Environment Protection Authority v Clarence Colliery Pty Ltd

Medium Neutral Citation: Environment Protection Authority v Clarence Colliery Pty Ltd [2026] NSWLEC 13

Hearing dates: 16 October 2025, further submissions 30 October 2025

Date of orders: 10 March 2026

Decision date: 20 February 2026

Jurisdiction: Class 5

Before: Pain J

Decision: See [137]-[142]

Catchwords: ENVIRONMENTAL OFFENCES – sentencing for two water pollution offences resulting from overflow of polishing lagoon at coal colliery – sentencing for offence of failing to maintain polishing lagoon in proper and efficient manner – potential for environmental harm including cumulative impact of coal fines in Wollangambe River considered – numerous practical measures could have been taken to prevent harm – causes of offences within control of defendant – subjective circumstances – early pleas of guilty – prior record
ENVIRONMENTAL OFFENCE – sentencing for failure to test pollution incident response management plan in timeframe required by Protection of the Environment Operations Regulation – no environmental harm caused – continuing offence over 269 days – very substantial maximum penalty – early plea of guilty
ENVIRONMENTAL OFFENCE – sentencing for failure to comply with prevention notice requiring no discharge of water from former licenced discharge point - further water pollution caused – potential for environmental harm – cumulative impact of coal fines in Wollangambe River – causes of offence within control of defendant – subjective mitigating factors – early plea of guilty

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22
Criminal Procedure Act 1986 (NSW), ss 257B, 257G
Fines Act 1996 (NSW) s 122
National Parks and Wildlife Act 1974 (NSW), s 156
Protection of the Environment Operations Act 1997 (NSW) ss 3, 5, 64, 96, 97, 116, 120, 153A, 153E, 241, 248, 250
Protection of the Environment Operations (General) Regulation 2022 (NSW) ss 73, 75

Cases Cited: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bartter Enterprises v Environment Protection Authority (2022) 252 LGERA 277; [2022] NSWCCA 43
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden (2010) 172 LGERA 52; [2010] NSWLEC 3
Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137
Environment Protection Authority v Ardent Leisure Ltd [2018] NSWLEC 36
Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739
Environment Protection Authority v Buchanan (No 2) (2009) 165 LGERA 383; [2009] NSWLEC 31
Environment Protection Authority v Calleija; Environment Protection Authority v Budget Waste Recycling Pty Ltd [2024] NSWLEC 119
Environment Protection Authority v Clarence Colliery Pty Ltd [2017] NSWLEC 82
Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178
Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90
Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60
Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 70
Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39
Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76
Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33
Environment Protection Authority v Maules Creek Coal Pty Ltd (No 4) [2025] NSWLEC 92
Environment Protection Authority v Metropolitan Collieries Pty Ltd [2025] NSWLEC 23
Environment Protection Authority v Port Kembla Copper Pty Ltd [2003] NSWLEC 256
Environment Protection Authority v Port Kembla Copper Pty Ltd (2001) 115 LGERA 391; [2001] NSWLEC 174
Environment Protection Authority v Port Stephens Council [2011] NSWLEC 209
Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222
Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68
Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24
Environment Protection Authority v Zoya Investments Pty Ltd [2022] NSWLEC 149
Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1
Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785
Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
Hoare v R (1989) 167 CLR 348; [1989] HCA 33
Jindalee Road Wines Pty Ltd v Natural Resources Access Regulator; Littore v Natural Resources Access Regulator [2025] NSWCCA 215
Knight v R [2006] NSWCCA 292
Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Pearce v The Queen (1988) 194 CLR 610; [1988] HCA 57
Plath of the Department of Environment and Climate Change v Fish; Plath of the Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144
Plath v Rawson [2009] NSWLEC 178
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Abboud [2005] NSWCCA 251
R v Annecchini (Court of Criminal Appeal (NSW), 24 April 1996, unrep)
R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Peel [1971] 1 NSWLR 247
R v Rushby [1977] 1 NSWLR 594
R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142
R v Slattery (1996) 90 A Crim R 519
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
R v White (Court of Criminal Appeal (NSW), 25 July 1991, unrep)
SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274
Stephen James Orr v Narrabri Coal Operations Pty Ltd; Stephen James Orr v Narrabri Coal Pty Ltd [2021] NSWLEC 85
Transport for New South Wales v Estuary Constructions Pty Ltd; Transport for New South Wales v Sampson [2022] NSWLEC 23
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited: Sentencing Bench Book (Judicial Commission of NSW)

Category: Sentence

Parties: Environment Protection Authority (Prosecutor)
Clarence Colliery Pty Ltd (Defendant)

Representation: Counsel:
N Hammond (Prosecutor)
T Howard SC with C Ireland (Defendant)
Solicitors:
Environment Protection Authority (Prosecutor)
Johnson Winter Slattery (Defendant)

File Number(s): 2024/00471797
2024/00471798
2024/00471799
2024/00471800
2024/00471801

INDEX

Statement of agreed facts

Purposes of sentencing

Objective circumstances

Nature of offences

First and Second Water Pollution Offences

Licence Breach Offence

PIRMP Offence

Prevention Notice Offence

Maximum penalty

PIRMP Offence

State of mind/reasons for and circumstances underpinning the offences

Water pollution/licence breach offences (3 of 5 offences)

Finding on reasons for offences resulting in water pollution in December 2023 (3 of 5 offences)

Prevention notice offence

PIRMP offence

Section 241 POEO Act matters

Section 241(1)(a) extent of environmental harm caused or likely to be caused

Receiving environment

Overview of potential harm arising from coal fines entering the environment

First Water Pollution Offence

Second Water Pollution Offence

Licence Breach Offence

Prevention Notice Offence

Section 241(1)(b) practical measures that may be taken to prevent or mitigate harm

Section 241(1)(c) foreseeability of harm caused or likely to be caused by the Defendant

Section 241(1)(d) control over causes of offence

Finding on objective seriousness

Subjective circumstances

Prior record (ss 21A(2)(d), (3)(e) CSP Act)

Pleas of guilty (ss 21A(3)(k), 22)

Good character (s 21A(3)(f))

Likelihood of re-offending (s 21A(3)(g))

Remorse (s 21A(3)(i))

Assistance to authorities (s 21A(3)(m))

Sentencing principles

General and specific deterrence

Proceedings could have been commenced in the Local Court

Even-handedness

Retribution and denunciation (ss 3A(a), (f) CSP Act)

Totality

Penalty

PIRMP Offence

Additional orders

Publication Order

Professional costs

Investigation costs

Moiety

Environmental Services Order

Orders

JUDGMENT

1. Clarence Colliery Pty Ltd the Defendant operates the Clarence Colliery an underground coal mine in Newnes Junction. An 18km section of the eastern edge of the land on which the Colliery is situated (the premises) borders the Blue Mountains National Park. The headwaters of the Wollangambe River are approximately two kilometres to the north-west. The Wollangambe River flows through the premises and into the Blue Mountains National Park. The Defendant is a subsidiary of Centennial Coal Company Pty Ltd (Centennial). The Defendant has pleaded guilty to five environmental offences.

2. At the time of the offences the Defendant held Environment Protection Licence No 726 (Licence) issued under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). The licence authorised the scheduled activities of ‘mining for coal’ and ‘coal works’ to be carried out at the premises described as ‘off Bells Line of Road, Newnes Junction, NSW’.

3. The premises consists of an underground coal mine and an associated pit top area with infrastructure including conveyor systems, a coal handling and preparation plant (CHPP), reject emplacement areas (REAs), a rail loop and a water management system.

4. On 21 March 2025 the Defendant pleaded guilty to the following five charges brought by the Prosecutor the NSW Environment Protection Authority (EPA):

5. one offence against s 120(1) of the POEO Act in that the Defendant polluted an unnamed tributary of the Wollangambe River and downstream thereof, including the main dam and the Wollangambe River, with sediment and coal fines, between about 20 December 2023 and 21 December 2023 inclusive (case number 2024/471797) (First Water Pollution Offence);

6. one offence against s 120(1) of the POEO Act in that the Defendant polluted the cement drain leading to the main dam and downstream thereof, including the waters within the main dam and Wollangambe River, with sediment and coal fines, between about 20 December 2023 and 21 December 2023 inclusive (case number 2024/471798) (Second Water Pollution Offence);

7. one offence against s 64(1) of the POEO Act in that condition O2.1(a) of the Licence was contravened by the Defendant failing to maintain the Polishing Lagoon in a proper and efficient condition that enabled surface and/or wastewater to be stored without discharging into the environment, on about 20 December 2023 (case number 2024/471800) (the Licence Breach Offence). At all material times, condition O2.1(a) of the Licence stated:

All plant and equipment installed at the premises or used in connection with the licenced activity:

a) must be maintained in a proper and efficient condition…

4. one offence against s 153E of the POEO Act in that the Defendant did not ensure that its pollution incident response management plan (PIRMP) was tested within one month of the pollution incident that occurred on 20 December 2023, as required by the Protection of the Environment Operations (General) Regulation 2022 (NSW) (POEO General Regulation), from about 20 January 2024 and continuing to about 14 October 2024 inclusive (case number 2024/471799) (the PIRMP Offence);

5. one offence against s 97 of the POEO Act in that the Defendant failed to comply with prevention notice number 3507989 dated 1 February 2024, as wastewater contaminated with sediment and coal fines was discharged from the Polishing Lagoon to the general location of Licenced Discharge Point 2 and downstream thereof, including to the main dam and Wollangambe River, from about 5 April 2024 to 6 April 2024 inclusive (case number 2024/471801) (the Prevention Notice Offence).

6. The Court must now determine the appropriate sentence for each of the offences. A plea of guilty can be considered as an admission of the essential elements of an offence. When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt; R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at 281. Any contested matter relied on by a defendant must be established on the balance of probabilities; Olbrich at 281.

Statement of agreed facts

6. The parties agreed a statement of agreed facts (SOAF) for the purposes of sentencing for the five offences, parts of which are extracted below without annexures and some photographs:

…

12. The Wollangambe River flows through the Premises but flows to the north of the surface infrastructure of the Colliery and the mining activities are located underground in the northern part of the Premises... The Wollangambe River is dammed at one location on the Premises which is known by the Defendant as the Main Dam. The Main Dam site is located just below the confluence of the upper river third order stream, making the Main Dam a fourth order stream at that point. The Wollangambe River then flows to the north-east for 1.5 kilometres to the boundary of the Premises into the Blue Mountains National Park. After flowing through the Blue Mountains National Park and Wollemi National Park, the Wollangambe River joins the Colo River approximately 47 km downstream of the Colliery.

Water management system

13. Sources of water at the Colliery include rainfall, catchment runoff and water generated during mining operations (mine water). The catchments generally… comprise:

a. ‘Clean catchments’ (approximately 263.5 ha) – being those catchments which contain primarily national park or undeveloped regions of the Premises. Rainfall runoff from these regions is unlikely to entrain contaminants requiring treatment, so flows either naturally into the Main Dam or is directed into the Main Dam by pipe works and channels.

b. ‘Dirty catchments’ (approximately 82 ha) – being those catchments inside the Premises which incorporate developed land. As there are coal stockpiles and REAs above ground at the Premises, and due to the nature of coal mining activities conducted at the Premises, rainfall runoff from these regions is likely to entrain coal fines, sediment and other contaminants so it needs to be captured and treated before it can be released to the environment.

14. At all material times, there was a water management system installed at the Premises, which was designed to capture, store and treat surface water runoff (i.e., rainfall runoff from ‘dirty catchments’) and water generated during day-to-day mining operations (mine water) before release to the environment.

15. The water management system includes a water treatment plant (WTP), four leachate dams (known as Leachate Dam 1 (LD1) and Leachate Dam 2 (LD2)), Leachate Dam 3 (LD3) and Leachate Dam 4 (LD4), a dirty water basin known as the Polishing Lagoon (also referred to as the Polishing Pond) and several other smaller water structures.

