Environment Protection Authority v Chillana Pty Ltd

Land and Environment Court (NSW)|2010-07-01|Before: Sheahan J, Bignold J

CITATION : Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255

PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Chillana Pty Ltd

KEY ISSUES: PROSECUTION :- Plea of guilty - water pollution - actual and likely environmental harm - sentencing principles - s 250 orders instead of fine - investigation expenses and costs - capacity to pay

Aref Rahme v R (1989) 43 A Crim R 81 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 Environment Protection Authority v Rail Infrastructure Corporation [2002] NSWLEC 37; 119 LGERA 409 Environment Protection Authority v Cargill Australia Limited [2007] NSWLEC 337 Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280;163 LGERA 71 Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187 Environment Protection Authority v CSR Building Products Ltd [2008] NSWLEC 224 Environment Protection Authority v Pal [2009] NSWLEC 35 Environment Protection Authority v Albury City Council [2009] NSWLEC 169 CASES CITED: Environment Protection Authority v Ramsay Food Processing Pty Ltd [2010] NSWLEC 23 Environment Protection Authority v Straits (Hillgrove) Gold Pty Limited [2010] NSWLEC 114 Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120 Environment Protection Authority v Ramsay Food Processing Pty Ltd (No.2) [2010] NSWLEC 175 Georgopolous v R [2010] NSWCCA 246 Markarian v The Queen [2005] HCA 25, 228 CLR 357 Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 R v McNaughton [2006] NSWCCA 242, 66 NSWLR 566 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Storey [1998] 1 VR 359 R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 State Pollution Control Commission v White Wings Limited (unreported, Bignold J, Land and Environment Court, 1 November 1991) Veen v R (1979) 143 CLR 458

DATES OF HEARING: 23 June 2010, 24 June 2010, and 25 June 2010 (written submissions re proposed orders)

PROSECUTOR Ms M England, Barrister SOLICITORS Department of Environment, Climate Change and Water LEGAL REPRESENTATIVES: DEFENDANT Mr T Howard, Barrister SOLICITORS Minter Ellison

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50040 of 2009 Environment Protection Authority v Chillana Pty Ltd

JUDGMENT Introduction 1 His Honour: The defendant company has pleaded guilty to an offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("POEO Act") in respect of polluting waters, namely Salty Creek and the Castlereagh River, with untreated "abattoir effluent", from the premises apparently leased by the defendant-owned Bunganbah Meat Co, between 7 and 13 August 2008. 2 Bunganbah's relevant operation is on the western side of Binnaway Road, near the town of Binnaway (population approximately 500) and some 12km south of Coonabarabran. The defendant company is a wholly owned family concern of Beres and Kim Lang, and it employs about 30 full-time workers in the abattoir operation, making it a substantial contributor to local commerce. 3 Mr Lang has worked in the industry for some 42 years. The Langs have run the business for 15 years, the first ten in a partnership (with one Scifleet), and the last five on their own account. The abattoir now operates as a "kill and chill" service provider. Mr Lang and his wife are both very "hands-on", working full-time in the business, he as works manager and she as bookkeeper. Both Mr and Mrs Lang attended the whole hearing, and Mr Lang gave both affidavit and oral evidence. 4 The company is the current holder of the relevant longstanding Environment Protection Licence (No.6032) covering its abattoir premises, and various lands and easements, and the Prosecutor asserts breaches of the licence as the cause of the pollution incident charged. The company made full admissions in a Record of Interview given by Mr Lang on 20 February 2009. The class 5 summons was issued on 5 August 2009, and the defendant entered its plea of Guilty at the very first directions hearing on 18 September 2009. 5 There is no real dispute between the parties about the facts regarding the actual pollution incident. The major issues at the hearing were the extent of environmental harm caused, and the capacity of the Defendant to fund a suitable penalty, and/or its compliance with an appropriate order made by the court under s 250 of the POEO Act. 6 In par 42 of her written submissions, Ms M England, counsel for the Prosecutor, indicated that she would seek the following orders: " 1. That the offender be convicted of the offence charged. 2. That the offender be fined and/or be subject to a s.250(1)(c) order. 3. That there be publication pursuant to s.250(1)(a). 4. That the offender pay the prosecutor's costs of the proceedings. 5. That the offender pay the prosecutor's investigation costs and expenses." 7 The Prosecutor incurred investigation expenses of $16,070.58 (affidavit of Kharl Turnbull 17 June 2010), and estimates its legal costs at $42,000. 8 Section 250(1)(a) and (c) provide that the court may: "(a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person, … (c) order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit". 9 In par 10 of his written submissions, Mr T Howard, counsel for the defendant company, indicated that he did not oppose any of the five orders sought, subject to his not agreeing to the quantum of legal costs, and wishing to negotiate the terms of the publication order. The offence and the response to it 10 On 27 November 2009 the parties agreed on a statement of facts with voluminous annexures, including relevant photographs and analysis results (Exhibit P1, tab 2). The court will retain the filed copy of that Statement of Agreed Facts ('SAF'). Only its essence is distilled in these reasons, for the sake of brevity. The court has also had the benefit of other photographs, some included in the Prosecutor's bundle of documents (Exhibit P1, tab 4), and others in one of the expert's reports (affidavit of Marcus Lincoln-Smith). 11 Effluent generated during the abattoir's operations, principally animal blood and by-products, is pumped into a "save-all", a device designed to collect it and strain out of it gross solids, so as to reduce its viscosity. The effluent is then pumped at 560 litres per minute through 800m of mainly underground PVC pipe. The pipe is laid uphill for about 400-500m, crosses Salty Creek at-grade, and then proceeds on to treatment ponds south-east of the plant. 12 Salty Creek is located approximately 500m south of the abattoir and is a tributary of the Castlereagh River. It runs generally west at that point, and was flowing at the time of the incident. 13 Binnaway Road crosses Salty Creek approximately 250m upstream of its confluence with the river, and 15km upstream of Binnaway. The creek flows through a culvert, for a distance of 30-50m, beneath the road at that point. 14 The pipe fractured at a point at or near the top of a hill in a paddock on the northern side of the creek; it lay approximately 50cm beneath the surface at that point, and it is believed to have fractured as a result of contact with an underground rock. It is estimated that the pipe became fractured shortly before 7 August 2008. 15 The crack was 10cm in length. It remained undetected for some six days, and during that time untreated effluent, under pressure, saturated nearby soil, and then flowed down the slope into a surface water diversion drain, 50m long by 2-3m wide - an overland distance of 400-500m. That drain overflowed, resulting in the escape of the effluent into Salty Creek, at a shallow point approximately 15m upstream of the culvert under Binnaway Road. Effluent then flowed along the creek for a distance of 250m to the confluence of Salty Creek and the river. 16 The incident was discovered by a Department of Fisheries auditor, Kirby Byrne, on 12 August 2008, and notified to the Department of Environment, Climate Change and Water ('DECCW') at 4pm on 13 August 2008. DECCW officers Kharl Turnbull and Bradley Tanswell attended the site promptly (6.35pm), and discovered extensive contamination of the creek downstream of the culvert. The creek was "blood red" in colour, with a froth of animal fat on some of the water surface and rocks, and it smelt strongly of abattoir effluent. The officers traced the flow path for 400-500m, and observed both its "fanning" to a width of 15-18m, and dispersal of solids along its course. Water upstream of the culvert was clear. 17 At 7.30pm on 13 August, Mr Turnbull advised Mr Lang of the leak and he promptly attended the plant and turned off the pump at the "save-all". 18 Turnbull and Tanswell were on-site for 4.5 hours on 13 August, and for 3.5 hours on 14 August, and Turnbull alone for 2 hours on 15 August. Not all of that time was spent at the creek, but some sampling was done. A 65 minute video was filmed on 14 August, and a 10 minute video on 15 August (see T24.6.10, pp22-23). 19 Follow-up remedial works were performed expeditiously by Mr Lang at the direction of the Prosecutor, involving pipe repairs, sandbagging, and pumping effluent from the creek back to the "save-all" (detailed in the SAF at pars 35-37). Mr Lang (at par 10 of his affidavit) deposed to the following actions taken by the Defendant and its employees, in consultation with DECCW officers, upon notification of the incident: "(a) turning the high-capacity pump off immediately upon being notified of the pollution incident; (b) identifying the cause of the incident, being the fractured underground pipe; (c) excavating and repairing the fractured underground pipe on 14 August 2008; (d) attending to the sandbagging of Salty Creek to prevent any further contamination; (e) hosing down the culvert beneath the road and any potentially contaminated rocks in the surrounding area; (f) the construction of an embankment upslope to prevent any further contamination of Salty Creek; (g) the construction of an embankment within Salty Creek to prevent clean water flowing downstream and becoming contaminated; (h) the construction of an embankment within Salty Creek to prevent further untreated effluent from discharging into the Castlereagh River; (i) the pumping of untreated effluent from the Table Drain and Salty Creek at intervals over a period of several weeks to the Save All and the treatment ponds; and (j) the removal of approximately 32 cubic metres of fat and contaminated soil from the area of the flow path." 20 The cost to the company of this response was $7,400 and at least 200 hours of employee labour (par 11 and SAF 38). 21 Under cross-examination, Mr Lang gave evidence that he also personally scrubbed the rocks and the causeway of the pumped-dry Salty Creek with a broom, to remove the film of fatty material (T23.6.10, p22, LL3-11 & 29-32). 22 It rained in the local catchment area on 22 August, 31 August, and 5-6 September 2008. (I note some discrepancy between the SAF and the Bureau of Meteorology extract of rainfall). This rain required intermittent pumping of the creek over several weeks because the runoff from rainfall mixed with the remaining untreated effluent. 23 Further sampling was conducted over several months. Results are annexed to, and summarised in, the SAF. The precise volume of escaped effluent is not known, but the SAF includes the following relevant paragraphs: " 47. During the period of time that Untreated Effluent was escaping from the fractured Underground Pipe, the Defendant conducted the Licensed Activities five days per week. The volumetric capacity of the Save-All is 8400 litres. On each of the days that the Underground Pipe was fractured, the Defendant pumped an average of 107,520 litres of Untreated Effluent from the Save-All to the Treatment Ponds through the Underground Pipe.

