Environment Protection Authority v Byron Shire Council

Land and Environment Court (NSW)|1993-11-22|Before: Cowdroy J

CITATION : Environment Protection Authority v Byron Shire Council [2001] NSWLEC 54 revised - 01/05/2001 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Byron Shire Council FILE NUMBER(S) : 50032-4 of 2000 CORAM: Cowdroy J KEY ISSUES: Prosecution :- water pollution - failure to obtain approval for construction - plea of guilty - assessment of penalty LEGISLATION CITED: Clean Waters Act 1970 s 19(1) Protection of the Environment Operations Act 1997 s 120(1), s 241 Axer Pty Limited v Environment Protection Authority (NSWCCA 22 November 1993 unreported); Camelleri Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 ; Environment Protection Authority v Bega Valley Shire Council [1998] NSWLEC 187 ; CASES CITED: Environment Protection Authority v Timber Industries Limited [2001] NSWLEC 25; Ex parte Newman; re Fischer and McInerny [1969] 1 NSWLR 538; Neal v The Queen (1982) 149 CLR 305 ; R v Holder [1983] 3 NSWLR 245 ; Veen v Queen (No 2) (1988) 164 CLR 465 DATES OF HEARING: 21/02/01, 23/3/01 DATE OF JUDGMENT: 04/24/2001

PROSECUTOR Mr G Plath (Solicitor)

IN THE LAND AND MATTER No. 50032-4 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 24/04/01

Byron Shire Council ("the council") is charged by the prosecutor that in or about March 1999 it contravened s 19(1) of the Clean Waters Act 1970 ("the CW Act") in that it failed to obtain pollution control approval for the construction of a leachate evaporation pond for the storage of liquid wastes and/or leachate (charge 50034 of 2000). Secondly it is alleged that on 26 July 1999 at the Myocum Landfill, the council contravened s 120(1) of the Protection of the Environment Operations Act 1997 ("the PEO Act") in that it polluted waters (charge 50033 of 2000). Another charge (50032 of 2000) was not pursued by the prosecutor.

The council has pleaded guilty to each charge and accordingly the Court is required to assess the appropriate penalty in respect of each offence.

The parties have agreed upon the relevant facts. The council operates the Myocum landfill ("the tip") which is situated at Myocum, west of Byron Bay. Council has held a licence under the previous legislation, namely the Waste Minimisation and Management Act 1995 for the tip and now holds a licence in respect of such facility pursuant to the PEO Act.

The tip is constructed across a natural drainage channel which runs from the south of the tip along the floor of the valley to the north into a neighbouring teatree plantation known as Leela Teatree plantation ("Leela"). A pipeline beneath the tip permitted drainage to pass under the landfill without it being contaminated by leachate. The underground pipeline connects with an open drainage channel before it continues to pass through Leela and then join larger watercourses which flow into the Brunswick river. Above the pipeline a series of five leachate evaporation ponds were constructed over a period of years. Myocum experiences high rainfall which generates substantial leachate. Leachate is collected in either the northern or southern collection dams where it is pumped to the top of the landfill above the valley to large leachate evaporation ponds to enable natural evaporation to occur.

Prior to March 1999 there had been four leachate operation ponds in operation but due to the volume of leachate produced at the tip the council constructed another pond in March 1999 ("the fifth pond").

In the days preceding the 26 July 1999 heavy rainfall was experienced in the Myocum area and on the evening of 26 July 1999 the fifth pond overfilled and a large portion of the wall collapsed ("the 26 July incident"). In consequence, 870 m3 of leachate escaped with approximately 22 m3 of sediment from the collapsed wall. The leachate surged through vegetation, travelled down the valley floor and proceeded to the open drainage channel which passed through Leela. Inspections conducted on 27 July 1999 revealed considerable damage to vegetation and substantial quantities of rubbish and debris strewn along the drainage channel of the valley floor. Further, a large amount of silt was deposited in the valleys and channels leading towards Leela.

Photographs graphically show the breach to the wall of the fifth pond and the watercourses downstream. It is apparent from further investigations that the construction of the fifth pond was inadequate. The batters were too steep thereby rendering it weak and the surface comprised of old waste was unstable. Further, insufficient freeboard was allowed in the construction.

