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EPA v Cargill Australia Limited

EPA v Cargill Australia Limited

Case [2007] NSWLEC 337 13 June 2007

Unconscionable Conduct

Contempt of Court

Compensatory Damages

Fiduciary Duty

Admissibility of Evidence

Specific Performance

Environmental Law

Criminal Law

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Land and Environment Court

of New South Wales

CITATION: EPA v Cargill Australia Limited [2007] NSWLEC 337

PARTIES:
APPLICANT
Environment Protection Authority
RESPONDENT
Cargill Australia Limited

FILE NUMBER(S): 50049 of 2006

CORAM: Jagot J

KEY ISSUES: Prosecution :- Sentence - water pollution - penalty

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Protection of the Environment Operations Act 1997

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Environment Protection Authority v Cargill Australia Pty Limited [1996] NSWLEC 260;
Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334;
R v Johnson [2004] NSWCCA 76 ;
R v Thomson (2000) 49 NSWLR 383;
Regina v Darrell Terry McNaughton (2006) 163 A Crim R 381;
The Queen v Olbrich (1999) 199 CLR 270

DATES OF HEARING: 6 June 2007

DATE OF JUDGMENT:
13 June 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr D Samuels, solicitor
SOLICITORS
RESPONDENT
Mr J Robson SC
SOLICITORS
Henry Davis York

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

13 June 2007

50049 of 2006

ENVIRONMENT PROTECTION AUTHORITY
Applicant

CARGILL AUSTRALIA LIMITED
Respondent
JUDGMENT

Jagot J:
A. Introduction

1 Cargill Australia Limited (the defendant) operates a livestock slaughtering and rendering plant in an industrial estate at Bomen near Wagga Wagga. On 30 January 2006 a pipeline carrying wastewater from the plant’s operations cracked. About 20,000 litres of wastewater escaped from the cracked pipeline. The wastewater entered the Council’s stormwater system in Bomen Road and discharged into the top of a wetland system constructed by the Council. The defendant entered a plea of guilty to the offence of polluting waters under s 120(1) of the Protection of the Environment Operations Act 1997. The maximum penalty for this offence under s 120(1) is $250,000 (s 123(a) of the Protection of the Environment Operations Act). These are my remarks on sentence.

B. Facts

2 Many facts were agreed. The defendant acquired the premises in 1991. The premises occupy about 63 hectares. The plant’s capacity had increased after October 2005 so that the plant processed approximately 1200 head of cattle per day and employed over 520 people. The plant operates under an environment protection licence, which does not authorise any pollution of waters.

3 The plant’s operations generate two wastewater streams known as the red and green streams. The red stream contains blood and animal products from the slaughtering process and spills from the rendering plant. The green stream contains effluent from cattle washing. The red stream passes through a contra-shear to remove solids and into a dissolved air filtration system that aerates the liquid allowing the fat to be skimmed off and sent to the rendering operation. The remaining liquid is transferred to a second dissolved air filtration device and then to waste pits known as the “save all”. The green stream is passed over a shaker screen to separate solids. The liquid is transferred to the second dissolved air filtration device and then to the “save all”. From the “save all” the…

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 EPA v Cargill Australia Limited

Details

AGLC: EPA v Cargill Australia Limited [2007] NSWLEC 337
Case: [2007] NSWLEC 337
Decision Date: 13 June 2007

CaseChat Overview and Summary

The case involved the Environment Protection Authority prosecuting Cargill Australia Limited for an offence under s 120(1) of the Protection of the Environment Operations Act 1997. On 30 January 2006, approximately 20,000 litres of wastewater escaped from a cracked pipeline at Cargill's livestock slaughtering and rendering plant in Bomen, New South Wales. The wastewater entered the Council's stormwater system and discharged into a constructed wetland. Cargill pleaded guilty to the offence and the maximum penalty was $250,000. The key legal issues were whether the pollution of waters was a trivial incident, whether Cargill took practical measures to prevent environmental harm, whether the offence was foreseeable, and whether Cargill had control over the causes of the offence. The court found that the pollution of waters was not trivial, that Cargill could have taken more practical measures to prevent harm, that the offence was foreseeable, and that Cargill had control over the causes. The court imposed a penalty of $37,500, taking into account mitigating factors such as Cargill's early guilty plea and its extensive co-operation with the prosecutor.

The court considered various sentencing factors under the Protection of the Environment Operations Act and the Crimes (Sentencing Procedure) Act. It found that the pollution of waters caused actual, albeit minor, harm and had the potential for more significant harm. While Cargill was taking practical measures to prevent harm, other measures were available. The offence was foreseeable given Cargill's prior warnings and knowledge of the pipeline's issues. The court found that Cargill had misjudged the risk of water pollution presented by the pipeline but did not find that Cargill deliberately risked harm for commercial gain. The court also considered Cargill's prior convictions, plea of guilty, and actions taken to prevent re-offending. It concluded that a penalty of $37,500, including a 25% discount for the early guilty plea, was appropriate.

Orders