Environment Protection Authority v Clarence Colliery Pty Ltd; Chief Executive, Office of Environment and Heritage v Clarence Colliery Pty Ltd

Catchwords

(2006) 145 LGERA 234 Burwood Council v Erector Group Pty LtdBurwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Director General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137(2009) 168 LGERA 121 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289(2003) 129 LGERA 211 Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419(2006) 148 LGERA 299 Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242(2006) 145 LGERA 189 Kyluk Pty Limited v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114(2013) 298 ALR 532 Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48 Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57 Plath v Rawson [2009] NSWLEC 178(2009) 170 LGERA 253 R v HolderR v Johnston [1983] 3 NSWLR 245 R v Thomson (2000) 49 NSWLR 383[2000] NSWCCA 309 Waldon v Hensler (1987) 163 CLR 561

Judgment (40 paragraphs)

[1]

Background facts

The parties prepared and tendered three detailed statements of agreed facts being: 1. Statement of Agreed Facts filed 9 May 2016, being Exhibit EB-1 to the affidavit of Eric Bateman ('SoAF'); 2. Further Statement of Agreed Facts on Geotechnical Matters and an Additional Particular of Negligence filed 6 April 2017 ('Geotechnical SoAF'); and 3. Further Statement of Agreed Facts on Environmental Harm and Clean-Up Matters filed 2 May 2016 ('Supplementary SoAF').
I adopt these statements of facts and summarise the background facts as follows.
Clarence Colliery is the holder of Environment Protection Licence 726 ('EPL') which permits the scheduled activities of coal works and mining for coal in relation to the premises.
Clarence Colliery is the designated mine operator of the mine, which is owned by several different companies who are parties to an unincorporated joint venture agreement. The companies are Coalex Pty Ltd, Clarence Coal Investments Pty Ltd, Centennial Clarence Pty Ltd and SK Networks Resources Australia Pty Ltd. Centennial Coal Company Limited ('Centennial Coal') is the sole shareholder of Coalex Pty Ltd, who in turn, is the sole shareholder of Clarence Coal, Clarence Colliery and Clarence Coal Investments Pty Ltd.
Clarence Colliery does not have any employees; rather the workers at the mine (with the exception of contractors) are employed by Clarence Coal, and carry out work on behalf of Clarence Colliery. Clarence Coal and its employees, and from time to time Centennial Coal and some of its employees, act as agents of Clarence Colliery. At the time of the offences, the contractors engaged to work at the premises were Frank Dubrovic (trading as and referred to henceforth as RPM Engineering Services), Arnold Millet Pty Limited (trading as and referred to henceforth as Ample-Tech) and Henry Plant and Equipment Hire Pty Limited ('Henry Plant and Equipment').
At the time of the offences, the Mine Manager was Brian Nicholls, who was employed by Centennial Coal. Collectively, Bruce McKenzie, Robert Stephenson and Rod Boland ('CHPP Managers'), who were all employed by Clarence Coal, formed Clarence Colliery's management team in relation to day to day operations at the Coal Handling and Preparation Plant ('CHPP') located at the mine. Mr McKenzie worked daily from 7am to 5pm, Monday to Friday, Mr Boland worked daily from approximately 6:30am to 4 or 4:30pm Monday to Friday, and Mr Stephenson worked daily from 6am to 3:30pm Monday to Friday, and occasionally weekends.

[2]

The CHPP

The CHPP, also known as the 'washery', was located approximately 500m from REA3 and was the place in which raw coal, after it had been mined underground, would be processed into a saleable product. Relevantly, the raw coal went through a process in the CHPP to separate the coal from rock, with the rock portion, known as 'coarse reject', then being placed in reject emplacement area 6 ('REA6').
As part of the washing process, raw coal was combined with mine water and passed through de-sliming screens to wash off the smaller particles (known as 'fines'). The slurry of coal fines and water was sent to fines sumps and pumped into a classifying cyclone that extracted the coarser material, which became the saleable product. The finer material was sent to a thickener tank, and most of the time the coal fines were pumped from the thickener tank to a filter belt press to become a solid filter cake, which was added to the saleable product. Every few months however, coal fines were not pumped to the thickener tank, in which case a valve was changed so that the coal fines were pumped to the REA3 Holding Cell. Here, the water of the coal fines evaporated and drained away, and dried coal fines could be 'reclaimed' and put back into the saleable product.
There were generally no records kept of the volumes of coal fines sent to the REA3 Holding Cell. The decision as to when to pump coal fines to the REA3 Holding Cell was made by the CHPP Managers who gave direction to the contractors, usually verbally. The process of switching the thickener tank valves to pump coal fines to the REA3 Holding Cell was manual, and took approximately five minutes. The valves were controlled by contractors in the CHPP - after the valve was switched, the underflow pump was turned on and off manually to pump the coal fines to the REA3 Holding Cell. The underflow pump had a timer that automatically shut it off after a certain period of time.
There were two flow meters on the underflow pump, however flow volumes were not recorded, and there was no flow meter on the line between the CHPP and the REA3 Holding Cell.

[3]

REA3

REA3 was comprised of four holding cells which were mostly constructed out of coarse reject. Three of the four holding cells were used to store coarse reject and coal fines, while the remaining holding cell, which was on the western side and separate to the other holding cells, stored residual water of higher ionic content produced by the water treatment plant, and material from various sediment traps at the premises. REA3 was approximately 25m in height, and had a crest width of approximately 18m, including safety berms. The REA3 Holding Cell was approximately 100m by 50m.
Since approximately 2006, REA3 was the only reject emplacement area (there being five on the site in total) used to receive and hold coal fine slurry from the CHPP. The slurry was held in a large holding cell in the northeast of REA3, known as REA3 Holding Cell. The top surface of the REA3 Holding Cell was confined by coarse reject ('chitter'), piled to form a saw-toothed inner perimeter wall. The outer wall of REA3, which was also made of coarse reject, comprised sloping batters, with flat bench sections and safety berms.
At the foot of the eastern outer wall of REA3 were contour drains to dissipate surface runoff, collect sediment, and direct flows to the Leachate Drain ('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 dams for containment or transfer to underground storage, with subsequent treatment through an onsite water treatment plant.
The land below the Leachate Drain ran downhill for a straight line distance of 422.4m to the border of the premises with the National Park, and then a further 11.6m to the River. The slope running downhill from the eastern section of the REA3 outer wall to the River included a natural, unnamed watercourse, which drained to the River.
There was no lighting around REA3, and accordingly supervisors and contractors relied on the battery cap lamps on their helmets to monitor the area at night from a safety berm located adjacent to the excavated hole in the REA3 Holding Cell.
REA3 had been effectively full of coarse reject since approximately 2011, and accordingly coarse reject had not been added since that date.
Clarence Colliery was also of the opinion that, other than for holes which were excavated in the REA3 Holding Cell from time to time, the level of coal fines in the REA3 Holding Cell was also at its maximum level, with a buffer left to prevent overtopping and serve as a safety feature in the event of rain.

