Environment Protection Authority v Centennial Newstan Pty Ltd
[2006] NSWLEC 732
•31/10/2006
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 PARTIES: PROSECUTOR
DEFENDANT
Environment Protection Authority
Centennial Newstan Pty LtdFILE NUMBER(S): 50010 of 2006 CORAM: Preston CJ KEY ISSUES: Environmental Offences :- sentencing - pollute waters - overflow of sediment - laden waters into creek and bay - low environmental harm - conduct resulting in offence deliberate and negligent - harm foreseeable - practical measures could have been taken to prevent harm - control over causes - offence of medium objective seriousness - no prior convictions - prior good character - early plea of guilty - contrition and remorse - assistance to authorities - payment of prosecutor's costs - appropriate to make alternative order in lieu of fine - order to pay specified amount for purposes of a project for the restoration of the environment and publication order LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 120(1), s 193, s 241(1), s 241(1)(a)-(e), s 244(2)-(3), s 250, s 250(1)(a), (c), (e) CASES CITED: Camilleri's Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683;
Environment Protection Authority v Barnes [2006] NSWCCA 246 (17 August 2006) ;
Environment Protection Authority v Simplot Australia Pty Limited [2001] NSWLEC 264 (25 October 2001);
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 (10 July 2006)DATES OF HEARING: 30/10/2006
31/10/2006EX TEMPORE JUDGMENT DATE: 10/31/2006 LEGAL REPRESENTATIVES: PROSECUTOR
Ms L Body (solicitor)
SOLICITORS
Environment Protection AuthorityDEFENDANT
Ms S Duggan (barrister)
SOLICITORS
Sparke Helmore Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPRESTON CJ
31 OCTOBER 2006
50010 OF 2006
ENVIRONMENT PROTECTION AUTHORITY V CENTENNIAL NEWSTAN PTY LIMITED
JUDGMENT
1 HIS HONOUR: Centennial Newstan Pty Limited undertakes coalmining at Fassifern in the lower Hunter Valley. One of its coalmining activities is auger mining within the Newstan mining lease area. Auger mining has disturbed a sizeable area of previously naturally vegetated land. Soil and water management measures were required by the mining approval for the auger mining to be implemented in accordance with an approved soil and water management plan. The measures in the approved plan were not implemented. Instead wholly different measures were undertaken by Centennial Newstan. No expert advice or approval from the Department of Primary Industries was sought for the departure from the approved measures.
2 Storm events occurred between 10 to 13 February 2005. They were not unusual. Even the most intense rainfall event was only of an intensity and duration that could be expected to occur every two to five years in the Fassifern area. The storm and water measures implemented by Centennial Newstan were inadequate to control erosion and runoff from the site. The catchment dams overtopped, sediment-laden waters discharged into a creek called LT Creek and then into Fennell Bay, a part of Lake Macquarie. The physical conditions of the creek and Fennell Bay were affected by the turbid waters. Organisms would probably have responded biologically to the increased turbidity, however, the organisms would not have been harmed or the viability of the populations of organisms would not have been reduced by the increased turbidity.
3 Centennial Newstan was charged with committing an offence against s 120(1) of the Protection of the Environment Operations Act 1997 in that on or about 13 February 2005, at or near Fassifern, it polluted waters. Centennial Newstan pleaded guilty to the charge. A hearing on sentence has been held. The Court’s task is to determine the appropriate penalty for the offence.
Centennial Newstan’s auger mining activities
4 The defendant undertakes its underground coalmining activities at Fassifern and holds environment protection licence 395 in respect of those activities. The licensed premises is Newstan Colliery, Wakefield Road, Fassifern, which is approximately 30 kilometres by road southwest of Newcastle.
5 The licence authorises the carrying out of scheduled activities at the licensed premises. Those scheduled activities are coalmines, coal works and waste facilities/coal wash landfill.
6 In 2004 Centennial Newstan submitted to the Department of Primary Industries an application to conduct auger mining. Prior to submitting the application Centennial Newstan undertook an assessment of the environmental risks from the conduct of the auger mining.
7 A review of environmental factors for the Newstan Auger Project was prepared by Umwelt, environmental consultants, in October 2004. The review of environmental factors included a soil and water management plan prepared by Parsons Brinckerhoff in July 2004.
8 On or about 23 November 2004, Centennial Newstan received approval from the Department of Primary Industries to undertake auger mining within the Newstan mining lease area. The approval was conditional upon Centennial Newstan complying with the requirements of the review of environmental factors and, in particular, the soil and water management plan prepared by Parsons Brinckerhoff to manage potential erosion and water pollution.
9 The actual auger mining is done by a contractor to Centennial Newstan called Coal Augering Services Pty Limited. Contractors on the site undertook works that they were directed to do by Centennial Newstan. The ultimate supervision of the works undertaken by the contractors rested with Centennial Newstan.
10 As I have noted, prior to undertaking the auger mining, Centennial Newstan had engaged Umwelt, who in turn engaged Parsons Brinckerhoff, to prepare and develop a soil and water management plan, to manage the soil and water issues arising out of the carrying out of the auger mining. The soil and water management plan prepared by Parsons Brinckerhoff and approved as part of the approval by the Department of Primary Industries for the auger mining, proposed a number of management strategies for areas to be disturbed by construction or other earthworks. These strategies included limiting disturbance where possible, constructing diversion drains for clean water runoff, stockpiling topsoil for later use, construction and maintenance of lip drains, silt fences and sedimentation basins, and prompt stabilisation of areas after earthworks. It also included regular inspection and maintenance of all measures.
11 The soil and water management plan provided a broad strategy to divert clean upslope water away from proposed benching areas and collect surface waters from the benched areas in temporary lip drains flowing to sedimentation basins. If sediment basins were to discharge to downstream-receiving waters, without another site sediment basin downstream, then it had to be treated with a flocculating agent prior to discharge if it contained more than 50 milligrams per litre of total suspended solids.
12 The soil and water management plan noted that the augering works were to be undertaken in a series of stages and therefore that appropriate soil and water management controls needed to be implemented at each stage of construction.
13 The controls included the use of diversion drains and sediment basins and sediment controls, such as sediment fences. Diversion drains and culverts were to be constructed in accordance with stipulated drawings and requirements and in designated locations.
14 Apart from the requirement of the approval by the Department of Primary Industries for the auger mining that Centennial Newstan carry out auger mining in accordance with the soil and water management plan, implementation of the soil and water management plan was also made one of the key performance indicators on which the work performance pf the project manager for Centennial Newstan, Mr Alston, would be assessed. The relevant employment documentation required the project manager to “ensure areas within auger projects comply with soil and water management plan”.
15 However, the project manager, when it came to implementing the auger mining project, determined not to implement the specific measures in the soil and water management plan. He determined not to install the diversion drains to catch clean uphill water and divert it from the areas to be disturbed by the auger mining project, the lip drains at the base of benching areas or stockpiles to catch polluted water to be diverted to sediment basins or the sediment basins at the base of the benching areas or stockpiles. He determined not to undertake monitoring as required by the soil and water management plan both weekly and immediately after a storm event where more than 5 millimetres fell in a 24 hour period. He determined not to flocculate turbid waters in the sediment basins or refrain from releasing waters from the sediment basins until the standard of 50 milligrams per litre of total suspended solids had been reached.