The Defendant pumped approximately 126,000 litres from the Diversion Drain between 14 and 22 August 2008 (which included the pumping of contaminated rainwater following rainfall of approximately 10 millimetres on 22 August 2008), and an unknown volume of Untreated Effluent from the Creek.

The Defendant also removed approximately 32 cubic metres (being four tip truck loads) of fat and contaminated soil from the area of the flow path ." 24 The key allegation against the defendant company is that it failed to act adequately to prevent such pollution, in that it had no regular inspection programme for the pipe, and did no pressure testing on it, and that it should have fitted flow meters to the pumping system. While Mr Lang has said (SAF par 51) that he would prefer to "walk the line every day", rather than rely on such technology, such walks occurred, in fact, only about once in every three weeks. 25 The SAF goes on to say: " 52. Records produced to the Prosecutor by the Defendant show that its environmental consultant had previously recommended that the Defendant install flow metres on the outlet from the Treatment Ponds to the Utilisation Area. The Defendant did not do so. However, the installation of such flow metres would not have allowed the Defendant to determine the existence of a leak in the Underground Pipe and therefore would not have prevented the offence.

Had the Defendant installed flow metres to each end of the Underground Pipe, the Defendant would have been able to more immediately determine the existence of a leak in the Underground Pipe by simply reconciling the volumes of Untreated Effluent passing into and exiting from the Underground Pipe at either end." Expert Evidence of Harm and Likely Harm 26 The Prosecutor estimates 98,000 litres of escaped effluent reached the creek, but the Defendant says that some of the assumptions behind the estimate are questionable. The Defendant does, however, concede that a "significant quantity" of effluent was discharged, and submits that quibbling about the figures ought not materially affect the "appropriate sentence" the court should, on the objective evidence, impose. 27 For expert evidence the Prosecutor relies on DECCW's senior environmental scientist, Geoff Coade, and the Defendant on Dr Marcus Lincoln-Smith, of Cardno Ecology Lab. The two experts provided evidence on the extent of harm caused to the creek, and on what harm was likely to have been caused to the river. They agreed on some issues and not on others. The court had the benefit of their original reports, verified on affidavit, as well as their joint report (Exhibit P1, tab 3), and the supplementary oral evidence they gave concurrently over two hearing days. 28 Joint conferencing and the giving of concurrent evidence failed to close most of the gaps between the opinions of the two experts, but they agreed on their definitions of "actual harm" to the creek and "potential harm" to the river. Both withstood searching cross-examination. I turn now to summarise briefly their extensive and highly technical evidence. 29 Both experts agree that Salty Creek was "degraded", and far from "pristine", prior to the incident. When asked to "rate" the creek, before and after the incident, both had reservations about using a numerical scale from one (degraded) to ten (pristine). Dr Lincoln-Smith noted (affidavit pp33-34) that the entire section of Salty Creek affected by the pollution was "greatly modified by human activities prior to the discharge, with a large proportion comprising the culvert floor and with sediments at least partly derived from bank erosion of the adjacent banks which have been disturbed by previous human activities". He declined to use numbers at all, but, when pressed, Mr Coade opined ratings of "5-6" before, and "2-3" for some time immediately after the spill. Both accepted that the spill reduced the creek from "somewhat degraded" to "severely degraded" or "strongly depauperated" (T24.6.10, p15, LL9-40). 30 Mr Coade first became involved in October 2008 (T24.6.10, p13), and so was heavily dependent on the information already collected by the Prosecutor, including sampling results. He concluded (in par 18 of his report) that the significant BOD5 values (5 days of Biochemical Oxygen Demand at 20oc) recorded in the flowpath, corroborated by the COD (Chemical Oxygen Demand) concentrations (pars 19-20), make it "almost certain that the Untreated Effluent that entered into the Creek… had a significant potential to substantially reduce the dissolved oxygen [DO] in the creek". Low DO poses a serious threat to aquatic fauna, and Mr Coade estimates (par 42) that DO would have been zero in the creek within a few hours of the discharge reaching it. Zero DO would be "lethal to most aquatic fauna". 31 Mr Coade explained in his oral evidence that the BOD values which were measured in the samples, some of which exceeded 4,000, should be contrasted with domestic raw sewage, which has BOD values of 100-400. He further commented that: " If it had been sort of 50 or 100 you'd … say… maybe that caused an effect, maybe it didn't. But once you get up into those levels I think it's almost certain that you're going to deplete the oxygen in the water ." (T23.6.10, p61, LL9-13). 32 He also opined (pars 25 and 44) that untreated effluent in the flow path samples contained ammonia levels "most likely to have been lethal", and "highly toxic", and (pars 33 and 46) "relatively high" nutrient concentrations detected in the flow path posed serious threats to aquatic animals. High nutrient levels could have the effect of eutrophication, a process where aquatic flora becomes overproductive, and adversely affect the ecology of waters when they eventually die. 33 Mr Coade opined (in par 37) that his estimate of 98,000 litres reaching the creek (explained at some length in par 38 of his report and in Exhibit P2) was "conservative". Mr Coade explained that 98,000 litres represents 13% of the volume of effluent calculated to have been pumped out of the fracture (see pars 39-40). 34 In his report, expressing many disagreements with Mr Coade's report (pp13-15), Dr Lincoln-Smith expressed little confidence in the 98,000 litre estimate of volume. He said "the uncertainties of the assumptions made it problematic to calculate with any certainty either the proportion or volume of effluent in the creek on 13 August". 35 Mr Coade was extensively cross-examined on his calculations of the volume of the discharge, and Mr Howard submitted that the Prosecutor cannot rely on any inferences that a significant amount of effluent reached the river. 36 Mr Coade concluded (pars 41ff) that on the day the pollution incident was reported (13 August 2008) "actual harm to the creek … was extensive", as a result of absence of DO, and high levels of ammonia and nutrients. He found (in pars 47-51) "a small lingering residual effect" on the creek as at 23 October 2008, that, accordingly, the "temporal extent of actual harm to the creek … was in the order of two months", and that "the cumulative temporal impact … was approximately 4 months in duration". 37 He noted (pars 52-3) the absence of any evidence of fauna in the creek, but considers it likely that "water-dependant (sic) fauna resided in the creek prior to and on 7 August 2008", and that "the toxicity engendered … would have been lethal to such fauna". 38 Dr Lincoln-Smith's evidence was critical of the sampling techniques of DECCW officers. In particular, he suggested that samples should have been collected from greater depths of the pools in Salty Creek (in order to avoid the effects of possible stratification where the effluent would float rather than mix). He also suggested that the descriptions of where samples were taken were poor and GPS positions should have been taken. Finally, he suggested that the lack of evidence in relation to mortality suggested that mortality was not on a major scale (at p35 of his affidavit). 39 Dr Lincoln-Smith pointed to several features of the creek which provide pollution-mitigating factors: A. The untreated effluent flowing through the culverts would have been degraded by oxygen due to the large surface area and shallow depth. B. The high conductivity of Salty Creek could have led to the stratification of the water, particularly in the pools, and provided a refuge for some aquatic organisms. C. Some animals could have migrated away from the effluent, and, hence, it would be unlikely there was complete mortality of biota. 40 He considered (at p11) that, independent of the pollution incident, the creek was, at all material times, "highly modified", had "high electrical conductivity", excessive "nutrients", low biological diversity, and evidence of an aquatic pest (the mosquito fish). Nevertheless, he accepts that there would have been "some", but not "major" or lasting, actual harm to the creek, and that several aquatic habitats were potentially at risk from the discharge. However, he opines that threatened fauna had opportunities in the creek to escape the impact of the pollution. 41 The experts agreed that the spill would have caused actual harm to the environment of Salty Creek, as evidenced by the measured chemical changes. DO concentrations in the creek on 13 August were not reported, and presumably were not measured. Some aquatic organisms might have been able to avoid the effects of the spill by relocating to better water quality upstream or downstream. There were no reports of dead or injured aquatic organisms observed in or around the vicinity of the spill on or following 13 August 2008. 42 Mr Coade believes that there is almost certain association of very high measured BOD5 and zero DO. High BOD5 readings, in the absence of measured DO concentrations, inform his "strong opinion" that DO concentrations on 13 August were almost certainly zero. He made an adjustment for the fact that the test results were obtained in the laboratory, rather than in the creek. "The dissolved oxygen concentration would be zero within several hours of the ingress of the discharge". Even if organisms were able to avoid negative effects by relocation, they were in fact still "harmed" by having to change their behaviour. 43 Dr Lincoln-Smith, in holding that water column stratification would have afforded refuge for organisms in the affected part of the creek, relied on the creek's high salinity, measured by its high electrical conductivity, to make stratification more likely, as high salinity waters are more dense and "fall to the bottom", whilst the less saline effluent would float on top. While it is likely that the effluent constituted a large portion of the flow in the creek, there is no evidence presented to indicate that the effluent displaced all the water in the pools. 44 Dr Lincoln-Smith also relied on the stratification effect to conclude that the samples taken by DECCW officers from the surface of the creek contained higher concentrations of effluent, and, therefore, showed higher BOD values and ammonia levels. He believes that, as all samples were taken from the creek surface, they therefore represent "the worse (sic) possible condition within the creek". 