[4]

Contractors in the CHPP

The CHPP was staffed by Ample-Tech contractors, RPM Engineering Services contractors and the CHPP Managers. There were three shifts in the CHPP - a day, afternoon and night shift - and approximately three Ample-Tech contractors worked on each shift (a supervisor, labourer and electrician/operator) and took instructions from the CHPP Managers. The CHPP Managers were present on the premises only for the day shift and part of the afternoon shift, and therefore relied on the Ample-Tech supervisor to ensure that their instructions were carried out. Contractors on different shifts would have written handovers, while adjacent shift supervisors would also communicate verbally at the shift handover.
At the time of the offences, there was no CHPP Manager on the premises from approximately 5pm on 1 July 2015 to 6am on 2 July 2015 (as was standard practice). At the relevant times, Trent Bunting was the day shift supervisor, Vince Hallam was the afternoon shift supervisor, and Ross Hundy was the night shift supervisor.
The CHPP contractors were given an induction when they commenced work at the premises; however this did not involve a physical tour of the premises or any content regarding REA3 or the surrounding environment of the mine, the National Park or the River. Training was provided on-the-job.

[5]

The offences

On 30 June 2015 the CHPP Managers decided to temporarily pump coal fines from the thickener tank to the REA3 Holding Cell to reduce the amount of coal fines incorporated into a coal supply for a particular customer. The CHPP Managers each understood that the REA3 Holding Cell had no capacity to receive coal fines, except for the hole that had been excavated in January 2015.
Mr Stephenson and Mr McKenzie inspected the REA3 Holding Cell and determined on a visual calculation that there was room in the excavated hole, if pumping was periodical. Mr Stephenson verbally instructed the day shift supervisor, Mr Bunting, to change over the valves in the thickener tank and indicated that he would also send an email to this effect. Mr Stephenson expected that the REA3 Holding Cell would be checked by the CHPP operators regularly to ensure appropriate capacity, however this did not occur.
Mr Stephenson spoke with Mr Bunting by telephone with instructions regarding the pumping, indicating that Mr Bunting should inspect the REA3 Holding Cell before and during pumping operations, and check that there was room before turning on the pumps. Following this telephone conversation Mr Bunting changed the valve to direct coal fines slurry from the thickener tank to the excavated hole in the REA3 Holding Cell. Mr Bunting did not know that the REA3 Holding Cell was considered by the CHPP Managers to be full except for the space within the excavated hole.
The afternoon shift supervisor, Mr Hallam, arrived on the premises at approximately 2pm on 30 June 2015 to replace Mr Bunting.
An email was sent by Mr Stephenson to all supervisors on 30 June 2015 instructing: … please send tailings to the dam and remove the filter cake from the clean product coal until further notice. The dam is OK, but please monitor it regularly and if in doubt please contact myself for further instructions.
At approximately 4:30pm on 30 June 2015, Mr Hallam instructed a worker to check the level of the dam, and the worker reported that there was "plenty of room" in the dam. Mr Hallam turned the pump off at 6pm, and then on again at 8pm. At 8:30pm he asked the same worker to check the pump, with the worker again reporting that it was "okay". Mr Hallam turned the pump off again just before 9pm, and it remained off for the remainder of his shift at 10pm. The night shift supervisor, Mr Hundy, arrived at the premises at 10pm.

[6]

The National Park and River

The National Park is reserved land under the Parks Act. The Greater Blue Mountains was inscribed on the World Heritage List in 2000, creating the Greater Blue Mountains World Heritage Area.
The majority of the River is contained within the National Park. The EPL authorises a discharge point in the River, with this discharge point being approximately two kilometres upstream from the point at which the River flows into the National Park. Approximately 25km downstream of its headwaters, the River is a declared "wild river" pursuant to s 61 of the Parks Act, which provides: 61 Declaration of wild rivers … (4) The purpose of declaring a river or part of a river as a wild river is to identify, protect and conserve any water course or water course network, or any connected network of water bodies, or any part of those, of natural origin, exhibiting substantially natural flow (whether perennial, intermittent or episodic) and containing remaining examples, in a condition substantially undisturbed since European occupation of New South Wales, of: (a) the biological, hydrological and geomorphological processes associated with river flow, and (b) the biological, hydrological and geomorphological processes in those parts of the catchment with which the river is intrinsically linked, so as to enable that river or part to be managed in accordance with subsection (5). …

[7]

The clean-up

Clarence Colliery took several immediate actions to mitigate the extent of environmental harm caused by the offences - including installing sediment control devices and structures, engaging the "Bush Doctor team" (an ecological restoration firm) and additional labour to commence clean-up operations, and liaising with the Office of Environment and Heritage to inspect the River.
On 2 July 2015 an EPA officer, Mr Matthew Corradin, issued a verbal clean-up direction, which was followed up by a written Clean-Up Notice on 3 July 2015 issued under s 91 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act').
A further Clean-Up Notice was issued on 18 August 2015, requiring, amongst other actions, Clarence Colliery to develop a remediation plan for the River. As noted in the Supplementary SoAF, the final remediation plan was provided to the EPA on 9 September 2015 and outlined in detail the remediation options developed by Clarence Colliery in consultation with the EPA. The remediation plan developed and trialled several methods for recovery of coal fines from the River, and identified one-tonne Bulka bags as the preferred container for housing recovered coal fines, with those bags then being air-lifted out of the National Park by helicopter.
On 1 and 24 September 2015, the EPA inspected the unnamed watercourse and was satisfied that the coal rejects and coal fines had been removed.
Between the period from 4 July 2015 to 29 June 2016, the Bush Doctor assisted Clarence Colliery with the clean-up, spending approximately 51 weeks in total with a team of up to five employees working six to seven days a week.
As at 4 July 2016, a total of 739 one-tonne Bulka bags had been removed from the National Park and 214,050kg of coal material had been removed from the River. Approximately 700 helicopter lifts had been undertaken and in excess of $2,000,000 had been expended in the clean-up effort.
On 7 July 2016 the EPA posted a media release on its website titled "EPA completes final inspection of Wollangambe River clean-up as prosecution against Clarence Colliery continues". The media release announced that the clean-up operations could cease, and that Clarence Colliery would be required to carry out a monitoring program of the River for two and a half years to assess the recovery of the River environment.

