that was caused, is demonstrated by the actions ultimately taken following Mr French’s instructions after the incident on 6 July.
24. Mr Norrish QC, appearing for the defendant, reminded the Court that hindsight is a great teacher and that in the absence of evidence of any prior discharge from the specific dam, the company was entitled to assume that an overflow would not occur. It is clear nevertheless that appropriate instructions were either not in place or not followed at the critical time. Although the prosecutor concedes that the work undertaken after 6 July could not have been completed between 24 June and 6 July, a better standard of monitoring could have prevented the second occurrence.
25. There is no dispute that the defendant had control over the causes that gave rise to the offence.
26. No issue arises pursuant to s 241(1)(e).
27. Although the existing levels of pollutants in South Creek are of such a character that the discharge would have had only a minimal effect on the creek itself, the introduction of further pollutants would have an immediate impact on the health of Tributary Creek and thus be adverse to the prospects of its recovery.
28. On 5 September 1995 in matter 50004 of 1995 the defendant company was convicted of the same offence and fined the sum of $8,000. That offence involved circumstances where the pollution event occurred as the consequence of unauthorised actions of an employee in another aspect of the company’s operations at the same property.
29. On 15 June 1998 in matter 50047 of 1996 Bignold J concluded that a penalty of $30,000 reflected his findings concerning the gravity of the offence, the defendant’s culpability in its commission and the prior conviction. The pollution incident on that occasion was a combination of events when two dams overflowed following an exceptional rainfall event.
30. The Court takes account of the mitigating factors in favour of the defendant, in particular the early plea of guilty, the cooperation with the prosecutor and the action taken to mitigate the prospect of a further recurrence.
31. In accordance with the principles outlined by the Court of Criminal Appeal in Camilleri Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at 703-704, it is appropriate to assess the overall criminality involved in both offences. The Court accepts that there was not sufficient time between the two events to complete the capital works which were ultimately undertaken but realistically the second event occurred as a consequence of the inadequacy of the arrangements made in the meantime which were intended to be permanent. Nevertheless, having regard to the whole of the circumstances, the two events are sufficiently related for the Court to make a downward adjustment from the aggregate of the sentences appropriate for each individual occurrence.
32. The Court is satisfied that a total penalty of $30,000 is warranted.
33. The Court proposes to make the following formal orders:-Formal orders
1. In matter 50034 of 1999 the defendant is convicted of the offence charged in the summons and fined the sum of $20,000.
2. In matter 50035 of 1999 the defendant is convicted of the offence charged in the summons and fined the sum of $10,000.
4. The exhibits may be returned.3. In matters 50034 of 1999 and 50035 of 1999 the defendant is ordered to pay the prosecutor’s costs in such sum as may be agreed or if there is no agreement, assessed in accordance with the regulation made pursuant to the Land and Environment Court Act 1979.
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