Environment Protection Authority v Hawkesbury City Council - [2017] NSWLEC 39

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39
Hearing dates: 22 March 2017
Date of orders: 06 April 2017
Decision date: 06 April 2017
Jurisdiction: Class 5
Before: Pain J
Decision:
See par 84

Catchwords:
SENTENCE – environmental offence – plea of guilty to charge of water pollution from sewage treatment plant – moderate objective seriousness - mitigating factors considered – totality applied

SENTENCE – environmental offence – plea of guilty to charge of failure to comply with licence condition – moderate objective seriousness – mitigating factors considered – totality applied
SENTENCE – environmental offence – plea of guilty to charge of failure to comply with licence condition – low objective seriousness – mitigating factors considered
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22, 23
Criminal Procedure Act s 257B
National Parks and Wildlife Act 1974 s 30J
Protection of the Environment Operations Act 1997 ss 3, 64, 120, 123, 241, 244, 248, 250, Dictionary
Cases Cited: Axer Pty Ltd v Environment Protection Agency (1993) 113 LGERA 357
Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683
Director-General of the Department of Environment & Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137
Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289
Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26
Environment Protection Authority v Port Kembla Copper Pty Ltd (2001) 115 LGERA 391; [2001] NSWLEC 174
Environment Protection Authority v Port Kembla Copper Pty Ltd [2003] NSWLEC 256
Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 120
Environment Protection Authority v State of New South Wales (Department of Environment, Climate Change and Water) (2010) 174 LGERA 19; [2010] NSWLEC 67
Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Hoare v R (1989) 167 CLR 348; [1989] HCA 33
R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
Category: Sentence
Parties: Environment Protection Authority (Prosecutor)
Hawkesbury City Council (Defendant)
Representation:
COUNSEL:
A Essex, solicitor (Prosecutor)
T Howard (Defendant)
SOLICITORS:
Office of Environment and Heritage (Prosecutor)
Marsdens Law Group (Defendant)

File Number(s): 16/184785, 16/184832, 16/235234

Judgment

Sentencing

The Defendant Hawkesbury City Council (the Council) has pleaded guilty to three offences under the Protection of the Environment Operations Act1997 (POEO Act). Those offences relate to two separate incidents occurring at the South Windsor Sewage Treatment Plant (“the Premises”) on different dates between 16-20 July 2015 (matter nos 16/184785 and 16/184832, “July incident”) and between 6-9 August 2015 (matter no 16/235234, “August incident”).
The July incident offences for which the Council has been charged are:

Pollution of waters pursuant to s 120(1) of the POEO Act between about 18-20 July 2015 (matter no 16/184785);

Failure to comply with a licence condition pursuant to s 64(1) of the POEO Act between about 16-20 July 2015 (matter no 16/184832).

The August incident occurred at the same Premises. The offence for which the Council has been charged is failure to comply with a licence condition pursuant to s 64(1) of the POEO Act between about 6-9 August 2015.
The offences are strict liability so that no element of the offences has a mental component. The pleas of guilty mean that the essential elements of the offences are admitted by the Council, R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 275.

Summons (16/184785)

The Summons filed by the Prosecutor the Environment Protection Authority (EPA) on 17 June 2016 in relation to the pollution of waters offence during the July incident contained the following particulars:

Particulars
a. Waters
An unnamed ephemeral creek within the Windsor Downs Nature Reserve located approximately 300m to the west of the Licensed Premises and downstream thereof.
b. Pollutant
Sewage.
c. Manner of breach
The Defendant was the occupier of the Licensed Premises, at which the Defendant placed the Pollutant or caused the Pollutant to be placed in the Waste Activated Sludge Balance Tank, from where it flowed through an uncapped pipe into the Decant Pit, and then into the Premises' stormwater drainage system and descended into the Waters.

Summons (16/184832)

The Summons filed by the EPA on 17 June 2016 in relation to the contravention of licence offence during the July incident contained the following particulars:

Particulars
a. Licence
Environment Protection Licence number 3306.
b. Licence Condition Contravened
Condition O1.1 which states:
Licensed activities must be carried out in a competent manner. This includes:
a) The processing, handling, movement and storage of materials and substances used to carry out the activity; and
b) The treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.

c. Manner of breach
The Defendant failed to carry out its licenced activity of sewage treatment in a competent manner, in that it attempted to move sewage products from the Sludge Lagoon to the Waste Activated Sludge (WAS) Balance Tank, to the Biological Reactors via a temporary pipe on the Premises, in the following circumstances:
i.   Council employees had modified the pipes in the Decant Pit so that part of a pipe in the Decant Pit was removed and the end of that pipe was not capped;
ii.   there was no procedure in place to check that the modifications to the pipes in the Decant Pit had been done appropriately;
iii.   there was an unmarked stormwater outlet at the bottom of the Decant Pit leading to the Premises' stormwater drainage system and to the point of discharge from the Premises;
iv.   staff were not adequately trained and/or informed about the stormwater systems in place and were not aware that there was a stormwater outlet at the bottom of the Decant Pit;
v.   the stormwater drains and outlets were not signposted and there was no stormwater diagram available to Council staff;
vi.   the Pontoon Pump, pumping sewage products from the Sludge Lagoon to the WAS Balance Tank, was left on from approximately 11 am on Saturday 18 July 2015 until 7 am on Monday 20 July 2015;
vii.   there was no overflow alarm on the WAS Balance Tank to alert operators that the tank had overflowed; and
viii.   employees did not carry out thorough inspections of the plant on the Premises at the end of shifts or on weekends.
As a consequence the Defendant caused sewage to discharge into the Premises' stormwater drainage system, and off the Premises into an unnamed ephemeral creek in the Windsor Downs Nature Reserve between about 18 July 2015 and 20 July 2015.

Summons (16/235234)

The Summons filed by the EPA on 4 August 2016 in relation to the contravention of licence offence during the August incident contained the following particulars:

Particulars
(a) Licence:
Environment Protection Licence number 3306 issued to the defendant.
(b) Licence condition:
02.1 All plant and equipment installed at the premises or used in connection with the licensed activity:
(a) must be maintained in a proper and efficient condition; and
(b) ...

(c) Manner of breach:
The plant and equipment at the premises was not maintained in a proper and efficient condition in that:
(i)   several bolts affixing the motor of a pump to the volute in the mixed liquor recycling pit had:
a.   come loose; or
b.   were not sufficiently tightened;

such that the motor partially detached from the volute, allowing partially treated sewage to escape; and/or
(ii)   a float switch in the dewatering pit was faulty such that:
a.   the float switch failed to activate the pump in the dewatering pit when liquid reached the float switch high level; and/or
b.   the float switch failed to activate an alarm message, via the SCADA system, to indicate that liquid had reached the float switch high level or to indicate that the pump had failed,

which allowed partially treated sewage to escape.

Protection of the Environment Operations Act 1997

Sections 64(1) and 120(1) of the POEO Act provide:

Part 3.4 Licence conditions
…
64 Failure to comply with condition
(1)   Offence
If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence.
Maximum penalty:
(a)   in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b)   in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

Part 5.3 Water pollution
120 Prohibition of pollution of waters
(1) A person who pollutes any waters is guilty of an offence.

Evidence

The parties usefully agreed on two statements of agreed facts (SOAF) relevant to the July and August incidents which were tendered at the sentencing hearing. The statements refer to tabs (annexures) which are not included in this judgment. The statements and their annexures became Exhibits A and B in these proceedings.

July Incident

BACKGROUND
Hawkesbury City Council
1.   Hawkesbury City Council (ABN 54 659 038 834) (HCC) owns and operates a sewage treatment plant at Fairey Road, South Windsor, NSW. This sewage treatment plant is known as South Windsor Sewage Treatment Plant (the Premises).
2.   HCC holds Environment Protection Licence 3306 (EPL) for the Premises allowing HCC to carry out sewage treatment. A copy of the EPL as at July 2015 can be found at Tab A.
3.   The EPL includes condition O1.1 which provides:
O1.1 Licensed activities must be carried out in a competent manner.
This includes:
a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and
b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.

The Premises
4.   The Premises are located at the southern end of Fairey Road, South Windsor. They are bordered to the north, west and south by the Windsor Downs Nature Reserve (the Nature Reserve), and to the east by agricultural land and private residences.
5.   A map showing the location of the Premises and the Nature Reserve (the Map) is at Tab B. The blue line on the Map represents the boundary of the Premises.
The WAS Balance Tank, Decant Pit and Sludge Lagoon
6.   The areas of and plant at the Premises that are most relevant to this incident are the Waste Activated Sludge (WAS) Balance Tank, the Decant Pit adjacent to the WAS Balance Tank, the Macerator Pit, the Sludge Lagoon, the Stormwater Collection Pit and the Stormwater Discharge Pit.
7.   These areas are marked on the Map as follows:
a. “A” - the Sludge Lagoon;
b. “B” - the WAS Balance Tank;
c. “'C” - the Decant Pit
d. “D” - the Macerator Pit;
e. “E” - the Stormwater Collection Pit; and
f. “F” - the Stormwater Discharge Pit.

