Environment Protection Authority v Boral Australian Gypsum Limited

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Hanson Precast Pty Limited [2008] NSWLEC 285 Environment Protection Authority v Nalco Pty Ltd [2007] NSWLEC 831 CASES CITED: Hoare v R (1989) 167 CLR 348 Markarian v The Queen (2005) 228 CLR 357 R v Carroll [2008] NSWCCA 218 R v Sharma (2002) 54 NSWLR 300 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Veen v. The Queen (No. 2) (1988) 164 CLR 465

PROSECUTOR Mr P Barley (solicitor) SOLICITORS LEGAL REPRESENTATIVES: Department of Environment and Climate Change DEFENDANT Dr N Brunton (solicitor) SOLICITORS Henry Davis York

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50058 of 2008 Evironmental Protection Authority v Boral Australian Gypsum Limited

EX TEMPORE JUDGMENT 1 Her Honour: The Defendant is charged with a water pollution offence under s 120 of the Protection of the Environment Operations Act 1997 (the POEO Act) at Thackeray Street, Camellia (the premises) on 25 to 27 August 2007. A liquid chemical known as Gardisperse flowed from the premises along an unnamed waterway to the Parramatta River. The spill of liquid occurred when it was transferred from a large storage tank to a small batching tank and an electronic sensor failed.

2 The Defendant has pleaded guilty and has therefore admitted the essential elements of this offence. The offence is one of strict liability so that mens rea is not an element of the offence. The Defendant must be sentenced. 3 The maximum penalty applicable to offences under s 120(1) of the POEO Act is $1 million for a corporation. The penalty for this offence was increased to $1 million from $250,000 in May 2006. As submitted by the Prosecutor offences must continue to be assessed as to their level of criminality so that the relative seriousness is determined in relation to the worst case for which the maximum penalty is provided, see Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312. 4 The POEO Act is directed to the protection, restoration and enhancement of the environment of NSW including by reducing harm to the environment through pollution prevention (s 3). Statement of agreed facts (SOAF) 5 The parties usefully agreed a statement of agreed facts, a summary of which follows. The Defendant owns and operates a plasterboard and cornice production plant at the premises. It is a wholly owned subsidiary of Boral Limited (Boral). It holds an environment protection licence under the POEO Act which requires compliance with s 120 of the POEO Act. It operates a plastermill and board plant and a cornice plant. Gardisperse is used in the cement and plaster industries to reduce the amount of water required to produce cement and plaster slurry.

6 The cornice plant is approximately 30m from the Parramatta River. Onsite stormwater drains and pits near that plant flow to an offsite stormwater drain which runs to a culvert under the adjacent railway line and into a small unnamed waterway. That unnamed waterway flows to the Parramatta River about 20-25m away. The Gardisperse storage tank is in the board plant and has a capacity of 28,000 litres. In the cornice plant there is a Gardisperse batching tank with 1,000 litre capacity. The storage tank supplies the batching tank by a computerised control system. Gardisperse is mixed with water in the batching tank by a ratio of 15 parts Gardisperse to 85 parts water. At the time of the offence the batching tank had a bunded area of 6,000 litre capacity.

7 An electronic level sensor probe on the batching tank determined the level of Gardisperse in the batching tank. At a certain low point the system pumped more Gardisperse into the batching tank. The sensor shut down the pump when a certain level was reached. There was no visual or audible high level alarm fitted to the batching tank.

8 On 25 August 2007 the probe failed at about 7.30am on the batching tank in the cornice plant so that the tank was registered as empty and refilling initiated for the next five hours. The probe did not register that the tank was full and so the pump was not stopped. The storage tank contained 13,000 litres of Gardisperse and was all pumped to the batching tank by 12.30am Sunday 26 August 2007. The batching tank overflowed into the bund. It is estimated that 6,400 litres of Gardisperse overflowed the bund and entered the onsite stormwater drains, pits and grates adjacent to the cornice plant. It is assumed it flowed through the offsite drains into the unamed waterway and then into the Parramatta River.

