Environment Protection Authority v Rail Infrastructure Corporation

[2002] NSWLEC 37

Reported Decision: 119 LGERA 409

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Rail Infrastructure Corporation [2002] NSWLEC 37

PARTIES:

PROSECUTOR
Environment Protection Authority

DEFENDANT
Rail Infrastructure Corporation

FILE NUMBER(S):

50103; 50104; 50105 of 2001

CORAM:

Talbot J

KEY ISSUES:

Prosecution :- cause waters to be polluted - mitigation

LEGISLATION CITED:

Land and Environment Court Act 1979
Protection of the Environment Operations Act 1997 s 120, s 120(1), s 120(2), s 241(1), s 241(1)(a), s 241(1)(b), s 241(1)(c)
Rail Safety Act 1993
Transport Administration Act 1998'
Land and Environment Court Regulation 2000

CASES CITED:

Thorneloe v Filipowski (2001) 116 LGERA 56

DATES OF HEARING:

04/03/2002; 05/03/2002

DATE OF JUDGMENT:

03/22/2002

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr T G Howard (Barrister)
SOLICITORS
Environment Protection Authority

DEFENDANT
Mr B J Preston SC
SOLICITORS
Baker & McKenzie

JUDGMENT:

IN THE LAND AND Matter No. 50103-5 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 22 March 2002

Environment Protection Authority
Prosecutor

v
Rail Infrastructure Corporation

Defendant

REASONS FOR JUDGMENT


The charges

1. The defendant has entered a plea of guilty to each of three charges that it committed an offence against s 120(2) of the Protection of the Environment Operations Act 1997 (“the PEO Act”).

2. Section 120(2) provides that a person must not cause any waters to be polluted. Each of the charges relate to events that took place on 2 June 2000.

3. The allegation contained in each summons is that the defendant, without adequate pre-spray assessment arranged for, gave instructions in relation to and inadequately supervised Pancorp Australia Pty Ltd (“Pancorp”) causing Pancorp to place a liquid mixture of pesticides on or along the Blayney to Cowra railway line corridor so that it washed into or was likely to be washed into an identified dam on three separate properties. It is alleged that the liquid mixture of pesticides contained Simazine, Oust (Sulfometuron-methyl), Roundup (Glyphosate) and Synetrol (emulsifiable vegetable oil).

4. In matter No 50103 of 2001 the relevant waters are particularised as the dam in Paddock No: 10 on a property, namely “Swan Ponds” owned by Anthony James Blackmore.

5. In matter No 50104 of 2001 the relevant waters are particularised as the Ram Paddock dam on a property, namely “Werribee” owned by John Bruce Rowlands.

6. In matter No 50105 of 2001 the relevant waters are particularised as the Woolshed Dam on a property, namely “Aziel Te-Ar-Maru” owned by Barbara Gladys Marsden.

Background

7. An elaborate and detailed Statement of Agreed Facts is in evidence.

8. The defendant, Rail Services Australia (“RSA”) (now called Rail Infrastructure Corporation (“RIC”)) is a statutory State owned corporation which has amongst its principle objectives, pursuant to the Transport Administration Act 1998, to be a supplier of goods and a provider of services to the rail industry. The Cowra/Blayney Line is in the Country South Region covering the rail lines in southwest New South Wales (“NSW”) south of the Lithgow to Broken Hill Line.

9. At all relevant times the defendant, or its predecessor, has administered contracts for the provision of maintenance services in the Country South and Country West Regions of NSW. The maintenance services include track inspections, minor repairs and work generally involving less than three days, including vegetation control.

10. The Country West and Country South contract regions each contain about 2,500 kilometres of track. Secondary lines, such as the Cowra/Blayney Line, are inspected once a week or fortnightly, depending on their level of use.

11. A Technical Officer (Vegetation) (“TOV”) is responsible for vegetation control in respect of each contract. James Gunther was the TOV for the Country South Region at the date of the offence. His job involved inspection of all lines and, if vegetation control was warranted, preparation of the spray program and engagement of appropriate personnel to carry it out. The TOV reports to a Technical Section Manager who in turn reports to the Maintenance Manager. The Maintenance Manager reports to the Contract Manager.