The fifth pond was constructed without the necessary approval required by the provisions of s 19(1) of the CW Act which relevantly provides:-

(1) A person shall not: (a) install, construct or modify any apparatus, equipment or works for: (i) … (ii) … (iii) the storage, treatment or disposal, in a prescribed manner or in prescribed circumstances, of matter of a prescribed class or description, or Although the fifth pond was intended to be a temporary measure to deal with the extraordinary rainfall that was experienced in the early months of 1999 council failed to obtain engineering or geotechnical advice prior to its construction. 9. Mr Randell Stewart Lee, an environmental scientist engaged by the prosecutor considered the cause of the failure of the fifth pond on 26 July 1999 to be as follows:- In my opinion the leachate dam wall failed due to stress and erosion caused by heavy rains during the lead up period 24-26 July 1999. Therefore in assessing the leachate concentrations, dilution from the direct rainfall on evaporation ponds needs to be addressed. The total rainfall measured at the landfill site for this three day period was 73.5 mm. After the dam failure dropped off to an average of 5 mm per day over the period from July 27 to 31 1999. 10. There was a history of environmental problems resulting from the use of the leachate dams at the tip in the months before the failure of the fifth pond. A Pollution Infringement Notice had been issued to the council by the prosecutor on 7 May 1999. On that day a council employee observed that a pipe passing from the evaporation ponds to the leachate collection pond had ruptured and that a pump was inoperative. In consequence leachate was syphoning back from the evaporation ponds to the leachate collection ponds and was escaping into the drain through the rupture in the pipe. It is estimated that 250 m3 of leachate flowed into the drain and downstream as a result of this incident.

There have also been several environmental incidents subsequent to the date of the offence. On 3 September 1999 the leachate collection dams overflowed and some leachate passed into the drainage channel. The overflow was caused by a fall of 54 mm of rain when the ponds were already near capacity volume. Following the incident council commenced to remove leachate from the ponds by tanker. Two hundred thousand litres of leachate were removed every second day. Such incident resulted in amendments to the licence of the tip in order to minimise the risk of further incidents. The new licence conditions require a stability analysis to be conducted for the evaporation ponds, for a freeboard of 1 m to be maintained in the evaporation ponds and a freeboard of 500 mm for the collection dams.

On 23 December 1999 it was found that approximately 30 L of leachate had escaped through the creek wall on the southern leachate collection dam due to weakening in the dam wall or failure in the pipe feeding the dam.

On 28 January 2000 the primary pump which removes leachate from the northern collection pond failed, as did a backup pump due to mechanical problems. Simultaneously the non-return valve failed and accordingly leachate syphoned back from the evaporation pond to the leachate ponds. This caused the northern collection pond to overflow and approximately 250,000 L of leachate escaped into the drainage channel.

In imposing a penalty the Court is required to consider the matters set out in s 241 of the PEO Act. Section 241(1)(a) requires the Court to consider the extent of harm caused or likely to be caused to the environment by the commission of the offence.

Mr Christopher William Hatton, an officer engaged by the prosecutor, investigated the consequences of the 26 July incident and observed that there was substantial debris passing from the site of the fifth pond to Leela. Tyres, plastics, and styrofoam was partially buried in sediment and trapped in vegetation along the watercourse. A large area of long grass had been flattened by the flow of liquid and gravel deposits littered the grass area.

Mr Lionel Stemp, the plantation manager for Leela saw a 'flow of black smelly water and froth flowing down the valley floor, through and over a silt pond constructed for our quarry'. He also observed rubbish deposits and gravel deposits on the valley floor of Leela and a collection pond which had been completely covered in silt with twisted PVC pipes protruding from the silt indicating that water had cascaded over the tip face. Along the valley floor he observed deposits of rubbish including car tyres, plastic bottles and styrofoam which had obviously been deposited by the surge of water on 26 July incident.

No lasting environmental harm has resulted from the 26 July incident although Mr Lee said that there was the likelihood of environmental pollution caused by the nature of the liquid which escaped from the pond and describes such liquid as follows:- Landfill leachate is a liquid that percolates through landfills as the result of infiltration of rainwater/groundwater and the decomposition of wastes. It typically contains high concentrations of dissolved substances and suspended solids. There is a general recognition in this country and overseas that landfill leachate may cause serious water pollution if it is not properly managed.