16 Instead, the project manager determined to implement an alternative scheme for soil and water management of the site. This involved:
(a) construction of a sediment dam located under the power line to control sediment runoff from disturbed soil surfaces over part of the catchment upstream;
(b) in-pit storage that would capture upslope runoff (this involved using the excavated hole in which at any particular time auger mining was being carried out to temporarily store water, which water would need to be pumped out after each storm event);
(d) installation of sediment fencing, diversion drains, vegetation windrows and hay bales in order to control a filter sediment runoff.(c) construction of earthen mounds known as berms to divert clean water away from the pit, employment of an existing causeway dam and two other sediment dams and construction of a third sediment dam downstream of the sediment dam that was constructed under the powerline; and
17 The project manager did not seek professional advice from either Umwelt or Parsons Brinckerhoff as to whether the soil and water control measures that the project manager wished to implement would be adequate and furthermore did not seek approval from the Department of Primary Industries for a variation of the condition of the approval for auger mining that required compliance with the soil and water management plan.
The storm event
18 In the 24 hours to 9am on 10 February 2005, Bureau of Meteorology records indicate that in the three weather stations closest to the site rainfall of between 54 millimetres and 68.2 millimetres was recorded. A further 3.2 millimetres to 15.1 millimetres was recorded in the 24 hours to 9am on 11 February 2005.
19 Centennial Newstan maintains its own rain gauge at the colliery and the readings from that gauge suggest that 61.5 millimetres of rain fell at the colliery on 10 February 2005, including 35 millimetres of rainfall in one hour. This followed the 8.2 millimetres of rain that had fallen on the previous day at the colliery.
20 The Bureau of Meteorology uses average recurrence interval (ARI) as an indicator of the severity of a particular rainfall. ARI is the approximate probability or frequency in years by which the particular rainfall event at the given period is expected to occur in the area. The one hour maximum rainfall events of 35 millimetres at Fassifern has an average recurrence interval of between two to five years. In other words, rainfall of equivalent intensity and duration can be expected to occur approximately once every two to five years in the area of Fassifern.
The water pollution incident
21 Mr Alston noticed the overflow from the upper catchment sediment dam, located under the powerline, on the afternoon of Thursday, 10 February 2005. He took no action and did not advise the Environment Protection Authority of the fact of the overflow.
22 On the morning of Sunday, 13 February 2005, the Department of Environment and Conservation received a pollution line complaint from a private citizen regarding turbid water runoff into LT Creek at Fassifern. That same day, at about 10.25am, Mr Mark Hartwell of the Department of Environment and Conservation attended the complainant’s residence to investigate the complaint. The complainant lives at 2 Bridge Street, Fassifern, which is adjacent to LT Creek. Mr Hartwell observed that the water in LT Creek was a brown colour and turbid.
23 Mr Hartwell then drove to the Centennial Newstan site. He drove to the top of a ridge and observed the auger mining area. He saw that the site had exposed dirt, soil and clay as well as some black rock-like material in a stockpile. Mr Hartwell then attended the colliery site accompanied by Centennial Newstan’s environmental officer, Mr Paul Williams. Mr Hartwell and Mr Williams first attended the three dams, known as the coal-handling plant sedimentation system. Mr Hartwell observed that the water in the most easterly of the three dams was turbid and of a similar brown colour to the water he had observed in LT Creek near the complainant’s premises. Mr Williams also noted the water in this dam and the water flowing from this dam was of high turbidity.
24 Mr Hartwell observed that that same dam was fitted with an overflow pipe and that water was flowing out of the dam through the overflow pipe but Mr Hartwell estimated the discharge flow from the pipe covered approximately one-eighth of the discharge pipe’s diameter. Mr Hartwell also observed that from the discharge point the water dropped to an area of low ground that looked like a creek bed area.
25 Mr Hartwell collected two samples from the most easterly of the three dams, namely the dam with the discharge pipe. He labelled the samples. Subsequent analysis of those samples for both total suspended solids and turbidity produced the following result:
26 Mr Hartwell and Mr Williams then proceeded to the auger mining area and Mr Hartwell observed that a number of felled trees had been pushed over the edge of the auger mining area and into the area of low ground below the earthworks. Mr Hartwell further observed that near the edge of the road were areas of exposed soils and clays and some over-burden from the mining operation.
27 Mr Hartwell and Mr Williams observed that the upper catchment sedimentation dam, that is the one under the powerline, was not discharging. Mr Hartwell observed that the dam had little freeboard and that the discharged culvert was wet and scarring had occurred in the soil in the culvert.
28 Mr Hartwell and Mr Williams then proceeded to an area known as the Haul Road culvert. This culvert was located on low ground to the right of the entrance to the auger mining site. The culvert was about 200 metres from the turnoff on the tar-sealed Haul Road into the auger mining site. It was downstream of both the three dams that formed part of the coal handling plant sedimentation system as well as the upper catchment sedimentation dam under the powerline.
29 Mr Hartwell examined the water passing through the culvert under the Haul Road and observed that the water passing into the pipes was of a similar colour to the water he had observed in the eastern-most dam of the coal handling plant sedimentation system.
30 On 14 February 2005 at about 10am, Mr Hartwell and Mr George attended the complainant’s house at 2 Bridge Street, Fassifern. Mr Hartwell observed that the creek was clearer than it had been the previous day but still showed some discoloration. He further observed that the creek was light brown in colour. Mr Hartwell and Mr George then drove to the defendant’s site office. The two officers met Mr Williams at the office at approximately 11.10am. The two officers went with Mr Williams to the upper catchment sedimentation dam under the powerline. Mr Hartwell observed that the dam was in a similar condition to how it had been on the previous day with little freeboard. There was still scouring of the ponds on the upper culvert.
31 Mr George observed what appeared to be new hay bales at the point where water would flow from the upper catchment sedimentation dam.
32 The two officers then drove with Mr Williams to the three dams comprising the coal handling plant sedimentation system. Mr George observed that the larger, most easterly dam, appeared to contain turbid water, light brown in colour. He observed a low flow of turbid water discharging from an overflow pipe. He observed that that water leaving the overflow pipe flowed along a watercourse and in the direction of an arm of LT Creek. He also observed that a number of hay bales had been placed in this watercourse down slope of the dam. Upon closer examination of the watercourse, Mr George observed the turbid water was passing through and around the hay bales.
33 Mr Hartwell observed the water was still flowing from the discharge pipe on the eastern-most dam. He estimated the flow covered approximately 1/32 of the pipe diameter. Mr Hartwell collected a sample from the water flowing from the discharge pipe. The sample was labelled. Subsequent analysis of that sample produced the following result:
34 The two officers then drove with Mr Williams to the Haul Road culvert. Mr George observed that the water entering the culvert was turbid and was of a similar light brown colour to the water he had observed in the coal handling plant sedimentation dams. Mr Hartwell observed that the water level was low in the pipe area, about 75 millimetres deep on average.
