Environment Protection Authority v Borg Panels Pty Ltd

Land and Environment Court (NSW)|2016-06-09|Before: Pain J

SOLICITORS: Office of Environment and Heritage (Prosecutor) Moray & Agnew Lawyers (Defendant) File Number(s): 16/155875

Judgment

The Defendant Borg Panels Pty Ltd operates a wood processing facility at Oberon. On 11 September 2015, the Defendant entered a plea of guilty to one charge of polluting waters in breach of s 120 of the Protection of the Environment Operations Act 1997 (NSW) ("POEO Act"). The offence occurred on 15 August 2014, details of which are set out in the summons filed 29 July 2015. It is necessary to sentence the Defendant for the offence.
The POEO Act provides: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. (2) In this section: pollute waters includes cause or permit any waters to be polluted.
"Environment" is defined in the Dictionary of the POEO Act to include "water" and "any organic or inorganic matter and any living organism".

Statement of Agreed Facts SUMMARY OF THE OFFENCE … 3. The incident giving rise to the Offence occurred at the Defendant's wood processing facility at Lowes Mount Road Oberon, New South Wales (the Premises). The Premises forms part of what is known as the Oberon Timber Complex. 4. The Offence occurred when a hose (the Hose) connected to a submersible pump in an effluent storage dam (the Sludge Dam) on the Defendant's Premises was placed in a position where it discharged effluent (the Pollutant) from the Sludge Dam into a constructed storm water drainage channel (the Drainage Channel) that flows into a tributary of Kings Stockyard Creek (the Tributary) and into Kings Stockyard Creek (KSC). 5. The Drainage Channel receives rainfall runoff from various urban locations upstream of the location at which the Hose was discharging the Pollutant during the incident the subject of the Offence. 6. Historically, the Drainage Channel has been the recipient of discharges of contaminated stormwater runoff from industrial premises the subject of environment protection licences issued under the POEO Act. Any pollutant discharged into the Drainage Channel under the authority of an environment protection licence is subject to limits and reporting requirements imposed by the relevant licence. WATERS POLLUTED 7. As a result of the Offence, approximately 200 metres of the Drainage Channel and approximately 500 metres of the Tributary were polluted. The distance of KSC, if any, polluted by the Offence is not agreed by the parties and is a matter the subject of expert evidence. [During the sentencing hearing the parties agreed facts in relation to environmental harm which are set out below] 8. KSC is a tributary of the Fish River. The Fish River is the main headwaters for the Macquarie River. There is no evidence that the Offence polluted the Fish River or the Macquarie River. THE AERIAL MAP 9. Various features on the Premises and approximate locations referred to in this Statement of Agreed Facts are depicted on an aerial map (the Aerial Map). A reduced copy of the Aerial Map is located at Tab 1. The following table explains the features identified on the Aerial Map. Label on Aerial Map Feature and Location "Borg Panels Pty Ltd" The Defendant's timber processing facility at Lowes Mt Road Oberon. "WTP" The Defendant's wastewater treatment plant designed to capture, treat and re-use all effluent generated in the Defendant's manufacturing process. "Sludge Dam" The effluent storage dam from which the Pollutant was discharged via the Hose into the Channel. "The Hose" The location of the Hose placed down the earthen bank as it discharged from the Sludge Dam into the Channel. "Site 1" (CSR Rehabilitation Site) Vacant block of land owned by the Defendant at the time of the Offence through which the Tributary passes before entering KSC. "Site 2" EPA inspection point and water sampling location on KSC (approximately 1200 metres downstream of discharge). "Site 3" EPA inspection point and water sampling location on KSC (approximately 20 metres upstream of confluence of the Tributary and KSC). "Site 4" EPA inspection point and water sampling location on the Tributary (approximately 770 metres downstream of discharge). "Site 5" EPA inspection point and water sampling location in the Tributary (approximately 300 downstream of discharge). "Site 6" EPA inspection point and two water sampling locations immediately above, and below, the Premise's Licenced Discharge Point; above where the Channel meets the Tributary (approximately 240 metres downstream of the discharge). "Site 7" EPA inspection point in the Channel. (downstream of discharge). "Site 7A" EPA inspection point and water sampling location in the Channel (upstream of discharge). "Site 8" EPA inspection point and water sampling location on Woodchem Pty Ltd's Premises (effluent from Woodchem Pty Ltd is received by the Sludge Dam on the Premises). "Site 9" EPA inspection point and water sampling location in KSC under the bridge where Hazelgrove Road crosses KSC. (Approximately 1,950 metres downstream of the discharge). "Site 10" Section of KSC flowing behind resident's property adjacent to Blenheim Forest (Approximately 2.8 kilometres downstream of the discharge). "Site 12" EPA inspection point and water sampling location in KSC upstream of discharge.