16. The Polishing Lagoon, LD1, LD2, LD3 and LD4 capture and store surface water runoff from dirty catchments...

17. The Polishing Lagoon and leachate dams serve the dual purposes of capturing runoff from dirty catchments to prevent it moving offsite and to naturally filter the captured water, by allowing coal fines and sediment to fall out of suspension and settle to the bottom of the basin. As a result, coal fines and sediment accumulate in the leachate dams and the Polishing Lagoon over time. Accumulated coal fines and sediment reduce the water storage capacity of the dams.

18. Located upstream of the Polishing Lagoon is an “in ground concrete sump” (Primary Arrestor) which functionally acts as a sediment basin for initial treatment of runoff from the coal stockpiles and Coal Handling Preparation Plant with a capacity of 3 mega litres (ML) and another concrete sump (Grit Trap) with a capacity of 1ML. The Primary Arrestor and the Grit Trap have a catchment area of 16.7 ha. Both the Primary Arrestor and Grit Trap discharge to the Polishing Lagoon when they overtop.

The Polishing Lagoon

19. The Polishing Lagoon treats dirty water runoff from carparks, workshops and coal stockpiles and removes finer sediments which may remain in waters that have passed through initial treatment in the Primary Arrestor. The Polishing Lagoon has a total catchment area of 31.4 ha (14.7 ha on its own excluding the Primary Arrestor).

20. At all material times, the Polishing Lagoon had a design storage capacity of about 9.3 ML. The capacity of the Polishing Lagoon was consistent with the capacity stated in the Defendant’s Water Management Plan (June 2022), which was approved on behalf of the Planning Secretary on 9 May 2023, as required by conditions of the SSD Consent. Contemporary modelling has indicated that the Polishing Lagoon was undersized for its catchment, and its capacity would be exceeded during a 2% AEP 24-hour storm event (equivalent to a 1 in 50-year ARI storm event) even if the initial water level was set to empty.

21. If the capacity of the Polishing Lagoon is exceeded, it discharges via an ‘emergency relief outlet’ comprising a vertical shaft leading into a horizontal concrete pipe of 900mm in diameter. At the time of the Offences, that emergency relief outlet connected to a smaller pipe (100mm in diameter) which lead to LD1. If the capacity of the smaller pipe and its half plate was exceeded, water from the Polishing Lagoon would overtop into a concrete sump adjacent to LDP2, from where it flows via a v-notch weir into an unnamed, western tributary of the Wollangambe River (the Tributary)...

22. At all material times, water in the Polishing Lagoon could be pumped to the WTP via two submersible pumps; however, this process only removes fine sediment held in suspension and does not remove any accumulated (settled) sediment.

23. On or around the time of the Offences, the Defendant determined the quantity of sediment within the Polishing Lagoon (and therefore its storage capacity) through visual observation only and not through any other form of depth measurement instrumentation or measured surveillance.

24. The Polishing Lagoon and associated pipes and culverts were plant and equipment used in connection with the activities conducted by the Defendant at the Premises, including coal works and mining for coal.

Leachate Dam Measuring Weir

25. [The Leachate Dam Measuring Weir]… receives water flows from LD1 and LD2 (via pipelines) and transfers it underground for storage, from where it is pumped to the WTP. The underground storage of water is an important component of the water management system at the Colliery. As at 5 April 2024, the Leachate Dam Measuring Weir appeared as follows:

26. As at 20 December 2023, the Leachate Dam Measuring Weir could receive inflows from LD1 and LD2 at a maximum rate of 70 L/s. Inflows exceeding the capacity of the Leachate Dam Measuring Weir would cause waters to overflow and enter the environment. While there was no valve installed on the pipework leading to the Leachate Dam Measuring Weir from LD1 enabling the Defendant to control the inflow rate, there was a valve on the pipework leading to the Leachate Dam Measuring Weir from LD2.

Leachate Drain

27. The leachate drain*, also referred to as the* “dirty water drain” or the “leachate trench”**, is an open channel drain excavated into natural ground around the perimeter of REA3 (at the foot of the eastern outer wall) (Leachate Drain). The Leachate Drain was constructed on the REA3 boundary contour to capture all leachate and stormwater runoff from REA3 in order to direct it to LD1 for containment or transfer to underground storage, with subsequent treatment through the WTP...

28. As at 22 January 2024, an upper section of the Leachate Drain appeared as follows:

29. Part of the Leachate Drain travels under a roadway from a culvert (the Culvert)...

30. As at 22 January 2024, the Culvert appeared as follows:

The Water Treatment Plant

31. The WTP operates to remove sediment from and correct the contaminant levels in mine water or surface water runoff captured at the Premises. Treated water is either re-used at the Premises or discharged off-site to the Wollangambe River.

32. The WTP receives inflow from both the underground storage and the Polishing Lagoon. The WTP discharges treated water via a black poly pipe into a concrete sump adjacent to LDP2 which flows via a v-notch weir into the Tributary, flowing to the Main Dam. This discharge is regulated by conditions in the Licence, as described below.

33. At all material times, Mr Enrico van der Poll (an employee of the Defendant) was the WTP technician. As part of Mr van der Poll’s responsibilities, he manually operates the pumps that control the WTP, including pumps that manage inflow from the Polishing Lagoon. He is present during scheduled daytime work hours and is on call during the night to manage WTP levels with an electrician onsite who can manage breakdowns and reset the system if there’s a problem with the WTP. In addition, the pump activity is monitored and recorded on a programme called SCADA (also known as Citect) and the control room operator is trained to control the underground pumps if required (but not manage the levels in the Polishing Lagoon). However, Mr van der Poll stated that he “has nothing to do with the checking of [the Polishing] lagoon [water] levels” (sic) and does not “do the surface water facilities, only the [WTP]”.

Licenced discharge points

34. At all material times, the Defendant was prohibited from discharging polluted water into the environment, except as provided for in the Licence.

35. At all material times, the Licence authorised the Defendant to discharge water from three specified discharge points into the Main Dam and Wollangambe River – designated as Licenced Discharge Point (LDP) 2, LDP3 and LDP4 – provided the discharged water did not exceed the pollutant concentration limits and the discharge volume limit in conditions L2.4 and L3.1 of the Licence, respectively.

36. LDP2 is the licenced discharge point for the WTP. LDP3 and LDP4 are spillways of LD1 and LD2 respectively...

37. Per the discharge volume limit in condition L3.1 of the Licence, the Defendant could not discharge more than 25,000 kilolitres (25ML) of water per day from LDP2 unless more than 10mm of rainfall was recorded at the Premises for that day.

38. The Defendant is required to measure the daily volume of discharge from LDP2 pursuant to condition M8 of the Licence. The Defendant does this using a bubble meter installed on the V-notch weir adjacent to LDP2.

39. On or around the time of the Offences, if the Polishing Lagoon discharged via the emergency relief outlet to LD1 and overflowed the ‘half-plate’, it discharged into the concrete sump which flows via a v-notch weir into the Tributary (like the discharge from the WTP), as depicted below:

40. As such, the bubble meter at the V-notch weir provides the best estimate of the volume of water discharged from both the WTP and any exceedance of the emergency spillway outlet from the Polishing Lagoon.

Historical removal of coal fines and sediment from the Polishing Lagoon

41. The presence of sediment in the Polishing Lagoon reduces its functioning by:

a. reducing available storage capacity at the Premises to capture and store surface runoff; and

b. reducing time and space for sediment in the water to fall out of suspension.

42. The Polishing Lagoon forms part of the water storage facilities at the Premises. Its purpose is to remove inflow entrained sediment through sedimentation processes prior to final treatment at the WTP. The Polishing Lagoon must be regularly cleaned of sediment to maximise water storage capacity at the Premises. Insufficient cleaning will degrade the effectiveness of the Polishing Lagoon’s sedimentation function.

43. Prior to 20 December 2023, accumulated coal fines and sediment had been removed from the Polishing Lagoon on:

a. 7 July 2021 – approximately 9,745m3 (inclusive of water saturation) was removed; and

b. 5 September 2022, when the coarse coal reject jetty constructed on the southern end of the Polishing Lagoon was removed – the exact volume removed is not known, but the Defendant said, “the site’s best recollection is that the operation continued for a three-day period… [t]his is believed to have been approximately 1,000 tonnes.”

44. The Defendant’s Water Management Plan requires that the Polishing Lagoon is regularly desilted to maximise storage capacity. Such works are undertaken on an as needs basis.

45. Around October 2023, Greg Peard, the Defendant’s Group Environmental Superintendent, recalled the following “I could see a little bit of a beach up the top end and it didn’t look that bad to be honest, but I said, look beaches are normally an indication that you might want to get some work done, is there a plan to clean this out any time soon?”. Mr Peard thought that at around this time, “a dredge was being arranged”; however, the Defendant has no record of such arrangements being made at that time and a dredge was not used prior to 20 December 2023. “Beaching” means the build-up of coal material protruding from the water indicating sediment build-up.

46. There are no records of the type and depth of sediment existing in the Polishing Lagoon on 20 and 21 December 2023. While the precise quantity of sediment existing in the Polishing Lagoon cannot be estimated, the capacity and effectiveness of the Polishing Lagoon was reduced on those dates due to the accumulated sediment and material.

DECEMBER 2023 POLLUTION INCIDENT

47. Between about 19-20 December 2023, approximately 116mm of rainfall fell in less than 24 hours, with the largest amount of rainfall occurring during the morning of 20 December 2023. Rainfall intensities for 6 and 12-hour durations were approximately equivalent to a 1 in 20-year ARI storm event...

48. At 6:47 am on 20 December 2023, one of the Defendant’s employees, Rodney Boland (Coal Handling Preparation Plant Manager and REA Controller), emailed Dennis Wallace (Mine Manager) and Mr Ribas (Environment and Community Coordinator) advising that the Polishing Lagoon was “discharging to LDP2 which reports to the main dam” and the “leachate dam collection pit” (i.e., the Leachate Dam Measuring Weir) was “over boarding”. Mr Boland would, as a matter of course, send daily morning emails to report on any matters for the benefit of various personnel and if required, send people out to inspect the water infrastructure.

49. A daily morning meeting is held with mine management, including Mr Ribas and Mr Wallace at about 7.30am where an overview of the previous 24 hours is covered. The rainfall was not discussed.

50. Between 8:30am-10:00am, several of the Defendant’s employees, including Mr Ribas, carried out a simulated diesel spill to test the Defendant’s PIRMP, during which “[n]o issues [were] identified.”

51. By “about mid-morning”, Mr Ribas inspected the Premises starting at the pit top.

52. During his inspection, Mr Ribas received a phone call from the Defendant’s environmental contractors on site (ALS Australia). ALS Australia were on site conducting other work at the time. ALS Australia advised during the phone call that the Leachate Dam Measuring Weir was overtopping (consistent with the email of 6:47am that morning) (First Water Pollution Offence). At Mr Ribas’ request, ALS Australia took a sample of the water discharging from the Leachate Dam Measuring Weir.

53. Mr Ribas observed a “large volume” of surface water runoff and “sediment laden water” that appeared “brown” discharging from the Leachate Drain and overtopping the Culvert (Second Water Pollution Offence). At 10:27am, Mr Ribas captured a video of this discharge from the Leachate Drain... A still from this video is extracted below:

54. Mr Ribas considered the inspection “extraordinary” because of the rainfall but can’t recall reporting the discharge from the Leachate Drain to anyone else onsite that day. After the inspection, he returned to the office and only recalls doing “office work”.

55. The Defendant had not provided Mr Ribas with formal or adequate training in relation to the conditions of the Licence.

