Applicant v BHP Steel

DATE OF JUDGMENT DELIVERY: 06/30/1999

Prosecutor: G B Docking Solicitors: Environment Protection Authority LEGAL REPRESENTATIVES: Defendant: M P Brennan(s) Solicitors: Blake Dawson Waldron

Orders 24 _______________IN THE LAND AND Matter No: 50126 of 1998 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 30/06/99

The defendant has pleaded guilty to the following offence: Between 9 September 1997 and 17 September 1997 at Port Kembla in the State of New South Wales, it committed an offence against the Environmental Offences & Penalties Act 1989 (NSW) in that, being the holder of a licence granted under the Pollution Control Act 1970 ("the said Act"), it did contravene a condition of that licence, contrary to section 17D(9) of the said Act.

The defendant was the holder of a licence under the Pollution Control Act 1970, s 17D, for the period 27 July 1996 to 27 July 1997, by which the defendant was allowed to pollute waters as expressly permitted thereunder. The licence was subject to a number of conditions.

Section 17D(9) of the Pollution Control Act provides: Any person who, being the holder of a licence, contravenes any condition of the licence is guilty of an offence against the Environmental Offences & Penalties Act 1989.

Section 8D(1) of the Environmental Offences & Penalties Act 1989 provides that any person who by virtue of any provision of the Pollution Control Act is guilty of an offence against the former Act is liable, in the case of a corporation, to a penalty not exceeding $125,000.

The prosecutor alleges that the defendant contravened condition S9.1 of the licence. By its plea of guilty the defendant admits the contravention. Condition S9.1 requires the licensee to provide a certificate to the Environment Protection Authority as to whether every condition of the licence has been complied with; and if one or more conditions have not been complied with, in relation to each such condition the certificate must state the nature of the non-compliance, the reasons for that non-compliance, any action taken to prevent, control or mitigate the non-compliance and any action that has been or will be taken to prevent a recurrence of the non-compliance.

The prosecutor alleges (and the defendant admits) that the defendant supplied a certificate of compliance to the Environment Protection Authority relating to the period 27 July 1996 to 27 July 1997 and which contains particulars which were false or misleading in a material respect.

The licence allows a discharge of wastes into an unnamed water course at a number of discharge points. As to one of the discharge points, known as S3, condition W2.2 of the licence provides that the wastes that may be discharged must not contain any visible grease and oil nor contain more than 25 mgs per litre of grease and oil.

The certificate furnished by the defendant pursuant to condition S9.1 of the licence states that during the licence period the discharges at drain S3 were limited to rooves of plant buildings, surrounding paved areas, ground waters through pipe joints, salt cooling water used to cool various oil, oil-water and air heat exchangers and treated water from the oily water treatment plant. The certificate omitted to state that on four occasions the discharges at drain S3 contained additional pollutants contrary to condition W2.2, as follows: 15 December 1996: visible oils 3 February 1997: visible oil and grease 6 February 1997: visible oil and grease 25 April 1997: oil and grease in excess of the limits for discharge point S3 9. The two incidents occurring on 15 December 1996 and 25 April 1997 were reported by the defendant to the prosecutor at the time of their occurrence. Having regard to the notification of these incidents the failure of the defendant to include details of their occurrence was an oversight. The prosecutor nevertheless had knowledge by reason of the notification that these two incidents of non-compliance had occurred.

The defendant was subsequently prosecuted in relation to the incident of 25 April 1997 and which seems to have been a serious incident. The defendant pleaded guilty to the charge of polluting waters contrary to s 16(1) of the Clean Waters Act 1970 and on 4 June 1999 Pearlman J imposed a fine on the defendant of $25,000 for that offence.

The omission to refer to the incidents on 3 February and 6 February 1997 was due to the preparer of the certificate failing to refer to all of the defendant's records of such incidents and acting on the false assumption that the discolouration observed in the water did not constitute visible oil and grease in breach of condition W2.2. It was a subsequent analysis that confirmed that the discolouration was in fact visible oil and grease.

After being notified of the incident of 25 April 1997 the prosecutor served a notice on the defendant under the Pollution Control Act, s 24(1A) requiring the production of specified records. The solicitors for the defendant responded by forwarding to the prosecutor the records which were sought and voluntarily supplied additional documents not required by the notice. As a result of this process the omission to refer in the certificate of compliance to the incidents of 3 and 6 February 1997 was discovered. On 24 March 1998 the defendant sent a revised certificate of compliance to the prosecutor which included references to the four incidents which had been omitted from the original certificate. It shows that the two previously unreported incidents occurring on 3 and 6 February 1997 were relatively minor.

The Environmental Offences & Penalties Act , s 9 requires the Court to take into consideration a number of matters in imposing a penalty. Only one of the considerations set out in s 9 is of relevance. The offence was one of only an administrative nature. No environmental harm was caused. The only relevant consideration under s 9 is the extent to which the person who committed the offence had control over the causes which gave rise to the offence. The defendant admits that as the holder of the pollution control licence it had control over the causes which gave rise to the offence.

