Environment Protection Authority v Mid Coast County Council trading as Mid Coast Water

[2003] NSWLEC 416

>

Reported Decision: 136 LGERA 233

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Mid Coast County Council trading as Mid Coast Water [2003] NSWLEC 416
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Mid Coast County Council trading as Mid Coast Water
FILE NUMBER(S):	50028 of 2003
CORAM:	Pain J
KEY ISSUES:	Prosecution :- guilty plea - discharge of raw sewage by county council - obligations of public authorities
LEGISLATION CITED:	Protection of the Environment Operations Act 1997 s 120(1), s 241
CASES CITED:	Axer v Environment Protection Authority (1993) 113 LGERA 357; Camilleri Stockfeeds Pty Limited v Environment Protection Authority (1994) 82 LGRA 21; Environment Protection Authority v Casino Council [1997] NSWLEC 214 (21 November 1997); Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156 (3 March 2000); Environment Protection Authority v Tenterfield Shire Council (2000) 112 LGERA 173; Environment Protection Authority v The Crown in the right of New South Wales [2002] NSWLEC 52 (19 April 2002); R v Thompson; R v Houlton (2000) 49 NSWLR 383
DATES OF HEARING:	19/11/03
EX TEMPORE JUDGMENT DATE :	11/20/2003
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr D J Galpin SOLICITORS: Environment Protection Authority DEFENDANT: Mr I Lloyd QC SOLICITORS: Deacons

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

50028 of 2003

Pain J

20 November 2003

ENVIRONMENT PROTECTION AUTHORITY
Prosecutor

v

MID COAST COUNTY COUNCIL T/AS MID COAST WATER
Defendant

Judgment

1. The Defendant has pleaded guilty to an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (the PEO Act) in that between 14 April 2002 and 23 April 2002 it polluted waters at Nabiac in New South Wales. The summons provided particulars of the pollutant as being untreated sewage matter, containing faecal choloforms. The waters which were polluted are a farm dam on a property owned by Mr Alan Newall at Showground Lane, Nabiac and waters downstream thereof.

2. As there is a plea of guilty entered in the matter all the legal ingredients of the offence are admitted, leaving now the question of sentence for determination. I note that the maximum penalty applicable for the offence in this case is $250,000.

3. The parties have helpfully supplied to the Court an Agreed Statement of Facts and I will simply note for background purposes some of the matters detailed in the statement of facts.

4. I note that the Defendant is a body corporate being a county council established under the Local Government Act 1993 by proclamation on 2 May 1997. I refer to par 2 of the Statement of Agreed Facts which sets out relevant objectives of the Defendant as follows:
(a) to protect the environment by conducting its operations in compliance with the principles of ecologically sustainable development and,
(b) to provide sewerage services and facilities in a manner which will not impact adversely on the health of the local community or the wider public.

5. I further note that the Defendant operates and manages sewage treatment and associated reticulation systems serving the Great Lakes and Taree local government areas and has been responsible for the operation of these systems since 1997. As part of the reticulation system, the Defendant operates 191 pump stations, 12,930 manholes and is responsible for the maintenance of 800 to 1000 kilometres of sewage mains in the Great Lakes and Taree local government areas.

6. The statement of facts contains an agreed incident report prepared in relation to the incident before me. I adopt, for the purpose of this judgment, the background statement contained at par 6 to 8 of the Statement of Agreed Facts which states as follows:

The Nabiac STP was designed by the Department of Public Works and Services ("DPWS") and built by MCW in 1999 and 2000, using contractors. The project was state subsidised. … DPWS and MCW commissioned the Nabiac STP at the end of 2000 and it opened in February 2001. MCW accepted handover of the Nabiac STP in February 2001 and has operated it since that time.

The Nabiac STP forms part of the Wallamba and Hallidays Point Sewage Treatment Schemes. Attachment C1 is a schematic diagram entitled Hallidays Point Sewage Treatment Scheme. Attachment C2 is a diagram showing the position of the Nabiac STP as part of the Wallamba and Hallidays Point Sewage Treatment Scheme.