56. By no later than 1:03pm on 20 December 2023, Matt Noon (Maintenance / Operator), finalised an inspection of the water levels at the various water storage facilities at the Premises ... After observing that the water level of the Leachate Dam Measuring Weir and Polishing Lagoon water level exceeded 1.2 metres, Mr Noon immediately contacted Mr Boland by phone who in turn contacted Mr Ribas.

Discharge from the Polishing Lagoon

57. On 20 December 2023, the water levels in the Polishing Lagoon exceeded its available storage capacity. This resulted in contaminated waters being discharged to the emergency relief outlet and downstream thereof, including into LD1 and by overtopping the half-plate into the concrete sump, where it mixed with the WTP discharge and flowed into the Tributary.

58. The total volume of contaminated waters discharged from the Polishing Lagoon through the emergency relief outlet to LD1 is unknown.

59. On 20 December 2023, approximately 37.3 ML of water was discharged into the environment via the V-notch weir adjacent to LDP2, which comprised an estimated 18 – 25 ML of treated water from the WTP and at least 18.9 ML of contaminated water from the Polishing Lagoon.

60. The precise time the discharges from the Polishing Lagoon ceased is not known, but it is estimated to have occurred for 12-13 hours. Matt Ribas observed that it was not discharging during an inspection at 1:26pm on 22 December 2023.

First Water Pollution Offence: Discharge from the Leachate Dam Measuring Weir

61. Between at least 20-21 December 2023, the inflows from LD1 and LD 2 into the Leachate Dam Measuring Weir exceeded 70L/s and subsequently caused contaminated waters to overflow and discharge into the environment. The discharge travelled down the slope and into the Tributary, the Main Dam, and the Wollangambe River.

62. The discharge from the Leachate Dam Measuring Weir as measured by ALS Australia on 20 December 2023:

a. was turbid liquid containing suspended solids;

b. contained coal fines and sediment, being ‘washings or spoils from an extractive operation’; and

c. recorded a pH of 3.37, being ‘matter that has a pH value of less than 6.5 or more than 8.5’.

63. The precise time the discharge ceased is not known, but Mr Ribas observed that it had ceased by 8:00am on 21 December 2023. It is estimated to have discharged for 18-19 hours.

64. The volume of polluted water that discharged from the Leachate Dam Measuring Weir is estimated to be between 3.7 – 4.6 ML; however, the volume that ultimately entered the Main Dam is not known.

Second Water Pollution Offence: Discharge from the Leachate Drain

65. At around 10:00 am on 20 December 2023, Matthew Ribas observed “sediment laden” waters from the Leachate Drain overtopping the Culvert and discharging into the environment. The Culvert was partially blocked with foliage and debris.

66. The discharge from the Leachate Drain contained coal fines and sediment, being ‘washings or spoils from an extractive operation’.

67. It is estimated that between 4.1 – 9.6 ML of water containing coal fines and sediment overtopped the culvert over the course of 7-8 hours.

68. The discharge entered a cement drain leading to the Main Dam, the Main Dam (sic), and the Wollangambe River.

69. It is not known how much water containing coal fines and sediment entered the cement drain leading to the Main Dam or precisely when the discharge ceased, but during an inspection, Mr Ribas observed that it had ceased by 8:00am on 21 December 2023.

Reports of black water in the Wollangambe River

70. On 21 December 2023, a member of the public, was bushwalking along the Wollangambe River and observed dark brown water downstream of the Premises. The member of the public took a video… and the following two photographs:

71. The member of the public reported the incident and sent the above photographs to an environment group, who then reported the incident to the EPA at 8:12am on 22 December 2023. The time the videos and photos were taken is unknown.

72. Prior to this report, the incident had not been brought to the EPA’s attention.

RESPONSE TO DECEMBER 2023 POLLUTION INCIDENT

22 December 2023: EPA inspection of the Premises

73. On 22 December 2023, at approximately 1:00pm, EPA authorised officers attended an inspection of the Premises and Wollangambe River.

74. During this inspection, EPA authorised officers met with Mr Ribas and Mr Dennis Wallace (Mine Manager). The EPA officers inspected the Polishing Lagoon, LDP2, the Main Dam and the Wollangambe River with Mr Ribas. The Leachate Dam Measuring Weir and the Leachate Drain were not inspected.

75. EPA officer Jacques Theron observed the water in the Main Dam was a dark, grey colour and was turbid. EPA officer Allan Adams observed the water in the Main Dam to be turbid, with a dark visual appearance. He also observed a dark type of fine sediment or dark substance within the wetland grasses nearby the spillway to the Main Dam. The spillway is on the north side of the Main Dam.

76. About 1km downstream of the Main Dam, Allan Adams observed that the Wollangambe River had a turbid look to the water with a dark visual appearance (similar to the Main Dam) as well as a fine layer of sedimentation on the bed of the Wollangambe River. At about 2:35pm, EPA officer Adams took the following photo at this location:

77. The waters of the Wollangambe River upstream of the Premises appeared to be clear, with sunlight able to penetrate through to the riverbed. EPA officer Adams took the following picture on 22 December 2023 at this location:

78. During this inspection, the EPA collected 16 samples, which were delivered to an appropriate laboratory for appropriate testing.

22 December 2023: EPA issues Clean-Up Notice

79. Following the 22 December 2023 inspection, the EPA issued the Defendant with a Clean-Up Notice No. 3507860 (the Clean-Up Notice). The Clean-Up Notice required the Defendant to engage an ecologist and an engineer to prepare reports and submit those reports to the EPA by 22 January 2024. The Defendant complied with the Clean- Up Notice.

80. The Engineering Assessment report prepared by Engeny dated 29 March 2024 included the following recommended actions:

a. Increase the capacity of the Culvert within the Leachate Drain to reduce the potential for uncontrolled discharges from the drain;

b. Modify the Licence to allow for increased discharges from LDP003 during normal operating conditions to allow for LD1 and LD2 to be maintained in a dewatered state in order to provide increased freeboard capacity during large storm events;

c. Removal of the emergency overflow pipe from the Polishing Lagoon to LD1 to reduce the volume of dirty water released during an extreme storm event;

d. Increase the stormwater capacity of the Polishing Lagoon to at least 11.3 ML, allowing for events up to about the 2% AEP 24-hour storm event to be safely managed (equivalent to a 1 in 50-year ARI storm event);

e. Maintain LD1 as empty to maximise the interception capacity during major storm events;

f. Progressive rehabilitation and return of “clean” catchment flows from rehabilitated areas back into the environment in order to reduce the runoff volume managed by the water management system during major storm events; and

g. Lowering of operating levels within all dams to provide additional freeboard capacity across the water management system prior to major storm events.

81. The Aquatic Ecology and Steam Health Assessment prepared by BIO-ANALYSIS dated 10 April 2024 included the following recommended actions:

a. Additional sampling/information collecting sites (including within the external control creeks) for the autumn 2024 Wollangambe River Aquatic Ecology Survey;

b. Sampling for BA Site W31 (near MPR Site WGRdown) should not include the confluence with the unnamed eastern tributary to allow for an assessment of any contribution that the tributary makes to the results reported by historical surveys; and

c. An investigation of the biofilm observed covering edge habitat within the downstream reaches of the Wollangambe River should be undertaken to determine its cause (historical or on-going) and effect (if any) on aquatic ecology.

82. The Defendant has caused the completion of item [a] above.

83. The BIO-ANALYSIS report found that dissolved and sedimentary concentrations of trace metal compounds measured within the days/weeks following the discharge were similar to background levels, which suggested that the overflow did not cause a significant increase to concentrations of these substances or any changes were short-term.

15 January 2024: EPA inspection of the Premises

84. On 15 January 2024, EPA authorised officers Allan Adams, Steve Orr, Sheridan Ledger and Jacques Theron attended an inspection of the Premises and Wollangambe River.

85. During this inspection, the EPA collected two samples, which were appropriately collected, stored, and delivered to an appropriate laboratory for appropriate testing.

1 February 2024: EPA issues Prevention Notice

86. On 1 February 2024, the EPA issued Prevention Notice No. 3507989 (the Prevention Notice)...

87. The Prevention Notice required the Defendant to remove sediment from the Polishing Lagoon and leachate dams and included the following direction in respect of discharges from the Polishing Lagoon:

By no later than 5pm on 1 February 2024, the licencee must cease all discharges from the Polishing Lagoon to the general location of the Licenced Discharge Point 2 (LDP2), and / or any other location that would enable a discharge from the Polishing Lagoon into the Wollangambe River. The objective of this direction is to ensure all waters from the Polishing Lagoon are not discharged from the Premises via the locality of LDP2, LDP3, and / or any other discharge point unless the water from the Polishing Lagoon has been treated at the Water Treatment Plant (WTP) prior to discharge from the Premises.

88. Between 23 January 2024 and 30 January 2024, 20 truckloads of material were removed from LD2.

89. Between 31 January 2024 and 13 February 2024, 35 truckloads of material were removed from LD1.

9 February 2024: R3 Report

90. On 9 February 2024, pursuant to condition R3 of the Licence, the Defendant submitted a report about the 20-21 December 2023 discharges to the EPA...

13 February 2024: EPA and DCCEEW inspection of the Premises

91. On 13 February 2024, EPA authorised officers and environmental scientists from the NSW Department of Climate Change, Energy, the Environment and Water (DCCEEW) attended an inspection of the Premises and Wollangambe River.

92. During this inspection, the EPA and DCCEEW collected water and sediment samples, which were appropriately collected, stored, and delivered to an appropriate laboratory for appropriate testing.

26 February 2024: EPA inspection of the Premises

93. On 26 February 2024, EPA authorised officers attended an inspection of the Premises and Wollangambe River.

94. During this inspection, the EPA collected six samples, which were appropriately collected, stored, and delivered to an appropriate laboratory for appropriate testing.

1 March 2024: Defendant commences removal of sediment from Polishing Lagoon

95. From 1 March 2024, the Defendant commenced removal of sediment from the Polishing Lagoon as required by the Prevention Notice.

96. By 5 April 2024, approximately 1,689 tonnes (including water saturation) of coal fines and material had been removed from the Polishing Lagoon.

APRIL 2024 POLLUTION INCIDENT AND BREACH OF PREVENTION NOTICE

Discharge from Polishing Lagoon

97. Between 4 April 2024 and 6 April 2024, there was approximately 149.2 mm of rainfall. The largest amount of rainfall occurred on 5 April 2024 with 106.4mm being measured at the Colliery’s weather station...

98. At 12:30pm on 5 April 2024, the Defendant contacted the EPA to advise that a discharge from the Polishing Lagoon was imminent. The Department of Planning Housing and Infrastructure, the DCCEEW and the NSW Resources Regulator were also contacted at this time.

99. At 12:55pm on 5 April 2024, the Defendant was notified by telemetry that the Polishing Lagoon was at 103% of capacity.

100. Between about 13:15pm on 5 April 2024 and 14:40pm on 6 April 2024, water discharged from the Polishing Lagoon into the emergency relief outlet and overtopped the half-plate into the concrete sump adjacent to LDP2, from where it flows via a v-notch weir into the Tributary.

101. On 5 April 2024, Mr Ribas took videos of the discharge from the Polishing Lagoon overtopping the half plate, mixing with the clean water discharge from the WTP (the vertical black poly pipe) and flowing downstream…

102. The volume discharged from the Polishing Lagoon during the event is estimated to be 16.5ML. It is estimated the discharge occurred for 19–20 hours.

103. On 5 April 2024, the Defendant caused water samples of the Polishing Lagoon, Main Dam and Wollangambe River (both downstream and upstream) to be taken and analysed. On 6 April 2024, the Defendant caused water samples of LDP2, LDP3, LDP4, the Polishing Lagoon, and Wollangambe River (both downstream and upstream) to be taken and analysed. On 8 April 2024, the Defendant caused water samples of LDP3 to be taken and analysed.