Centennial Newstan’s response to the pollution incident
35 On 15 February 2005, Mr George faxed a letter to the defendant signed by Mr David Darvell of the Department of Environment and Conservation. In that letter Mr Darvell referred to an incident that occurred at Newstan Colliery on about 13 February 2005 involving turbid water generated from the colliery and released into the LT Creek catchment. Mr Darvell requested the defendant submit an incident report addressing all relevant matters in accordance with condition R3 of the defendant’s environment protection licence.
36 On 28 February 2005, the Centennial Coal Group’s environmental manager, Ms Donna Dryden, responded to Mr George’s letter of 15 February 2005 and provided an incident report in relation to the incident on 13 February 2005.
37 The incident report outlined a number of remedial measures undertaken by Centennial Newstan immediately after discovery of the discharges by Mr Hartwell on 13 February 2005. According to the incident report, the immediate remedial measures included:
(a) installation of a pump into the coal handling plant sedimentation system to pump water collected in the system of dams away from LT Creek on the morning of 14 February 2005;
(c) construction on 17 February 2005 of additional dams to capture any discharge from the upper catchment dam.(b) installation of straw bales into spillways of each of the three dams to act as a sediment filter for discharges on the morning of 14 February 2005;
38 The report further outlined the preventative measures that Centennial Newstan had taken in the week commencing 21 February 2005. These included the installation of additional sediment control basins, the installation of clean water diversion drains, the reshaping of spoil piles, installation of additional sediment control measures such as sediment fencing and straw bales where required.
39 The report also outlined the further preventative measures that the defendant intended to take in the following few weeks.
The environment
40 As noted, waters overflowing the coal handling plant sedimentation system dams flowed into LT Creek. LT Creek is a small creek system that discharges to Lake Macquarie. The catchment in LT Creek has been subject to a variety of land uses and development activities for much of the 20th century.
41 LT Creek is an intermittent system. That is, it flows in response to those rainfall events that are of sufficient duration and/or intensity to create surface runoff.
42 Environmental impact statements prepared by Umwelt in 1998 reported that the catchment area of LT Creek upstream of the Fassifern Road culverts is 240 hectares, of which 176 hectares comprises undisturbed forests of slopes, gulleys and creek buffer zones. The remainder of LT Creek catchment upstream of the Fassifern Road culverts is affected by mine operations and associated infrastructure and the channel form is quite different from that observed upstream of the mine area, being larger and more clearly defined.
43 Downstream of the mine, the creek discharges to Fennell Bay to its estuary at Fassifern. A delta exists at the mouth of LT Creek where it enters Fennell Bay and would be composed of sediments from the catchment of LT Creek that have been deposited over time. Umwelt Consultants in 2002 compared Fennell Bay to a large stilling basin after rain with most of the sediment and nutrients that are delivered from the contributing catchment trapped due to low rates of tidal flushing within the bay.
44 The relevant waters that were affected are comprised of three parts: the freshwater reaches of LT Creek, the estuarine reaches of LT Creek and Fennell Bay.
The pollutant
45 As noted above, the turbidity of the discharge waters was high. On 13 February 2005, the total suspended solids were up to 230 milligrams per litre and the turbidity was 1200. On 14 February 2005, the total suspended solids was 340 milligrams per litre and the turbidity was 1200.
46 The nature of the sediment load comprised two components. The first is washload, which is generally fine colloidal sediment and readily transported by water even at low flow. Washload is defined as a sediment that remains permanently in suspension in the flow. The second component to the sediment load is bed material load. This component consists of larger material that rolls, slides or bounces along the bed of the channel and does not remain permanently in suspension and can settle out in slow or zero-flow conditions.
47 The sediment that was delivered to LT Creek during the discharge would likely have comprised both dispersive washload and a coarser, non-dispersive component. The sediment that was released from the upper catchment sediment dam underneath the powerline would have been expected to comprise mostly washload, because the coarser fraction of the sediment load would have been trapped in the dam.
48 Most of the sediment discharged to LT Creek during the discharge would have consisted of washload and passed through to Fennell Bay with minimal deposition en route. Most of the coarser material would have been trapped in the sediment dam system.
49 Mr Markham provided an estimation of the residence time of sediment in LT Creek. Assuming an approximate travel distance of 3 kilometres and assuming a velocity of 0.5 metres per second the travel time of sediment to Fennell Bay would be less than two hours. The discharge of sediment would have continued during the period of surface flow that resulted from the storm events, which occurred between the early hours of 10 February 2005 and the afternoon of 14 February 2005.
50 Mr Markham expected that a minor amount of any coarse material from the discharge that may have bypassed the sedimentation dam system (including material scoured from around the dams) would have been retained in the pools, backwaters and heavily vegetated bed areas of LT Creek as the floodwave receded. It is impossible to quantify how much. However, bed material load is typically thought to constitute approximately 10 to 25 per cent of the total sediment load. In this case, Mr Markham considered it might be less because most of the coarser sediments would have been trapped in the system of dams upstream. However, small additional amounts of soil were entrained from the outlet of the upper catchment sedimentation dam under the powerline and, possibly, the two easterly dams of the coal handling plant sedimentation system. Mr Markham suspected some of this material would have been deposited within the downstream LT Creek system.
51 Mr Markham made an estimate of the amount of sediment released during the discharge assuming the creek discharged at the maximum estimated rate of between 4 and 7 litres per second for a period of five days, at the maximum recorded sediment concentration of 660 milligrams per litre. The product of these values yields a result of 1.1 to 2.0 tonnes of sediment, or approximately 0.7 to 1.3 cubic metres (assuming a bulk density of 1.5 tonnes per cubic metre). Using the higher of these figures and assuming this amount of sediment was deposited in a single layer in the estuary of LT Creek to a depth of 4 millimetres, it would cover an area of approximately 18 metres by 18 metres.
52 This estimate of Mr Markham does not include the sediment that would have been transported during the peak flow that occurred shortly after the rainfall event, and also does not account for the reduction of flow to an estimate 1 to 2 litres per second on 14 February 2005.
53 However, even if the estimate is increased tenfold to 13 cubic metres, it would result in a 4 millimetre thick layer of sediment with dimensions of approximately 57 metres by 57 metres.
54 By way of comparison, the aerial extent of the delta of LT Creek is approximately 120 millimetres by 120 metres. It is unlikely the sediment amounts would have been deposited in a uniform layer. Rather it is likely that some deposition would have occurred in the delta, while some of the sediment may have been transported to other parts of Fennell Bay, depending on the prevailing current conditions, and deposited in patches in those locations.
The impact of the pollutant
55 Mr Markham estimated that during the flood of the fine particles in suspension in the washload would be transported from the mine area to LT Creek estuary in Fennell Bay in less than two hours. Transport of the washload would continue for the duration of the flow, that is between 10 and 14 February 2005. A minor amount of coarser sediment would have been deposited in backwater areas, pools and heavily vegetated creek bed areas. Turbid pools would remain after cessation of the flow. Mr Markham found no evidence of significant alterations of creek form that could be related to the sediment discharge event.