As to the composition of the leachate Mr Lee states:- The concentrations of nutrients (Total nitrogen, Ammonia, and total phosphorous) and organics (Phenols and poly-aromatic hydrocarbons) in the leachate surge as estimated from analysis of samples, taken at the Myocum leachate evaporation ponds between February and August 1999, were 2-3 orders of magnitude outside the current ANZECC water quality guidelines for aquatic ecosystems. The concentrations of trace elements estimated in the leachate surge were equivalent to or up to an order of magnitude greater than required levels from the guidelines. All trace elements were within ANZECC guidelines for agricultural irrigation water. In relation to environmental effect, Mr Lee concluded:- Nutrients were at concentrations where, according to the guidelines, excessive plant growth could be expected. Phenols and poly-aromatic hydrocarbons in the leachate surge were at concentrations where chronic toxic effects could be expected on the receiving aquatic ecosystem. No monitoring for either of these potential effects was undertaken after the leachate surge to either confirm or deny these expectations.

From observations by Mr Stemp on 27 July 1999 and Mr Cumming on 30 July 1999 described in their respective affidavits, it was clear that significant siltation and waste material deposited in the catchment below the landfill had occurred as a result of the leachate surge in July 1999. The effects of downstream siltation from the 22 cubic metres of dam material lost and the highly turbid leachate, could have had damaging effects on aquatic life in the receiving waters. Such effects would be caused by reducing light penetration, smothering of benthic organisms and their habitats, mechanical and abrasive impairment of the fills of fish and reducing the food supply and refuge for many bottom-feeding organisms.

With reference to the normal flow conditions in the creek downstream of the leachate dams it is also worth noting that the mere physical impact of a leachate surge of this magnitude (consisting of ~ 870 m3 of leachate plus ~22 m3 of sediment from the failed dam wall) would most likely have had a deleterious effect on the natural aquatic ecosystem in the path of the surge. 19. Despite these observations it is apparent from the affidavit of James Simon Begg, a senior environmental consultant engaged by HLA Envirosciences, that there has been no lasting environmental effects arising from the 26 July incident.

The Court is required to assess the practical measures that may be taken to prevent, control, abate or mitigate that harm as stipulated in s 241(1)(b) of the PEO Act. In this regard it is obvious that the council exercised full control over the Myocum tip and of its installations. Documents tendered in evidence show that the council was experiencing difficulty with its leachate collection system and was not unaware of its environmental responsibilities. From 19 January 1999 the council had been receiving expert advice from Envirotest, an organisation specialising in scientific assessment for environmental management. It appears that the council's efforts to devise an appropriate system for disposal of leachate was severely hampered by episodes of heavy rainfall experienced during the winter months of 1999. However despite the advice which council was receiving, council, at least in relation to the fifth pond, constructed the earthworks and installations without proper design, calculation or investigation.

Pursuant to s 241(1)(c) of the PEO Act the Court is required to consider the extent to which the council could have reasonably foreseen the harm which was caused or likely to be caused by the commission of the offence. In this regard, it is obvious that had proper attention been paid to the engineering requirements of the fifth pond, and had there been prior consultation with the prosecutor the inadequacies of the design and construction would have become apparent.

Section 241(1)(d) of the PEO Act requires the Court to take into consideration the extent of control over the causes of the offence that gave rise to the offence. Whilst the council could not exercise control over the rainfall, the council had total control over the construction and operation of the fifth pond which should have made adequate provision for collection of rainfall and run-off. The Court finds that the failure of the earth wall of the fifth pond occurred directly in consequence of council's neglect to take appropriate measures in the construction and operation of the fifth pond.

In Camelleri Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Kirby P succinctly stated the matters required to be taken into account by the Court in mitigation of penalty for environmental offences. In accordance with those principles the Court observes that the council has pleaded guilty to the offences and accordingly contrition maybe inferred (Neal v The Queen (1982) 149 CLR 305 at 315). Further, the council has co-operated fully with the prosecutor as is evidenced by the records of interview conducted by the prosecutor with two of the council's officers, namely Mr Andrew Jevans and Mr Brent Hayward. They established that the problems associated with the disposal of leachate had been continuing and the creation of the fifth pond was an attempt, albeit misguided, to address that problem. Although the defendant had received infringement notices for offences before the 26 July incident they related to the continuing problems with leachate disposal.