9 On Sunday 26 August 2007 an employee noticed the spill from the bund about 3pm. He alerted other staff and the switch stopping the flow was turned off manually. Spill containment measures were implemented. Management staff were then notified and they came to inspect the premises. One staff member looked at the Parramatta River and could see no discolouration. He could see discoloured pools in the unnamed waterway sometime after 4.45pm. It was thought that only about 100 litres of Gardisperse had escaped.

10 Further inspections were carried out on Monday 27 August 2007 by employees of the Defendant who saw brown pools along the unnamed waterway. Records of Gardisperse were checked and it became apparent that 6400 litres of Gardisperse and overflowed from the bund. The EPA was notified about 10.25am.

11 The causes of the incident were the failure of the sensor probe on the batching tank, insufficient capacity of the batching tank bund and deficiency in the program which allowed filling of the batching tank to occur automatically when the cornice plant was in production.

12 Six samples were taken on 27 August 2007 along the spill path and the concentrations were progressively diluted, consistent with the spill scenario.

13 The clean up took place on Sunday 26 August 2007 and included pumping Gardisperse from the batching tank to the storage tank. On Monday 27 August 2007 a Veolia truck was used to pump out material from the off-site stormwater drain and the unnamed waterway at the suggestion of EPA officers. Additional evidence 14 The Defendant read the affidavits of Mr Batstone, executive general manager of the Defendant, dated 4 February 2009, Mr Campbell, Manufacturing Manager at the premises since November 2004 and Distribution Manager since December 2008, dated 6 February 2009, and Mr Strauch, Boral's General Manager Environmental Services, dated 4 February 2009. 15 Mr Batstone's affidavit referred to the his actions when he became aware of the spill and its general circumstances. He sent a report on the spill the day after he was informed of the incident to the CEO of Boral, Mr Pearse. Mr Pearse is also a board member of Boral. Mr Batstone was aware of the decision of the general manager operations, Mr Evans, to undertake a strategic review across all the business units to ensure that no similar incident could occur elsewhere. He expresses the regret of the board of Boral and of the Defendant for the incident. He discusses Boral and the Defendant's commitment to responsible environmental management, including investment in training programs for staff and technology to reduce the risk of a spill. He also considered there had been a prompt and effective response to the incident. 16 Mr Batstone also gave oral evidence concerning his reporting the incident to Mr Pearse. He described Mr Pearse's expression of concern and regret that the offence had happened. He also expressed remorse on his own behalf and that he was embarrassed by the fact that the offence had occurred. 17 Mr Campbell's affidavit refers to the detailed environmental management procedures in place for the premises, including regular weekly inspections by trained staff to detect any potential environmental problems, the identification of these to management with follow up action identified and six monthly inspections by EPA staff with suggestions for improvement in relation to dust from trucks. Environmental training of employees is extensive and ongoing as detailed in the affidavit. The response to the incident as soon as it was known and the follow up action which was implemented immediately is set out including the replacement of the faulty sensor and increasing bunding size for the batching tank. These measures cost about $10,500. Other measures have been implemented at other plants at additional cost. The Defendant has implemented a number of measures at the site as detailed in the SOAF at par 76 and at other plants it owns since the offence as identified in the affidavit of Mr Batstone at annexure C. 18 Mr Strauch identified the approach of Boral generally to environmental management as overseen by him as General Manager Environmental Services. His affidavit attaches Boral's environmental policy and annual report showing the environmental reporting undertaken by Boral.

