Environment Protection Authority v J K Williams Contracting Pty Limited
[2001] NSWLEC 13
•02/16/2001
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v J K Williams Contracting Pty Limited [2001] NSWLEC 13 revised - 23/02/2001 PARTIES: PROSECUTOR
DEFENDANT
Environment Protection Authority
J K Williams Contracting Pty LimitedFILE NUMBER(S): 50072 of 2000 CORAM: Cowdroy J KEY ISSUES: Prosecution :- Disposal of fill material contaminated with spent lead bullets and bullet fragments on land to be used for residential purposes - early plea of guilty - remediation of site undertaken by defendant - penalty LEGISLATION CITED: Environmental Offences and Penalties Act 1989 s 8A
Interpretation Act 1987 s 30
Protection of the Environment Operations Act 1997 s 119, s 241
Waste Minimisation and Management Act 1995 s 63CASES CITED: Axer Pty Ltd v EPA (unreported, 22 November 1993 NSWCCA);
Camilleri’s Stockfeeds Pty Ltd v EPA (1993) 32 NSWLR 683;
EPA v Bega Valley SC [1998] NSWLEC 187;
R v Thompson; R v Houlton [2000] CCA 309;
R v Winchester (1992) 58 A Crim R 345DATES OF HEARING: 2/02/01 DATE OF JUDGMENT:
02/16/2001LEGAL REPRESENTATIVES:
PROSECUTOR
Mr M Kelly (Solicitor)SOLICITORS
Environment Protection Authority Legal BranchDEFENDANT
SOLICITORS
Mr I Lloyd QC
Bruce & Stewart Commercial Practice
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 50072 of 2000
CORAM: Cowdroy J
DECISION DATE: 16/02/2001
v
J K Williams Pty Limited
Background
1. By summons filed on 27 October 2000 the prosecutor charged J K Williams Contracting Pty Limited (“the defendant”) that it committed an offence against the Environmental Offences and Penalties Act 1989 (“the EOP Act”) in that, contrary to s 63 of the Waste Minimisation and Management Act 1995 as amended by the Waste Minimisation and Management Amendment Act 1998, the defendant unlawfully transported waste to a place that could not be used as a waste facility for that waste. The summons alleges that on or about 8 January 1997 such waste, comprising soil containing lead bullets and bullet fragments, was deposited upon land described as Precinct 7C at Glenmore Park (“the site”).
2. The EOP Act was repealed by the Protection of the Environment Operations Act 1997 (“the PEO Act”) however that repeal does not affect these proceedings (see s 30 Interpretation Act 1987). Pursuant to s 8A(1)(a) of the EOP Act the maximum penalty for this offence is $125,000.
3. The defendant has pleaded guilty to the charge and accordingly the Court is only required to assess the relevant penalty (R v O’Neil [1979] 2 NSWLR 582). The prosecutor and the defendant have submitted a short statement of agreed facts and the Court is requested by both parties to have regard only to such facts and not to any additional facts contained in affidavits prepared by the prosecutor.
The agreed facts
4. On or about the 26 August 1996 the defendant entered into a contract with the New South Wales Housing and Land Corporation (“Landcom”) and Glenmore Park Estate Limited (then known as EFG Finance Limited and hereafter referred to as “Glenmore”) to carry out earthmoving works on a proposed residential subdivision then being developed by the respective corporations. Such work involved filling, compacting and levelling of the site to render it suitable for the construction of houses at the site. Clay was the necessary material required for such work because it is compactable.
5. On or about the 18 December 1996 the defendant entered into a contract with the Commonwealth Department of Defence to remove mounds of soil and clay (“the material”) known as stop butts from a rifle range used by the RAAF base at Orchard Hills. The material was heavily polluted with spent bullets. Pursuant to that contract State and Commonwealth regulations for the disposal of contaminated material were to apply to the disposal.
6. Excavation at the Orchard Hills site commenced in January 1997 and eight truckloads of material was removed. Three truckloads of the material, containing the upper layer of topsoil and some underlying clay were deposited at the Penrith Waste Services tip. A plant operator of the defendant, also a delegate of the defendant’s project manager, regarded the underlying clay as suitable for use at the site because it was compactable. The defendant paid no consideration to the possible presence of spent bullets in the material. The remaining five truckloads of the material were thus transported to the site.
7. After complaints had been received by the prosecutor investigations were undertaken into the site in January 1998. At that time several houses in the affected area were in the process of construction. On 6 February 1998 part of the area known as Precinct 7C was excavated by the defendant under supervision of the prosecutor and consultants engaged by Glenmore. A small quantity of bullets and bullet fragments was found and a decision was made that the site required remediation.
8. A remediation plan for the site was prepared by AGC Woodward-Clyde Pty Ltd and the plan was approved by the Penrith City Council, the Department of Health, the prosecutor, the defendant and residents potentially affected by the material. The remediation commenced in June 1998. Most of the material considered to be contaminated was removed and deposited at the Penrith Services Waste tip. Two and a half cups of bullets and fragments were recovered from material spread over up to eight residential allotments. The clay was not sifted and it is not known whether more lead remained in those clay lumps. However any remaining contaminated material lies under the concrete slabs of three houses at the site.
