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[2022] NSWLEC 40
Land and Environment Court (NSW)
2022-03-08
Pain J
Original judgment source is linked above.
Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 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 Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Peel [1971] 1 NSWLR 247 R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd (2020) 245 LGERA 241; [2020] NSWLEC 125 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Cleanaway Equipment Services Pty Ltd (Defendant) Representation: Counsel: E Muston SC with G Westgarth (Prosecutor) S Callan SC with S Love (Defendant)
Solicitors: Environment Protection Authority (Prosecutor) Norton Rose Fulbright (Defendant) File Number(s): 2021/47924 2021/47925 2021/47926
Judgment
Protection of the Environment Operations Act 1997
Protection of the Environment (Operations) General Regulation 2009 (NSW)
Charges 1 and 3
Charge 2
Evidence
Statement of Agreed Facts
32 Ian Phillips, Laurence Rooney and Nathan Hage were not employed in these roles on 14 May 2020. 33 Any of the Defendant's employees, including any person on the PIRMP list, had the responsibility and authority to report an incident to relevant authorities when they became aware of the pollution incident threatening or causing material harm to the environment had occurred. 34 At all material times, Mr Rossback understood the PIRMP places responsibility for notification of relevant authorities on the business unit manager or the site supervisor as the most senior person on the Premises, unless there is a discussion with the Environment Team who take on responsibility for notification. 35 At all material times, Mr Cambaz and Mr Pittard understood if any significant quantity of a substance such as a solvent left the Premises, there would be the potential for harm and it would be reportable under the PIRMP. Site Emergency Plan 36 A Site Emergency Plan was drafted on 25 January 2019, which provided guidance to the Defendant's employees about what to do in an emergency. A copy of the Site Emergency Plan is at Tab 11. It stated that, in the event of a product spill, an employee must determine whether the incident can be contained locally but if there is any doubt as to local containment then the appropriate Emergency Services ought to be called. Further, it stated in the event of an incident that is beyond the local containment capability, then emergency services must be notified. It also noted that the National HSE Manager and Environmental Manager was to notify the relevant government authorities. 11 May 2020 37 On or about 11 May 2020, Darryl Hancock, an employed driver of the Defendant at the Premises, observed that the ball valve was leaking. He ran his finger along the ball valve and thought that it was leaking solvent. He observed that the solvent was leaking onto the concrete below the ball valve and that the ball valve looked like it needed tightening. He reported this to Mr Beck. On the same day, Mr Beck rang Greaney & Sweeney to attend to the ball valve. 12 May 2020 38 On or about 12 May 2020, Dean Tatum, a plumber from Greaney & Sweeney attended the Premises. He observed a small patch of liquid underneath the ball valve and a slow drop from under the ball valve handle. He cleaned the area with a rag and found a leak underneath the ball valve handle. He observed that the handle was secured by a "pac nut". He removed the handle and tightened the pac nut using multigrips. He then replaced the handle and tightened the pac nut again. The pump, which is connected to the solvent line, was turned on and Mr Tatum observed the ball valve for about 2 minutes. During this time, he did not observe any leak from the ball valve. He left the ball valve in the open position. 14 May 2020 39 At approximately 06.00on 14 May 2020, Mr Beck arrived at the Premises, conducted a walkaround of the Premises and did not notice anything unusual. Between or about 06:00 and 12:00, Mr Beck was in the office working and was the only person on the Premises. 40 The first employee of the Defendant to become aware of the incident giving rise to Charge 1 was Damien Beck at or about 12:00 on 14 May 2020. 41 At approximately 12.00, Mr Beck left the office to attend the shed. While walking outside from the back of the shed, Mr Beck heard a sound that he recognised to be the sound of running water. 42 On hearing this sound, Mr Beck observed that the ball valve in the clean solvent pipe had ruptured and there was a steady flow of Vivasol 2046 coming out of the ball valve and entering the grated drain. The grated drain connected to the containment pit which connected to the stormwater drain that runs along Aurora Avenue. From Mr Beck's experience as site supervisor and his knowledge of the Premises, Mr Beck knew that the solvent had flowed from the containment pit into the stormwater pit and then into the council's stormwater system. Mr Beck states that he was not aware at this time that the stormwater system led to the Molonglo River. 