45 Mr Coade believes that commenting on stratification is "conjectural and based on no measurements, except for the electrical conductivity measurements". It was accepted that stratification is caused by density differences within a water body. However, he points to the differences in salinity between Salty Creek water sampled upstream, and water sampled in the pools, as being relatively small and unlikely to sustain stratification in the few pools which are assumed to be generally less than 1m deep. Further, he believes stratification of pools within the affected parts of the creek in the month of August is unlikely, owing to the colder temperatures. Water column temperature differences are just as likely to drive stratification and, in August, diurnal temperature variability is most likely to induce vertical mixing in pools, rather than promote stratification. 46 Dr Lincoln-Smith believes that the extent of any actual harm is likely to have been small. Salty Creek has very high levels of dissolved salts (electrical conductivity). Elevated conductivity appears to be due to natural geological processes and not related to the discharge which had much lower conductivity. High conductivity can be toxic to many aquatic organisms and it is likely that Salty Creek is naturally depleted of a range of organisms that should be present in similar water courses. Dr Lincoln-Smith is of the opinion that there would be fewer organisms present that could have been subjected to harm from the effluent. He also lists the likely human activities that have caused previous harm to Salty Creek, reducing the quality of the aquatic environment. 47 Dr Lincoln-Smith opines that there is an inadequate level of detail on the ecology of the creek following the spill to support conclusions of actual harm to aquatic flora and fauna. No dead organisms were observed or reported; the culverts had a "braiding" effect on the passage of the effluent separating from upstream creek water; "in stream processes" would quickly alter the characteristics of the effluent; fauna would find refuge in the deeper areas of the creek; other organisms would have a high chance of survival in sediment and are likely to have received natural creek water from the sub-surface flow of ground water; some fauna would be able to leave the water altogether; and other fauna, e.g. fish, would be able to migrate downstream into the river. He disagrees that organisms are harmed by relocation. 48 The experts do not agree on the reliance on COD and BOD5 to infer oxygen depletion. Mr Coade said BOD5 is a reasonable indication and has been used historically, whereas Dr Lincoln-Smith believes the use of COD and BOD5 "does not provide an appropriate basis for predicting concentrations of dissolved oxygen (and hence predicting harm to aquatic fauna) within the creek". 49 Dr Lincoln-Smith disagrees "most strongly" that the values for BOD represent water quality after in stream processes have occurred. Laboratory processes are "very different to what would have occurred in Salty Creek". BOD values do not reflect conditions within the creek, but they do indicate the presence of in stream processes. Further, he believes using BOD or COD as a measure of DO was not in accordance with the ANZECC protocols. 50 Given Mr Lang's evidence that the creek was pumped dry, post-event, at various points to remove the effluent, both experts accept that most aquatic fauna would have been affected and that any micro-organisms would be removed. 51 The experts are also agreed that concentrations of ammonia in the creek exceeded the trigger values for their toxic effects by factors of 60 to 90. Dr Lincoln-Smith would not accept that it would have been lethal to all aquatic fauna at the time. However, he concedes that the high ammonia levels lead him to conclude that there "would be little doubt that some micro-organisms would have been killed by the spill". 52 On the question of potential harm to the river, the experts agree that there was some potential for harm to the aquatic flora and fauna as a result of the discharge, but the dilution afforded by the relatively large volume of the river near the creek would mitigate the effects of the discharge. 53 Mr Coade believes there would have been "disturbance" to its aquatic ecosystem by eutrophication during the incident and, therefore, the potential for environmental harm (see pars 54-64). He concedes that the only samples to infer likely harm to the river is based on samples taken at the inlet upstream of the confluence with the river. He observes that "the incremental (but unknown) loads of nutrients that got into the river would be potentially harmful because of increased risks of eutrophication. These effects would not necessarily be realised locally or immediately, but would be downstream and, at some time (days to weeks) after the spill event". 54 Dr Lincoln-Smith does not accept that there was any prospect of real harm to the higher-volume river. He refers to the substantial reduction in nutrient levels, between the confluence of the creek and river, and the affected areas of the creek, to suggest that the large volume of receiving waters of the river would have diluted the effluent flow (p34 of affidavit). He believes that the influx of nutrients into the river may represent a change in water chemistry, but not necessarily harm. His opinion is that it was likely the potential harm would be small, given the rapid dilution of water from Salty Creek in Castlereagh River, and the fact that no officers observed any evidence of eutrophication in the river. 55 On residue effects as at 23 October 2008, they agree that there was elevated ammonia, but that it was not at a level considered toxic. Mr Coade says it indicates "a continuing but slight unusual perturbation of the chemical environment of the creek" and, therefore, actual harm, but minimal. Dr Lincoln-Smith does not accept that it demonstrates actual harm and he believes there was limited potential for harm at that time. Finding on Extent of Harm and Likely Harm 56 Both experts impressed the court with their competence, frankness and sincerity, and the insistent nature of their evidence injects some doubt into the power of the alternate views expressed. In R v Olbrich ("Olbrich") [1999] HCA 54; 199 CLR 270, at [27], the High Court adopted a principle enunciated by the Full Court of the Victorian Supreme Court in R v Storey [1998] 1 VR 359, at 369, that a sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities". 57 Counsel are agreed that the term "likely" harm connotes "a real, not remote, chance, and does not mean more probable than not" (Prosecutor submissions, par 15, and Defendant submissions, par 17). The Olbrich principle means that courts should not speculate, and too easily draw inferences. As Mr Howard said (in submission par 19), the court should not "speculate as to a remote chance rather than a realistic possible scenario". He also submitted (T24.6.10, p51, LL3-7) that "something that is known not to have happened cannot be likely …", and harm "likely to be caused" requires "an assessment of what may have happened which can't be proved". See Axer Pty Ltd v Environment Protection Authority ("Axer") (1993) 113 LGERA 357. 58 It is admitted by the Defendant, as charged, that a very substantial amount of untreated abattoir effluent entered the degraded Salty Creek and extensively contaminated it over a distance of 250m to the Castlereagh River, where it was diluted and dissipated. It is further accepted that at least the ammonia generated in the creek, if not other pollution caused by the spill, would have killed some if not all aquatic life present at the time, but there is no evidence of pre-spill populations, nor of mortality or distress post-spill (see T24.6.10, pp48-50). The creek was then further harmed by pump-out and clean-up activities undertaken by the Defendant, at least to some extent on instructions from the Prosecutor. 59 The court has had the benefit of many photographs showing the extent of the spill along the creek, and its aftermath, and has no doubt that the spill caused significant actual environmental harm along Salty Creek for some weeks. The court also accepts that pumping the creek dry would also have caused some further harm, albeit necessary to mitigate more serious harm. However, there is insufficient evidence to conclude that lasting harm was caused to the creek, beyond a period of a maximum of two months, and the court acknowledges that the creek was already a highly modified and disturbed environment prior to the spill. 60 There is also insufficient evidence to conclude that there was more than very minor and short-term harm caused to the Castlereagh River. Sentencing Considerations 61 Under s 123(a) of the POEO Act, the maximum penalty for the offence is $1,000,000 for a corporation (and a further penalty of $120,000 for each day the offence continued, although a daily penalty is not sought by the Prosecutor). As the maximum penalty reflects the Parliament's expression and the community's perception of the gravity of the offence, the appropriate penalty should be determined with reference to it: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 683. 62 Section 241 of the POEO Act lists a series of factors to be taken into account in sentencing for offences against that Act, including (a) extent of harm, (b) practical measures available, (c) foreseeability of harm, and (d) extent of Defendant's control over causes. Other relevant considerations appear (with some overlap) in the Crimes (Sentencing Procedure) Act 1999 (CSP Act), especially ss 3A, 21A, 22, and 23, and I adopt for this case my review of those provisions in Environment Protection Authority v Pal ("Pal") [2009] NSWLEC 35, at [73]ff. 63 The only aggravating factor listed in s 21A(2) of the CSP Act relevant to the present case is "(g) … harm, loss or damage", with which I have dealt above. 64 However, the following mitigating factors listed in s 21A(3) of the CSP Act apply in this case: (f) good character; (g) unlikely to re-offend; (i) remorse; (k) plea of guilty (see also s 22); (l) pre-trial disclosure by the defence (see also s 22A); and (m) assistance to law enforcement authorities (see also s 23). 65 Section 3A of the CSP Act states the purposes of sentencing. The factors usually relevant to environmental offences are: "(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, … (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." 66 The adequacy of the penalty imposed ((a) and (e) above) should be determined by what the higher courts have called an "instinctive synthesis" which pays due regard to the subjective and objective features of the offence and offender, in light of the maximum penalty. See Markarian v The Queen [2005] HCA 25, 228 CLR 357; R v McNaughton [2006] NSWCCA 242, 66 NSWLR 566; Georgopolous v R [2010] NSWCCA 246; Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246, [11]-[13]. As summarised by Biscoe J in Environment Protection Authority v Ramsay Food Processing Pty Ltd [2010] NSWLEC 23, at [154]: " The sentence must fit the crime as well as the criminal. That is, it must reflect the objective circumstances of the offence and the personal or subjective circumstances of the defendant : Veen v R (1979) 143 CLR 458." 67 In pollution cases, both general and specific deterrence ((b) above) are relevant. Positive precautions must be taken, and pollution licence conditions observed, by industry, to ensure that pollution events, including accidental events, do not occur: Axer, at 359; Environment Protection Authority v Baiada Poultry Pty Ltd ("Baiada") [2008] NSWLEC 280;163 LGERA 71, at [30]-[31]. 68 Objectives (f) and (g) may be well served by the making of appropriate orders under s 250 of the POEO Act (see [8] above).

