Environment Protection Authority v Incitec Limited - [2003] NSWLEC 381

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Incitec Limited [2003] NSWLEC 381

PARTIES: Environment Protection Authority (Prosecutor)
Incitec Limited (Def)

FILE NUMBER(S): 50049 of 2003

CORAM: McClellan CJ

KEY ISSUES: Environmental Offences :- Water pollution
Breach of conditions of environmental protection licence
Release of acidic wastewater into river
Failure to respond to alarm system
Previous similar offence
Incident foreseeable
Mitigating factors including corrective measures put in place
no evidence of actual environmental harm
Whether plea of guilty mitigating factor where no defence arguable
Whether defendant should be ordered to publish offence
Penalty in form of fine and publication order

LEGISLATION CITED: Protection of the Environment Operations Act 1997
Clean Waters Act
Environmental Offences and Penalties Act
Crimes Sentencing Procedure Act 1999

CASES CITED: EPA v Port Kembla Copper Pty Limited [2001] 115 LGRA 391;
Axer Pty Limited v EPA [2001] 113 LGERA 357;
EPA v Shoalhaven Starches Pty Limited [2003] NSWLEC 107

DATES OF HEARING: 14-15 October 2003

EX TEMPORE
JUDGMENT DATE :
10/15/2003

LEGAL REPRESENTATIVES:

M Arch (Prosecutor)
Environment Protection Authority (Sol)
R Lancaster (Def)
Mallesons Stephen Jaques (Sol)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50049/03

McCLELLAN J

WEDNESDAY 15 OCTOBER 2003

ENVIRONMENT PROTECTION AUTHORITY

Applicant

INCITEC LIMITED

Respondent

Judgment

Introduction

1 HIS HONOUR: The defendant, Incitec Limited, pleads guilty to an offence against section 64(1) of the Protection of the Environment Operations Act 1997. The offence charged is that on or about 12 July 2002 the defendant contravened a condition of its environment protection licence by discharging waste water with a pH level below 6.2 into the north arm of the Hunter River.

2 The relevant condition of the licence was condition L3.1 which states, inter alia:

“For each monitoring discharge point or utilisation area specified in the table/s below (by a point number), the concentration of a pollutant discharged at that point, or applied to that area, must not exceed the concentration limit specified for that pollutant in the table.”

3 The table relevantly provided a minimum pH of 6.2. The maximum penalty for the offence in the case of a corporation is $250,000.

4 Incitec owns and operates a chemical manufacturing facility located at Greenleaf Road, Kooragang Island, near Newcastle. It manufactures ammonia, ammonium nitrate, nitric acid and granulated fertilisers at this facility. Incitec, or previous manifestations of that corporation, have manufactured those products and similar products at the premises for in the order of forty years.

5 The parties have reached agreement in relation to the relevant facts. I draw upon that agreement in making the following factual findings.

6 Incitec utilises two separate plants at the facility to make ammonium nitrate which are known by the designations “AN1” and “AN2.” AN1 began operation in 1969 and AN2 commenced in 1989.

7 Ammonium nitrates are manufactured at the facility by the reaction of gaseous ammonia with liquid nitric acid. One of the items of equipment that is utilised in this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 381
Decision Date: 10/15/2003

CaseChat Overview and Summary

The case of Environment Protection Authority v Incitec Limited involved Incitec Limited, a chemical manufacturing company, pleading guilty to a charge under section 64(1) of the Protection of the Environment Operations Act 1997 for discharging wastewater with a pH level below 6.2 into the north arm of the Hunter River on or about 12 July 2002. The breach contravened a condition of Incitec's environmental protection licence. The court had to determine the appropriate penalty for this environmental offence, considering various factors including the absence of observable harm, the defendant's previous convictions for similar offences, and the steps taken by Incitec to prevent future occurrences. The court also had to decide whether to impose a publication order requiring Incitec to publicise the offence. The maximum penalty for the offence was $250,000. The court found that the offence, although not causing observable harm, was serious due to the potential for significant environmental damage and the failure to respond promptly to alarms indicating the breach. It also considered the defendant's previous convictions and the measures taken post-incident to mitigate future risks. The court imposed a fine of $90,000 and ordered Incitec to publish an advertisement in the Financial Review and include the contents in its next annual report, emphasising the need for strict compliance with environmental regulations.

Orders