[8]

Relevant legislation

Clarence Colliery has been charged under the following sections of the POEO Act and the Parks Act respectively: 116 Leaks, spillages and other escapes (1) If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment: (a) the person, and (b) if the person is not the owner of the substance, the owner, are each guilty of an offence. … 156A Offence of damaging reserved land (1) A person must not, on or in land reserved under this Act or acquired under Part 11: … (b) damage or remove any vegetation, rock, soil, sand, stone or similar substance, or …

[9]

The evidence

In addition to the three statements of facts referred to above, the Prosecutor tendered two folders containing extensive documentation and photography referred to in the various statements of agreed facts.
Clarence Colliery's evidence comprised an affidavit of Michael John Cairney sworn 17 February 2017, who was the Executive General Manager of Operations of Centennial Coal at the time the affidavit was sworn, and became the Managing Director and Chief Executive Officer of Centennial Coal from 1 May 2017. Mr Cairney's evidence, dealt with below, addresses Clarence Colliery's good character as a corporate citizen in the local community, its acknowledgment of responsibility and regret for the offences, and the measures taken by Clarence Colliery to prevent re-occurrence.

[10]

Principles relating to sentencing

Both the POEO Act and the Parks Act set out the matters which are to be taken into account when sentencing for offences under these acts.
Section 241 of the POEO Act provides: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.
Section 194 of the Parks Act provides: 194 Sentencing - matters to be considered in imposing penalty (1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused by the commission of the offence, (b) the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence, (c) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence, (e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (f) in relation to an offence concerning an Aboriginal object or place or an Aboriginal area - the views of Aboriginal persons who have an association with the object, place or area concerned, (g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee, (h) whether the offence was committed for commercial gain. (2) The court may take into consideration other matters that it considers relevant.

[11]

Objective circumstances

In determining the objective seriousness or gravity of the offences, the relevant objective circumstances as submitted by the parties are: the nature of the offence; the maximum penalties under the relevant acts; the environmental harm; the foreseeability of the risk of environmental harm; the practical measures to prevent environmental harm; the control over the causes giving rise to the offences; and whether the offences were committed with any state-of-mind or for financial gain. I will consider each in turn.
The Prosecutor submits that the offences are objectively very serious, and fall within the high range of objective seriousness. Clarence Colliery disputes this submission, submitting instead that the offences fall within the medium range of objective seriousness.

[12]

Nature of the offences

The nature and purpose of the statutory provision that has been contravened and its place in the statutory scheme is illustrative of the objective seriousness of an environmental offence, see Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 at [128]-[129], [133]; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at 242-246, 259; Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 at 290-291; Chief Executive Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 ('EPA v Orica') at [59].
Considering the objects of an act can assist in identifying the purpose of creating an offence, see Environment Protection Authority v Le Dome Pty Ltd [2002] NSWLEC 167; (2002) 125 LGERA 121 at 132; Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 at [132]. Accordingly, in determining the appropriate sentence to be imposed on Clarence Colliery, it is instructive to have regard to the objects of the POEO Act and the Parks Act.
The relevant objects of the POEO Act are as follows: 3 Objects of Act ... (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, … (c) to ensure that the community has access to relevant and meaningful information about pollution, (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, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (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, …
The relevant objects of the Parks Act are as follows: 2A Objects of Act ... (a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers, (b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to: (i) places, objects and features of significance to Aboriginal people, and (ii) places of social value to the people of New South Wales, and (iii) places of historic, architectural or scientific significance, (c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation, (d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation …

[13]

Maximum penalty

The maximum penalties for offences are relevant in determining the objective gravity of the offence. As the Prosecutor submits, the maximum penalty in each case is an expression of the seriousness with which Parliament views these offences (see Camilleri's Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698), and Clarence Colliery's offending should be considered in this light.
Section 19 of the POEO Act provides that the maximum penalty for a tier 1 offence such as the POEO Offence is, for a corporation, $5,000,000 if the offence is committed wilfully, or $2,000,000 if the offence is committed negligently. The Prosecutor submits, and Clarence Colliery accepts, that the POEO Offence was committed negligently rather than wilfully, and the parties have reached agreement in respect of the particulars of Clarence Colliery's negligence for this offence, these being: 1. issuing inadequate instructions to contractors in respect to monitoring the pumping of coal fines slurry to the REA3 Holding Cell; 2. failing to install flood lights adjacent to the REA3 Holding Cell; 3. failing to install level sensors or alarms in the excavated hole within the REA3 Holding Cell such that Clarence Colliery and its contractors would have been alerted to the fact that the excavated hole was nearing its full carrying capacity; 4. failing to ensure its contractors properly inspected the REA3 Holding Cell and its surrounds between 6am on 1 July 2015 and approximately 3:30am on 2 July 2015; 5. failing to ensure that the inner perimeter of the REA3 Holding Cell was of uniform height; 6. failing to provide its contractors with appropriate formal training on the process of pumping coal fines slurry to the excavated hole in the REA3 Holding Cell and monitoring the level of coal fines slurry; and 7. directing that coal fines slurry be pumped to the REA3 Holding Cell in circumstances where Clarence Colliery was aware that the inner perimeter wall needed to be constructed to uniform height.
I note that these are particulars of negligence that found the charge and should not be additionally considered to be an aggravating factor, see Environment Protection Authority v Caltex Australia Petroleum Pty Ltd [2017] NSWLEC 8 at [90].
In relation to the Parks Offence, the maximum penalty able to be imposed for an offence under the Parks Act in the case of a corporation is 10,000 penalty units, being $1,100,000.

[14]

Environmental Harm

The Dictionary to the POEO Act defines the term 'harm' as follows: harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
The term 'harm' is defined in the Parks Act as follows: harm an object or place includes any act or omission that: (a) destroys, defaces or damages the object or place, or (b) in relation to an object - moves the object from the land on which it had been situated, or (c) is specified by the regulations, or (d) causes or permits the object or place to be harmed in a manner referred to in paragraph (a), (b) or (c), but does not include any act or omission that: (e) desecrates the object or place, or (f) is trivial or negligible, or (g) is excluded from this definition by the regulations.
The parties were in agreement as to a number of aspects of the environmental harm resulting from the offences, as set out in the various statements of agreed facts. I have summarised briefly the environmental harm caused to the unnamed watercourse, the River and the National Park below.