43 Mr Beck immediately went to the emergency shut off valve near the base of the clean solvent tank and turned it to the closed position so that there was no further clean solvent flowing from the clean solvent tank into the line. Mr Beck then closed the three-way valve and the sluice valve which were in the open position at the time. When closing the sluice valve, Mr Beck saw solvent going into and down the stormwater pipe. 44 Mr Beck ran back to where the spill was occurring and took out some grates and placed some oil socks from a spill kit into the drain. Mr Beck then started collecting solvent out of the drain by using a bucket poured into an intermediate bulk container (IBC), collecting about 500L of solvent in 20 minutes. 45 Mr Beck then measured the contents of the Clean Solvent Tank, calculated that there was 23,000L remaining including the 500L collected in the IBC, and concluded that 2,200L of solvent had leaked into the Council's stormwater system. Mr Beck made notes of his calculations, which after 14 May 2020, he later reviewed and revised to conclude that in fact 2,800L of solvent had escaped into the Council's stormwater system. 46 After entering the stormwater pipe, the solvent travelled through the council stormwater system and discharged into the Molonglo River at the stormwater outlet marked as SW-DP-1 in the map at Tab 12. 47 At approximately 12.03, Mr Beck telephoned his supervisor, Jason Young. Mr Young did not answer the phone and Mr Beck did not leave a message. At about 12:04, Mr Young sent a text to Mr Beck saying "I'll call you back." 48 At 12:44, Mr Beck sent a text message to Mr Young, which read "I am going ahead with changing the pump I have just lost between 2 and 3000 ltr of solvent another bust line." Mr Young replied to this text with "please send quote mate and I'll sort it." 49 At 13:13, Mr Beck spoke to Mr Young over the phone for approximately two minutes. Mr Beck states that during this call, he said words to the following effect: Mr Beck said: Jason I have had a rupture on the ball joint valve at the back of the shed. I have closed the T-Valve and the sluice valve so that no more product could get into the stormwater drain. I saw it going into the pipe from the stormwater pit. I have lost between 2,000 and 3,000 litres of clean product. Can you let the relevant people know? Mr Young said: Okay, I will look after it, I will call Blake. 50 At 14:14, Mr Young called Mr Beck. Mr Young states that during this conversation, Mr Beck said words to the following effect: Mr Beck said: "Mate, we've lost about 3,000 litres down the stormwater line." Mr Young said: "How did it happen?" Mr Beck said: "It was a burst line." Mr Young said: "Have we contained it?" Mr Beck said: "No, it is further down the line." Mr Young said: "Well, how can that happen?" Mr Beck said: "I don't know, it's just either come apart or its broken. The pipes are actually close to the grate and it's gone down there." 51 At approximately 14.24, Mr Beck sent Mr Young an email stating "Hi Jason This is the second break in solvent line" and attaching four photographs of the ball valve, solvent pipe and grated drain. A copy of the email is under Tab 13. 52 At 14:23, Mr Young called his manager, Blake Senior. Mr Young stated that during this call, he relayed the information that he had received from Mr Beck to Mr Senior to the effect that "we've had been a break in a line somewhere and that we've lost about 2,500 litres down the stormwater." Mr Young reports that Mr Senior stated that he would notify Richard Pittard. 53 At 14:40, Mr Young called Mr Beck. Mr Young and Mr Beck had a conversation to the following effect: Mr Young said: "How much did you lose?" Mr Beck said: "2000 to 3000 litres." Mr Young said: "How did you arrive at that figure?" Mr Beck said: "I took Friday's dip, subtracted what we'd used and added how much we'd saved. Then less the amount that was in the tank. That's how I arrived at the figure." Mr Young said: "I'll contact Haydn and tell him what's happened." 54 At 14:50, Mr Senior called Mr Young. During this call, Mr Senior notified Mr Young that an incident had occurred on the Premises. 55 At 15:04, Mr Young called Mr Cambaz. During the phone call Mr Young stated "We have had a spill onsite, of about 3,000 litres of solvent." 