9. The remediation work was completed within two months at a cost of $336,497.28. In addition to the sum of $33,878 in respect of fees paid to environmental consultants, engineers and lawyers, a further sum of $1 million dollars was paid by the defendant to Glenmore as general damages which was divided amongst the residents potentially affected.
Relevant considerations
10. The parties have agreed that the Court is to consider the factors referred to in s 241 of the PEO Act as being relevant for determination of the penalty, although the defendant has pleaded guilty to the offence as charged under the EOP Act.
11. Section 241(1)(a) requires the Court to assess the extent of harm caused or likely to be caused to the environment by the commission of the offence. There is no evidence of any actual harm to the environment at the site. Also, any harm likely to be caused is negligible as a consequence of the remediation of the site and because of the concrete slabs covering the material. Lead is considered unlikely to leach from its current position beneath these concrete slabs. However future harm to the environment could arise if the houses were demolished and the concrete slabs removed thereby allowing bullets or lead fragments to be excavated near the surface. In that event a risk of exposure to the lead could arise. Most significantly, however, there was a risk of harm to the children of residents at the site who might have ingested or played in the material. The local council has undertaken to notify all purchasers of land at the site of the contamination. Nevertheless, the remediation has now removed any real risk of harm resulting at the site.
12. With respect to the practical measures which could have been undertaken to prevent, control or abate or mitigate harm to the environment two competing factors are uncontroverted. The first is that the defendant exercised complete control over the transportation and disposal of the material without testing whether, or even considering if, the material may have been contaminated. Conversely, the defendant has now taken measures which have eliminated any risk of harm resulting at the site and no actual harm to the environment has occurred at the site. Nevertheless, the defendant is an earthmoving contractor and ought to have had adequate measures in place to ensure that such material would only be deposited at a waste depot.
13. In relation to the consideration required by s 241(1)(c) of the PEO Act, namely the foreseeability of harm or likelihood of harm resulting, the defendant should have been aware of the consequences of depositing contaminated material in the landfill. Further, the defendant was specifically contracted to deposit the waste in an authorised waste depot and therefore ought to have been aware that harm was likely and foreseeable.
14. The Court is also required to consider pursuant to s 241 (1)(d) of the PEO Act the extent of control over the transportation and disposal of the material, and thus, the commission of the offence. The defendant exercised total control over the disposal of the material.
15. Section 241(1)(e) of the PEO Act requires the Court to consider whether in the commission of the offence the person responsible was acting under orders. Since the defendant is a corporation, this consideration is irrelevant.
Mitigation
16. At the date of the offence the defendant engaged thirty full time employees. It has, since operations commenced in 1958, had no prior convictions for any environmental offence and has undertaken remediation at the site in a responsible manner.
17. In accordance with the principles established by the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 the Court is entitled to provide a discount to the penalty because of the defendant’s co-operation with the prosecutor by pleading guilty at an early stage in the proceedings.
18. The defendant relies upon the principle referred to by Kirby P in Camilleri’s Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701 wherein His Honour made the observation that, ‘the more serious the lasting environmental harm involved the more serious the offence, and ordinarily, the higher the penalty.’ The defendant submits that in view of the absence of harm, the early plea of guilty and the remediation carried out, the reduction in sentence should be substantial (see also R v Winchester (1992) 58 A Crim R 345).
19. The defendant has also placed before the Court references from environmental and development corporations located in the western suburbs of Sydney testifying to the high repute in which the company is held in the region. One such reference has been proffered by Glenmore, the corporation that owned the land the subject of these proceedings.
20. The prosecutor submits that the gravity of the offence must also be taken into consideration as was discussed by Sheahan J in Environment Protection Authority v Bega Valley Shire Council [1998] NSWLEC 187 wherein His Honour imposed a penalty reflecting the seriousness of the offence notwithstanding that the harm in that case might be considered negligible.
21. The Court takes into account all of the matters urged in submission and accepts that the early plea of guilty warrants a discount of 20% of the assessed penalty in accordance with the principles of the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383.
Penalty Assessment
22. In consideration of the appropriate penalty it must be again noted that the defendant has assisted the prosecutor at all stages of these proceedings and has completed remediation at the site. Also, the quantity of lead recovered from the remediation operations suggests that the actual quantity of lead in the material was very small.
23. There are however competing considerations. In Axer Pty Ltd v EPA (unreported, 22 November 1993 NSWCCA) Mahoney JA referred to the fact that a business must conduct itself to ensure that pollution offences do not occur. In this case the defendant knew that the clay and soil derived from the rifle range was to be deposited in an approved waste facility and this was not done. There is no explanation for the diversion of the five truckloads of material to the site. The Court however is satisfied that the decision to use such material was grossly irresponsible.
24. Taking all of the above matters into account the Court considers that the appropriate penalty is $65,000. In view of the co-operation of the defendant the penalty will be reduced to $52,000. Costs between the prosecutor and the defendant are agreed at $7,000.
Orders
25. The Court orders that:-
1. The defendant be convicted of the offence as charged and fined the sum of $52,000.
2. The defendant is to pay the costs of the prosecutor in the agreed sum of $7,000 within four weeks of the date of this judgement.
3. The exhibits be returned.
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