12. A Quality Systems Manager oversees and provides advice on systems and policy relating to occupational health and safety, rail safety under the Rail Safety Act 1993 and environmental matters. An Environmental Coordinator provides specialist advice on environmental matters and projects and assists in the development of systems for the protection of the environment in projects that are under contract. The Environmental Coordinator reports to the Quality Systems Manager.

13. In addition to the above-mentioned personnel, the defendant conducts an Environmental Services Unit (“ESU”). The role of the ESU is to develop and evaluate programs and procedures to achieve the key objectives for ecologically sustainable development and is also responsible for proposing environmental policies and procedures for endorsement by executive management.

14. Amongst other things, the ESU has developed and updated the defendant’s environment management system. An environmental manual has been produced in order to promote consistent environmental management practices within RSA and service providers to RSA.

15. To assist with the provision of maintenance services, the defendant contracts with Macspred Pty Limited (“Macspred”) for the supply of chemicals for vegetation control as well as Kingston Industries Pty Limited (“Kingston”) for the supply of plant hire and associated management services. The choice of chemicals which comprise the herbicide spray is made from a list of chemicals in the Macspred contract for bulk purchase.

16. Recognising that weeds can be responsible for a number of adverse impacts upon the safe and efficient operation of railway lines, vegetation control is undertaken by herbicide application.

17. The choice of chemicals for each particular job is made by the TOV for the particular contract.

18. The TOV selects chemical and application rates based upon:


(a) information on the label;

(b) his inspection of the line;
(c) his assessment of the vegetation control needs for the line;
(d) his experience in vegetation management;
(e) soil type;
(f) historical weather conditions;
(g) previous work and herbicides applied on the particular line … generally;
(h) weed growth and expected weed density at the time of spraying;
(i) constraints such as orchards, nature reserves, protected species, non-target species, schools, residential areas, waterways and other environmentally sensitive values;
(j) possible concerns of train drivers;
(k) potential hazards such as fire risks;
(l) potential impacts of herbicide use.

19. Pancorp is engaged by Kingston as a sub-contractor to provide hi-rail spray units and to apply the chemicals. Pancorp has been regularly contracted to undertake vegetation control on railway lines in NSW from at least 1998. Gary Cramp has been the operator of the spray rig on many of these occasions. The director of Pancorp is Mr Ulf Lorenz, who was employed as a TOV with the State Rail Authority until the late 1980’s.

20. Following its closure in 1987, the Cowra/Blayney Line was re-opened on 17 December 2000 after necessary preparatory repair and maintenance work, which included vegetation control by herbicide spray.

21. The defendant undertook a program of herbicide spraying to eradicate existing weeds and prevent weed re-growth on the line in preparation for its re-opening in late 1999. The program on the Cowra/Blayney Line was part of a larger routine maintenance program of on-track weed control across the Country West Region to be carried out between 15 May and 8 June 2000. Because of its proximity to the Country West Region, it has been found to be administratively more efficient for Country West personnel to carry out the vegetation control works and maintenance inspections on that line.

22. The Cowra/Blayney Line is 76 kilometres long.

23. Mr Gunther first assessed the Cowra/Blayney Line on 8 October 1999 pursuant to the requirements in the environmental manual. He observed extensive and varied weeds growing on and around the railway track, including paspalum, phalaris, kangaroo grass and numerous other grass species. He also observed dense weed growth and the presence of hard to kill perennial species that could be expected to mature in the following spring. He did not identify any locations on the line where off-site migration might occur and did not prepare any documentary material about environmental risk. He again visited the line on 31 January 2000 to assess the degree of weed infestation and to identify the weed control work which would be necessary for long-term vegetation control.

24. On or around 31 January 2000 Mr Cramp applied a knockdown application of Round Up (Dry) to the Cowra/Blayney Line. The spraying of Round Up was a summer knock down application designed to control summer growing species. Pancorp was sub-contracted to Kingston to carry out this work.

25. On 16 February 2000 Mr Gunther sent a facsimile to Pancorp entitled “Spray Mixes for May/June 2000 Programme”. The facsimile specified the water mixing rate, mix application rate for the cesses and ballast, width of the swathe, the herbicide mix to be used for each section of the spray program and the timetable for spraying in each section. The Cowra/Blayney Line was specified as the last section of the program to be conducted on 2 June 2000.

26. The “ballast” is the crushed rock which supports the track and sleepers, whereas the “cess” refers to the area on either side of the ballast. The cesses are the areas approximately 1.5 to 2 metres from the edge of the ballast formation on either side. One of the functions of the cess is drainage of water from the railway line.