Considerations under s 241 of the POEO Act 69 Extent of environmental harm is one relevant factor under s 241(1)(a) of the POEO Act, and an aggravating factor under s 21A(2)(g) of the CSP Act. In this case there is no suggestion of any threat to human health, but "actual", and temporarily quite serious, environmental harm was clearly caused by this leak, and the Defendant accepts responsibility for that. 70 Whilst Salty Creek was clearly degraded prior to the pollution event, there should be no reduction in penalty simply because the Defendant discharged effluent into degraded waters: State Pollution Control Commission v White Wings Limited (unreported, Bignold J, Land and Environment Court, 1 November 1991). However, as Mr Howard submitted (pars 22-23), the pre-spill state of the creek is relevant to the court's inquiry under s 241(1)(a) of the POEO Act as a baseline reference for the assessment of the harm caused by the offence. Environment Protection Authority v Rail Infrastructure Corporation [2002] NSWLEC 37; 119 LGERA 409 at [80] per Talbot J; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at [13]-[15] per Cowdroy J. 71 The spill continued over a six day period. It came to notice, and then to an end, only as a consequence of the fortuitous presence in the area of the Department of Fisheries auditor who discovered and reported it. 72 The Defendant rightly accepts that it could have taken "practical measures to prevent … or mitigate [the] harm", as envisaged by s 241(1)(b). 73 Baiada was also a case where an effluent pipe ruptured, causing pollution of waters. Preston ChJ held (at [27]ff) that the rupture and the pollution were reasonably foreseeable, and indicated (in [30]-[33]) that those enjoying the benefits of piping should take active steps (1) to form a positive belief in the integrity of the pipe, (2) to monitor that integrity, and (3) to prevent pollution resulting from a loss of integrity. 74 At the time of the incident, Mr Lang and his wife had no reason to believe that there were any problems with the pipe, but they have "learnt from the incident the importance of monitoring the flow of the underground pipe [and] accept that we were too complacent about the functioning of the pipe before the incident occurred" (Lang affidavit, pars 13-14). Mr Lang conceded that an environmental consultant had recommended flow meters be placed at either end of the effluent pipe to alert the operator to differences in pressure and volume (SAF pars 51-53). Although flow meters would not have prevented a fracturing of the pipe, "the defendant would have been able to more immediately determine the existence of a leak" with the assistance of such meters (SAF par 53). The ability to detect the fracturing of the pipe, and any resulting spillage, at an early stage would have reduced the extent of harm caused by the offence. 75 Periodical testing of pressure in the line (SAF par 54) is another suggested precaution. All these options were "reasonably open" to the Defendant at the time of the offence (SAF par 55). 76 With regard to "practical measures … to control, abate or mitigate the harm", Mr Lang's affidavit sets out (pars 15-16) all the actions taken by the Defendant in consultation with DECCW, by way of clean-up and mitigation of harm (see [19] above). He did everything required by DECCW and its officers to clean up the effluent, and personally scrubbed the rocks with a broom. As noted above, the immediate clean-up works cost the Defendant $7,400 and took approximately 200 hours of employee time to complete, possibly more. 77 Sections 241(1)(c) and (d) of the POEO Act nominate foreseeability of harm and control over causes of the offence as factors to consider. The Defendant accepts that it is clearly culpable in these respects, albeit there is no evidence of intention to offend nor of commercial motivation: Environment Protection Authority v Albury City Council [2009] NSWLEC 169. Clearly harm from the clean-up work was also a foreseeable risk associated with the spill, but it would not be appropriate to impose an additional penalty in that respect.