The Nabiac STP is a pre-treatment facility that partially treats sewage from the village of Nabiac prior to transferring the effluent to Hallidays Point STP for final treatment and disposal. Sewage and wastewater from Nabiac township collects in the Nabiac pumping stations PSNA1, 3, 4 and 5 and is then transferred to the main pumping station, PSNA2. From there it is pumped to the top of a hill. It is then discharged into a pipeline which runs downhill, under gravity, to the Nabiac STP. The design allowed for the gravity line to be pressurised and all manholes were fitted with water tight lids (Gatic lids).

7. Details as to the locality are outlined in par 9 to 11 as follows:
The Nabiac STP is located off Showground Rd, Nabiac and backs onto private property which in turn backs onto the Wallamba River. Attachment D is a site plan showing the Nabiac STP. Attachment E contains three photographs showing the Nabiac STP, the boundary fence and the adjacent property after remediation works.
The distance between the Nabiac STP and the Wallamba River is approximately one kilometre. The private properties are used for dairy and beef cattle farming and have two dams situated within a natural drainage path between the Nabiac STP and the Wallamba River. The dams are used to supply drinking water to dairy and beef cattle. A manhole for the pipeline that runs from the top of the hill to the Nabiac STP is situated near the boundary fence of the STP on the dairy farm. Attachment F contains six photographs showing the manhole and the dairy farm on 23 April 2002.
The Wallamba River is a tributary of the Wallis Lakes system. The river travels through private grazing properties in the section where the incident occurred. Commercial oyster leases are situated approximately 20 kilometres from the Nabiac STP at the mouth of the estuary.

8. Details of the incident are outlined in par 12 to 17 of the Statement of Agreed Facts as follows:

On about 14 April 2002, a blockage or "choke" occurred at the inlet valve on the pipe coming into the pumping station (from Nabiac) at the head of the Nabiac STP.

The blockage was caused by a build-up of material possibly on a foreign object such as a nappy, brick or gravel entering the system on the inlet side of the valve, which was in a partially closed position. The inlet valve should have been in a fully open position. The valve was probably left not fully opened since commissioning the plant.

As a consequence of the blockage, combined with a dislodged manhole (reason unknown), raw sewage in the gravity-fed pipeline commenced to overflow from the manhole situated on the dairy farm adjacent to the Nabiac STP on 14 April 2002. …

The raw sewage flowed from the manhole, down a drainage line into the first farm dam on the dairy farm and that dam then overflowed into the second farm dam. From the second farm dam the spill flowed into the network of drains and through a man-made hole in the levee bank it entered the Wallamba River. …

Sewage overflowed from the manhole from 14 April 2002 until 23 April 2002. A total of about 800 kilolitres overflowed from the manhole in this period.

9. In summary, the Statement of Agreed Facts states that the incident was caused by a combination of the following three matters:
(1) there was a blockage in the main inlet pipe to the Nabiac sewage treatment plant;
(2) a manhole cover was dislodged, the reason for the dislodgment being unknown; and
(3) an inlet valve was not fully open at the plant itself.
As a consequence of this combination of events raw sewage escaped into the environment.


10. The extent of environmental harm is agreed in the Statement of Agreed Facts. I note that numerous samples were taken of the discharge at the site and downstream near the affected farm dams and the Wallamba River. The Statement of Agreed Facts records at par 27 that the quantities of sewage entering the river were too small to have a significant effect on the ecology of the river. It is agreed that there was clearly localised impact in the immediate vicinity of the spill in the area of the two farm dams.

11. In relation to the impact on human health, par 28 of the Statement of Agreed Facts states that there was potential for harm to human health in that it is likely that the raw sewage which overflowed from the manhole contained a number of viruses, such as do exist in human effluent. These viruses can potentially be present in the environment for some time after a sewage discharge event. Accordingly, there was some potential for an adverse impact on human health, although no evidence of actual harm was presented to the Court.

12. In relation to the factors the Court is required to take into account on sentencing I refer to s 241 of the PEO Act and the relevant matters enumerated there.

Section 241(a) - the extent of harm caused or likely to be caused to the environment

13. I find that there clearly was harm to the environment within the meaning of the broad definition of harm contained in s 4 of the PEO Act, and that this harm occurred in the drainage line downhill from the manhole in the two farm dams and flowing towards the Wallamba River. I note 600 cubic meters of soil were removed from the farm dam and drainage area and replaced by clean soil. I also note that there was a potential for serious harm to result, given that raw sewage, with its attendant possible consequential impacts on human health, was flowing towards the Wallamba River.