8.   There are two biological reactors at the Premises used to treat sewage sludge and wastewater. Activated sewage sludge is used and produced as part of this treatment.
9.   As part of the process, excess sludge, known as waste activated sludge, is periodically wasted (pumped) from the biological reactors to the WAS Balance Tank. The sewage sludge settles in the WAS Balance Tank, which allows separation of sludge from supernatant liquid.
10.   There is a floating decant system in the WAS Balance Tank which automatically directs the supernatant liquid from the WAS Balance Tank to the Sludge Lagoon when the supernatant liquid reaches a pre-set level of about 5.4m-5.8m. The start and stop levels for decanting are set by the operator and monitored by a radar level sensor connected to the supervisory control and data acquisition (SCADA) system at the Premises. The SCADA system is a system for remote monitoring and control that operates with coded signals over communication channels. It can be used via a computer screen to start and stop pumps to which it is connected, and to view details related to sensors and alarms at the Premises.
11.   There is also a turbidity sensor floating in the WAS Balance Tank to measure the clarity of the supernatant liquid in the WAS Balance Tank. The decant system automatically directs supernatant liquid to the Sludge Lagoon only when the turbidity of the supernatant liquid is below a specified threshold, namely 0.18 to 0.2 %. When the turbidity is above this threshold, the automatic decant valve closes and decanting ceases. When the decanting is to take place, the automatic outlet valve opens and supernatant liquid flows through piping, via the Decant Pit, to the Sludge Lagoon. This process occurs automatically based on the SCADA setting set by the operator.
12.   The WAS Balance Tank also has a manual decant facility. This facility can be used to decant the supernatant liquid manually when the floating decant system or automated decant valve is out of operation due to maintenance or failure.
13.   The solids from the WAS Balance Tank are piped into the Macerator Pit and then into the centrifuge within the sludge dewatering facility for dewatering. Biosolids are then taken offsite by a licenced contractor for beneficial use and/or landfill.
14.   If the sewage sludge or supernatant liquid in the WAS Balance Tank fills up to a high level, it overflows via an emergency overflow pipe. The overflow pipe feeds underground into a T intersection, where it joins the decant line. During normal operations, the overflow pipe transfers WAS Balance Tank overflow via the T intersection piping to the Sludge Lagoon.
15.   A photograph showing the overflow pipe (coloured blue) is at Tab C.
16.   The Decant Pit is a pit adjacent to the WAS Balance Tank that houses pipes and fittings for the flow of supernatant liquid from the WAS Balance Tank to the Sludge Lagoon as part of the decant process. The Decant Pit is a concrete pit that provides access to the decant pipes and fittings for maintenance purposes.
17.   The dimensions of the inside of the Decant Pit are 1.89 metres by 1.87 metres, with a height of about 0.85 metres. The volume capacity of the Decant Pit is approximately 3 cubic metres (or 3,000 litres).
18.   There is a sump on the floor of the Decant Pit which connects, via ag piping, to stormwater. The sump is 300mm by 300mm in size, and 50mm deep. The floor of the Decant Pit angles at a fall of 50mm towards the sump. A photograph showing the sump in the Decant Pit is at Tab D.
19.   A schematic showing the Decant Pit is at Tab E. Photographs showing the Decant Pit are at Tab F.
20.   Prior to 2013, waste activated sludge from both biological reactors was pumped into the Sludge Lagoon daily for additional stabilisation and thickening, before being pumped to a mobile beltpress or a hired centrifuge for dewatering.
21.   HCC now utilise a newer sludge dewatering facility, so waste activated sludge is now pumped from the bioreactors to the WAS Balance Tank and then to the sludge dewatering facility, and can, if necessary, be diverted into the Sludge Lagoon as required.
22.   The Sludge Lagoon now receives supernatant liquid from the WAS Balance Tank as well as centrate liquid from the biosolids dewatering process of the centrifuge dewatering facility. The Sludge Lagoon also contains historical (pre-2013) sewage sludge.
23.   Prior to the overflow incident, the Sludge Lagoon contained about 4,700 cubic metres of sewage sludge.
24.   There is a weir attached to the Sludge Lagoon. Supernatant liquid and centrate that is pumped into the Sludge Lagoon settles, and the upper less turbid supernatant liquid layer flows into the weir. From the weir, the supernatant liquid drains into biological reactors 1 and 2 at the Premises for treatment.
25.   A photograph of the weir in the Sludge Lagoon is at Tab G.
26.   A schematic showing the location of the WAS Balance Tank, the Decant Pit, the Sludge Lagoon, the Sludge Lagoon weir and biological reactor 2 is at Tab H. Decision to clean the Sludge Lagoon
27.   Sometime prior to 16 July 2015, HCC staff decided that the level of supernatant liquid in the Sludge Lagoon should be lowered to enable the removal of the solid sludge material in the bottom of the Sludge Lagoon. HCC planned to pump out approximately one metre of supernatant liquid floating over the settled sludge in the Sludge Lagoon prior to commencing removal of the settled sludge.
28.   HCC Wastewater Supervisor, Michael Stewart, discussed how to pump out the Sludge Lagoon with HCC Waste Manager, Ramiz Younan, and HCC Engineer Krishnan Thiyagaraja. It was decided that the best way to lower the level of supernatant liquid in the Sludge Lagoon was to firstly remove some piping in the Decant Pit, connect a flexible hose to the pipe through which supernatant liquid decants from the WAS Balance Tank to redirect it to the Sludge Lagoon weir (and then into the biological reactors), and then to pump the supernatant liquid from the Sludge Lagoon into the WAS Balance Tank.
Thursday 16 July 2015
29.   On Thursday 16 July 2015, HCC Operator in Charge, Joshua Hawke, and three other HCC employees, under the direction of the HCC Engineer Krishnan Thiyagaraja, modified the pipework in the Decant Pit. A section of the pipework in the Decant Pit was removed and a temporary flexible pipe was attached to one end of the pipework. The temporary flexible pipe was extended around the Sludge Lagoon and into the Sludge Lagoon weir. The other end of the pipework in the Decant Pit was left uncapped and remained open.
30.   The open pipe was not capped.
31.   These modifications directed decant from the WAS Balance Tank around the Sludge Lagoon, into the Sludge Lagoon weir and back into the treatment processes. In normal operations, decant from the WAS Balance Tank is piped into the Sludge Lagoon.
32.   Photographs showing the inside of the Decant Pit with attached temporary flexible pipe are at Tab I.
33.   In order to pump supernatant liquid from the Sludge Lagoon into the WAS Balance Tank, HCC staff used a pump on a pontoon within the lagoon (the Lagoon Pump). Photographs of the Sludge Lagoon and the Lagoon Pump are at Tab J. Friday 17 July 2015
34.   On Friday 17 July 2015, the HCC Engineer directed the HCC Wastewater Supervisor to cap the open pipe in the Decant Pit. The HCC Wastewater Supervisor did not cap the open pipe as he was not aware that the sump in the Decant Pit connected to stormwater.
Saturday 18 July 2015
35.   At about 10:30-11:00am on Saturday 18 July 2015, HCC Wastewater Supervisor Michael Stewart switched the Lagoon Pump from the automatic setting to the manual setting and turned it on, in order to pump out supernatant liquid from the Sludge Lagoon into the WAS Balance Tank. 36. At 10:49am the WAS Balance Tank began filling with supernatant liquid from the Sludge Lagoon.
37.   Mr Stewart left the Premises at about 1:30pm on Saturday 17 July 2015 without turning the Lagoon Pump off. He was the last HCC staff member to leave the Premises on 18 July 2015.
38.   As a result, the Lagoon Pump continued pumping and the water level in the Sludge Lagoon dropped to the level of the sewage sludge. The Lagoon Pump then began to pump sewage sludge into the WAS Balance Tank.
39.   The automatic decant system within the WAS Balance Tank decanted supernatant to the Sludge Lagoon weir from about 2:54pm on Saturday 18 July 2015 until about 1:17pm on Sunday 19 July 2015. From about 1:17pm on Sunday 19 July 2015, the decant valve closed as the turbidity exceeded the threshold.
40.   SCADA screenshots/printouts showing the liquid level in the WAS Balance Tank from Saturday 18 July 2015 to Monday 20 July 2015 are at Tab K.

41.   The WAS Balance Tank then continued to fill until the emergency overflow level was reached at about 5:22pm on Saturday 18 July 2015.
42.   At about 5:22pm, sewage sludge overflowed from the WAS Balance Tank through the overflow pipe. During normal operations, the overflow pipe discharges via T intersection piping into the Sludge Lagoon, however on 18 July 2015, the overflow flowed through the pipework in two directions, to the Sludge Lagoon and into the Decant Pit. The overflow flowed into the Decant Pit through the uncapped open pipe.
43.   The open pipe should have been capped either during the set-up of the temporary flexible pipe arrangement in the Decant Pit on 16 July 2015, or after the HCC Engineer instructed the HCC Wastewater Supervisor to cap the pipe on 17 July 2015, but it was not capped. Photographs showing the pipe which was not capped at the time of the incident are at Tab I.
44.   The sewage sludge drained from the Decant Pit through the sump via underground ag piping into the Stormwater Collection Pit located at the rear of the WAS Balance Tank. From there the sewage sludge flowed via underground piping into the Stormwater Discharge Pit.
45.   The sewage sludge filled the Stormwater Discharge Pit, then overflowed out of the pit and across the Premises, following the natural contours of the land. Photographs showing the Stormwater Discharge Pit as at 22 July 2015 are at Tab L.
46.   The sewage sludge flowed through bushland located at the rear of the Premises and onto an internal service road leading to the Premises western gate. The point at which the sewage sludge flowed onto the internal service road is marked 'G' on the Map.
47.   At the western gate, the sewage sludge pooled for approximately 10-15 metres along the fence line, and flowed through a 15-20 metre section of the gate and fence onto the fire trail. The western gate is marked 'H' on the Map.
48.   The fire trail runs parallel to the fence line of the Premises between the Premises and the Nature Reserve.
49.   The sewage sludge then flowed through the Nature Reserve until it reached Rifle Range Road approximately 50 metres from the Premises boundary. It then flowed through a culvert under Rifle Range Road, and further into the Nature Reserve.
50.   The sewage sludge then entered an ephemeral creek in the Nature Reserve and followed the bed of that creek downstream. Sewage sludge flowed approximately 400 metres down the ephemeral creek.
51.   The overflow travelled approximately 500-600 metres in total from the Premises Western Gate into the Nature Reserve.
52.   The yellow line on the Map at Tab B shows the approximate path of the overflow from Rifle Range Road into the Nature Reserve to the west.
53.   A map prepared by HCC showing the path of the overflow is at Tab M.
54.   Photographs taken on Wednesday 22 July 2015 are attached as follows:
a.   Tab N - One photograph showing some sewage sludge on the Premises internal service road.
b.   Tab O - Four photographs showing sewage sludge along the Premises western boundary fence line and leading through the western gate onto the fire trail.
c.   Tab P - Four photographs showing sewage sludge and turbid water on the fire trail.
d.   Tab Q - Five photographs showing sewage sludge and turbid water in the ephemeral creek in the Nature Reserve.