Relevant sentencing considerations 19 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) sets out the purposes of sentencing. Section 3A provides: The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 20 The CSP Act (in particular, Pt 3 Div 1) contains provisions relevant to sentencing procedures. Section 21A of the CSP Act sets out aggravating, mitigating and other factors to be taken into account in sentencing. 21 Section 21A of the CSP Act identifies numerous matters which a court must take into account when sentencing including those in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors. The sentence must reflect both the objective circumstances of the offence and the personal (subjective) circumstances of the defendant; Markarian v The Queen (2005) 228 CLR 357at [73]. 22 In identifying the relevant objective circumstances, s 241(1) of the POEO Act identifies the following factors to be taken into consideration in imposing a penalty for offences committed under that Act (so far as they are relevant):

(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence Mr Julli and Dr Drew prepared a joint report on the harm resulting from the incident. It is difficult to summarise that report and it states: 1. Gardisperse is not readily biodegradable. … 7. Due to the low biodegradability of Gardisperse, dilution in River water is required to eliminate the toxic potential of Gardisperse.

8. Gardisperse is not expected to bioaccululate in organisms.

9. Gardisperse has low to moderate acute toxicity to aquatic organisms.

10. Assuming: · some species that are present in Parramatta River have sensitivity to Gardisperse equal to the most sensitive laboratory species tested (the water flea C. dubia), · that the majority of Gardisperse that entered the off-site drain (6000 L of the 6400 L spilt) also entered the Parramatta River, · that the Gardisperse entered the River instantaneously (which it did not do), then the material would require to be instantaneously diluted into approximately 144 megalitres (ML) to avoid toxic effects. 144 ML is approximately the volume equivalent of 58 Olympic-sized swimming pools and would correspond to an approximate 500 metre section of the Parramatta River around the discharge point (100m wide and 3m deep).

11. Assuming: · some species in the Parramatta River have similar sensitivity to Gardisperse as does the estuarine amphipod laboratory species (M. plumulosa which might be present in the river). · that the majority of Gardisperse that entered the off-site drain (600 L of the 6400 L spilt) also entered the Parramata River, · that the Gardisperse entered the River instantaneously (which it did not do), then the material would require to be instantaneously diluted into approximately 7.2 ML to avoid toxic effects. 7.2 ML is approximately the volume equivalent of 3 Olympic-sized swimming pools and would correspond to an approximate 25 metre section of the Parramatta River around the discharge point (100m wide and 3m deep).
12. The above calculations are provided to give the court some indication of the required dilutions to avoid acute toxic effects from the discharged Gardisperse material, but the calculations should be considered worst case acute toxicity scenarios and are unlikely to represent actual acute impact zones in Parramatta River. This is due to: · the nature of entry of the material into the river over a number of hours which may allow more efficient dilution; · its density so that some of the material may have been concentrated in bottom waters rather than evenly mixed throughout river waters; · upstream and downstream water movements (due to tidal flow) which complicate mixing effect; · ferry and boat activities which provide mixing effects; · the actual amount of material which entered the River may have been less than the 6000 L assumed above; · the length of time of exposure of organisms to toxic concentrations of the Gardisperse material. This would depend on actual dilution dynamics which are unknown.

13. As some of the Gardisperse may have rapidly sunk to the river bed upon entering the River waters, the most likely initial impacts would be to fauna in close contact with sediments and those less mobile sensitive organisms contained within the relatively concentrated plume. Adult fish are unlikely to have been acutely affected due to their ability to swim away, while crustaceans (eg amphipods, crabs) are more likely to have been acutely affected in relatively small sections of the River around the discharge point.

14. The incident is unlikely to have caused a significant adverse effect on the River fauna outside the vicinity of the discharge point. It is not known if acute effects did occur in the area of the discharge and no actual harm (eg dead fish) was observed.

15. Based on the limited available toxicity data and the low biodegradability of Gardisperse, there is uncertainty regarding the prolonged or sublethal impact of the discharge on aquatic fauna. However, assuming adequate dilution rates in River water, we consider it unlikely there will be significant chronic (long term) impact due to the acute (short) timeframe of the incident.

23 The Prosecutor submitted that there was no evidence of actual harm However Gardisperse has a low to moderate acute toxicity and the most likely harm caused by the incident would have been to crustaceans and other small organisms in the concentrated plume around the discharge point into the Parramatta River. The most likely actual harm caused would have been to sediment dwelling organisms and plankton, which evidence is hard to obtain. Given the length of time between the spill and the inspection of the Parramatta River it was likely that the bulk of Gardisperse would have reached the river and sunk to the bottom or been diluted. There was potential for harm as identified by Mr Julli and Dr Drew.

