Environment Protection Authority v Greater Taree City Council
[2014] NSWLEC 88
•30 June 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Greater Taree City Council [2014] NSWLEC 88 Hearing dates: 9 December 2013 Decision date: 30 June 2014 Jurisdiction: Class 5 Before: Sheahan J Decision: See Orders at paragraph [53]
Catchwords: ENVIRONMENTAL OFFENCES: Rupture of leachate discharge pipe - poorly repaired at an earlier time - plea of guilty - clear environmental record - genuine remorse, and comprehensive remedial measures adopted. Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Protection of the Environment Operations Act 1997Cases Cited: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357
Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) [2014] NSWLEC 74
Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171
Environment Protection Authority v Baiada Poultry Pty Limited [2008] NSWLEC 280; (2008) 163 LGERA 71
Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278
Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349
Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255
Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101
Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120
EPA v Cargill Australia Ltd [2007] NSWLEC 337
Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210
R v Rushby (1977) 1 NSWLR 594
R v Thomson; R v Houlton [2004] NSWCCA 309; (2000) 49 NSWLR 383Category: Sentence Parties: Environment Protection Authority (Prosecutor)
Greater Taree City Council (Defendant)Representation: Mr A MacDonald, solicitor (Prosecutor)
Mr C R Ireland, barrister (Defendant)
Environment Protection Authority (Prosecutor)
Minter Ellison Lawyers (Defendant)
File Number(s): 50249 of 2013
Judgment
Introduction
The Charge
The Greater Taree City Council ("the Council") has pleaded guilty to the following charge brought by the prosecutor ("the EPA"), that (par 1 of the Summons dated 10 April 2013 - some emphasis and references added):
... it committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 ["POEO Act"] in that it polluted waters.
Particulars
(a) Waters:
A tributary of Dennes Creek and downstream to Dennes Creek.
(b) Pollutant:
Leachate and/or ammonia.
(c) Manner of contravention:
(i) The Defendant was the occupier of premises [POEO Act s 257], being The Bucketts Way Resource Recovery Facility, The Bucketts Way, Tinonee (the Premises), from which pollution occurred; and/or
(ii) The Defendant failed to maintain a leachate pipe leading from the Premises in such a condition as to prevent the Pollutant entering the Waters.
(d) Date on which evidence of the alleged offence first came to the attention of an authorised officer:
Evidence of the alleged offence first came to the attention of authorised officer Danielle Marie Playford on 13 April 2012.
The Council accepts that, in particular (a), the definition of the subject waters should be read and interpreted as follows (Tp28, LL25-35, per counsel for the defendant, Mr C R Ireland):
... I don't think there's any dispute about this, that the actual waters the subject of the charge are described as a tributary of Denny's Creek and downstream to Denny's Creek. We've taken the view that that's sufficient to describe a reference to Denny's Creek itself. So the defendant is content to interpret the particulars in the summons in that way. There's of course an alternative interpretation which is that the charge relates to the unnamed tributary up to the point of it entering Denny's Creek. But as I say, given a plea of guilty has been entered I don't think anything turns in that except I do think it's worthwhile noting that that is a precise description of the waters. But of course the evidence deals both with impact on Denny's Creek and the unnamed tributary and that is of course entirely appropriate.
The hearing
By agreement between Mr Ireland, and Mr A MacDonald, appearing for the prosecutor, the hearing proceeded on the basis of a Statement of Agreed Facts ("SAF" - Exhibit P1), which I will detail in the next major section of this judgment (commencing at [17] below).
The parties also agreed upon an Agreed Bundle of Documents (Exhibit P2), which included (at tab 1) the landfill facility's Environment Protection Licence ("EPL"), and (at tab 4) the Council's Waste Services Contract with J R Richards & Sons.
In their written and some oral evidence, the parties' respective experts (Bruce Chessman, for the EPA, and Paul Anink, for the Council), were also in substantial agreement. Exhibit C1 is a series of 17 photographs taken by Anink during their joint inspection on 24 November 2013. The prosecutor raised no objection to the tender of those photographs.
The Council also relied upon the contents of a detailed affidavit sworn by its General Manager, Gerard Michael Jose, on 27 November 2013, which was admitted without objection.
The Orders sought
Apart from any monetary penalty that the court might decide to impose, the maximum being $1 million (POEO Act s 123(a)), the EPA's summons seeks three other types of order(s):
(a) An order for its costs (par 3),
(b) "Such orders pursuant to Part 8.3 of the [POEO Act] as the Court in its discretion sees fit to make" (par 4), and
(c) "Such other order or orders as the Court sees fit to make" (par 5).
On the question of costs, the parties agreed that the defendant will pay the EPA's investigation costs of $20,492, and its professional costs of $37,000, i.e. a total of $57,492.
Part 8.3 of the POEO Act is headed "Court orders in connection with offences", and includes, inter alia, the following sections (some emphasis added):
Section 243 provides:
Operation of Part
(1) Application to proved offences
This Part applies where a court finds an offence against this Act or regulations proved.
(2) Meaning of proved offences
Without limiting the generality of subsection (1), a court finds an offence proved if:
(a) the court convicts the offender of the offence, or
(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 against the offender in relation to the offence (in which case the order is not a punishment for the purposes of that section).
...
Section 244 provides:
Orders generally
(1) Orders may be made
One or more orders may be made under this Part against the offender.
(2) Orders are additional
Orders may be made under this Part in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.
...
Section 250 relevantly provides:
Additional orders
(1) Orders
The court may do any one or more of the following:
(a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,
...
(c) order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit,
...
The Local Court is not authorised to make an order referred to in paragraph (c)...
(2) Machinery
The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.
...
The Prosecutor sought orders under both s 250(1)(a) and (1)(c), but the parties agreed upon the form such orders should respectively take:
250(1)(a) a local publication order in terms of Exhibit P5; and
250(1)(c) an order that Council must fund the Taree Urban Waterways Riparian Regeneration Project ("the project"), described in Exhibit P4.
In respect of the project detailed in Exhibit P4, Mr Ireland said in his written submissions (at par 92):
92. A project has been identified that would involve the Defendant contributing $50,000 for bush regeneration/installing a gross pollutant trap in the Taree area. The Defendant is prepared to voluntarily pay a "top up" contribution up to that amount over and above any order of the Court, to allow that project to be completed with Council funds, although of course the amount that would be required as a penalty would be less than $50,000 if the above submissions are accepted.
and during his oral submissions he had the following exchange with me (at Tp26, LL 28-38):
HIS HONOUR: You concur in the proposal, you're not going to argue for a $50,000 penalty but you're going to argue that if you do get a $50,000 penalty or more that this project will be okay?
IRELAND: Yes, the way I'd be putting it your Honour is if there's any top up required by my client then my instructions are that council will top up the project to the value of $50,000. So I'll be contending that a lower penalty is appropriate, as your Honour would no doubt perhaps anticipate, but the other way of approaching it would be is that if your Honour wishes to make a specific order restricted to an element of the project it is divided up there in monetary terms but I'd submit that that may not be necessary because my clear instructions are, and council can indicate to the Court that it does propose to carry out that project to the full value, so it would simply be a matter of the order reflecting any lower amount if the Court chooses to impose a fine of a lower amount.
No other specific orders (par 5 of summons) were sought, or would appear necessary or appropriate.
In both his written and oral submissions, Mr Ireland put to the Court that the appropriate level of fine, in all the circumstances of the case, would be $30,000, after discounts (subs par 89, and Tp42, LL38 - 40). He declined an opportunity to ask the Court for an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 ("the CSP Act")(Tp51, LL17 - 24).
The relevant facts
The SAF (Exhibit P1) says, in a section headed "Background":
1. The Bucketts Way Landfill (the Landfill) is a solid waste landfill located approximately 3km south of Taree, NSW. The Landfill is located on Lots 330 and 331 DP 45878 and Lot 212 DP 7535202, Tinonee, NSW. The Defendant, Greater Taree City Council (Council) owns the Landfill and holds Environment Protection Licence number 6262 (EPL) in respect of the Landfill. The EPL was issued on 14 July 2000. A copy of the EPL is behind tab 1 of the Agreed Bundle of Documents.
2. Approximately 80 metres west of the Landfill's south western boundary is Dennes Creek. Dennes Creek flows into the Manning River. An unnamed watercourse that is a tributary of Dennes creek (the Unnamed Watercourse) runs nearby the south western boundary of the Landfill before joining Dennes Creek. Dennes Creek flows through a culvert underneath Beauly Road at a point downstream of the point where the Unnamed Watercourse joins Dennes Creek. A map of the area is behind tab 2 of the Agreed Bundle of Documents.
3. The EPL permits, among other things, the activity of "Waste disposal (application to land)" for General Solid Waste (non-putrescible), General Solid Waste (putrescible), Waste Tyres and Asbestos of no more than 30,000 tonnes per annum in total.
4. The Landfill infrastructure includes three leachate ponds, in the south western corner of the Landfill. Leachate is liquid generated by the decomposition of land-filled waste. Leachate is gravity fed to the ponds. When leachate in the ponds reaches a certain level, it engages a float pump that allows the leachate to be discharged from the ponds via an underground poly pipe running approximately 1 kilometre in length. The pipe runs from the south western corner of the Landfill and runs roughly parallel to The Bucketts Way and then runs north roughly parallel to Beauly Road, then connects to a MidCoast Water sewerage main. A map showing the route of the underground pipe is behind tab 3 of the Agreed Bundle of Documents.
5. The Landfill itself is operated by J R & E G Richards (NSW) Pty Ltd t/as JR Richards & Sons (JR Richards) pursuant to a Waste Services Contract with the Council. However, the Council was, at all relevant times, contractually responsible for management of the leachate pipe system. The Waste Services Contract and Amended Clause C2.8 is at tab 4.
6. A further Google map of the area showing the leachate ponds (marked on the map as "1" and "2" (on the same pond), "3" and "4") is behind tab 5 of the Agreed Bundle of Documents.
The SAF then deals with "Leachate pipe repairs in 2007":
7. In 2007, the leachate pipe became blocked with sludge. To clear it, Council workers dug holes at various points along the route of the pipe in order to access the pipe. The workers then cut it in a number of places to flush the pipe and clear the blockages. The pipe sections were then joined back together with a temporary clamp, until all of the blockages were cleared. The workers then placed a more secure clamp over the joins where the pipes were cut. The temporary clamp consisted of a stainless steel "sleeve" with rubber inside. The more secure clamp had "sharks teeth" which enabled it to grip more securely.
8. At this time or at some point afterwards, a hole was dug to access the pipe at a location near The Bucketts Way. The pipe was cut and then the two pieces of the pipe were joined back together using only the temporary clamp. This is the location from which the April 2012 leachate spill the subject of this charge occurred. It is marked as "Break Location" with a purple triangle on the map behind tab 2 of the Agreed Bundle of Documents. A photograph of the temporary clamp which failed is behind tab 6 of the Agreed Bundle of Documents.
The SAF continues:
THE INCIDENT
9. On or about 6 April 2012, the temporary clamp that had been connected at the break location failed and one end of the pipe slipped out. As leachate was pumped out, it escaped from the gap between the pipe and the clamp. Leachate filled up the hole that had been dug to access the pipe at this location, then overflowed and ran downhill to the Unnamed Watercourse.
10. Leachate fanned out as it ran down the slope and covered an area of up to 10m in width at the point where it entered the Unnamed Watercourse.
11. Leachate travelled through the Unnamed Watercourse and entered Dennes Creek at the point of their intersection. Leachate travelled approximately 800m down Dennes Creek, but did not make it as far as the Manning River, as Council employees sandbagged Dennes Creek on 14 April 2012 to prevent this occurring. The leachate pump had also been switched off on 10 April 2012 by JR Richards' regional manager. At the time of the leak, neither the Unnamed Watercourse nor Dennes Creek had an even flow, as both were more like a series of ponds with only a light surface flow, together with a base flow which kept the isolated pools topped up.
12. Between 13 April 2012 and 16 April 2012 about 535,000 litres of contaminated water (containing a mix of leachate, ponded surface water and additional residual base flow coming into the ponds over the pumping period) were pumped out from the Unnamed Watercourse and Dennes Creek and taken back to the leachate ponds.
Notification of Council
13. Helen Bennett lives on Beauly Road, north west of the Landfill. On both 7 and 8 April 2012 (Easter Saturday and Easter Sunday of 2012) Ms Bennett drove past Dennes Creek and observed that the water was black near the Beauly Road crossing. On 9 April 2012 Ms Bennett again drove past but stopped her car and noticed that the water was black with a strong rotten smell. Ms Bennett telephoned John Tisdell, the Landfill's weighbridge operator (an employee of JR Richards) and they had a conversation in words to the effect of:
HB: The water in the creek is black and I think it's coming from the landfill.
JT: I will ring Amanda Chapman from Council tomorrow morning.
14. Mr Tisdell informed Tony Evans, the regional manager for JR Richards and manager of the Landfill. Mr Evans requested another JR Richards employee to check the leachate ponds for signs of any spill or escape. The employee did so and saw nothing amiss. No further action was taken and Council was not notified.
15. At about 6am on Tuesday, 10 April 2012, Mr Evans checked Dennes Creek and observed discolouration. Suspecting it may be leachate, as a precaution, Mr Evans decided to stop pumping leachate from the leachate ponds for the time being. No further pumping took place until 13 April 2012.
16. On the same day, Council's Senior Waste Officer Amanda Chapman returned to work following the Easter break. At the time her usual supervisor, Sharon Mitchell, was on leave (Ms Mitchell was on leave throughout all relevant events). One of Ms Chapman's duties was to oversee the Landfill operations, including ensuring that the Licence was complied with and dealing with administrative work relating to the contract with JR Richards. As part of her role, Ms Chapman would visit the Landfill each morning to conduct a general check.
17. At about 7.15am on 10 April 2012, Ms Chapman arrived at the Landfill. When she arrived, Mr Tisdell told her of his conversation with Ms Bennett. Ms Chapman looked around the leachate ponds but did not observe any signs of leachate escaping.
18. Ms Chapman returned to her office in Taree and at approximately 10.30am received a phone call from Ms Bennett. Ms Bennett told Ms Chapman that the water in Dennes Creek at the Beauly Road crossing was black and that she thought it was coming from the Landfill. Ms Chapman told Ms Bennett that she had done sampling in that area in February 2012 and that sampling indicated that there was no leachate entering the Creek.
19. At this point, Ms Chapman took the view, based on the February sampling, that the problem could have been a "black water event". A "black water event" is a natural occurrence where leaf litter and other vegetation breaks down and releases tannins and other chemicals which cause a black colouration of a watercourse.
20. Ms Chapman took no further action that day, both due to her doubts as to the cause of the discolouration and also because by that time, she would not be able to deliver any water samples to MidCoast Water before the afternoon of the following day.
21. On the following day, Wednesday 11 April 2012, Ms Chapman drove to Dennes Creek near the Beauly Road crossing, to inspect the Creek and take water samples. Ms Chapman noticed a dark discolouration but did not notice any leachate-type odour or other odour. Ms Chapman took a sample of the discoloured water. Ms Chapman also took samples of water upstream of the location where leachate was entering Dennes Creek. Ms Chapman observed that the upstream water was no different to how it usually appeared.
22. Ms Chapman sent the samples to MidCoast Water labs with a request for urgent analysis. At about 8.45pm on Thursday, 12 April 2012, Ms Chapman received a call from a staff member of the labs. The staff member told Ms Chapman that the sample of discoloured water revealed an ammonia level of 74.1 mg/L. Ammonia is a key indicator of leachate. The level of 74.1 mg/L is very high and indicated to Ms Chapman that the discolouration had most likely been caused by leachate from the Landfill. Ms Chapman immediately called Mr Evans from JR Richards and arranged to meet him near the Landfill early the next morning.
23. At about 6am on Friday, 13 April 2012, Mr Evans and another JR Richards employee went to the Landfill and walked along Dennes Creek and up to the Unnamed Watercourse, to try to find the source of the leachate. They arranged for the pump to be switched on, to assist in finding the leak. At one point along the Unnamed Watercourse, they discovered a dark liquid entering the watercourse. They traced it back to a hole in the ground, which was full of leachate and muddy water. The leachate was escaping and draining into the Unnamed Watercourse. They advised Ms Chapman. The leachate line that was exposed during inspection after the incident is shown at tab 7.
24. Ms Chapman emailed the NSW Environment Protection Authority's (EPA) Environment Line at 9.05am with details of the incident.
25. Between 13 April 2012 and 16 April 2012, JR Richards pumped contaminated water (containing a mix of leachate, ponded surface water and additional residual base flow coming into the ponds over the pumping period) from the hole, the Unnamed Watercourse and Dennes Creek. In total, 45 tanker loads of water, totalling about 535,000 litres, were removed from the Unnamed Watercourse and Dennes Creek and taken back to the leachate ponds. Dennes Creek was sandbagged on the morning of 14 April 2012 to prevent leachate flowing into the Manning River.
The SAF then proceeds to deal with the relevant work done by the EPA:
OBSERVATION AND SAMPLING BY EPA
26. At about 9 a.m. on Friday 13 April 2012, EPA officer Noel Piercy drove along Beauly Road and observed a large tanker truck being used to pump liquid from Dennes Creek. Mr Piercy returned to the site at approximately 2.15 p.m. on that day, with EPA officers Danielle Playford and Sarah Jane Oakroot and visited the site of the JR Richards tanker and workers near where Beauly Road crosses above Dennes Creek.
27. Dennes Creek in this vicinity had the following characteristics:
(a) It was approximately 1 metre in width, with banks approximately 0.5 metres high. The topography of the creek was flat with a series of ponds. The creek was not flowing consistently. Logs and rocks of various sizes were in the creek bed;
(b) On the upstream side of the Beauly Road crossing, a dark brown liquid of consistent colour was ponded.
(c) The banks of the creek upstream were saturated above the level of the liquid; and
(d) The liquid within Dennes Creek downstream of the Beauly Road crossing was very dark and similar to that on the upstream side, although the odour of leachate was stronger downstream.
28. Behind tab 8 of the Agreed Bundle of Documents are various photographs taken by Danielle Playford on 13 April 2012 of the area.
29. Further downstream of the Beauly Road crossing (further away from the point where leachate entered Dennes Creek) the creek ponds were larger in size. Approximately 20 metres downstream, vegetation on the banks of the creek was thinner and the creek flowed through grassed paddocks. Approximately 200 metres from the creek on an elevated area of the northern side of the creek is Helen Bennett's property. This liquid in the creek in this vicinity was dark brown in colour but less so than that closer to the Beauly Road crossing.
30. Ms Playford and Ms Oakroot took various photographs at and water samples from:
· Dennes Creek at locations both upstream and downstream of the Beauly Road crossing;
· The location on the leachate pipe at the source of the leak;
· The zone of vegetation assumed by them to have been damaged by the leachate spill between the pipe leak and the Unnamed Watercourse; and
· Dennes Creek upstream of the Landfill.
[The SAF contains no paragraphs numbered 31 or 32]
33. These photographs are behind tab 8 of the Agreed Bundle of Documents.
34. Ms Playford advised Ms Chapman of the Council on 13 April 2013 that Dennes Creek needed to be sandbagged and pumped to mitigate the impact of the leachate, and that Council should advise residents to keep stock away from Dennes Creek. Sandbags were put in place on Saturday 14 April 2013.
Analysis of samples taken on 13 April 2012
35. The results of the samples taken by the EPA on 13 April 2012 are set out in the s 252 certificate dated 4 April 2013, submission no. 201200122 (behind tab 9 of the Agreed Bundle of Documents). These results indicated very high levels of ammonia in the samples taken downstream of the pipe leak into the Unnamed Watercourse and Dennes Creek (as opposed to samples taken upstream of the pipe leak, which had very low levels of ammonia).
Inspection on 9 May 2012
36. On 9 May 2012 EPA officers Danielle Playford and Grace Bell returned to the Landfill site to conduct an inspection and take further photographs. Copies of these photographs are behind tab 10 of the Agreed Bundle of Documents.
[The SAF numbering then re-commences with "33"]
Guidelines for ammonia levels in watercourses
33. The Australian and New Zealand Environmental Conservation Council Guidelines for Fresh and Marine Water Quality 2000 (ANZECC Guidelines) Chapter 3 - Aquatic Ecosystems provides default trigger values for physical and chemical stressors for south-east Australia for slightly disturbed ecosystems in Table 3.2.2. The trigger value in that table for ammonium in "Lowland rivers", which would include the Unnamed Watercourse and Dennes Creek, is 0.02mg/L.
Inspection on 17 May 2012
34. On 17 May 2012 Ms Playford and Ms Bell returned to Dennes Creek and took water samples at the four locations sampled on 13 April 2012, plus at another location 10 metres downstream of the confluence of Dennes Creek and the Unnamed Watercourse.
35. Analysis of those samples showed that ammonia levels in Dennes Creek and the Unnamed Watercourse had returned to normal levels.
Site inspection on 24 September 2012
36. On 24 September 2012 Ms Playford and Ms Bell conducted another inspection of Dennes Creek and took photographs of the area. New vegetation growth was present in the area around the leachate pipe leak. The creek was clear and light brown in colour. These photographs are behind tab 11 of the Agreed Bundle of Documents.
The SAF then records the following actions subsequently taken by Council:
37. Following this incident and the EPA's investigation, Council has taken the following action to reduce the risk of a similar incident occurring:
a) Increasing water sampling from every three months to every month to ensure repairs are effective;
b) introduction of a Pollution Incident Response Management Plan, as was required of all holders of environment protection licences by Part 5.7A of the Protection of the Environment Operations Act 1997;
c) Engaging an independent plumber to check the line every seven days;
d) Changing the inspection regime from monthly to weekly;
e) Continued quarterly servicing of the leachate pumps and scouring and flushing of the leachate lines;
f) Slashing of vegetation to enable better identification of the route of the pipeline;
g) Completely replacing all moving parts and joins in the leachate pipeline;
h) Designing and preparing to install a second leachate line that avoids any watercourse;
i) Installing gates in the pipes in the Beauly Road culvert so water flow can be stopped quickly;
j) Reviewing all procedural aspects of compliance with EPL requirements for the Landfill;
k) Undertaking probiotic treatment of the leachate ponds over a 12 month period by a third party consultant For Earth Pty Ltd;
I) installation of leachate interceptor drains at the point of construction of the tipping cell;
m) installation of a data logger and flow meter to the leachate pump which provide weekly readings that are provided to Midcoast Water;
n) engagement of consultants to increase the size of the leachate containment at the Landfill by increasing the size and capacity of pond 3; and
o) engagement of Midcoast Water undertake a complete replacement of the leachate line at the Landfill. This process has been delayed by the need by the defendant to assess any impacts of this proposal on local Koala habitat and any endangered ecological communities but is expected to be completed by the end of December 2013.
The SAF then notes, lastly, the following factors which are relevant to penalty (the three relevant paragraphs are not numbered in the SAF):
Cooperation with prosecutor
The Defendant has cooperated with the Prosecutor and its investigation from its commencement, and agrees to pays the Prosecutor's costs (legal and investigative) to the end of the sentencing hearing which amount to $57,492.00. [see [8] above]
Contrition
The Defendant is contrite and has expressed its regret for the incident.
Prior convictions
The Defendant has no prior convictions for any environmental offence.
Discussion
The very comprehensive SAF indicates a very large degree of common ground between the prosecutor and the defendant on virtually every issue of fact and law which the Court must consider in arriving at the appropriate penalty to impose on Council for this offence.
In their respective submissions, both counsel re-stated the oft-repeated sentencing principles this Court applies, and then, on the question of "evenhandedness", took the Court through many cases involving breaches of s 120.
I dealt at length with the relevant statutory provisions, sentencing principles, and influential authorities, in Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko ("Magdalene") [2013] NSWLEC 210, especially at [117] - [160], and [269] - [278], and I will not repeat that analysis here.
The Court must have regard to (a) the purposes of sentencing set out in s 3A of the CSP Act, relevantly, in cases like this, punishment, deterrence, denunciation, and a recognition of the harm done to the community; (b) various other sections of that Act to which I will soon refer; (c) the objects of the POEO Act (set out in s 3); and (d) the specific matters that s 241 of the POEO Act requires the sentencing court to consider.
Offences arise when the objects of the POEO Act are undermined, and Parliament has both defined offences, and prescribed major penalties for them.
The sentencing function requires an "instinctive synthesis" by the Court of the key objective and subjective factors of the particular case - see Pain J most recently in Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) [2014] NSWLEC 74, at [39] - [40]. I will return to those factors involved in this matter after I summarize what emerged from the hearing, and my view of the evidence.
It would be otiose to repeat the contents of the SAF, the short oral expert evidence, and the arguments of counsel, but the key matters to note from them are:
(i) that the defendant accepts full responsibility for the subject breach, which occurred in early April 2012 (Tpp 31 and 35);
(ii) that the breach really involved a failure, or "serious yet inadvertent mistake" by a council employee or contractor (Tp36, L28 and Tp41, LL23 - 25), to repair the relevant leachate pipe in 2007 in a more "permanent" way (Tp31), followed by Council's failure to test the pipe regularly and otherwise adequately monitor the pumping-out of leachate from its waste facility;
(iii) that both the law, and the defendant's EPL, which obliges compliance with s 120, recognize that leachate may be discharged, without resulting in an offence, as it "isn't so toxic that it requires containment" on all occasions (Tpp29, and 45 - 48);
(iv) that the polluting substance was the leachate sourced in the facility from green and domestic waste, not industrial waste (such as toxic resin), or sewage, or sediment-laden water, and that such leachate, while "relatively benign" (subs par 17), contained potentially harmful concentrations of ammonia (a key indicator of leachate), but no harmful chemicals;
(v) that the leak caused high levels of ammonia, which raised the alkalinity of the affected water "slightly", but the concentrations of ammonia "had returned to normal levels" by 17 May 2012, and environmental recovery was assisted by significant rainfall (Tp33);
(vi) that there is no evidence that, of itself, and apart from some tannin staining, the leaking leachate harmed the non-wetland (Tp47) soil or vegetation, or killed any significant aquatic organisms (fish, crayfish etc, c.f. micro-invertebrates - Tp45), or that the affected watercourse sustained anything more than short-term toxic harm (Tp32), leaving no detectable residual impact (Tp34);
(vii) that this case involved none of the aggravating factors, but several of the mitigating factors, nominated in s 21A of the CSP Act;
(viii) that the defendant is entitled to rely on its exemplary record of no convictions over 40 years of operating the facility (s 21A(3)(e));
(ix) that the defendant is also to be commended for its prompt and expensive response to the incident, not only in terms of clean-up, and co-operation with the authorities (ss 21A(3)(m) and 22 of the CSP Act), but also in terms of measures taken since, to re-route the leachate line, organize training, improve the facility, and put "multiple layers of protection" in place, to minimize the likelihood of, and the degree or harm flowing from, future similar incidents (Tp37, and Ireland subs pars 36 - 40);
(x) that the defendant is entitled to a discount (under ss 21A(3)(k) and 22 of the CSP Act) for entering its plea of guilty as soon as the prosecutor had filed its evidence and its statutory disclosure statement, and has otherwise demonstrated contrition and remorse (s 21A(3)(i) of the CSP Act), including by agreeing to orders under s 250 of the POEO Act, and to the payment of the prosecutor's legal costs and investigation expenses.
The objective circumstances to bring into the "instinctive" synthesis in this case include the high maximum penalty ($1 million) against which to sentence; the degree of environmental harm caused; the foreseeability of the risk of that harm; the practical measures available to the Council to prevent the risk; and the control over the causes of the offence.
The defendant's state of mind is not a concern in this case, and its degree of control over causes is clear from the EPL and the operating contract, and it is clear that Council has since done what it could and should have done all along, by way of practical measures to prevent the risk - ensure proper and more permanent joints, check the pipe and take samples regularly, put culvert/waterway gates in place, better train staff etc.
There is little to add to the SAF and what I have already said on the modest and short-term or transient harm caused, which had no lasting residual impact (Ireland subs pars 16 and 30). The prosecutor accepts (subs par 14) that its expert agrees with the defendant's expert. I, therefore, accept Mr Ireland's submission (his subs par 48) that actual environmental harm in this case is "in the low range".
On the question of foreseeability, I would adopt again, as I did in Environment Protection Authority v Chillana Pty Ltd ("Chillana") [2010] NSWLEC 255, what Preston J said in another ruptured pipe case, Environment Protection Authority v Baiada Poultry Pty Limited ("Baiada") [2008] NSWLEC 280; (2008) 163 LGERA 71 (at [28] - [31] - some emphasis added):
28 The risks that the effluent pipe might rupture and that effluent might pollute waters were reasonably foreseeable. Indeed, Baiada's own risk assessment ... (July 2006) identified the risk of rupture of the pipes in the plant's effluent system.
29 However, Baiada submitted that the extent or degree of foreseeability of this risk was low. Baiada's risk assessment had stated that "it is felt unlikely in the extreme that other pipes for the effluent system would be subject to rupture". Baiada submitted that the effluent pipe had been installed only a couple of years before the leak occurred; it had been installed by a licensed plumber who had previously been contracted by Baiada to perform plumbing work at the plant; Baiada had no knowledge that the weld of the T-fitting had not been done in accordance with the relevant Australian Standard; and the pipe was underground so that any defect was not discernible by usual observation without excavation and specific inspection.
30 These submissions may be accepted as far as they go. They are matters that show an absence of knowledge by Baiada about the integrity of the pipe. However, they do not show that Baiada took any steps to form a positive belief in the integrity of the pipe or took any steps to monitor the continued integrity of the pipe or took precautions to prevent pollution if the pipe lost integrity for any reason.
31 Experience also shows, time and again, that accidents happen. As Mahoney JA said in Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 359:
"The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur."
Relevant subjective circumstances to synthesise in this case include the lack of any deliberate or planned failure on Council's part; its exemplary environmental record; the unlikelihood of it re-offending; its timely plea; assistance to authorities; the remedial operational response of Council; and the various indicia of contrition and remorse.
Of themselves, those subjective factors bring me to the conclusion that specific deterrence is not called for in this case.
In terms of general deterrence, I would again adopt some sentencing remarks made by Preston J. In another case involving leachate, Environment Protection Authority v Ballina Shire Council ("Ballina") [2006] NSWLEC 289; (2006) 148 LGERA 278, his Honour said (at [65] - [68]):
65 The sentence of the Court is an important denunciation of the conduct of the defendant.
66 The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597-598.
67 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354; and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93].
68 The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts.
Those remarks indicate why it is difficult for the Court to grant a s 10 order to a public authority or a properly licensed waste operator.
The causative failures of Council in this case could be described as "systemic", and in that regard some further remarks made by Preston J in Ballina (at [88] - [93]) are instructive:
88 In relation to ... systemic failure, it is evident ... that there was no proper system of management or control in place from the outset. Mr Truman, the responsible manager of the Department overseeing public infrastructure works of the Council including the landfill, gave evidence that, regrettably, he had not read the licence or understood the content of the conditions, including condition M6.2, before September 2004. He had not instructed any employees in relation to the licence or its condition. He had no knowledge whether the employees knew of the conditions of the licence. There was no system of reporting to Mr Truman as the responsible manager. He was unaware that there was any breach of the conditions of the licence until September 2004.
89 ... There is no evidence that the General Manager was aware of the conditions of the licence or was aware of any of the problems that were being encountered in the field in relation to the landfill.
90 The Council had implemented a system of audit, by Mr Sutherland, on a quarterly basis since 2002. This involved providing audit reports in writing and holding debriefings on those audit reports with Council staff. Unfortunately those reports and those briefing meetings did not involve either Mr Truman as the responsible manager or, seemingly, the General Manager until September 2004.
91 Mr Sutherland said that he had repeatedly requested the monitoring data, both in the quarterly audit reports and in the meetings with Council staff. Mr Sutherland said that he was told that it would be forthcoming, but it never was. Eventually in despair, Mr Sutherland wrote the letter dated 2 September 2004 directly to the Mayor to bring the matter to a head.
92 Mr Truman, as manager, did seem to be aware of the fact that infrastructure problems were being encountered on a regular basis, including in relation to the new leachate system. However, he failed to require the auditor to report to him about those matters and failed to see what would be the consequence of these infrastructure problems in relation to the relevant licence and operating conditions.
93 The extent of the systemic failure that is outlined by both Mr Truman and by Mr Mulder, as well as by Mr Sutherland, makes this an objectively serious matter.
In this present case, less criticism can be levelled at the defendant Council and its systems. Very senior officers have been involved in the new systems Council has put in place, and personally attended the sentencing hearing to affirm Council's contrition, and its resolve to maintain its "proud environmental record" (Tp34, LL15 - 27). Council's efforts were conceded by the prosecutor, and I accept Mr Ireland's submission (subs par 58) that Council has "excellent corporate character".
In particular reference to Council's contrition and remorse, I accept (1) Mr Jose's evidence (par 28), confirming it in "sincere and genuine terms" (Tp38, L15), and (2) Mr Ireland's written submissions (pars 20 and 60), which say:
20. The Defendant is contrite and has expressed its regret over the incident. The Defendant unreservedly apologises for the incident, which it does not regard as acceptable as a matter of its own high environmental management standards which it strives to implement as the local authority with its own role and interest in ensuring compliance with environmental law and good environmental outcomes.
...
60. The Defendant by its conduct has shown remorse for the offence by accepting responsibility for its actions. This is further evidenced by:
(a) its proactive approach to responding to the incident;
(b) the identification and implementation of measures to improve leachate management, including a whole new pipeline that avoids Dennes Creek entirely and heads North more directly to the sewer;
(c) the express acceptance of responsibility for the incident and expression of regret for the incident;
(d) its plea of guilty at the earliest opportunity; and
(e) its agreement to pay the prosecutor's agreed costs.
In terms, therefore, of reaching a conclusion on the "objective seriousness" of this offence, I find that it was an "isolated incident" (Tp40, L20), where a good citizen must accept responsibility for the consequences of inadequate repairs carried out on its behalf at an earlier time. The defendant accepts overriding responsibility to ensure that such overflows do not occur (Tp48, LL 28 - 30).
No two cases of s 120 water pollution are exactly the same, and the Court was long troubled with endeavouring to formulate a range, scale, or gradation of "seriousness" - see Magdalene, at [233] - [249].
The prosecutor submits (par 26) that this offence is in the "low to mid" range of objective seriousness. Mr Ireland uses descriptions such as "the lowest end ... of the moderate range of seriousness" (subs par 1), "low to very low objective gravity" (par 52), "the lower end of the range of seriousness" (par 85), "very much ... in the lowest range" (Tp39, LL29 - 30), and "perhaps at most the mid range of the lower range" (Tp52, L29).
Both counsel took a more empirical approach, taking the Court to a selection of relevant precedents - a handful in the case of the prosecutor, and more in the case of defence counsel.
The prosecutor referred the Court to Baiada, Ballina, Chillana, Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120, and EPA v Cargill Australia Ltd [2007] NSWLEC 337. Mr Ireland referred to 19 cases.
The maximum fine for a s120 offence was increased fourfold in 2006, but the cases discussed in submissions were under both the old and new regimes. I will not attempt to analyse all of the cases here, but I note that, in respect of his analysis of them, Mr Ireland put to the Court (Tp42, LL29 - 33) that:
" ... in general where the Court dealing with an offence that's characterised as of higher than lower or moderate objective seriousness, it's only then it appears from a review of the cases in general that a penalty of more than $50,000 appears to be regarded as reasonable."
and (at Tp49, LL9 - 11):
" ... it's really only when one gets into the moderate objective serious category that on the present stream of authorities the Court is likely to go above the $50,000 level."
Mr Ireland's oral submissions then went on to discuss Pepper J's decision Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101. Her Honour found "systemic failures" on the defendant's part, and concluded that backburning operations for which it was charged were of "low to moderate objective gravity" ([150] - [151]). Mr Ireland commented (Tp49, L23 - p50, L16):
Quite distinct in my submission your Honour from the situation in the present case where there were many substantial systems in place from a contractual regime to ongoing environmental training that had been in place for a number of years. And what failed was a pipe that had been buried for some years after a temporary repair that was though to be sufficient at the time no doubt and which came apart a number of years after the initial repair. Now in retrospect it's accepted that it should have been repaired with a permanent clip rather than a temporary clip, but nevertheless this isn't a case where in my submission there have been identified what could be properly characterised as systemic failures leading to the commission of the offence. It's a regrettable and unfortunate incident in my submission and quite different from there being a thorough going system of inadequate environmental management and oversight. So that case is one also that I rely upon as indicative that the penalty of around $30,000 that in my submission is an appropriate one in this case, is well supported having regard to the stream of recent authorities.
...
In the present case I'd made the submission that we are, at most, at the mid range of the lower end of objective seriousness or even at the lower end of the low range. It's a case where there was actual environmental harm so perhaps that gets the case out of the very lowest range but certainly what environmental harm there was, was confined to a particular kind of aquatic invertebrates upon life, if you like, and it was extremely transient and corrected very quickly by the next substantial period of rain that occurred immediately after the incident in question.
In my submission having regard to the expert evidence in this case the facts of this case and the substantial evidence of council's good conduct both before and after the incident and council's responsiveness as a result of this incident and the fact that it has resulted in a significant fillip to council's already admirable efforts in the area of environmental management and active improvement of its environmental management in its local area.
Mr Ireland went on (from Tp50, L11) to affirm his submissions that a penalty discounted to $30,000 would be "appropriate" in the present case, but that the Council would "contribute voluntarily up to the amount of $50,000" for the agreed project (in Exhibit P4), which (Tp50, LL23 - 33):
" ... goes directly to the environmental area in question in terms of the improvement of water quality in the Manning River and the surrounding system is of importance in terms of indicating my client's approach to environmental mattes, its proactive approach to environmental matters and the fact that it approaches matters properly and responsibly as I have indicated based on other affidavit evidence. It's a concrete manifestation of that approach and the fact council is standing behind that project and willing to contribute in that way underscores in a practical way the material is Mr Jose's affidavit."
The $30,000 "fine", net of deductions, and the $50,000 project contribution, of which it could be made part, were included in Mr Ireland's written submission (pars 88 - 92), filed and served prior to the hearing, but were not traversed by the prosecutor in its submissions.
The authorities to which I have been referred would indicate to me a fine in the order of $50,000 for this offence, subject to discounts.
I see no basis for any discount beyond a discount of 25% for the utilitarian value of the timely guilty plea - see R v Thomson; R v Houlton [2004] NSWCCA 309: (2000) 49 NSWLR 383, and my discussion of discounts in Magdalene at [122] - [128], and [269] - [278].
I will, therefore, order, in lieu of imposing a fine, a contribution of $37,500 to the agreed project.
The orders of the Court will, therefore, be:
(1) The defendant is found guilty, and is convicted, of the offence with which it was charged in the prosecutor's summons dated 10 April 2013.
(2) By way of penalty, and in lieu of a fine, the defendant is ordered, pursuant to s 250(1)(c) of the Protection of the Environment Operations Act 1997, to allocate, within 28 days from the date of this order, an amount of $37,500 towards the project known as the "Taree Urban Waterways Riparian Regeneration Project", and described in Annexure "B" to this judgment, but the Court notes the defendant's undertaking, through its counsel to the Court, to increase that contribution to the amount of $50,000.
(3) The defendant is further ordered, within 21 days from the date of this order, to place a notice in the Manning River Times, at a size of at least 10cm by 15cm, in the form of Annexure "A" to this judgment, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997.
(4) All future references to the works the subject of the environmental service order referred to in Order (3) hereof, and in the notice in Annexure "A", must be accompanied by the following passage:
These bushland regeneration works are part of a penalty imposed on Greater Taree City Council by the Land and Environment Court after it was convicted of an offence of polluting waters, being Dennes Creek and a tributary of that creek, in April 2012.
(5) The defendant is ordered to pay to the prosecutor, within 28 days, an amount of $57,492, in respect of professional legal costs and investigation costs and expenses.
(6) Exhibits P2, P3 and C1 may be returned.
**********
Annexure A Annexure B
Decision last updated: 04 July 2014
2
10
2