55.   A screenshot/printout from the HCC SCADA system showing the level of sewage sludge in the WAS Balance Tank from 18 to 20 July 2015 is at Tab R.
Sunday 19 July 2015
56.   From 6:00am until about 7:30am on Sunday 19 July 2015, two HCC on call employees were working at the Premises.
57.   One of the employees checked the SCADA alarms. There were no SCADA alarm messages on 19 July 2015.
58.   The employees walked or drove around the Premises, but did not notice the overflow.
59.   The employees were not aware that the overflow level had been reached in the WAS Balance Tank and were not aware that the pump in the Sludge Lagoon was operating.
Monday 20 July 2015
60.   On Monday 20 July 2015, the HCC Operator in Charge, Joshua Hawke, arrived at work and checked the SCADA. The SCADA showed that the WAS Balance Tank had reached the emergency overflow level and was not decanting.
61.   Mr Hawke instructed HCC Wastewater Operator Matthew Haines to go and check the WAS Balance Tank. Mr Haines noticed that the level in the Sludge Lagoon was very low and that the pump was running in the Sludge Lagoon. He notified Mr Hawke and turned off the Lagoon Pump at about 7:08am.
62.   When the Lagoon Pump was turned off, the Decant Pit was half full. Mr Hawke opened the decant valve on the WAS Balance Tank manually via the SCADA.
63.   Mr Hawke then pumped out and hosed down the Decant Pit.
64.   HCC staff did not become aware that sewage sludge had discharged off the Premises until a telephone call was received from a member of the public at approximately 12pm on Monday 20 July 2015. That person reported a sewage spill on land adjoining the Premises.
65.   After receiving the report from the member of the public, HCC Wastewater Supervisor Mr Stewart investigated the report and identified that sewage sludge from the WAS Balance Tank had overflowed into the Decant Pit, through stormwater piping, out onto the back bush portion of the Premises and onto adjoining land.
66.   At 12:45pm, HCC staff notified the EPA of the overflow via the Environment Line. HCC staff also subsequently notified Penrith local Public Health Unit, the WorkCover Authority of NSW, Hawkesbury City Council Regulatory Services Branch, Fire and Rescue NSW and the National Parks and Wildlife Service.
67.   At about 1:30pm, the sewage sludge flow was stemmed at the Premises boundary to prevent further overflow into the Nature Reserve. HCC staff dug a channel in the road on the Premises in an attempt to divert and contain the flow of sewage sludge to a path along the fence line within the Premises. HCC staff also put hay bales along the fence line to prevent sewage sludge continuing to leave the Premises.
68.   HCC staff organised for a sullage tanker from Premier Pump Out to assist with the clean-up, and an estimated 20,000 litres of mixed water and sewage sludge was sucked up into the tanker on 20 July 2015 and disposed of at the Premises treatment plant.
69.   On the afternoon of 20 July 2015, HCC arranged for Transpacific Industrial Services staff to attend the Premises to assess the overflow at the Premises and in the Nature Reserve and to provide advice on the clean-up.
Volume and content of overflow
70.   Approximately 543,840 litres of sewage sludge discharged out of the Stormwater Discharge Pit as a result of the overflow. Of this, approximately 78,125 litres of sewage sludge remained on the grounds of the Premises.
71.   Approximately 465,715 litres of sewage sludge flowed off the Premises onto the fire trail and into the Nature Reserve, including into the ephemeral creek, as a result of the overflow.
72.   The sewage sludge that overflowed from the WAS Balance Tank and ultimately off the Premises into the Nature Reserve was partially digested sewage sludge containing an average solids concentration of 2%.
73.   Sewage sludge in the WAS Balance Tank typically had the following characteristics:
a.   Biological oxygen demand - 1,210mg/L.
b.   Faecal coliforms - 16,000cfu /100ml.
c.   Ammonia Nitrogen-42mg/L.
d.   pH-7.2.
e.   Total Phosphorus - 190mg/L.
f.   Total Nitrogen - 430mg/L

74.   HCC took samples from 20 July 2015 until 21 August 2015 on the Nature Reserve at. two locations; one upstream in the ephemeral creek, and one downstream in the ephemeral creek.
75.   EPA Officer Rebecca Whiteside took eleven samples from five locations within and near the Nature Reserve on 22 July 2015.
Clean-up
76.   HCC contracted Transpacific Industrial Services to carry out the clean-up of the sewage sludge on the Nature Reserve following the incident. Transpacific staff attended the Premises and the site of the overflow in the Nature Reserve on Monday 20 July 2015.
77.   Between 21 July and 5 August 2015, Transpacific Industrial Services staff carried out clean-up work at the Premises and within the Nature Reserve. This clean-up work involved manual removal of sewage sludge, excavation of sewage sludge, and collection of sewage sludge, stormwater and hose down water using sucker trucks.
78.   Between Tuesday 21 July and Friday 31 July 2015, Transpacific collected approximately 1,073,000L of sewage sludge, hose down water and stormwater from within the Nature Reserve. This material and water was discharged into the Premises treatment system for retreatment.
79.   On 6-7 August 2015, rain simulation on the affected areas in the Nature Reserve was carried out by the NSW National Parks and Wildlife Service.
80.   On 14-18 September 2015, Transpacific Industrial Services spread bark over the affected area.
81.   Photographs showing the clean-up of the sewage sludge in the Nature Reserve are at Tab S.
82.   HCC spent approximately $293,000 on the clean-up of the overflow.
CAUSE OF THE OVERFLOW
Pipe in Decant Pit uncapped
83.   HCC failed to cap the open pipe in the Decant Pit after the modification of the pipework in the pit on 16 July 2015.
84.   The HCC Engineer instructed the HCC Wastewater Supervisor to cap the pipe on Friday 17 July 2015. The Wastewater Supervisor did not cap the pipe as he considered that the pipe should be left open to act as an emergency overflow pipe back to the sludge lagoon in the Decant Pit if needed. No procedure in place to check modifications to Decant Pit pipework
85.   The modifications to the Decant Pit pipework were not recorded.
86.   The changes made to the pipework in the Decant Pit were made after verbal discussions only. There was no procedure in place regarding carrying out the modifications. There was also no written procedure in place to check that the modifications had been done appropriately, however the HCC Engineer was instructed to check the modifications during initial consultation to verify they were carried out correctly, and did carry out a check of the modifications and give verbal instructions in relation to the capping of the pipe on Friday 17 July 2015.
Unmarked stormwater outlet at bottom of Decant Pit
87.   The sump connected to stormwater at the bottom of the Decant Pit was not marked or otherwise identified as being connected to stormwater. HCC Staff not adequately trained regarding stormwater
88.   HCC operational staff working at the Premises were not trained in relation to the stormwater drainage system at the Premises.
89.   HCC Engineer Mr Thiyagaraja was aware of the existence of the stormwater drainage system at the Premises as he supervised the construction of the dewatering system. Other HCC staff, including the Operator in Charge and Wastewater Supervisor, were not aware that the sump at the bottom of the Decant Pit was connected to stormwater, and as such were not aware of the consequences of leaving the pipe in the Decant Pit uncapped.
90.   Aside from the HCC Engineer and HCC Manager of Waste Management, HCC operational staff were not aware that the Stormwater Discharge Pit was connected to the Decant Pit.
Stormwater drains and outlets not signposted and no official stormwater diagram
91.   The stormwater drains and outlets at the Premises were not signposted or otherwise identified as being connected to stormwater, and some HCC staff, including the Operator in Charge, were not aware of any official stormwater diagram being available to staff.
Lagoon Pump not turned off
92.   HCC did not have any procedures in place to ensure that the Lagoon Pump was turned off at the end of the working day on Saturday 18 July 2015.
No overflow alarm on WAS Balance Tank
93.   At the time of the overflow, there were no alarms on the WAS Balance Tank, including to indicate that sewage sludge had reached the emergency overflow level and/or was overflowing.
94.   At the time of the overflow, there was a sensor installed in the WAS Balance Tank that indicated the level of sewage sludge in the tank, however this sensor was not alarmed.
95.   A screenshot/printout from the SCADA system showing the level of sewage sludge in the WAS Balance Tank from 18 to 20 July 2015 is attached above at Tab L.
No thorough end of shift / weekend inspections
96.   At the time of the overflow, HCC employees did not carry out thorough inspections of the Premises at the end of shifts or on weekends.
ENVIRONMENTAL HARM
Likely harm to the environment
97.   The overflow of sewage sludge from the Premises into the ephemeral watercourse in the Nature Reserve resulted in likely temporary significant harm to the aquatic environment of the watercourse for a distance of approximately 400m downstream of the point at which the sewage sludge overflow intersected the watercourse (the Inflow Point). There is no evidence of actual harm to the aquatic environment.
98.   The likely harm to the aquatic environment of the watercourse includes:
a.   degrading the water quality of the unnamed watercourse for approximately 400 metres downstream of the Inflow Point;
b.   exposing resident aquatic animals and plants in the receiving waters to a highly organically rich material with a high potential to deoxygenate waters;
c.   the smothering effects on sediment dwelling organisms due to the deposition of thick sludge layers; and
d.   elimination of watercourse aquatic animals and plants due to necessary clean-up activities involving complete pump-out of sludge affected pools.

99.   Direct adverse physical effects on aquatic life in the unnamed watercourse in the Nature Reserve was likely to be of a relatively short duration spanning a few weeks. The removal of the majority of deposited sewage sludge solids from the watercourse line and ponded areas in the weeks after the overflow is likely to have eliminated the likelihood of ongoing smothering effects of the deposited sludge material on aquatic life.
100.   Any unrecovered component of the nutrient rich sewage sludge could continue to act as a nutrient pool that may lead to excessive plant and algal growth in the pools of the unnamed watercourse in future seasons.
101.   The report of Dr Moreno Julli on environmental harm dated 14 July 2016 is at Tab T.
Public health risk
102.   The discharge of sewage sludge from the Premises resulted in a potential risk to public health to people exposed to the spill.
103.   On Friday 24 July 2015, a member of the public contacted the EPA to report concerns about the risk to public health noting the accessibility of the overflow site to the public. HCC staff then installed sign tape to restrict access to the overflow site in the Nature Reserve. A photograph showing the installed sign tape is at Tab U.
REMEDIAL ACTION
104.   HCC has taken the following steps to prevent a recurrence of the overflow incident:
a.   The HCC Wastewater Supervisor, Operator in Charge and other HCC staff at the Premises have been instructed that the open pipe in the Decant Pit must be capped when the pipework inside the Decant Pit has been modified or dismantled and when undertaking the process of pumping into the WAS Balance Tank from the Sludge Lagoon.
b.   Earthen bunding has been installed at the Premises to contain any future spills on site and pipework has been installed in association with the bunding to direct any spillage to one of several areas on site including the Sludge Lagoon or the bypass pond.
c.   Employees have been given a written instruction that, before carrying out any work not covered by a safe work method statement, the procedure for that work must be documented and signed off by the Operator in Charge, the Wastewater Supervisor and the Engineer, and a toolbox talk in relation to the procedure must be held with all relevant staff.
d.   Employees are required to fill in a daily checklist at the start of shift, which is signed off each Monday morning by the Operator in Charge, Wastewater Supervisor and Engineer.

PRIOR REGULATORY HISTORY
105.   Hawkesbury City Council has no prior convictions for environmental offences.
EARLY GUILTY PLEA
106.   Hawkesbury City Council entered a plea of guilty at the earliest opportunity.
COOPERATION
107.   Hawkesbury City Council has fully co-operated with the Prosecutor in its investigation of these offences and in the preparation of this matter for hearing to date including reaching an agreed position on this Statement of Facts.