24 The Defendant submitted that there was potential for harm as identified in the joint report.

Finding 25 A substantial amount of liquid (6,000 litres) which was not readily biodegradable and has low to moderate toxicity in the aquatic environment if not substantially diluted escaped from the Defendant's premises. Gardisperse requires active mixing to disperse in water, according to the experts' report. The samples taken more than a day after the incident suggest that the chemical was diluted as it moved towards and into the Parramatta River given the increasingly weaker concentrations found in the samples. As submitted by the Prosecutor the lack of evidence of actual harm does not mean there was none. Rather there is likely to have been harm to sediment dwelling organisms and plankton, evidence of which is difficult to obtain. This is in part related to the length of time between the escape of the chemical into the river and the discovery of that by the Defendant's employees many hours later as night was falling on Sunday 26 August 2007. 26 As identified in the joint report extracted above, there is clear potential for harm as defined in the dictionary to the POEO Act. That large dilution factor is required to reduce/remove the toxicity of the chemical suggests that there is a likelihood of significant harm to sediment dwelling organisms. The joint report identifies worst case scenarios in par 10 and 11 and sets out in par 12 various factors which could have potentially influenced the extent of mixing which may have occurred. Their conclusions are set out in par 13-15. 27 Gardisperse does not bioaccumulate in organisms and the two experts concluded in par 15 of the joint report that assuming adequate dilution rates of river water they considered it was unlikely there would be significant long term impact due to the short timeframe of the incident. The harm caused in this matter is reasonably serious although of short rather than longer duration. (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm Prosecutor's submissions 28 There were several practical measures which the Defendant could have taken to prevent, control or mitigate the harm caused by the offence. Businesses must arrange their affairs to ensure that pollution will not occur per Mahoney JA in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357. A number of precautionary steps could have been taken to avoid the offence occurring including ensuring there was an adequate bund around the batching tank, installing an overflow alert mechanism, programming the computer program controlling the supply process between the storing tank and batching tank so that the process did not work when the concrete plant was not operating, The Defendant runs a profit-making business where managing the risk of accident is an intrinsic part of managing their operations. Defendant's submissions 29 The Defendant has installed a number of additional mechanisms to prevent the incident from occurring in the future: (a) A new level sensing probe; (b) A secondary mechanical level switch that will shut off the pump from the storage tank if the electronic level sensing probe fails in the batching tank; (c) A tertiary electronic level sensing switch of the batching tank; (d) A comprehensive review of not only this site but all sites within the Defendant's business to ensure similar mechanisms are in place; (e) Changing the computer program so that filling can only occur when the cornice plant is being operated and thus when staff are present; (f) Increasing the batching tank bund capacity to cater for the tanks within the bund plus the volume of the storage tank; and (g) Sealing of stormwater entry points. 30 With hindsight there is always something that could have been better. In terms of mitigation of harm the foreseeability of harm was limited however, so that the measures which could have been taken must be considered in that light.

Finding 31 There were practical measures that could have been taken to mitigate the harm caused by preventing the incident giving rise to the harm as identified by the Prosecutor. The extent of foreseeability of harm I consider in the next section. In terms of mitigating the harm caused by the incident, there were clean up measures implemented to try to reduce the harm after the event and these were undertaken promptly. As identified by the Defendant a number of measures have been implemented to ensure there is no possibility of the offence occurring again. (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence 32 The Prosecutor submitted that as the holder of an environmental protection licence the Defendant was on notice concerning possible harm to the environment. The failure of the sensors was foreseeable given the acknowledgment of the Defendant's engineer that industrial sensors have a limited lifetime. The harm caused was foreseeable as the Gardisperse is known to be moderately toxic, it is not assigned for release into the environment and no backup sensor existed in the event of the failure of the electronic level sensor in the batching tank. The Defendant should have been aware that the batching tank was in an inadequately bunded area. 33 The Defendant submitted that while the spill was foreseeable it was not a readily foreseeable risk. The electronic level sensing probe had operated without any problem since 2003 and had failed partially without warning. The Defendant had to foresee the sensor probe would detect a low level of Gardisperse and trigger the refilling process but not detect a high level so that pumping would continue and not be detected and that the entire storage tank would be pumped out. The storage tanks could have held more than batching tanks (1,000 litres) and the bund (6,000 litres). The risk was not identified in regular internal audits and despite a rigorous environmental system.

Finding 34 I accept the Defendant's submission to some extent that while the incident was foreseeable the probability of this incident arising was reasonably remote and depended on several circumstances combining to result in the incident giving rise to the offence. In reaching that conclusion I take into account the evidence of Mr Batstone and Mr Campbell concerning the environmental management measures in place at the premises. It appears that consistent efforts have been made to actively manage the environmental impact of the activities at the premises for a considerable period. The fact that despite these measures no problem with the system had been identified suggests that the likelihood of this combination of events arising was not immediately apparent. The caveat on that finding is that I agree with the Prosecutor's submission that the inadequate bunding around the batching tank should have been obvious given the far greater capacity of the storage tank which fed it. I consider the level of foreseeability was at the lower end of what could reasonably be expected of a responsible operator except that the inadequate bund capacity was reasonably foreseeable. (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence 35 The Prosecutor submitted and the Defendant accepted that as the owner/operator and licensee of the premises it had complete control of the operation of the premises. The Defendant further submitted however that its liability on this basis was tempered by the circumstances in this case where it was not particularly foreseeable that this offence could occur. 36 Given that the premises are under the complete control of the Defendant and it operates and has done for some time a large and complicated business at the plant it clearly had control over the causes giving rise to the offence, as the Prosecutor submitted. There is no basis to ameliorate that finding based on the Defendant's submissions concerning foreseeability. (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. 37 Not applicable.

38 The level of seriousness of the offence in relation to the factors in s 241 is in the low to medium range in relation to the environmental harm caused.

39 In relation to the other s 241 factors and the need to consider the objective circumstances, regard must be had to the culpability of the Defendant and the individual circumstance which led to the commission of the offence and the consequences of those circumstances, R v Carroll [2008] NSWCCA 218. The matters discussed in relation to s 241(b), (c) and (d) suggest a low level of culpability on the part of the Defendant.

40 In setting a penalty the Court should have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at [698] and [701] respectively that: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided… ..the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.

General deterrence 41 Section 3A(b) CSP Act states that one of the purposes for a court in imposing a sentence is to prevent crime by deterring offenders. Sentences imposed in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. 42 No submission is made that specific deterrence ought apply. I also accept the Defendant's submissions that there are good prospects of rehabilitation and low prospects of recurrence of an offence of this type given the rigorous environmental management system in place. The Defendant has also taken active steps to prevent a recurrence at the premises and at other plants it owns around Australia. Proportionality 43 An appropriate sentence is to be determined: … a basic principle of sentencing law is that a sentence…imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496).

per Hoare v R (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ). Mitigating factors 44 A number of mitigating factors should be taken into account to reduce that penalty, as provided for in s 21A(3) of the CSP Act.

Guilty plea s 21A(3)(k), 22 CSP Act 45 The Defendant pleaded guilty at the earliest opportunity. A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the CSP Act in the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300. The Prosecutor accepts that there has been a guilty plea at the earliest opportunity. There should be a large discount on this basis. Remorse (s 21A(3)(i) CSP Act) 46 The Defendant has expressed remorse through the affidavit and oral evidence of Mr Batstone. I recently determined in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 that evidence of contrition was best adduced from the sole director of the corporate defendant. In this case the corporate structure of the Defendant and its large parent company, Boral, has been set out in the affidavits of Mr Strauch and Mr Batstone. Given the size of the parent company, its management structures and the senior position occupied by Mr Batstone as head of the plasterboard division of Boral (the Defendant subsidiary company), I accept his expression of remorse on behalf of the Defendant and also his personal expression of remorse in the course of giving oral evidence. Assistance to law enforcement authorities - s 21A(3)(m) 47 There has been full cooperation with the Prosecutor in relation to the offence and in relation to the preparation for this hearing as evidenced by the SOAF. The incident was reported promptly when the total volume of the Gardisperse was worked out, employees having initially and incorrectly thought the spill was a much smaller volume. 48 The Defendant has no previous convictions (s 21A(3)(e) CSP Act) and is unlikely to reoffend (s 21(3)(g)). Evenhandedness 49 The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court. The Prosecutor referred to two cases with some factual similarity to this matter which have been decided since the penalty was increased in 2006.

50 The defendant in Environment Protection Authority v Nalco Pty Ltd [2007] NSWLEC 831 operated a chemical manufacturing factory. A tanker truck made a delivery of low toxicity ethylene glycol which was pumped from the truck to a storage tank. The valve on the storage tank and four further valves in the stormwater system had been left open causing 9000 litres of the substance to escape into a drain leading to Botany Bay. The failure to close the valves was due to the inexperience and lack of training of the plant operator to check the valves were closed. There was no actual environmental harm and there was potential only for minor transient harm. The likelihood of this harm was entirely foreseeable and not the result of any failure of plant or equipment. The mitigating factors considered included an early plea of guilty, the defendant's lack of prior convictions, its expression of contrition through two senior executives, its good corporate character and the cooperation with the investigation. Lloyd J considered the offence was of low criminality. His Honour imposed a penalty of $50,000 reduced from $75,000 in light of the many mitigating factors. 51 In Environment Protection Authority v Hanson Precast Pty Limited [2008] NSWLEC 285 a leak in a heating pipe caused 200-300 litres of heat transfer oil to escape into a stormwater drain. An alarm alerted the defendant that a leak had occurred but the defendant incorrectly identified the location of the leak and restarted the system. There was a further failure in the system designed to prevent leaked oil from entering an offsite stormwater drainage system. Actual environmental harm resulted from the oil covering a watercourse over 200 metres for three days. The harm included the killing of a small number of small fish, damage to reeds within the watercourse and a change to the chemical composition of the water. An odour was detectable in the area. There was potential for environmental harm to other aquatic organisms. There were no long-term harmful effects. Biscoe J stated there were obvious practical measures that could have been taken to prevent the harm occurring particularly as the defendant knew the system did not operate sufficiently. The incident was foreseeable to the defendant who had control over its causes. Biscoe J considered the defendant's early plea of guilty, its lack of prior convictions, its expression of contrition, its good corporate character, its cooperation in the investigation and its efficient but costly clean-up. Biscoe J did not consider that there was a strong case for specific deterrence as the defendant demonstrated that it was conscientious about environmental safety and had responded well to the incident in both the cleanup and steps taken to prevent a recurrence of the incident. A penalty of $50,000 reduced from $75,000 was imposed.

Costs 52 The Defendant has agreed to pay the Prosecutor's legal costs of $ 20,000 and investigation costs of $3,000 under s 248 of the POEO Act.

53 In all the circumstances identified above, I think that a penalty of $90,000 is appropriate and should be discounted by a total of 35 per cent resulting in a fine of $58,500. I have allowed a substantial reduction in penalty in light of the numerous mitigating circumstances outlined above.

Orders 54 The Court orders that:

1. The Defendant is convicted of the offence with which it is charged.
2. The Defendant is fined the sum of $58,500 to be paid to the Registrar of the Court within 28 days of today's date.
3. The Defendant must pay the Prosecutor's costs of the proceedings of $20,000.
4. The Defendant pay the Prosecutor's investigative costs of $3,000 pursuant to s 248 of the POEO Act.
5. The exhibits may be returned.

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