104. On 12 April 2024, the Defendant wrote to the EPA providing details of the cause, time and duration of the discharge.

105. LD1 and LD2 were dewatered and returned to normal operation within 5 days of the rainfall event in accordance with Condition O4.1 of the Licence.

Removal of sediment from Polishing Lagoon

106. Between 1 March 2024 and 28 June 2024, 9,230 tonnes of coal fines and material (including water saturation) were removed from the Polishing Lagoon.

107. The sediment in the Polishing Lagoon before and after removal of the coal fines and material are depicted in the following two aerial images taken on 1 March 2024 and 28 June 2024:

108. The dredged coal fines / material from the Polishing Lagoon were stored in geo fabric bags, as pictured below:

…

FAILURE TO MAINTAIN PLANT AND EQUIPMENT

109. As at 20 December 2023, the Polishing Lagoon was not maintained in a proper and efficient condition because:

a. Sediment was last removed from the Polishing Lagoon on 5 September 2022 and that maintenance was for the purposes of removing a coarse coal reject jetty rather than the cleaning of accumulated fine sediment within the Polishing Lagoon.

b. Before 20 December 2023, the Defendant determined the quantity of sediment within the Polishing Lagoon by visual assessment only.

c. On about October 2023, the Defendant saw a “little bit of a beach” in the Polishing Lagoon which “did not look too bad” but is normally an indication some work needed to be done to the Polishing Lagoon.

d. On 18 December 2023, a weekly inspection report prepared by the Defendant said the following about the Polishing Lagoon: ‘Beach present? Yes.’

e. On 18 December 2023, the Grit Trap associated with the Polishing Lagoon contained sediment and silt. On 18 December 2023, a weekly inspection report prepared by the Defendant said the following about the Grit Trap: ‘Is it in need of cleanout? Yes’. The Defendant maintained the Grit Trap on an approximately quarterly basis.

f. As at 20 December 2023, the amount of sediment in the Polishing Lagoon prior to the 20-22 December 2023 rainfall event and before the 4-6 April 2024 event cannot be estimated with any scientific certainty as there were no specific measurements made.

g. On 20 December 2023, there was inadequate water storage capacity in the Polishing Lagoon due to the high levels of sediment in the Polishing Lagoon. Together with the high rainfall, this resulted in the discharge of wastewater contaminated with sediment and coal fines from the Polishing Lagoon into the environment, including to the Wollangambe River.

FAILURE TO TEST PIRMP WITHIN ONE MONTH OF DECEMBER POLLUTION INCIDENT

110. As established above, a pollution incident occurred at and from the Premises on 20 December 2023.

111. Between 20 January 2024 and continuing to at least 14 October 2024, the Defendant did not test its PIRMP.

112. After the incident on 20 December 2023, the Defendant first tested its PIRMP on 5 December 2024 and subsequently on 21 May 2025 and 20 June 2025.

113. At all relevant times, the Defendant did not have any formal training in place in relation to its PIRMP. Training occurred at a peer-to-peer level.

…

Purposes of sentencing

7. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) states:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

8. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of a defendant; Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 (Veen) at 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-473 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-491 (Deane J). The sentence should not exceed what is justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances; Veen (No 2) at 472, 485-486, 490-491, 496 and Hoare v R (1989) 167 CLR 348; [1989] HCA 33 (Hoare) at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

9. Section 21A of the CSP Act identifies numerous matters which a court must consider when sentencing including those in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors which are relevant and known to a court. In identifying relevant objective circumstances s 241(1) of the POEO Act identifies factors to be taken into consideration in imposing a penalty for offences committed under the POEO Act (so far as they are relevant).

10. When determining an appropriate penalty, the court’s consideration of the subjective and the objective circumstances of the offence is informed by the context of the relevant legislative framework aimed at environmental protection; see Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Director-General v Rae) at [15].

Objective circumstances

Nature of offences

11. The POEO Act is key legislation in NSW which establishes the statutory framework for environmental protection. Its main functions include requiring environmental protection licences for scheduled activities and empowering the Environment Protection Authority (EPA) to issue environment protection notices (like clean-up and prevention notices). The objects of the POEO Act s 3 include relevantly to these offences:

(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,

(iia) the elimination of harmful wastes,

…

(iv) the making of progressive environmental improvements, including the reduction of pollution at source,

(v) the monitoring and reporting of environmental quality on a regular basis…

12. A fundamental consideration for environmental offences is the extent to which the defendant’s conduct offends against the legislative objectives expressed in the offence; R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [52]; and Director-Genera**l v Rae at [15].

13. As the Prosecutor submitted whether the offences caused harm to the regulatory system is a relevant consideration for the purpose of s 241(2) of the POEO Act (but not relevant for the purposes of s 241(1)(a); ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4 (ACE) at [61], [65]).

First and Second Water Pollution Offences

14. Section 120(1) of the POEO Act is central to the statutory regime for the prohibition of pollution of waters and the prohibited result directly undermines the objects of the POEO Act.

Licence Breach Offence

15. Contravention of an environment protection licence is serious because it involves a breach of public trust; Environment Protection Authority v Port Kembla Copper Pty Ltd (2001) 115 LGERA 391; [2001] NSWLEC 174 at [23]-[27]; Environment Protection Autho**rity v Port Kembla Copper Pty Ltd [2003] NSWLEC 256 at [57].

16. The Defendant’s plea of guilty is an admission that it failed to maintain the Polishing Lagoon in such a way as to minimise or avoid environmental consequences or risk of the same; Bartter Enterprises v Environment Protection Authority (2022) 252 LGERA 277; [2022] NSWCCA 43 at [22], [24] and [27] (Basten JA; Davies and Dhanji JJ agreeing). The contravention was incompatible with the statutory scheme and offended against the objects of the POEO Act.

PIRMP Offence

17. Pursuant to s 153E of the POEO Act the Defendant was required to test its PIRMP in accordance with the POEO General Regulation. Section 75(1)(b) of the POEO General Regulation provided that the PIRMP must be tested within one month of a pollution incident:

18. that occurred during an activity to which an Environment Protection Licence (EPL) relates such as coal mining operations authorised by the Licence, and

19. which caused or threatened material harm to the environment. The Prosecutor does not allege the commission of the offences caused actual harm to the environment. By the plea of guilty to this charge, the Defendant accepts that the pollution incident threatened material harm to the environment as this is an element of the offence.

20. The Defendant was required to test its PIRMP by 20 January 2024. It is an agreed fact that the PIRMP was not tested until at least 14 October 2024. The PIRMP Offence is therefore a continuing offence for the purposes of s 242 of the POEO Act, occurring over a period of 269 days.

21. The PIRMP test was required to be carried out in a way to ensure that the information was (i) accurate and up to date, and (ii) that the plan was capable of being implemented in a workable and effective way. These factors were required to be assessed in light of the 20-21 December 2023 pollution incidents; ss 75(2)-(3) of the POEO General Regulation.

22. The purposes of the PIRMP are to inter alia:

23. provide for notification of a pollution incident to relevant persons; POEO Act s 153C;

24. describe the action to be taken immediately after a pollution incident to reduce or control any pollution; POEO Act s 153C(b);

25. set out the procedures to be followed for co-ordinating, with the authorities or persons that have been notified, any action taken in combating the pollution caused by the incident and in particular, the persons through whom all communications are to be made; POEO Act s 153C(c);

26. set out the names, positions and 24-hour contact details of each individual who is responsible under the PIRMP; s 73(1)(a) POEO General Regulation;

27. set out the details of pre-emptive action required to minimise or prevent a risk of harm to human health or the environment arising out of the activity; s 73(1)(d) POEO General Regulation;

28. set out the nature and objectives of a staff training program in relation to the PIRMP; s 73(1)(e) POEO General Regulation; and

29. set out the date on which the PIRMP is tested and the name of the person who carried out the test, and the method for testing and maintaining the PIRMP; ss 73(1)(f)-(g) POEO General Regulation.

30. Pursuant to POEO Act s 153A, the importance of compliance with the PIRMP is inextricably linked to compliance with the Licence in that all holders of an EPL have a duty to prepare and comply with a pollution incident response management plan.

Prevention Notice Offence

23. The power in s 96 of the POEO Act to issue a prevention notice is essential to the functioning and enforcement of the licencing regime and the wider regulation of pollution as provided by the POEO Act. Section 96 serves to enforce the objects of the POEO Act by conferring on an appropriate regulatory authority the power to compel a recipient to take urgent steps to stop or minimise suspected environmentally unsatisfactory activities. The Prevention Notice Offence undermined the regulatory regime; see Cessnock City Council v Quintaz Pty Limited*; Cessnock City Council v McCudden* (2010) 172 LGERA 52; [2010] NSWLEC 3 at [65] (Pepper J); Environment Protection Authority v Calleija*; Environment Protection Authority v Budget Waste Recycling Pty Ltd* [2024] NSWLEC 119 (Calleija) at [239] (Pritchard J).

Maximum penalty

24. The maximum penalty for any offence is relevant to determining the objective gravity of the offence. The maximum penalty reflects the public expression by Parliament of the seriousness of the offence; Camilleri*’*s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. It also provides a sentencing yardstick for the case before a court. As the High Court noted in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]:

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

25. The maximum penalty was, at the time of each offence:

26. for the First and Second Water Pollution Offences and the Licence Breach Offence, $1 million. None of these offences are charged as a continuing offence.

27. for the Prevention Notice Offence, $2 million.

PIRMP Offence

26. For the PIRMP Offence which commenced on 20 January 2024 and continued to 14 October 2024, the maximum penalty changed during the charge period as follows:

27. from 20 January 2024 - 2 April 2024: $1,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues; and

28. from 3 April 2024 - 14 October 2024: $2,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $240,000 for each day the offence continues.

29. An increase in the maximum penalty for an offence is an indication that sentences for the offence should be increased; Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [31]; R v Slattery (1996) 90 A Crim R 519 at 524.

30. The parties provided a joint submission on the applicable maximum penalty for the PIRMP offence. The parties agreed that the primary maximum penalty is $1 million because the offending conduct attracting the primary maximum penalty was committed on 20 January 2024. R v White (Court of Criminal Appeal (NSW), 25 July 1991, unrep) (White); R v Annecchini (Court of Criminal Appeal (NSW), 24 April 1996, unrep) and SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274 stand for the proposition that, where an offence is subject to a single maximum penalty (without provision for ongoing daily penalties) and where that penalty is increased by legislative amendment during a period of continued offending, the increased maximum penalty is that which is applicable. White was applied in Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131 and Environment Protection Authority v Port Stephens Council [2011] NSWLEC 209. In those cases the continuing daily penalty did not increase during the charge period. The parties were unable to find a case where a maximum daily penalty increased during a continuing charge period but appeared to consider this approach could apply by analogy.

31. Consequently the parties agreed that the maximum penalty for the PIRMP Offence would be calculated as follows:

32. 20 January 2024 – $1,000,000 primary penalty maximum

33. 21 January 2024 – 2 April 2024 (inclusive) – 73 days (continuing) x $120,000 = $8,760,000

34. 3 April 2024 – 14 October 2024 (inclusive) – 195 days (continuing) x $240,000 = $46,800,000

TOTAL = $56,560,000

30. The Court has taken two approaches where a daily penalty is available:

31. Imposing a daily penalty and having regard to this in the assessment of the primary penalty; see Environment Protection Authority v Zoya Investments Pty Ltd [2022] NSWLEC 149 (Zoya) at [158]-[165] and [179]-[181]; Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739 (Australian Waste Recyclers 1); and

32. Not imposing a daily penalty but having regard to the availability of a daily penalty in assessing the objective seriousness of the offending conduct; see Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131 at [50]-[51].