56 At around 15:10, Mr Cambaz called Mr Rossback and directed him to discuss the issue with Mr Beck, obtain further information, and if Mr Beck had not already reported the incident to the EPA, to then make a report to the EPA. 57 At approximately 15:42, Mr Cambaz forwarded the email from Mr Beck sent at 14:24, to Mr Rossback. 58 At or about 15:50 and 16:01, Mr Cambaz made enquiries with the Council to obtain stormwater plans. 59 At about 16:00, Mr Rossback called Mr Beck and stated words to the effect: Can you go to the creek and take some samples, take some booms and socks with you? I will send you the information from the Council and talk to my boss about whether this is reportable to the EPA. 60 Mr Rossback then sent an email to Mr Beck at 16:01, asking him to inspect a section of the Molonglo River depicted in a screenshot to determine whether there was any solvent odours or visible sheen on the waters. A copy of this email is at Tab 14. 61 At approximately 16:08, Mr Cambaz sent an email to Ms Brooke Green at Council requesting a copy of the stormwater network in relation to 42 Aurora Avenue, Queanbeyan. A copy of the email chain between Mr Cambaz and Ms Brooke is at Tab 14a. 62 At approximately 16:30, Mr Beck, accompanied by Mr Gary Dow, an employed driver for the Defendant, went down to the point where the stormwater drain discharges into the Molonglo River. Mr Beck did not smell, taste or see any solvent in the water in the culvert area. 63 At or about 16:58, Mr Rossback contacted the EPA's Environment Line and notified the EPA of the First Incident. The Environment Line report records the description of the First Incident provided by Mr Rossback as follows: "SELF REPORT FROM CLEANAWAY 42b Aurora Ave Queanbeyan re we had a solvent spill of 2500 litres which we have captured 500 litres. We believe 2000 litres discharged into stormwater drain. Cause of the spill was a broken gate valve on a pipe. No rainfall occurred on site today. We will be inspecting the stormwater outlet nearby the site. NSW Fire and Rescue were not notified." 64 At or about 17:00, the EPA Environment Line sent an email to EPA Officers Ms Carlie Armstrong and Ms Janine Goodwin conveying the report from Mr Rossback regarding the First Incident. 65 Between about 17:00 and 18:15, Janine Goodwin, an EPA authorised officer, was on the Molonglo River bridge on Yass Road and smelt a chemical type odour. 66 At or about 17:05, Mr Rossback had a telephone conversation with Carlie Armstrong, an authorised officer of the EPA and informed her that: a. a spill occurred at 12noon; b. Mr Rossback had sent a staff member to the Molonglo River to see if he could smell hydrocarbon odour; c. Mr Rossback had not spoken to the staff member, and did not know whether he could smell anything; and d. Ms Armstrong informed Mr Rossback that the Defendant needed to notify NSW Fire and Rescue (FRNSW) about the pollution incident immediately. 67 At or about 17:28, Mr Rizzuto telephoned Ms Natasha Abbot of the Queanbeyan-Palerang Regional Council and notified her that a pollution incident had occurred at 42A Aurora Avenue Queanbeyan earlier that day. 68 At approximately 17:42, Mr Beck sent an email to Mr Rossback and Mr Cambaz, reporting that he did not observe any sheen or odour and attaching photographs. A copy of the email dated 14 May 2020 and attachments is at Tab 15. 69 At 17:48, Mr Rossback telephoned FRNSW by dialling 000 and reported the pollution incident. 70 At 18:00, Matthew Rizzuto, a Unit Head of the Regulatory Operations Regional South branch of the EPA, spoke to Mr Rossback regarding the notification. The words of the conversation were to the following effect: Mr Rizzuto said: "You need to get someone down to the site to inspect the stormwater outlets as soon as possible to determine whether the solvent has discharged to the environment and if it hasn't to determine where it is sitting in the stormwater drain because it will eventually discharge into the environment." Mr Rossback said: "We have inspected all of the stormwater drain outlets in the area and we also inspected the Molonglo River and didn't detect any sign of the material so we are confident that it hasn't discharged to the environment." Mr Rizzuto said: "But the material has left the site so it is clearly in a position where it can end up in the environment. What is the name of the solvent and how much do you think may have left the site?" Mr Rossback said: "The solvent is named Vivasol 2046. We believe that it is up to 2500 litres, but it may be less. We think that we collected about 500 litres from the site." 71 At 18:15, Janine Goodwin of the EPA arrived at the Premises and met with Mr Beck. Mr Beck informed Ms Goodwin that: a. he was the site supervisor; b. he found the leak around lunchtime that day; c. he did not think the fire brigade needed to be notified and had not called them as the spill did not trigger the need to do so in the Defendant's procedures; d. he thought he had recovered 500 litres of the spilt solvent onsite and that about 2,000 litres had gone offsite down the stormwater drain; e. he had walked down to the stormwater outlet and river and could not see or smell any solvent; and f. he did not know where the solvent had gone down the stormwater system but they had engaged someone to come the next morning to clean the stormwater system. 