THE DEFENDANT'S OBERON OPERATIONS AND SURROUNDS 10. The Defendant holds Environment Protection Licence 3035 (the Licence) which permits the activities of "chemical production" and "'wood or timber milling and processing" at the Premises. A copy of the Licence is located at Tab 2. 11. The Defendant carries out the licensed activities in the course of processing and manufacturing wood panelling and joinery components. The Defendant receives woodchips and timber which it processes and treats in order to produce the manufactured products. 12. The Defendant's manufacturing process generates effluent. The effluent comprises both organic material extracted from the timber and woodchips prior to processing and the residues of chemicals used during the treatment and production process. 13. Condition L1.1 of the Licence prohibits the pollution of waters otherwise than in accordance with the requirements and limits set out in the Licence at condition L2. 14. The Licence permits the Defendant to lawfully discharge pollutants within prescribed limits, via a licence discharge point (the LDP). The location of the LDP is indicated at 'Site 6' on the Aerial Map. 15. The discharge of the Pollutant through the Hose into the Channel was not permitted under the Licence. WOODCHEM PTY LTD 16. Located next to the Defendant's Premises in the Oberon Timber Complex is a chemical production facility, owned by Woodchem Pty Ltd ACN 080 088 777 (Woodchem). Woodchem is part of the Borg Group of companies and is a wholly owned subsidiary of Borg Investments Pty Ltd (ACN 123 740 287). 17. Woodchem manufactures and stores various chemicals, including formaldehyde, which the Defendant uses during the manufacturing and treatment process carried out at the Premises. Woodchem holds environment protection licence 11308 (the Woodchem Licence). A copy of the Woodchem Licence is at Tab 3. 18. Effluent containing chemical residues generated during Woodchem's chemical manufacturing process is received by the Sludge Dam on the Defendant's Premises for the purpose of being treated and re-used by the Defendant in its timber treatment and manufacturing process. 19. The Woodchem Licence permits the discharge to stormwater of various pollutants in limited concentrations via a licenced discharge point from a stormwater retention basin located on Woodchem's eastern boundary into the Drainage Channel upstream of the Defendant's LDP. 20. Rainfall runoff at the Woodchem Premises is diverted into the stormwater retention basin dam on Woodchem's eastern boundary. 21. Woodchem has not discharged any pollutants from its premises into the Drainage Channel via its licenced discharge point since 2011. THE WASTE WATER TREATMENT PLANT 22 The Defendant's manufacturing process incorporates a wastewater treatment plant (the WTP) designed to capture, treat and re-use all water and effluent used and generated during the timber manufacturing process. The location of the WTP is indicated on the Aerial Map by the letters "WTP". The Sludge Dam 23. A component of the WTP is the Sludge Dam, which is situated adjacent to the Premise's eastern perimeter and the Channel. 24. The Sludge Dam is separated from the Channel by a wire fence (the Wire Fence) and an earthen bank (the Earthen Bank). A photo showing parts of the Sludge Dam, the Wire Fence and the Earthen Bank is at Tab 4. 25. The Sludge Dam is approximately 60 metres long and 54 metres wide and has a holding capacity of approximately 10,000,000 litres. 26. The Sludge Dam receives and stores effluent from the following components of the Defendant's and Woodchem's manufacturing processes: a. fluid from the chip wash and handling system; b. fluid from boilers; c. fluid from cooling towers; d. fluid from condenser blow downs; e. fluid from Woodchem boiler blowdowns; f. fluid from Woodchem cooling tower bleeds; g. wash water from Woodchem; h. washwater from paper treater; i. rainwater trapped in the WTP clarifier bund; and j. rainwater washed into effluent drains. 27. The various streams of effluent received by the Sludge Dam contain substances and chemicals used in, or generated by, the Defendant's and Woodchem's treatment and manufacturing process including: a. urea; b. sodium hydroxide; c. ammonium; d. nitrogen; e. formaldehyde; f. traces of amino resins; g. nitrogen compounds including melamine and urea; and h. wood fibre. 28. After being allowed to settle in the Sludge Dam, the effluent was ordinarily pumped, via the Hose connected to a submersible pump located in the Sludge Dam, to a component of the WTP known as the sequential batch reactors. The sequential batch reactors are located immediately to the south of the Sludge Dam on the eastern perimeter of the Defendant's Premises. A photo showing part of the sequential batch reactors and the Sludge dam is at Tab 5. 29. The pump in the Sludge Dam is capable of pumping up to 180,000 litres per day at a flow rate of up to 125 litres per minute. 30. In the sequential batch reactors, the effluent undergoes a series of treatment and filtration processes before being re-used in various aspects of the Defendant's manufacturing process for purposes such as steam production and wash down water. 31. Up to and including 15 August 2014, the Hose was a flexible "layflat" hose approximately 50 metres long. The length of the Hose was designed to allow for the movement of the submersible pump to various locations on the bottom of the Sludge Dam to avoid clogging by sediment build-up within the Sludge Dam. 32. Prior to the Offence, the Defendant's employees had on occasions extended the Hose connected to the submersible pump in the Sludge Dam outside the Wire Fence onto the top of the Earthen Bank separating the Sludge Dam catchment and the Channel. 33. On these occasions the purpose of placing the Hose out on the top of the Earthen Bank was to avoid kinks forming when the submersible pump was moved closer to the sequential batch reactors. The Hose was also taken out of the Sludge Dam catchment onto the Earthen Bank to allow it to thaw out when it had become frozen and blocked. 34. Prior to the incident giving rise to the Offence, when the Defendant's employees placed the Hose on the top of the Earthen Bank above the Channel, it generally remained coupled to the sequential batch reactors. However, once or twice a year it had been uncoupled from the sequential batch reactors while remaining connected to the submersible pump in the Sludge Dam. The Hose had not previously been placed in the position it was on the day of the Offence. 35. Prior to the incident giving rise to the Offence the Defendant had not instructed its staff that the Hose should always be kept entirely within the Sludge Dam catchment and not taken outside the Wire Fence onto the Earthen Embankment. THE DEFENDANT'S EMPLOYEES 36. At all relevant times the Defendant employed the following people: a. Mr Mick Evans (Mr Evans) - Environmental Officer. At the time of the Offence Mr Evans had been employed in this position for approximately three and a half years. He was responsible for the day-to-day operation of the WTP. Mr Evans also supervised the Defendant's WTP operator, Mr Andrew Fagg. b. Mr Andrew Fagg - WTP Operator. At the time of the Offence Mr Fagg had been employed in this position for ten years; and c. Mr Aaron Evans - Process Development Manager. At the time of the Offence Mr Aaron Evans had been employed in this position for two and half years. 15 AUGUST 2014 - THE INCIDENT 37. Mr Evans arrived for work at the Premises at approximately 6:00am on Friday 15 August 2014. 38. At approximately 7:00am, Mr Evans switched on the submersible pump in the Sludge Dam in order to transfer effluent from the Sludge Dam to the sequential batch reactors. Mr Evans detected that there was no flow through the Hose which, at this stage, was connected to the sequential batch reactors. 39. Mr Evans uncoupled the Hose from the sequential batch reactors and determined that it was not flowing as it had become frozen for part of its length and therefore blocked. 40. Mr Evans then took the end of the Hose that had been coupled to the sequential batch reactors, dragged it through a gate in the Wire Fence and down the Earthen Bank. Mr Evans placed the end of the Hose at the edge of the Channel. Photos showing the position of the Hose and the Earthen Bank as placed by Mr Evans down the earthen bank to the Channel are at Tab 6. 41. Mr Evans intended to return to the Hose and recouple it to the sequential batch reactors, but forgot. When he completed his shift at the Premises, at approximately 2:30pm on 15 August 2014, the Hose remained in the same position on the Earthen Bank as placed by Mr Evans at approximately 7:30am that morning. 42. Mr Andrew Fagg was present on the Premises until 1:30pm on the day of the Offence. At no stage did he enter the Sludge Dam catchment or see the Hose discharging the Pollutant into the Channel. Mr Aaron Evans was also present on the Premises on the day of the Offence. Prior to being notified by the EPA, he was not aware the Hose had been placed down the Earthen Bank discharging Pollutant into the Channel. 43. Between approximately 7:30am and 3:45pm on 15 August 2014, an unknown quantity of Pollutant from the Sludge Dam was discharged through the Hose into the Channel, the Tributary and KSC (the Incident). 15 AUGUST 2014 - THE EPA INVESTIGATION 44. At approximately 12:30 pm on 15 August 2014, the EPA was notified of the Incident by Oberon Council Health and Building Manager, Ms Jaclyn Burns. 45. Ms Burns notified the EPA after inspecting various locations on KSC between "Site 10" and "Site 2" on the Aerial Map in response to a report of an offensive odour and black coloured water in KSC. The report was received at approximately 8:00am from the owner of a property in Shakespeare Close Oberon. The resident's property adjoins KSC approximately 2 kilometres downstream of the Defendant's Premises. The location of the resident's property is indicated at "Site 10" on the Aerial Map. 46. At approximately 2:15 pm on 15 August 2014, EPA authorised officers Mr Mark Clyne and Mr Allan Adams met Ms Burns and carried out an investigation of the Incident giving rise to the Offence. 47. During this investigation, Mr Clyne and Mr Adams inspected a number of locations along KSC and the Tributary before locating the Hose discharging the pollutant from the Sludge Dam on the Defendant's Premises into the Channel at approximately 3:30pm. At this time, the submersible pump in the Sludge Dam was switched on. A photo showing the Pollutant discharging from the Hose at is at Tab 7. 48. The discharge of the Pollutant from the Hose ceased at approximately 3:45pm when Mr Aaron Evans, after being notified of the Incident by the EPA, met Mr Clyne and Mr Adams and switched off the pump at approximately 3:45pm. 49. The water in the Channel, the Tributary and KSC, between the location at which the Hose was discharging and "Site 10" on the Aerial Map, was black in colour and emanated a strong offensive odour. A white scum was also present on the surface of the water in KSC and the Tributary in several locations. 50. The water in the Drainage Channel, upstream of the location at which the Hose was discharging was clear in colour and did not possess any odour. 51. The water in KSC, upstream of the junction of the Tributary and KSC was also clear in colour and did not possess any odour. 52. The water discharging from the Premises through the LDP was a light tea colour and had mild odour of pine sap. 53. There were no other sources of effluent discharging into the Drainage Channel between the Hose and the junction of the Channel and the Tributary immediately below the LDP. 54. Mr Adams took a number of water samples at various locations in KSC, the Tributary and the Channel. He also took a sample from above the LDP and the discharge of effluent directly from the end of the Hose. A copy of the report of analysis in relation to the water samples taken by Mr Adams on 15 August 2014 and a table indicating the locations at which those samples were taken is at Tab 8. 20 AUGUST 2014 - THE EPA INVESTIGATION 55. On 20 August 2014, Mr Clyne and Mr Adams returned to the Defendant's Premises and carried out further investigations and inspections in relation to the Incident. 56. Mr Adams took a number of water samples at various locations in KSC, the Tributary and on the Premises. A copy of the report of analysis in relation to the water samples taken by Mr Adams on 20 August 2014 and a table indicating the locations at which those samples were taken is at Tab 9. 57. During this inspection, the Hose was contained entirely within the Sludge Dam catchment and was connected to the sequential batch reactors. 58. After leaving the Defendant's Premises, Mr Clyne and Mr Adams returned to a pool of water on the Tributary which they had previously inspected on 15 August 2014. The location of this pool of water is indicted as "Site 5" on the Aerial Map. The water in the pool was black in colour and had a scum on the surface similar to that observed on the day of the Incident. 59. At the direction of Mr Clyne, the Defendant's employees removed the water and scum from the pool located at "Site 5" on the Aerial Map by pumping it to a location away from KSC. 60. Mr Clyne and Mr Adams then inspected locations on KSC indicated on the Aerial Map at "Site 2", "Site 9" and "Site 10". 61. The water in KSC at "Site 2" was clearer in colour than on the day of the Offence and there was only a slight odour present at this location. The water in KSC at both the locations indicated by "Site 9" and "Site 10" was also considerably clearer than on the day of the Offence with only a slight odour present and small amounts of surface scum trapped in obstructions in KSC. 23 SEPTEMBER 2014 - EPA INVESTIGATION 62. On 23 September 2014, Mr Clyne and Mr Adams returned to various locations along the Tributary and KSC and carried out further inspections in relation to the Incident. 63. Mr Adams took a number of water samples in KSC, the Tributary and in the Fish River. A copy of the reports of analyses in relation to the water samples taken by Mr Adams on 23 September 2014 and a table indicating the locations at which those samples were taken is at Tab 10. ENVIRONMENTAL HARM 64. In relation to the environmental harm caused by the Offence, the Prosecutor relies on the affidavits of Moreno Julli, dated and filed 26 October 2015 and 24 March 2016. 65. In relation to the environmental harm caused by the Offence, the Defendant relies on the affidavit of Dr Daniel Martens dated 3 February 2016 and filed 9 February 2016. DEFENDANT'S WRITTEN POLICES AND PROCEDURES IN PLACE AT THE TIME OF THE OFFENCE 66. At the time of the Incident, the Defendant did not have in place any written policies or procedures that: a. specifically dealt with the steps to be taken by employees when the Hose connected to the submersible pump in the Sludge Dam became frozen; or b. prohibited the placement of the Hose connected to the submersible pump in the Sludge Dam outside the Sludge Dam catchment area and onto the earthen bank adjacent to the Channel. 67. At the time of the Offence there was no procedures in place, such as logbooks or checklists, whereby the Defendant's employees were required to record actions taken in relation to the operation or movement of the Hose connected to the submersible pump in the Sludge Dam. THE PRACTICAL MEASURES THAT MAY BE TAKEN TO PREVENT THE HARM CAUSED BY THE OFFENCE 68. The following practical measures could have been taken by the Defendant to prevent the harm caused by the Offence: a. not placing the Hose outside the Sludge Dam catchment at the bottom of the Earthen Bank and into the Channel; b. having appropriate policies and standard operating procedures in place; c. instructing staff not to take the Hose outside the Sludge Dam catchment under any circumstances; and d. replacing the Hose with a fixed pipe (see measures taken by the Defendant since the incident). CONTROL OVER THE CAUSES THAT GAVE RISE TO THE OFFENCE 69. The Defendant had complete control over the causes that gave rise to the Offence. MEASURES TAKEN BY THE DEFENDANT SINCE THE INCIDENT 70. The Defendant has taken the following measures to ensure that a similar incident does not occur again: a. replaced the submersible pump and Hose with a floating pump connected to a fixed polyurethane pipe (the new pipe is not long enough to be extended outside the Sludge Dam catchment area and onto the earthen bank above the Channel); b. introduced a 'Dam Checklist' standard operating procedure which includes daily monitoring of all dams on site including the Sludge Dam; and c. Introducing a visible and audible level alarm system connected to the Sludge Dam. PLEA OF GUILTY 71. The Defendant entered its plea at the earliest available opportunity. COOPERATION WITH PROSECUTOR 72. The Defendant has cooperated with the Prosecutor at all stages of its investigation into the Offence, including by voluntarily making its employees available for recorded interviews and by agreeing to the matters in this Statement of Facts. PRIOR CONVICTIONS 73. The Defendant has no prior convictions for any environmental offence.

Additional agreed facts on environmental harm

In the course of the sentencing hearing the parties provided to the Court additional agreed facts as to environmental harm that was tendered as Exhibit C and repeated below. Actual Harm to the Environment 1. The Offence occasioned actual harm to environment as set out below: 1. Pollution of the aquatic environment of the Drainage Channel (up to approximately 200 metres from the discharge site), of the Tributary (for a distance of approximately 500 metres) and of KSC (for a distance of about 2800 metres downstream of the discharge site), by way of discharged effluent (the Pollutant) from the Sludge Dam. (b) Degraded water quality on 15 August 2014 by the introduction of an organically rich (likely anaerobic) liquid, containing a range of chemicals (including formaldehyde) at toxic concentrations, to the downstream aquatic environment including KSC. (c) Strong and offensive odours from the Drainage Channel, the Tributary and KSC on 15 August 2014. (d) Rendering the water in the Drainage Channel, the Tributary and KSC black in colour on 15 August 2014. (e) Degraded waters in Kings Stockyard Creek on 15 August 2014 and likely for about a day from the time the pump was turned off. (f) Degraded waters in the Tributary for no more than 6 days from 15 August 2014 until 20 August 2014 (inclusive), namely in a pool at 'Site 5' where the water remained toxic, black in colour and with a scum on the surface as at 20 August 2014 until pumped out by the Defendant. 1A. There is no evidence of mortality of any organism or plant in the field. Likely Harm to the Environment 2. The Offence occasioned likely harm to the environment as set out below: (a) Causing an aquatic environment less able to support and accommodate a wide range of aquatic animals than would be expected to normally exist in the Tributary (for no more than 6 days) and in KSC (for no more than 24 hours after the pump was turned off); and (b) Exposing any resident aquatic animals and plants (likely to include a range of insects, crustacean, macroinvertebrates, microinvertebrates, fish, amphibians and algae) to toxic and anaerobic water conditions in the Tributary at site 5 sufficient to cause severe distress or lethality (for no more than 6 days). (c) Exposing any resident aquatic animals and plants (likely to include a range of insects, crustacean, macroinvertebrates, microinvertebrates, fish, amphibians and algae) to toxic and anaerobic water conditions in the KSC sufficient to cause severe distress (for no more than 24 hours after the pump was turned off). Potential Harm 3. The Offence occasioned potential harm to the environment as set out below: (a) Exposing any resident aquatic animals and plants (likely to include a range of insects, crustacean, macroinvertebrates, microinvertebrates, fish, amphibians and algae) to toxic and anaerobic water conditions in the KSC sufficient to cause lethality (for no more than 24 hours after the pump was turned off).

Affidavit of Mr Snelson

The Defendant relies on the affidavit of Mr William Snelson Chief Executive Officer of the Defendant sworn 18 February 2016. Mr Snelson attests that the offence occurred as a result of the unthinking actions of one of the Defendant's employees. There was no reason for effluent to be discharged in the manner that took place. There was no shortage of capacity in the water management system to accommodate effluent.
Mr Snelson gives evidence that he and the directors and senior management team of the Defendant have always been proud of the Defendant's good environmental record and are sorry that the offence occurred.
Since the offence Mr Snelson attests that he has overseen the implementation of corrective actions necessary to ensure that there can be no future recurrence of the circumstances which led to the offence. Mr Snelson and the directors and senior management team of the Defendant are focused on continued improvement of the premises and improved environmental compliance. The Defendant has taken all reasonable steps to ensure that such an incident does not reoccur, including counselling and retraining staff. A written warning was issued to the employee responsible for the placement of the hose which led to the discharge. A training and assessment manual has been completed for water treatment plant employees. A firm of water treatment specialists has been engaged to conduct a further review of the existing training and documentation. The Defendant has implemented a standard operating procedure since the offence. This procedure will be used to induct and train new staff working at the water treatment plant.
Daily physical checks on the water management system have been introduced, level alarms in process water dams have been installed and the effluent transfer system at the dam has been redesigned and implemented. Parts of the pump and hose system from which the discharge came have been replaced and redesigned so that it can be heard to operate and the hose is less likely to freeze. It is now difficult for the hose to extend outside the sludge area.
The Defendant hosts meetings of a local community group where concerns about the plant and its operation can be raised. It also has a hotline to be used by local residents for any complaints or reports of environmental matters.
Prior to this incident, the Defendant had never received a complaint from local residents regarding water pollution at or from the premises. Prior to the incident Mr Snelson was not aware of any discharge arising at or from the Defendant's premises from similar circumstances.
The Defendant and its employees are committed to supporting local social and welfare events. For example the Defendant sponsors local events such as the Oberon Sesquicentennial Celebrations, local school sporting and academic events and local sporting clubs. In 2015 and 2016 a member of the Defendant's corporate group sponsored the "Waste to Art" NetWaste initiative through the Friends of Oberon Library Inc. The Defendant has expended a large amount of money at its premises to make it a sustainable business including the installation and operation of water recycling and control systems, noise control systems and more efficient production processes.

Sentencing considerations

The purposes for which a Court may impose a sentence on an offender, pursuant to s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act"), are: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; 6. to denounce the conduct of the offender; 7. to recognise the harm done to the victim of the crime and the community.
The Prosecutor submits that factors (a), (b), (e) and (f) are most relevant in this case.
As stated in Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 ("EPA v Waste Recycling and Processing") at [140] by Preston J: The objective gravity or seriousness of the crime fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence.
Additional factors also relevant in determining the objective gravity or seriousness of the offence are the nature of the offence, the defendant's state of mind in committing the offence and the defendant's reasons for committing the offence.
The Court must also consider any relevant aggravating and mitigating circumstances relating to the objective and subjective factors in the case as identified in s 21A of the CSP Act.

Maximum penalty

The substantial maximum penalty for the offence of pollute waters, being $1,000,000 for a corporation, reflects the public expression by Parliament of the seriousness of the offence per Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698.

Objective circumstances

The Prosecutor submitted that the offence committed by the Defendant was of low to moderate objective seriousness. The Defendant submitted that the offence was of low objective seriousness.

The nature of the offence

The nature of the offence is informed by the purpose of the statute that created the offence. The objects of the POEO Act are contained in s 3 and include: (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, … (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, …
The offence of "pollute waters" in s 120 plays an important role in giving effect to the objectives of the POEO Act.

Section 241(1) of the POEO Act

The POEO Act provides statutory considerations for assessing the level of objective seriousness of offences committed under that Act in the factors identified in s 241(1). (a) The extent of the harm caused or likely to be caused to the environment
The word "environment" is broadly defined in the Dictionary of the POEO Act to include "water" and "any organic or inorganic matter and any living organism" as set out in par 3 above. "Harm to the environment" is very broadly defined, as set out in par 4 above. As stated in EPA v Waste Recycling and Processing at [146]-[148]: Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects the other biota that have ecological relationships to that animal or plant: Bentley Properties Pty Ltd [Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234] at [174]. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously. The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority at 701; 39. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 NSW.
The parties agreed that actual harm to the environment was caused by the offence as set out in par 7 above. The actual harm to the environment was severe in the drainage channel (200 m) the tributary (500 m) and KSC (2800 m) as a result of the effluent from the sludge dam on the day of the offence and the following day. Degraded water continued in the Tributary for up to six days until the pool at site 5 was pumped out by the Defendant. The most severe impact was in the 24 hours after the offence for a sizeable distance of about 2800 m. The degraded water is agreed as likely to have occasioned harm to the environment by causing an aquatic environment less able to support and accommodate a wider range of aquatic animals than usual in the tributary and KSC. The potential for harm to the environment in similar terms to likely harm was agreed. (b) The practical measures that may have been taken to prevent, control, abate or mitigate that harm
An offence is more serious if there were practical measures that could have been taken to prevent the harm per EPA v Waste Recycling and Processing at [173]. The Prosecutor submitted that the Defendant could have taken simple practical measures prior to the offence in order to prevent the harm, including the following: 1. not placing the hose outside the Sludge Dam Catchment at the bottom of the Earthen Bank and into the Drainage Channel; 2. designing and implementing appropriate policies and standard operating procedures in respect of the submersible pump and the Sludge Dam generally; 3. instructing staff not to take the hose outside the Sludge Dam catchment under any circumstances; and 4. replacing the flexible hose with a fixed pipe securely fastened to the sequential batch reactors (pars 66-68 SOAF).
The Prosecutor submitted the above measures are relatively straightforward measures to implement. The Prosecutor further submitted that that the objective seriousness of the offence is increased in light of these measures that could have been taken by the Defendant prior to the offence occurring.
The Defendant accepted these submissions submitting only that according to Mr Snelson's affidavit no such discharge had occurred before in such circumstances. (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
As the Prosecutor submitted, in establishing foreseeability of harm at issue is the extent to which a reasonable person in the position of the offender could have foreseen the harm caused or likely to be caused, taking into account all evidence of what the offender knew or ought reasonably to have known per Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 at [130] (Price J).
The Prosecutor submitted that the Defendant knew, or ought reasonably to have known, that the Sludge Dam contained a number of substances that, in particular concentrations, are harmful to the environment. Those substances included formaldehyde; dissolved aluminium; ammonia; and matter causing chemical oxygen demand (pars 26-27 SOAF).
The Defendant also knew, or reasonably ought to have known, that the Sludge dam was up-gradient of the Drainage Channel.
The Defendant also knew, or reasonably ought to have known, that the hose connected to the submersible pump in the Sludge Dam was capable of being extended into a position on the embankment adjacent to the Drainage Channel (pars 31-35 SOAF).
The Defendant also knew that placing the hose in a position where the end of the hose faced the edge of the Channel and the hose was connected to the pump in the Sludge Dam, once thawed, and with the pump on, the contents of the Sludge Dam would be pumped into the Channel.
In light of the above circumstances the Prosecutor submitted that the harm to the environment caused by the offence was plainly foreseeable to the Defendant.
The Defendant accepted the above submissions of the Prosecutor. (d) The extent to which the person who committed the offence had control over the causes that gave rise to the offence
The Defendant had complete control over the causes giving rise to the offence (par 69 SOAF).

Defendant's state of mind and reasons for committing the offence

The discharge of the effluent into the waterways from the Defendant's premises occurred because of the unthinking actions of one of the Defendant's employees in laying the hose connected to the sludge dam outside the fenced dam area. The Defendant's employee intended to return the hose and recouple it to the sequential batch reactors, but forgot to do so (par 41 SOAF). The offence occurred as a result of carelessness of an individual employee (affidavit of Mr Snelson). It was not the result of an intentional or pre-meditated deliberate act of pollution and was not committed for financial gain.

Conclusion on objective seriousness of the offence

While the immediate cause of the offence was the carelessness of an employee the offence resulted from a lack of adequate procedures being in place which is the responsibility of the Defendant. As appropriately accepted by the Defendant, the practical measures identified by the Prosecutor and set out above in par 27 were readily identifiable and straightforward. The Defendant has now taken those actions which are likely to avoid a recurrence. That does increase the seriousness of the offence as businesses should be proactive in ensuring that no polluting events occur as a result of oversight. The environmental harm caused was significant for a short period in the immediate and wider local area. The harm persisted for six days in the immediate area and was reasonably foreseeable. The offence committed by the Defendant is of low to moderate objective seriousness.

Subjective factors

There are a number of mitigating factors that the Court will take into account when determining the appropriate penalty in this case. Those factors include: 1. The Defendant does not have any prior convictions for breaches of New South Wales environmental legislation (par 73 SOAF), CSP Act s 21A (3)(e). 2. The Defendant pleaded guilty to the offence at the earliest available opportunity. Accordingly the Defendant is entitled to a discount of 25% per R v Houlton [2000] NSWCCA 183, CSP Act ss 21A(3)(k) and 22. 3. The Defendant has cooperated with the investigation of this matter at all times including by agreeing the SOAF and voluntarily making its employees available for interviews with the EPA (par 72 SOAF), CSP Act ss 21A(3)(m) and 23. 4. The Defendant has shown remorse for its actions through the expression of remorse in Mr Snelson's affidavit and through the subsequent actions of the Defendant in ensuring that no reoccurrence of such an event can occur, CSP Act s 21A(3)(i). 5. The offence was not planned or part of an organised criminal activity, CSP Act s 21A(3)(b). 6. The Defendant is of good corporate character. Community activities undertaken by the Defendant are identified in the affidavit of Mr Snelson summarised above in par 14, CSP Act s 21A(3)(f). 7. The Defendant has taken steps to ensure that the circumstances giving rise to the offence cannot re-occur as identified in the affidavit of Mr Snelson summarised in pars 10 and 11 above, CSP s 21A(3)(g), (h).

Purposes of sentencing - deterrence

Deterrence is an important factor in sentencing for environmental offences. The Prosecutor submits that the appropriate penalty for the offence requires a significant element of general deterrence. As held by Mahoney JA in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 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. … The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure pollution does not occur.
A sentence should operate as a powerful factor in preventing the commission of similar offences by those who might otherwise be tempted by the prospect that only light punishment will be imposed per EPA v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 at [228].

Specific deterrence

As I stated in Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48]-[49], [48] Specific deterrence is a purpose of sentencing under s 3A(b) of the CSP Act and has been considered relevant where a defendant continues in the same area of operation in which an incident has occurred. In taking specific deterrence into account in Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 (Moolarben (No 2)) Craig J cited at [113] the following passage in Axer at 359 per Mahoney JA: The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur". [49] Specific deterrence is appropriate for corporate defendants to catalyse rehabilitation so that the company takes the required steps to prevent repetition (See BJ Preston, "Principled Sentencing for Environmental Offences", a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006 at p 5).
The Defendant has taken measures after the offence to ensure that a similar pollution incident does not occur again (par 70 SOAF). This suggests that the role for specific deterrence is reduced but not negated entirely. The Defendant continues to operate its business premises from which the incident giving rise to the offence occurred. The penalty ought to act as a specific reminder to the Defendant not to engage in polluting behaviour in its future business activities as I held in Environment Protection Authority v Kitco Transport Australia Pty Ltd [2013] NSWLEC 39 at 121.

Parity in sentencing

The principle of even-handedness requires that the Court consider if there is any general 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, mindful of the different circumstances leading to penalty in other cases. Caution must be exercised in considering other cases because of the inevitable disparity between subjective and objective circumstances applicable to those cases, compared to the same circumstances found to exist in this case.
The Prosecutor identified in written submissions the following cases involving offences under s 120 of the POEO Act. 1. Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 in which a spill of up to 6,000L of phenol/formaldehyde-based resin was discharged from timber processing premises. The resin was pumped from a storage tank to a smaller unbunded mixing tank, which overflowed. The resin entered open stormwater channel on the premises, then flowed to an external stormwater system, a vegetated channel and a wetland on private property. The offence caused, and had very real potential to cause, substantial environmental harm, but the effects would not be long-lasting. The pollutant in the wetland would have rapidly killed any frogs, tadpoles, fish or aquatic macroinvertebrates present over a three day period. The offence was reasonably foreseeable and measures should have been in place to prevent the incident. The defendant had complete control over the causes that gave rise to the offence. The defendant cooperated with the prosecutor and entered an early guilty plea. After the offence the defendant put in place measures to prevent recurrence, and incurred clean-up costs of around $128,194. The defendant was convicted and fined $100,000 discounted by 33% to $67,000 and ordered to pay the prosecutor's costs and investigation costs of $35,000 and $24,644.80 respectively. 2. Environment Protection Authority v Boral Australian Gypsum Ltd [2009] NSWLEC 26. This offence involved pollution of a stormwater drain which flowed to an unnamed watercourse and then the Parramatta River (30 m from the premises) with 6400L of Gardisperse (a plasticiser or liquid chemical), a low to moderately toxic industrial substance. The spill occurred when it was transferred from a large storage tank to a small batching tank and an electronic sensor failed. The defendant had no prior convictions, entered an early guilty plea, expressed remorse and cooperated with the investigation. There was no evidence of actual environmental harm however the potential harm was likely acute impacts on crustaceans and plankton located at the discharge point. The harm was reasonably serious although of short duration. The defendant had complete control over the causes of the incident and could have taken actions to prevent the commission of the offence. The defendant was convicted and fined $90,000 which was discounted by 35% to $58,500 and ordered to pay the prosecutor's costs and investigation costs of $20,000 and $3,000. 3. Environment Protection Authority v Hanson Precast Pty Ltd [2008] NSWLEC 285. The offence was the escape of 200 to 300L of heat transfer oil from the defendant's premises through the stormwater system and into a watercourse. The systems in place to abate or mitigate the loss of this oil from the premises failed. The defendant entered an early guilty plea, cooperated fully and undertook clean up action. The spill and harm were foreseeable. There was short-term actual environmental harm such as oil damaged reeds, dead fish and stained rocks. The defendant was convicted and fined $75,000 discounted by one third to $50,000 and ordered to pay $17,680 in professional costs and $4,320 for the investigation costs. 4. Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187 in which approximately 1,700L of a strong sulphuric acid solution escaped from an unbunded tank at a chemical manufacturing plant into a nearby heavily vegetated stormwater drain, which flowed approximately 150 m into an ephemeral creek, which flows a further 200 m to a dam. The tank was fitted with a galvanised steel flange, which is susceptible to corrosion by warm sulphuric acid. Liquid escaped from the flange on the tank as a result of the acid corroding the flange. An employee who saw this tightened the flange so that the spray slowed to a dribble and placed a 220L bucket beneath the tank. The tank was then left unattended for over five hours. Employees of the defendant hosed the pollutant for 2.5 hours, sending it through the stormwater system. The NSW Fire Brigade and HAZMAT recovered approximately 5000L of the diluted acid solution water from the stormwater drain. There was actual severe harm to common plant species along a 22 m stretch of the stormwater easement, limited in duration to no longer than 15 months. There was potential for greater harm, but dry conditions and thorough clean-up alleviated the risks. The harm was foreseeable and there was control over the causes. The defendant was given a 25% discount for cooperation, contrition, prompt clean up and the entering of an early guilty plea. The defendant was convicted, a publication order was made and instead of a fine was ordered to pay $100,000 (discounted by one-third from $150,000) for restoration and erosion control works and the prosecutor's costs of $28,000. 5. Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831. The offence occurred during the unloading of ethylene glycol from a tanker truck to a storage tank on the company's premises at Banksmeadow. The employee failed to first check whether the storage tank valve was closed. It was in fact open. Approximately 9000L of ethylene glycol flowed out of the tank and passed through the stormwater system. The ethylene glycol passed through a further four emergency shut-off valves on the premises before entering Floodvale Drain, which flows to Botany Bay. The employee responsible had no formal training in the unloading of bulk liquid chemicals. The company failed to appoint a person responsible for performing a daily check of emergency valves in accordance with its stormwater containment policy. There was no actual environmental harm and the potential harm was minor and transient. The harm was foreseeable in that the defendant failed to take proper precautions and failed to implement its own policy. The defendant entered an early guilty plea, had no prior convictions, showed genuine remorse and had put in place training and procedures to prevent recurrence. The defendant was convicted and ordered to pay $50,000 (discounted from $75,000) to the National Parks and Wildlife Service in lieu of a fine to implement a weed management strategy and the prosecutor's costs of $10,000. A publication order was also made.
The Defendant identified two cases that it considered to be more comparable than those outlined by the Prosecutor. 1. Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18. The defendant was prosecuted for two offences involving two incidents leading to the accidental discharge of bentonite slurry into a wetland near Port Macquarie while undertaking horizontal directional drilling beneath the wetland. Actual harm was caused to a quarter of one hectare within a wetland area of about 120 hectares. The harm was short-term and involved the smothering of some plants, followed by additional harm occasioned by clean-up activities. Indirect harm resulted to those organisms having an ecological relationship to the areas that were directly harmed. There was evidence of likely harm to the Wallum Froglet. The overall harm was at a low level. Steps could have been taken to prevent the harm. The defendant took prompt steps to mitigate the harm. The defendant had sole control over the cause of the offences. The objective seriousness was at the upper end of the low range. The defendant had no prior record, entered an early plea of guilty, expressed remorse, incurred significant clean-up costs, assisted the authorities and agreed to pay the prosecutor's legal costs of $31,000 and investigation costs of $13,000. The defendant was convicted and fined a total of $30,000 and a publication order was also made. 2. Wollongong City Council v Belmorgan Property Development Pty Ltd [2008] NSWLEC 291. The offence involved the pollution of wetlands at and near the Wollongong Golf Club by oil or liquid containing oil. The impact was serious but short-term and comprised degradation of water quality in the wetland, associated emission of odours and direct impact on fauna. The commission of the offence caused the death of nine wood ducks. Birds of other species were wholly or partly coated with the oil. A number of turtles were observed gasping for air, swimming sideways and dropping straight down to the bottom of the wetland. Practical measures were available that could have prevented the offence. The defendant acted promptly after the incident and committed to adopt measures aimed at preventing similar incidents in the future. The defendant had ultimate control over the site however its effective control over the faulty box gutter was limited in the sense that there was nothing to indicate that it was faulty prior to the incident. The defendant had no prior convictions, entered an early guilty plea and gave substantial assistance to the authorities. After the 25% discount for the early guilty plea the fine imposed was $40,000. The defendant was also ordered to pay the prosecutor's costs.
I consider the cases relied on by the Prosecutor are more comparable to the circumstances here given my finding of low to moderate objective seriousness and derive some assistance from the penalties in those cases.