August Incident

BACKGROUND
Hawkesbury City Council
1.   Hawkesbury City Council (ABN 54 659 038 834) (HCC) owns and operates a sewage treatment plant at Fairey Road, South Windsor, NSW. This sewage treatment plant is known as South Windsor Sewage Treatment Plant (the Premises). Approximately 1.1 GL of treated effluent is discharged from the Premises each year.
2.   HCC holds Environment Protection Licence 3306 (EPL) for the Premises allowing HCC to carry out sewage treatment. A copy of the EPL as at July 2015 can be found at Tab A.
3.   The EPL includes condition O2.1 which provides:
O2.1 All plant and equipment installed at the premises or used in connection with the licensed activity:
a) must be maintained in a proper and efficient condition; and
b) must be operated in a proper and efficient manner.

The Premises
4.   The Premises are located at the southern end of Fairey Road, South Windsor. They are bordered to the north, west and south by the Windsor Downs Nature Reserve and to the east by private acreage.
5.   A map of the Premises produced by HCC is at Tab B.
6.   Another map showing the location of the Premises and its surrounds (the Map) is at Tab C. The Map also shows the location of some plant at which key process are undertaken at the Premises. These locations are marked as follows:
1.   Inlet works and screens;
2.   Primary Sediment Tank;
3.   Biological Reactor 2;
4.   Clarifier;
5.   Tertiary Filter;
6.   UV Disinfection; and
7.   Discharge Point.

7.   During normal operations at the Premises the sewage goes through the above numbered processes to remove bulk materials, sediment, oils and grease, nutrients (nitrates and phosphorus) and pathogenic bacteria.
8.   The treatment plant at the Premises was designed by GHD Engineering Consultants (GHD). In designing the treatment plant, GHD provided HCC with an operations manual for the facility entitled “South Windsor Sewage Treatment Plant – Operations and Maintenance Manual Stage 3” (the Operations and Maintenance Manual). An excerpt from the Operations and Maintenance Manual is at Tab D. Biological Reactor 2, the Mixed Liquor Recycling Pit and the Dewatering Pit 9. There are two biological reactors at the Premises used to treat sewage sludge and wastewater; Biological Reactors 1 and 2. Biological Reactor 2 and plant and equipment in its vicinity, including the Mixed Liquor Recycling Pit (MLR Pit) and the Dewatering Pit, are the areas and plant most relevant to this incident.
10.   As part of the treatment of sewage in Biological Reactor 2, the sewage is transferred between aerobic and anoxic stages to assist biological nutrient removal. The sewage is also referred to by HCC staff as “mixed liquor”.
11.   Three pumps are used to transfer the sewage from the aerobic to the anoxic stages (referred to as Pumps 1, 2 and 3). These three pumps are located in the MLR Pit, which is immediately adjacent to Biological Reactor 2. The location of the MLR Pit is marked 'A' on the Map.
12.   The pumps in the MLR Pit consist of a pump motor attached to a volute (or housing). The motor and volute are joined together with bolts. A photograph showing Pump 3 in the MLR Pit is at Tab E.
13.   Next to the MLR Pit is the Dewatering Pit. The location of the Dewatering Pit is marked 'B' on the Map. The Dewatering Pit is designed to remove any stormwater building up beneath Biological Reactor 2 which may destabilise it.
14.   The MLR Pit is also linked via a drainage pipe to the Dewatering Pit so that any rainwater entering the MLR Pit drains into the Dewatering Pit.
15.   At the bottom of the Dewatering Pit is a submersible pump which is activated and deactivated via start and stop float switches. There is also a high level float switch. When liquid collected in the Dewatering Pit reaches the height of the start float switch the submersible pump is activated and the liquid is pumped into Biological Reactor 2. When the liquid collected in the Dewatering Pit reaches the height of the high level float switch an alarm message is sent via the supervisory control and data acquisition (SCADA) system to indicate that liquid has reached the float switch high level.

16.   If the submersible pump in the Dewatering Pit fails to start when liquid reaches the start float switch, an alarm message is sent via the SCADA system to indicate that the pump has failed to start.
17.   Outside of working hours, alarm messages sent via the SCADA system are sent to the after-hours officer's on-call mobile telephone.
Maintenance of Pump 3 prior to overflow
18.   On 13 May 2015, HCC carried out maintenance work on MLR Pump 3. During this maintenance work, staff discovered that the impeller was worn and a new impeller was required. Pump 3 oil was replenished, it was put back into service and a new impeller was ordered.
19.   On 28 May 2015, the impeller for Pump 3 snapped and Pump 3 was taken out of service.
20.   The new impeller for Pump 3 was received and installed on 24 June 2015. HCC staff then discovered that the Pump 3 bearing was faulty and required repair. Pump 3 was removed from the MLR Pit and sent offsite to external contractors, Visco Pumps, for repair. After repair by Visco Pumps, Pump 3 was returned to the Premises and reinstalled in the MLR Pit by HCC staff on 13 July 2015.
21.   The reinstallation of Pump 3 required the reattachment of the pump motor to the volute by means of fastening the bolts.
22.   The reinstallation of Pump 3 was not checked or signed off by a supervisor to indicate that it had been carried out correctly.
THE OVERFLOW
Friday 7 August 2015
23.   On Friday 7 August 2015, HCC Operator in Charge, Joshua Hawke, and two other HCC employees worked at the Premises from 7:00am until 3:30pm. Mr Hawke did not notice any issues with the MLR Pit or Dewatering Pit that afternoon.
24.   Between 3:30pm on Friday 7 August 2015 and 6:47am on Saturday 8 August 2015 the motor of Pump 3 in the MLR Pit partially detached from the volute (housing), and partially treated sewage escaped.
25.   The sewage filled the MLR Pit and then drained into and filled the adjacent Dewatering Pit. The sewage overflowed out of the MLR and Dewatering Pits, following the lay of the land onto the service road within the Premises. It then flowed along the service road, into the constructed stormwater dish drain and surrounding areas, towards the eastern boundary of the Premises.
26.   The sewage then flowed off the Premises, along a ditch on the side of Fairey Road, through a culvert under Fairey Road approximately 100 metres from the Premises gate, and onto a neighbouring private property. Racehorses are kept on the neighbouring private property.
27.   The neighbouring private property contains a dam about 100m from the area impacted by the overflow. There is no evidence that the overflow entered the dam.
28.   A map prepared by HCC showing the path of the overflow (marked in pink) is at Tab F. A map prepared by EPA officer George Orel, who attended the Premises on 8 August 2015, showing the path of the overflow (in orange) is at Tab G.
Saturday 8 August 2015
29.   On Saturday 8 August 2015, HCC Operator in Charge, Joshua Hawke, and HCC Wastewater Operator, Michael Coram, were rostered on to work at the Premises from 6:00am to 9:00am.
30.   At about 5:45am on Saturday 8 August 2015, Mr Hawke arrived at the Premises to start work. Mr Coram arrived at the Premises a short time later. After checking the SCADA system and carrying out paperwork in the Premises office, Mr Hawke left the office.
31.   At about 6:46am, Mr Hawke noticed that the ground was wet a short distance from Biological Reactor 2. He followed the path of liquid and found that the MLR Pit was overflowing. Mr Hawke then activated the emergency stops for the pumps in the MLR Pit.
32.   In an attempt to find out the source of the overflow, Mr Hawke, together with Mr Coram, set up a pump to pump out the MLR Pit. When the MLR Pit had been emptied, Mr Hawke inspected and carried out a test run of all three MLR pumps. He identified the separation between the Pump 3 motor and volute (housing).
33.   Following this, Mr Hawke isolated and tagged Pump 3 out of operation and began the process of resecuring the Pump 3 motor to the volute.
34.   Mr Hawke then followed the path of the overflow and identified that it had flowed off the Premises, through the stormwater culvert under Fairey Road and onto the neighbouring private property.
35.   A tanker operated by Premier Pumpout was at the Premises on the morning of 8 August 2015, delivering effluent for treatment. Mr Hawke arranged for this tanker to attend the site of the overflow on the neighbouring property to collect some of the overflowed sewage.
36.   Sandbags were also used to attempt to contain the overflow at the stormwater culvert under Fairey Road.
37.   HCC staff hosed down and used a eucalyptus-based disinfectant to disinfect the areas of overflow.
38.   On 8 and 9 August 2015, Premier Pumpout collected a total of about 46.500L litres of partially treated sewage and hose down water. HCC spent approximately $2,130 engaging Premier Pumpout to assist with the clean-up of the overflow.
39.   Between about 7:30am and 8:00am, Mr Hawke telephoned Michael Stewart, HCC Wastewater Supervisor, to notify him of the overflow.
40.   At about 3:01pm, Mr Hawke telephoned the Environment Protection Authority (EPA) Environment Line to notify the EPA of the incident.
41.   Photographs taken by HCC staff on Saturday 8 August 2015 showing areas of overflow and clean up in progress are at Tab H.
42.   Photographs taken by EPA Officer George Orel on Saturday 8 August 2015 after clean-up had been carried out are attached as follows:
a.   Tab I - Six photographs showing overflowed sewage around the MLR Pit.
b.   Tab J - Five photographs showing residual sewage after clean-up in the dish drain and leading up to the culvert under the access road on the Premises.
c.   Tab K - Three photographs showing sewage alongside Fairey Road.
d.   Tab L - Seven photographs showing sewage on the neighbouring private property.

43.   EPA officers carried out inspections of the Premises on 8 and 11 August 2015 and 15 January 2016.
Volume and content of overflow
44.   The quantity of partially treated sewage that overflowed from the MLR and Dewatering Pits and the quantity that overflowed off the Premises as a result of the overflow is not known. However, HCC estimate from a visual inspection that 100,000L of partially treated sewage flowed off the Premises as a result of the overflow.
45.   The partially treated sewage that overflowed from the MLR and Dewatering Pits and ultimately off the Premises contained about 0.34% solids and about 99.66% liquid. It had been treated for nutrients (total nitrogen and total phosphorous) and carbon but not for pathogenic bacteria.
46.   HCC collected samples at three points along the path of the overflow on 8 August 2015.
47.   EPA Officer George Orel took two samples on the neighbouring private property on Saturday 8 August 2015; one sample of pooled sludge material above the access road on the private property and one sample from the dam on the private property.
Previous separation of pump and volute within different pit
48.   On 24 July 2014, bolts affixing a pump to the volute within a different pit at the Premises became loose resulting in a separation between the pump and volute. This occurred while HCC staff were present, so the escaping sewage sludge did not overflow out of the pit. It was observed that there was “an inch of” sludge on the bottom of the pit.
49.   No procedural changes regarding loose bolts were implemented following this incident.
CAUSE OF THE OVERFLOW
Failure to maintain Pump 3 in a proper and efficient condition
50.   At the time of the overflow, the bolts connecting the MLR Pump 3 motor to the volute (housing) were loose. As a result the motor partially detached from the volute, allowing sewage to escape and fill the MLR and Dewatering Pits.
51.   It is not known whether the bolts became loose as a result of vibration of the pumps in the MLR Pit, failure by HCC employees to sufficiently tighten the bolts when Pump 3 was reinstalled on 13 July 2015 following offsite maintenance, or some other reason.
52.   The work to reinstall Pump 3 on 13 July 2015 was not checked or signed off by a supervisor.
53.   The Operations and Maintenance Manual, under the heading “Operational Maintenance”, states that the MLR Pumps are to be inspected daily for normal operation. The Operations and Maintenance Manual also recommends the development and scheduling of a preventative maintenance program.
54.   At the time of the overflow, HCC's maintenance schedule did not include the checking of the tension of bolts affixing the MLR Pump motors to volutes.
55. HCC has now added monthly checking of bolt tension to the maintenance schedule. 56. At the time of the overflow, there was no preventative maintenance program at the Premises that included a requirement to check bolt tension on the MLR Pumps.
Failure to maintain float switch in a proper and efficient condition
57.   At the time of the overflow, the float switch in the Dewatering Pit was faulty. It failed to activate the pump in the Dewatering Pit when sewage reached the float switch high level.
58.   After the overflow, HCC tested the Dewatering Pit pump and Dewatering Pit float switch and found that the float switch was faulty.
59.   The float switch also failed to activate and send alarm messages, via the SCADA system, to indicate that:
a.   sewage had reached the float switch high level; and
b.   the Dewatering Pit pump had failed to start.