Considerations under Crimes (Sentencing Procedure) Act 78 On the question of character (s 21A(3)(f)), the only blemish on the "character" of the Defendant (or its present directors) is a Penalty Infringement Notice issued on 20 October 1998 for the offence of polluting the waters of the Castlereagh River. This offence was the result of failure to properly contain the discharge of fluid and stormwater runoff from animal by-products from the same business premises. The "on-the-spot" fine for the offence was $600. I do not see this as an aggravating factor under s 21A, nor should it be a significant factor in the court's consideration of an appropriate sentence. The present directors were not in control of the operation at that time and a long time has since elapsed with no record of any transgressions. He also told the court that he had only ever been to court for jury duty. 79 In his affidavit (in pars 18-20), Mr Lang gives evidence of his support for local community institutions and events, and (in par 17) establishes some positive environment/water credentials which predate this offence. 80 I consider it unlikely that the Defendant will re-offend (s 21A(3)(g)) having regard to the steps that Mr Lang has suggested. He deposes (par 15) to taking the following steps to prevent a recurrence of the incident: " a. immediately commenced carrying out a daily inspection of the ground area where the underground pipe is located (conducted by myself or an employee of the Defendant); b. whoever carries out the daily inspections must sign a book which is kept at the abattoir. I check the book weekly. I also check with my employees every day that the inspection has been carried out; and c. as an additional measure during the next few days we are also having a flow pressure guard/meter installed on the underground pipe, which includes an alarm system, to detect any drop in pressure along the pipe; d. I have arranged for Ray Lewis of Ray Lewis Contracting, plumber, to inspect the pump and the underground pipe system in the week commencing 7 June 2010 (after the pump is installed) and then every 6 months from thereon". 81 These measures cost the defendant company approximately $3,500 and 237 hours of employee time (par 16).

