Environment Protection Authority v Bituminous Products Pty Ltd

LEGISLATION CITED: Clean Waters Act 1970 s 16

EX TEMPORE JUDGMENT DATE: 09/23/1999

PROSECUTOR: Mr M Kelly (Solicitor)

SOLICITORS: Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT: Mr B J Preston (Barrister)

SOLICITORS: Leigh Virtue and Associates

IN THE LAND AND Matter No. 50140 of 1998 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 23 September 1999

Environment Protection Authority Prosecutor v Bituminous Products Pty Ltd Defendant

HIS HONOUR: In this matter the defendant is charged that on 30 November 1997 at its premises in Revesby it committed an offence against the Environmental Offences and Penalties Act , as it then was, by actually polluting waters contrary to s 16(1) of the Clean Waters Act.

The Court has been assisted by the presentation of a statement of agreed facts. The history of the matter appears to start in late July 1997 when the defendant engaged a contractor to carry out certain plumbing work associated with the installation of two concrete stormwater run-off pits at its premises.

The work was completed by the plumber in the latter part of July. An invoice was rendered for the work during the first week of August 1997 and the invoice was paid on 2 September 1997.

Following completion of the installation, conversations took place between employees of the defendant and the plumbing contractor in relation to responsibility for the sealing of the gaps between sections of the concrete stormwater pits installed by placing one section on top of the other.

Although there may be some discrepancy between the defendant's version of the conversations which took place and those deposed to by the prosecutor's witnesses, what is obvious is that shortly after the pits were installed, the defendant company through its employees and, indeed, its managing director, was aware that the sealing had not been carried out at all. In a sense it does not matter whose responsibility it was.

I accept that the company may have suggested it would carry out the work itself and that subsequently it transpired that the sealant the company had on hand for that purpose was not considered to be suitable in the circumstances.

Ultimately I accept that the managing director took steps to make contact with the plumbing contractor. These were unsuccessful. All of that in the context of these proceedings does not really matter because the company was aware from at least the first days of August 1997 that the pits had not been sealed and that knowledge continued until the evening of 30 November 1997 when a spill occurred through the gaps that had been left unsealed within the concrete pits.

The Court has had it explained that the business of the company is to take waste sump oil and convert it or recycle it so that the product can be utilised in bitumen for road surfacing. In the course of the recycling or converting process oil is transferred from one container to another.

On the night in question an employee was transferring oil from one tank to another. There appears to be no dispute that the individual employee responsible for carrying out that process did not comply with specific instructions given to him in that respect. Ultimately, this employee was dismissed. One of the reasons given was a reference to this particular incident although there were other matters listed in the formal notice given to him.

The facts show that not only did the employee leave his post but there was a failure to inspect the tank prior to the transfer to determine whether or not it was full or empty. A second person who, as a matter of procedure, would normally be at that location while the operation was being carried out, was absent.

The Court accepts that the spill which resulted in the entry of oil into a stormwater channel adjacent to the premises was caused firstly by the breach of the procedural instructions given to employees whereby a tank overflowed and sump oil then spilled into a stormwater pit. Secondly, the stormwater pit had not been adequately sealed with the consequence that the oil escaped from the pit and ultimately found its way through the ground water system into a stormwater canal.

The actual environmental harm which occurred can be adequately described as minimal. The spill was completely contained within the stormwater canal. No oil found its way into any natural water course.

However, the stormwater canal flowed into the natural water system and ultimately I understand the water within that system can find its way through creeks into the Georges River.

Testing showed that downstream of the discharge point oil homogenate was present. It is a substance that is extremely toxic. It had an effect on water fleas used in the testing process to the extent at least that they were immobilised.

However, it must be said that the toxicity test results also show that the upstream water sample was toxic to water fleas as well. The Court is entitled to conclude that the discharge occurred into a water system that was already polluted. There can be no suggestion that the waters directly affected are pristine. However, that is not to discount the environmental consequence of further contributing to the pollution of the water system.

Evidence shows that further downstream ducks and some fish (although Mr Preston suggests the fish themselves are on the most wanted list) were present. Their presence gives an indication that the downstream waters were capable of supporting some aquatic life.

Although no actual harm may have been caused, or at least the actual harm was minimal, there was nevertheless some potential for harm to be caused by any discharge from the premises.

So far as the specific matters raised by s 9 of the Environmental Planning and Assessment Act, which are still applicable to this case, it is accepted that there were practical measures available to the defendant which may have been taken to prevent what occurred.

I accept what Mr Preston puts to me, that the company is entitled to rely on its employees but the matter, of course, does not end there. In this case there is also the question of the failure to ensure that the stormwater pit was adequately sealed and it was clearly a matter for the defendant to take whatever practical measures were available to it way back in August to prevent any escape from that pit.