72 At approximately 18:27, Mr Rizzuto notified FRNSW of the incident and FRNSW stated it had been notified of the incident but that the caller stated the EPA and the Council were aware so there is no need for FRNSW to attend the site. Mr Rizzuto requested FRNSW attend the incident. 73 At or about 18:37, Mr Rizzuto called Mr Rossback and informed him EPA Officers have observed hydrocarbon at the stormwater outlet and detected hydrocarbon odour in the Molonglo River and directed him to have someone on site and to get a pump-out truck to the site to remove as much material before it all entered the river. Mr Rossback stated that he would attend by 23:00 hours and that he was trying to source a pump-out truck. 74 At 18:42, Mr Rossback telephoned Council by dialling 1300 735 025. 75 On or about 18:40 to 19:00, FRNSW firefighter Nicholas Hornbuckle attended the stormwater outlet on Molonglo River. He observed what he thought was clear oil sitting on the surface of the water at the exit of the stormwater outlet and smelt a strong chemical odour, similar to diesel. Mr Hornbuckle and his crew placed booms at the exit of the stormwater outlet to soak up the discharging liquid. 76 At approximately 20:00, Mr Rizzuto inspected the Molonglo River at the stormwater discharge point and observed beads of hydrocarbon flowing downstream and smelt a strong hydrocarbon odour. 77 At or about 20:30, Mr Rizzuto called Mr Rossback and confirmed that there was hydrocarbons in the Molonglo River and Mr Rossback said he and a tanker truck were on the way and would arrive about 11:30pm. 78 At approximately 20:49, Mr Beck met Patrick Bacon of the ACT Environment Protection Authority and Ms Armstrong. Mr Beck informed them that he had called Flexible Australia Pty Ltd (Flexible) in an attempt to have that company come and vacuum pump the polluted water as required but that he had received no answer. 79 At 21:06, Ms Goodwin called Mr Rossback and gave him a clean-up direction under s 93 of the POEO Act. 80 At approximately 21:55, Ms Goodwin was about 20 - 30 metres downstream of the stormwater drain, at a point marked as Point 3 on a satellite photo at Tab 16, where she smelt a strong hydrocarbon odour and observed a hydrocarbon like substance sitting on water surface within the drainage line. 81 At approximately 22:20, Ms Goodwin was at the railway culvert marked Point 1 on the photo at Tab 16, where she smelt a strong chemical odour and observed a hydrocarbon substance sitting on water surface. 82 At approximately 22:45, Ms Goodwin was about 20 metres upstream of the discharge point on the Molonglo River, at the point marked as Point 5 on the photo at Tab 16. She did not smell any chemical odour or observe any chemical like substances at this location. 83 At approximately 23:25, Ms Goodwin was at the Molonglo River causeway, downstream of the discharge point, marked as Point 6 on the map at Tab 16. She smelt a strong chemical odour and observed a hydrocarbon substance on the surface of the water. 84 At 23:50, a pump truck arrived from Flexible, being the company Mr Beck had contacted. The drivers of the vehicle were Jonathan Tabner and Adam Smith. On arrival, the truck became bogged and required the assistance of a tow truck before it could commence vacuum pumping water contaminated by the spill. 85 The Defendant did not notify Queanbeyan-Palerang Regional Council before the EPA and did not notify SafeWork NSW or the Ministry of Health of the occurrence of the first pollution incident or provide those authorities with relevant information about the first pollution incident under s 150 of the POEO Act. 15 May 2020 86 From 04:30 on 15 May 2020, tankers from Flexible were emptying contaminated water collected from the Molonglo River into IBCs on the Premises as part of the Defendant's clean up action in relation to the First Incident. Flexible were required to do multiple trips between Molonglo River and the Premises. EPA officers were present at the Premises during this activity. 87 The sluice valve and the three way valve were both in the closed position during this time. 88 At or about 07:00, Ms Goodwin went to locations marked as Points 1 and 7 on the map at Tab 16, where she smelt a strong chemical odour and observed a hydrocarbon substance on the river surface. She also observed a white boom downstream of the culvert. 