56 The majority of sediment that was transported during the discharge would have been deposited in Fennell Bay, Mr Markham estimated that it would be a continuous load of dimensions of 18 metres by 18 metres by 4 millimetres thickness. In the context of sediment transport in small catchments, Mr Markham did not consider this to be a large amount of sediment.
57 In relation to biological impacts, Dr Sonia Claus and Dr Ross Smith prepared a joint report which addressed the biological impacts on the three components of the waters, namely the freshwater reaches of LT Creek, the estuarine reaches of LT Creek and Fennell Bay.
58 In relation to the freshwater reaches of LT Creek, Dr Claus and Dr Smith agree that it was unlikely that the incident would have resulted in a substantial incremental probability of environmental harm to these ecosystems over the natural responses to a storm event of similar magnitude.
59 In relation to the estuarine reaches of LT Creek, Dr Claus and Dr Smith addressed the potential modes of actions of impacts of increased turbidity in these ecosystems. First, there were potential direct physical effects of clogging of gills and filtering apparatus of biota, temporary impairment of feeding via visual impairment or clogging of feeding apparatus, impairment of predator avoidance and smothering of habitat or burrows and organisms. Dr Claus and Dr Smith agreed that there would have been natural biological responses by the organisms to a storm event of the magnitude. However, they conceded there was reasonable doubt that there would have been a substantial incremental probability of substantial environmental harm as a result of such direct physical effects in this zone.
60 Dr Claus and Dr Smith also considered the indirect effects of increased turbidity. They agreed that the only mechanism warranting consideration was light attenuation. They agreed that there would have been natural biological responses of organisms to the light attenuation associated with the storm event. However, they considered there was reasonable doubt that there would have been a substantial incremental probability of substantial environmental harm as a result of light attenuation resulting from the incident.
61 In relation to Fennell Bay, Dr Claus and Dr Smith considered the direct and indirect modes of action of the suspended sediments in this zone were the same as those that were considered for the estuarine reaches of LT Creek. They agree that there would have been natural biological responses of organisms in Fennell Bay to a storm event of the magnitude. However again, they considered there was reasonable doubt that there would have been a substantial incremental probability of substantial environmental harm as a result of such direct physical effects in this zone.
62 In relation to the indirect effect of light attenuation, Dr Claus and Dr Smith noted that the ecosystems of Fennell Bay would have been exposed to period of elevated turbidity comparable in duration to that of this incident from time to time. The organisms pre-existing distributions and abundances would have reflected this fact. They agreed that the incident may have resulted in some incremental increase in light attenuation for a period probably of around five days. Such a mechanism could potentially have resulted in biological response by organisms in Fennell Bay and may have resulted in some reduction of biomass of seagrasses. The seagrass beds would be expected to undergo natural fluctuations of biomass of this magnitude from time to time and would have a capacity to recover from such a reduction of biomass in a shorter period of time than that of the period of light attenuation.
63 In conclusion, Dr Claus and Dr Smith stated that there was not a substantial incremental probability that organisms were harmed or that the viability of the populations of organisms in LT Creek and Fennell Bay were reduced. However, there was some probability of incremental biological response to the incident.
Prosecutor’s submissions
64 The prosecutor submitted that the offence was not insignificant. The primary factors that the Court should take into account in sentencing the defendant, in the prosecutor’s submission are:
(a) the irresponsible nature of the defendant’s actions in light of the foreseeability of the incident;
(c) the need for general deterrence in cases of this kind.(b) the delay in taking mitigating action;
65 The prosecutor addressed both the objective circumstances of the offence as well as the subjective circumstances.
66 The prosecutor referred to the circumstance that the defendant had commissioned a review of environmental factors and soil and water management plan in 2004. In particular, the soil and water management plan outlined measures to minimise erosion. The Department of Primary Industries had granted the defendant permission to carry out auger mining on the basis that the mining would be conducted in accordance with the review of environmental factors in the soil and water management plan. However, the defendant had not implemented a large number of the measures outlined in the review of environmental factors and the soil and water management plan by 13 February 2005 when the offence occurred.
67 The prosecutor referred to the maximum penalty for the offence of $250,000. This maximum penalty reflects the gravity of the offence as perceived by the legislature.
68 The prosecutor submitted that there was a need for general deterrence. Mining companies and other industrial concerns should be sent a clear message that adequate steps need to be taken in terms of sediment and erosion controls to ensure, firstly, that clean water entering their sites is not polluted by sediment, dirt or similar inorganic material and, secondly, that sediment-laden water is not permitted to run off their sites.
69 The prosecutor submitted that there was a need for specific deterrence. The defendant had gone to the trouble of commissioning a review of environmental factors and a soil and water management plan but had decided not to implement its recommendations because, as stated by its employees, they considered that the measures that the defendant had undertaken were sufficient. The prosecutor submitted that this lax and irresponsible behaviour on the part of the defendant makes it appropriate that the Court considers specific deterrence when imposing a penalty against the defendant.
70 The prosecutor referred to the relevant statutory considerations under s 241(1) of the Protection of the Environment Operations Act 1997.
71 The prosecutor submitted in relation to s 241(1)(a) that there was environmental harm. Sediment entered LT Creek as a result of the incident. Mr Markham’s estimates are likely to be gross underestimates. The prosecutor submitted that cumulative harm is a relevant consideration, as are incremental contributions to the gradual deterioration of the environment referring, to Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 (10 July 2006) at [147]. The prosecutor submitted the defendant’s action must be viewed in the context where there are other manmade sources of sediment entering LT Creek and Fennell Bay and hence the amount of sediment and its impacts need to be taken into account cumulatively.
72 In relation to s 241(1)(b), the prosecutor submitted that an aggravating feature is that although the defendant had gone to the trouble of commissioning a soil and water management plan it had not implemented it correctly. The prosecutor submitted the defendant’s failure to correctly implement the environmental factors in the soil and water management plan was the direct cause of the offence. The prosecutor submitted that clean water diversion measures would have reduced the amount of clean water flowing onto the exposed soils of the defendant’s site. Clean water diversion measures are the most obvious first step to control sediment and erosion. If the clean water diversion measures are inadequate, there is more water flowing onto the site for the other sediment control measures to deal with.
73 While some sedimentation basins were in place, for example the coal handling plant sedimentation system dam the subject of this charge, the creation of further basins as well as lip drains and silt fences would have reduced the flow of sediment-laden waters into the coal handling plant sedimentation system. Finally, control of the dam levels, such as by pumping, would have reduced the chance of or amount of overflow.
74 The prosecutor submitted that to control or abate the incident, the defendant should have notified the Department of Environment and Conservation as soon as it first observed that one of its sediment control dams was overflowing on 10 February 2005.
75 The prosecutor submitted the defendant should have commenced pumping out the coal handling plant sedimentation system dam as soon as it was alerted to the fact that it was overflowing on 13 February 2005. When Department of Environment and Conservation officers returned to the site on 14 February 2005 they saw that this still had not been done. The only pollution control measures that the officers observed in their visit on 14 February 2005 was the addition of hay bales down slope of the still overflowing coal handling plant sedimentation system dam.
