EPA v Incitec Ltd - [2000] NSWLEC 217

Land and Environment Court

of New South Wales

CITATION: EPA v Incitec Ltd [2000] NSWLEC 217

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Incitec Ltd

FILE NUMBER(S): 50010 of 2000

CORAM: Sheahan J

KEY ISSUES: Environmental Offences :- Water pollution - environmental harm - plea of guilty - prior matters - contrition - discounts on sentence

LEGISLATION CITED: Environmental Offences and Penalties Act 1989 s9
Clean Waters Act 1970 s 16(1)
Crimes (Sentencing Procedure) Act 1999 s 10

CASES CITED: Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683;
EPA v Attard [2000] NSWCCA 242;
EPA v Causmag Ore Company Pty Ltd [2000] NSWLEC 205;
EPA v Gilmour (2000) 109 LGERA 228;
EPA v Incitec Ltd [2000] NSWLEC 18;
EPA v Softwood Holdings Ltd [2000] NSWLEC 201;
EPA v Sydney Water Corporation [2000] NSWLEC 156;
Newcastle City Council v Reed Constructions Australia Pty Ltd [2000] NSWLEC 208;
R v Thomson [2000] NSWCCA 309;
Veen v The Queen [No.2] (1988) 164 CLR 465

DATES OF HEARING: 05/09/2000, 12/09/2000 (written submissions), 11/10/2000 (further written submissions)

DATE OF JUDGMENT:
10/20/2000

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr M Kelly (Solicitor)
Environment Protection Authority
DEFENDANT
Mr Ian Lloyd QC (Barrister)
Solicitors
Minter Ellison

JUDGMENT:

IN THE LAND AND Matter No: 50010 of 2000

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 20 October 2000

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

INCITEC LTD

Defendant

JUDGMENT

The charge

1. The defendant has pleaded guilty to a charge that, on or about 1 March 1999, at Kooragang Island, near Newcastle in NSW, it polluted waters contrary to s 16(1) of the Clean Waters Act 1970, and, in so doing, committed an offence against the Environmental Offences and Penalties Act 1989 (“ EOPA ”).

2. The particulars of the charge are that the defendant “ placed in, or otherwise introduced into ” the Hunter River “ waste having a pH value of less than 6.5 ”, in direct breach of its licence conditions.

3. The maximum penalty for a corporation is a fine of $125,000. [EOPA s 8B(1)(a)].

The agreed material facts

4. The court has been greatly assisted by the parties’ agreement upon a statement of facts ( Exhibit E1 ), which sets out a chain of relevant events and some of their relevant antecedents.

5. In fairness to the parties, I should set out the material contents of the Statement of Facts as follows:

1. The Defendant holds a licence number 000828 under the Pollution Control Act which regulates air and water pollution on its premises at Greenleaf Road, Kooragang Island. Under that licence condition W2.8 prohibits discharges from Discharge Point 001 (the Diffuser into the North Arm of the Hunter River) which have a pH outside the range of 6.2 - 9.5. At the premises, the Defendant manufactures ammonia, nitric acid and ammonium nitrate in continuously operating plants.

2. Most of the Nitric Acid produced at the plant is used on the premises in the manufacture of Ammonia Nitrate.…

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 Incitec Ltd

Details

AGLC: EPA v Incitec Ltd [2000] NSWLEC 217
Case: [2000] NSWLEC 217
Decision Date: 10/20/2000

CaseChat Overview and Summary

The Environment Protection Authority (EPA) prosecuted Incitec Ltd for polluting waters, contrary to the Clean Waters Act 1970, in an incident that occurred on 1 March 1999 at Kooragang Island, near Newcastle. The court had to determine the level of environmental harm caused by the discharge, the extent of Incitec's responsibility and control over the incident, and the appropriate penalty for the offence. The court concluded that the discharge of diluted nitric acid caused no serious or lasting environmental harm and only minimal and localised actual environmental harm. It found that Incitec had total control over the plant and personnel involved in the offence, and that the incident could have been prevented if proper measures had been taken. The court also found that Incitec was entitled to a discount of approximately 25% for its guilty plea and cooperation with the EPA, but not for its contrition or community activity. The court imposed a fine of $25,000 on Incitec, payable within 28 days, and ordered it to pay the EPA's costs of $12,000, also payable within 28 days.

Orders