89 At or about 08:00, Mr Rizzuto met with Mr Young who told him words to the effect "The Avcon team will use jet skis to drag a floating boom upstream, pushing the contaminated water floating from the surface to a point on the river where it can be vacuumed into a pump-out truck." 90 The "Avcon team" to which Mr Rossback refers is Avcon Projects who were engaged by the Defendant as its Response Contractor to undertake emergency spill response and environmental remedial works in response to the incident, including at the stormwater culvert. 91 From 09:00 onwards, the EPA's Environmental Sampling and Response Team arrived at the Molonglo River and began taking samples from the stormwater system, the discharge point and the Molonglo River. 92 At approximately 13:30, Ms Goodwin was at River Street, Oaks Estate, marked as Point 1 on the map at Tab 16. She smelt a faint hydrocarbon odour and observed a hydrocarbon sheen on the surface of the Molonglo River. 93 Ms Goodwin walked approximately 100 metres upstream of this location and observed a pump operating adjacent to the Molonglo River. The pump appeared to be extracting water. She observed a hydrocarbon sheen on water adjacent to the pump. She did not smell a chemical odour. 94 Between about 13:50 and 14.30, Mr Smith and Mr Tabner of Flexible Australia were on their fifth return to the Premises when they were met by Mr Beck, who said "we've run out of IBCs and we are waiting for more to be delivered so just empty your truck into the underground storage pit". 95 Mr Tabner parked the truck near the two solvent tanks and observed Mr Beck and one of his staff unlock a square grated lid on the ground nearby. Mr Beck removed the grate and Mr Tabner could see a pit under the grate. Mr Tabner and Mr Smith hooked a hose onto the back of the truck, Mr Beck assisted them to direct the hose into the containment pit and Mr Tabner opened the release valve. Mr Beck then went back to the office to do other work. There was between 9,000 and 10,000 litres of liquid in the truck and all that liquid was emptied into the containment pit. 96 At approximately 13:54, Ms Armstrong was at the manhole at the front of the Premises, marked as MANHOLE 1- S7 on the map at Tab 17. As the lid to the manhole was lifted at approximately 14:17 hours, she observed a volume of liquid discharging from a pipe in the manhole that appeared to come from the Premises. She smelt a strong hydrocarbon odour and observed a rainbow sheen. 97 Natasha Abbott, an officer at Queanbeyan-Palerang Regional Council, was present at the manhole with Ms Armstrong. Ms Abbott observed "strong diesel like fumes and a flow coming from the property storm water line into the pit." She describes a "running flow" discharging from a pipe into this pit. 98 Ms Abbott went into the Premises and informed Mr Beck of her observations. Mr Beck and Ms Abbott went to the stormwater pit and saw it was full of liquid, which Ms Abbott described as smelling like diesel. 99 Mr Beck instructed two employees of the Defendant to pump liquid out of the stormwater pit and they removed approximately two IBCs and two 44-gallon drums of liquid. He observed a swirling flow of water in the stormwater pit. 100 At approximately 14:30, Ms Armstrong observed that the stormwater pit and the adjacent holding tank were full. Staff of the Defendant and Flexible Australia were pumping liquid from the holding tank and stormwater pit into IBCs. 101 At approximately 14:40, Ms Armstrong was at the manhole at the front of the Premises, marked as Point MANHOLE 1-S7 on the map at Tab 17 and she observed that the flow of water had increased. 102 Ms Goodwin also observed liquid discharging from a pipe inside the manhole. She contacted FRNSW to attend the Premises. 103 At approximately 14:45, in response to the call to FRNSW, Mr Hornbuckle returned to the stormwater outlet on the Molonglo River. Mr Hornbuckle and his crew placed additional booms across the stormwater outlet. Mr Hornbuckle observed "significantly more of the chemical substance on the water and flowing from the stormwater outlet". 104 At approximately 15:10, FRNSW officers were also at the Premises collecting liquid that was discharging into the manhole at the front of the Premises and pouring it into IBCs. 105 At approximately 16:00, Ms Armstrong observed that a small amount of liquid and sludge remained in the stormwater pit. She observed that water level in the adjacent holding tank was below the three-way valve and that there was no movement of liquid from the holding tank into the stormwater pit. 106 At approximately 17:30, Mr Hornbuckle arrived at the Premises. He observed his colleague attempt to push down on the handle to the sluice valve and noticed that he could not push it down completely. Mr Hornbuckle obtained a rubber mallet from his truck and returned to the sluice valve. He firmly tapped the handle of the sluice valve with the rubber mallet, applying more pressure than he could have with his hand. He observed that the handle moved down about 50mm. He went to the manhole at the front of the Premises and observed that water had stopped flowing. He observed this pit for about 10 minutes and noticed that the flow did not start again. 