In Axer Pty Limited v Environment Protection Authority (NSWCCA 22 November 1993 unreported) Mahoney JA observed:- 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 taken so as to ensure that pollution will not occur.

The council, as a public authority ought to have obtained competent advice from its experts and ought to have consulted with the Environment Protection Authority prior to construction of the fifth pond. The evidence establishes that such pond failed due to stress as well as other design problems which would have been avoided had appropriate advice been taken. The fact that no demonstrable environmental harm appears to have been sustained does not detract from the seriousness of the offences with which the council has been charged (see Environment Protection Authority v Bega Valley Shire Council [1998] NSWLEC 187 per Sheahan J).

The council urges the Court to take into consideration the totality principle as discussed by Kirby P in Camilleri and by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260. That is, the penalties for each of the offences should be aggregated. With regard to the failure of the council to obtain the requisite approval for the earthworks construction, the prosecutor had informed the council as early as April 1999 that it was 'deeply concerned about the potential for leachate contaminated surface waters leaving the landfill property'. In view of such warning, council must have been on notice that its method of disposal of leachate required close attention and expert assistance.

The prosecutor submits that a penalty notice imposing $600 for the discharge of 250,000L on 7 May 1999 should be taken into consideration in assessment of penalty upon the basis that payment is an admission of guilt (Ex parte Newman; re Fischer and McInerny [1969] 1 NSWLR 538) and for the purposes of reviewing criminal history in assessing penalty (see Veen v Queen (No 2) (1988) 164 CLR 465 at 477). The other incidents, as detailed above, are also relied upon by the prosecutor as matters to be taken into consideration in the assessment of penalty. However such matters do not relate specifically to the failure which occurred on 26 July 1999 and at most such incidents are only symptomatic of the fact that the management of the leachate problem at the tip was grossly unsatisfactory.

The defendant has acknowledged that it did not obtain the requisite consent as required by s 19(1) of the CW Act for the construction of the fifth pond. The evidence does not however reveal whether such omission resulted from ignorance of the legislative requirements or otherwise. The Court is prepared to infer that the failure to obtain consent was not deliberate, but an oversight. The Court also notes, as stated previously that the defendant by its employees has co-operated extensively with the prosecutor, and that the defendant notified the prosecutor of the failure of the fifth pond within hours of the occurrence. Lastly in relation to such failure, the Court accepts that it resulted from the extraordinary rainfall that occurred in the three days preceding the offence. Each of these factors warrant a substantial reduction in the penalty.

The maximum penalty prescribed for a breach of s 19(1) of the CW Act is $125,000 in respect of a corporation pursuant to s 8B(1) of the Environmental Offences and Penalties Act 1989. In respect of the charge pursuant to s 120(1) of the PEO Act, the maximum penalty is $250,000 in respect of the commission of an offence by a corporation.

Section 22 of the Crimes (Sentencing Procedure) Act 1999 specifically requires the Court to consider a plea of guilty when assessing penalty. The Court also is required to consider an appropriate discount in view of the plea of guilty in accordance with the principles stated by the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 and in respect of each charge the defendant is entitled to a discount of 25% of the total penalty. Although the pleas of guilty were not made until the third return day this may still be considered 'early' in the proceedings sufficient to give a substantial discount (see Environment Protection Authority v Timber Industries Limited [2001] NSWLEC 25).

Accordingly, in respect of the failure to obtain pollution control approval contrary to s 19(1) of the Clean Waters Act 1970 the Court imposes a penalty in the amount of $40,000 reduced by 25% to $30,000. In respect of the charge of polluting waters contrary to s 120(1) of the Protection of the Environment Operations Act 1997 the Court imposes a penalty of $80,000 reduced by 25% to $60,000. There should be no further reduction under the 'totality' principle (see Camelleri Stockfeeds Pty Limited at 703-704) in view of the fact that both charges have been considered together and appropriate discounts already made in respect of the pleas of guilty.

That in respect of charge 50034 of 2000 the defendant is convicted and fined the sum of $30,000.
In respect of the charge 50033 of 2000 the defendant is convicted and fined the sum of $60,000.
The defendant is ordered to pay the costs of the prosecutor for both charges assessed in the sum of $8,100.
The exhibits be returned.

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