The next matter which I take into consideration is the fact that the defendant has pleaded guilty. The prosecutor submits that the plea of guilty was not entered at the earliest opportunity. Nevertheless the plea was entered shortly after the particulars of the charge were furnished and well in advance of the hearing. I regard this as a case of a plea of guilty which was entered at a relatively early stage and the defendant is thus entitled to a reduction in the penalty which would otherwise be imposed.

I accept that there is unlikely to be a recurrence of the offence in the light of the defendant's adoption of new standard procedures for the preparation of certificates of compliance. These procedures set a rigorous approach to the preparation of certificates of compliance and I accept that this is a procedure which can be regarded as best practice.

I accept the fact that the defendant takes its environmental responsibilities seriously. The defendant is a subsidiary of the Broken Hill Proprietary Company Ltd and is part of a group which publicly discloses its environmental goals and performance.

There was no intention on the part of the defendant to mislead or deceive the prosecutor by contravening condition S9.1 of the licence. The defendant had separately notified the prosecutor of the two incidents which occurred on 15 December 1996 and 25 April 1997 at the time of their occurrence. The defendant was not initially aware that the two other incidents which occurred on 3 and 6 February 1997 amounted to a breach of conditions of the licence. There was some doubt as to whether a slight discolouration observed in the effluent discharging into the drain on those dates contravened condition W2.2 of the licence and was thus reportable pursuant to condition S9.1. I accept the defendant's evidence that it was only through inadvertence that the offence with which it has now been charged occurred. The defendant then voluntarily lodged with the prosecutor a revised certificate of compliance which refers to all four incidents.

The defendant fully co-operated with the prosecutor in relation to the offence. Moreover, as previously noted, when the prosecutor was investigating the offence the defendant volunteered additional information over and above that sought by the prosecutor relating thereto.

The prosecutor submits that the offence was not an uncharacteristic aberration. The defendant has been convicted of environmental offences on three previous occasions. On 16 December 1983 it was convicted of an offence against s 14(3) of the Clean Air Act 1961 and was fined $5000. On 9 June 1996 it was convicted of an offence under s 16(1) of the Clean Waters Act 1970 and fined $27,000. On 4 June 1999 it was convicted of an offence against s 16(1) of the Clean Waters Act and fined $25,000, this being in relation to the incident of 25 April 1997 and which is one of the incidents to which this prosecution relates. The defendant has also been convicted of a number of offences against the Occupational Health & Safety Act 1983 and the Factories Shops & Industries Act 1962, for which it has been fined.

The defendant has operated four major industrial plants in New South Wales. It has been convicted of three environmental offences since the commencement of the Clean Air Act in 1961. That is to say, the defendant has been convicted of three environmental offences over the last 38 years. When one takes into consideration the nature and size of the industrial plants operated by the defendant and the large numbers of people it has employed therein during the last 38 years, I think it is remarkable that the defendant has been convicted of only three environmental offences in that period. In this context the defendant's environmental record is, in my view, a good one. Similarly, in this context I regard this offence as an uncharacteristic aberration. It is, moreover, the first offence for lodging an incorrect certificate of compliance.

I accept the defendant's submissions that it would be wrong, in any event, as a consequence of the defendant's record, to increase the penalty which would otherwise apply beyond the appropriate penalty for the instant offence. That is to say, although the antecedent criminal history of an offender is a factor which may be taken into account in determining the penalty to be imposed, it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the particular offence ( Baumer v The Queen (1988) 166 CLR 51 at 57, Veen v The Queen (1988) 164 CLR 465 at 677). In the present case, however, the defendant's antecedent criminal history demonstrates that the instant offence is an uncharacteristic aberration, at least in relation to environmental offences. Without knowing the facts and circumstances which gave rise to the various other offences against other legislation, I am unable to give much weight thereto.

It is important to bear in mind the reason for the imposition of conditions of pollution control licences which requires reporting by the licensee, such as condition S9.1 in the present case. The reason is explained by Cole JA in McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (Court of Criminal Appeal, 25 October 1996, unreported): Further, it would be important for an environmental protection agency to know which persons or companies breach pollution controls, whether intentionally or unintentionally. That is a factor which such an agency could reasonably have regard to in determining whether to issue or cancel a licence. Accordingly there is a sound basis in exercise of the power conferred by s 17D(1) and (4) to require holders of licences to report the extent of compliance or non-compliance with the terms and conditions of a granted licence whether that licence be current or expired.

In taking into account all of the abovementioned considerations I am led to the conclusion that this offence sits at the lower end of the penalty range. The maximum penalty for the offence, noted in paragraph 5 above, applies to the worst category of offence. An appropriate penalty in this case is $4000. The defendant has agreed to pay the prosecutor's costs in the sum of $9750.

I therefore make the following orders: 1. The defendant is convicted of the offence as charged.

3. The defendant must pay the prosecutor's costs in the sum of $9750.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.