Section 241(b) - the practical measures that may be taken to prevent, control, abate or mitigate that harm


14. The Prosecutor argued that the Statement of Agreed Facts clearly set out in par 25 a number of measures taken after the incident by the Defendant to ensure that there was no recurrence. The Prosecutor argued that these post-incident measures clearly showed that there were matters which could have been carried out in advance to prevent, control, abate or mitigate the harm that has been caused.

15. Paragraph 25 of the Statement of Agreed Facts states:
Since the incident occurred MCW has carried out the following to ensure that there is no repeat of the incident:
(a) On 12 June 2002 a debriefing meeting was held with various MCW personnel present. The following recommendations were identified
(i) Raise the manhole lids along the line;
(ii) More monitoring by operations;
(iii) Need to obtain manuals and commissioning documents from DPWS;


(b) A radiotelemetry alarm was installed in the influent pump within 1 week of the incident;

(c) Permanent inflow alarms with dial outs were installed within 3 months of the incident;

(d) A new "user friendly" SCADA computer system to control the operation of the process at the treatment plant was commissioned including external alarms;

(e) Manholes ere repaired and raised above the hydraulic gradient and therefore future overflows in this part of the sewerage system would divert to the STP onsite storage basin;

(f) Operators commenced visual inspection of the manholes adjacent to the STP during their 3 times weekly visits;

(g) The hydraulics of the inflow to the STP were improved via plant optimization;

(h) The sewerage pumping station pumps were increased to operate at 35 litres per second from 15 litres per second and the lift station pumps were maintained at 15 litres per second, thereby creating flow balancing capacity onsite.


16. The Defendant argued to the contrary and relied on the fact that the sewage treatment plant had reasonably recently been taken over from the Department of Public Works. The Defendant argued that, given this recent takeover, it was reasonable for the Defendant to rely on the Department of Public Works to have carried out its work efficiently so as to ensure that the new plant was operating in a proper manner when it was taken over by the Defendant.

17. I consider that, as the operator of the sewage treatment plant at Nabiac, the Defendant does have an obligation to ensure adequate systems are in place to detect difficulties in the plant and the surrounds. These appear to have been lacking on this occasion. There clearly were practical measures as referred to above which could have been taken to prevent this occurrence which were not in fact taken.

Section 241(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

18. It seems to me the Defendant could have foreseen the harm caused or likely to be caused by the commission of this offence. It is not sufficient for the Defendant to say that it relied on the Department of Public Works, particularly as this meant that for some twelve months or more after the time it took over the treatment plant there appeared to be no operational manuals in place. There was no indication given as to what measures were in place for regular inspections and the monitoring of the through put in the plant. This was, in my view, an important oversight. The operator of a sewage treatment plant, such as the Defendant, has a responsibility to put in place systems to detect foreseeable causes such as blockages in the pipes and valves not fully operating.

Section 241(d) - the extent to which the person who committed the offence had control over the causes that gave rise to the offence


19. I consider the Defendant clearly did have control over the causes giving rise to the offence.

20. Section 241(e) is not relevant for the purposes of this judgment.

Additional matters

21. In looking at those matters which I must consider in relation to sentencing in addition to those contained in s 241, I note that this is a first offence of the Defendant.

22. Clearly I must have regard to the culpability of the Defendant and the individual circumstances which led to the commission of the offence. While I accept that the Defendant is culpable, as reflected in the plea of guilty, I reject the Prosecutor’s submission that, because the Defendant is a county council, a governmental body, there was a breach of trust by the Defendant which rendered its culpability greater. The cases relied on by the Prosecutor concerned offences involving mens rea which are well outside the issues considered in this Court in a strict liability context and I did not find them to be applicable here. I do not find that the Defendant was more culpable simply because it is a county council.

23. It is necessary that the sentence be proportional to the gravity of the crime. The Prosecutor, as it is entitled to do, has urged me to consider the maximum penalty specified by Parliament, in this case $250,000, on the basis this is an expression of the seriousness which Parliament attributes to these offences: Camilleri Stockfeeds Pty Limited v Environment Protection Authority (1994) 82 LGRA 21.

24. In relation to general deterrence, I agree there is a need for general deterrence as a matter of general sentencing principle and certainly this need is emphasised in the decision of Axer v Environment Protection Authority (1993) 113 LGERA 357 in which the Court of Appeal emphasised the serious nature of water pollution offences.