33. The Defendant submitted that while a daily penalty is available, one should not be imposed as this would result in a disproportionate penalty. Instead the Court should take the same approach as in Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48 at [58]-[60] by taking into account, as a particular aggravating factor, the continuation of the offence in the imposition of a single penalty; see also Environment Protection Authority v Buchanan (No 2) (2009) 165 LGERA 383; [2009] NSWLEC 31; Calleija at [239].

State of mind/reasons for and circumstances underpinning the offences

32. The offences are strict liability offences. The Prosecutor did not submit that any of the offences were committed intentionally, recklessly or negligently but made some submissions in relation to state of mind which it said were relevant to the objective seriousness of the offences.

Water pollution/licence breach offences (3 of 5 offences)

33. The Prosecutor submitted that the Defendant in committing the Licence Breach Offence fell short of what might be expected of a holder of an EPL in managing the risk of the Polishing Lagoon discharging. As a result of a failure to maintain the Polishing Lagoon, its effectiveness was reduced on 20 December 2023 due to the high levels of accumulated sediment and material. The Prosecutor submitted it was relevant that the Defendant was aware of the First and Second Water Pollution Offences as they were occurring given the presence of one of its employees as these were occurring.

34. The Defendant submitted that a very high rainfall event contributed to the First and Second Water Pollution Offences and the Licence Breach Offence (a one in twenty-year ARI storm event, SOAF par 47). The Polishing Lagoon’s capacity was exceeded in circumstances where its capacity had been approved under the Licence. The Defendant referred to its Water Management Plan dated June 2022 which set out the requirements for managing water at the premises. The plan summarised dirty water management structures including the Polishing Lagoon and provided that a discharge or management method for the Polishing Lagoon was ‘Overflows to Main Dam via LDP002 under high rainfall events’.

35. The Licence also recognised that regulation of water on the site is different in rainfall events (although not in relation to the particular discharge points the subject of these charges). The Licence as at 20 March 2023 identified water discharge points LDP2, 3, 4 and 9 and set the concentration limits for pollutants in water permitted to be discharged from the licence discharge points. A condition applied to the concentration limits as follows:

The concentration limit stipulated by L2.1/L2.4 for EPA identification points 3 and 4 are deemed not to apply when the discharge from the stormwater control structures occurs solely as a result of rainfall measured at the premises which exceeds

a) a total of 56 millimetres over any consecutive five-day period.

36. The Defendant accepted its responsibility to manage its systems to avoid pollution in all weather conditions but submitted the impacts of rain should be recognised.

37. The Defendant accepted that at the date of the Licence Breach Offence it had been unsuccessful in addressing the accumulation of sediment in the Polishing Lagoon and that the steps it took prior to 20 December 2023 were inadequate. It submitted that there had been significant attempts to remove sediment from the Polishing Lagoon prior to the Licensing Breach Offence and the First and Second Water Pollution Offences on 7 July 2021 and 5 September 2022 (SOAF par 43).

Finding on reasons for offences resulting in water pollution in December 2023 (3 of 5 offences)

38. The conduct constituting the Defendant’s contravention of Condition O2.1 of the Licence included not ensuring sediment was removed from the Polishing Lagoon in a timely manner, not ensuring adequate active storage in the Polishing Lagoon remained available and not continuously monitoring the amount of sediment and available water storage in the Polishing Lagoon, including by appropriate and available water storage in the Polishing Lagoon. It was agreed that only visual inspections of the Polishing Lagoon were carried out to determine if its storage capacity was adequate. No other form of depth measurement instrument or measured surveillance was undertaken (SOAF par 23). Further the SOAF par 109 identifies seven failures in managing the Polishing Lagoon. As a result of that failure the Licence Breach Offence occurred also resulting in the two water pollution offences.

39. In considering the water pollution offences the relevant company employee who noticed the water pollution events occurring was not trained in any way in relation to licence requirements. That employee failed to raise the alarm when he saw extensive discharge from the Leachate Drain on 20 December 2023. This followed notification from the Defendant’s environmental contractor that the Leachate Dam Measuring Weir was overtopping. That water pollution was occurring in the Wollangambe River on 20-21 December 2023 was not known to the Defendant until a member of the public noticed discoloured black water while bushwalking on 21 December 2023 which resulted in the Prosecutor being notified.

40. Far more could and should have been done proactively by the Defendant to ensure that the Polishing Lagoon was fit for the purpose of stormwater storage. If that had occurred, the water pollution and licence breach offences may well have been avoided regardless of the substantial rainfall event in December 2023. A one in twenty-year ARI event while substantial is not unprecedented and dealing with such events should have been part of operational planning for the premises.

Prevention notice offence

41. In relation to the prevention notice offence, the Defendant also emphasised that as stated in the SOAF it had begun to remove sediment responsive to the prevention notice issued on 1 February 2024 prior to the further high rainfall event in April 2024. Following the December 2023 pollution incidents the Defendant engaged in clean up actions including the removal of sediment from the Polishing Lagoon which commenced on 1 March 2024 with 1,689 tonnes removed by 5 April 2024 (SOAF pars 95-96), as also referred to by Mr Clark in his affidavits.

42. The Prevention Notice required the Defendant to stop discharges from in or near the licenced discharge point LDP2. The Defendant submitted that it committed the Prevention Notice Offence in circumstances in which it had been working under a water management plan approved by the Planning Secretary that incorporated an express reference to overflows by the route to the Main Dam during high rainfall events. The operational change required by the Prevention Notice of no discharge via LDP2, which had previously been permitted, was substantial. The Defendant submitted the high rainfall event on 4-6 April 2024 also contributed to the Prevention Notice Offence. The Defendant did not submit this removed its control over the offending but that it introduced a circumstantial factor beyond its control that contributed to the offending.

43. It is clear that efforts to remove sediment commenced on 1 March 2024 but were inadequate to restore sufficient storage before the further rainfall event in April 2024 which resulted in further water pollution, raising the issue of whether more should have been done earlier.

44. I take into account in assessing the seriousness of this offence that the Defendant gave notice to the Prosecutor that overtopping of the Polishing Lagoon was likely to occur given the further rainfall event in April 2024.

PIRMP offence

45. The PIRMP stated it was to be reviewed and tested within one month following a pollution incident, which did not occur, contrary to the POEO Regulation. The Defendant did not have any formal training in place in relation to the implementation of its PIRMP at the time of the continuing offence.

46. The Defendant submitted that culpability for this offence is the least serious of the offences, essentially being a regulatory offence of relatively low criminality in these circumstances.

47. I do not agree. Given the specific requirements for PIRMPs in the POEO Act and the POEO General Regulation that submission does not pay sufficient regard to the importance of upholding the statutory scheme and the responsibilities of the holder of an environment protection licence. The seriousness of the offence is reflected in the provision of daily penalties if such an offence is continuing.

48. It can be accepted that the PIRMP was tested in some capacity close to the commission of the offences when a simulated diesel spill test occurred on 20 December 2023 (SOAF par 50). The PIRMP was reviewed twelve times between 2012 and December 2022, including being updated following a test on several occasions. The PIRMP was tested nine times between December 2013 and December 2022 prior to the commission of the offences (SOAF annexure M). Nevertheless that testing was not directed to the specific requirement for testing of measures implemented to respond to a pollution incident, which is directed to ensuring the effectiveness of those measures in avoiding other incidents.

Section 241 POEO Act matters

49. A number of factors relevant to sentencing are identified in s 241(1) of the POEO Act. These factors will be considered so far as they are relevant.

Section 241(1)(a) extent of environmental harm caused or likely to be caused

50. The degree of harm caused or likely to be caused by the commission of an offence is highly relevant to the assessment of the seriousness of an offence. The Prosecutor did not allege the commission of the PIRMP Offence caused any harm to the environment. The parties agreed that no actual or likely harm was caused by the other four offences. The SOAF from par 114 sets out the agreed extent of harm caused. Potential harm caused by the four other offences was agreed as summarised below:

Receiving environment

51. The upper watershed sub-catchment of the Wollangambe River to the north of the Premises is generally considered excellent and substantially pristine, although historically there were quarry works near the top of the catchment. Fish such as the native mountain galaxias and frogs have been observed in this area. It is not alleged the Offences caused harm to the environment of these upstream waters.

52. The sub-catchment of the Wollangambe River upstream of the Main Dam and the Premises comprises the Hanson (Kables) Sand Quarry operated by Heidelberg Materials Australia Pty Ltd subject to environment protection licence no. 1852 (EPL 1852). Provided specified concentration limits are met, EPL 1852 authorises the quarry to discharge to the Wollangambe River about 1km upstream of the Main Dam. The Annual Performance Report 2023 for the quarry states that between 18 and 21 December 2023, the quarry discharged 8.01ML of water upstream of the Main Dam.

53. The original sub-catchment of the Wollangambe River above the Colliery has been largely subsumed into mine surface water infrastructure. The Tributary is a channel leading from the Colliery down to the Main Dam, which has been affected by licenced discharges from the WTP at LDP2. Similarly, at the Main Dam and downstream thereof, the water quality (including ionic balance) has been affected due to, among other things, the licensed discharge from LDP2 at the Premises. This has created a longer term ‘press’ disturbance in this area. As the Prosecutor submitted the fact that the receiving environment was already modified does not mitigate against the objective culpability of the Defendant.

54. Surveys from Autumn 2016 to Spring 2018 and during Autumn and Spring 2021 identified native mountain galaxias at sites downstream of the Premises.

Overview of potential harm arising from coal fines entering the environment

55. The delivery, entrainment and deposition of inert fine sediments, including from coal fines, has the potential to cause the following impacts:

56. when present in the environment in sufficient quantities coal will have physical effects on organisms similar to those of other suspended or deposited sediments. These include abrasion, smothering, alteration of sediment texture and stability, reduced availability of light, and clogging of respiratory and feeding organs; and

57. the physical disturbance, such as increased turbidity and smothering of substrates caused by coal, can have detrimental effects on invertebrates with higher oxygen requirements, exposed gills, or preferences for low-sediment environments. The chemical effects of the coal indirectly lower invertebrate abundance because reduced water quality kills bacteria and fungi negatively affecting the decomposing detritus or biofilm on which the invertebrates graze.

58. Heavy metals, such as zinc and copper, that can be present in coal fines discharges are also toxic to groundwater invertebrates. These can impair processes in the hyporheic zone which some species of fish (for example salmonids and some Australian native fish species such as the mountain galaxias) use for spawning and egg incubation.

First Water Pollution Offence

57. The First Water Pollution Offence had the potential to cause short term harm to the environment that was not trivial. An estimated 3.7 - 4.6 ML of polluted water discharged from the Leachate Dam Measuring Weir, however the volume that ultimately entered the Main Dam was not known. The discharge sample taken by ALS Australia was measured to contain high concentrations of metals that exceeded Australian and New Zealand Water Quality Guidelines for Fresh and Marine Water Quality 2018 (ANZG 2018) default values for nickel and zinc by factors of about 460 and 817 times respectively. High concentrations of dissolved metals can have negative impacts on macroinvertebrate taxa and other aquatic biota. The discharge measured by ALS at the Leachate Dam Measuring Weir was acidic (pH = 3.37) whereas most natural freshwaters have a pH in the range 6.5 − 8.0. The low pH impacted the terrestrial plant assemblages down the slope between the Leachate Dam Measuring Weir and the Tributary and had the potential to impact the aquatic environment of the receiving waters. Impacts of pH levels as measured could include loss of fish, impacts on macroinvertebrate communities and indirect impacts caused by increases to the toxicity of several contaminants. The turbidity of the discharge may have caused adverse effects including reduced light penetration and adverse effects to fish and benthic organisms. Impacts on macroinvertebrate communities can have negative consequences for the broader aquatic ecosystem. Some of the discharge of waters containing sediment and coal fines was likely transported further downstream within the Wollangambe River, likely contributing to the cumulative degradation of the environment within the Wollangambe River.