[15]

Unnamed watercourse

The parties agree that the unnamed watercourse (consisting of an ephemeral and perennial section) suffered actual harm by the inundation of coarse reject and coal fines slurry containing metal contaminated liquid, which degraded the watercourse and smothered plants and animals therein. Further, the small hanging swamp that is close to the confluence with the River would have been affected.
In relation to the ephemeral section of the watercourse, the coarse reject released from REA3 was over one metre high in some areas and would have smothered any temporary pools and killed aquatic invertebrates, plants and any vertebrates present, as well as impacting upon the water quality by reducing pH levels and mobilising metals such as barium, cobalt, nickel and zinc.
In relation to the perennial section of the unnamed watercourse, the discharge from REA3 would have likely smothered any perennial aquatic habitats, killing invertebrates, vertebrates and plants present, as well as causing physical disruption to natural ecological processes.
The parties agree that while the likely harm to both the ephemeral and perennial sections of the unnamed watercourse was high, recovery would be expected following Clarence Colliery's clean-up actions.

[16]

River

Clarence Colliery's actions caused actual harm to the River - with approximately 10.3km of the River being impacted by coal fines, which appeared along the bed, the bank walls and the riparian zone. This was likely to diminish or lessen the suitability of affected areas as habitat for aquatic invertebrates, vertebrates and plants, and resulting in a reduction in richness and abundance of invertebrates due to smothering of stream beds by fine material sediments.
As detailed in the SoAF, further likely environmental harm caused to the River includes impacts on black flies (if any were present at the time of the incident), the smothering of benthic (stream bed) habitats; some impact on stream edge habitats, impacts on freshwater crayfish and limitation of light penetration and the ability of aquatic plants to photosynthesise due to increased turbidity. The addition of sediments to the River would also likely increase stream drift (an avoidance behaviour by which animals actively enter the water column to be transported downstream with the current), which would reduce the abundance and diversity of invertebrates inhabiting the affected area. The recovery of invertebrates following the addition of sediments to the River would, by reproduction, be unlikely to have occurred until two to three months after the incident when temperatures were suitable to egg-laying. Recovery by stream drift is possible, however the parties agreed that the presence of a dam near the licensed discharge point might act as a barrier to instream drift.
Further, the parties agree that it is likely that fine sediments remaining among the gravel sediments in the River would remain there until dislodged - at which time they would be washed downstream and redeposited in the River. The clean-up effort would have also mobilised coal fines, resulting in similar downstream impacts.
In the Supplementary SoAF, the parties note that petrographic testing (microscopic analysis of river sediment samples) of the River has confirmed a reduction in coal fines over time, with coal fines in sediments at the sample locations having decreased to trace amounts (less than 1%) over a period of 12 months following the offences. Further, there is evidence of signs of recovery in the macroinvertebrate community, and that it is likely that the macroinvertebrate community will return to its pre-offence condition. In addition, fish were observed downstream of the impacted tributary, captured fish appeared to be in good condition, and there were no observations of threatened aquatic species of platypuses downstream of the impacted tributary either prior to or following the offence.

[17]

National Park

The parties agree that the addition of fine sediments from REA3 into the River damaged the sand, soil, rock and similar substances on the bed of the River within the National Park, smothering the River bed and increasing the proportion of fine sediment on the River bed, thereby damaging its capacity to provide habitat for microinvertebrates. This also occasioned damage to the visual amenity.

[18]

Prosecutor's submissions

The Prosecutor submits that in considering the extent of environmental harm, the Court is to consider both the actual harm and the likely harm. Further the Court must consider the potential risk of harm, as noted by Preston CJ of LEC in Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147]: Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd at [174]. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously.
The Prosecutor submits that Clarence Colliery's conduct caused both substantial actual harm and likely environmental harm within the meaning of s 21A(2)(g) of the Sentencing Act and that this is a significant aggravating factor that should be reflected in the sentence imposed on Clarence Colliery. Further, the Prosecutor submits that the Court should take into account the fact that the areas adversely affected were areas of high environmental and conservation value, which were preserved and intended to be relatively free of pollution. Under s 194(1)(b) of the Parks Act, the Court is to take into account the "significance" of the reserved land, and the Prosecutor submits that in sentencing, the Court should take into account that from "an environmental and conservation perspective a UNESCO World Heritage Listing is a national treasure".
Further, while the Prosecutor accepts that recovery of the unnamed watercourse is to be expected, it notes however that the clean-up activities took a number of months, and that there would have been (unavoidable) scouring impacts during clean-up and rehabilitation operations.

[19]

Clarence Colliery's submissions

Clarence Colliery accepts that the offences caused actual and likely harm to the environment, and that this harm was "substantial" within the meaning of s 21A(2)(g) of the Sentencing Act. However, Clarence Colliery submits that this does not warrant classification of the offences into the high range of objective seriousness.
First, Clarence Colliery accepts that the National Park is of high environmental and conservation value, however submits that the discharge the subject of the offences affected a "relatively very small area of the Blue Mountains at its edge in a stretch of the River which receives, and has for many years received, the discharge of treated wastewater from Clarence Colliery under the authority of the POEO Act licence."
Second, Clarence Colliery submits that the part of the River impacted by the coal fines discharge is considerably upstream of the section of the River declared a "wild river" for the purposes of the Parks Act, and that it was only the coal fines, not the coarse chitter, that migrated into the National Park and the River. Clarence Colliery also notes that the coal fines as pumped from the CHPP were in a solution containing 60% water.
Clarence Colliery submits that the Court is entitled to take note of the fact that coal fines are more benign that other classes of substances that have been discharged into the environment, noting a number of cases including Environment Protection Authority v Warringah Golf Club Ltd (No 2) [2003] NSWLEC 222; (2003) 129 LGERA 211; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146.
Further, Clarence Colliery submits that the discharge did not compromise or threaten the viability of any local population or threatened or vulnerable species, cause the deaths of any vertebrate animals, or cause any broad scale destruction of aquatic flora in the River.
Clarence Colliery submits that the Court should have regard to the following: 1. the EPA inspected the unnamed watercourse and was satisfied that coal reject and coal fines had been removed; 2. recovery of both the ephemeral and perennial sections of the unnamed watercourse is expected; 3. coal fines sediments at the petrographic testing sample areas had decreased to trace amounts over a period of 12 months; 4. there are signs of recovery in the macroinvertebrate community and any harm experienced by the macroinvertebrate community was temporary in nature; and 5. fish were observed at sampling sites downstream of the impacted tributary and captured fish appeared to be in good condition.