60.   Prior to the overflow, there was no maintenance schedule to check the float switches and associated alarms by HCC staff. The float switches and alarms were checked and maintained by an external contractor when a problem with the SCADA system arose.
61.   The overflow prompted HCC to test all float switches at the Premises.
62.   Aside from the testing of all float switches immediately following the overflow, HCC has not made any changes to the approach for checking float switches and associated alarms following the overflow.
ENVIRONMENTAL HARM
63.   There is no evidence of actual or likely harm to the environment resulting from the overflow.
Public health risk
64.   The overflow of partially treated sewage from the Premises resulted in a potential risk to public health to people exposed to the spill.
REMEDIAL ACTION
65.   Following the overflow, the HCC Wastewater and Project Engineer, together with HCC Manager of Waste Management and HCC staff, carried out a risk assessment to identify how to prevent a recurrence of the overflow incident. A copy of this risk assessment is at Tab M.
66.   The risk assessment identified the following measures to prevent a recurrence of the overflow; the installation of earth bunds, the installation of culverts with valves on the earth bunds, and diversion of the Premises' main drainage system to the bypass pond.
67.   HCC has taken the following steps to prevent a recurrence of the overflow incident:
a.   Earthen bunding has been installed at the Premises to contain any future spills on site and pipework has been installed in association with the bunding to direct any spillage to one of several areas on site.
b.   Monthly checking of bolts affixing the MLR Pumps to the volutes has been added to the maintenance schedule.
c.   All float switches were tested immediately following the overflow.
d.   Work involving reinstallation of pumps is now checked by a supervisor.

PRIOR REGULATORY HISTORY
68. HCC has no prior convictions for environmental offences.
69. HCC has also been prosecuted for an incident involving the overflow of partially treated sewage sludge from the Premises approximately three weeks prior to this offence. That prosecution involves two charges; one charge for pollution of waters pursuant to s120(1) of the Protection of the Environment Operations Act 1997 (NSW) and one charge for breach of licence pursuant to s64(1) of the Protection of the Environment Operations Act 1997 (NSW).
EARLY GUILTY PLEA
70. HCC entered a plea of guilty at the earliest opportunity.
COOPERATION
71. HCC has fully co-operated with the Prosecutor during the investigation of this offence and in the preparation of this matter for hearing to date including reaching an agreed position on this Statement of Agreed Facts.

Council’s evidence

The Council tendered a notice of variation of Environment Protection Licence (EPL) no 3306, which related to the Premises, that was issued by the EPA on 21 January 2016. This became Exhibit 1 in these proceedings. The variations to the EPL relate to a mandatory environmental audit required “to examine and assess the adequacy of the Plant, systems, procedures, practices and training that the Licensee has in place for compliance with the licence and relevant requirements of the Act”. Exhibit 2 is a report produced as a result of the mandatory environmental audit by BBTech Consulting dated 24 February 2017.
Exhibit 3 consists of two emails between Mr Younan Manager of Waste Management at the Council and the EPA. In the first email sent from the Council to the EPA dated 10 August 2015 the Council expressed its willingness to conduct an audit through a third party consultant in light of the recent incidents at the South Windsor Plant. Mr Younan acknowledged the EPA’s intention to complete its investigation into the incidents before providing input on the scope of an audit but said that the Council wishes to expedite the necessary works to ensure that the events giving rise to the incident can be prevented in the future. In response to this email on 11 August 2015 the EPA stated that it required further progress on its investigation of the incidents before issuing a request for a mandatory environmental audit. The EPA said that the Council was welcome to begin a voluntary audit but that this would not influence the EPA’s decision to require an additional mandatory audit in the future.

Affidavit of Mr Organ

The Council read the affidavit of Mr Organ Director of Infrastructure Services at the Council dated 6 March 2017. At the time of the July and August incidents Mr Organ had overall responsibility for the Premises. A number of documents were referred to in the affidavit and were annexed.
Mr Organ deposed that the July incident was caused by failures to adequately train staff concerning stormwater and emergency responses, adopt proper decision-making processes, adopt a proper process of checking and inspecting modifications and ensure that a proper and regular system of inspection of the operations was undertaken. The August incident was caused by failures to adopt a proper process of inspecting repair or maintenance work, adopt a proper preventative maintenance program for plant and equipment and adopt a proper process of checking and maintaining float switches and associated alarms.
Mr Organ described the steps that have been taken by the Council in response to the incidents. A risk assessment was conducted shortly after the August incident on 13 August 2015 to identify measures to prevent any future overflows from leaving the South Windsor Plant. Several measures were implemented following this assessment. The Council undertook a review of the Premises’ pollution incident and emergency response management plan (PIRMP) on 15 September 2015. A training drill with respect to the PIRMP was conducted by all operational staff on 3 March 2016. The procedure for undertaking work on the Premises was confirmed by email to various operational staff on 18 August 2015 and the Council has since updated other relevant procedure documents. The Council has implemented a program for the undertaking of inspections and maintenance works. A copy of the maintenance schedule for the week ending 11 November 2016 indicated that the program includes the inspection and maintenance of pumps and floats. Monthly audits occur for the purpose of identifying and attending to matters arising from these inspections and maintenance works.
Since the incidents the Council increased the frequency of its “tool box talks” with operational staff at the Premises. These now fortnightly talks include discussion of necessary inspections and maintenance works and how such work is to be performed. The staff members in attendance at each meeting and the matters discussed including action items are recorded in writing. An additional senior engineer now works at the Premises on a full-time basis. This employee oversees and manages all operational staff on the Premises with a particular responsibility for maintenance work and training. A part-time administrative assistant has also been engaged to allow the senior engineer and wastewater supervisor to spend more time overseeing and managing operational staff.
On 28 February 2017 the Council passed a resolution acknowledging its sincere regret and remorse for both incidents to this Court. A copy of the report informing the Council of the relevant facts of these matters prior to the passing of this resolution was attached to Mr Organ’s affidavit.

Purposes of sentencing

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) identifies the purposes of sentencing. It states:

3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a)   to ensure that the offender is adequately punished for the offence,
(b)   to prevent crime by deterring the offender and other persons from committing similar offences,
(c)   to protect the community from the offender,
(d)   to promote the rehabilitation of the offender,
(e)   to make the offender accountable for his or her actions,
(f)   to denounce the conduct of the offender,
(g)   to recognise the harm done to the victim of the crime and the community.

The EPA submitted that factors (a), (b), (e), (f) and (g) are most pertinent to the proceedings in respect of these offences.
Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.
The objective and subjective circumstances of the offence must also be weighed up in the context of the legislative framework under the POEO Act.

Objective seriousness of offences

Statutory scheme

A fundamental consideration of relevance to environmental offences is the degree to which a defendant's conduct would offend against the legislative objectives expressed in the offence. The objects of the POEO Act include:

3 Objects of Act
(a)   to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,
…
(d)   to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following:
(i)   pollution prevention and cleaner production,
(ii)   the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,

…

The pollution of waters offence proscribed in s 120 has an important role in achieving the objectives of the POEO Act. In relation to offences under s 64, it has long been held in this Court that the contravention of an EPL is serious because it involves a breach of public trust, Environment Protection Authority v Port Kembla Copper Pty Ltd (2001) 115 LGERA 391; [2001] NSWLEC 174 at [23]-[27]; Environment Protection Authority v Port Kembla Copper Pty Ltd [2003] NSWLEC 256 at [57].
The Council’s failure to carry out sewage treatment activities in a competent manner undermined the statutory scheme of the POEO Act which is designed to protect the environment and prevent pollution. Offences that undermine the integrity of the regulatory system are objectively serious, Director-General of the Department of Environment & Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [19].
Section 241(1) of the POEO Act sets out the following factors that a court is required to take into account when imposing a penalty for offences under the Act:

(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,

(b)   the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c)   the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,
(d)   the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e)   whether, in committing the offence, the person was complying with orders from an employer or supervising employee.

Extent of harm caused or likely to be caused to the environment by the commission of the offence (s 241(1)(a))

“Harm to the environment” is defined in the Dictionary of the POEO Act to include:

any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

“Pollution” is defined in the Dictionary to include water pollution.
As was held by Preston CJ in Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [145], “Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account”.

July incident

The July incident involved a spill of approximately 543,840L of partially digested sewage sludge containing an average solids concentration of 2%, SOAF at [70], [72]. Of this, approximately 465,715L flowed off the Premises and into the adjoining Windsor Downs Nature Reserve, including into an unnamed ephemeral creek, SOAF at [71]. “Waters” polluted in this case are primarily a creek in the Nature Reserve. According to the Dictionary of the POEO Act, “waters” includes “any water stored in artificial works, any water in water mains, water pipes or water channels”. The stormwater collection pit, stormwater discharge pit and pipes through which the sewage sludge flowed (SOAF at [44]) were also polluted.
Environmental harm is addressed in the SOAF at [97]-[103]. Dr Moreno Julli, Head of Ecotoxicology Testing Services at the Office of Environment and Heritage, prepared a report for the EPA dated 14 July 2016 in response to the July incident which was attached to the SOAF. Dr Julli concluded that although there was no evidence of actual harm there was likely significant harm to the aquatic environment of the unnamed creek for approximately 400 m downstream of where the sludge entered the watercourse, SOAF at [97]-[98]. Dr Julli concluded that the likely harm would be temporary, spanning a few weeks, and that the removal of the majority of the sludge from the creek after the incident was likely to have eliminated the likelihood of ongoing smothering effects on aquatic life, SOAF at [99].
The incident caused a minor impact on human amenity in that the sewage sludge interfered with the right of the public to enjoy a public nature reserve. There was a potential risk to public health to people exposed to the spill, SOAF at [102].
The EPA submitted that according to the agreed position in the SOAF there was likely environmental harm of a significant, albeit short-term, nature, potential harm to public health and potential impact on human amenity. The Council submitted that the harm caused or likely to have been caused is at the low or lower end of the spectrum. Given the large volume of sewage which flowed from the Premises and in light of the agreed position in the SOAF, I agree with the Prosecutor’s submissions.