58. Whilst the Leachate Dam Measuring Weir discharge did contribute to the cumulative pH, nickel and zinc load moving into the Tributary and Wollangambe River, this additional load would also have included both natural erosion materials arising from the high rainfall event. This load would have been diluted by the significant rainfall throughout the whole upper Wollangambe catchment reporting to the Main Dam and the LDP2 licenced discharge, such that the resultant dissolved concentrations of metals and the water pH would likely have been reduced closer to ANZG 2018 guideline values for pH, nickel and zinc with the undissolved metal fractions eventually contributing to sediment loads.

59. The discharge had the potential to cause harm to any subsisting macroinvertebrates within the Tributary where the contaminants first entered waters and the potential to cause harm to macroinvertebrates within the Wollangambe River because:

60. in February 2024 two macroinvertebrate samples taken in the Tributary (using the AUSRIVAS methodology) detected no taxa (although a specimen was found at each site following triplicate 1 minute sampling) resulting in a Stream Invertebrate Grade Number Average Level (SIGNAL2) biotic index of 0 out of 10 (consistent with severe pollution). A subsequent macroinvertebrate survey using AUSRIVAS methodology in May 2024 recorded taxa, suggestive of recovery; and

Second Water Pollution Offence

62. The Second Water Pollution Offence had the potential to cause short term harm to the environment that was not trivial. It was estimated that between 4.1 – 9.6 ML of water containing coal fines and sediment overtopped the culvert over the course of 7-8 hours. The waters from LD2 (assumed to be comparable to the water in the Leachate Drain) as measured by ALS Australia between January 2023 and May 2024 typically had dissolved nickel and zinc levels which exceeded ANZG 2018 guideline values by factors of 1373 and 1875 times respectively. The waters were typically acidic (mean pH = 3.04) which meant the discharge had the potential to cause the harm outlined above.

63. The discharge was visibly turbid and appeared to have a high total suspended solids level which meant the discharge had the potential to cause the harm outlined above. However the load of solids cannot be well quantified because no sample was taken of the discharge and the precise volume and duration of the discharge is not known. Rainfall and natural surface runoff from overland flow would have also diluted the discharge.

64. The discharge had the potential to harm macroinvertebrate communities by disrupting the food web and altering nutrient cycling and water chemistry. These changes can exacerbate existing stressors related to disturbed catchments and exert ongoing, long-term impacts on river health. Impacts on macroinvertebrate communities can cause potential harm to aquatic ecosystems as outlined above.

65. The discharge introduced pollutants, including coal fines, that had the potential to harm aquatic organisms (including macroinvertebrates) within the Wollangambe River, however there is no measurable impact that could be attributed to harm from this discharge alone.

Licence Breach Offence

66. The Licence Breach Offence had the potential to cause harm to the environment that was not trivial which is indistinguishable from but cumulative to the First Water Pollution Offence discussed above.

Prevention Notice Offence

67. The Prevention Notice Offence had the potential to cause harm to the environment that was not trivial. While no samples were taken of the discharge itself, samples taken from the Polishing Lagoon at the time of the discharge showed elevated dissolved nickel and zinc levels, which exceeded the ANZG 2018 default guideline values by factors of 38 and 83 times respectively. This meant the discharge had the potential to cause the harm outlined above. The discharge introduced pollutants that had the potential to harm aquatic organisms within the Wollangambe River, however there is no measurable impact that could be attributed to harm from this discharge alone. The discharge contained coal fines, other suspended particulate matter and metal, metalloid and non-metallic inorganic contaminants which entered the main dam and were likely to be transported further downstream. This likely contributed to the cumulative degradation of the environment within the Wollangambe River. However the removal of the sediment from the Polishing Lagoon (outlined above) likely reduced the total contaminants in the discharge as compared to the discharge at the time of the Licence Breach Offence.

68. The discharge was visibly turbid and, based on samples from the Polishing Lagoon, had a high total suspended solids level. The discharge had the potential to cause the harm outlined above. Whilst some of the coal fines, other suspended particulate matter and metal, metalloid and non-metallic inorganic contaminants discharged are likely to have settled out in the Main Dam. Some of it was likely to be transported further downstream within the Wollangambe River. The discharge therefore likely contributed to the cumulative degradation of the environment within the Wollangambe River (including at the Main Dam and downstream thereof).

69. The Defendant particularly emphasised that impacts to water quality from total suspended solids and pH were very short term for the First and Second Water Pollution Offences, as can be seen in the samples measured on 20 December 2023 and 23 December 2023 contained in the incident report annexed to the SOAF.

Section 241(1)(b) practical measures that may be taken to prevent or mitigate harm

70. The parties agreed that there were a number of practical measures available to the Defendant to prevent, control, abate or mitigate the potential environmental harm arising from the First and Second Water Pollution Offences, the Licence Breach Offence and the Prevention Notice Offence, including:

(a) installation of trash racks within the Leachate Drain upslope of the Culvert, including a regime of cleaning the trash screens on a routine basis; (b) blocking of the 100mm piped connection between the Polishing Lagoon and LD1; (c) installation of a larger capacity lift pump in the Polishing Lagoon to pump a higher volume of water to the WTP and operating that pump during rain events; (d) operating the Polishing Lagoon at a lower water level to provide for increased water storage capacity; (e) from at least October 2023, reducing the amount of sediment and coal fines present in the Polishing Lagoon to provide for increased water storage capacity and effective sedimentation; (f) installing a valve on the pipe from LD1 to the Leachate Dam Measuring Weir to control inflows to the Leachate Dam Measuring Weir, for the purpose of preventing overflows; (g) raising the Leachate Dam Measuring Weir level to above the level of LDP3 at LD1; (h) increasing the storage capacity of the Leachate Dam Measuring Weir; (i) modifying the Culvert entry and pipe size to mitigate risk of blockage and overtopping; (j) ensuring depth measurement instrumentation or measured surveillance were used to measure sediment and water levels in the Polishing Lagoon; and (k) ensuring the Grit Trap and Primary Arrestor were cleaned prior to 20 December 2023.

71. It was agreed that following the Prevention Notice Offence, the Defendant implemented the measures (a)–(f) above and is taking steps to implement (g). I note that measures (h)-(k) have yet to be implemented.

72. The Prosecutor submitted that the following measures were relevant to each offence:

73. First Water Pollution Offence – (b), (c), (d), (e), (f), (g), (h);

74. Second Water Pollution – (a), (i);

75. Licence Breach Offence – (b), (c), (d), (e), (j), (k);

76. Prevention Notice Offence – (b), (c), (d), (e), (j);

Section 241(1)(c) foreseeability of harm caused or likely to be caused by the Defendant

73. The Defendant accepted that it could reasonably have foreseen the risk of the potential for harm to the environment arising from the offending conduct in four of five offences (not relevant to the PIRMP Offence).

Section 241(1)(d) control over causes of offence

74. It was agreed that at all material times the Defendant had control over the causes of the offences as it had control over:

75. the maintenance and operation of the plant and equipment installed at the Colliery, including the Polishing Lagoon, the leachate dams, the Leachate Drain, and the Leachate Dam Measuring Weir; and

76. the testing of its PIRMP.

Finding on objective seriousness

75. I find that in light of all the considerations outlined above, the objective seriousness of the offences is variously:

76. the First Water Pollution Offence is at the lower end of medium objective seriousness;

77. the Second Water Pollution Offence is at the upper end of lower objective seriousness;

78. the Licence Breach Offence is of medium objective seriousness;

79. the PIRMP Offence is at the low end of medium objective seriousness given the importance of the statutory requirement and the substantial maximum penalty that must be considered inter alia; and

80. the Prevention Notice Offence is of medium objective seriousness.

Subjective circumstances

76. A number of subjective circumstances identified in the CSP Act are relevant to sentencing. The subjective circumstances that can be taken into account include the mitigating factors in s 21A(3) of the CSP Act where relevant. That section is not exhaustive of all matters that can be considered when sentencing.

Prior record (ss 21A(2)(d), (3)(e) CSP Act)

77. Section 21A(2)(d) provides that a record of prior convictions is an aggravating factor. The Sentencing Bench Book (Judicial Commission of NSW) states at [10-600] that:

The aggravating factor of prior convictions under s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 should be interpreted in a manner consistent with the proportionality principle in Veen v The Queen (No 2) at 477; R v McNaughton at [30]. Prior criminal record “cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”.

The reference to “aggravating factors” in s 21A(2) does not mean that s 21A(4) should be applied to deprive s 21A(2)(d) of any effect: R v McNaughton at [33]. The words “aggravating factors” in s 21A(2) should not be interpreted as if they were a reference only to “objective considerations”. The aggravating factors set out in s 21A(2) are intended to encompass both subjective and objective considerations, as that distinction has been developed at common law: R v McNaughton at [34]. Parliament has not used the word “aggravation” in its common law sense. The text of s 21A(1)(c) (“any other objective or subjective factor”) and s 21A(2)(h) and (j) supports that interpretation. Thus, prior criminal record may be used in the manner set out in Veen v The Queen (No 2) at 477, as a subjective matter adverse to an offender via s 21A(2)(d).

78. On 14 July 2017, the Defendant pleaded guilty to and was convicted of one Tier 1 offence under s 116 of the POEO Act (negligently causing the escape of coal fines slurry and coarse reject material into the environment including an unnamed watercourse and the Wollangambe River) and one offence under s 156A(1)(b) of the National Parks and Wildlife Act 1974 (NSW) (NPW Act) (damaging vegetation, rock, sand, soil, stone and similar substances located within the Blue Mountains National Park); Environment Protection Authority v Clarence Colliery Pty Ltd [2017] NSWLEC 82 at [145]. Robson J found the offences to be in the upper range of medium objective seriousness. The offences were committed negligently and resulted in substantial actual harm and likely harm to the environment which was reasonably foreseeable. Practical measures if taken would have prevented the offences from occurring and the Defendant had full control over the causes of the offences. The Defendant was ordered to pay a monetary penalty of $720,000 for the POEO Act offence and $330,000 for the NPW Act offence. I will take the Defendant’s prior record into account in the manner identified in Veen (No 2) and McNaughton.

79. Given earlier convictions for two serious environmental offences the Defendant cannot benefit from mitigation in sentencing under s 21A(3)(e) of the CSP Act.

Pleas of guilty (ss 21A(3)(k), 22)

80. An early plea of guilty entitles the Defendant to a discount in penalty under s 22 of the CSP Act in the range of 10-25%; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142.

81. All charges were filed on 18 December 2024 and the Defendant entered pleas of guilty on 21 March 2025. A discount of 25% should be applied on account of the Defendant’s early guilty pleas.

Good character (s 21A(3)(f))

82. The Defendant submitted that it was of good corporate character and relied in part on two affidavits of Mr Clark, Executive General Manager of Environmental, Social and Governance and Infrastructure at Centennial dated 5 September and 10 October 2025. Mr Clark had authority to make both affidavits on behalf of the Defendant in these proceedings.

83. Mr Clark’s first affidavit outlined community contributions made by the Defendant and Centennial. The Defendant has a Community Consultation Committee which provides a forum for discussion between the Defendant, community, Council and other stakeholders on issues relating to mining operations, environmental performance and community relations. Centennial has supported Meals on Wheels since 2008, provided sponsorship to nine local organisations in 2024 - 2025, and has recently signed an agreement to support Mingaan Aboriginal Corporation to facilitate it to rent premises in Lithgow.