The events of 2 June 2000

27. On the evening of 1 June 2000 Mr Gunther checked the television weather forecast. No rain was predicted. He had also telephoned the Bureau of Meteorology in late May.

28. Mr Gunther had, on many occasions prior to 2 June 2000, given Pancorp instructions both verbally and in writing not to spray over waterways and open or surface water. These were regarded as standing standard instructions.

29. The following mix of chemicals were selected by Mr Gunther for the herbicide spray on the Cowra/Blayney Line:-


(a) “Oust DF” herbicide (750g/kg sulfometuron-methyl, supplied by DuPont) – 700grams/hectare (cess); 500grams/hectare (ballast).

(b) “Gesatop 900WG”, wettable granules (900g/kg simazine, supplied by Novartis) – 5000 grams/hectare (cess); 3750 grams/hectare (ballast).
(c) “Roundup Dry” (680g/kg glyphosate (mono-ammonium salt), supplied by Monsanto) – 2400 grams/hectare (cess); 1800 grams/hectare (ballast).
(d) “Synertrol Oil” (832g/L emulsifiable vegetable oil, supplied by Organic Crop Protectants) – 1 litre/hectare (cess and ballast) (used as adjuvant to maximise the droplet size of herbicide and thereby reduce spray drift opportunity and to increase the absorption of the herbicide by the plants).

30. The herbicide was applied by spray from a hi-rail vehicle owned by Pancorp.

31 The total swathe width of the boom was 9 metres with 4.5 metres extending on either side of the centre line of the track. The speed of the hi-rail vehicle was pre-set at 30 kilometres an hour.

32. 75 per cent of the based application rate (as controlled by the spray rate) was applied across an area of 2.5 metres on either side of the track centre line. 100 percent of the base application rate was used in the outer 2 metres either side of the track.

33. Mr Gunther and Mr Cramp calibrated the hi-rail spray vehicle on or about 16 or 17 May 2000, when the regional spray program first began. Mr Gunther told Mr Cramp of the required application rates. Mr Cramp, as operator of the vehicle, selected nozzles and pressures to provide the required spray rates.

34. Before the start of the spray program on 2 June 2000, Mr Gunther observed Mr Cramp conduct a check of the unit’s calibration.

35. Mr Gunther also read the product labels for each chemical being used in the spray program.

36. At about 7.30am on 2 June 2000, Mr Cramp began the herbicide and hi-rail preparation with Mr Gunther. An RSA Traffic Officer, Robert Sullivan, conducted a safety pre-work briefing at Blayney at 7.45 am. Those present were Mr Sullivan, Mr Cramp, Mr Gunther and Ronald Betts, the support truck driver employed by RSA. At the briefing Mr Sullivan identified potential hazards of on-track herbicide spraying and discussed means to control each hazard.

37. Mr Cramp began spraying operations from Blayney at around 8.30am. He finished in Cowra at around 1.00pm.

38. Mr Cramp operated the hi-rail vehicle throughout the spray. In particular, he:


(a) prepared the spray units (including selecting, cleaning and fixing nozzles to spray arms);

(b) operated the application unit while on the line (including driving the vehicle, operating the spray unit and associated equipment); and
(c) controlled the application of the herbicide (including controlling spray rates, spray location and speed of spray).


39. Mr Sullivan rode in the cab with Mr Cramp during spraying. As a Traffic Officer, his function was solely to supervise safe working practices for personnel in the hi-rail vehicle while it was on-track. He had no function in relation to the spray, environmental assessment or supervision of vegetation control practices. He has no qualifications in that regard.

40. Mr Gunther’s role during spraying was to meet the spray unit at level crossings and predetermined fill-up points by road vehicle, and inspect the operation of the unit. At those few locations, Mr Gunther assisted Mr Cramp by checking to see if all nozzles were properly functioning and that spray patterns looked normal. Mr Gunther also helped Mr Cramp load fresh supplies of water and chemicals onto the spray unit.

41. Weather conditions on 2 June 2000 were fine. There was a breeze of less than 5 kilometres an hour.

42. It is agreed between the parties that:

Herbicides were applied to the Cowra/Blayney Line on 2 June 2000 in accordance with their registered use and within the manufacturer’s specifications and recommendations for operational use. The containers and labels for the herbicides used for the Cowra/Blayney spray run have been disposed of. The contents of the label are not known. A representative label of Oust approved by the National Registration Authority states the following:


“Do not apply Oust to drainage ditches and channels.