76 The prosecutor referred to the fact that the defendant was not licensed for any discharge of waters of the coal handling plant sedimentation system dam. The prosecutor submitted that if, after having been made aware of the situation, the defendant had been unable to prevent the dam overflowing, the least the defendant should have done would have been to add flocculation agents to the dam to reduce the turbidity of the overflowing water.
77 The prosecutor referred to the fact that sediment control measures are now checked immediately after any rainfall event of a certain magnitude. The prosecutor submitted that such a measure should always have been in place.
78 The prosecutor submitted that the defendant could have implemented the measures from the review of environmental factors in the soil and water management plan immediately after the incident occurred. However, the defendant did not implement the measures to any significant degree until after the Department of Primary Industries visited the site. The defendant took 16 days from 21 February 2005 to 7 March 2005 after the Department’s site visit to obtain and submit the revised strategy.
79 The prosecutor submitted that if the augering was not proceeding according to the original mining plan, the appropriate course would have been for the defendant to commission a revised soil and water management plan immediately in order to minimise risk of the kind of a discharge.
80 In relation to s 241(1)(c), the prosecutor submitted that the defendant had responsibilities as set out in its review of environmental factors and soil and water management plan. The effect of rain was foreseeable, as it was at worst only a one in five year rainfall event. The geography of the area with the slope in the vicinity of LT Creek made it virtually inevitable that any failing of the sediment controls would result in sediment entering LT Creek. The prosecutor submitted the likely harm was clearly foreseeable.
81 In relation to s 241(1)(d), the prosecutor submits that it was the defendant’s responsibility to ensure that it was meeting its obligations under the environmental protection legislation. The prosecutor submitted that the defendant had control over the causes which gave rise to the offence.
82 In relation to the subjective factors, the prosecutor noted that the defendant does not have any prior convictions for offences against environment protection legislation in New South Wales.
83 In relation to the defendant’s submission that it was of good character, the prosecutor noted that the evidence of Mr Myors, the general manager, mining and technical services of Centennial Coal Company Pty Limited, the parent company of Centennial Newstan, addresses mostly the good works done by the parent company, Centennial Coal, in relation to the environment and the community. The prosecutor submitted that that good character does not necessarily get passed on for the benefit of the subsidiary company, the defendant in this case.
84 The prosecutor acknowledged that the defendant has undertaken erosion sediment controls with a view to ensuring that there is no further runoff from the mine site to LT Creek. This is some evidence of contrition and remorse. However, the prosecutor submitted there are certain facts which reduce the weight that would be given to this factor.
85 First, the process of undertaking erosion sediment controls was only commenced in earnest after the Department of Primary Industries visited the site a week after the incident. Secondly, the disciplinary action which was taken against the officers of Centennial Newstan who had determined to depart from the approved soil and water management plan was not taken until 17 August 2005, a significant time after the incident on 13 February 2005, but not long after the Department of Environment and Conservation sent to the defendant a notice under s 193 of the Protection of the Environment Operations Act requiring it to provide certain information and documents. Thirdly, no contrition was expressed by the defendant through its officers in their interviews. Fourthly, the project manager, Mr Alston, in his evidence provides a justification of his actions but does not express contrition for the role he played in the incident. Further, the prosecutor refers to Mr Myors’ affidavit which in the prosecutor’s submission is focused on shifting the blame from the defendant to the project manager.
86 The prosecutor noted there was a plea of guilty and concedes that it was made at the earliest possible occasion and that the defendant should be given the full utilitarian value of a plea of guilty. However, the prosecutor submits that the plea by itself provides little evidence of contrition in the circumstances where there was a high probability of conviction.
87 In relation to assistance to authorities, the prosecutor noted that the defendant did not report the incident despite becoming aware as early as 10 February 2005 that the rain event had caused some dams to overflow. The incident did not come to light until turbid water downstream was reported by a citizen to the Department of Environment and Conservation on 13 February 2005.
88 However, the prosecutor noted that the defendant did cooperate with the prosecutor throughout the conduct of the matter, provided relevant documents and information and agreed to a statement of facts. The defendant has agreed to pay the prosecutor’s costs.
89 In conclusion, the prosecutor submitted that taking into account the objects of the environment protection legislation, the need to provide for general deterrence, the foreseeability and preventability of the incident, the culpability of the defendant, the failure of the defendant to react even after the incident occurred, the high values of total suspended solids and turbidity in the water discharged through LT Creek and the potential environmental harm caused by the action to Lake Macquarie, a significant penalty should be imposed.
90 The prosecutor submitted, however, that the type of penalty that would be appropriate would be to make an order that the defendant pay a specified amount for the purposes of a specified project for the restoration or enhancement of the environment under s 250(1)(e) of the Act in lieu of a fine. The particular project is one to be undertaken by the Hunter-Central Rivers Catchment Management Authority involving LT Creek bushland rehabilitation and in-stream works. The Catchment Management Authority has provided a project brief which identifies the following works as part of the project:
(a) Riparian melaleuca swamp forest zone approximately 20 metres buffer along the north and south arm of LT Creek requires weed control. This zone has high recovery potential due to high diversity of native riparian vegetation and viable seed banks. The benefits of restoring the zone extend further than the zone itself as it is connected to an area of forest that is in moderate to high condition as opposed to low condition. Therefore this zone poses the best value for money and monies allocated to this can be leveraged by in-kind labour from the land care group.
(b) Weed management of dry sclerophyll forest adjacent to the riparian melaleuca swamp forest which is in moderate to high condition with high recovery potential. Weed management in this zone is made easier due to recent fire event and native regrowth is significant. Effective work would be follow-up maintenance following the effects of the fire. This activity will prevent weed invasion which will otherwise certainly occur.
(c) Willow management in in-stream works. Currently willows have established within the channel at the downstream end of several pools which are functioning naturally. However, these willows need to be removed to prevent the channel becoming misaligned with subsequent bank erosion and possible loss of pool height and channel connectedness with floodplain pockets and chute channels (connectedness is an important mechanism for reducing the impacts of sediment slugs moving through the system by reducing channel flow energy);
(e) Fencing component adjacent with the Fassifern Primary School.(d) Signage, workshops and other means of informing and educating the community; and
91 The Catchment Management Authority has agreed to report to the prosecutor and the defendant in writing within 12 months of receipt of the funds being paid to it for the project advising which of the works in the project brief have been completed and providing an accounting of the funds expended. Such reporting could continue thereafter each six months until such time as the funds have been fully expended. The sum of money that would be the minimum required would be $50,000 to carry out the project.
92 The prosecutor submitted that the making of an order that the defendant pay the sum of $50,000 to the Catchment Management Authority for the carrying out of that project would have the advantage that it is immediately available and defined, it shows tangible benefits, it would involve the local land care group and it would be a project that the defendant has had no previous involvement with.
93 In addition to the making of such an order, the prosecutor submitted a publication order should be made pursuant to s 250(1)(a) of the Protection of the Environment Operations Act. The prosecutor submitted that the making of a publication order is appropriate in the circumstances of this case. The prosecutor submitted that where the matter is to be dealt with by way of an environment service order or an order under s 250(1)(e) rather than a fine it is particularly important a publication order be made. The local community needs to be made aware that the justice system is redressing environmental degradation by directing the penalty into the improvement of the environment. The prosecutor suggested a form of publication order.
The defendant’s submissions
94 The defendant also dealt with both the objective circumstances of the offence and the subjective circumstances of the defendant.
95 In relation to the objective circumstances of the offence, the defendant submitted that although there was an effect on the environment by the sediment-laden discharge altering the physical condition of the waters of LT Creek and Fennell Bay, there was no harm to the organisms or a reduction in the viability of populations of the organisms.
96 In relation to the surrounding circumstances of the offence, the defendant submitted that it was aware that the production of sediment laden water was a potential risk of its auger mining enterprise and that the defendant set about to address the risk. In particular the defendant submitted that it:
(a) took advice on the appropriate means to address the risk and prepared a soil and water management plan to address the risk;
(b) submitted the soil and water management plan for consideration and approval by relevant government authorities;
(c) required compliance with the soil and water management plan as a precondition to the carrying out of the auger mining;
(d) employed appropriately qualified people to implement and manage the systems;
(f) required the proper implementation of the soil and water management plan systems as a key performance indicator of its project manager.(e) had in place a comprehensive management system to oversee the implementation of the project;
97 The defendant submitted that notwithstanding the taking of these measures, the higher management of the defendant discovered that the systems to be implemented had been altered and that the systems that were in place were inadequate to deal with the heavy and unusual rain event. This change to the system was undertaken by an employee of the defendant, Mr Alston.
98 The defendant submitted that the circumstances surrounding Mr Alston’s decision disclosed that he made the decision in good faith and conscious of the need to protect the environment. The defendant submitted that Mr Alston was aware of the requirements of the soil and water management plan, took those requirements into account as a guide to determine the extent of the plan in order to implement his sediment control measures, identified areas of the land and mining undertaking which presented a risk of release of sediment, implemented systems intended to manage that risk, and regularly inspected the measures in place to assess performance and address deficiencies. The defendant submitted that Mr Alston’s decision can best be described as an error in judgment.
99 In relation to the subjective circumstances of the defendant, the defendant noted that it has no prior convictions and that this fact is significant in the context of the nature of the defendant’s business and the longevity of its operations.
100 The defendant submitted that it is of good character. It referred to the evidence of Mr Myors, the general manager of coalmining and technical services of Centennial Coal Pty Limited. Much of that evidence relates to the good works of the parent company, Centennial Coal, or the group of companies. However, there was specific reference to the defendant in the following respects:
(a) The defendant, along with all other of Centennial Coal’s mine operations, was required to implement Centennial Coal’s environmental management system, which sets out standards, procedures and key environmental indicators against which the company’s environmental performance is to be assessed;
(c) The defendant itself has been involved in a range of environmental improvement activities in the local area including:(b) The defendant, along with the operators of all other sites in the Centennial Coal group, was required to develop environment and community management standards in accordance with the environmental management system;
- (i) a management plan for tracks and trails in the northern part of the catchment through support of a university student study;
- (ii) provision of materials for use and improvement works in the Watagan National Park;
(iii) rehabilitation of the Stony Creek swimming area;
- (iv) contributions to the Wakefield School for Children with Behavioural Difficulties with a schoolyard blitz between October 2005 and June 2006 to develop a refuge area that included earthworks, construction and planting. The schoolyard blitz was a partnership between Newstan Colliery, the Wakefield School and Lake Macquarie Land Care; and
- (v) commitment of $20,000 to develop the LT Creek sub-catchment water quality management plan;
(e) Participation in site-specific local community consultation committees which meet regularly and provide a forum for community members to discuss any issues with the defendant.
(d) The defendant has a long association with the nearby Fassifern Public School and has been involved in a range of environmental improvement in education projects including financial and practical support of the water quality monitoring program, “Streamwatch”, sponsorship of the school’s environment award through the NSW Minerals Council and involvement in tree planting, ground stabilisation and general playground improvement works to result in improved water quality in nearby LT Creek;
101 The defendant referred to the fact that it pleaded guilty at the earliest practical opportunity and submitted that it is entitled to the full utilitarian value of the plea, namely 25 per cent.
102 The defendant submitted that it cooperated with the prosecutor by participating in interviews of its staff, preparing an incident report and settling an agreed statement of facts.
103 The defendant has agreed to pay the prosecutor’s costs in the sum of $28,000. The defendant submits that such sum is a relevant consideration for the purpose of assessing appropriate penalty: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88].
104 The defendant submitted that it has expressed genuine contrition and remorse for the commission of the offence. The defendant’s contrition and remorse is demonstrated not only by the evidence of Mr Myors in these proceedings but also by the following actions that were taken by the defendant:
(a) The speed and efficiency of the defendant’s action to remedy the deficiency in its system. Upon becoming aware of the incident on 13 February 2005, which day was a Sunday, the defendant took immediate action to prevent further exploitation of sediment including initially determining an appropriate response to the discharge and commencing remediation works, consulting with both the EPA and the Department of Primary Industries to determine appropriate response, taking the measures by 9 March 2005 and implementing further measures over and above those that were required by the soil and water management plans;
(b) identifying an appropriate environmental project and offering a substantial contribution, namely $50,000;
(d) the personal appearance in court of representatives of the defendant including Mr Myors, as well as Mr Moult, a director of Centennial Newstan and chief operating officer of Centennial Coal, Ms Dryden, the general manager for sustainable development and Ms Clark, the group environmental manager.(c) the defendant’s actions in addressing the causes of the offence including reinforcing the reporting and inspection requirements relating to its mine operations, reprimanding key staff thereby reinforcing the defendant’s expectations as to environmental compliance, undertaking environmental audits at its sites to ensure compliance with its environmental goals, providing refresher training for key personnel, committing itself to improving environmental performance beyond the site and across its other enterprises and taking steps to inform the local community of the circumstances of the offence by issuing them a press release and advising its local community consultation committees; and
105 The defendant submitted that the appropriate type of penalty is the making of an order under s 250(1)(e) of the Act, together with a publicity order. The defendant submitted that the making of the order for the carrying out of the specified environmental project will produce the greatest possible environmental benefit to the local environment and will provide immediate and tangible benefits.
Appropriate penalty
106 A determination of the appropriate penalty should first be undertaken by determining where in the ordinal scale referable to the maximum penalty fixed by parliament for the offence this particular offence falls. That will involve determining a monetary amount. Next, it is appropriate to determine the type of penalty that should be imposed of the magnitude that has been determined is proportionate to the objective gravity of the offence and subjective circumstances of the defendant.
Objective circumstances
107 Of relevance in this case is the maximum penalty prescribed by parliament, the objective harmfulness of the offence, the state of mind of the offender, the reasons for committing the offence, the foreseeability of risk of harm, the practical measures that could have been taken, the control over the courses and the surrounding circumstances. I will deal with each.
Maximum penalty
108 The maximum statutory penalty is relevant to determine the objective gravity of the offence. As was stated in Camilleri’s Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698, the maximum penalty for an offence reflects the public expression of parliament of the seriousness of the offence. At the time of the commission of the offence, the maximum penalty for a corporation for an offence against s 120(1) of the Act was $250,000. Subsequently the maximum penalty has been increased to $1,000,000. However, that increased penalty is not applicable to the circumstances of this offence.
Objective harmfulness of the offence
109 As stated above, the commission of the offence has caused harm to the environment. The physical condition of the waters of LT Creek and Fennell Bay have been altered by reason of increased turbidity and sediment deposition in the creek bed and in the estuary. The evidence is that there would likely have been a biological response to the increased turbidity and sedimentation by organisms in LT Creek and Fennell Bay. However, it is not likely that there was a harm to those organisms or a reduction in the viability of populations of organisms in LT Creek or Fennell Bay. Accordingly, the environmental harm caused by the offence is low.
State of mind of offender
110 The pollution incident was a consequence of a deliberate decision by the project manager of the defendant, Mr Alston, to depart from the soil and water management plan that had been submitted as part of the defendant’s application for approval for the auger mining and that had been approved by the Department of Primary Industries. Instead, the project manager installed soil and water management measures of his own design. He did not seek professional advice from either Umwelt or Parsons Brinckerhoff in relation to the appropriateness or adequacy of the measures that he proposed to install. He did not seek approval from the Department of Primary Industries to vary the condition of the approval that required the carrying out of the soil and water management plan.
111 The project manager had no tertiary education or training or experience in the design of soil and water management measures, although he had had some field experience in installing soil and water control measures that had been designed by others with that expertise. The project manager did not undertake any calculations prior to implementing his soil and water management measures to determine the adequacy of the measures for various storm events including a storm event of the intensity and recurrence interval of that which occurred between 10 to 14 February 2005. The only calculation he did was after the event.
112 The project manager’s conduct in unilaterally departing from the soil and water management plan and implementing his own soil and water management measures was in direct contravention of the condition of the relevant approval for the auger mining issued by the Department of Primary Industries which required compliance with the soil and water management plan.
113 It was also in contravention of the terms of his employment that he “ensure areas within auger project comply with the soil and water management plan”. That this was in contravention of the terms of employment was recognised by the defendant, as shown by the written disciplinary warning that was given for failing to comply with the required environmental controls for the site.
114 In all the circumstances the conduct of the project manager and, vicariously of the defendant, was negligent. The negligence aggravates the commission of the offence.
Reasons for committing the offence
115 Although the offence was committed negligently, the defendant did not install the alternative soil and water management measures to gain any financial advantage. The decision of the project manager was undertaken in good faith and was intended to address the risk of erosion and runoff and water pollution. However, it fell short of the standard of what a reasonable person would have done in response to the clearly foreseeable risk of erosion, runoff and water pollution if the approved measures in the soil and water management plan were not undertaken.
Foreseeable risk
116 The harm to the environment, namely the LT Creek and Fennell Bay, by reason of the discharge of sediment-laden water from the site was clearly foreseeable. The only measures that had been professionally evaluated and approved were the measures in the approved soil and water management plan. It was clearly foreseeable that to depart from those measures and implement measures that had not been evaluated by those with the relevant professional expertise and approved by the regulatory authorities may result in the alternative measures being inadequate to deal with erosion runoff and pollution of waters.
Practical measures
117 There were clearly practical measures that could have been taken to have prevented the commission of this offence. The most obvious measure that could and should have been taken was to implement the approved soil and water management plan to the letter. If the auger mining activities needed to be varied and some modification of the soil and water management measures in the approved soil and water management plan needed to be made, the practical measure would have been to seek professional advice from Umwelt and Parsons Brinckerhoff to devise an alternative soil and water management scheme. Furthermore, a practical measure would have been to seek from the Department of Primary Industries a variation of the condition of approval which required the carrying out of the auger mining activities in accordance with the approved soil and water management plan. This would have involved preparing an alternative soil and water management plan which could then be evaluated by the Department of Primary Industries. It would have involved demonstrating that the alternative scheme would be at least as effective as the approved scheme for controlling erosion, erosion and water pollution.
118 No evidence or submission has been put that the taking of these measures would not have been practical.
Control over causes
119 The defendant clearly had control over the causes that gave rise to the offence. It could have implemented the soil and water management plan as required. Of course the defendant did not have control over the rainfall event but the soil and water control measures are designed to deal with rainfall events of that intensity and duration.
Complying with orders
120 The head of consideration under s 241(1)(e) of the Act is not applicable.
Surrounding circumstances
121 The offence did not a series of criminal acts. Although the alternative soil and water management measures were installed and maintained from the commencement of the auger mining operation in November 2004 until the pollution incident in February 2005, the only occasion on which the measures were shown to be inadequate was during the storm events between 10 and 14 February. Those measures were upgraded thereafter.
122 The surrounding circumstances referred to by the defendant’s submissions have been dealt with in the preceding sections and will be dealt with also in the following section.
Conclusion on objective gravity
123 Taking each of these factors into account the offence is of medium objective seriousness. The commission of the offence negligently, the foreseeability of the risk of harm, the practical measures that would have avoided the foreseeable risk of harm and the control that the defendant had over the circumstances leads to the conclusion that it is of medium objective seriousness.
Subjective circumstances
124 A proportionate penalty must take account not only of the objective gravity of the offence but also the subjective circumstances of the particular offender. In this case there are significant subjective circumstances in the favour of the defendant.
No prior convictions
125 The defendant has no prior convictions for environment offences. Although the longevity of the operation of Centennial Newstan has not been precisely identified, nevertheless there was an existing underground coalmining operation that has been carried out for many years. The particular auger mining activities were, of course, of recent origin, only having commenced some three months before the pollution incident. Nevertheless, as the defendant submitted, the fact that the defendant has been able to operate its coalmining activities without any conviction for environmental pollution offences is a factor in its favour.
Good character
126 Prior good character is an established mitigating factor for corporations. The extent to which the corporation has endeavoured to be an environmentally responsible corporate citizen is relevant. This will include the extent to which a corporation has sought to comply with environmental laws including the one breached, the adoption of appropriate in-house corporate environmental principles and the existence and implementation of an internal environmental compliance program. It may also involve the carrying-out of good works in the community.
127 There is no doubt that Centennial Coal, being the parent company, has a good corporate character, both generally and in relation to environmental matters. That is set out in the evidence of Mr Myors. Furthermore, insofar as Centennial Newstan is a wholly owned subsidiary of Centennial Coal, the defendant is required to implement policy directives of the parent company. These include the implementation of Centennial Coal’s environmental management system and the developing of environment and community management standards in accordance with the environmental management system. In addition, Centennial Newstan has undertaken its own community projects. These include a range of local environmental projects with LT Creek land care, the local school and other activities that have been referred to by the defendant in submissions and set out above. The good character of the defendant is a factor in its favour.
Plea of guilty
128 As both the prosecutor and defendant have submitted, the defendant pleaded guilty at the first available opportunity and is entitled to a discount reflecting the full utilitarian value of such a plea. This would be the maximum 25 per cent.
Contrition and remorse
129 If the defendant expresses contrition and remorse in respect of its conduct, the defendant is entitled to a further discount beyond that given for the utilitarian value of a guilty plea. As noted in Environment Protection Authority v Waste Recycling Processing Corporation [2006] NSWLEC 419 (10 July 2006) at [203] - [215], contrition or remorse is more readily shown by the offender taking actions rather than merely offering an apology through their legal representative. In this case the following actions are relevant.
130 First, the defendant did take actions to abate the ongoing pollution that was being caused. The measures the defendant took were the installation of a pump into the coal handling plant sedimentation system to pump water away from LT Creek on the morning of 14 February 2005, the installation of straw bales into spillways on each of those three dams to act as a sediment filter for discharge on the morning of 14 February 2005 and the construction on 17 February 2005 of additional dams to capture any discharge from the upper catchment sedimentation dam.
131 It is true, as the prosecutor said, that there was some delay in the taking of these actions. The defendant has not adequately explained why it did not take action upon Mr Alston noting the overflow occurring on 10 February 2005 or undertake subsequent monitoring and action on subsequent days. An explanation proffered for not taking action on 13 February 2005 when the defendant was notified by the Department of Environment and Conservation was that that day was a Sunday.
132 However, this is not a complete answer because whatever day pollution occurs it is incumbent upon a defendant to take steps to abate any pollution incident that is occurring. If that occurs on a weekend or at night nonetheless a defendant is under an obligation to carry out such steps. The law that prohibits the pollution of waters is not operable only during working hours, it continues 24 hours a day, 7 days a week. It is incumbent upon defendants to take steps to ensure they have a workforce that is able to respond to incidents whenever they occur. The consequence is that there were measures that could have been taken prior to the morning of 14 February 2005.
133 However, from the morning of 14 February 2005, the measures that were taken by the defendant would seem to be adequate. The overflow indeed ceased during 14 February 2005 so further abatement measures were not required. It is true that it then took some weeks before more comprehensive measures were taken to address a recurrence of the problem in the future. However, there is no evidence to suggest that the fact that these measures took a number of weeks had any consequence for the environment. The measures that were ultimately taken and that were in place by 9 March and then subsequently by April 2005, were adequate. There was considerable expenditure involved in carrying out those activities.
134 Accordingly, I consider that the actions that the defendant did take to abate the harm and to prevent its recurrence in the future is evidence of some contrition and remorse by the defendant.
135 The improvement of both the physical systems for managing soil and water on the site and for improving the managerial and administrative structures that the defendant has undertaken also indicates a genuine desire of the defendant to act responsibly.
136 Finally, the evidence given by Mr Myors, senior manager in Centennial Coal, expressing the corporation’s contrition and remorse and the appearance in court of senior managers is also an indication of genuine corporate contrition.
Assistance to authorities
137 The defendant did cooperate with the relevant authorities including providing an incident report. It consulted and implemented measures to upgrade the soil and water control system on site. It has agreed a statement of facts in this case. It has agreed to pay the prosecutor’s costs, in the sum of $28,000.
Synthesis of objective and subjective considerations
138 Taking into account both the factors which result in the conclusion that the offence is of medium objective seriousness, as well as the considerable subjective factors in favour of the defendant, I consider that an appropriate penalty for the offence would be $50,000.
Type of penalty
139 Both the prosecutor and the defendant submitted that this is a case where it is appropriate for the Court to make an order under s 250(1)(e) of the Act, coupled with a publication order under s 250(1)(a), in lieu of a fine. The orders that are set out in Pt 8.3 of the Protection of the Environment Operations Act, which includes the orders under s 250, may be made by the Court regardless of whether any penalty is imposed or other action taken in relation to the offence: see s 244 (2) and (3). There have been cases in this Court where the Court has imposed an order under Pt 8.3 of the Act, notwithstanding that it has not ordered the defendant to pay a fine. One example is the decision of Pearlman J in Environment Protection Authority v Simplot Australia Pty Limited [2001] NSWLEC 264 (25 October 2001) at [22], [23] and [28].
140 I accept that this is a case where it is appropriate to take the course urged by the prosecutor and the defendant and that is to make an order under s 250(1)(e), together with a publication order on s 250(1)(a), instead of imposing a fine.
141 I should note that it is important that if an order is made under s 250 (1)(e) or, for that matter, an order under s 250(1)(c), a publication order generally should also be made. It is important to publicise to the community at the time an order under s 250(1)(c) or (e) is made that the works that will be carried out as a result of the order are being undertaken as a result of the offender committing an offence and not for other reasons, such as the offender being an altruistic citizen.
142 In addition to making orders under s 250(1)(e) and (a), it is also appropriate that the defendant pay the prosecutor’s professional costs which have been agreed in the sum of $28,000.
Orders
143 Accordingly, the Court makes the following orders:
1. The defendant is convicted of the offence as charged.
3. The defendant, at its expense, and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 must:2. The defendant, pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, is ordered to pay the sum of $50,000 to the Hunter-Central Rivers Catchment Management Authority to be held by that authority for the purposes of undertaking the works specified in the project brief - LT creek bushland rehabilitation and in-stream works.
- (a) within 14 days of today publish the contents of annexure A in the first 12 pages of the early general news section of the Sydney Morning Herald at a minimum size of at least 137 millimetres in width;
- (b) within 14 days of today publish the contents of annexure A in the first 5 pages of the Newcastle Herald at a minimum size of one-quarter of a page; and
- (c) the defendant is to pay the prosecutor’s legal costs of the proceedings agreed in the sum of $28,000.
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
PRESTON CJ
31 OCTOBER 2006
50010 OF 2006
Annexure AENVIRONMENT PROTECTION AUTHORITY V CENTENNIAL NEWSTAN PTY LIMITED
CENTENNIAL NEWSTAN PTY LTD
Guilty of polluting water
On 31 October 2006, the New South Wales Land and Environment Court found CENTENNIAL NEWSTAN PTY LTD guilty of polluting water at Fassifern NSW on 13 February 2005.
The pollution occurred after rain on 10 February 2005, when CENTENNIAL NEWSTAN PTY LTD failed to prevent the discharge of sediment-laden waters from a dam at Newstan Colliery, Wakefield Road, Fassifern. The sediment-laden water entered L T Creek, which flows to Fennell Bay in Lake Macquarie.
CENTENNIAL NEWSTAN PTY LTD pleaded guilty to the charge.
1. pay $50,000 toward Hunter-Central Rivers Catchment Management Authority, for its LT Creek Bushland rehabilitation and instream works project;On 31 October 2006 CENTENNIAL NEWSTAN PTY LTD was convicted and ordered to:
2. pay the prosecutor’s costs of $28,000; and
3. place this publication notice (paid for by Centennial Newstan Pty Ltd). CENTENNIAL NEWSTAN PTY LTD was prosecuted by the EPA, part of the Department of Environment and Conservation (NSW).
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