82 In par 17 of his affidavit Mr Lang deposes to measures he has taken in the past to protect the Castlereagh River. 83 The court accepts that the Defendant has shown remorse (s 21A(3)(i)). As a director and owner of the defendant company since 1 July 1996, along with his wife Kim, he is responsible for the day to day management and maintenance of the company's business, including compliance matters. He accepts responsibility for the pollution incident and deeply regrets it. He acknowledges (par 9): "that it was unacceptable for effluent from the abattoir to enter Salty Creek. I accept that some damage was caused by the incident, but understand that the scientists disagree about the extent of the damage. To the extent any damage was caused by the incident I deeply regret it". He told the court he was "devastated" that his company may have caused any harm. If he had been told on 12 August, he would have done exactly what he did in response to the telephone call on the night of 13 August, but would have notified the EPA in accordance with his licence. Remorse is also evidenced by the early guilty plea, and the assistance given to DECCW and its officers. 84 Having pleaded guilty (s 21A(3)(k) and s 22) at the earliest opportunity, the Defendant should be afforded the highest utilitarian value of the discount: R v Thomson [2000] NSWCCA 309; 49 NSWLR 383. The Prosecutor ultimately conceded that a discount of 25 per cent for the plea would be reasonable in the circumstances, and I reject its earlier written submission (par "24" on p10) that this is a case where the discount should be reduced on the grounds that the early plea was entered solely because of the strength of the prosecution case against the Defendant. 85 Further mitigating factors under s 21A(3) of the CSP Act ((l) and (m); see also ss 22A and 23), include the fact that the Defendant has rendered practical assistance to DECCW and its officers, in both clean-up works and the investigation. The Defendant also provided unequivocal pre-trial disclosure of the material facts by participating in a record of interview with DECCW officers, and responding to notices and requests for fulsome disclosure of its financial position. Sentencing Parity 86 In the court's consideration of an appropriate penalty, the principle of even-handedness (or parity) applies and requires the court to have regard to the general pattern of sentencing. However, each case put forward as a guide must be closely examined. 87 The Defendant submitted that Biscoe J's fine of $50,000 in Environment Protection Authority v Ramsay Food Processing Pty Ltd [2010] NSWLEC 23 provides the ceiling for any pecuniary penalty in the current case. The Defendant in that case had a significantly worse pollution record; there was evidence of mortality among aquatic life; potential harm to human health; and the utilitarian value of the guilty plea was reduced by the defendant's attempt to resile from aspects of the statement of agreed facts. 88 However, the real reason for the fine being only $50,000 was that His Honour was satisfied that the pollution event in that case was caused by an unauthorised third party tampering with the effluent pumps. A better guide for sentencing in this matter would clearly be the sentence I imposed in September 2010 in the subsequent prosecution of the same company - Environment Protection Authority v Ramsay Food Processing Pty Ltd (No.2) [2010] NSWLEC 175. 89 In that matter I assessed the appropriate fine (without allowing any discounts) at $100,000, and instead made an order requiring the defendant to carry out an environmental audit costing some $85,000, as well as paying legal costs, investigation expenses, and publication costs (see [23]-[30] of my judgment). The court specifically envisaged (in Order 7) that, after the audit report had been reviewed by the Prosecutor, further orders may be made against the offender as part of the sentencing process, probably involving further cost to the offender. 90 The Prosecutor referred the court to Baiada, where a "pollute waters" offence similar to the present attracted a payment of $120,000 (in lieu of a fine, and discounted from $160,000) to a local council for a specified restoration project, plus orders for the payment of the prosecutor's legal and investigation costs, and a publication order under s 250(1)(a). Preston ChJ noted that the actual harm was small, and that the evidence did not establish likely harm to the environment downstream of the affected areas (at [26]). 91 The prosecution also noted the case of Environment Protection Authority v Cargill Australia Limited [2007] NSWLEC 337, where Jagot J fined the Defendant $37,500 for the escape of 20,000 litres of wastewater from a pipeline into a stormwater drain and the wetlands. The pollution resulted in actual harm, albeit minor, as a result of some 2.7 million litres of water having to be pumped out of the wetlands (at [28]). As the maximum penalty in that instance was $250,000 (as noted by Her Honour at [1]), the penalty Her Honour imposed represented 15 per cent of that maximum. 92 Two other notable sentences have been imposed in relation to s 120 of the POEO Act since judgment was reserved in this matter. In the case of Environment Protection Authority v Straits (Hillgrove) Gold Pty Limited [2010] NSWLEC 114, between 1,000 and 3,000 litres of toxic slime travelled along an unnamed creek bed which resulted in small overall harm to the environment and very low potential of harm to the unaffected receiving waters (see [64]-[65]). Biscoe J found the appropriate penalty to be $75,000, discounted to $50,000. 93 In Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120, Craig J imposed a penalty of $67,000 (discounted from $100,000) for the discharge of a blend of animal tallow and vegetable oil over 2.25kms of the Peel River, which was apparent for a period of nine days. Actual harm was limited to isolated patches of grass, which affected the visual and recreational amenity afforded by the river to the developed and populated areas of the City of Tamworth. 94 Had any significant harm been caused to the Castlereagh River, the considerations which informed my imposition of a significant penalty (a fine of $280,000 after discount plus costs, etc) in Environment Protection Authority v CSR Building Products Ltd [2008] NSWLEC 224 - another case of fundamental system failure, compounded by human error, causing short-term environmental harm, but to a major river - would have come into play. The appropriate level of Penalty 95 No submission was made for the court not to enter a conviction. This was a serious pollution incident and a conviction is certainly appropriate. 96 An appropriate penalty, taking into account the objective circumstances of the offence and the subjective circumstances of the Defendant, would appear to me to be a fine in the order of $90,000, subject to discount. Having regard to the early plea of guilty, the clear evidence of contrition on the part of the Defendant, and the other mitigating factors to which I have adverted, I would apply a discount of one-third, and reduce the fine to $60,000. See Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831; Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187.

