The Resin Spill
24Sometime during the nightshift on 29 November 2009, the pump at the premises was activated causing approximately 6000 litres of resin to be pumped from the storage tanks to the mixing tank, which subsequently overflowed. The resin that overflowed from the mixing tank spilt onto the floor. Some of the spilt resin flowed into the internal stormwater system and then flowed offsite into the connection pit and into the external stormwater system.
25The nightshift commenced at 10.00pm and ended at 6.00am on 30 November 2009. Because the nightshift commenced on a Sunday evening, only the drying procedures were in operation at the plant. As a consequence, only three dryer operators were on the premises. The dryer is located approximately 10-15 m away from the mixing tank and none of the employees that night had any reason to be situated anywhere near the switches used to turn on the pump that transferred resin from the storage tanks to the mixing tank.
26At the time of the spill the fencing around the perimeter of the premises, approximately 7 feet in height, was locked. However, the exit and entrance doors, including the entrance door adjacent to one of the pump switches, were unlocked to permit employees to enter and leave the building.
27At the start of the shift that night the three employees passed by the mixing tank and did not notice anything unusual. It was not until 12.30am on 30 November 2009 that one of the employees, Mr William Thomas, noticed a slippery and sticky liquid on the floor in the vicinity of the mixing tank. Mr Thomas then observed that the mixing tank was overflowing and switched the pump off. Mr Thomas telephoned Big River's production manager, Mr Argus, who instructed the employees to place sawdust over the resin to prevent it from spreading.
28Mr Argus arrived very soon after the telephone call and inspected the areas around the spill that were accessible, but did not inspect the outside of the premises or the nearby stormwater connection pit. Mr Argus formed the view that the resin had been contained within the premises, and therefore, did not contact any of the regulatory authorities. A further clean-up of the resin inside the premises occurred. Mr Argus left the premises at 2.15am and the day shift leader, Mr Stephen McGill, was informed of the incident when he arrived at about 5.30am.
29At approximately 6.00am Mr McGill left the premises and drove down Elizabeth Avenue to inspect the stormwater pit. It was at this stage that he became aware that the resin had entered the offsite stormwater system. Mr McGill returned to the premises and called Mr Argus who returned at about 7.30 am. The general manager, Mr De Marco, was then informed. Mr De Marco immediately contacted the Department of Environment, Climate Change and Water ("DECCW") and Wagga Wagga City Council ("the council"), and told them of the incident.
30It was Mr McGill's estimate that approximately 6000 litres of resin had been spilt.
31At about 9.00am personnel from the New South Wales Fire Brigade, Hazmat and the Rural Fire Services arrived and commenced clean-up operations. Council officers assisted, together with Big River staff.
32At sometime prior to 11.30am on 30 November 2009, a licensed electrician attended the premises of Big River and examined the relevant electrical devices, including the switches and the pump. He confirmed that the pollution incident had not been caused by an electrical fault.
33Later that day, DECCW officers inspected the wetland and observed that the resin was present in an area of approximately 1.7 ha in the north-eastern corner of the dam on Brunslea. There were approximately 140 stud-cattle in a paddock on Brunslea to the south-west of the wetland. It was the only paddock on Brunslea with good feed and permanent water. As a consequence, the cattle were moved to another paddock to prevent them from been exposed to the resin. As there was no feed or water in this paddock, the cattle had to be fed and watered by hand for approximately one month after the spill at an estimated additional cost to the owners of Brunslea of $1,600. While inspecting the wetland, one of the officers heard frogs and observed frogspawn in an area where the resin was present. The officers observed that the resin was spreading throughout the wetland.
34On 2 December 2009, DECCW officers again attended the premises and the wetlands and noticed that the resin could still be observed in the wetlands.
35In the meantime, Big River conducted an internal investigation into the cause of the pollution incident. In a report dated 3 December 2009, it concluded that there had been a deliberate activation of the pump. However, all of the three employees present on the premises had, at all times from approximately 11.30pm to 12.00am, been fixing a blockage that had occurred in the dryer, and therefore, had been within sight of each other. Because Big River estimated that the pump had been running for approximately 58 minutes and 45 seconds. This meant that the pump had turned on at about the same time the dryer blockage occurred. Accordingly, because the three employees were always within sight of each other, it was the belief of Big River at that stage that none of the employees had activated the pump. Rather, an act of external vandalism or sabotage was suspected.
36Subsequently, however, this view changed. It is now the opinion of Big River, as expressed by Mr Bindon and Mr De Marco in their affidavits, that more likely than not it was an employee who deliberately turned on the pump. This belief is held because the incident took place late on a Sunday night, it was raining, the gates were locked and somebody had to know how to switch on the pump. Both witnesses acknowledge, however, that there is no direct evidence that an employee is responsible, although they believe that this is the most likely explanation. The prosector did not seek to challenge this evidence.
37Because it has a bearing upon the penalty to be imposed upon Big River, it is necessary that I make a finding as to the cause of the incident based on the evidence before the Court (Environmental Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120 at [26]). I find on the balance of probabilities (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] and Leach v R [2007] HCA 3; (2007) 230 CLR 1 at [41]) that the pollution incident was caused, at least in part, for the reasons given by Big River, namely, the malicious and deliberate act of one of its employees on the premises on the nightshift of 29-30 November 2009.
38On 8 December 2009, DECCW officers again attended the wetland. The officers observed residual contamination present in the standing water of the wetland. Dr Jennifer Spencer, an environmental scientist with DECCW, who was present during the inspection, made the following observations in relation to the flora in the wetland:
(a) a Long-necked Turtle (Chelodina longicollis) and some live Mosquito Fish (Gambusia holbrooki) were swimming in a channel in the wetland;
(b) there were no other fish species or tadpoles in the wetland and the remains of a Freshwater Crayfish (Cherax destructor ) were found;
(c) there were no frogs or frogspawn; and
(d) there were several waterbird species including Straw-necked Ibis (Threskiornis spinicollis), White-faced Herons, (Egretta novaehollandiae), Masked Lapwings (Vanellus miles), Australian Wood Ducks (henonetta jubata), Yellow-billed Spoonbills (Platalea flavipes) and several Clamorous Reed-Warblers (Acrocephalus stentoreus).