It is reasonable to accept that the company should have foreseen that there was a prospect of escape from the pit. I do not necessarily condemn the company on the basis of the significant steps that it subsequently has taken to guard against a recurrence as being an indication that it should have put those measures in place as a consequence of foreseeing the event. To a very large extent what has now been put in place is with the benefit of hindsight. It also may be seen as a reflection of this company's desire to take whatever steps are available to it to prevent a recurrence.

I think that deals generally with the submissions that have been put on the part of the prosecutor in regard to the matters which arise under s 9 of the Environmental Offences and Penalties Act and the balancing submission by Mr Preston, except to the extent of subpara (d) of s 9, which is not a matter that is in dispute, because clearly the defendant had control over the premises and hence the capacity to control the cause which gave rise to the offence.

I accept the submission put to me by Mr Preston that the defendant has shown contrition. That is demonstrated by an affidavit by John Martin Bradley, the managing director of the company, which has been read to the Court. His statements in that respect have not been challenged. They present as being a genuine concern that this company, which has heretofore had a proud record over some 28 years in regard to environmental concerns, has been found wanting on this particular occasion.

He expresses regret and takes little solace in the minor nature of the spill and the extremely limited environmental consequences because of the company's longstanding commitment to ensuring the best practice in all of the defendant's operations over many years. In that respect it is, indeed, a regrettable situation for a company with a record that this company has. The company is obviously involved in a messy business. It is directed to a very large extent for the benefit of the community. Although obviously for profit sump oil, which otherwise would be difficult to dispose of, is recycled and reused.

Significantly the company was let down by its own employees. However I also hold the company to account for failing to seal the pit or causing it to be sealed when it had the knowledge over a period of months that had not occurred.

I take into account the plea of guilty. Mr Kelly makes a point that the plea of guilty was not entered immediately. I note that the first return of the summons was on 5 February. A plea of not guilty was originally entered on 30 April. On that day the prosecutor was required to file further affidavits or statements of evidence by 28 May. That evidence was on by the further callover on 3 June. At the next callover the defendant had obviously had the opportunity to take whatever advice was available to it in the light of the whole of the evidence presented by the prosecutor and thereupon entered a plea of guilty.

The defendant must have the benefit of having entered the plea of guilty prior to the actual hearing. It also has the benefit of its cooperation in facilitating a statement of agreed facts and hence shortening these proceedings which have been confined to the question of penalty.

There can be no question, nor does the prosecutor suggest there can be, that the defendant cooperated with the Environment Protection Authority in regard to its inquiries. Its response to the spill was exemplary and proactive. It took immediate steps to engage in a clean up operation, notified the Fire Brigade, the appropriate authority with the equipment to assist in the minimisation of the spread of the spill and readily met all of the costs incurred by others.

It is clear from the evidence of Mr Bradley that the company has spent a lot of money, and no doubt time and effort, in operating a number of processing systems which specifically are designed to provide positive benefits for the environment. Mr Bradley has listed those in his affidavit. Not inconsiderable sums have been incurred in that respect.

Beyond the matter that I mentioned regarding the failure to attend to the sealing of the stormwater pit, there are no aggravating factors which the Court needs to take into account in respect of this particular matter.

It is a first offence and the company has been operating since 1969. The company has agreed to pay the Environment Protection Authority's legal costs.

I have been referred to the decision of Stein J in EPA v Wyong Shire Council (unreported 18 September 1996 No 50014 of 1996). I have read his Honour's reasons for judgment in that case and in particular his reference to the mitigating factors which are listed at pp 6 and 7 of that judgment.

In that case 17,000 litres of oil and water was removed from the culvert and the holding pit. I am told in this case that the volume of oil and water recovered was significantly in excess of that from recollection but there is very little to be gained by making that type of numerical or empirical comparison. It is, as Mr Preston says, difficult to draw on the circumstances of one case where a plea of guilty has been entered for the purpose of fixing on a particular penalty.

I propose to assess the penalty in this case solely on the matters I have referred to, namely, the extent of actual environmental harm, the measures that the company had in place in terms of its operations to prevent spills, the responsibility shown by the company in the past in regard to its obligations to protect the environment, its proactive responses to the spill, the nature of the business in which the company is involved and its benefits to the community generally.

It is also significant to take into account the genuine contrition and regret expressed on behalf of the company, not only because it means that there has been a loss of reputation but also because this company, according to what is before me, has shown a responsible attitude heretofore.

In all of the circumstances I agree that the penalty should be set at the lower end of the scale.

The company is convicted. I impose a fine in the sum of $5,000.

I order that the defendant pay the prosecutor's costs in the sum of $8,000.

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