97 Both the Prosecutor and the Defendant are agreed that an order under s 250(1)(c) of the POEO Act to contribute the amount of the penalty to an environmental project is appropriate in this case, either in lieu of a fine (Mr Howard), or in addition to one (Ms England). 98 The Prosecutor has nominated a restoration/enhancement project on the bed and banks of the Castlereagh River, in a section upstream of and in part of the township of Coonabarabran. The bed and banks are Crown lands managed by the NSW Land and Property Management Authority, and the project is described in the affidavit of Richard Alan Chewings dated 16 June 2010. It will assist in promoting weed control on properties adjoining the river, as well as "improving the natural, cultural, agricultural and recreational" value of the bed and banks, in the public interest. 99 The court readily accepts that this is an appropriate project for an order under s 250(1)(e) of the POEO Act in the circumstances of this case. Other imposts 100 The Defendant should be ordered to pay the investigation costs of the Prosecutor in the amount of $16,070.58, and its reasonable legal costs. The legal costs are estimated to be $42,000, but the Defendant is entitled to question the quantum, and possibly have them assessed. 101 A publication order under s 250(1)(a) of the POEO Act is also appropriate, but I agree with Mr Howard that insertion in the Sydney Morning Herald is not necessary and would represent an unjustified further burden on the defendant. The Court will instead order the Defendant to publish a notice in the first 12 pages of both the local Coonabarabran Times and the regional (Dubbo) Daily Liberal.

