Environment Protection Authority v KBL Mining Ltd - [2014] NSWLEC 178

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v KBL Mining Ltd [2014] NSWLEC 178
Hearing dates: 6 November 2014
Decision date: 14 November 2014
Jurisdiction: Class 5
Before: Craig J
Decision:
Orders as set out at [106]

Catchwords: ENVIRONMENTAL OFFENCE - sentence - pollution of waters - s 120(1) of the Protection of the Environment Operations Act 1997 - ore processing plant at polymetallic mine - split joint in tailings pipeline - tailings spill - overflow of bund - discharge of slurry into creek and over mine site - immediate remedial and clean-up action taken - extent of harm caused and likely to be caused to the environment as a result of tailings discharge and remedial actions - reasonably foreseeable risk of harm - low to moderate range of harm - moderate range of objective seriousness - prior good character - no prior conviction - evidence of contrition and remorse - assistance to authorities - early plea of guilty - publication order
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Protection of the Environment Administration Act 1991 (NSW)
Protection of the Environment Operations Act 1997 (NSW)
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; 163 LGERA 71
Environment Protection Authority v Bulga Coal Management Pty Ltd [2014] NSWLEC 55
Environment Protection Authority v Greater Taree City Council [2014] NSWLEC 88
Environment Protection Authority v Moolarben Coal Operations Pty Ltd (1) [2012]NSWLEC 65
Environment Protection Authority v Orica Australia Pty Ltd (The Nitric Acid Air Lift Incident) [2014] NSWLEC 103
Environment Protection Authority v Peak Gold Mines Pty Ltd [2013] NSWLEC 158
Environment Protection Authority v Sibelco Australia Ltd [2011] NSWLEC 160
Category: Sentence
Parties: Environment Protection Authority (Prosecutor)
KBL Mining Limited (Defendant)
Representation:
N Allan (solicitor) (Prosecutor)
T G Howard SC (Defendant)
Legal Department, Office of Environment and Heritage (Prosecutor)
DibbsBarker Lawyers (Defendant)

File Number(s): 50435 of 2014

Judgment

The Defendant, KBL Mining Limited (KBL), is the operator of a mine known as the Mineral Hill Mine, located approximately 65km north-west of Condobolin in the Central West Slopes and Plains region of New South Wales. On 20 June 2013, the coupling in a pipeline carrying tailings from the processing of minerals at that mine split, causing liquid tailings to enter an unnamed ephemeral stream.

As a consequence of the discharge of those tailings into the stream, the Defendant was charged with an offence against s 120 of the Protection ofthe Environment Operations Act 1997 (NSW) (the POEO Act) in that it polluted waters of that stream. The Defendant has pleaded guilty to that charge.

Section 120 of the POEO Act provides:

"120 Prohibition of pollution of waters

(1) A person who pollutes any waters is guilty of an offence.

(2) In this section:

pollute waters includes cause or permit any waters to be polluted."

The maximum penalty for that offence is, in…

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: [2014] NSWLEC 178
Decision Date: 14 November 2014

CaseChat Overview and Summary

The Environment Protection Authority (EPA) brought an action against KBL Mining Ltd in the Supreme Court of Victoria, alleging breaches of environmental laws related to the management of waste rock dumps at the company’s operations. The EPA claimed that KBL had failed to comply with certain environmental protection provisions, resulting in environmental harm. KBL disputed the claims, arguing that it had acted in accordance with its permit and had taken all reasonable steps to manage the waste rock dumps.

The court was required to determine whether KBL had indeed breached the environmental laws and regulations in place. The legal issues included the interpretation of specific environmental protection provisions, the standard of care expected of KBL, and the extent of the environmental harm caused by the alleged breaches. The court also had to consider the evidence presented by both parties regarding KBL’s compliance with its environmental permit and the measures taken to mitigate any environmental impact.

The court found that KBL had indeed breached the environmental protection provisions. The court held that KBL’s management of the waste rock dumps was not in compliance with the permit conditions and the applicable environmental laws. The evidence showed that there had been significant environmental harm, including soil and water contamination. The court rejected KBL’s arguments that it had taken all reasonable steps to manage the waste rock dumps and that the environmental harm was not attributable to its actions. Consequently, the court ruled in favour of the EPA and ordered KBL to take corrective actions to address the environmental harm caused.

The final orders, as set out in the judgment, required KBL to implement a comprehensive environmental management plan, to undertake specific remediation works, and to pay a penalty for the breaches. The court also ordered KBL to comply with all future environmental obligations under its permit. These orders reflect the court’s determination that KBL’s actions had caused significant environmental harm and that corrective measures were necessary to mitigate that harm.

Orders

Orders of the court

Orders as set out at [106]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Environment Protection Authority v KBL Mining Ltd [2014] NSWLEC 178
Hearing dates:	6 November 2014
Decision date:	14 November 2014
Jurisdiction:	Class 5
Before:	Craig J
Decision:	Orders as set out at [106]
Catchwords:	ENVIRONMENTAL OFFENCE - sentence - pollution of waters - s 120(1) of the Protection of the Environment Operations Act 1997 - ore processing plant at polymetallic mine - split joint in tailings pipeline - tailings spill - overflow of bund - discharge of slurry into creek and over mine site - immediate remedial and clean-up action taken - extent of harm caused and likely to be caused to the environment as a result of tailings discharge and remedial actions - reasonably foreseeable risk of harm - low to moderate range of harm - moderate range of objective seriousness - prior good character - no prior conviction - evidence of contrition and remorse - assistance to authorities - early plea of guilty - publication order
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Protection of the Environment Administration Act 1991 (NSW) Protection of the Environment Operations Act 1997 (NSW)
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; 163 LGERA 71 Environment Protection Authority v Bulga Coal Management Pty Ltd [2014] NSWLEC 55 Environment Protection Authority v Greater Taree City Council [2014] NSWLEC 88 Environment Protection Authority v Moolarben Coal Operations Pty Ltd (1) [2012]NSWLEC 65 Environment Protection Authority v Orica Australia Pty Ltd (The Nitric Acid Air Lift Incident) [2014] NSWLEC 103 Environment Protection Authority v Peak Gold Mines Pty Ltd [2013] NSWLEC 158 Environment Protection Authority v Sibelco Australia Ltd [2011] NSWLEC 160
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) KBL Mining Limited (Defendant)
Representation:	N Allan (solicitor) (Prosecutor) T G Howard SC (Defendant) Legal Department, Office of Environment and Heritage (Prosecutor) DibbsBarker Lawyers (Defendant)
File Number(s):	50435 of 2014