Do not apply Oust during periods of intense rainfall or to soils saturated with water, as off-target movement may occur.”


The results

Matter No 50103 of 2001

43. Around 12 September 2000 Anthony James Blackmore noticed a large dead strip of grass in a depression down the middle of Paddock No: 10 on his property, namely “Swan Ponds”. The affected vegetation started from the apron of the railway and extended through the boundary fence down through Paddock No: 10 into a dam. There was a trail of affected vegetation below the dam leading down to Limestone Creek. The above-mentioned depression carries water that flows from the side of the railway line and a culvert under the line. Prior to September 2000, the paddock was covered in solid vegetation. No damage to other vegetation was noticed on the property.

44. On 20 October 2000, Dr Michael St. John Warne, an Environment Protection Officer and Ecotoxicologist, visited Swan Ponds. He made observations in respect of the vegetation in the paddock adjacent to the railway line. The zone of plant death extended from the railway line for approximately 150 metres to a dam. He observed that from the south end of the dam the plant death continued on for approximately 50 metres until it reached a creek. There was no evidence, either up-stream or down-stream, of any plant death in the creek. He explained that an analysis of samples taken from the dam indicated the presence of sulfometuron-methyl and simazine. The concentration of sulfometuron-methyl was 0.78ug/L, whereas the concentration of simazine was 2.0ug/lL. Assuming there were two aquatic half lives of two months between the date of spraying and sampling, he estimated the original concentration of sulfometuron-methyl would have been 3.28ug/L. On the assumption that three half-lives of 30 days had passed after the date of spraying simazine, Dr Warne estimated the original concentration would have been 16ug/L. However, assuming a longer half-life of one hundred days was used, the concentration of simazine would have been 4ug/L. Therefore, Dr Warne concludes, the initial concentration in the dam on the Blackmore property would have been between 4 and 16ug/L.

45. Dr Warne made no observations in relation to the effect on the dam itself.

46. The dam was inspected on 21 February 2002 by Paul John Anink, an Environmental Scientist retained by the defendant, who specialises in the investigation of marine and freshwater aquatic pollution effects. While Mr Anink recognised there may have been some merit in the back calculation method undertaken by Dr Warne, he holds grave concerns regarding the validity of the data relied upon. Mr Anink accepts that regardless of the validity of the actual values obtained from the samples, in order for herbicide damage to have occurred below the dam, in the absence of observed damage around the dam, the herbicides must have migrated through the dam. Mr Anink categorises the polluting event as a pulse disturbance in that the application of the elevated herbicide concentrations occurred over a finite and relatively short period of time and ceased immediately after the application vehicle had moved on. However, the effect of the event on the local environment was a press disturbance in that the herbicides retained some unknown toxicity for an unknown, and potentially unquantifiable time, meaning that potential toxic effects would have been operating for some unknown time after the pollution event. Mr Anink is not aware of any indication that there were significant aquatic plant communities in the dam. He concludes that the observations of the high use of the dam as a working dam for stock watering leads to the conclusion that it had little or no significant emergent vegetation around the rim of the dam. In his opinion, there is no indication of either medium or long-term impact on the dam. There is unlikely to have been secondary impacts on the invertebrate fauna of the dam arising from possible breakdown of aquatic plant material as the dam was not likely to have had significant plant material available for breakdown. The impact on frogs, reptiles and birds is judged by Mr Anink to have been insignificant by virtue of the limited habitat available for these animals.

Matter No 50104 of 2001

47. In the last week of August 2001 Mr Rowlands noticed there was dead grass in two water flow lines in the Forty Acre Paddock on his property, namely “Werribee”. The grass had a burnt blackish appearance and was different from the surrounding pasture, which had grass that was healthy and green in appearance. He told the Court that the water that drains in the flow lines in the Forty Acre Paddock comes from an embankment on the railway line. Water also flows from a cutting from the railway line on the eastern side of the paddock. Furthermore, during winter there is a persistent seepage of water off the railway area and into the property, whereas during summer the flow of water down the flow line is run off associated with rainfall events. He also noticed damage to vegetation in a drainage line that led from the railway line to a dam in the Ram Paddock. This drainage line is approximately 250 metres long and the water that flows into it comes from the railway line. This charge relates only to the water in the dam in the Ram Paddock.