Other considerations 102 The Defendant is a major employer in the town of Coonabarabran, so any penalty that adversely affects the Defendant may have further repercussions for the whole community, which does not bear any responsibility at all for the incident. 103 The Defendant has also raised a serious question of its capacity to pay any penalty the court might impose, and I turn now to deal with that. Impecuniosity and means to pay 104 Section 6 of the Fines Act 1996 provides: " In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount ." 105 In Pal, at [114]-[122], I detailed the considerations relevant to impecunious defendants, and I adopt here my analysis in that matter, and the principles identified by Finlay J in Aref Rahme v R (1989) 43 A Crim R 81, namely that a court should first arrive at a penalty, and then review it on the basis of the case made out on lack of means. 106 Mr Lang and the Defendant's present accountant, Andrew James Rose, gave evidence of (a) a serious recent downturn in the meat industry due to lack of demand for meat, climatic conditions, the rising dollar, and reducing livestock numbers, (b) a downturn in the profit of the defendant company over recent years, (c) prospects for the future of the industry, and (d) the prospects for Chillana's business in the near term. Three major abattoirs closed in the twelve months prior to the hearing. 107 Business profit is used to fund the Defendant's working capital requirements, and "sustain" its two shareholders. The Defendant was said to be having difficulty funding its current working capital requirements because of tight cash flow, and it was put to the court that the company would have great difficulty in paying any more than $20,000 in a lump sum in the short term. In Mr Rose's oral evidence, however, that number "softened" to perhaps a limit of $40,000. 108 Mr Rose has twelve years professional experience, but had advised the company only for approximately twelve months prior to the hearing. In answer to a question from me, he inferred that he had some difficulties with the work done by the company's former accountant, so the historical figures among the evidence must be treated with some care. 109 The wages paid to the Langs as full-time working directors are below market rate. The gross wages paid to the two in the financial year ending 30 June 2009 was a combined total of $52,694. In the nine months to 31 March 2010 the figure was $23,020. Mr Rose opined that "the market remuneration for the work undertaken by the shareholders each year would be at least $170,000 combined". The low wages are supplemented by the payment of dividends. Dividends paid for the year ending 30 June 2009 were $203,432. Mr Rose stated that the dividends are partly utilised by the shareholders to fund loan repayments for the purchase of shares. As a result of the dissolution of the Scifleet partnership and their buyout of the business some five years ago, the Langs are paying off a loan at the rate of $75,000 a year (principal and interest). They still have one child away at school. It appears that the company also lent them an amount of $91,000. 110 Mr Rose deposed that the company has total assets of $792,228 and total liabilities of $669,828. Its after-tax profits for the previous financial years were 2009 $100,388; 2008 $173,893; 2007 $173,939. He has observed the drop in productivity in the business since September 2009. The financial management reports to 31 March 2010 show a profit before tax of $65,971. The industry downturn may be levelling out, but profit for the financial year ending 30 June 2010 was expected to be down on previous years, and "significantly less" than 2009. The final 2010 figure was not expected to exceed $75,000, so the after-tax profit would be $52,500. 111 He gave evidence of the movement of the company's expenses "through the roof". It has particular problems with workers compensation, apparently as a result of several workplace accidents. 112 The Prosecutor spent considerable time in its cross-examination of Mr Rose and Mr Lang in regards to the financial difficulties of the Defendant. Clearly the company is under stress. Its financial deterioration is shown in the tracking documents attached to the accounts, showing monthly sales, moving annual turnover, and moving annual expenses dating back to July 2007. Conclusion 113 This was a serious pollution incident for which the Defendant, a small family company under some financial pressure, must take full responsibility. 114 Had the chance audit of the Fisheries officer not coincided with it, the Defendant's lack of attention to the security of its effluent processes may have caused major harm to the Castlereagh River and the associated Barwon/Darling river system, and resulted in a very major penalty. 115 The financial evidence has not persuaded the court to make any further concessions in favour of the Defendant beyond applying a generous one-third discount to the fine it considers appropriate. The company has the capacity to pay the penalty and other appropriate imposts, such as costs, investigation expenses, advertising, etc, if allowed adequate time to plan its finances. 116 Adoption of a s 250 project, rather than imposition of a fine, enables a regime of instalments to be put in place, so that the total financial burden of the court's decision can be spread over a period which looks like it will remain stressful for the abattoir industry in general, and the Defendant and its local community in particular. See Nowra Chemicals. 117 At the court's invitation, Mr Howard submitted draft Short Minutes of Order providing, inter alia, for the contributions to the river project to be paid over a two year period. The court heard nothing from the Prosecutor following the submission of those Short Minutes of Order, so I am content to adopt them in broad terms. 118 I am also prepared to stagger the payment of the other imposts involved in the disposition of this matter. Orders 119 The Court, therefore, makes the following orders: 1. The Defendant is convicted of the offence against s 120 (1) of the Protection of the Environment Operations Act 1997, as charged in the summons. 2. Pursuant to s 250(1)(c) of the Protection of the Environment Operations Act 1997, the Defendant is ordered to pay to the Land and Property Management Authority the sum of $60,000 in six instalments over a period of two (2) years and 5 months from the date of these orders, as set out below, to be applied in full to the restoration and enhancement project identified in the affidavit of Richard Alan Chewings affirmed on 16 June 2010: a. an initial payment of $10,000 is to be made within 28 days of the date of these orders; b. a further payment of $10,000 is to be made on or before 31 August 2011; c. a further payment of $10,000 is to be made on or before 28 February 2012; d. a further payment of $10,000 is to be made on or before 31 July 2012; e. a further payment of $10,000 is to be made on or before 31 December 2012; and f. a final payment of $10,000 is to be made on or before 30 April 2013. 3. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the Defendant is to take the following action to publicise the offence: a. The Defendant must cause to be published in the first 12 pages of the Daily Liberal a notice in the form of Annexure A, including the heading below the words 'Annexure A' in bold print, such notice to be a minimum height of 10cm by width of 20cm. The said notice must be published within 28 days of the date of these orders (or the earliest possible date thereafter if the Daily Liberal cannot or will not publish the notice within 28 days). b. The Defendant must cause to be published in the first 12 pages of the Coonabarabran Times a notice in the form of Annexure A, including the heading below the words 'Annexure A' in bold print, such notice to be a minimum size of one quarter of a page. The said notice must be published within 28 days of the date of these orders (or the earliest possible date thereafter if the Coonabarabran Times cannot or will not publish the notice within 28 days). 4. Within 14 days of the date of the notices being published in accordance with Order 3 above, the defendant is to provide evidence to the Prosecutor of the publication of those notices. 5. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 , all future references by the Defendant to its funding of the restoration and enhancement project in Order 1 must, be accompanied by the following passage: " Chillana Pty Ltd's funding of a restoration and enhancement project on the banks of the Castlereagh River is part of a penalty imposed on Chillana Pty Ltd by the Land and Environment Court after it was convicted of polluting waters, namely the Salty Creek, near Binnaway Road Coonabarabran, and adjacent waters, an offence against s120(1) of the Protection of the Environment Operations Act 1997." 6. Pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, the defendant is to pay, by 30 April 2011, the prosecutor's costs and expenses of investigation of the offence in the agreed sum of $16,070.58.

The defendant is to pay the prosecutor's legal costs, as agreed or assessed according to law, within twelve months of such agreement or assessment. 8. Exhibits P1, P2 and GC01 may be returned to the Prosecutor. Annexure A

Abattoir at South Coonabarabran convicted of water pollution offence

On 8 December 2010 in the Land and Environment Court, Chillana Pty Ltd, which trades as Bunganbah Meats and leases the abattoir at Binnaway Road, South Coonabarabran, was convicted of one charge of water pollution, to which it had pleaded guilty.

The Environment Protection Authority prosecuted the company for polluting approximately 250 metres of Salty Creek with a large but unknown quantity of untreated abattoir effluent in August 2008.

The effluent came from a split in the abattoir's effluent treatment system and entered into Salty Creek between 7 and 13 August 2008. Some effluent escaped from Salty Creek into the Castlereagh River, but much of it was removed from the creek in a clean-up operation carried out by the company.

The actual environmental harm caused by the spill was that the affected part of the creek was rendered toxic to aquatic wildlife for a short period of time.

The company was ordered by the court to fund an environmental restoration and enhancement project, involving rehabilitation of the Castlereagh River, in the sum of $60,000, and to place this notice.

The company was also ordered to pay the EPA's costs and investigation expenses.

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.

(1993) 113 LGERA 357

(2002) 123 LGERA 269

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)

Parties

Cases Cited (22)

Cited By (9)