Crown v Offenders

2 The four offenders, Hazelwood Pacific Pty Ltd, Australian Power Partners B.V., Hazelwood Churchill Pty Ltd, and National Power Australia Investments Limited operated the mine in partnership as the Hazelwood Power Partnership ('HPP'), together with an associated corporation Hazelwood Power Corporation Pty Ltd ('HPC'). Following the fires the offenders were each charged with three offences of polluting the atmosphere under s 41 of the Environment Protection Act 1970 (Vic) ('EP Act'). The trial of the charges commenced on 16 May 2019, and on 22 July a jury found each offender guilty on all charges. Accordingly the offenders are now to be sentenced for those offences.

3 The mining methods used at Hazelwood left large areas of coal exposed in the operating faces, and in areas previously mined which were worked-out. Exposed brown coal which is dried and weathered is extremely combustible.

4 A total fire ban was in place for West Gippsland on 8 and 9 February 2014. Sunday 9 February was forecast to be a day of extreme fire danger, with high temperatures, low humidity, strong north-westerly winds, and a gusting south-westerly change in the early afternoon.

5 On the afternoon of 7 February 2014 a fire ignited at Hernes Oak, approximately 10 km north-west of the mine. During 8 February and the morning of 9 February Country Fire Authority ('CFA') firefighters attended the fire, and it remained contained.

6 The morning of 9 February was hot but relatively calm. However, the north-westerly wind increased after midday. Shortly before 1:00pm the Hernes Oak fire broke its containment lines and, under the influence of the wind, ran rapidly towards the mine and Morwell.

7 At around the same time the wind began to change to the south-west, and was gusting at speeds of up to 70 to 80 km per hour. Between 1:30pm and 2:00pm three fires were lit along the Strzelecki Highway at Driffield, approximately 5 km south-west of the mine. Those fires merged to become the Driffield fire, which ran rapidly towards the mine under the influence of the south-westerly wind.

8 Embers from the bushfires fell across the open-cut pit of the mine, igniting fires in an area known as the southern batters at around 2:00pm, in the northern batters a short while later, and then on the floor of the mine. Mine workers were able to extinguish other spot fires in the mine ignited by burning embers from the bushfires. However, despite the efforts of those present, the fires in the southern batters, northern batters and floor of the mine quickly took hold and, in the extreme conditions of the day, became uncontrollable.

9 By the early hours of 10 February there were uncontrolled fires approximately 2 km in length on the northern batters, 1 km in length on the southern batters, and 500 m by 500 m on the floor of the mine. There was an almost inexhaustible supply of coal to fuel the fires in the northern and southern batters.

10 The task of controlling and extinguishing the fires was complex and difficult, and progress was initially slow. In the weeks following 9 February smoke emitted by the fires at times blanketed Morwell and nearby areas, resulting in prolonged periods of poor to very poor air quality in residential areas closest the mine. The smoke was harmful or potentially harmful, particularly to people with respiratory or cardiovascular conditions, was noxious and offensive to the senses, caused property damage and disruption to life in the area, and was detrimental to beneficial use of the atmosphere.

11 The purpose of the EP Act is to create a legislative framework for the protection of the environment in Victoria, having regard to the principles of environment protection. The EP Act is social legislation, with a strong focus on protection of the environment for the benefit to all human beings, including future generations. The principle of enforcement relevantly reads:[1]

Enforcement of environmental requirements should be undertaken for the purpose of -

(a) better protecting the environment and its economic and social uses;

(c) influencing the attitude and behaviour of persons whose actions may have adverse environmental impacts or who develop, invest in, purchase or use goods and services which may have adverse environmental impacts.

12 The offenders were each found guilty of offences under s 41(1)(a), (b) and (e) of the EP Act, which reads:

(1) A person shall not pollute the atmosphere so that the condition of the atmosphere is so changed as to make or be reasonably expected to make the atmosphere -

(a) noxious or poisonous or offensive to the senses of human beings;

(b) harmful or potentially harmful to the health, welfare, safety or property of human beings;

(e) detrimental to any beneficial use made of the atmosphere.

The three offences committed by each offender all relate to the same pollution, that is, smoke emitted by the mine fires, but reflect different consequences or harm caused by the pollution.

13 The EP Act defines 'pollute' to include causing or permitting pollution. The charges alleged that each offender caused the pollution by:

(a) failing to have adequate water reticulation systems in the worked-out areas of the Hazelwood mine;

(b) failing to adequately control vegetation in the worked-out areas of the mine;

(c) failing to maintain adequate staff resourcing to prepare for and respond to fires.

14 As an alternative to proof that the offenders caused the pollution in one or more of those ways, each charge relied on the statutory presumption contained in s 62C of the EP Act, which provides:

If any segment or element of the environment is polluted as a result of a discharge, emission or deposit of any substance from or on any premises on which there is conducted any commercial or industrial undertaking, the occupier of the premises is deemed to have polluted that segment or element of the environment unless the occupier proves that the discharge, emission or deposit was unrelated to the commercial or industrial undertaking.

15 The jury's verdict did not determine which of the paths to guilt had been established, and is consistent with the offenders having caused the pollution in one or more of the three ways alleged, and with them being deemed by s 62C to have polluted the atmosphere.

16 The penalty for an offence under s 41 is governed by s 43, which provides:

Any person who contravenes any of the preceding provisions of this Part shall be guilty of an indictable offence against this Act and liable to a penalty of not more than 2400 penalty units and in the case of a continuing offence to a daily penalty of not more than 1200 penalty units for each day the offence continues after conviction or after service by the Authority on the accused of notice of contravention of the preceding provisions of this Part (whichever is the earlier).

Each corporate offender is a person for the purposes of the penalty provision. At the relevant time a penalty unit was $144.36, so that the maximum penalty for each offence is $346,464.

17 The offenders are to be sentenced according to the objective seriousness or gravity of the offences, which will be determined by their culpability and degree of responsibility for the pollution, and the resulting harm.

18 Because of the purpose and principles of the EP Act, and the social nature of the legislation, general deterrence will be of particular importance.

19 I am satisfied the offences occurred in the following circumstances. Any fact or matter adverse to the offenders has been found beyond reasonable doubt.

20 The State Electricity Commission of Victoria ('SECV') developed three open-cut brown coal mines in the Latrobe Valley, the Hazelwood, Yallourn and Loy Yang mines. The Hazelwood mine, which was originally called the Morwell Open Cut, opened in 1955 to supply coal to Morwell Briquette and Power, now called EnergyBrix, and was later expanded to supply the Hazelwood Power Station.

21 Mining commenced in the south-east corner of the mine in the area now known as the southern batters, and progressed westerly, creating the northern batters. In about 1992 the direction of mining swung to the south to eventually form what are now the south-west batters, and later moved into the west field that was operating at the time of the fires in February 2014. The size of the mine increased dramatically over the years. By February 2014 the open-cut pit had a perimeter of approximately 18 km, an average depth of about 120 m, and covered an area of over 1,100 hectares. The broader Hazelwood land holding covered by the mining licence was about 3,500 hectares.

22 To prepare an area for mining the overburden layer of topsoil and clay was removed to expose the coal seam. Coal was then extracted by dredgers moving across the operating face of the coal seam at different levels to a depth of about 100 m. Features of the operating face included the horizontal benches along which the dredgers moved, and the steep coalfaces, called batters, created as coal was extracted. The effect was to create a series of steps down from the external surface to the floor of the mine, which in the northern batters were called levels 1, 3, 5 and 7.

23 There had been little rehabilitation of worked-out areas of the mine undertaken by February 2014. The coal seam extended beyond the point at which mining stopped, so that the worked-out batters consisted of walls of exposed coal. Benches in the worked-out areas were clay capped. The mining operation left exposed coal on the floor of the mine. Originally overburden removed in preparation for mining was dumped outside the open cut. In the 1990s the practice commenced of spreading overburden across the floor of the mine to cover the exposed coal. An area at the east end of the floor of the mine called the HARA (Hazelwood Ash Retention Area) was developed for retention of ash residue from the power station. In 2007 and 2008 an area at the very east end of the northern batters above the HARA was rehabilitated by laying back the batters to create a more gentle slope which was then capped with clay. Approximately 3 km of the northern batters had not been rehabilitated by February 2014.

24 There was a network of roads on the external surface around the perimeter of the open cut, and across the pit. Vehicles could be driven along most of the benches. Access to the pit was gained via ramps which descended diagonally down the batters from the external surface to the mine floor. Given the size of the mine, and the industrial environment, travel around and especially across the open cut pit was relatively time consuming.

25 Privatisation of the mine and Hazelwood Power Station completed in September 1996. The mine has since been operated by HPP, HPC and associated corporations.

26 In its natural state brown coal is typically about 60% water, and is fairly inert. However, when the coal is exposed it dries out and powders, and is then very combustible and will burn readily and rapidly.

27 The risk of fire in open-cut brown coal mines in the Latrobe Valley was recognised before mining began at Hazelwood. The Royal Commission report into a fire at the Yallourn mine in 1944 found that fire was an almost unavoidable concomitant of open-cut brown coal mining.[2]

28 Coal fires occurred frequently at the mine. Most fires were small and quickly extinguished. Before privatisation in 1996 there were on average 250 or more coal fires at the mine each year. By 2014 the frequency of fires at the mine had reduced to an average of about 100 per year, most of which were in the operating area of the mine and were caused by mechanical failures, electrical faults or vehicle exhausts.

29 After a major fire occurred at the mine in 1977, the SECV reviewed fire protection systems at the three Latrobe Valley mines, and developed the Latrobe Valley Open Cuts Fire Protection Policy ('the Policy'), which states in part:

Due to the methods employed for the extraction and use of Brown Coal in the SECV Latrobe Valley operations, large areas of brown coal are generally exposed in the operating faces, permanent batters and floor of the open cuts. Whilst the coal in its raw state is a high moisture fuel and difficult to burn, it weathers and readily degrades to a fine dust which ignites easily.

Potential sources of ignition are frequently present in the Latrobe Valley open cuts in the form of electrical faults, faulty mechanical equipment, vehicle exhausts, train operations, metal cutting and welding activities, etc.

...

Brown coal fires are best suppressed by the application of water. Wetting of the coal lays the coal dust, and helps to extinguish the fire and prevent it spreading. Large quantities of water are required to extinguish deep seated burning, and often when burning coal is wetted, sufficient heat remains to dry out the surface again and to allow the fire to re-establish. In general, there are special techniques required to deal successfully with brown coal fires.

...

The necessarily large area of exposed coal requires an extensive reticulation and spray network and water supply system. The water supply and fire protection measures laid down in the body of this document are those considered to provide the necessary level of protection with due regard to cost and operational requirements. Fire protection in the open cuts is based on the following principles.

...

• The provision of water supplies, reticulated water and spray systems together with the trained personnel necessary for the operation of these systems to prevent or suppress fires.

• The effective limitation and management of forested, wooded or grassed areas external to the open cut to inhibit the progress and effect of an external fire.

...

...

In order to properly protect all parts of the open cut, pipework and sprays are to be installed as laid down by this policy. However, it must be understood that a larger water supply system would be required to run all the sprays and protection systems simultaneously. This policy provides for a diversity in the simultaneous application of the fire protection water supplies and distribution.

The maximum demand as defined in this policy is an allowance of water usage upon which the design of the water supply system is based. The maximum demand rate of water use is considered to be sufficient to meet any likely contingency within the open cut. The distribution of this allowance of water usage is reasonably flexible for any situation but the use of more water than allowed for in one area may cause a reduction in the performance of the system.

Paragraph 1.1.4 of the Policy required as a minimum the following level of protection of worked-out batters:

• Fire break zones extending down to full depth of batter should be established such that the length of exposed coal in any one batter is not greater than 500 m. These zones can be in the form of metalled vehicle access ramps, a minimum of 8 m wide or in the form of a 20 m width clay covering.
• Alternatively, fixed spray breaks may be used, but it should be noted that water for these sprays has not been included under the maximum demand conditions, and this protection should not be considered as reliable as clay fire breaks or vehicle access ramps.

The northern batters were particularly steep, and it was not possible to establish firebreak zones in accordance with the Policy. Accordingly, protection in the northern batters was required to be by fixed spray breaks.

30 The Policy was revised in 1994, and became the Latrobe Valley Open Cut Mines Fire Services Policy and Code of Practice ('the Code'). After privatisation of the mine in September 1996, revised versions of the Code, which related solely to Hazelwood, remained the principal policy document governing the response to fire risk at the mine.

31 Extensive documented fire preparedness and mitigation systems and procedures in place at the mine included:

(a) the Code;

(b) Emergency Response Plan - Hazelwood Mine;

(c) Hazelwood Mine Fire Instructions;

(d) Guidelines for Season and Period-Specific Fire Preparedness and Mitigation Planning ('the Guidelines');

(e) Checklist for Firefighting Equipment Annual Inspection ('the Checklist Audit');

(f) Electricity Safety - Bushfire Mitigation Plan.

The Code and all other fire preparedness documents were regularly reviewed and revised, and were available to all mine staff.

32 Every employee and contractor at the mine was required to undertake firefighting training each year. In addition the mine regularly ran firefighting exercises which included CFA members.

33 Infrastructure and mobile plant at the mine directed to fire risk included:

(a) a reticulated water system consisting of a pipe network of more than 100 km in length, which I will describe in more detail later in these sentencing reasons;

(b) two ex-CFA tankers, each with a capacity of approximately 3,000 litres;

(c) two 30,000-litre water carts;

(d) Furphy water carts capable of being towed by mine vehicles;

(e) booster pump trailers, used in conjunction with crane monitors;

(f) mobile monitors; and

(g) all mine vehicles were equipped with fire hoses, nozzles and extinguishers.

34 Security and emergency services contractor Diamond Protection manned the Hazelwood gatehouse on a 24/7 basis. Diamond Protection had access to radios and cameras, including infrared cameras designed to detect heat sources, and were responsible for manning one of the two ex-CFA tankers in the event of an emergency on site.

35 Safety systems directed to the risk of fire were a key feature of the day-to-day activities of the mine's workforce, and included:

(a) regular equipment checks;

(b) a hot work permit system;

(c) a process known as Take Five, which involved a situational mini risk assessment;

(d) live risk assessments; and

(e) pre-start crew meetings.

36 A water reticulation system was installed after operations began at the mine. As mining progressed the reticulation system was moved so that it covered areas of exposed coal. Newer pipework, which began to be introduced in the early 1980s, was treated internally and externally with corrosion protection and was mounted on concrete blocks. However, older pipework toward the east end of the northern batters was unprotected, and became increasingly rust affected due to the acidity of coal. As pipework deteriorated, leaks developed which caused instability in some areas of the northern batters. Some pipes became so degraded they were unable to carry water. Welding pipes to repair leaks increased the risk of coal fire.

37 In 1992 Mr Polmear, who was at the time the engineer responsible for the mine's fire services, commissioned a fire risk analysis of the worked-out areas of the mine from engineering consultancy firm Richard Oliver International ('the Oliver Report'). Mr Polmear was concerned that continued deterioration and the need to isolate pipework in the worked-out areas of the mine meant that it was difficult to comply with the requirements of paragraph 1.1.4 of the Policy. The Oliver Report found that there were on average 255 fires in the mine each year, 11 of which occurred in the worked-out areas. Most fires in the worked-out areas were caused by motor vehicles or welding associated with repair work to leaking reticulation pipes. The Oliver Report:

(a) said exemption from the requirements of paragraph 1.1.4 of the Policy would increase the risk of fire in the worked-out areas of the mine, was not justifiable, and should not be adopted until there was evidence of a reduction in fire risk having been achieved;

(b) recommended the mine undertake a detailed engineering survey of the fire water system, including in the north-east corner of the mine; and

(c) said the mine was correct in thinking that the appropriate strategy was to restrict vehicle access to worked-out areas, remove assets, increase the number of tanker filling points and make necessary modifications to the Policy.

38 Despite the findings of the Oliver Report the iteration of the Code introduced in 1994 removed the requirement in paragraph 1.1.4 for protection of the worked-out batters by fixed spray breaks, and replaced it with the following:

• Tanker filling points are to be provided such that a tanker on any part of the worked out batters is within 5 minutes travel of a tanker filling point. ...

The requirements in paragraph 1.1.4 were unchanged in each subsequent revision of the Code up to February 2014.

39 During the 1990s some degraded pipes were removed from the eastern end of the northern batters, and were not replaced. The northern batters are divided by the 1-to-7 ramp, which allows vehicle access from the external surface to the floor of the open-cut pit, and to each level of the batters. By 9 February 2014, there was little reticulation pipework east of the 1-to-7 ramp on level 5, pipes extending partway along levels 1 and 7 and most of the way along level 3. There were tanker filling points on level 1 close to the 1-to-7 ramp, on level 3 at the eastern end of the pipework and external to the open cut above that section of the northern batters.

40 The reticulation system was gravity fed from C and D tanks, which were located outside the open-cut pit. Water in the open-cut pit drained into the dirty water ponds on the floor of the mine. The dirty water pump station pumped water from the ponds to D tank. Water from aquifers beneath the floor of the mine was pumped by the clean water pump station to C tank. Both tanks could also be filled from the external cooling ponds using pump houses 50 and 53. If necessary a limited amount of water could be supplied by pipeline from the Loy Yang mine.

41 As at 9 February 2014 there was an extensive network of water reticulation pipes covering the benches, batters and floor of the mine in the operating west field, the worked-out batters and infrastructure such as conveyers. Reticulation pipes in the network had sprays and hydrants alternately affixed at regular intervals. Sprays were operated either by being left on and the section of pipe to which they were attached being charged with water, or by manually turning on each individual spray. Hoses could be attached to hydrants to supply water tankers as they were being operated, or to spray water as was necessary. Water tankers could also be filled from tanker filling points.

42 Water management was essential to the operation and stability of the mine. It was necessary to pump water from aquifers beneath the mine to prevent the floor of the mine heaving, which might cause damage to infrastructure and collapse of the batters. Water in the dirty water ponds helped to keep the floor of the mine stable. However, too much water risked breaching the groynes which formed embankments around the dirty water ponds, causing flooding of the mine floor and damage to critical infrastructure such as artesian pump bores and the dirty and clean water pump stations. Applying too much water to the steep coal batters risked batter instability and vertical movement. For these reasons it was necessary to carefully manage water coming into and taken out of the mine to maintain stability and allow for the proper operation of the mine.

43 The reticulation system did not have the capacity for all sprays on pipework across the mine to be operated at the same time because the enormous quantity of water that would have been required was not available, and the inability to deal with that much water going into the mine at the same time.

44 Bushfire was a known potential source of fire ignition within the mine.

45 The 1944 Yallourn mine fire was caused by airborne embers from a bushfire in nearby native forest entering the mine and igniting coal.

46 On Black Saturday in 2009 a fire ignited at Churchill about 5 km south-east of the mine. The Churchill fire approached close to, but did not enter, the Loy Yang mine. Hazelwood Mine Asset Manager, Mr Graham, recalled the Black Saturday fires in the Strzelecki Ranges which he said came within 2 to 3 km of the mine. He said before 2014 a bushfire had never started a fire within the mine, but he agreed that flying embers from bushfires were a risk to the mine. Mr Prezioso, who was on duty at the mine on Black Saturday, said the only saving grace was that the wind was blowing the Churchill fire away from the mine, but if the wind turned then that major fire was coming straight for the mine.

47 During the 1990s Mr Brown was manager of the support services group in charge of fire services at the mine, reporting to manager Mr Polmear. He gave evidence at trial about a bushfire at Driffield in the early 1990s which he said threatened the mine, including by ember attack into the open cut. For three reasons I do not accept this evidence. First, despite having previously made statements and submissions, and given evidence about the mine fire in which it would have been expected he would have made mention of the earlier Driffield fire, Mr Brown first mentioned this matter in 2019. Second, Mr Polmear said had a fire from Driffield threatened the mine during those years he would have known of it, yet he had no recall of the matter. Mr Polmear was a reliable witness. Third, there is no other corroborative evidence.

48 After privatisation eucalyptus plantations were developed in close proximity to the west of the mine. Mr Polmear said this was of particular concern because partly burnt material from eucalyptus trees could be carried forward considerable distances.

49 The risk of bushfire was recognised in the mine's policy and procedure documents. The Code reads in part:

Hazelwood mine has suffered a number of fires over the years. Many of these have emanated from external 'Bush Fires'. Following a major fire in 1944 the Stretton Royal Commission made a number of significant recommendations relating to external forests and to internal water supply and sprays which are still a major part of the Hazelwood Mine Fire Prevention Policy.

This paragraph of the Code was carried forward from the pre-privatisation revisions of the Code which applied to all the three Latrobe Valley coal mines. While it does not accurately reflect the history of fires at Hazelwood mine up to 2014, it does draw attention to the risk from bushfire and the relevance of external forests. The Hazelwood Mine Fire Instructions recorded that flammable material which exists all around the mine may be ignited in many ways, including by airborne burning embers from bushfires.

50 The mine was aware of the risk of bushfires being lit by arsonists. Fire Preparedness and Mitigation Plans, which were completed and circulated on days of high fire danger, had an optional entry for firebugs. Plans prepared for Saturday 8 and Sunday 9 February 2014 listed firebugs as a possibility. Mr Harkins, a director at the mine, said the Latrobe Valley had a number of known firebugs, and arson was always a possibility. A number of witnesses gave evidence of the prevalence of arsonists in the Latrobe Valley.

51 The mine's policies and procedures responded to the increased fire danger during the summer period and the associated bushfire risk. The Guidelines read in part:

Both dust suppression and fire alertness and preparedness activities are in direct response to varying climate conditions. Minimising Mine dust and forecasting weather conditions by measuring temperature, wind speed, relative humidity and by knowing forecast changes, will enable the management and preparedness for the threat from fires and for dust suppression.

Wise use of personnel and plant resources can minimise the impact on normal work activities. The advancement of external bushfires also needs to be monitored as falling embers can be the initiation of fire spotting many kilometres ahead of the fire front.

The Guidelines emphasise, amongst other things, the need to monitor weather conditions, to respond on high fire danger days by spraying to dampen exposed coal, and to appoint dedicated fire spotters for coal benches to reduce the response time to spot fires. In addition to the Guidelines the Bushfire Mitigation Plan and the Checklist Audit both responded to increased fire danger at the mine during summer months. Other relevant activities included annual fire refresher training to all mine staff and contractors, grass slashing and vegetation control in the broader Hazelwood landholding, weekly fire preparedness reports prepared for senior management summarising the status of relevant preparedness measures, and preparedness plans issued for high risk fire danger days, including 9 February 2014.

52 Major fires, each of which burned for a number of days, occurred on the southern batters in December 2005 and September 2008, and in the operating west field in October 2006. The conditions prevailing at the time of the fires in 2005 and 2006 were high temperatures, low humidity and strong winds. A strong north westerly wind was blowing at the time of the 2008 fire.

53 The mine commissioned reports to investigate the response to each major fire and to recommend improvements. The report into the 2005 fire, which was caused by a geological hot spot, reads in part:

Water supply was reliable and ample within the designated fire area, although further consideration should be given to ease of access, location and reliability of water supply in other worked out sections of the mine, specifically the northeastern batters of the mine.

54 On 12 October 2006, anticipating a hot windy day, staff operated sprays throughout the mine from early in the morning to suppress coal dust and reduce fire danger. After a fire alert was declared at 9:50am all spray systems were operated. Mobile conveyor attendants were on all levels of the mine undertaking fire spotting duties. The fire, which was caused by a faulty conveyer bearing idler, or possibly a vehicle exhaust, ignited in the north-west corner of the operating west field. Staff and contractors attended the spot fire but it took hold, and within 20 minutes had spread some 1.5 km along a coal bench and destroyed a conveyor. CFA personnel arrived to assist with firefighting less than 90 minutes after the spot fire ignited. Within the next few hours the fire jumped down to the other levels of the operating west field. Approximately five hours after the spot fire was first noticed loss of power supply to two pump houses caused a drop in water pressure and severe reduction of water supply, hampering firefighting efforts. However, by that stage the fire was already out of control.

55 The 2008 major fire report noted it was essential that the mine be able to mount a decisive initial response to prevent small fires escalating into large fires, and that this was particularly important out of normal work hours when manning levels at the mine were very low. The report found a significant factor in escalation into an uncontrolled fire within a short time was the inability to mount an effective initial response given difficultly with access and insufficient firefighting facilities available. Two recommendations of the report were:

• The annual audit of the fire system must include the fire system and access in non-operational areas

A critical element of the initial response and the ongoing emergency response was the lack of fire water supply to the non-operational areas and the restrictions in access due to the condition of the roads, the accumulation of debris and that some batters did not have road access. The annual audit should include fire water supply to non-operational areas, access and housekeeping.

Recommendation 6

• A risk assessment should be undertaken on the non-operational areas to determine if further prevention work is required. The risk assessment should include a Cost/ Benefit Analysis.

A range of options have been identified in terms of prevention of hot spots from reigniting and detection of hotspots.

Mr Prezioso, who at the time was a fire service officer at the mine, said the access difficulties in the southern batters in the area of the 2008 fire related to decommissioned and disused conveyors and roads that were in a poor state of repair, and because the response to recommendation 6 was to eliminate the risk by removing the disused infrastructure, reinstating roads and repairing small sections of pipe, the risk assessment had not been conducted. However, recommendations 5 and 6 were not limited to the southern batters, but applied to all non-operational areas of the mine. The 2005 report and recommendations 5 and 6 in the 2008 report clearly directed attention to the need to consider fire water supply to the worked-out areas of the mine, which included the northern batters.

56 On 9 February 2014 the northern batters were heavily vegetated with self-seeded grass, scrub, blackberries and large pine trees. The Checklist Audit completed in late 2013 recommended as remedial action that vegetation across all levels of the northern batters needed clearing. No action was taken in respect of that recommendation before 9 February.

57 There was far less vegetation on the southern batters. Two of the workers who fought the fire on the southern batters, Mr Mauger and Mr Shaw, gave evidence at trial. Mr Shaw described the vegetation as 'just scrubby ... and grass.' Mr Mauger described the area in which the fire ignited as mainly coal batter with some clay capping and some small vegetation. Mr Suares, the supervisor of Mr Mauger and Mr Chapman on the day of the fires, said there was minimal vegetation in the area of the southern batters where fire first broke out.

58 There was pampas grass up to 1½ m tall in the overburden dump on the floor of the mine.

59 On Friday 7 February 2014 total fire bans were declared for West Gippsland for the weekend of 8 and 9 February. The fire danger rating for West Gippsland on 9 February was extreme, with forecast high temperatures, low humidity and strong north-westerly winds gusting to 75 km per hour, with a gusting south-westerly change in the early afternoon. Then Fire Services Commissioner Mr Lapsley explained that on such days fires will become uncontrollable and erratic very quickly, and may threaten communities and housing.

60 Fire preparedness and mitigation plans were issued at the Hazelwood mine for total fire ban days or days forecast to be of severe or extreme fire danger. The preparedness plans were made available to all staff and contractors at the mine, and included instructions for preparedness for fire, and manning and available resources. Mr Shanahan, the mine services superintendent, circulated fire preparedness plans for 8 and 9 February shortly after midday on 7 February. He was aware that 9 February had the potential to be the worst fire risk day since Black Saturday.

61 The usual weekend roster at the mine was a 2 x 12 crew with a minimum manning level of around 16 to 18 people principally engaged in coal winning activities and manning conveyors, a 1 x 7 crew with a minimum of around 7 to 8 people whose tasks were operational support and fire services activities, and contractors engaging in activities such as security, earth moving and emergency services. The preparedness plan allocated two contractors to operate the 30,000-litre water cart as additional resources for the weekend of 8 and 9 February, bringing to 34 the total number of staff and contractors at the mine.

62 The Hernes Oak fire ignited shortly after 3:00pm on 7 February. Mine Production Manager Mr Dugan responded that afternoon by deploying a 30,000-litre water cart, graders, dozers and some smaller appliances to the north-west corner of the mine. He understood that by the early evening the Hernes Oak fire was contained, and was not posing a threat to the mine. No additional resources were allocated at the mine for 9 February in response to the Hernes Oak fire.

63 On 8 February and the morning of 9 February CFA personnel were present on the Hernes Oak fire ground engaged in firefighting activity. Mr Jeremiah, who was the Incident Controller for the fire located at the State Government Incident Control Centre in Traralgon, said there was still some material burning inside the fire area, but the perimeter was not burning. Mine managers, staff and contractors continued to monitor the Hernes Oak by various means, including visual checks, use of infrared cameras, the CFA app, and liaison with the Central Gippsland Essential Services Group.

64 The morning of 9 February was hot but relatively calm. Two members of the 1 x 7 crew were allocated to operate sprays to wet down exposed coal in the operating area of the west field that morning. No sprays were operated in the worked-out areas of the mine, including the northern batters and the southern batters.

65 When the 1 x 7 crew went to lunch at 12:30pm there had been no change to the Hernes Oak fire. Mr Roach, who was the rostered on call Emergency Services Liaison Officer, recorded in a log of events he kept for the day that he arrived at the mine at 12:27pm, and at 12:29pm observed some smoke from the Hernes Oak fire, but nothing of any significance.

66 Just before 1:00pm the 2 x 12 shift manager told the 1 x 7 crew that the Hernes Oak fire had flared up. Mr Suares, the 1 x 7 supervisor, said there was a fair bit of smoke coming from the Hernes Oak fire, and the wind had picked up. At 1:20pm Mr Roach observed the Hernes Oak fire front which he said was 1 to 2 km wide and was being blown by the north-westerly wind directly towards the mine. Mr Suares directed two crew members to turn on sprays towards the western end of the northern batters, and went with other members of the crew and contractors to an area outside the cut in the north-west corner of the mine to try to prevent the Hernes Oak fire running into the mine. He said the Hernes Oak fire was out of control and the wind had picked up considerably and was pushing the fire towards them. Embers from the fire were blowing into the mine. The wind change then began to arrive, pushing the fire away from the mine, towards the west of Morwell.

67 Mr Shanahan arrived at the mine at around 1:50pm. As he drove into the mine the wind was changing from north-westerly to south-westerly, and was so strong it was breaking branches and stripping leaves from trees.

68 Mr Mauger, Mr Chapman and Mr Shaw were members of the 1 x 7 crew that day. After the Hernes Oak fire flared up they were patrolling to the north-west of the mine outside the open cut, and on the northern batters.

69 Shortly before 2:00pm Mr Shanahan and Mr Mauger separately observed a small amount of smoke on the southern batters. Mr Mauger, Mr Chapman and Mr Shaw travelled across the open cut to the fire. Two of the 2 x 12 crew were already attending the fire when Mr Shaw arrived, and a spray was operating. They ran hoses off hydrants, and started fighting the fire, which Mr Shaw said was controllable at that stage. Mr Mauger and Mr Chapman arrived in one of the 3,000-litre tankers a short time later. Mr Mauger said by that time the fire was about 1 m wide. Mr Shaw turned on sprays while Mr Mauger and Mr Chapman attached their tanker to a water main and began to fight the fire. Diamond Protection contractors arrived in another 3,000-litre ex-CFA tanker to help fight the fire. Despite the efforts of those present, and the availability of water from the reticulation system, the fire quickly began skipping up behind them, and was moving east very quickly and rapidly became out of control. Mr Mauger said they had to leave the area as it had become unsafe.

70 At around 2:00pm Mr Shanahan saw three fires along the Strzelecki Highway at Driffield, which he concluded were likely to have been lit by an arsonist. The Driffield fires quickly merged into one front which Mr Shanahan said was about 1.5 km wide, and about 2 to 4 km away from the mine with the wind directly behind it pushing the fire to go straight towards the mine. Mr Shanahan described the situation as incredibly fast-moving, challenging and threatening. He believed it was likely the Driffield fire would run into the mine at the operating west field, igniting the whole of the mine. He and others redirected personnel and resources to the west field, and to the west perimeter of the mine outside the cut, in an effort to prevent this occurring.

71 Mr Shaw said about 20 minutes after he arrived at the southern batters fire he saw signs of fire on the northern batters. He drove across the mine to level 5 on the northern batters, where fire was starting to creep about halfway up the batter, there was smoke and flames, the coal was burning, and the fire was moving across the scrub. He said there was no pipework on level 5 in this area as it had been removed 10 to 15 years earlier due to rust and damage. Because there was no water available he went up to level 3 where he met other workers. He opened a valve to charge pipework on that level, and they started to fight the fire. When Mr Mauger and Mr Chapman arrived the fire was between levels 3 and 5, in approximately a five-metre circle. They sprayed water from level 3 down on to the fire. CFA aircraft dropped fire retardant on the northern batters fire on a number of occasions. Despite the efforts of Mr Shaw, Mr Mauger, Mr Chapman and other workers who were present the northern batters fire was quickly out of control, and it became unsafe for them to remain in the area.

72 Photographs and videos taken by Mr Shanahan demonstrate the very rapid growth of the northern batters fire. By 3:00pm nothing could be done to arrest the development of the fires in the southern batters and northern batters which were out of control, and there were spot fires on the floor of the mine. Mr Shanahan described the northern batters fire at the time:

Ah I'd seen in the northern batters, the increasing in fire intensity ... that fire was getting bigger, it was out of control. Um in my um - um summation, it wasn't - you were going to control it no matter what you had there. You could have 100, 200 firemen and they weren't gonna stop that that day.

73 After leaving the northern batters Mr Mauger and Mr Chapman attempted to fight spot fires on the floor of the mine in the overburden dump. However, those spot fires were also quickly out of control. Two other 1 x 7 crew members, Mr Digiulio and Mr Bianconi, were able to extinguish six or seven spot fires on the northern batters further west of the main fire. Mr Digiulio said sprays operating in the area did not help prevent or extinguish the spot fires because strong wind was blowing water from the sprays, and areas of coal remained dry. Mr Shaw extinguished two spot fires in the operating west field of the mine.

74 Shortly after 3:00pm Mr Prezioso took up the role of Emergency Commander. Staff and contractors were coming into the mine voluntarily to help fight the fires.

75 The situation at Hazelwood remained extremely challenging during the afternoon and into the evening of 9 February 2014. The wind was gusting at speeds of 70 to 80 km per hour. Burning embers were falling across the mine, and more spot fires were igniting. The fires burning out of control on the northern batters, southern batters and floor of the mine were growing. There remained the significant threat of the Driffield fire entering and engulfing the mine. In the late afternoon power to the mine was lost, water supply and pressure remained very limited until power was restored in the early hours of 10 February.

76 At about 8:00pm CFA officer Mr Male became Incident Controller at the mine for the fires. However, because of other fires raging across Gippsland resulting in serious threats to life and property, few CFA resources were available to help with the fire fight at the mine that day. In any event I am satisfied that by mid-afternoon the mine fires were uncontrollable and were going to take weeks to extinguish.

Which of the paths to a guilty verdict are established by the evidence?

Are the offenders deemed to have polluted the environment?

77 To satisfy s 62 of the EP Act, it was not necessary to show that the fires were caused by any act or omission of the offenders in the conduct or operation of the mine.

78 Just prior to the trial the offenders made a number of formal admissions, including first, that the atmosphere over Morwell was polluted by smoke from the mine fires as described in s 41(1)(a), (b) and (e) of the EP Act. Second, that they were occupiers of the mine premises at the time of the fires. Third, that the commercial or industrial undertaking of mining brown coal was conducted on the premises.

79 On the basis of these admissions the offenders were deemed to have polluted the environment unless they proved that the pollution was unrelated to the undertaking of mining brown coal at Hazelwood.

80 Pollution will be unrelated to an undertaking conducted on premises if it has no relationship to or is unconnected or not associated with the undertaking.

81 The undertaking of mining brown coal at Hazelwood was conducted by the offenders pursuant to a mining licence and an EP Act licence. Both licences applied to the broader Hazelwood land holding, which encompassed the whole of the open-cut pit including the non-operating or worked-out areas. Many of the licence conditions were relevant to the worked-out areas, including those concerned with rehabilitation, drainage and de-watering, batter and mine stability and fire protection. Adherence to the Code, which applied to all areas of the mine including the worked-out batters, was a requirement of the Work Plan attached to the mining licence.

82 While the areas where the fires ignited and burned on 9 February were worked-out before privatisation in 1996, they were not abandoned, and activity relating to the operation of the mine occurred there. Critical infrastructure in these worked-out areas included the water reticulation system, bores, roads, the dirty and clean water pump stations, power lines, the overburden dump and the HARA. The worked-out areas were part of the complex structure of the mine, and the offenders had control of and were responsible for current maintenance and future rehabilitation of these areas.

83 The method of mining at Hazelwood left large areas of brown coal exposed in the worked-out areas of the mine, including in the northern and southern batters. There was some coal in the overburden dump on the floor of the mine. When it is exposed to the atmosphere brown coal weathers and dries, becomes very combustible and burns readily. Exposed coal in the northern batters, southern batters and on the floor of the mine, burnt during the mine fires, producing the smoke which polluted the atmosphere over Morwell.

84 The evidence clearly establishes a relationship between the undertaking of mining brown coal at Hazelwood and the smoke emitted from the mine caused by the fires which ignited on 9 February 2014. I am satisfied beyond reasonable doubt that the offenders are deemed, pursuant to s 62C of the EP Act, to have polluted the environment as a result of emission from the mine premises of smoke from the mine fires.

85 For the offenders' conduct to have caused the pollution it must be a significant, or sufficiently substantial cause that criminal liability for the outcome should be attributed to them. The mere fact that the offenders' conduct contributed causally to the pollution, or was a necessary cause of the pollution, is not sufficient. It is relevant to consider whether the pollution was a natural consequence of the acts of the offenders.

86 It is not necessary that the offenders' acts were the sole, main, direct or immediate cause of the pollution. It is not inconsistent with a finding against the offenders' that some other person, event or circumstance also caused the pollution. However, it is relevant to consider whether those other acts, events or circumstances were ordinary occurrences, or something extraordinary. In this regard matters to be considered include the weather conditions on 9 February 2014, the cause of ignition of the Hernes Oak and Driffield fires and the speed, nature and extent of attack on the mine by those fires.

87 For the following reasons I am not satisfied beyond reasonable doubt that the offenders caused the pollution in any one or more of the three ways alleged.

88 First, the weather conditions in West Gippsland in the early afternoon of 9 February 2014 were extreme. The offenders were aware of the weather forecast and the Hernes Oak fire, and should have taken appropriate precautions against the risk of fire at the mine that day. However, in such extreme conditions fires will become uncontrollable and erratic very quickly.

89 Second, the speed and ferocity of the multidimensional attack on the mine by the Hernes Oak and Driffield bushfires was extraordinary. Until shortly before 1:00pm the Hernes Oak fire was contained and being attended by CFA firefighters. When the north-west wind sprang up, despite the significant CFA resources on the fire ground, the Hernes Oak fire flared and broke containment lines and became what was later called the Hernes Oak extension fire. Nothing could be done to prevent it racing towards the mine and Morwell, threating life and property. By 1:30pm the mine was under sustained attack from the Hernes Oak fire, followed immediately by the Driffield fire. Embers from those bushfires rained down across the vast open-cut pit of the mine. Both fire fronts threatened to directly enter and run through the mine, igniting all exposed coal. Mr Harkins, who was a mine director at the time, described the conditions as a perfect storm.

90 Third, between 1:30pm and 2:00pm three or more fires were deliberately lit a short distance south west of the mine, and quickly merged to become the Driffield fire. Mr Lapsley said arson activity posed a significant threat to community safety and was difficult to plan for, and that the timing of the three ignition points of the Driffield fire was suggestive of someone with knowledge of fire behaviour and weather conditions. In the prevailing conditions the effect of deliberate ignition at those points was that very quickly the mine was under attack from the Driffield fire.

91 Fourth, the weather conditions and the speed and breadth of attack on the mine by two bushfires, one of which was deliberately lit, if not with the intention, then certainly with the effect that it would directly attack the mine and threaten to run through it, combined to create conditions at the mine which were extreme and exceptional. In February 2014 Professor Cliff said:

The current fires are caused by exceptional circumstances. They have mined brown coal in Victoria for over 100 years and it's generally done very safely. It's only under these extreme conditions when huge bushfires are raging close to the coal that the usual safety controls don't work.

I acknowledge that Professor Cliff qualified this statement in evidence, saying that exceptional meant infrequent, not unpredictable.

92 Fifth, there is no evidence of any inadequacy in the reticulation system servicing the southern batters, where there were pipes present on each level, with alternate sprays and hydrants. The spot fire on the southern batters was attended by multiple crews with tankers and other firefighting equipment very soon after it ignited. The workers in attendance were all well trained in fighting coal fires. They were able to use the reticulation system, and there is no evidence of lack of water supply. However, despite the efforts to control and extinguish the fire, within a very short space of time it was uncontrollable, and by the early hours of 10 February had engulfed approximately 1 km of the southern batters.

93 Sixth, the major fire in the operating west field of the mine in October 2006 demonstrated that in extreme weather conditions it was possible not only for fire to ignite but for it to very quickly become uncontrollable in an area where all sprays had been operating from early in the morning, there was no vegetation on the coal, the mine was on high alert and spotters were stationed at every level, workers quickly attended the spot fire which ignited, and CFA officers were on site in under 90 minutes to assist with the firefight. The conditions at the mine on 9 February were significantly worse than those which prevailed at the time of the October 2006 fire in that the weather conditions were more extreme, and the attack of fire on the mine was multidimensional and across the entire open cut.

94 Seventh, it was not possible to operate all sprays on the reticulation system across the whole of the mine at the same time because there was insufficient water, and because of the water balance and geotechnical issues relating to mine stability. The most that could be done was to operate sprays to wet down different areas of the mine in sequence. On a hot day with strong winds coal that has been wetted down will dry very quickly, particularly on the steep batters. There was no evidence of the degree to which coal had to be wetted to prevent it from being combustible.

95 Eighth, the evidence did not allow a conclusion to be reached as to how often, and for how long sprays could be operated in different areas of the mine on 9 February in a way that was consistent with protecting all areas from the risk of fire. There were good reasons for prioritising the operating areas in the wetting down process, because that was where there was the greatest risk of fire, most mine workers and critical infrastructure were located in the operating areas, there was far more exposed coal there, and the west field could be expected to come under attack from any bushfire which approached the mine on 9 February.

96 Ninth, the evidence does not allow for the conclusion that fires on the southern and northern batters each originated from a single spot fire ignited by burning ember. There were multiple spot fires on the floor of the mine. Embers from the bushfires were raining down across the mine. The spread and intensity of the mine fires may have been aided by there being multiple points of ignition. The fact that there may have been multiple points of ignition on the northern and southern batters adds to the uncertainty that the fires would have been extinguished or controlled by one or more of the measures particularised in the charges.

97 Tenth, there is no history of fires occurring in overburden. There was no reticulation pipework on the overburden dump because spreading overburden over exposed coal on the floor of the mine was thought to eliminate fire risk. Further there was a risk that water leaking from pipes would liquefy the overburden and cause damage to mine infrastructure. It is notable that pipework installed on the overburden dump during the mine fire has since been removed.

98 Eleventh, there was little vegetation on the southern batters, yet the spot fires ignited by a burning ember took hold and became out of control there in very much the same way as occurred with the fire on the northern batters. Had vegetation been cleared before 9 February 2014 the northern and southern batters of the mine would have simply been exposed coal. There is no evidence that vegetation was more likely than exposed coal to be ignited by burning embers from the approaching bushfires, or that it would burn more readily. The converse may be true, that if it was exposed the brown coal would ignite more readily and burn more quickly than vegetation. Further, as Mr Shanahan explained, coal will throw red hot embers which are very light and will just float in the air. He said at night you can see coal embers moving everywhere across the coal face. The evidence does not support a conclusion that embers from burning vegetation would spread fire in the mine more rapidly or broadly than embers from burning coal.

99 Mr Suares said he observed fire spreading and spotting in pampas grass on the floor of the mine, and fire jumping to the right and left, up and down in vegetation on the northern batters and southern batters. However, when he made these observations Mr Suares was at the south-west lookout, about 3 km from the fire on the northern batters, and a little less from the fires on the floor of the mine and the southern batters. He said from that distance he could not see embers moving, or how flame was moving from tree to tree or along the coal, or whether the fire was spreading through coal or through vegetation. He said those fighting the fires would have been in a better position to give evidence about these matters. Mr Mauger said, in effect, that it was easier to suppress fire in vegetation because once it burns into the coal, the fire is three dimensional. He, Mr Shaw and Mr Prezioso, said having less vegetation would have made no difference to the mine fires taking hold on 9 February 2014.

100 Twelfth, despite mine staff responding to the spot fire on the southern batters quickly and in significant numbers with tankers and sprays connected to water reticulation pipes supplying water, the fire grew rapidly and within 20 minutes was out of control. Given that the spot fire on the southern batters was not extinguished or controlled by a quick and decisive response, it cannot be concluded that an equivalent response to spot fires on the northern batters or the floor of the mine would have been successful in extinguishing or controlling that fire. This conclusion is further borne out by the experience of the 2006 major fire.

101 Thirteenth, while having more staff and managers at the mine on high fire risk days improves capacity to suppress fire risk and respond to fires which ignite, the evidence does not establish that the additional staff numbers proposed by the prosecution as adequate would have resulted in the northern batters fire being prevented, extinguished or controlled on 9 February 2014. The prosecution relied on the increased 1 x 7 crew manning levels on days of extreme fire danger set out in the revised Mine Fire Instructions issued in January 2016, which provided for three additional spray crews, comprising of two workers each in the operating areas, two additional spray crews in the worked-out areas, a lookout and a mobile patrol. The situation at the mine on the afternoon of 9 February was rapidly evolving and extremely challenging. Two bushfire fronts threatened to burn into the mine. Burning embers were raining down across the 1,100 hectares of the open cut and the broader 3,500 hectare Hazelwood landholding igniting spot fires. The Driffield fire remained a threat from the early afternoon for the balance of the day. Managers such as Mr Shanahan and Mr Prezioso quickly redeployed staff and resources where they perceived the greatest threat. It cannot be concluded that in those circumstances the additional staff resources proposed as adequate by the prosecution would have resulted in the mine fires being prevented or controlled.

102 Mr Shaw was able to extinguish two spot fires in the operating west field, where there was a comprehensive reticulation pipework and sprays had operated on the morning of 9 February 2014. Mr Shaw said it would have helped with firefighting if the northern batters had been sprayed with water that morning, and the fire would have been slowed down if there had been pipework on level 5. I reject the prosecution submission that this evidence should lead to an inference that if the reticulation pipework on the northern batters was complete, and there was wetting down of coal in the worked-out batters that morning, the northern batters spot fire would also have been extinguished. The inference is not supported by the experience of the southern batters fire or the major fire in 2006. Given the limits of the reticulation system it is not clear that the degree to which it was possible to keep coal in the worked-out areas wetted down would have been sufficient to prevent the fires. Mr Mauger said more pipework on the northern batters would have made no difference to the fire taking hold. Mr Prezioso said in the conditions of the day operating sprays in the worked-out batters would have made little difference because the wind would have made it difficult to get water on the coal, which was confirmed by evidence given by Mr Digiulio. Other factors, such as the impact of wind drying coal or flaming a spot fire, the terrain in which fires were located and number of spot fires may have varied across the mine and explain the different outcomes. The reasonable possibility has not been excluded that the mine fire would not have been extinguished or controlled had the measures on which the prosecution relies been in place.

103 The prosecution submitted, first the undertaking conducted at Hazelwood involved the mining of brown coal under a licence which included a requirement to manage the risk of fire in operational and non-operational areas of the mine. Second, ss 41 and 62C of the EP Act oblige occupiers of premises to control the risk of pollution. The means for controlling that risk on the facts of this case are effectively the same as the particulars of causation, that is adequate reticulation and staffing levels, and clearing vegetation. Third, because the relationship between the emissions and the undertaking of mining brown coal points to the same risk and the same failures as the causation approach, the level of culpability is the same. Fourth, it should be concluded, in any event, that in combination the inadequate water reticulation and staff numbers, and failure to clear vegetation, caused the pollution emitted by the mine fires.

104 I reject the prosecution submissions. Offences against s 41 of the EP Act are outcome based, not risk based. The offence is to pollute the atmosphere. The culpability and degree of responsibility of the offenders is to be assessed against the outcome which occurred. The offenders are to be sentenced for polluting the atmosphere, not for the failure to take a step to reduce the risk of pollution where it is not established that failure caused the pollution.

105 Further, for reasons stated, it has not been established that the pollution was caused by any one or more of the three failings alleged in the charges. Considering the three failings in combination adds little if anything to the analysis of causation. It has not been established that the relationship between the undertaking of mining brown coal and the emission of pollution by the mine fires was causative.

106 The gravity of the offences must be considered in light of the circumstances which have been set out. The offenders are guilty because the pollution which occurred was related to the undertaking of mining brown coal which they conducted on the premises. The following features of the relationship between the mine and the pollution are of particular relevance to the degree of responsibility of the offenders. First, the manner in which mining was conducted at Hazelwood left large areas of brown coal exposed in the worked-out areas of the mine which was available to fuel the mine fires. Second, the characteristics of brown coal, which was the product of the undertaking being conducted at Hazelwood, are that it becomes very combustible once it is exposed, dries and weathers, will burn readily and is difficult to extinguish. Third, features of the undertaking such as the size and geography of the mine, and the water balance and geotechnical issues already described were relevant to the difficulty experienced and time taken to extinguish the fires. Fourth, the mine was on premises located close to residential areas of Morwell. These circumstances are relevant to the occurrence, extent and duration of the pollution, and the number of persons exposed to harm.

107 In the weeks following 9 February 2014 Morwell was often blanketed in thick smoke from the mine fires, which resulted in heavy deposits of pervasive soot and ash. The smoke was noxious and offensive, harmful to the health of many residents and had a detrimental effect on life in and around Morwell.

108 Smoke contains very fine suspended particles less than 2.5 microns in diameter, called PM2.5. The advisory Australian air standard at the time of the fires was a daily average of 25 micrograms per cubic metre ('mg/m3'). Environmental epidemiologist Professor Johnston said, however, there is a dose response to increases in PM2.5, and even a rise above background can have measurable increases in adverse health outcomes. The air quality in the Latrobe Valley is generally good, with a background level of PM2.5 around 6 to 7 mg/m3.

109 During the period of the mine fires air quality was measured at Traralgon, Morwell East and Morwell South using stationary monitors, and by mobile monitors called Travel Blankets. Smoke from the mine fires, and therefore measurable particulate matter, varied with wind strength and direction, and the level of fire activity. In the period 14 February to 2 March levels recorded in the south of Morwell ranged between 28 and 730 mg/m3. Levels exceeded 100 mg/m3 on nine days. There were a further four days up to 11 March on which the advisory standard was exceeded. No levels were recorded on 20 February. At the Morwell East monitor levels exceeded 25 mg/m3 on 13 of the days between 14 February and 10 March. In that period recorded levels ranged from 5 to 82 mg/m3.

110 No monitors were operating in Morwell for the first five days of the mine fires. There is no doubt a great deal of smoke was emitted by fires into the atmosphere over Morwell in that period. The absence of recorded measurements and variability in the amount and location of smoke means no firm conclusion can be reached about the levels of PM2.5 in the Morwell atmosphere on those days. However, the evidence does support the inference that the levels of PM2.5 in the Morwell in the first five days of the mine fires were significantly above the background level.

111 Levels of PM2.5 in the south of Morwell for 14 to 21 February were measured using a DusTrack device which did not meet the Australian standard for reference data. Professor Johnston said DusTrack provides perfectly good measurement of air quality. Mr Fisher, the air quality scientist in charge of collecting air quality data during the mine fires, said DusTrack devices, when properly calibrated and corrected, are as accurate as any other instrument against the reference standard, about plus or minus 15%, which is as good as you can possibly get given the highly variable nature of particles in smoke. The evidence establishes that the particulate levels measured using DusTrack can be relied on, and that all recorded levels should not be treated as a precise measure of particulate levels to which all members of the local community were exposed.

112 The mobile Travel Blanket measurements confirm air quality was poorest in the south of Morwell, although the recorded levels throughout Morwell frequently exceeded 100 mg/m3.

113 Inhaling PM2.5 causes immune and inflammatory responses in the body, and a consistent array of health problems ranging from immediate irritation to more serious impacts, particularly for those suffering pre-existing respiratory or cardiovascular illness. The adverse health effects are dose related, and will depend on the length and intensity of exposure.

114 Professor Johnston said in that regard the Latrobe Valley did not fare well on the following socioeconomic measures: first life expectancy, which indicated a poorer underlying health status; second median income; third avoidable mortality, which reflects problems such as heart disease; and fourth high rates of smoking, meaning chronic bronchitis, emphysema and chronic obstructive pulmonary disease would be higher. On these measures the population of Morwell was likely to suffer greater adverse health impacts from exposure to smoke and PM2.5.

115 Professor Johnston said increased exposure to smoke would be expected to result in increased need for health care, particularly associated with exacerbation of existing chronic lung and heart disease. The Hazelwood Health Study, which examined health outcomes from the mine fires in a series of studies using health data, found:

(a) A daily response for each 10 mg/m3 increase in coal mine fire related PM2.5 was associated with a 25% increase in dispensing respiratory medication, 10% for cardiovascular medication and 12% for psychiatric medication.

(b) An increase of 5,137 GP attendances attributable to mine fire smoke related PM2.5.

(c) An increase in emergency presentations for respiratory disorders.

(d) A daily response for each 10 mg/m3 increase of mine fire related PM2.5 associated with approximately 7% increase in hospital admissions for all respiratory conditions.

(e) During the fires an increase of 40% in ambulance callouts for respiratory disorders, and 15% for all conditions.

116 Professor Johnston agreed that while the findings suggest these increases are associated with the mine fire smoke, the data is not sufficient to link any individual case to the mine fire. She explained it was an epidemiological, not a clinical, study and that she was able to be very confident of the results given the consistency with the global body of evidence.

117 Evidence was given at trial by a cross-section of affected residents and business operators. Michelle Gatt, a Morwell resident and café proprietor, said that in the four weeks after the mine fires ignited she was unable to turn the air conditioning on, open windows or go outside, and had to put rolled up wet towels under the doorways. She said there was thick ash like salt and pepper falling. After two weeks she started to feel nauseous and unable to breathe, and her voice was affected.

118 Morwell resident Simon Ellis said smoke from the fires smelt weird and was thick. He already suffered with asthma, which he said flared up a lot during the time; he developed a wheeze which was like a weird whistle when he breathed, which started three or four days after 9 February. His doctor gave him a new inhaler which he was to use daily, which cleared his wheeze somewhat. At one point he was put on prednisolone, which he had to take for 14 days, and he had coughing fits and would actually pass out from coughing, and ended up going to hospital. He had breathing problems for a couple of months, but his symptoms have since improved. There was a detrimental impact on his business.

119 Annette Wheatland, the regional manager of Southern Cross Care Morwell, said for several weeks after 9 February the area was full of smoke, soot, ash and dust, depending on the way the wind was blowing, but the prevailing wind was from the direction of the mine. The fires had a big impact on staff who were asthmatic. Each morning when she arrived at work she had to clean, particularly in the bathroom area which was covered with fine soot. Many of their clients had chest conditions and were particularly vulnerable, and many moved away. They could not use the air conditioner because it would block up with soot, so the office was very hot and the air was unbreathable, and they had to relocate staff to Moe. One weekend there was a large storm in Morwell and the office guttering was blocked by soot and dust, which resulted in water flooding into the building destroying IT and communication equipment.

120 William Panther, who operated a Mensland store in Morwell, said for one month the stock was continuously penetrated by fine dust generated by the fire; he was required to cover things with plastic and clean things, and move stock to other stores so that it would not be damaged. He is an asthmatic, and suffered breathing issues during the fire and was required to use Ventolin, but his breathing has since improved.

121 Morwell resident Robert Jackman said a local school at which he assisted was subject to ash build up in the playground and dust on the desks and equipment. His grandchildren developed coughs in the first three or four days after the fires started. His wife, daughter and three grandchildren relocated to Perth.

122 I also have regard to the impact of the offending proved by victim impact statements tendered at the sentencing hearing. Given the number tendered I will not address the content of each individual victim impact statement.

123 The offenders objected to the admissibility of whole or parts of a number of victim impact statements on the grounds of relevance, on the basis there was no evidence causally connecting the impact set out in the statement with the mine fires. The statements which were objected to, and some others tendered, raised complex medical or factual questions, including as to the nature of the disorder or detriment from which the deponent of the statement suffered, and the causal connection between that disorder or detriment and exposure to smoke from the mine fires. To establish causation in many of the cases would require extensive evidence from lay witnesses, medical records, other relevant documents and health or other experts. The issue was not one of admissibility. However the content of a number of statements, including those to which objection was taken, did not enable a causal connection to be made between exposure to the pollution and the adverse impact complained of.

124 The impact of the mine fires resulting from pollution set out in the victim impact statements is summarised as follows:

(a) Physical harm including persistent coughs and sore throat, blood noses, breathing difficulty, headache, shortness of breath, irritated or burning eyes, exacerbated or new asthma or other respiratory conditions, sleep disturbance, nausea. For example, Melissa Walsh said she developed asthma for the first time during the mine fires which is still ongoing; David Hollis said he was exposed to smoke at home and work and developed breathing difficulties, headaches, dizziness, drowsiness, nose bleads and his children also had breathing difficulties. Many victims said the smoke was offensive and noxious.

(b) Psychological harm. For example, Elaine Quirk said she felt very depressed and anxious as she was unable to leave the house due to very thick dirty smoke from the mine fires; Elizabeth Charlesworth said she experienced anxiety because of the potential long-term health effects of exposure to smoke from the mine fires; Shane McEwan said being stuck in his house caused him emotion distress and increased his anxiety and depression; Deborah Anne Hollis said her being surrounded in heavy smoke and ash made her feel scared and anxious, unable to sleep, and she felt guilt and shame about her son feeling hurt in his own house; and Tracie Lund said she would cry and felt overwhelmed and fearful about her children being exposed to smoke from the mine fires.

(c) Decreased social interaction. For example, Elaine Quirk said she gave up on groups she was involve in for years including a church singing group, due to cough and embarrassment; Margaret Cook said she was unable to attend clubs she was a part of due to her caring role and not feeling up to it psychologically.

(d) Financial cost and inconvenience. For example, Laurel Hughes said she had to tape up the windows and doors of her home to prevent smoke getting in; many described the need to constantly clean soot and ash, and of incurring costs associated with cleaning products and equipment; Gabriele Respondino said there was a drop off in takings in his small business; Sandra Pattison said she had to move from nearby the mine to another side of Morwell and buy new furniture, clothes, and incurred continuous cleaning expenses as ash and smell would come back the next day; a number complained of increased medical costs and costs of travel for treatment or temporary relocation.

Each of these impacts, which were often interrelated, fall within one or more of the changes to the condition of the environment caused by pollution described in s 41(1)(a), (b) and (e) of the EP Act.

125 Considering all of the evidence I conclude there is a strong proximate relationship between the pollution and the harm and detriment outlined by the community witnesses, and to the extent set out above, in the victim impact statements, and that this is representative of the impact of the pollution on the community of Morwell and nearby areas. The large number of people exposed to pollution from the mine fires is a relevant sentencing consideration.

126 As has already been stated the primary consideration in relation to penalty is the objective gravity of breaches by the offenders. The sentence imposed must reflect punishment that is just and proportionate in all the circumstances.

127 The maximum fine for each offence against s 41 of the EP Act is 2,400 penalty units, or $346,464 at the relevant time. The maximum penalty defines the absolute limit for the worst type of offending of that kind.

128 The culpability and responsibility of the offenders is at the lower end of the range.

129 Sentencing principles of totality and double punishment must be considered. The penalties imposed must reflect the total criminality involved, and an offender must not be punished twice for an act or element which is common to different offences.[3]

130 There is a very significant overlap between the three offences of which each offender is guilty. The actions of the offender in conducting the undertaking of mining brown coal at Hazelwood are the same. The pollution and the population adversely affected by it are the same. The only distinction is between the different consequences or harm caused by the pollution in s 41(1)(a), (b) and (e) of the EP Act, and there is clearly overlap between various effects. Given the degree of overlap of the only element which distinguishes between the three offences, double punishment will be avoided and account will be taken of the principle of totality by imposing an aggregate sentence which reflects the appropriate penalty on the most serious offence considered alone, which in this case is the s 41(1)(b) offence, together with a modest increase for the additional effects reflected by the remaining offences.

131 There was no dispute as to the corporate arrangements between the four offenders as set out in the submissions tendered for the offenders. In summary, those arrangements are as follows:

(a) The original Hazelwood Power Partnership deed was entered into on 2 August 1996 between National Power Australia Investments Limited, Hazelwood Pacific Pty Limited, Australian Power Partners B.V., Hazelwood Investments Company Pty Ltd and CISL (Hazelwood) Pty Ltd. On 7 June 2013 Hazelwood Investments Company Pty Ltd and CISL (Hazelwood) Pty Ltd transferred the whole of their collective partnership interest in HPP to Hazelwood Churchill Pty Limited.

(b) Since privatisation in September 1996 the HPP corporations have owned and occupied the mine premises, and operated the mine in partnership, together with HPC. There is a single management structure at the mine.

(c) The HPP partners are indirectly owned as to 100% by International Power (Australia) Holdings Pty Ltd, the ultimate owners of which are GDF Suez SA as to 72% and Mitsui & Co Limited as to 28%.

(d) The HPP corporations prepare accounts as a consolidated entity. HPP is an economic unit the only business of which has been and is the conduct of the business of the Hazelwood mine and power station. The offenders do not play different role in the business or in conducting the undertaking of coal mining at Hazelwood.

132 The corporate structure at Hazelwood is a legacy of historical circumstances relating to privatisation in 1996.

133 There was some difference in approach between the prosecution and the offenders as to the relevance of the corporate arrangements to the sentence which should be imposed on each offender.

134 The prosecution submitted there is no provision of the EP Act or the Sentencing Act 1991 (Vic) which directly authorises a reduction in or sharing of a penalty between partnership offenders. Section 66B(4) of the EP Act provides:

If a person who is a partner in a partnership contravenes, whether by act or omission, any provision of this Act or a notice or a licence or permit under this Act in the course of the activities of the partnership, each other person who is a partner in the partnership is also guilty of the offence which relates to the contravention and liable to the penalty for that offence.

The effect is that each offender is subject to the same maximum penalty. This is not a situation where a penalty should be assessed and divided up amongst the four offenders. The offenders were each separate legal entities with responsibility to ensure the atmosphere above Morwell was not polluted by emissions from the mine. The principle of totality does not allow different corporations which have been found guilty of similar offences arising out of the same facts to be sentenced as if they form a single corporate entity.[4]

135 Whilst I accept the prosecution submissions as correct, they do not fully address how sentencing principles and purposes should be applied in the circumstances of this case.

136 The offenders did not contend that the principle of totality applies, but submitted the issue is one of just punishment, which must be considered in light of the particular circumstances of the case and the sentencing purposes. The offenders relied on the following statement of Gleeson CJ in R v Engert,[5] which followed his Honour's discussion of the purposes of punishment set out in Veen v The Queen (No 2):[6]

A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate... It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.[7]

It was submitted that the circumstances of this case include that the offenders are related as partners in HPP; penalties imposed on the offenders will inhere to the detriment of the common shareholders; and the multiplicity of offenders is accidental and unrelated to the merits of the case.

137 In an earlier decision in Tiger Nominees Pty Ltd v State Pollution Control Commission,[8] Gleeson CJ said:

It is, of course, easy to imagine cases where justice would require that penalties be reduced below what otherwise might be in recognition of the circumstance that a multiplicity of offenders is accidental and quite unrelated to the merits of the case.[9]

138 I accept the offenders' submissions. The penalties imposed must be just and proportionate in all the circumstances, taking account of the responsibility of each offender for the offences. In my view the following factors warrant amelioration of the penalties as between the offenders.

139 First, the ultimate ownership of each offender is the same. There would be an element of double punishment of the ultimate owners of HPP if no regard were had to the corporate relationships.

140 Second, the offenders owned and occupied the mine, and conducted the undertaking of mining brown coal, as a partnership. The four partners prepared one set of consolidated accounts. The only activity of the partners was ownership, occupation and operation of the mine.

141 Third, the offenders have each been found guilty of the same three offences in exactly the same circumstances.

142 Fourth, the offenders acted as one. There was a single management structure at the mine. The offenders did not have different roles or obligations in the operation of the mine, and there is no distinction between them in relation to the conduct or the outcome which led to the guilty verdicts.

143 Fifth, the corporate structure is an historical artefact of privatisation of the mine in 1996, and serves no current purpose in relation to occupation or operation of the mine.

144 The circumstances require a very significant reduction of the penalty which would otherwise have been imposed on any one of the offenders as a sole offender. I will moderate the penalties imposed on each offender to ensure they reflect what is just and proportionate punishment in the circumstances.

145 HPC has been found guilty, and was sentenced today, for offences under ss 21 and 23 of the Occupational Health and Safety Act 2004 (Vic) of failing, so far as was reasonably practicable, to eliminate or reduce the risk to employees and other persons of inhaling smoke, fine particles and carbon dioxide emitted by fire in the northern batters which could be ignited by bushfire. Given the difference in legislation and elements of the offences, the different identities and roles of HPC and the HPP offenders in operation of the mine, and findings as to manifestation of risk in the HPC sentence and causation in this matter, there is no overlap between the sets of offences which requires consideration.

146 There can be no criticism of the response of the mine operators after the fires took hold at the mine on 9 February 2014. Numerous additional staff and contractors came into the mine to help fight the fires, and an emergency command centre was established. After a CFA incident controller was appointed on the evening of 9 February, mine personnel continued to work side by side with CFA and other agencies throughout the 45-day firefight. It is evident that mine personnel played a significant role in controlling and extinguishing the fires.

147 After the mine fires were extinguished the mine operators quickly prepared a proposal to improve the response to the risk of fire at the mine. During the first public inquiry into the mine fires in 2014 Mine Manager Mr Graham tabled a document outlining initiatives which the mine operators were committed to implementing. The proposals for improvement by the mine operators were ultimately adopted by the inquiry board as its own recommendations. The initiatives dealt with a number of matters including:

(a) risk assessments (re: the specific risk of fire in the worked-out batters of the Hazelwood Mine);

(b) manning arrangements in high fire risk periods;

(c) vegetation management on worked-out batters;

(d) reticulated fire service pipework (maintaining the additional pipework installed during the Mine Fire incident, subject to operational requirements);

(e) further enhancements to back-up electricity arrangements;

(f) pre-positioning of AIIMS qualified Emergency Commanders on total fire ban days;

(g) emergency liaison with the CFA and other relevant state agencies (including having a Hazelwood representative directly attend any Incident Control Centre); and

(h) rotational wetting down of worked-out areas (having regard to water constraints, and any specific priorities from the perspective of known external fire risk).

148 The mine operators cooperated with both mine fire inquiries, and with other steps by regulators taken since the mine fires directed to addressing the risk of fire at the mine.

149 The mine ceased operating in 2017. The mine operators have since worked to rehabilitate the mine site.

150 It was submitted for the offenders that in a specific industry sense general deterrence is not required because of significant changes since the mine fires occurred to fire risk management within the three Latrobe Valley coal mines. First, the Latrobe Valley coal mines have conducted a joint risk assessment, with the assistance of external consultants GHD, as to the risk of fire and suitable risk mitigation controls.

151 Second, regulatory reform has resulted in significant changes to fire risk mitigation within the coal mines, which includes imposition of a new mining licence condition requiring that a risk assessment be conducted with the assistance of qualified consultants which specifically considers public safety, and review of relevant policies and procedures including the Code; development by the three mines of a Risk Management Plan in response to the mine licence condition; introduction of regulations requiring the development of Fire Risk Management Plans and development of such a plan by Hazelwood and the other mine operators in response to the regulations; and introduction of regular audits of fire preparedness by the mine regulator.

152 Further, it was submitted, the importance of general deterrence was mitigated to a large extent because the circumstances of the offending reflected reduced moral culpability, and by the requirement to impose just punishment.

153 In the above circumstances specific deterrence is not a relevant sentencing consideration.

154 However, whilst account should be taken of the matters raised on behalf of the offenders the purpose and social nature of the EP Act mean that general deterrence is of particular importance to offences of polluting the atmosphere. It is necessary that the sentence draw attention to the importance the EP Act places on the protection of the environment, and those enjoying it, from pollution and send a message to those engaged in commercial or industrial undertakings, or the occupiers of land on which such undertakings are conducted, that emission of pollution will attract significant punishment.

156 The mine was a heavily regulated environment. The mine operators complied with the conditions of licences in relation to the conduct of the mine, and worked cooperatively with relevant regulators. The safety record of the mine in relation to fire improved in the period since privatisation.

157 It was submitted for the offenders that the following matters demonstrate remorse. First, within the limits imposed by the need for public communications in relation to the mine fire to have one official source coordinated through the CFA, the offenders published a community notice on 31 March 2014 acknowledging the significant efforts of the CFA, MFB and a range of other agencies in extinguishing the mine fires, and directly acknowledging the impacts of the fires on the community in the following terms:

We know only too well that the smoke from this fire has had an enormous impact on the Morwell and surrounding communities. As a significant member of this community - with many of our employees and contractors living locally - GDF SUEZ Hazelwood understands the inconvenience and concern the fire has caused. We sincerely appreciate the community's patience while the essential fire suppression activity proceeded and we are now working with local representatives to determine how we can best contribute to recovery and revival programs.

158 Second, in May 2014 the offenders implemented a program known as 'Revive Morwell', which involved distribution of $100 gift cards to each of the 6,700 households in Morwell, to be spent in local businesses. The approximate cost of the initiative was $650,000. Further community initiatives implemented by the offenders included:

(a) a $100,000 contribution to the Latrobe City Council's community clean up initiative;

(b) a $50,000 donation to the Gippsland Emergency Relief Fund; and

(c) making $500,000 available to the Community Social Capital Committee (comprising local organisations Advance Morwell, Rotary Club of Morwell, Lions Club of Morwell, Enjoy Church, Salvation Army and Morwell Neighbourhood House).

In addition to these measures the offenders' parent company GDF Suez continued extensive sponsorship of local community organisations estimated at approximately $500,000 per year.

159 Third, in evidence at the first mine fire inquiry Mr Graham expressed regret that the public communications process through the CFA led to the perception GDF Suez did not care about the community, which he said was far from the truth. Mr Graham said it was absolutely regrettable that the mine operators did not acknowledge earlier the impact the mine fires were having on the community.

160 Fourth, following release of the inquiry's final report a spokesperson for the mine operators acknowledged the impact of the mine fires, said 'sorry' to the local community, and acknowledged that the mine operators had to do better to reduce the risk of fires.

161 I take into account that the mine operators were genuine in their expressions of regret, and in attempts to ameliorate the adverse impacts of the mine fire on the local community, and acted responsibly by developing and implementing improvements to the response to fire risk at the mine, in a cooperative manner in conjunction with the first public inquiry, regulatory authorities and the other Latrobe Valley mines.

162 However, running a lengthy contested trial must be taken into account in assessing the degree of remorse shown by the offenders.

163 Hazelwood Pacific Pty Ltd is convicted of the three offences and on Charges 1, 2, and 3 is fined an aggregate amount of $95,000.

164 Australian Power Partners B.V. is convicted of the three offences and on Charges 1, 2, and 3 is fined an aggregate amount of $95,000.

165 Hazelwood Churchill Pty Ltd is convicted of the three offences and on Charges 1, 2, and 3 is fined an aggregate amount of $95,000.

166 National Power Australia Investments Limited is convicted of the three offences and on Charges 1, 2, and 3 is fined an aggregate amount of $95,000.

167 I grant a stay of 90 days for payment of the fines imposed.

[2] The Royal Commission findings are detailed in the Richard Oliver International 1992 report described in paragraph [37].

[3] Interpretation of Legislation Act 1984 (Vic) s 51(1); Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; Lecornu v The Queen [2012] VSCA 137; (2012) 36 VR 382.

[4] WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd [2006] NSWIRComm 279; (2006) 156 IR 341; Nash v Glennies Creek Coal Management Pty Ltd; Nash v Nash v Integra Coal Operations Pty Ltd (No 9) [2015] NSWIC 15; (2015) 91 NSWLR 368.

[5] (1995) 84 A Crim R 67.

[6] [1988] HCA 14; (1988) 164 CLR 465.

[7] R v Engert (1995) 84 A Crim R 67, 68.

[8] (1992) 25 NSWLR 715.

[9] Ibid 722; see also Inspector Trotter v BBC Hardware [2008] NSWIRComm 232, Di Tonto v R [2018] VSCA 312.