Environment Protection Authority v Incitec Ltd - [2000] NSWLEC 18

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Incitec Ltd [2000] NSWLEC 18

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Incitec Limited

FILE NUMBER(S): 50039 of 1999

CORAM: Sheahan J

KEY ISSUES: Environmental Offences :- Plea of guilty - environmental harm - air pollution - mitigation

LEGISLATION CITED: Environmental Offences and Penalties Act 1989

CASES CITED: EPA v Orange City Council (50045 of 1995, 23 June 1995)

DATES OF HEARING: 16/12/99, 17/12/99

EX TEMPORE
JUDGMENT DATE : 12/17/1999

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr C Leggat (Barrister)
SOLICITORS:
EPA
DEFENDANT
Mr Ian Lloyd QC
SOLICITORS:
Minter Ellison

JUDGMENT:

IN THE LAND AND Matter No: 40079 of 1999

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 17 December 1999

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

INCITEC LTD

Defendant

JUDGMENT

1. The defendant is a long established company tracing its origins in the chemical industry back to 1862. It is also long established at the relevant location, having begun operations at Kooragang Island near Stockton and Newcastle in 1964.

2. The company runs large plants and has long experience in making, using and handling dangerous substances, including ammonia.

3. This is its first appearance in this court on an environmental offence although my attention has been drawn to the issue of three penalty infringement notices, within a three week period in 1996, in respect of incidents relevantly similar to the one involved in these proceedings.

4. It is alleged that an offence was involved in an incident on 10 June 1998 when a large amount of ammonia gas was discharged under pressure into the air at Kooragang Island and caused some impacts in the Stockton area.

5. The summons was issued on 9 June 1999 and the company pleaded guilty on 6 October 1999. I accept Mr Lloyd’s submission on the company’s behalf that this was the earliest reasonable time in which to make that plea, and I also accept his comment that the Prosecutor’s case relies heavily upon the opinions held and expressed by Mr Court, opinions which could well have been seriously contested by defending the proceedings.

6. In the end analysis the cooperation between the parties has extended to substantial agreement on the facts and relevant circumstances which the Court must weigh in arriving at the appropriate penalty to impose.

7. The Prosecutor puts the case at the “ medium ” section of the “ scale ” helpfully enunciated by Stein J in EPA v Orange City Council (50045 of 1995, 23 June 1995), ie 30-60% of the maximum, but Mr Lloyd puts the matter at the lower end, ie 10-30% of the maximum.

8. Wherever the Court’s mind might settle, a substantial discount needs to be applied to take account of :

9. It seems now to be…

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.

Continue reading Environment Protection Authority v Incitec Ltd

Details

AGLC: Environment Protection Authority v Incitec Ltd [2000] NSWLEC 18
Case: [2000] NSWLEC 18
Decision Date: 12/17/1999

CaseChat Overview and Summary

In the case of Environment Protection Authority v Incitec Ltd, the defendant, Incitec Limited, faced charges of environmental offences related to an incident where a large amount of ammonia gas was discharged into the air at Kooragang Island, causing impacts in the Stockton area. The incident occurred on 10 June 1998, and the summons was issued on 9 June 1999. The company pleaded guilty on 6 October 1999. The primary legal issues before the court were whether the defendant was guilty of the alleged environmental offences and, if so, what penalty should be imposed.

The court considered the mitigating factors presented by the defendant, such as the early plea, agreement to pay the prosecutor’s costs, contrition, remedial initiatives, cooperation with the prosecutor, and practical concern for those affected by the incident. The court also took into account the substantial discount needed for the mentioned mitigating factors. The defendant argued that the discharge resulted from the effects of dust in a valve control mechanism, and while the staff's reaction was rapid, 333 kg of pure ammonia gas was discharged in 13 seconds and detected at a residential complex in Stockton, causing harm to the residents.

After weighing the mitigating factors and the nature of the offence, the court concluded that the appropriate penalty to impose was 20% of the maximum, namely a fine of $25,000. The court also ordered the defendant to pay the prosecutor's costs, which were agreed upon at an amount of $13,000. The exhibits were to be retained, except for the photo exhibit D2, which could be returned.

This case highlights the importance of implementing proper environmental management systems and taking necessary precautions to prevent incidents that may result in environmental harm. Companies must be aware of the risks involved in their operations and ensure that appropriate measures are in place to avoid such incidents in the future.

Orders