August incident

In the August incident partially treated sewage escaped from the faulty Pump 3 in the MLR Pit, overflowed out of the MLR and Dewatering Pits, along the service road within the Premises and towards the eastern boundary of the Premises, SOAF at [25]. The sewage flowed off the Premises, along a public road and onto neighbouring private property where racehorses are kept, SOAF at [26]. It was estimated that 100,000L of partially treated sewage containing about 0.34% solids flowed off the Premises as a result of the overflow, SOAF at [44]-[45]. The sewage had been treated for nutrients and carbon but not pathogenic bacteria, SOAF at [45].
There is no evidence of actual or likely environmental harm resulting from the August incident, SOAF at [63]. There was a potential risk to public health to people exposed to the spill, SOAF at [64]. The EPA also submitted that public amenity was impacted.
The EPA characterised the environmental harm as low, but not towards the low end of the low range. The Council submitted that the harm was minor and transient and clearly at the low end of the spectrum. I agree with the Prosecutor given the relatively large amount of sewage which escaped into areas accessible to the public.

Practical measures that may have been taken to prevent, control, abate or mitigate that harm (s 241(1)(b))

July incident

The agreed causes of the July incident overflow are set out in the SOAF at [83]-[96]. Principally, the overflow resulted from the failure to cap the open pipe in the Decant Pit after modification works had been carried out on the pipework in the Pit on 16 July 2015, SOAF at [83]. Instructions by the Council’s engineer to cap the open pipe were not followed through, SOAF at [84], [86].
Only one employee, the engineer, was aware of the stormwater drainage system at the Premises including that the sump at the bottom of the Decant Pit linked to stormwater, SOAF at [89]. The Operator in Charge and Wastewater Supervisor were not aware of the consequences of leaving the pipe in the Decant Pit uncapped. There was no signage alerting employees to the existence of the stormwater system, SOAF at [91].
The Lagoon Pump was not turned off at the end of the working day on Saturday 18 July 2016 (SOAF at [92]) which caused an overflow of the WAS Balance Tank which was not alarmed, SOAF at [93]. An absence of thorough end of shift or weekend inspections (SOAF at [96]) contributed to the overflow going undetected for nearly 38 hours.
More generally, as the occupier and holder of an EPL, the Council was responsible to ensure that it complied with its licence and with the law including the POEO Act. This Court has frequently commented on the heightened responsibility that the holder of an EPL has to comply with the licence and thereby protect the environment. The Council was under a positive obligation to take proper precautions to ensure that pollution did not occur and to arrange its operations accordingly, Axer Pty Ltd v Environment Protection Agency (1993) 113 LGERA 357 at 359.
The EPA identified the following practical measures that should have been taken to prevent the incident from occurring or to limit the duration over which it occurred:

Adoption and implementation of adequate procedures for modification of pipework and for checking modifications made to pipework (including capping the pipe left uncapped).

Marking or signposting of stormwater outlets and drains at the Premises and making a stormwater diagram for the site readily available to staff.

Provision of adequate training to staff in relation to the stormwater system on site.

Adoption and implementation of a procedure to ensure that the Lagoon Pump is turned off at the end of shift.

Installation of alarms on the WAS Balance Tank to alert staff to an overflow from the WAS Balance Tank.

Implementation of a regular and thorough inspection regime for the Premises.

The Council said that the practical measures that could and should have been taken were those which it has subsequently carried out to prevent a recurrence of the incident (outlined in the SOAF at [104]). It also reiterated the measures identified by Mr Organ in his affidavit summarised above at par 13.
In oral submissions the EPA said that necessary practical measures were more than just those measures taken by the Council since the incident. The absence of other important measures increases the objective seriousness of the offence. In particular there is no evidence that any signage pertaining to the stormwater system has been erected. There is also no evidence of specific training being provided to employees regarding the stormwater system at the Premises.
The Council responded that the stormwater drain at the bottom of the Decant Pit has been concreted over and as such there is no need for any signage. The Council submitted that in this context it would not have been reasonable to put up signage alerting employees to the stormwater drain at the bottom of the Decant Pit. Moreover, it would be premature to design and implement a training program for employees until the audit process had finished. The audit closely scrutinised the July incident and made recommendations based on industry practice. The Council would prefer to follow the recommendations of the auditor rather than those suggested by the Prosecutor during the course of these proceedings. I accept the Council’s submissions which are confirmed by the recent report dated 24 February 2017 prepared pursuant to the EPL as modified requiring the Council to carry out an audit (Exhibit 2).

August incident

The agreed causes of the August incident are set out in the SOAF at [50]-[54], [55]-[60]. The immediate cause of the overflow was the separation of the MLR Pump 3 motor and valve after the bolts holding these components together became loose, SOAF at [50]. Although the “Operations and Maintenance Manual” for the Premises stated that the MLR pumps are to be inspected daily for normal operation (SOAF at [53]) at the time of the incident the Council’s maintenance schedule did not include the checking of bolt tension on the MLR Pit pumps, SOAF at [54]. There was no preventative maintenance program that included the checking of bolt tension, SOAF at [56]. The work to reinstall Pump 3 on 13 July 2015 after it had been removed from the Premises for repairs was not checked or signed off by a supervisor.
At the time of the overflow, the float switch in the Dewatering Pit was faulty and failed to activate the pump or send alarms when sewage reached the float switch level, SOAF at [57]-[59]. There was no maintenance schedule to check float switches and associated alarms, SOAF at [60].
The EPA identified the following practical measures that should have been taken to prevent the incident from occurring or to limit the duration over which it occurred:

Requiring checking of MLR Pit pump bolt tension as part of the maintenance schedule and as part of a preventative maintenance program.

Requiring supervisor checking and sign-off of pump reinstallation work.

Implementing a program of regular float switch and alarm testing.

The Council has instituted a range of practical measures directed to preventing a recurrence of the incident. It agreed that these were measures that it could and should have implemented prior to the incident. They are outlined in the SOAF at [67] as follows:

Earthen bunding has been installed at the Premises to contain any future spills on site and pipework has been installed in association with the bunding to direct any spillage to one of several areas on site.

Monthly checking of bolts affixing the MLR Pumps to the volutes has been added to the maintenance schedule.

All float switches were tested immediately following the overflow.

Work involving reinstallation of pumps is now checked by a supervisor.

The EPA incorrectly submitted that there is no evidence that the Council has implemented a program of regular float switch and alarm testing (SOAF at [62]). The Council has in fact implemented an ongoing regime for checking float switches. Annexed to Mr Organ’s affidavit was a copy of the Premises’ maintenance schedule for the week ending 11 November 2016 which indicated that the maintenance program includes the inspection and maintenance of pumps and floats. This would necessarily involve checking the alarms located on those floats.

Extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the offence (s 241(1)(c))

The Council accepted that the harm caused or likely to be caused to the environment by the commission of the three offences was reasonably foreseeable.

The extent to which the person who committed the offence had control over the causes that gave rise to the event (s 241(1)(d))

The Council accepted that it had control over the causes of the commission of the three offences.

Whether, in committing the offence, the person was complying with orders from an employer or supervising employee (s 241(1)(e))

This factor is not relevant to these three offences.

Maximum penalties

The maximum penalty for each offence is $1,000,000 for a corporation, ss 64(1)(a) and 123(a). The gravity of any particular offence should be measured by reference to its maximum penalty. A maximum penalty is a public expression by Parliament (and, by extension, the general community) of the seriousness of the offence, Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

Reasons for committing the offence

The offences were not committed for any reason that would increase the objective seriousness.

Conclusion on objective seriousness

The July incident resulted in a very substantial amount of partially treated sewage (just under 500,000L) flowing into the neighbouring nature reserve. A nature reserve is intended to identify, protect and conserve areas containing outstanding, unique or representative ecosystems, species, communities or natural phenomena, see s 30J of the National Parks and Wildlife Act 1974. Both offences resulted from obvious deficiencies in the Council’s operating systems and maintenance planning, including absence of staff training on significant aspects of the Premises. The Council holds an EPL which it breached. I accept the EPA’s submission that the breach of licence condition offence is aggravated by the harm to the environment. Preston CJ in EnvironmentProtection Authority v Ballina Shire Council [2006] NSWLEC 289 at [99] held that “if contravention of a licence condition results in harm to the environment, the contravention is thereby an aggravated offence”.
The likely harm to the environment including to human health was serious albeit short-lived. The Council has taken necessary measures after the incident to prevent a recurrence. I consider the offences are in the low range of moderate seriousness.
The August incident resulted in less partially treated sewage flowing outside the Premises compared to the July incident, albeit still substantial (estimated at 100,000L) with less likelihood of environmental harm. Any likelihood of impact on human health was short-lived. Once again the offence resulted from obvious deficiencies in the Defendant’s operating systems, particularly the absence of maintenance checks of float switches in the Dewatering Pit or checks of the relevant pump motor, the bolts of which coming loose caused the incident. Necessary measures to prevent a recurrence have been taken. The offence is at the high end of the low range of objective seriousness.

Subjective factors

Prior record and good character of Council (ss 21A(3)(e)-(f))

The Council does not have any prior convictions for breaches of the environmental legislation of New South Wales.
The Council is a local council serving its community in relation to matters within its statutory jurisdiction. I accept that it is of good corporate character.

Discount for early guilty pleas (ss 21A(3)(k), 22)

An early plea of guilty may entitle the Council to a discount in penalty in the range of 10-25%, R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 419. This range is intended to be a guide only, it does not create a presumption or entitlement to a particular discount in a given situation, R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283 at [44].
The Council pleaded guilty to all charges at the first mention of the proceedings. This was the first available opportunity and accordingly the Council is entitled to a discount of 25% for the full utilitarian value of its pleas of guilty.

Remorse and contrition (s 21A(3)(i))

The Council passed a resolution on 28 February 2017 acknowledging its sincere regret and remorse for both incidents to this Court, see above par 16. This expression of contrition is consistent with the actions taken by the Council since committing the offences.
In response to the July incident, the Council contracted an external entity to assist its own staff with the clean-up of sewage sludge within the Windsor Downs Nature Reserve, SOAF at [76]-[78], [80]. The Council expended approximately $293,000 on the clean-up, SOAF at [82]. The Council also took some action to address the causes of the overflow, SOAF at [104]. In response to the August incident, the Council undertook clean-up actions including arranging for a tanker to extract some of the overflowed sewage on the neighbouring property immediately following the incident at a cost of approximately $2,130, SOAF at [35]-[38]. The Council also took some action to address the causes of the overflow, SOAF at [65]-[67]. I accept that the Council has demonstrated remorse and contrition in relation to the three offences.