48. From his 20 years experience in the use of herbicides in farming activities Mr Rowlands was able to say that the dead vegetation on his property is similar in appearance to plants killed by herbicide use. After he noticed the damage he isolated cattle from the paddocks for a period of three months. He re-commenced the use of both of the paddocks for grazing in March 2001.

49. Dr Warne did not visit Werribee.

50. Using the information obtained from sampling, Dr Warne carried out calculations using the same assumptions as were used in the case of Swan Ponds to estimate that the original concentration of sulfometuron-methyl would have been 13.6ug/L and between 0.96 and 3.92ug/L for simazine.

51. Mr Anink visited Werribee and inspected the Ram Paddock Dam on 21 February 2002. No crayfish were observed and only one crayfish burrow was noticed. Frogspawn was observed in the dam. Black duck, Musk duck, Coot and Australasian grebes were observed at the dam. Based on observations made in reports by others, Mr Anink noted there was damage to plants evident in the swale, but no evidence of damage beyond the dam. He expressed the same reservations in regard to Dr Warne’s evidence that the Court has already noted in respect of Swan Ponds.

52. He re-iterated that the actual polluting event was a pulse disturbance and that the effect on the local environment was a press disturbance.

53. Again, he could find no indication of any significant communities. However, aquatic plant communities would, in all likelihood, according to Mr Anink, have been protected by virtue of the size (and therefore the dilution potential) of the water body contained in the dam.

54. Mr Anink judges the incident to have been a possible short-term pulse disturbance upon a localised section of emergent vegetation in the vicinity of the inlet swale. There was no indication of either there being medium or long-term impacts on the dam. There is unlikely to have been secondary impact on the invertebrate fauna arising from possible breakdown of aquatic plant material, as the dam was not likely to have had significant plant material available for breakdown.

55. The impact on frogs, reptiles and birds is again judged by Mr Anink to have been insignificant by virtue of the limited habitat available to these animals and the direct availability of alternate habitat on the dam by virtue of its size.

Matter No 50105 of 2001

56. According to Barbara Marsden, there was heavy rainfall during August, September and October 2000 and subsequently a lot of water drained through a depression on her property, namely Aziel Te-Ar-Maru. The depression starts from a cutting on the railway line and runs into the Woolshed Dam. The distance from the railway line to the dam is approximately 300 metres.

57. In or about late August 2000 she noticed that some of the winter active grasses in the depression between the railway line and the Woolshed Dam were not growing. She told the Court that prior to the damage appearing, about two-thirds of the dam was covered by water hyacinth and had rushes around the edges of the dam. Further, a pair of grebes nested in the water hyacinths each year. Moreover, the dam was full of crayfish, bugs and insects. A number of birds also fed on the dam and frogs lived around the dam. In addition, according to Mrs Marsden, the water in the dam was clear and the plant growth in the water was visible.

58. Towards early October she noticed that the water hyacinth was no longer visible in the dam. She observed dead crayfish in the dam. The frogs had disappeared. The grebes and teal ducks stayed away. In October 2000 foam was observed in the dam, which Mrs Marsden says resulted from the water that flowed down from the cutting.

59. Moreover, other dams on the property, which do not receive any run off from the railway line, have not suffered damage similar to the damage at the Woolshed Dam.

60. Dr Warne visited “Aziel Te-Ar-Maru” on 10 November 2000 and examined the Woolshed Dam. There was a clear entry point of the toxicant from the railway line. The dam contained some dead vegetation which consisted predominantly of rush like plants. There were no lilies. In addition, rushes were badly affected and in some cases dead. Dr Warne makes no reference to water samples collected from the Woolshed Dam. He nevertheless appears to draw on the results of the testing from the other two properties in order to conclude that the off-site migration of herbicide from the railway had quite marked effects on the terrestrial vegetation and also on both plants and animals. These biological changes were the destruction of aquatic plants and insects and, possibly, the death of frogs. He concluded that while the effects of the herbicide do appear to be highly localised they are quite devastating and long lasting.

61. On the other hand, Mr Anink summarised his conclusion based on an analysis of the likely aquatic community of the dam as follows:-

The impact on frogs, reptiles and birds on the Marsden Dam is judged to have been a short to medium term pulse disturbance , in that none of the animals would have been directly impacted by the herbicides but their use of the dam would have been altered by virtue of the alterations in the ecosystem; particularly the loss of the aquatic plants and, for a short time, the probable degradation in water quality arising from the decay of the aquatic plants. It should be noted that there was (and remains) abundant alternative habitat of the same type and quality close to the Marsden Dam, and that frogs and other animals would have been able to utilise these alternative habitats. In the long-term the recovery of the Marsden Dam to the state described by Mrs Marsden would appear to be more related to the problems of rim erosion and grazing due to the stocking rates of the paddocks serviced by the dam.

62. Mr Anink opines that Dr Warne’s conclusion that the effects of the herbicides appear to be quite devastating and long lasting must be read in the context of the actual operation of the Woolshed Dam. The dam is a working dam. The water quality and quantity plus the quality of the rim vegetation is closely linked to both stocking rates and overall water availability. Stock do trample down and graze the rim vegetation. Mrs Marsden herself reported that the water level of the dam can be drawn down to “very low levels” due to stock numbers.

63. Mr Anink concludes that by virtue of the use made of the dam, the aquatic ecology of the Woolshed Dam would be subject to a whole range of perturbations by virtue of its working nature. Protection of aquatic ecological attributes comes second to the utility of the dam to provide drinking water for stock.

64. He again re-iterates that the actual polluting event was a pulse disturbance in that the application of the elevated herbicide concentrations, in his opinion, occurred over a finite and relatively short time and ceased as soon as the vehicle moved on. The effect of the event on the local environment was, according to Mr Anink, a press disturbance in that the herbicides contained some unknown toxicity for an unknown and potentially unquantifiable time.

65. Mr Anink recognises that the aquatic invertebrate community within the Woolshed Dam may have been at risk from toxicity initially when the pollutants first reached the dam.

66. Based on the documented low toxicity of the particular herbicides to animals, Mr Anink thinks it is unlikely that either amphibians or any other invertebrate animals (for example, tortoise and birds) were directly at risk from ingestion of contaminated water within the dam, although the impact on tadpoles cannot be ruled out. It is likely that the use of the dams by these animals would have been altered by virtue of habitat modification (loss of plants and secondary water quality changes) arising from the incident. Apart from the possible secondary water quality impacts arising from the death and decay of plant life, Mr Anink says there was no medium or long-term disturbances arising directly from the incident as the particular herbicides would have decayed or been diluted down over a relatively short period.

67. He judges that the aquatic impact of the incident is a short-term pulse perturbation on the aquatic vegetation of the Woolshed Dam in that, in all likelihood, most of the aquatic plants and some of the emergent rim plants were killed by the event. Nevertheless, recovery of the aquatic plant communities is occurring. Recovery of the rim vegetation could be limited by active grazing by stock or rabbits.

68. Mr Anink also concludes that the impact on the aquatic invertebrate fauna was a short-term pulse perturbation, either by virtue of some possible direct synergistic effects of the pollutants working in consort and/or by virtue of the secondary alterations to water quality arising from the death and decay of the aquatic plant life in the dam following the incident. He is inclined to favour the second explanation over the first.

69. In the case of frogs, reptiles and birds on the Woolshed Dam, Mr Anink judges the impact to have been a short to medium-term pulse disturbance in that none of the animals would have been directly impacted by the herbicides but their use of the dam would have been altered by virtue of the alteration in the ecosystem. This is particularly so when considering the loss of the aquatic plants and for a short period, the probable degradation in water quality arising from the decay of aquatic plants.

70. Finally, Mr Anink says that, in the long-term, the recovery of the Woolshed Dam to its previous state, described by Mrs Marsden, would appear to be more related to the problem of rim erosion and grazing due to the stocking rates of the paddock serviced by the dam.

The elements of the offence

71. It is the prosecutor’s contention that the defendant caused the pollution in a combination of ways:-

(a) the contract made with Kingston;
(b) it failed to carry out a proper pre-spray assessment of vulnerable locations;
(c) it ordered the chemicals;
(d) it contracted the wet hire of plant from Pancorp; and
(e) it determined the rates of spray.


72. The Court does not understand Mr Preston SC to be challenging the above assessment of the elements of the offence. He recognises that the manner of carrying out the spray operation was the causation, which led to the prohibited consequence of harm to the water in each of the dams. He quite rightly reminds the Court that any damage to vegetation is not part of an offence under s 120 of the PEO Act. It is acknowledged that the defendant caused Kingston to carry out services pursuant to the contract and that Kingston in turn engaged the independent contractor, Pancorp, although as a matter of convenience the defendant instructed Pancorp directly.

73. The Court finds that the defendant, by its own acts and omissions and through the acts and omissions of its contractors, caused the placing of herbicide in the area of and immediately adjacent to the Cowra/Blayney railway line. Following subsequent rainfall events it migrated to the three subject dams with the result that the waters of the dams became polluted within the meaning of “water pollution” in accordance with the definition contained in the Dictionary to the PEO Act.

74. The offences were not complete until the herbicide entered the respective dam waters in either late August or early September.

75. Except to the extent of defining the path of migration from the railway land to the waters, the death of vegetation adjacent to and leading up to the dams is not a relevant matter in circumstances where the offence is limited to the pollution of waters the subject of the charge. The offence in each case is one of strict liability. There was no mental element on the part of the defendant in the sense that it intended the ultimate result.

76. The harm caused to the waters of the dams on the Blackmore and Rowlands properties, if any, was minimal and short-term.

77. Although the harm to the dam on the Marsden property was marginally greater than the harm caused to the Blackmore or Rowlands properties, the Court finds that it was nonetheless short-term.

78. The evidence of Mr Anink in relation to the extent of actual harm is preferred and adopted by the Court. He has provided an incisive and detailed report based upon a close examination of the circumstances, including a practical recognition of the nature of waters contained within a dam on a working rural property.

79. Although it provides no excuse for the pollution that occurred, it is appropriate to take into account when assessing the seriousness of the offence that the pollution had a consequence in a highly modified environment in each case. Furthermore, the object of the activity which caused the harm, namely the spraying of weeds, was intended, in part, to protect the rural properties upon which the dams are constructed.

Consideration of matters in s 241 of the PEO Act

80. Pursuant to s 241(1)(a) of the PEO Act, the Court is required to take into consideration the extent of the harm caused or likely to be caused to the environment by the commission of the offence. The offence was not complete until the herbicide entered the waters of the respective dams. The relevant harm for the purposes of s 241(1)(a) is, therefore, the harm to the water in the dams. The actual harm is the subject of evidence. In no case has it been proved that there will be long-term consequences. The Court accepts that the extent of the harm in matter No 50103 of 2001 and matter No 50104 of 2001 was minimal. In matter No 50105 of 2001 the harm caused to the Woolshed Dam was more extensive but nevertheless did not have a long-term effect. There is evidence that there was a loss of aquatic flora as a consequence of the herbicide entering the Woolshed Dam. That would have had effect on the amenity of the aquatic fauna, although no direct harm to any fauna, apart from some crayfish, has been observed. In assessing the overall criminality involved in the commission of the three offences, for the purposes of applying the totality principle, the beneficial results of the spraying activity and the modified environment where the harm occurred will be taken into account.

81. Section 241(1)(b) requires the Court to take into consideration the practical measures that may be taken to prevent, control, abate or mitigate the harm.

82. The prosecutor asserts that there was not adequate pre-spray assessment and that the supervision of the spraying operation was inadequate.

83. It is an agreed fact that the herbicides were applied in accordance with their registered use and within the manufacturer’s specifications and recommendations. Furthermore, the choice of each chemical was made to conform to label requirements of particular chemicals. Mr Gunther selected the rate of application set by the manufacturer on the label, which was within the high and low range.

84. The Court appreciates that the actual pollution occurred some eight weeks after the original application of herbicide on the railway land and apparently only migrated to the subject waters after a major rainfall event. It is difficult to assess what practical on-site measures the defendant could have taken in the circumstances given the lack of a precise explanation, and hence an understanding, of what caused the chemicals to become bound to the soil particles and to subsequently migrate.

