Environment Protection Authority v Caltex Refineries (NSW) Pty Ltd - [2006] NSWLEC 335

Land and Environment Court

of New South Wales

CITATION: Environmental Protection Authority v Caltex Refineries (NSW) Pty Limited [2006] NSWLEC 335

PARTIES: PROSECUTOR
Environmental Protection Authority
DEFENDANT
Caltex Refineries (NSW) Pty Limited

FILE NUMBER(S): 50050 of 2005; 50051 of 2005

CORAM: Pain J

KEY ISSUES: Environmental Offences :- Air pollution - emission of odour from fuel refinery - prior offences - mitigating factors - early guilty plea

LEGISLATION CITED: Crimes (Sentencing Procedures) Act 1995 s22, s23
Marine Pollution Act 1987 s27
Pollution Control Act 1970 s17D(9)
Protection of the Environment Operations Act 1997 s64, s120, s124(b), s126, s129, s241

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR ;
Environment Protection Authority v BHP Steel (AIS) Pty Limited (2004) 132 LGERA 213;
Environment Protection Authority v Bluescope Steel (AIS) Pty Limited [2004] NSWLEC 400;
Environment Protection Authority v Burrangong Meat Processors Pty Limited [2003] NSWLEC 102;
Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334;
Environment Protection Authority v Illawarra Coke Company Pty Limited (2002) 118 LGERA 451;
Environment Protection Authority v Nationwide Oil Pty Limited [2002] NSWLEC 201 ;
Environment Protection Authority v Port Kembla Copper Pty Limited (2001) 115 LGERA 39;
Environment Protection Authority v Rethmann Australia [2003] NSWLEC 351;
Environment Protection Authority v Shoalhaven Starches Pty Limited [2003] NSWLEC 107 ;
Environment Protection Authority v Yolarno [2004] NSWLEC 764 Environmental Services Pty Limited [2003] NSWLEC 351;
R v Sharma (2002) 54 NSWLR 300;
R v Thomson; R v Houlton (2000) 49 NSWLR 383

DATES OF HEARING: 19/05/2006

DATE OF JUDGMENT:
06/30/2006

LEGAL REPRESENTATIVES: PROSECUTOR
Mr T Howard instructed by the Environment Protection Authority
DEFENDANT
Mr C Leggat SC instructed by Freehills

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

30 June 2006

50050 of 2005, 50051 of 2005 Environmental Protection Authority v Caltex Refineries (NSW) Pty Limited
JUDGMENT

1 Her Honour: Caltex Refineries NSW Pty Ltd (“the Defendant”) is charged with one offence of causing air pollution contrary to s 124(b) of the Protection of the Environment Operations Act 1997 (“the POEO Act”) in proceedings 50050 of 2005. The Defendant operates a large fuels refinery at Kurnell (“the premises”). The offence charged is that between 17 and 21 October 2004 at Kurnell, the Defendant operated plant on the premises in such a manner as to cause air pollution because of its failure to operate the plant in a proper and efficient manner.

2 The air pollution particularised in the summons is the emission of odour. The Defendant pleaded guilty to the offence at the first mention of the proceedings on 9 December 2005.

3 Section 124(b) states:

The occupier of any premises who operates any plant in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part…

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.

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Details

Case: [2006] NSWLEC 335
Decision Date: 30/06/2006

CaseChat Overview and Summary

The Environmental Protection Authority has charged Caltex Refineries NSW Pty Ltd with one offence under s 124(b) of the Protection of the Environment Operations Act 1997. The Defendant pleaded guilty at the first mention of the proceedings. The issue for the Court is to determine the appropriate penalty. The Court found that the environmental harm caused was reasonably serious but short term. The Court found that the Defendant had inadequate risk assessment processes in place which had resulted in the failure to have proper procedures to identify particular risk areas in the conduct of this non-routine procedure. The Court found that the Defendant had control over the causes that gave rise to the offence. The Court found that the Defendant could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence. The Court found that the matter was serious given the factors set out in s 241 of the POEO Act in terms of harm to the environment, that the offence was reasonably foreseeable and that the Defendant had control over the causes of the offence. The Court found that the Defendant’s criminality was low. The Court imposed a penalty of $77,000, discounted by 30 per cent to take into account a guilty plea, full cooperation, prompt response and the implementation of an environmental management system and risk reduction program. The Court dismissed the second charge against the Defendant.

Orders