[20]

Finding

I find that Clarence Colliery's conduct caused both substantial actual harm and likely environmental harm and that the areas adversely affected were areas of high environmental and conservation value which were specifically preserved and clearly intended to be relatively free of pollution. The evidence, including the detailed photographic and (mostly agreed) scientific material makes clear that the harm included harm to the unnamed watercourse, both the ephemeral and perennial sections thereof, as well as discernible harm to the River. I find that the harm was likely to diminish the suitability of the affected areas as habitat for aquatic invertebrates, vertebrates and plants and resulted in a reduction in richness and abundance of invertebrates due to, amongst other things, smothering. As noted above, the National Park is "reserved land", which is a matter to be considered under s 194(1)(b) of the Parks Act, as well as s 241(2) of the POEO Act.
Despite the harm being substantial, I accept that the part of the River impacted upon by the coal fines discharge is considerably upstream of the section of the River declared a "wild river" for the purposes of the Parks Act. I also accept, as submitted by Clarence Colliery, that coal fines is more benign than other classes of substances that have been discharged into the environment, and that recovery of both the ephemeral and perennial sections of the unnamed watercourse is expected and that there are signs of recovery in the microinvertebrate community.

[21]

Foreseeability of risk of harm to the environment

Pursuant to s 241(1)(c) of the POEO Act and s 194(1)(d) of the Parks Act, the Court is to consider the extent to which an offender could reasonably have foreseen the harm caused or likely to be caused to the environment. This assessment involves having regard to what the offender knew or ought reasonably to have known; see Kyluk Pty Limited v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532.
The Prosecutor submits that Clarence Colliery knew of the potential for substantial environmental harm should the material from the excavated hole be discharged from the REA3 Holding Cell to the surrounding environment, and noted that Clarence Colliery accepts that the harm was not only foreseeable but was foreseen by it.
Further, the Prosecutor submits that the inadequate capacity of the excavated hole in the REA3 Holding Cell made it reasonably foreseeable that the coal fines slurry would eventually overtop and migrate through the unnamed water course and beyond.

[22]

Finding

It is clear and I find that the environmental harm resulting from a discharge of coal fines from the premises was reasonably foreseeable. Clarence Colliery accepts this, and further acknowledges that it did actually foresee the type of harm caused and likely to be caused.

[23]

Practical measures to prevent harm

The Prosecutor submits that the following practical measures could and should have been taken, and would have likely avoided the incident: 1. installing level sensors or alarms on the excavated hole within the REA3 Holding Cell; 2. issuing adequate instructions to its contractors on 30 June 2015 and 1 July 2015 regarding the pumping of coal fines slurry to the REA3 Holding Cell; 3. installing floodlights adjacent to the REA3 Holding Cell; 4. inspecting the REA3 Holding Cell during shifts on 1 July 2015 until 3:30am on 2 July 2015; 5. ensuring the inner perimeter wall constructed around the REA3 Holding Cell was of uniform height; 6. providing appropriate formal training to its contractors regarding the pumping of coal fines slurry to the REA3 Holding Cell; and 7. desisting from pumping coal fines slurry into the excavated hole of the REA3 Holding Cell in circumstances were Clarence Colliery was aware that the inner perimeter wall was not of uniform height, and needed to be so as to contain an overflow of coal fines slurry.
Clarence Colliery submits that the Prosecutor has directed its consideration of s 241(1)(b) of the POEO Act at practical measures that may have been taken to prevent or mitigate the offences from having occurred. Clarence Colliery submits that the focus of s 241(1)(b) is rather on the harm, caused by the offence, and therefore, properly read, calls for consideration of what might have been done after the commission of the offence to prevent, control, abate, or mitigate consequential environmental harm.
Accordingly, Clarence Colliery submits that the Court should have regard to the steps taken to clean-up the pollution, and the efficacy of the clean-up. Clarence Colliery submits that it has undertaken a thorough and diligent clean-up, expended more than $2,000,000 in the effort, cooperated and taken guidance and advice from the EPA, and coordinated a labour-intensive hand-cleaning of parts of the River. Clarence Colliery submits that the Court should properly take into account these efforts in preventing, controlling, abating and mitigating the harm likely to be caused to the environment as a result of its offences.

[24]

Finding

Contrary to Clarence Colliery's position, I am of the view that s 241(1)(b) of the POEO Act, on its plain reading, relates to the circumstances before the commission of the offence. As such, I am satisfied that there were clearly practical measures available to Clarence Colliery prior to the commission of the offences that would have prevented the offences from occurring. Despite my view as to the application of s 241(1)(b), I accept that Clarence Colliery has, since the commission of the offences, taken certain practical measures to prevent the offences from being repeated, some of which are considered below.

[25]

Control over causes

The Prosecutor submits and Clarence Colliery accepts that it had full control of the causes giving rise to the offences.

[26]

State of mind and reasons for committing the offences

The parties agree that the offences were committed negligently. The parties further agree that the offences were not committed for financial or commercial gain.

[27]

Conclusions on objective seriousness

Whilst there was agreement between the Prosecutor and Clarence Colliery in relation to a number of the objective circumstances, there was, as noted at [60] above, disagreement as to where the offences fall in the range of objective seriousness. In light of my specific findings above at [67], [93], [98] and [102], and considering all the objective circumstances referred to at [61]-[104], I find that the offences are in the upper range of medium objective seriousness.

[28]

Subjective circumstances

Consideration of the subjective circumstances requires consideration of those matters that relate to Clarence Colliery itself, rather than to the offences that give rise to the charges to which it has pleaded guilty. The matters I take into account include lack of prior convictions; the assistance given by Clarence Colliery to the authorities; the early pleas of guilty; Clarence Colliery's remorse; the measures taken to prevent recurrence; and the need for specific and general deterrence.
These matters are reflected in s 21(A)(3) of the Sentencing Act, which sets out the mitigating factors that a Court may take into account in determining an appropriate sentence, which include: … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, ... (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23).

[29]

Prior convictions

Clarence Colliery does not have any prior convictions for environmental offences in NSW, and this accordingly can be considered a mitigating factor pursuant to s 21A(3)(e) of the Sentencing Act.