84. In his second affidavit Mr Clarke stated that the Defendant has ongoing projects in relation to water quality and water management at the Colliery including working on a pipeline project that will prevent groundwater being discharged from LDP2 into the Wollangambe River by 31 December 2025 and in the interim delivering the ‘Lithgow Dam 2’ project which will pump at first up to 3.4ML per day to Lithgow Dam 2 with a view to increasing that amount to 14ML. Those measures will require capital expenditure of approximately $24,774,000. The Defendant also submitted that the measures taken, even if not directly responsive to the offences, demonstrate that it is of good character and committed to environmental management.

85. Compliance with regulatory obligations can have little weight in considering good character. The Defendant was required to establish the Community Consultation Committee pursuant to a development approval and was complying with a regulatory obligation in doing so. The ongoing projects relating to water quality and water management are required by the Licence (condition U1.1).

86. I agree with the Prosecutor that little weight should be placed on sponsorships as there was insufficient evidence of what this entailed and whether the Defendant received any benefit such as company advertising. Further the sponsorships appeared to be of limited duration and occurred only after the offending conduct.

87. The Prosecutor also submitted that evidence of Centennial could not be used to draw conclusions about the Defendant’s character, citing Environment Protection Authority v Maules Creek Coal Pty Ltd (No 4) [2025] NSWLEC 92 at [168]-[169]; Stephen James Orr v Narrabri Coal Operations Pty Ltd; Stephen James Orr v Narrabri Coal Pty Ltd [2021] NSWLEC 85 at [219] where reservations about a defendant relying on the deeds of a parent company were expressed. In this case the Defendant appears to have little practical independence beyond Centennial given representation and evidence on its behalf was presented solely by Centennial officers. The publication notice sought by the Prosecutor is to be posted on the Centennial website on the page for the Colliery mine. In these circumstances the actions of Centennial are relevant to consider in relation to the Defendant.

Likelihood of re-offending (s 21A(3)(g))

89. In submitting that it was unlikely to re-offend, the Defendant emphasised that changes have been implemented which minimise the prospects of re-offending as outlined in Mr Clark’s first affidavit. The Defendant was committed to ongoing cooperation with the Prosecutor in relation to environmental compliance at the premises. The Prosecutor has not established on the balance of probabilities that the Defendant is likely to re-offend.

90. The Prosecutor submitted that this factor is not relevant in mitigation given the Defendant’s history of prior convictions, that the Defendant continues to operate at the premises, that the offences occurred over a relatively extended period, and that not all practical measures that may have prevented the offending have been implemented.

91. For the reasons given by the Prosecutor, I do not find that the Defendant is unlikely to re-offend.

Remorse (s 21A(3)(i))

92. Matters that are relevant to consider in relation to contrition and remorse were helpfully identified non-exhaustively in Waste Recycling at [203]-[214] (Preston CJ) as follows:

203 …The actions underlying genuine contrition and remorse may take at least four forms…

204 First, the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence is the clearest indication of contrition and remorse. Where it occurs it justifies a reduction in the sentence: Mickelberg v The Queen (1984) 13 A Crim R 365 at 370; s 21A(3)(i) of the Crimes (Sentencing Procedure) Act and R v United Keno Hill Mines Ltd (1980) 10 CELR 43 at [24]…

210 Secondly, voluntarily reporting the commission of the offence and any concomitant environmental harm to relevant authorities indicates a genuine desire to act responsibly. Environmental regulation depends upon the integrity of persons making full disclosure. Voluntarily reporting breaches should therefore be acknowledged as a mitigating circumstance by the courts in sentencing: R v United Keno Hill Mines Ltd at [24]…

212 Thirdly, the taking of action to address the causes of the offence, such as designing and installing improved pollution prevention and control systems, also indicates a genuine desire to act responsibly: *Camilleri’*s Stock Feeds Pty Ltd v Environment Protection Authority at 700-701; 38-39…

214 Fourthly, the personal appearance of corporate executives in court and their personal evidence outlining the company’s genuine regret and stating future plans to avoid repetition of such offences is an indication of genuine corporate contrition: R v United Keno Hill Mines Ltd at [26]; Environment Protection Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 223 (28 September 2001) at [28]. See also Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 (5 December 2005) at [186]-[187] and Environment Protection Authority v Ballina Shire Council (5 May 2006) at [115].

93. In his first affidavit Mr Clark expressed on behalf of the Defendant and Centennial sincere contrition and remorse in relation to the commission of the offences. He unreservedly apologised on behalf of the Defendant for the commission of the offences. Centennial accepted that it failed to meet its obligation to maintain the Polishing Lagoon in a proper and efficient condition on or about 20 December 2023 and that the Defendant accepts responsibility and apologises unreservedly for the First and Second Water Pollution Offences, the Prevention Notice Offence, and the PIRMP Offence.

94. The Defendant relied on the following matters. Upon becoming aware of the water discharges in December 2023, the Defendant cooperated with the Prosecutor and undertook remedial actions in accordance with the Clean Up Notice dated 22 December 2023. The Defendant also took remedial action in accordance with the Prevention Notice dated 1 February 2024. On 5 April 2024 the Defendant contacted the Prosecutor, as well as the Department of Planning, Housing and Infrastructure, the Department of Climate Change, Energy, the Environment and Water, and the NSW Resources Regulator to advise a discharge from the Polishing Lagoon was imminent (relevant to the Prevention Notice Offence).

95. Since the incidents:

96. Centennial officers have undertaken a number of corrective measures to address the incidents including carrying out a survey of the Polishing Lagoon for monitoring purposes on 2 August 2024. The Defendant will be ensuring that surveys of the Polishing Lagoon are carried out on a regular basis annually and are included in the work order system to ensure adequate reporting of such surveys;

97. the Defendant has undertaken corrective measures to ensure that all employees and contractors are adequately trained with respect to Licence obligations, the applicable water management plan, the PIRMP and reporting obligations under the POEO Act. Mr Clark outlined several steps that have been taken in that respect;

98. the Defendant has taken corrective measures in infrastructure maintenance and monitoring, some of which were outlined; and

99. the Defendant will be implementing a new Environmental Data Management System which will store environmental and ESG data;

100. The measures have or will require significant investment of time and capital expenditure, including over $350,000 for the Environmental Data Management System and $7,500 for a training video outlined. The Defendant has and continues to work with the Prosecutor to assist the Prosecutor’s investigations.

101. The Prosecutor accepted the above but submitted this was not a significant mitigating factor as there is no evidence of the Defendant:

102. acting promptly to respond to the first pollution incident; or

Assistance to authorities (s 21A(3)(m))

102. Section 21A(3)(m) identifies that assistance to law enforcement authorities as provided by s 23. Section 23(1) states that a lesser penalty may be imposed having regard to the degree to which the offender assists or undertakes to assist law enforcement authorities in the prevention, detection or investigation of the offence concerned or any other offence. S 23(2) identifies various factors that can be considered in deciding whether to impose a lesser penalty.

103. The Defendant noted that it fully cooperated with the Prosecutor’s investigation and complied with the Prosecutor’s clean up notice. Cooperation with the investigation into the offences was required by law and participation in providing a SOAF does not generally constitute assistance to authorities; ACE at [92]-[103]. The Defendant accepted it had done nothing out of the ordinary in terms of cooperating with the Prosecutor in relation to the prosecutions.

104. The Defendant also drew attention to the commitment to the substantial pipeline to Lithgow Dam 2 outlined in Mr Clark’s second affidavit as being of a different character and demonstrated commitment to cooperating with the Prosecutor going forward. That the Defendant is co-operating and intends to cooperate with the Prosecutor in fulfilling its environmental licencing obligations in the future including by undertaking substantial capital expenditure is not relevant in this context given the terms of s 23 of the CSP Act.

105. I do not give any weight to this factor in this sentencing exercise.

Sentencing principles

General and specific deterrence

106. General deterrence is an important factor when imposing penalties for environmental offences; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (Axer) at 367 (Badgery-Parker J). Nominal fines are insufficient for deterrence; Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68 at [159] citing Axer at 359 (Mahoney AJA), 367 (Badgery-Parker J, Finlay J agreeing), Camilleri*’*s at 701 (Kirby P, Campbell and James JJ agreeing).

107. The sentence should operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that if they are caught only light punishment will be imposed; Plath of the Department of Environment and Climate Change v Fish; Plath of the Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 at [99] citing R v Rushby [1977] 1 NSWLR 594 at 597.

108. Specific deterrence is applicable where an offender has a prior criminal record which manifests a continuing attitude of disobedience, such that more weight should be given to retribution, personal deterrence or protection of the community: Veen (No 2) at 477; R v Abboud [2005] NSWCCA 251 at [33]; R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 (McNaughton) at [54]. Specific deterrence has particular relevance where an offender continues to operate in the same area of operation in which the offence occurred; Environment Protection Authority v Ardent Leisure Ltd [2018] NSWLEC 36 at [135] per Robson J citing Preston CJ in Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48]. Specific deterrence is also warranted in circumstances where the Defendant has a history of prior convictions for environmental offences: Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 70 at [186] (Robson J).

109. The Defendant submitted that contribution of specific deterrence to the penalty should be low given:

110. there was only a potential for the offences to cause harm;

111. extensive steps have and are being taken to improve the water management system at the Clarence Colliery;

112. the Defendant’s good corporate character; and

113. the Defendant’s high level of commitment to engage with the Prosecutor and invest in measures that will improve environmental outcomes (as outlined in Mr Clark’s second affidavit).

Proceedings could have been commenced in the Local Court

111. The offences could have been commenced in the Local Court where the maximum penalty is $110,000, a factor identified as relevant to be considered in Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [95]-[99] (Simpson J, Hall and Schmidt JJ agreeing) citing R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [93]. As also identified the significance of the circumstance varies from case to case. No aspect of these cases suggested they should have been more appropriately dealt with in the Local Court.

Even-handedness

112. The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty; R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Maxwell and Lee JJ agreeing). This principle must always be applied subject to the particular circumstances of the case before the Court; Hoare v R (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ) (Hoare v R). The principle of even-handedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts; Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) quoting R v Ruha (2010) 198 A Crim R 430; [2010] QCA 10 at [47]. A history of sentencing in other cases does not limit my sentencing discretion. Regard must also be had to the maximum penalty set by Parliament; Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [72].

113. The Prosecutor and Defendant each provided the Court several cases to consider in relation to comparability. They agreed that the most analogous case was Environment Protection Authority v Metropolitan Collieries Pty Ltd [2025] NSWLEC 23 (Metropolitan Collieries). In that case the defendant an operator of a coal colliery pleaded guilty to two water pollution offences against s 120(1) and one licence breach offence against s 64(1) of the POEO Act for discharge of sediment and coal fines-laden waters into a creek and adjacent rivers and streams in September and October 2022. The offences caused actual, likely and potential harm. The harm was reasonably foreseeable. The defendant had control over the causes of the offences, although they occurred in circumstances of unprecedented heavy rainfall, and could have taken practical measures to prevent or mitigate the harm. The licence breach offence and the September water pollution offence fell within the mid-range of objective seriousness. The October water pollution offence fell within the high end of the low range. After a discount of 22.5% for relatively early pleas of guilty the totality principle was applied with further percentage reductions of penalty of 10%. The Court ordered the defendant to pay monetary penalties of $70,200 for the September water pollution offence, $49,140 for the October water pollution offence, and $77,220 for the licence breach offence, a total of $196,560, investigation expenses and legal costs. A publication order was also made.

114. Other cases referred to by the Prosecutor which I have considered are Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33; Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76; [2017] NSWLEC 39; [2019] NSWLEC 178; [2023] NSWLEC 68 and [2017] NSWLEC 60.

