Environment Protection Authority v Action Sands Pty Ltd

DEFENDANT: Action Sands Pty Ltd

KEY ISSUES: Environmental Offences :- penalty

Clean Waters Act 1970, s 16(1) LEGISLATION CITED: Environmental Offences & Penalties Act 1989, s 9 Crimes Act 1900, s 439

EX TEMPORE JUDGMENT DATE: 10/29/1999

PROSECUTOR: D Samuels (solicitor) SOLICITOR: S Garrett LEGAL REPRESENTATIVES: DEFENDANT: G E Underwood (barrister) SOLICITORS: Allen Allen & Hemsley

JUDGMENT: IN THE LAND AND Matter No: 50044 of 1999 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 29/10/99

The defendant has pleaded guilty to a charge that between about 18 July 1998 and 28 July 1998 at Chinderah in the State of New South Wales it committed an offence against the Environmental Offences and Penalties Act 1989 in that it did pollute waters contrary to s 16(1) of the Clean Waters Act 1970.

The relevant facts are derived from a statement of agreed facts and a large number of affidavits which have been relied upon by both parties in this hearing. The relevant facts may be briefly described as follows:

The defendant operates a sand dredging and supply operation from premises situated in Ozone Street Chinderah. It appears that sand is dredged on site from an enclosed pond. The pond is up to twenty-one metres deep in places. The sand is dredged using a diesel electric dredge. Fuel for the dredge is supplied to it by way of a PVC fuel line from a land based diesel fuel tank, having a capacity of approximately 5,000 litres. The sand produced by the dredge is placed onto stockpiles and the fines and waste water flow back into the pond. The sand is either sold as fill or mixed with other material to be used varying grades of sand or sand and soil mixes.

On Monday 20 July 1998 after some hours of dredging the dredge operator reported that the dredge was out of fuel. There was no fuel coming down the fuel line to the dredge from the shore based fuel storage tank. The fuel line, which floats on the water, was inspected and was found to have separated at a coupling joint. It was apparent that a valve located at the exit from the shore based fuel tank was open, that the fuel line had separated sometime between Saturday 18 July (when dredging last occurred) and Monday 20 July when work recommenced.

I am prepared to accept the opinion that the fuel line came apart because of a large build-up of floating reeds and other vegetable matter that had accumulated from wind action alongside the fuel line, placing pressure on the fuel line and causing the coupling to disengage. Because the valve at the exit point on the land based fuel tank was open the contents of that fuel tank leaked into the pond. There was no obvious sign of any diesel on the lake. It seems that the fuel that had leaked into the lake over the weekend had been moved by wind to the shore, where it was hidden by reeds and/or other vegetation.

The fuel line coupling was apparently restored and normal dredging operations continued. On 27 July Tweed Shire Council received a complaint that fuel and oil fumes were noticeable in an area north of the sand dredging operation, such complaint coming from apparently occupants of a caravan park.

Investigations by both officers of the council and an officer of the prosecutor on the next day revealed that there was an accumulation of oil in a watercourse which runs alongside Ozone Street, immediately north of the sand dredging operation. The watercourse led in turn to the Tweed River approximately 500 metres away. It seems that the oil had drifted to the north-east corner of the dredge pond and then discharged through a submerged pipe into an open drain and then into the watercourse.

Upon being notified of what had occurred the defendant took immediate measures to clean up the oil spill. The outlet at the discharge point to the drain was closed. Additional weir boards were added to the outlet structure to ensure that diesel fuel was contained within the pond. An associated company, which I note is a substantial shareholder in the defendant, made available its emergency spill response trailer. From this source floating booms and absorbent pillows were put in place in the drain and at the weir box which formed part of the discharge point. The defendant organised the pumping from the watercourse of any water containing the spilt diesel fuel which had accumulated behind oil booms that had been placed there. The outlet box structure was also pumped out.

The defendant has since taken measures to prevent a recurrence of the same kind of incident. The PVC fuel line that supplies fuel to the dredge has been realigned and attached to the floating dredge line. The line can no longer be subjected to stretch forces because it is fixed to the floating rigid pipeline that conveys pumped sand to the stockpiles. A locking mechanism and locking procedure has been adopted for the shore based fuel tank. The outlet valve, on the fuel tank must now be closed between refuelling events and is locked each evening.

The defendant is now working on a design for a fuel barge which will replace the present fuel line system and which will be used to convey fuel between a shore based facility and the dredge.

The incident occurred when, it seems, the site manager was on leave and the acting site supervisor was apparently in charge of operations on the site. The break in the fuel line was not reported to the prosecutor as required by the conditions of its pollution control licence, apparently because no oil or diesel fuel was noticeable on or in the pond following the discovery of the break in the coupling.

I am satisfied that the defendant employs professional and experienced people for the purpose of its dredging operations. There is evidence that the Newman Dredging Company, a parent company of the defendant, was the National winner of the 1997 Case Earth Awards which recognise innovation and best practice in the field of environmental management in civil construction works. The defendant has employed as its manager a person with industry experience in both sand dredging and horticulture. The defendant has encouraged bio-diversity at the subject site by the release of native fish species into the pond and the planting and encouraging of growth along the shoreline for habitat for bird life. I also understand that tree planting and batter stabilisation works have been carried out. The defendant has no prior convictions for environmental offences.

The general manager of the defendant has said that he did not foresee the conditions which led to the incident which had occurred. I accept his evidence, that when the incident occurred the prevailing winds appear to have forced the fuel towards the southern area of the pond where it remained hidden from view in the reeds there until the wind changed approximately one week later. That is to say, I am satisfied that on Monday 20 July there was no sign of any diesel in the pond.

In addition to the revised refuelling arrangements, the defendant says that personnel on the site have now been instructed both verbally an in writing that the outlet valve on the fuel tank onshore is to remain closed and locked at all times. The procedure for refuelling pending the implementation of the refuelling barge procedure is that the operator of the dredge is required to go onshore, open the valve, carry out the refuelling, close the valve and then resume dredging operations. I accept that this procedure will eliminate the prospect of further occurrences of this nature.

I am required to take into consideration a number of matters for the purpose of considering what is an appropriate penalty. Firstly, there is a need for general deterrence. I am required to consider in addition the matters set out in s 9 of the Environmental Offences and Penalties Act 1989. The first of those matters is the extent of the harm caused or likely to be caused to the environment by the commission of the offence. I am satisfied that there is no evidence of actual harm. There was potential for harm but, as appears from the expert evidence adduced by the defendant, that potential for harm was in this instance slight. There is no evidence before me of the quantity of diesel oil that entered the drain or the Tweed River. I am prepared to accept, however, that the quantity was minimal in view of the absence of any actual harm. 16. I am next required to take into consideration the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused. The general manager has said that as far as he was concerned it could not have been foreseen. I have referred to the preventive measures that have now been put in place and these suggest that, had they been in place a the relevant time, the incident could not have occurred.

17. There are, of course, two principal reasons why this particular incident occurred. They are firstly that the coupling on the fuel line broke and secondly, that the outlet valve on the onshore fuel tank had been left open. It may be the case that the case that the fuel line breaking may not have been foreseeable; but it would, in my opinion, have been sound practice for the outlet valve at the onshore fuel tank to have been closed, particularly over the weekend when no operations were taking place. I think the possibility of a spill of some kind was foreseeable if the fuel tank valve was left open. If anyone is to blame for this incident it was probably the acting site supervisor who, in my opinion, should have ensured that the valve at the outlet to the onshore fuel tank was closed once dredging operations had ceased for the weekend.

18. Next I have to consider the extent to which the person who committed the offence had control over the causes which gave rise to the offence. The defendant was conducting the operations and its employee, the acting site supervisor, in my opinion had direct control over those operations and hence over the cause which gave rise to the offence.

19. I also take into account some other factors. I take into account the good environmental record of the defendant. I take into account the fact that the defendant immediately implemented a clean-up which it appears was successful in avoiding any actual environmental harm. I also take into account, pursuant to s 439 of the Crimes Act 1900 the fact that the defendant has pleaded guilty, thereby both admitting the elements of the offence, its contrition and also avoiding the time and expense of a defended hearing.

20. Having regard to all of these factors, which are only a summary of the somewhat detailed evidence which has been placed before me, I am of the opinion that a monetary penalty is appropriate but one which is at the lower end of the scale. I therefore make the following orders:

1. The defendant is convicted of the offence as charged.

2. The defendant must pay a penalty in the sum of $5,000.

3. The defendant must pay the prosecutor's costs in the agreed sum of $4,500.

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