[30]

Assistance to authorities

Clarence Colliery submits that it provided a high degree of assistance in the investigation and prosecution of the offences. Specifically, Clarence Colliery submits that the assistance provided included: 1. making all requested agents, officers, employees and representatives of entities associated with Clarence Colliery available for interviews; 2. providing responses to all statutory notices for information and records served on it by the EPA and OEH by the return dates specified in those notices, with which it was required to comply; 3. offering to plead guilty to an offence under s 116(1)(a) of the POEO Act and an offence under s 156A of the Parks Act, prior to the laying of any charges; 4. making its geotechnical experts available to the EPA at a meeting for the purpose of explaining their technical reasoning for concluding that the stability and steepness of the outer wall had no causal nexus to the incident; 5. through its solicitors, entering into negotiations with the EPA and OEH prior to the laying of any charges for the purpose of agreeing to a statement of agreed facts under which Clarence Colliery would plead guilty to offences under s 116(1)(a) of the POEO Act and s 156A of the Parks Act; 6. pleading guilty to the offences with which it had been charged on 24 June 2016 at the first directions hearing in the proceedings; 7. providing weekly reports and other information to the EPA and OEH, as required by the Clean-Up Notice of 18 August 2015, until it was advised on 5 July 2016 by the EPA that it was satisfied that the clean-up could cease; and 8. agreeing upon supplementary statements of agreed facts on geotechnical matters and in relation to environmental harm and the clean-up.
Clarence Colliery also agreed to the primary facts before the commencement of proceedings, which the Prosecutor acknowledges is unusual assistance. Further, Clarence Colliery's cooperation enabled the Prosecutor to suspend its investigations into the incident, therefore saving considerable time, effort and resources.
Importantly, the Prosecutor submits that Clarence Colliery's cooperation should be considered in light of the fact that the facts of the case were simple and compelling, and that a conviction was almost inevitable regardless of Clarence Colliery's cooperation. In response, Clarence Colliery submits that while this undoubtedly would have been true in relation to a strict liability tier 2 offence, the same cannot be said in relation to a tier 1 offence requiring proof of mens rea. Clarence Colliery submits that its cooperation demonstrates that it accepts responsibility for the negligence of its contractors, and that it is therefore appropriate for the Court to grant a material discount in the circumstance of this case.

[31]

Early pleas of guilty

Clarence Colliery submits, and the Prosecutor accepts, that it should be afforded a discount for its early plea of guilty in respect of both offences. I take into account the utilitarian value of this plea to the criminal justice system pursuant to ss 21A(3)(k) and 22(1)(a) of the Sentencing Act and R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309, and accordingly apply a discount of 25% for each of the offences on the sentence that would otherwise have been imposed.

[32]

Remorse for the offences/ good character

Clarence Colliery submits, and the Prosecutor accepts, that it has demonstrated contrition and remorse. Specifically, Clarence Colliery submits that: 1. Mr Cairney, Managing Director and Chief Executive Officer of Centennial Coal, has acknowledged Clarence Colliery's responsibility for the offences, and extended an apology on behalf of Clarence Colliery as well as a personal apology to members of the community and the Court; 2. Mr Cairney has deposed that Clarence Colliery is a long-term participant in the greater Lithgow community, takes its obligations seriously, and regrets the harm caused by the offences; 3. on 10 May 2016, Centennial Coal released a media statement expressing both Clarence Colliery and Centennial Coal's apology for the discharge incident. This media statement still appears on the homepage of Centennial Coal's website; and 4. on 18 May 2016, David Moult, Managing Director and Chief Executive Officer of Centennial Coal at the time wrote to then NSW Minister for the Environment, the Honourable Mark Speakman SC MP to express Clarence Colliery and Centennial Coal's apologies and regret for the occurrence of the incident.
Clarence Colliery relied on Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [203], noting Preston CJ of LEC's comments that contrition and remorse is more readily demonstrated by the offender "taking actions" rather than offering "smooth apologies". Clarence Colliery notes that his Honour identifies four forms of action, each of Clarence Colliery submits it has undertaken: 1. speed and efficiency of action in rectifying harm caused or likely caused (at [204]); 2. voluntary reporting of the commission of the offence and any concomitant environmental harm (at [210]); 3. taking action to address the cause of the offence (at [212]); and 4. appearance of corporate executives in Court and evidence outlining the company's regret with a statement of plans to avoid repetition of such offences (at [214]).
The Prosecutor accepts that Clarence Colliery has undertaken a large clean-up operation, however submits that this should not necessarily be relied upon as evincing contrition or remorse, as Clarence Colliery was required to undertake the clean-up pursuant to the two Clean-Up Notices issued by the Prosecutor. The Prosecutor submits that compliance with legal obligations is not a matter in mitigation; however it does note that Clarence Colliery did not take a "minimalist" approach to the clean-up, but rather undertook the task with "gusto".

[33]

Measures taken to prevent a recurrence of an incident of this type

The SoAF sets out the measures taken by Clarence Colliery to prevent recurrence of a similar incident, those being: 1. ceasing the pumping of coal fines slurry to the REA3 Holding Cell, which has not occurred since 2 July 2015; 2. disconnecting the pipe that feeds coal fines slurry from the thickener tank; 3. carrying out rectification works to the outer wall of REA3, the safety berm of REA3, the bench on the outer wall which was used as an access road, and the Leachate Drain, all of which was completed by approximately 10 July 2015; and 4. adopting the following operational measures: 1. issuing directions to Ample-Tech that no pumping of coal fines slurry to REA3 is to occur; 2. ensuring the CHPP Manager carries out weekly inspections of the REA3 Holding Cell; and 3. ensuring the company's Environment Officer carries out monthly inspections of the REA3 Holding Cell.
Mr Cairney's affidavit sets out the following further measures: 1. installing groundwater monitoring piezometers in REA3 to verify whether or not water is draining freely from REA3; 2. introducing new procedures for emptying the thickener tank and processing the recovered thickener; 3. recommissioning one of the thickener tanks to provide additional tank or contingency storage; and 4. preparing REA3 for rehabilitation in consultation with the EPA and the Department of Resources and Energy, though Clarence Colliery clarified in oral submissions that REA3 will not be used for operational purposes.
I find that Clarence Colliery has made genuine attempts and applied methods and procedures to prevent the recurrence of the offences.