Retribution and denunciation (ss 3A(a), (f) CSP Act)

118. Purposes of sentencing include providing retribution for and denunciation of the offences.

Totality

119. The sentencing principle of totality is relevant where more than one similar offence is committed to ensure that the sum of any fines imposed is not disproportionate to the total criminality of a defendant: Environment Protection Authority v Wattke*;* Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [98] citing Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Pearce v The Queen (1988) 194 CLR 610; [1988] HCA 57. Adjustment of individual fines otherwise to be applied may be warranted in order to reflect the overall criminality of multiple offences.

120. The Prosecutor submitted the totality principle should be applied to the First and Second Water Pollution Offences and Licence Breach Offence as they were temporally and conceptually connected and arose from the same course of conduct. The Prosecutor noted that each offence had its own distinct and cumulative potential impact on the environment.

121. The Defendant submitted all offences concerned the Defendant’s water management system and the Defendant is being sentenced for them at the same time. The common origin of the pollution events justifies application of the totality principle to all five offences.

122. The application of the totality principle as submitted by the Prosecutor is not consistent with the approach identified recently by the Court of Criminal Appeal in Jindalee Road Wines Pty Ltd v N**atural R**esources A**ccess Regulator; Littore v N**atural R**esources A**ccess R**egulator [2025] NSWCCA 215 at [168]-[172] whereby all offences including those that can be considered as separate from each other should be assessed collectively to determine what should be the overall punishment, including in relation to fines. The four offences which resulted in water pollution are interrelated in their causation and occurred in the same location in December 2023 and April 2024. The PIRMP offence while of a different quality arose from the same events and should also be considered in relation to the totality of the Defendant’s offending.

Penalty

123. The Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a ‘value judgment as to what is the appropriate sentence given all the factors of the case’; Muldrock at [26] unanimously following Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J). The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant; see Veen and Veen (No 2) at 472-3 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-1 (Deane J). The sentence should not exceed what is ‘justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances’; Hoare v R at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ) citing Veen (No 2) at 472, 485-6, 490-1, 496.

124. Weighing up the various objective and subjective considerations set out above I consider the following penalties ought to be imposed which will be adjusted in light of the 25% discount for a guilty plea as follows:

125. First Water Pollution Offence: $350,000 reduced by 25% to $262,500;

126. Second Water Pollution Offence: $100,000 reduced by 25% to $75,000;

127. Licence Breach Offence: $250,000 reduced by 25% to $187,500;

128. Prevention Notice Offence: $200,000 reduced by 25% to $150,000.

PIRMP Offence

125. The penalty for the PIRMP Offence must be considered in light of the fact that it is a continuing offence. As agreed by the parties the maximum penalty is extremely large at $56,000,000 because of the number of days (269) that it continued. No actual or likely environmental harm is alleged to have resulted from the offence. A daily penalty is not appropriate as it would be very small indeed and lack utility. I will take into account the possible very large maximum penalty in setting the penalty. The appropriate penalty is $300,000 reduced by 25% to $225,000.

126. Overall the total of fines is $900,000.

127. Applying the totality principle by appropriate reduction of 30% I consider the appropriate penalties should be:

128. First Water Pollution Offence reduced to $183,750;

129. Second Water Pollution Offence reduced to $52,500;

130. Licence Breach Offence reduced to $131,250;

131. Prevention Notice Office reduced to $105,000;

132. PIRMP Offence reduced to $157,500.

Additional orders

128. Additional orders can be made under s 250(1) of the POEO Act in addition to any penalties imposed.

Publication Order

129. The Prosecutor seeks a publication order as provided for under s 250(1)(a) and (b) of the POEO Act in the agreed form set out at Annexure B of the orders below.

130. Relevant factors for considering whether to make a publication order were helpfully outlined in E**nvironment P**rotection A**uthority v Crown in the Right of N**ew S**outh W**ales [2019] NSWLEC 178 by Duggan J at [84] as follows:

84 Whether it is appropriate [to] impose a publication order in a sentence has been considered by this Court on a number of occasions. The principles to be derived from those authorities and the factors that have been considered in determining whether to make such an order can be summarised as follows:

(1) The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [36];

(2) Publication orders assist in serving a deterrent purpose in environmental crimes: EPA v Waste Recycling Corporation (2006) 148 LGERA 299. Such a notice informs or reminds the public that such an offence exists and may add some “sting” to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [163].

(3) Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [242];

(4) Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd; (2003) 131 LGERA 176 at [58]-[59]);

…

(7) The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [41]; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [169];

(8) Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [164].

131. Taking into account factors (2) and (3) being relevant to these offences I consider the circumstances of the offences warrant a publication order in the terms sought and will make the order sought by the Prosecutor.

Professional costs

132. The Defendant has agreed that it pay the Prosecutor’s professional costs of $170,000 as provided by ss 257B and 257G of the Criminal Procedure Act 1986 (NSW).

Investigation costs

133. The Defendant has agreed to pay the Prosecutor’s investigation costs of $15,528 (GST exclusive) pursuant to an order under s 248(1) of the POEO Act.

Moiety

134. The Prosecutor seeks a moiety under s 122 of the Fines Act 1996 (NSW) for half of any fine ordered payable by the Defendant to be paid to the Prosecutor. I consider it is appropriate to make an order for payment of a moiety in that amount.

Environmental Services Order

135. The Prosecutor proposes and the Defendant has agreed to an order pursuant to section 250(1)(e) of the POEO Act that some portion of any monetary penalty awarded up to $86,500 is to be paid to Local Land Services for the purposes of the Long Swamp Improvement Project. A description of the project is set out in Annexure A of the orders below.

136. The nature of the project proposed addresses an important area of the environment in the vicinity of the offences and it is appropriate to make an order under s 250(1)(e) in the terms sought.

Orders

137. The Court orders in proceedings 2024/471797 (First Water Pollution Offence):

138. The Defendant is convicted of the offence contrary to section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged.

139. The Defendant is to pay a monetary penalty in the sum of $97,250.

140. Pursuant to section 250(1)(e) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant is ordered to pay $86,500, within 42 days of this order, to Local Land Services, for the purposes of the Long Swamp Improvement Project (the Project). A description of the Project is set out in Annexure A.

141. The Court orders in proceedings 2024/471798 (Second Water Pollution Offence):

142. The Defendant is convicted of the offence contrary to section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged.

143. The Defendant is to pay a monetary penalty in the sum of $52,500.

144. The Court orders in proceedings 2024/471800 (Licence Breach Offence):

145. The Defendant is convicted of the offence contrary to section 64(1) of the Protection of the Environment Operations Act 1997 (NSW), as charged.

146. The Defendant is to pay a monetary penalty in the sum of $131,250.

147. The Court orders in proceedings 2024/471799 (PIRMP Offence):

148. The Defendant is convicted of the offence contrary to section 153E of the Protection of the Environment Operations Act 1997 (NSW), as charged.

149. The Defendant is to pay a monetary penalty in the sum of $157,500.

150. The Court orders in proceedings 2024/471801 (Prevention Notice Offence):

151. The Defendant is convicted of the offence contrary to section 97(1) of the Protection of the Environment Operations Act 1997 (NSW), as charged.

152. The Defendant is to pay a monetary penalty in the sum of $105,000.

153. The Court orders in proceedings 2024/471797, 2024/471798, 2024/471799, 2024/471800, 2024/471801:

154. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50 per cent of the monetary penalty in each of the proceedings is to be paid to the Prosecutor as a moiety within 28 days of this order.

155. Pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 (NSW), the Defendant is to pay the Prosecutor’s professional costs of the proceedings in the sum of $170,000, within 42 days of this order.

(i) Within 28 days of the date of this order, cause a notice of a minimum size of a quarter page (and corresponding size in the digital edition) to be published within the first 12 pages of The Sydney Morning Herald, Mining Magazine Australia, The Australian Financial Review, and Lithgow Mercury with the text of such notice and the Defendant’s logo (of reasonable size) to be as set out in Annexure B to these orders;

5. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant, at its expense, is to:

(i) Within 28 days of the date of this order, cause a notice to be placed on the Centennial Coal Company Pty Ltd (Centennial) company website, on the page for the Clarence mine https://www.centennialcoal.com.au/operations/clarence in the form of Annexure B. The notice is to be of reasonable size and must remain on that page for at least 28 days; and (ii) Within 14 days of the date of this order, publicise the offences and the orders made against it by posting the following text on Centennial’s LinkedIn page, together with a hyperlink directly to the Court’s judgment as published on the New South Wales Caselaw website and tagging the Environment Protection Authority in the post:

Clarence Colliery, a subsidiary of Centennial, was prosecuted by @NSW Environment Protection Authority (EPA) and convicted of five offences following several overflows of coal and sediment laden waters into tributaries of the Wollangambe River (near the Blue Mountains National Park) in December 2023 and April 2024.

Clarence Colliery was ordered to:

(a) (i) pay monetary penalties in the total sum of $630,000; (b) (ii) pay the EPA’s costs of the proceedings in the sum of $170,000 and the EPA’s investigation costs in the sum of $15,548; and to publish notices of the convictions and the fines imposed. (c) [insert hyperlink to judgment as published on NSW Caselaw website]. #NSWEPA #CentennialCoal #AustralianResources #Pollution

(iii) The post in (ii) is to be made between the times of 8:00am and 10:00am or between 4:30pm and 6:30pm on a weekday. This post must remain a pinned post on the LinkedIn page for a minimum of 7 days.

6. Within 7 days of the date of each of the publications referred to in orders (4) and (5) above, the Defendant must provide the Prosecutor with a complete copy of the pages of the publications, LinkedIn post, and websites in which the notices have appeared.

**********

ANNEXURE A: Long Swamp Improvement Project

ANNEXURE B: Publication Notice

[Centennial logo]

Clarence Colliery Pty Ltd convicted of five environmental offences after overflows of water containing sediment and coal fines near Blue Mountains National Park

Clarence Colliery Pty Ltd ACN 001 680 584 (Clarence Colliery), a subsidiary of Centennial Coal, has been convicted in the Land and Environment Court of NSW for five offences under the Protection of the Environment Operations Act 1997 (NSW). Clarence Colliery was prosecuted by the NSW Environment Protection Authority (EPA) and pleaded guilty to all five offences at an early opportunity.

Clarence Colliery operates a coal mine located near Lithgow. The Wollangambe River runs adjacent to the mine and into the Blue Mountains National Park. Clarence Colliery is required to maintain its surface water management system in a proper and efficient condition. As of 20 December 2023, Clarence Colliery had not properly maintained one of its sedimentation basins, known as the Polishing Lagoon, such that it did not adequately capture and store surface water runoff containing sediment and coal fines.

Between about 20-21 December 2023, water containing sediment and coal fines overflowed from the mine. Clarence Colliery did not test its pollution incident response management plan within one month of this incident. Between about 5-6 April 2024, Clarence Colliery did not cease discharges from the Polishing Lagoon contrary to a prevention notice issued by the EPA, resulting in overflows from the mine that were not authorised by its environment protection licence.

The offences had the potential to cause harm to the environment, including to the Wollangambe River.

On 20 February 2026, the Land and Environment Court convicted Clarence Colliery of five offences, comprising two offences of water pollution, one offence of breaching its environment protection licence, one offence of not testing its pollution incident response management plan, and one offence of breaching a prevention notice.

Clarence Colliery was convicted of the five offences and ordered to:

(i) pay monetary penalties in the total sum of $630,000; (ii) pay the EPA’s costs of the proceedings in the sum of $170,000 and the EPA’s investigation costs in the sum of $15,548; and to publish notices of the convictions and the fines imposed.

[insert URL link to judgment]

This notice was placed by order of the Land and Environment Court of NSW.

Amendments

10 March 2026

10 March 2026 - Orders at paragraphs 137 and 142 and dates in paragraphs 43 and Annexure B amended pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule").