Environment Protection Authority v Ferrcom Pty Ltd

[1999] NSWLEC 162

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Ferrcom Pty Ltd [1999] NSWLEC 162

PARTIES

PROSECUTOR
Environment Protection Authority

DEFENDANT
Ferrcom Pty Ltd

NUMBER:

50014 of 1999

CORAM:

Cowdroy J

KEY ISSUES:

Environmental Offences :- Pollution - failure to remove potentially harmful waste from industrial site contrary to notice

LEGISLATION CITED:

Environmental Offences and Penalties Act 1989
Waste Minimisation and Management Act 1995 s 65(1), s 65(3)
Pollution Control Act 1970 17D(3)
Land and Environment Court Act 1979 s 52(2)

DATES OF HEARING:

08/16/1999

DATE OF JUDGMENT DELIVERY:

08/26/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D Samuels (Solicitor)

SOLICITORS
Environment Protection Authority

DEFENDANT
Mr D Wilson (Barrister)

SOLICITORS
Lamrocks Solicitors

JUDGMENT:

Facts

1. By summons class five issued on 22 March 1999 the prosecutor charges the defendant that on or about 21 May 1998 it committed an offence against the Environmental Offences and Penalties Act 1989 (“the EOP Act”) by failing to comply with a notice pursuant to s 65(1) of the Waste Minimisation and Management Act 1995 (“the WMM Act”) contrary to s 65(3) of that Act.

2. The defendant has pleaded guilty to such charge and accordingly the only question for consideration is the determination of penalty.

3. The defendant is the holder of licence no 004103 issued under the provisions of the Pollution Control Act 1970 (“the PC Act”) in respect of its premises identified as 3 Harford Street Penrith (“the site”). At the site heavy steel fabrication activities took place including grit blasting and spray painting.

4. On 4 March 1997 Mr Kenneth Ralph Hardy, an Environmental Protection Officer requested the defendant to forward copies of the Material Safety Data Sheet to him. Such sheets relate to the correct procedure for the storage and disposal of contaminated blast material.

5. In consequence of investigations a notice pursuant to provisions of 17D(3) of the PC Act 1970 was served on the defendant amending its licence conditions. The new conditions imposed by the notice prohibited spray painting and grit blasting at the site. Simultaneously a notice was served pursuant to the provisions of s 65 of the WMM Act requiring the defendant to remove all waste in the form of spent blast material from the premises by 30 August 1997.

6. An inspection of the premises conducted on 24 September 1997 revealed that the requirements of the notice issued under s 65 of WMM Act had not been satisfied in that spent blast material had not been removed from the site. Another notice was served pursuant to s 65 of the WMM Act dated 2 October 1997. It required the defendant to remove all waste in the form of above ground spent blast material from the site by the 24 December 1997.

7. An inspection on 2 February 1998 revealed that whilst some spent blast material had been removed, a considerable amount of waste remained on the site. It was piled approximately one metre high and covered two-thirds of the floor within the semi-enclosed building.

8. On 6 February 1998 a facsimile was sent by the defendant to the prosecutor requesting a further fourteen weeks with which to comply with the notice. In consequence another notice was served pursuant to the provisions of s 65 of the aforesaid Act requiring the defendant to remove all spent waste from the site by 20 May 1998.

9. On 21 May 1998 Mr Hardy again inspected the site and found spent blast material accumulated in the roadside gutter system outside the defendant’s premises and on the roadway. He entered the defendant’s premises and found that a large amount of spent blast material had not been removed from the site. A record of interview was conducted with Mr Arrigo Ferrarese who is the managing director of the defendant. It was apparent the material had accumulated on the site over many years and that the managing director was not prepared to give any indication of the date upon which compliance could be effected.

Penalty

10. The existence of the notices issued prior to that which is before the court are not relevant in the assessment of penalty other than to establish that the prosecutor considered that grounds existed for their issue.

11. There was apparently no sound reason for the non-fulfilment of the requirements of the notice other than the fact it was inconvenient for the defendant to undertake the removal of the accumulated blast material because of cost implications. Such failure suggests a casual attitude towards the requirements of environmental regulation.

12. The maximum fine for an offence under s 65(3) of the WMM Act is $15,000. Pursuant to s 9(a) of the EOP Act the court is required to consider the extent of harm caused or likely to be caused to the environment by the commission of the offence. The evidence of Helen Mary Davies, an analyst engaged by the prosecutor establishes that there was the likelihood of harm to the environment if dust particles containing a concentration of copper, lead, arsenic and zinc was transported via the gutters and drainage system into a creek approximately 400 m distance from the site and then into a river system. Upon her analysis, human receptors could also be at risk through the inhalation of such dust particles. Her evidence establishes that the concentration of arsenic, lead and zinc in the defendant’s yard significantly exceeded the human health investigation levels for industrial or commercial sites. The copper concentration marginally exceeded such level. All four elements were likely to pose harm to the environment. Whilst this analysis may be the worst consequence, the fact remains that there is no evidence of actual harm being occasioned.

13. Pursuant to s 9(b) of the EOP Act, the court is required to consider the practical measures which might have been taken to prevent, control, abate or mitigate harm. The evidence establishes that the defendant’s premises were enclosed on three sides and a curtain akin to shade-cloth, hung over the remaining side. According to the evidence of Ms Davies, the building on the site should be enclosed to ensure that no passer by could inhale any particles. The defendant could have taken steps to remove such risk but failed to do so.

14. As to the extent of harm which could have been foreseen, the defendant has conducted its business at the premises for many years. It was licensed to pollute in accordance with conditions attached to its licence. The defendant has elected not to call evidence but the court can readily infer that it was aware of the toxic nature of the substances used at its site.

15. A consideration of s 9(d) and s 9(e) of the EOP Act establishes that there is no doubt the defendant had control over its operations and the employees involved at the site were acting in accordance with their instructions.

Mitigation

16. The defendant has pleaded guilty at an early stage of the proceedings. It has also now co-operated with the prosecutor by removing all blast spent material from the site. Such co-operation, and an early plea of guilty entitles a defendant to consideration in the assessment of penalty in accordance with the principles referred to in Camilleri Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700 - 701. There was no escape of pollutants, and no known harm has been incurred. Finally, the defendant has no convictions for environmental offences.

Orders

17. The court orders:-

1. The defendant be convicted of the above offence as charged.

2. The defendant be fined the sum of $6,000.

3. The defendant be ordered to pay the prosecutor’s costs provided by s 52(2) of the Land and Environment Court Act 1979 as amended.

4. The exhibits be returned.