Publication order

The Prosecutor seeks an order, pursuant to s 250(1)(a) of the POEO Act, that the Defendant publicise the offence and the circumstances in respect of the offence. The Defendant accepts that such an order can be made. I will make a publication order in the terms agreed by the parties.

Prosecutor's investigative costs

The Prosecutor also seeks an order pursuant to s 248(1) of the POEO Act that the Defendant pay the investigative costs incurred by the EPA in connection with the offence to the value of $27,780.12. Those costs were incurred by the EPA in relation to the testing and analysis of water samples taken from the waters polluted by the offence on 14 August 2014, 20 August 2014 and 23 September 2014. The Defendant accepts that an order will be made requiring these to be paid.

Prosecutor's professional costs

The Prosecutor seeks an order that the Defendant pays its professional costs as agreed or assessed. These are estimated to be about $45,000. The Defendant has agreed to pay these.

Finding on penalty

Applying the instinctive synthesis approach identified by the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [75], in light of all the objective and subjective factors identified above, I consider that the appropriate penalty is $90,000. I will reduce that amount by 35% in light of the subjective circumstances including the early plea of guilty.

Orders

The Court orders that: 1. The Defendant is convicted of the breach of s 120 of the Protection of the Environment Operations Act for polluting waters as set out in the summons filed 29 July 2015. 2. The Defendant is fined $58,500. 3. The Defendant must pay the Prosecutor's costs of $45,000. 4. The Defendant must pay the Prosecutor's investigation costs of $27,780.12 as provided by s 248(1) of the Protection of the Environment Operations Act. 5. A publication order as provided in s 250(1)(a) of the Protection of the Environment Operations Act is made as follows: 1. the Defendant is to place a notice in the exact terms set out in Annexure A, within the first 5 pages of the Oberon Review and the Western Advocate; 2. the notices are to appear in the Oberon Review and the Western Advocate by no later than 10 July 2016; 3. the notices are to be a minimum of a quarter of a page in size; 4. the Defendant is to provide a copy of the notices as published in the Oberon Review and the Western Advocate to the EPA Bathurst office by no later than 18 July 2016. ANNEXURE A Borg Panels Pty Limited convicted for a pollution incident at Oberon Borg Panels Pty Limited (Borg) has been convicted in the Land and Environment Court of NSW of having polluted waters in breach of section 120(1) of the Protection of the Environment Operations Act 1997. Borg operates a wood processing facility at Lowes Mount Road Oberon (the Premises). The Premises operate subject to an environment protection licence issued by the Environment Protection Authority (EPA). On 15 August 2014, a hose connected to a submersible pump in a sludge dam on the Premises was placed down an earthen embankment in a position where it discharged effluent from the sludge dam into a drainage channel, a tributary of Kings Stockyard Creek and Kings Stockyard Creek. Approximately 2.8 kilometres of the receiving waters were polluted as a result of the offence. The effluent contained formaldehyde, nitrogen, ammonia and matter causing chemical oxygen demand at levels that were harmful to the environment. The harm to the environment caused by the offence consisted of short-term actual degradation of the water quality and likely harm to aquatic life, limited to no more than 6 days. Borg was prosecuted by the EPA and fined a total of $58,500. Borg was also ordered to pay the EPA's legal costs and its investigative costs. Borg cooperated with the EPA during the course of its investigation, pleaded guilty to the charge and has expressed its remorse. Since the incident giving rise to the offence, Borg has taken measures in an effort to ensure that a similar incident does not occur in the future. This notice was placed by order of the Land and Environment Court of NSW and was paid for by Borg. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2016

Environment Operations Act 1997(NSW)

(1993) 113 LGERA 357

(2006) 148 LGERA 299

(2006) 145 LGERA 234

At a glance

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