Assistance to authorities (ss 21A(3)(m), 23)

The Council cooperated with the EPA during the investigation of the offences and in the preparation of both SOAFs.

Further sentencing considerations

General deterrence

The EPA submitted that there is a need for general deterrence in relation to all three offences. The sentence should serve as a general deterrent to ensure that organisations engaged in polluting industries do not pollute waters and comply with their licence conditions. Any penalty ultimately imposed on the Council must incorporate an element of general deterrence because:

The objects of pollution control legislation require a substantial sentence to punish the Council, to deter others and to encourage full compliance with the relevant Act by the Council and others.

The object of the legislation is to prevent pollution and to do this, inter alia, by the deterrent effect of a substantial fine and by, in consequence, persuading the industries concerned to adopt preventative measures.

Offenders will not be deterred from committing environmental offences by the imposition of nominal fines.

A penalty for a breach must be sufficient to compel attention to the environmental issues to ensure that the Council, and others, are encouraged to comply with the law and that the environment is not exposed to risk of harm.

Specific deterrence

The EPA submitted that the changes that the Council has made to its operations mitigate to a limited extent the need for specific deterrence. However, the EPA challenged the adequacy of these changes in preventing a recurrence of the incidents giving rise to the offences in these proceedings.
In relation to the July incident, the EPA submitted that there is no evidence that training has been provided to staff with respect to the stormwater system at the Premises, nor have staff been provided with a readily accessible stormwater diagram. Stormwater outlets and drains at the Premises have not been marked or otherwise identified. I have addressed these submissions of the Prosecutor above in par 42 and do not accept them for the reasons given there.
In relation to the August incident, the EPA incorrectly submitted, as I note above in par 47, that there is no evidence that the Council has implemented a program of regular float switch and alarm testing.
The Council accepted that specific deterrence has a role to play as it continues to own and operate the Premises. However, the Council has displayed a high degree of insight into its own conduct, expressed genuine remorse and has implemented measures to prevent recurrence of similar incidents. I am confident that the risk of recurrence is minimal therefore the role for specific deterrence is limited.

Retribution and denunciation under the CSP Act

Subsections 3A(a) and (e) of the CSP Act set out retribution and denunciation as part of the purposes of sentencing and as such the Court needs to take them into account. This consideration applies equally to strict liability offences.

Totality principle

Totality principle across two offences arising from July incident

The totality principle should be applied to the two July incident charges. Both the pollution of waters offence under s 120(1) and breach of licence condition offence under s 64(1) arise from the same incident and the same conduct on the part of the Council. The Court will look at the aggregate sum of the fines imposed with respect to the two offences to fairly reflect the overall criminality of the Council’s conduct.
The July and August incidents are conceptually and temporally distinct and do not reflect a continuing course of conduct on the part of the Council.

Even-handedness

The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty, R v Visconti [1982] 2 NSWLR 104. This principle must always be applied subject to the particular circumstances of the case before the Court, Hoare v R (1989) 167 CLR 348; [1989] HCA 33.
The EPA referred to a number of cases where the defendant was sentenced for offences of water pollution (s 120), failure to comply with a licence condition (s 64) and both offences (ss 64, 120). The most relevant recent decisions include:

In Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 the defendant pleaded guilty to charges under ss 64 and 120 of the POEO Act for the discharge of over 500,000L of effluent from a wastewater treatment plant which leaked into the sea. The Court found that the offences caused harm that could be characterised as “substantial” within the meaning of s 21A(2)(g) of the CSP Act, although there was no evidence of any actual environmental harm. The offences were held to be in the low to moderate range of objective seriousness. The defendant pleaded guilty early, expressed remorse, was of good corporate character, cooperated with authorities and was deemed to be unlikely to reoffend. A fine of $105,000 was imposed for each offence, discounted by 25% for totality for a total of $157,500. $55,000 of the total amount was to be paid to the local council to contribute to an environmental project. The defendant was ordered to pay the prosecutor’s costs and a publication order was imposed.

In Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 the defendant pleaded guilty to a charge of pollution of waters under s 120(1) of the POEO Act by the accidental surface runoff from an irrigation area of over 11,000kL of effluent, sewage, septic waste and animal manure into a stormwater drain flowing into creeks and dams. No actual harm to the environment occurred but there was the potential for environmental harm by the escape of pathogens. The offence was held to be in the middle of the range of objective seriousness. The defendant pleaded guilty early, had no prior convictions, expressed remorse and cooperated with the prosecutor. The defendant was fined $180,000 reduced to $130,000 in light of subjective circumstances and ordered to pay the prosecutor’s legal costs of $47,000.

In Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 120 the defendant pleaded guilty and was convicted under s 120(1) of the POEO Act for the release of between 915,336L and 1,112,830L of sewage which flowed into the Queanbeyan River. The Court found the actual harm was low but there was the potential for harm to human health. Subjective circumstances were mixed and only operated to mitigate the penalty to a limited extent. The defendant was ordered to pay $80,000 (taking into account a 15% discount) towards the completion of an environmental improvement project, the prosecutor's investigation costs of $1,189 and legal costs of $343,000.

Environment Protection Authority v State of New South Wales (Department of Environment, Climate Change and Water) (2010) 174 LGERA 19; [2010] NSWLEC 67 concerned a breach of licence condition contrary to s 64(1) of the POEO Act for failing to operate equipment in a proper and efficient manner with respect to the defendant's operation of a sewage treatment plant. The breach resulted in the discharge of 151,000L of partially treated effluent into a creek. There was no actual environmental harm and the likelihood of harm was low. The mitigating factors included that the defendant pleaded guilty early, expressed remorse and fully cooperated with the prosecutor. A penalty of $80,000 was imposed which was to be directed towards an environmental project in the area of the incident. The defendant was also ordered to pay the prosecutor's costs of $65,000.

Penalty in matter no 16/184785 (July incident)

The appropriate penalty in matter no 16/184785 is $130,000.

Penalty in matter no 16/184832 (July incident)

Applying the totality principle the appropriate penalty in matter no 16/184785 is $40,000.
Both penalties should be reduced by 30% taking into account mitigating factors such as the early pleas of guilty and the substantial efforts made since the incident to reduce the likelihood of a recurrence.

Penalty in matter no 16/235234 (August incident)

The appropriate penalty in matter no 16/235234 is $80,000. This should be reduced by 30% taking into account mitigating factors such as the early plea of guilty and the substantial efforts made since the incident to reduce the likelihood of a recurrence.
The total penalty in respect of the three offences is $250,000 reduced by 30% to $175,000.

Proposed orders

Under the POEO Act the Court can make orders in the alternative to imposing a penalty as provided in s 244(3). The parties have proposed several orders under s 250(1). I will make such orders instead of imposing a penalty.
The project proposed by the National Parks and Wildlife Service (NPWS) and submitted to the Court by the EPA addresses water pollution concerns in the Windsor Downs Nature Reserve (the Reserve) which was affected by the July incident. The project involves the construction of a Gross Pollutant Trap (GPT) on the northern boundary of the Reserve to intercept and treat stormwater runoff from surrounding urban areas. Poorly designed and constructed stormwater and drainage collection systems in these areas have caused significant sedimentation and erosion within the Reserve. NPWS engaged a consultant in 2007 to investigate appropriate stormwater mitigation measures. One of the priority projects identified by the consultant was located within the Reserve but has not yet been undertaken by NPWS. This is an appropriate project to consider to aid in ameliorating the potential for environmental harm arising from the July incident offences. It will also result in environmental benefits for the Reserve by improving water quality, reducing nutrient inputs and associated weed growth and reducing the peak volume and energy of flows in downstream waterways.
The cost of the project is estimated at $120,000. This figure is based on a consultant’s report from 2007 and it is possible that the actual cost of the project will be much greater. I have made provision in the orders if the amount specified exceeds the amount required for the project. In this event any remaining amount is to be paid to the NSW Environmental Trust for general environmental purposes.

Costs

The Council has agreed to pay the EPA’s investigation costs pursuant to s 248(1) of the POEO Act. These have been agreed at $2,869.85 in relation to matter nos 16/184785 and 16/184832 and $1,659.45 in relation to matter no 16/235234.
The Council has agreed to pay the EPA’s professional costs pursuant to s 257B of the Criminal Procedure Act 1986. These have been agreed at $58,500 in relation to matter nos 16/184785 and 16/184832 and $31,500 in relation to matter no 16/235234.
As an administrative matter, all costs should be paid to the Registrar of the Land and Environment Court.

Orders

The Court makes the following orders:

In matter no 16/184785, the Defendant Hawkesbury City Council (the Council) is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act1997 in that it polluted waters between about 18 July 2015 and 20 July 2015.

In matter no 16/184832, the Council is convicted of the offence against s 64(1) of the Protection of the Environment Operations Act1997 in that it was the holder of a licence a condition of which was breached by a person between about 16 July 2015 and 20 July 2015.

In matter no 16/235234, the Council is convicted of the offence against s 64(1) of the Protection of the Environment Operations Act1997 in that it was the holder of a licence a condition of which was breached by a person between about 6 August 2015 and 9 August 2015.

Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, the Council is to pay to the National Parks and Wildlife Service, within 28 days of this order, the amount of $175,000 as contribution to the project entitled “Windsor Downs Nature Reserve – Stormwater Mitigation – Gross Pollutant Trap” as described in Annexure B to this judgment (the Project). The Court notes that the National Parks and Wildlife Service has agreed as part of the Project to report to the Environment Protection Authority (EPA) on the outcomes of the Project.

All future public references by the Council to its funding of the Project are to be accompanied by the statement that “Hawkesbury City Council’s contribution to the funding of the ‘Windsor Downs Nature Reserve – Stormwater Mitigation – Gross Pollutant Trap’ is part of a penalty imposed on it by the Land and Environment Court of NSW after it was convicted of one offence against s 120(1) (water pollution) and two offences against s 64(1) (contravention of licence condition) of the Protection of the Environment Operations Act1997 (NSW)”.

If by six months from the date of this judgment the National Parks and Wildlife Service informs the parties that it has decided not to proceed with the Project, or the amount paid by the Council to the National Parks and Wildlife Service under Order 4 is not fully expended on the Project by 24 months from the date of this judgment, then any amount paid under Order 4 but not expended on the Project is to be paid to the NSW Environmental Trust for general environmental purposes.