85. Although it is not directly suggested by the prosecutor that all of the changes in procedures subsequently introduced by the defendant should have been implemented prior to the event, nevertheless they do assist the Court to understand what additional practical general measures may have assisted to prevent, control, abate or mitigate the harm. The herbicide application procedures, to which I have just referred, are detailed in the Statement of Agreed Facts as follows:-


1. Do not for any purpose, or any manner, exceed manufactures (sic) herbicide label recommendation.

2. Only persons having successfully completed the chemical uses safety course shall operate spray equipment.
3. Manufactures (sic) labels and materials safety data sheets must be kept on site during storage and use of the herbicides.
4. Herbicide label recommendations must be read before preparing or using the herbicide.
5. Only apply herbicides during low wind conditions.
6. Do not apply Oust, Simazine or other residual herbicides to railway cess drains or compacted areas likely to generate surface run off.
7. Do not apply Oust, Simazine or other residual herbicides during periods of intense rainfall, or to soils saturated with water, as off target movement may occur.
8. Do not store tank mixes of residual herbicides with other materials for more than 24 hours as product break down may occur.
9. Do not apply residual herbicides along unfenced lines without prior written notification occurring to the Rural Lands Protection Board and the NSW Department of Agriculture.

86. Although, in a general sense, the defendant had been careful in the past to instruct its operators to take care when applying herbicides in sensitive areas, there is no evidence to confirm that instruction No 6, as set out above, had previously been issued in those precise terms. The Court has been made aware that one of the uses for the cess is drainage and it seems obvious to the Court that migration of chemical placed in the cess area could, in those circumstances, be reasonably expected.

87. Accordingly, the Court finds that greater care could have been taken as a practical measure in the assessment of and the likely impact from spraying on the cess areas. In addition to the different nature of the charge, the circumstances leading up to the event which resulted in the offence are clearly distinguishable from the circumstances discussed by the Court of Criminal Appeal in Thorneloe v Filipowski (2001) 116 LGERA 56. This is not a case where the further instructions to employees or contractors, or even additional “guidance or training”, amount to requiring “virtual perfection” . Admittedly, to some extent, as Mr Preston submits, there is as element of speculation as to whether the steps subsequently taken could have prevented, controlled, abated or mitigated the harm. Given that there is an inherent risk in the spraying of herbicides in a position where there is obvious potential for run off to occur, then it is reasonable to expect that harm may be caused to receiving waters. The operation, therefore, requires a high level of care.

88. Pursuant to s 241(1)(c) of the PEO Act the Court is directed to take into consideration the extent to which the defendant could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence. The observations already made above in relation to s 241(1)(b) of the PEO Act are apposite to the consideration under s 241(1)(c).

89. The extent to which the defendant was responsible for instruction to its own employees and its contractors is consistent with the defendant having control over the causes which gave rise to the offence in the sense that it was always open for the defendant to either give more comprehensive or concise instructions even though closer physical supervision of the actual spraying at every point in the line may not be practical.

General

90. In the whole of the circumstances, including the matters to be taken into account pursuant to s 241(1), the Court finds that it is appropriate for the defendant to be convicted. However, the offence is at the lower end of the scale, notwithstanding the wide spread extent of the impact. The actual harm was minimal. A potential for harm to waters beyond that which occurred is not proved. The defendant has no record of a previous offence. The maximum fine is $250,000.

91. The Court concludes that, having regard to the total criminality in resect of all three offences, a total fine in the sum of $45,000 is warranted.

92. In addition to its impeccable antecedents, the defendant has implemented a program whereby, over the years, it has established a regime for managing and foreshadowing adverse environmental impacts as a consequence of its operations. Furthermore, it is entitled to a discount on the penalty that would otherwise be imposed for its early plea of guilty, co-operation with the prosecutor in its enquiries and facilitation of the evidence through an agreed statement of facts. After taking these matters into account, the actual total fine imposed will be $32,000.

93. Accordingly, in matter No 50105 of 2001 the Court imposes a fine of $20,000. In matter No 50104 of 2001 the Court imposes a fine of $8,000. Finally, in matter No 50103 of 2001 the fine imposed is $4,000.

Orders

94. The formal orders of the Court are as follows:-


(1) In matter No 50105 of 2001 the defendant is convicted and fined the sum of $20,000.

(2) In matter No 50104 of 2001 the defendant is convicted and fined the sum of $8,000.

(3) In matter No 50103 of 2001 the defendant is convicted and fined the sum of $4,000.
(4) The defendant is ordered to pay the costs of the prosecutor in each of the matters in a sum to be agreed or, if not agreed, to be assessed in accordance with the Land and Environment Court Act 1979 and the Land and Environment Court Regulation 2000.
(5) The exhibits may be returned.