25. I note the Defendant is a public body, being a county council under the Local Government Act 1993. In Environment Protection Authority v TenterfieldShire Council (2000) 112 LGERA 173 Lloyd J considered the various approaches taken by this Court to the imposition of penalties on public authorities, particularly elected councils, and noted that some cases suggesting leniency may be warranted and others not. He also noted with approval a decision of Talbot J in Environment Protection Authority v Casino Council [1997] NSWLEC 214 (21 November 1997) where Talbot J referred to the need to balance up the various factors on sentencing of public authorities to ensure that there is adequate accountability for such bodies.

26. As Lloyd J stated in Tenterfield , the primary consideration must be the absolute prohibition against water pollution contained in the legislation. Lloyd J held in Tenterfield that the council, as a public body, should set an example to other potential polluters so that the fine must be sufficient to act as a specific and general deterrent to that body. I take from this that the Defendant should not receive lenient treatment on penalty simply because of its status as a public body. I apply this approach here. It is also necessary to ensure the penalty is adequate as a deterrent but it is not necessary that the penalty be greater simply because the Defendant is a county council.

27. The Prosecutor also urged on me the need to reflect the need for specific deterrence in the penalty. Is there a likelihood of recurrence so as to warrant specific deterrence? The Prosecutor submitted that, because of ongoing operations by the Defendant at the plant and the failure on this occasion, the inclusion of an element in the penalty designed to reflect specific deterrence is warranted. Steps have clearly been taken by the Defendant to prevent a recurrence, as is reflected in the Statement of Agreed Facts. I further note the Defendant operates some fifteen other plants and has no other convictions. I consider it is unlikely to re-offend so I do not take into account specific deterrence in determining penalty.

28. On the question of even-handedness, which is the desirability of the Court applying relatively uniform penalties where it is able to in similar cases, the Defendant referred me to Tenterfield, Environment Protection Authority v The Crown in the right of New South Wales [2002] NSWLEC 52 (19 April 2002) and Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156 (3 March 2000). While I found it of assistance to consider these cases the Court must ultimately consider each case on its own facts.

29. There are a number of mitigating factors that I should also take into account in reducing penalty. Looking firstly at the matter of the guilty plea, I note the Defendant has pleaded guilty at the earliest opportunity and, as was submitted by the Defendant’s counsel and, indeed, by the Prosecutor, a plea of guilty does entitle the Defendant to a discount in penalty under s 22 of the Crimes (Sentencing Procedure) Act 1999. This has been confirmed by the Court of Appeal in the decision of R v Thompson; R v Houlton (2000) 49 NSWLR 383 . I consider that, given the early the guilty plea, a substantial discount is warranted.

30. I have also been provided with an affidavit of the Defendant’s general manager, Mr Hannington, in which he clearly expresses contrition and regret by the Defendant for the incident. In my view the Defendant has expressed the necessary contrition and remorse required to be taken into account for penalty purposes.

31. I also note from the affidavit of Mr Hannington that the Defendant undertakes a number of programmes designed to improve the environmental impact of the sewage treatment facilities it runs in several locations. I believe that this affidavit does demonstrate the commitment of the Defendant to its environmental obligations and I take that factor into account in determining the penalty.

32. The Prosecutor agreed with the Defendant’s submission that the Defendant has co-operated with the Prosecutor in relation to the clean up of the incident and that there was a quick response to the incident once it became known. I note that the Defendant advises the Court that it has paid approximately $180,000 since the incident in relation to clean up costs and the improvement of its systems but I do accept the Prosecutor’s submission that this money should, in any event, be spent as a responsible authority so I do not take those sums into account.

33. I note that the Prosecutor’s costs have been agreed to be paid by the Defendant in the sum of $24,000.

34. In all the circumstances I consider that a fine of $30,000 is appropriate. I therefore make the following formal orders:

Orders
35. The Court orders that:
1. The Defendant is convicted of the offence with which it is charged.
2. The Defendant is fined the sum of $30,000 to be paid to the Registrar of the Court within twenty eight days of today’s date.
3. The Defendant must pay the Prosecutor’s costs of proceedings against it of $24,000.
4. The exhibits may be returned except for exhibit A which should remain on the file.