Environment Protection Authority v Austar Coal Mine Pty Ltd - [2011] NSWLEC 252 - NSWLEC 2011 case summary — Zoe

NSWNSWLEC

Environment Protection Authority v Austar Coal Mine Pty Ltd

[2011] NSWLEC 252

Land and Environment Court (NSW)|2011-12-12|Before: Preston CJ

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2011-12-12

Before

Preston CJ

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

Judgment 1Austar Coal Mine Pty Ltd ("Austar") has pleaded guilty to having committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 of polluting waters. A sentence hearing has been held. The facts relevant in sentencing are found in a statement of agreed facts and an affidavit of Mr McLean, the General Manager of Austar. 2The Court's task is now to determine and to impose an appropriate sentence for the offence.

[2]

The events of the offence 3The offence involved an unknown amount of water containing two pollutants, a detergent and effluent from a bathhouse, escaping on 29 July 2010 into a creek called Bellbird Creek. The pollutants travelled about two kilometres downstream in Bellbird Creek. The incident was caused in the following way. 4Austar operates an underground coalmine at the Austar Coal Mine, Wollombi Road, Pelton. A coal handling and preparation plant is located at the mine site. The plant is used for processing and loading coal. The plant contains a bathhouse which includes showers, toilets and hand washing basins. At the time of the incident a detergent called Castrol Hair and Body Wash was used by Austar employees at the bathhouse. At the time of the incident there were leaking soap tap dispensers in the bathhouse which had not been noticed prior to the incident. 5The bathhouse is serviced by an on-site septic system. At the time of the incident this system was a standard anaerobic system consisting of a septic tank and a transpiration area. Sewage and wastewater generated at the bathhouse was placed into the septic tank. When sewage and wastewater passed through the septic tank, heavier solids would sink to the bottom and undergo bacterial digestion. The remaining liquid, called effluent, would then be applied to the transpiration area which is a grassed area where the effluent is absorbed by the soil. Over time the effluent evaporates and natural soil processes break down any pathogens or nutrients contained in the effluent. 6Bellbird Creek is an intermittent creek that runs adjacent to the plant. Bellbird Creek has a piped section underneath the transpiration area which is adjacent to the plant. After the piped section, Bellbird Creek runs downstream for approximately two kilometres to a dam known as Doyle Street Dam located at the boundary of the mine site. From there, Bellbird Creek passes the township of Bellbird and the city of Cessnock before joining Black Creek which subsequently flows to the Hunter River. 7On the day of the incident, 29 July 2010, effluent that had been applied to the transpiration area seeped into the piped section of Bellbird Creek underneath the transpiration area. A rainfall event before the incident had caused Bellbird Creek to flow through the piped section. The effluent that had seeped into the piped section was washed downstream by the water flowing in Bellbird Creek. The effluent was washed down as far as the Doyle Street Dam. 8The detergent in the effluent caused white foam along sections of Bellbird Creek for approximately two kilometres downstream on 29 and 30 July 2010. The effluent also caused a localised odour in the area of Bellbird Creek near the point of discharge. Water samples along the affected length of Bellbird Creek indicated elevated levels of methylene blue active substances (from the Castrol Hair and Body Wash used in the bathhouse), faecal coliforms (from the toilets in the bathhouse), and nutrients such as nitrogen and phosphorus (from both sources).

[3]

Events after the offence 9The incident was first noticed by Austar employees arriving at work at 6.00am on 29 July 2010. They observed foam in parts of Bellbird Creek located on the mine site. They reported it to the plant maintenance planner, Mr Taylor, who inspected the creek and reported to the plant manager, Mr Cross, who in turn reported it to Austar's environmental coordinator, Mr Mulhearn. From about 7.30am onwards, Mr Mulhearn conducted an inspection at the point of discharge adjacent to the transpiration area and upstream and downstream of the point of discharge. At 12.00pm, Mr Mulhearn collected water samples from upstream, the point of discharge and at the Doyle Street Dam. 10Meanwhile, the Office of Environment and Heritage ("OEH") had received a complaint on its Environment Line, about 10.25am. At 1.15pm, an OEH officer, Mr Clair, spoke to Mr Mulhearn and was advised that an incident had occurred and investigations were underway to determine the cause of the incident. At 2.35pm, Mr Mulhearn formally reported the incident to OEH's Environment Line. 11On 30 July 2010, OEH officers conducted an inspection of the premises and Bellbird Creek and took samples and photographs. 12Austar's investigations, on 29 July and subsequent days, identified the cause of the incident as being seepage of effluent from the transpiration area into the piped section of Bellbird Creek. Austar took a number of actions in response to the incident: (a)Following the incident, Austar used Doyle Street Dam to intercept water in Bellbird Creek and ensure that contamination did not leave the mine site. Water that was intercepted by the Doyle Street Dam was pumped to another dam on the mine site. (b)Following the incident, Austar used water from its reverse osmosis plant to flush the impacted section of Bellbird Creek down to Doyle Street Dam. The cost of these controls was $9,000. (c)From 5 August 2010, all shower and wastewater from the bathhouse is now pumped into an above ground tank. (d)On 11 October 2010, Austar decommissioned the plant's on-site septic system and transpiration area, and installed a new aerated sewage management system. Austar have entered a maintenance contract for quarterly servicing of the new system. As a result, Austar no longer applies effluent to the transpiration area located above the piped section of Bellbird Creek. The total cost of replacing the septic tank was $25,000. (e)Austar have changed the bathhouse body wash product used by employees in the bathhouse from Castrol Hair and Body Wash to a new product called "Gent-L", which is licenced by Good Environmental Choice Australia Ltd to use the Environmental Choice Australia Ecolabel.

[6]

Objective harmfulness of offence - environmental harm 16The extent of the harm caused or likely to be caused to the environment by commission of the offence is relevant to the objective gravity of the offence: s 241(1)(a) of the Protection of the Environment Operations Act and s 21A(2)(g) of the Crimes (Sentencing Procedure) Act . 17In this case, the pollution caused actual environmental harm. An unknown quantity of effluent entered Bellbird Creek on 29 July 2010. However, Austar estimates that up to 3,300 litres of water are treated by the on-site septic system per day. A lesser quantity than this would have ended up as effluent seeping from the transpiration area into the piped section of Bellbird Creek. 18The effluent that did escape caused elevated levels of methylene blue active substances, nutrients and faecal coliforms in the two kilometre length of the creek downstream of the plant to the Doyle Street Dam. The concentration of methylene blue active substances was at a level toxic to aquatic biota, and the concentration of nutrients (phosphorus and nitrogen) were at a level above the default figure value set out in the Australian and New Zealand Environment and Conservation Council, Australian Water Quality Guidelines for Fresh and Marine Water (2000) . The presence of detergents in the effluent caused white foam in sections along a length of two kilometres of Bellbird Creek. There was localised odour at the point of discharge and further downstream on 29 and 30 July 2010. 19By reason of the concentrations of methylene blue active substances and nutrients, the parties agree that the incident is likely to have adversely impacted any aquatic biota in Bellbird Creek at the time from the point of discharge to Doyle Street Dam (a distance of about two kilometres). However, there were no reports of dead or dying biota observed in or around Bellbird Creek on 29 and 30 July 2010. 20The parties also agree that the incident had the potential to cause harm to the environment in that the discharge of the pollutants into Bellbird Creek had the potential to transmit methylene blue active substances, nutrients and faecal coliforms further downstream in Bellbird Creek and off the Austar Coal Mine site if water levels in the creek had been higher. 21The actions taken by Austar to contain the pollution and to flush the creek had the effect of mitigating environmental harm. 22I find the actual likely harm to the environment to be low.

[7]

Foreseeability of risk of harm 23The extent to which the defendant could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence is a relevant objective circumstance: s 241(1)(c) of the Protection of the Environment Operations Act . 24The risk that effluent applied to the transpiration area might enter Bellbird Creek was reasonably foreseeable. The piped section of Bellbird Creek was directly underneath the transpiration area. 25The age of the on-site septic system is unknown. However, Austar estimated it was first commissioned in about the 1920s. The age of the piped section of Bellbird Creek is also unknown but it may be reasonable to infer that it was undertaken at a similar time to the commission of the on-site septic system which included the transpiration area above the piped section of Bellbird Creek. The older age of the on-site septic system and the piped section at Bellbird Creek underneath the transpiration area increases the risk of defects in those systems and structures. 26Austar did not have a formal process for inspection, maintenance or monitoring of the bathhouse, on-site septic system or transpiration area. Austar had not carried out any environmental audit or study in relation to the bathhouse, on-site septic system or transpiration area. An environmental risk assessment of the plant's surface water management system in 2005 did not include an assessment of the bathhouse, on-site septic system or transpiration area. There is no evidence that the integrity of the piped section of Bellbird Creek underneath the transpiration area was ever inspected, maintained or monitored or subject to a risk assessment. As a consequence, there had been no formal process whereby any defects in the on-site septic system and transpiration area, and the piped section of Bellbird Creek, could have been detected and remedied. 27In these circumstances, there was a foreseeable risk that a hydraulic connection could have formed between the transpiration area and the piped section of Bellbird Creek and hence that any effluent applied to the transpiration area could seep into the piped section and thereby pollute waters in the creek.

[17]

Type of penalty that should be imposed 48Both the prosecutor and Austar submit that this is a case where it is appropriate for the Court to make an order under s 250(1)(e) of the Protection of the Environment Operations Act , coupled with a publication order under s 250(1)(a), in lieu of a fine. The orders that are set out in Pt 8.3 of the Protection of the Environment Operations Act , which include the orders under s 250, may be made by the Court regardless of whether any penalty is imposed or other action taken in relation to the offence: see s 244(2) and (3) Protection of the Environment Operations Act . 49The parties have not agreed, however, on the particular project. The prosecutor has proposed the Mount View Corridor Threatened Species Habitat Rehabilitation Project ("the Mount View Project") to be undertaken by the Hunter-Central Rivers Catchment Management Authority ("HCRCMA"). Mr Callaghan Cotter, the Catchment Coordinator Lower Hunter, at the HCRCMA has provided information on the Mount View Project. 50The Mount View locality has been identified as a strategic conservation corridor in the NSW OEH Cessnock Biodiversity Management Plan. At a local scale, the area contains remnants of the Lower Hunter Valley Dry Rainforest, a vulnerable ecological community listed under the Threatened Species Conservation Act 1995, and potentially a climber, Cynanchum elegans , an endangered species listed under the Threatened Species Conservation Act and the Environment Protection and Biodiversity Conservation Act 1999 (Cth). 51The Mount View Project proposes to work with landholders to restore linkages in the Mount View Conservation Corridor and to rehabilitate Lower Hunter Valley Dry Rainforest remnants on their properties. HCRCMA believes that engaging landholders to undertake conservation works that improve the health and condition of native vegetation in their property will:

provide opportunity to restore landscape connectivity by linking large patches of remnant bushland adjacent to Cessnock and Kurri Kurri to Cedar Creek;
facilitate wildlife movement;
restore key habitat for threatened plant species and vegetation communities; and
improve biodiversity values of local terrestrial systems. 52HCRCMA has proposed onground works including planting of local provenance native tube-stock, installation of stockproof fencing to protect remnant vegetation and revegetated areas, and weed control. Ongoing control of environmental weeds and fire hazard will be required as a result of stock exclusion. 53HCRCMA states that, as a statutory authority, it has rigorous accounting systems in place and is able to ensure that all funds received from all sources are able to be readily tracked and accounted for. Financial reporting can be provided together with project activity reporting. As a statutory authority, HCRCMA must comply with all facets of public sector accounting and reporting, including annual audits by the NSW Audit Office covering compliance and accountability of expenditure of public funds. 54HCRCMA has confirmed that it is in a position to receive any funds Austar is ordered to pay and that it has the capacity to invest them in the project to improve biodiversity and connectivity in the Mount View locality. 55Austar has proposed the Bellbird Creek Bush Regeneration Project to be undertaken by Conservation Volunteers Australia ("CVA"). CVA has provided information on the Bellbird Creek Bush Regeneration Project in a project quotation. 56The Bellbird Creek Bush Regeneration Project would use a newly trained, indigenous bush regeneration team to identify and remove environmental weeds, primarily lantana, from either side of the two kilometre length of Bellbird Creek affected by the commission of the offence. Weed removal would be undertaken using both manual and chemical methods. CVA would undertake followup of weeded areas at threemonthly intervals. 57Other than the benefit of removal of environmental weeds, no other information is available as to the environmental benefits likely to be derived by the project. There is no assessment of the conservation value of the targeted two kilometre length of Bellbird Creek. This section of the creek is wholly within the Austar Coal Mine site and under the control of Austar. 58Mr McLean states that Austar is prepared to pay $66,200 to CVA for the first phase of the Bellbird Creek Bush Regeneration Project. CVA has indicated to Austar that it is prepared to undertake that work if it is paid by Austar. CVA said that, in consultation with Austar, media announcements would be formatted and agreed and released prior to each rotation of activities to raise awareness of the project within the community. 59No information was provided on CVA's systems of accountability, auditing or reporting on the receipt or expenditure of funds or on the project activity. 60I find HCRCMA's Mount View Project to be superior to CVA's Bellbird Creek Bush Regeneration Project, including in terms of the greater and more certain environmental outcomes; the greater and more certain accountability of HCRCMA; and the independence from Austar (the project not being on the Austar Coal Mine site or involving media releases agreed with Austar). The disadvantage that the environmental outcomes from HCRCMA's Mount View Project will be delivered slightly further removed from Bellbird Creek, the environment affected by the offence, than would be the case under CVA's Bellbird Creek Bush Regeneration Project, is not sufficient in the circumstances to outweigh the benefits of HCRCMA's Mount View Project. 61The order under s 250(1)(e) should be to pay the amount of $75,000 which I have determined to be the appropriate penalty to the HCRCMA for the Mount View Corridor Threatened Species Habitat Rehabilitation Project. 62Both the prosecutor and Austar also submit that a publication order should be made under s 250(1)(a) but disagree as to the terms of the public notice. The disagreement relates to the inclusion of statements as to the cause and consequences of the incident: the prosecutor seeking inclusion but Austar seeking exclusion of statements to that effect. 63I consider it is appropriate to include brief statements concerning the cause and consequences of the incident. In light of my findings of fact as to the cause and consequences of the incident, I would adjust the language proposed by the prosecutor. I find that the terms of the public notice that should be given should be as follows: " Austar Coal Mine Pty Ltd convicted for polluting waters near Pelton Austar Coal Mine Pty Ltd has been convicted by the Land and Environment Court of NSW of having committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 of having polluted waters. The offence involved an amount of water containing detergent and effluent from a bathhouse facility at the Austar Coal Mine, which Austar had applied to a grassed, transpiration area, seeping into a piped section of Bellbird Creek near Pelton. The incident caused white foam and elevated levels of detergent, nutrients and faecal matter along approximately 2km of Bellbird Creek. Austar was prosecuted by the Environment Protection Authority (the EPA). Austar cooperated with the EPA during the course of its investigation and pleaded guilty to the charge. The Land and Environment Court convicted Austar for the offence and ordered Austar to pay $75,000 to the Hunter-Central Rivers Catchment Management Authority for a rehabilitation project in the Mount View Conservation Corridor instead of a fine; to pay the EPA's costs and expenses of investigation and legal costs in a total amount of approximately $42,000; and to publish this notice. This notice was placed by order of the Land and Environment Court of NSW and was paid for by Austar." 64The public notice should be placed in two publications, the Newcastle Herald newspaper and the Australian Mining Monthly magazine, within the first ten pages of each publication at a quarter of a page in size. 65In addition to these orders under s 250(1)(a) and (e), I will make an order under s 248(1) of the Protection of the Environment Operations Act that Austar pay the EPA's costs and expenses of investigation of the offence in the sum of $17,269.13 and an order that Austar pay the EPA's legal costs of $25,000.