[34]

Specific deterrence

The Prosecutor submits that there is a need for specific deterrence in these proceedings as Clarence Colliery continues to engage in scheduled activities of coal works and mining for coal at the premises, and the premises are adjacent to areas of considerable conservation and environmental value. Relying on Environment Protection Authority v Kitco Transport Australia Pty Limited [2013] NSWLEC 39 at [121], the Prosecutor submits that there is particular need in these proceedings to ensure that the sentence is a powerful reminder to Clarence Colliery that it should not engage in conduct which leads to pollution of the environment in its future business activities.
Clarence Colliery submits that the need for specific deterrence is very limited, as Mr Cairney has deposed that REA3 will no longer be used, Clarence Colliery has accepted responsibility from the outset and demonstrated contrition and remorse, and it has taken steps to address the causes of the commission of the offence.
Whilst I accept that Clarence Colliery has accepted responsibility and has adopted measures to prevent reoccurrence of the conduct that led to the offences, I find that there is a need for specific deterrence so as to serve as a reminder to Clarence Colliery that it should not engage in conduct that leads to pollution of the environment, noting that this is particularly pertinent given the proximity of Clarence Colliery's operations to sensitive and recognised receiving environments.

[35]

General deterrence

The Prosecutor submits that there is also a need for general deterrence so that there will be a real incentive for others with like operations to ensure that scheduled activities are carried out in a manner where pollution does not occur. The Prosecutor submits that the penalty should not be treated as a mere cost of business by the offender, but instead should demonstrate that the costs involved in the prevention of pollution will be less than the penalties imposed by this Court if an objectively serious environmental crime is committed.
Clarence Colliery accepts, relying on Axer Pty Ltd v Enviornment Protection Authority (1993) 113 LGERA 357 at 359, that sentencing for offences such as those in these proceedings must serve the objective of general deterrence. Clarence Colliery submits however, relying on Waldon v Hensler (1987) 163 CLR 561; [1987] HCA 54 at 570 and Environment Protection Authority v Robinson [2004] NSWLEC 629 at [30] that care must be taken to ensure the penalty imposed does not cause a particular defendant to shoulder an unfair burden of community education.
Taking these matters into account, I find that there is a need for general deterrence. In relation to environmental offences, general deterrence is of some primacy. This has been stated in many cases, including Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [71]-[81]; Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [103]-[104]; Burwood Council v Erector Group Pty Ltd; Burwood Council v Liverpool Developing Pty Ltd [2017] NSWLEC 20 at [67]-[69]. It is also accepted that persons will not be deterred from committing environmental offences by only nominal fines, see Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [139]-[141], [150]-[151]. The purpose of general deterrence is particularly relevant in the industry in which Clarence Colliery operates.

[36]

Totality

Clarence Colliery submits that the totality principle should apply in relation to the two offences given they arise from the same incident and the same conduct. Clarence Colliery relies on EPA v Orica at [142]-[148] to submit that it would be wrong for it to be punished twice given the substantial areas of overlap between the offences, and accordingly the totality principle has an important role to play in reducing the overall penalty to be imposed for the two offences.
The Prosecutor accepts that the Court should apply the totality principle in sentencing as the two offences arise from the same incident. The Prosecutor notes however that the two offences are not entirely coterminous, as s194(1)(b) of the Parks Act requires the Court to take into account "the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence", whereas this is not a mandatory consideration under s 241(1) of the POEO Act, although it may be taken into account pursuant to s 241(2).
Because there are two offences rising out of the same incident, the totality principle requires consideration. As stated by Preston CJ of LEC in EPA v Orica stated at [142]: … The effect of the totality principle is to require the Court, which has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is just and appropriate and reflects the total criminality before the Court. In the case of fines, adjustment may be made by reducing the amount of the fine for each offence. Care needs to be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence.
The relevant principles relating to totality are described by Street CJ in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences.

[37]

Appropriate sentence for the offences

In determining the appropriate penalty for the offences, I take into account the objective circumstances of the offences and the subjective circumstances of Clarence Colliery, as I have discussed above. Further, I take into account the purposes of sentencing in s 3A of the Sentencing Act. The purposes of punishment; retribution and denunciation are relevant in the present circumstances. There is a need for the Court, through the sentences it imposes, to ensure that Clarence Colliery is adequately punished for offences committed, held accountable for its actions, and denounced for its conduct in a manner which is proportionate to the seriousness of the offences, see Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146 at [110].
In determining the appropriate penalty, the Court should be consistent with any pattern of sentencing for like offences. The parties were unable to find sentences imposed by this Court for breaches of the relevant Acts in similar circumstances. Despite this, the parties referred to various sentencing decisions of this Court including Environment Protection Authority v Caltex Australia Petroleum Pty Ltd [2017] NSWLEC 8; Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146; Environment Protection Authority v CSR Building Products Limited [2008] NSWLEC 224; EPA v Orica; Environment Protection Authority v Warringah Golf Club Limited (No 2) [2003] NSWLEC 222; (2003) 129 LGERA 211; Environment Protection Authority v Gardner [1997] NSWLEC 169; Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156; Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48; Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234.
I have had regard to the matters considered by this Court in those decisions. Nevertheless, each case turns upon its particular facts and caution must be exercised in considering other cases because of the "… inevitable disparity between subjective and objective circumstances applicable to those cases, compared to the same circumstances found to exist in this case": Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 at [45].
While the two offences charged against Clarence Colliery have, for the most part, been dealt with together, I am conscious that the charges are distinct and that separate sentences must be imposed for each.

[38]

Orders

The Court makes the following orders: In proceedings 2016/00154310: 1. Clarence Colliery is convicted of the offence as charged. 2. Clarence Colliery, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act'), is to place a notice in the form of 'Annexure A' in the following publications: 1. Australian Financial Review within the first 21 pages at a minimum size of 20cm x 11cm, within 30 days of this order; 2. Sydney Morning Herald within the first 21 pages of the General News Section at a minimum size of 18.6cm x 12.9cm, within 30 days of this order; and 3. Lithgow Mercury within the first five pages at a minimum size of 18.6cm x 12.9cm, within 30 days of this order. 1. Clarence Colliery, pursuant to s 250(1)(a) of the POEO Act, is to provide to the Environment Protection Authority a complete copy of the page of the publications in which the notice appears within 14 days of the date of publication of the notices set out in Order (2). 2. Clarence Colliery, pursuant to s 250(1)(e) of the POEO Act, is to pay the following specified amounts to the Environmental Trust established under the Environmental Trust Act 1998 (NSW) for the following specified projects for the restoration or enhancement of the environment as follows, within 28 days of the date of this order: 1. The amount of $144,000 for the "Stabilisation of walking tracks in the Newnes Plateau and Wollangambe/Mt Wilson area". 2. The amount of $144,000 for "Enhancing the survival of the endangered Blue Mountains Water Skink". 3. The amount of $144,000 for "Farmer's Creek Precinct Master Plan". 4. The amount of $144,000 for "Water Quality Improvement - New Toilet at Deep Pass". 5. The amount of $144,000 for "Weed control in Wollangambe Catchment". 1. The parties have liberty to apply in respect of the allocation of the funds in Order (4). 2. Pursuant to s 250(1)(a) of the POEO Act, all future public references by Clarence Colliery to the payments specified in Order (5) above shall be accompanied by the following passage: "Clarence Colliery Pty Ltd's contribution to the funding of the"[insert name of project]" is part of a penalty imposed on it by the Land and Environment Court of NSW after it was convicted of an offence against the Protection of the Environment Operations Act 1997 (NSW)." 1. Pursuant to s 248(1) of the POEO Act, Clarence Colliery is to pay the Environment Protection Authority's investigation costs in the amount of $103,000. 2. Clarence Colliery is to pay the Environment Protection Authority's legal costs as agreed or assessed. In proceedings 2016/00154311: 1. Clarence Colliery is convicted of the offence as charged. 2. Clarence Colliery, pursuant to s 205(1)(a) of the National Parks and Wildlife Act 1974 (NSW) ('Parks Act'), is to place a notice in the form of 'Annexure A' in the following publications: 1. Australian Financial Review within the first 21 pages at a minimum size of 20cm x 11cm, within 30 days of this order; 2. Sydney Morning Herald within the first 21 pages of the General News Section at a minimum size of 18.6cm x 12.9cm, within 30 days of this order; and 3. Lithgow Mercury within the first five pages at a minimum size of 18.6cm x 12.9cm, within 30 days of this order. 1. Clarence Colliery, pursuant to s 205(1)(a) of the Parks Act, is to provide to the Chief Executive, Office of Environment and Heritage a complete copy of the page of the publications in which the notice appears within 14 days of the date of publication of the notices set out in Order (2). 2. Clarence Colliery, pursuant to s 205(1)(d) of the Parks Act, is to pay the following specified amounts to the Environmental Trust established under the Environmental Trust Act 1998 (NSW) for the following specified projects for the restoration or enhancement of the environment as follows, within 28 days of the date of this order: 1. The amount of $66,000 for the "Stabilisation of walking tracks in the Newnes Plateau and Wollangambe/Mt Wilson area". 2. The amount of $66,000 for "Enhancing the survival of the endangered Blue Mountains Water Skink". 3. The amount of $66,000 for "Farmer's Creek Precinct Master Plan". 4. The amount of $66,000 for "Water Quality Improvement - New Toilet at Deep Pass". 5. The amount of $66,000 for "Weed control in Wollangambe Catchment". 1. The parties have liberty to apply in respect of the allocation of the funds in Order (4). 2. Pursuant to s 205(1)(a) of the Parks Act, all future public references by Clarence Colliery to the payments specified in Order (5) above shall be accompanied by the following passage: "Clarence Colliery Pty Ltd's contribution to the funding of the "[insert name of project]" is part of a penalty imposed on it by the Land and Environment Court of NSW after it was convicted of an offence against the National Parks and Wildlife Act 1974 (NSW)." 1. Pursuant to s 203(1) of the Parks Act, Clarence Colliery is to pay the Chief Executive, Office of Environment and Heritage's investigation costs in the amount of $3,010. 2. Clarence Colliery is to pay the Chief Executive, Office of Environment and Heritage's legal costs as agreed or assessed.

[39]

Annexure A Clarence Colliery convicted of offences in relation to escape of coal fines at Newnes Junction in 2015 into the Blue Mountains National Park On 14 July 2017 Clarence Colliery Pty Ltd was convicted in the Land and Environment Court of NSW of an offence under the Protection of the Environment Operations Act 1997 (NSW) for negligently causing the escape of coal fines slurry and coarse coal reject from the location at which those substances had been contained. Clarence Colliery Pty Ltd was also convicted in the Land and Environment Court of NSW of an offence under the National Parks and Wildlife Act 1974 (NSW) for damaging the reserved land of the Blue Mountains National Park, including the Wollangambe River and a perennial section of a watercourse connected to the River. In the period 1 to 2 July 2015, while carrying out the licensed activity of coal mining, a contractor pumped coal fines slurry to a storage location on the Clarence Colliery. The coal fines slurry overtopped the storage location, causing many tonnes of coal slurry and coarse coal reject to escape from the storage location. Coal fines slurry and coarse reject covered an unnamed watercourse leading to the Blue Mountains National Park. Coal fines slurry entered the Blue Mountains National Park and the Wollangambe River and coal fines affected a 10.3 kilometre stretch of the River. The affected area within the Blue Mountains National Park is also part of the Greater Blue Mountains World Heritage Area. The Environment Protection Authority ordered Clarence Colliery to clean up the affected environment. The clean-up operation was completed by 5 July 2016. Approximately 214 tonnes of coal fines was recovered from the Blue Mountains National Park. Clarence Colliery was also found to have damaged vegetation, sand, soil, stone and similar substances located within the Blue Mountains National Park including the bed of the Wollangambe River. Clarence Colliery had no convictions for breaches of environmental legislation prior to the incident. Clarence Colliery has cleaned up the impacts of the incident to the satisfaction of the EPA. The prosecutions were brought by the NSW Environment Protection Authority ('EPA') and by the Chief Executive of the Office of Environment and Heritage ('OEH'). Clarence Colliery cooperated with the EPA and OEH in relation to all aspects of the investigation and entered a plea of guilty to each of the offences. As a responsible local employer and business, Clarence Colliery deeply regrets the disturbance caused to the Blue Mountains National Park and the community as a result of the incident. Clarence Colliery has been fined a total of $1,050,000 to be paid to the Environmental Trust established under the Environmental Trust Act 1998 (NSW) to fund projects aimed at restoring and enhancing the environment. Clarence Colliery also agreed to pay the EPA's and OEH's investigation costs of $106,010 and legal costs, to be assessed. This notice was placed by order of the Land and Environment Court of NSW and was paid for by Clarence Colliery.

[40]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2017

(2009) 168 LGERA 121

At a glance

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Judgment (40 paragraphs)

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