In relation to matter nos 16/184785 and 16/184832, the Council is to pay the EPA’s legal costs in the amount of $58,500.

In relation to matter no 16/235234, the Council is to pay the EPA’s legal costs in the amount of $31,500.

In relation to matter nos 16/184785 and 16/184832, the Council is to pay the EPA's investigation costs in the amount of $2,869.85.

In relation to matter no 16/235234, the Council is to pay the EPA's investigation costs in the amount of $1,659.45.

The Council is, at its expense and within 28 days of the date of this order, to cause a notice in the form of Annexure A to this judgment to be placed within the first five pages of the following publications, at a minimum size of 9 cm x 12 cm, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997:

Hawkesbury Gazette; and

Western Weekender.

Within 35 days of the date of this order, the Council must provide to the EPA a complete copy of the pages of the publications in which the notice appears.

The exhibits be returned.

**********

Annexure A

Hawkesbury City Council convicted of water pollution and breach of licence offences in relation to two sewage overflow incidents at South Windsor

Hawkesbury City Council has been convicted by the Land and Environment Court of New South Wales of three offences under the Protection of the Environment Operations Act1997. Hawkesbury City Council was prosecuted by the Environment Protection Authority (“EPA”) and pleaded guilty to one offence of water pollution and two offences of contravening its Environment Protection Licence by failing to maintain plant and equipment in a proper and efficient condition and failing to carry out sewage treatment in a competent manner.

The offences resulted from two incidents in 2015 at its South Windsor Sewage Treatment Plant. The first incident involved the overflow of approximately 465,000L of partially treated sewage sludge off site into the Windsor Downs Nature Reserve and an ephemeral creek within the Nature Reserve over a period of nearly 38 hours in July 2015. The overflow resulted from the Council’s failure to ensure that modification of pipework on site was carried out appropriately and failure to cap a pipe, resulting in an overflow to the stormwater system.

The second incident involved the overflow of approximately 100,000L of partially treated sewage sludge off site and onto neighbouring private property via a culvert under Fairey Road, in August 2015. This overflow resulted from the Council’s failure to ensure that bolts securing a pump to its housing were kept secure.

The first incident resulted in likely temporary significant harm to the aquatic environment in the ephemeral creek for a distance of approximately 400m. Both incidents also involved a potential risk to the health of anyone exposed to the sewage sludge and an impact on public amenity.

On 6 April 2017, the Land and Environment Court convicted Hawkesbury City Council of the three offences and ordered Hawkesbury City Council to:

1. pay an amount of $175,000 to the National Parks and Wildlife Service to carry out a project to improve the management of stormwater impacting on Windsor Downs Nature Reserve;

2. pay the EPA's legal and investigation costs of the prosecution; and

3. place and pay for this publication notice.

Annexure B

Project Title

Windsor Downs Nature Reserve Stormwater Mitigation – Gross Pollutant Trap

Introduction

Windsor Downs Nature Reserve (the Reserve), part of the National Park and Wildlife Service (NPWS) reserve estate, is situated approximately 3.5 km south of Windsor between the suburbs of Bligh Park and Berkshire Park in the Hawkesbury Local Government Area. The Reserve is 332 hectares in area and is located in the north-western of the Cumberland Plain.

The Reserve protects an important and significant component of the very small remaining area of the Cumberland Plain vegetation communities and animal associations which once dominated western Sydney. The reserve includes: Castlereagh Ironbark Forest, Castlereagh Swamp Woodland, Shale-Gravel Transition Forest and Castlereagh Scribbly Gum Woodland vegetation communities. Castlereagh Swamp Woodland, Castlereagh Ironbark Forest and Shale Gravel Transition Forest are listed as Endangered Ecological Communities under NSW threatened species legislation, while Castlereagh Scribbly Gum Woodland is listed as Vulnerable. Castlereagh Ironbark Forest and Shale-Gravel Transition Forest are also listed as Critically Endangered under Commonwealth threatened species legislation, while Castlereagh Scribbly Gum Woodland is listed by the Commonwealth as Endangered. Among other species, the Reserve protects koalas as well as endangered microbats.

The Windsor Downs Nature Reserve is a critical element in the long-term conservation of Western Sydney’s biodiversity, and needs to be kept in the best condition possible to fulfil its conservation functions. This is important not just for western Sydney but for the conservation of biodiversity in Australia.

Description of the problem / current situation

Considerable urban development has occurred in the area surrounding the Reserve since the mid-1980s. Poorly designed and constructed stormwater and drainage collection systems in urban areas surrounding the Reserve have resulted in stormwater flows with increased volumes and energy, causing significant adverse impacts on the Reserve. The Bligh Park residential estate, situated to the north-west of the Reserve, directs approximately 20% of its catchment runoff to 5 discharge points located along the northern boundary of the Reserve. Discharges from these stormwater outlets flow directly into bushland within the Reserve with little or no treatment to mitigate impacts (see map below).

This discharge has carved new erosion gullies into the Reserve, of which several have carved out the unstable fill laid in trenches carrying previously-laid sewage rising mains. This has resulted in the mains themselves becoming destabilised, leading to a number of sewage leaks into the Reserve since 2000 (separate to the recent episode).

The concentrated volume and energy of the stormwater flows has also started headward incision and erosion of the creek within the Reserve, destroying the riparian landform, which was previously a chain of ponds separated by areas of overland sheet flow through Melaleuca woodland. This landform is now very rare in western Sydney, and of great intrinsic value, but it will be lost if stormwater management is not put in place upstream of the Reserve.

Map showing stormwater drainage paths from Bligh Park Estate through WDNR (BMT WBM 2007)

The absence of any stormwater detention, erosion control or water quality treatment measures within the Bligh Park Estate has caused significant sedimentation and erosion within the Reserve, including its downstream waterways, due to increased runoff volumes and the concentrated stormwater discharge from the stormwater pipe outlets. Untreated stormwater discharges into the Reserve also contain increased nutrient loads and other stormwater pollutants (e.g. gross pollutants, suspended solids, heavy metals etc.), which have contributed to nutrient enrichment of soils, supplemented by a number of sewage spills. This has resulted in significant weed plumes within the Reserve, which are impossible to treat successfully while the stormwater remains unmanaged.

Proposed project

This proposed project involves the construction of a Gross Pollutant Trap (GPT) on the northern boundary in the Reserve. This GPT will intercept and treat stormwater runoff prior to discharge into the Reserve. This Project will result in positive environmental benefits for the Reserve, particularly in improving water quality and reducing nutrient inputs as well as the associated weed growth that affect the vegetation communities. It will also help to reduce the peak volume and energy of flows into downstream waterways

NPWS previously engaged a consultant in 2007 to investigate the most appropriate stormwater mitigation measures for managing stormwater including end-of-line treatment measures (such as gross pollutant traps, bio-retention basins and a raingarden). A report was prepared containing the findings of the investigation, including prioritisation of these mitigation measures and estimated costings for these measures.

The report identified 5 priority projects and the respective locations that would be suitable for the positioning of stormwater treatment measures to intercept and target the removal of stormwater pollutants from the 5 stormwater discharge outlets in Bligh Park. Only one of these priority projects, the construction of a gross pollutant trap, was located within the Reserve, with remaining projects proposed on lands managed by Hawkesbury City Council.

Costs and timeframes

The cost of the construction of this gross pollutant trap (including planning, design and project management costs) is estimated at approximately $120,000. This does not include the ongoing costs to maintain the gross pollutant trap, however, NPWS would negotiate with Council about ongoing maintenance. This figure is indicative only as it is an estimate based on the consultant’s report from 2007, and an updated quote will be needed to more accurately determine the costs of this work at today’s prices.

If funds payable by Hawkesbury City Council towards the project as part of an environmental service order do not meet the total costs of the proposed GPT, NPWS will commit to seeking supplementary capital funds to complete this project within the 2017/18 financial year.

It is expected that the implementation of the project will be achievable within one year of the payment of funds towards it as part of an environmental service order. Indicative project milestones are listed below. The timing may vary depending on the timing of the payment of funds.

Milestone

Who

Start

Completion

Stormwater Mitigation designs

BMT WBM Pty Ltd

Completed

Completed

Review project designs with regard to improved stormwater mitigation technology since 2007

NPWS

July 2017/18

September 2017/18

Procurement process/ contracts awarded

NPWS

September 2017/18

November 2017/18

Installation of mitigation measure

NPWS / contractors

December 2017/18

April 2017/18

Further information

For further information about this proposal, please contact Jonathan Sanders (Area Manager) at NPWS Cumberland Area office on 4572 3100.

Decision last updated: 07 April 2017

Medium Neutral Citation:	Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39
Hearing dates:	22 March 2017
Date of orders:	06 April 2017
Decision date:	06 April 2017
Jurisdiction:	Class 5
Before:	Pain J
Decision:	See par 84
Catchwords:	SENTENCE – environmental offence – plea of guilty to charge of water pollution from sewage treatment plant – moderate objective seriousness - mitigating factors considered – totality applied SENTENCE – environmental offence – plea of guilty to charge of failure to comply with licence condition – moderate objective seriousness – mitigating factors considered – totality applied SENTENCE – environmental offence – plea of guilty to charge of failure to comply with licence condition – low objective seriousness – mitigating factors considered
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22, 23 Criminal Procedure Act s 257B National Parks and Wildlife Act 1974 s 30J Protection of the Environment Operations Act 1997 ss 3, 64, 120, 123, 241, 244, 248, 250, Dictionary
Cases Cited:	Axer Pty Ltd v Environment Protection Agency (1993) 113 LGERA 357 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Director-General of the Department of Environment & Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289 Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 Environment Protection Authority v Port Kembla Copper Pty Ltd (2001) 115 LGERA 391; [2001] NSWLEC 174 Environment Protection Authority v Port Kembla Copper Pty Ltd [2003] NSWLEC 256 Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 120 Environment Protection Authority v State of New South Wales (Department of Environment, Climate Change and Water) (2010) 174 LGERA 19; [2010] NSWLEC 67 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Hoare v R (1989) 167 CLR 348; [1989] HCA 33 R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Hawkesbury City Council (Defendant)
Representation:	COUNSEL: A Essex, solicitor (Prosecutor) T Howard (Defendant) SOLICITORS: Office of Environment and Heritage (Prosecutor) Marsdens Law Group (Defendant)
File Number(s):	16/184785, 16/184832, 16/235234

Milestone	Who	Start	Completion
Stormwater Mitigation designs	BMT WBM Pty Ltd	Completed	Completed
Review project designs with regard to improved stormwater mitigation technology since 2007	NPWS	July 2017/18	September 2017/18
Procurement process/ contracts awarded	NPWS	September 2017/18	November 2017/18
Installation of mitigation measure	NPWS / contractors	December 2017/18	April 2017/18