16 May 2020 107 At 07:30, Mr Rizzuto inspected the Molonglo River at the culvert crossing immediately upstream of the Yass Road bridge and observed that the river had a rainbow sheen on the surface both upstream and downstream of the culvert crossing. Mr Rizzuto took photographs, which are at Tab 18. 108 At approximately 08:40, Mr Rizzuto met Mr Rossback at the stormwater discharge point and had a conversation to the effect that: Mr Rossback said: We have set up additional booms in the Molonglo River and placed them under the Yass Road bridge and we have a skimming point at this location so that no hydrocarbon moves downstream. We also have a skimming point set up 500 meters downstream of the Yass Road bridge. We are set up with portaloos at each site so assist in maintaining a presence at the site all day. We have developed more of a cleanup program. The program involves the strategic placement of skimming, pumping and temporary storage resources using pump out trucks at 4 key locations. These locations will be permanently resourced during the cleanup event. Recovered solvent will be transported to Wollongong and disposed at our facility there. The 4 locations are the outlet of the stormwater drain, a causeway directly downstream of the discharge location, at a boom 200 m downstream and at confluence of the Queanbeyan and Molonglo River to capture any solvent with migrates past the primary booming locations. Mr Rizzuto said: You need to also get the pool of water adjacent to the stormwater outlet pumped out this morning and it needs to be a priority because it is still very odorous indicating that a lot of the product is lying within the pool and free to move down the river. Mr Rossback said: OK, we will be onto it within a couple of hours. We are just finishing off the jetting of the stormwater drain and we have 2 trucks busy doing this at the moment and then they will be sent here when they have finished to start on the pool. 109 At approximately 09:20, Ms Armstrong observed a rainbow sheen and oily slick on the water downstream of the discharge location in the Molonglo River prior to the causeway on Yass Road. 110 Between about 11:30 and 15:30, Ms Armstrong visited various locations along the Molonglo River: a. She smelt a slight hydrocarbon odour at River Street and Hill Street in Oaks Estate, marked as MR-DS-4 on the map at Tab 12. b. She took a dirt track through a farm, marked as MR-DS-2 on the map at Tab 12, and observed a liquid with a rainbow sheen discharging around booms in the Molonglo River. c. She accessed the Molonglo River via a causeway off Yass Road, marked as MR-DS-1 on the map at Tab 12. She smelt at strong hydrocarbon odour and observed an oily slick on top of the water. d. She walked along the Yass Bridge Road and looked down into the Molonglo River. She observed a large visible spread of an oily substance with a rainbow sheen and smelt a strong hydrocarbon odour. e. Mr Rizzuto observed hydrocarbon slicks in the liquid pooled at the stormwater discharge outlet and the immediately adjacent Molonglo River and smelt strong hydrocarbon odours. 17 May 2020 111 At approximately 06:45, Ms Goodwin was at the Yass Road Bridge, marked as Point 7 on the map at Tab 16. She observed a white containment boom placed across the river, located downstream of the causeway. She observed a chemical sheen on the river surface both upstream and downstream of the boom and a brown coloured substance abutting the boom on the river surface. She smelt a strong chemical odour at this location. 112 Ms Goodwin travelled to the railway culvert stormwater outlet pondage. She smelt a strong chemical odour and observed a chemical sheen on the pondage surface. She again followed the drainage line. She smelt a strong chemical odour and observed a hydrocarbon like sheen on the discharging water in the discharge channel. 113 At approximately 07:44, EPA officer Amanda Fletcher was at the stormwater culvert. She smelt a strong hydrocarbon odour. 114 At approximately 09:07, Ms Fletcher accessed the Molonglo River from River Street and smelt a faint hydrocarbon odour. She observed several booms at this location. 115 At approximately 10:00, Ms Fletcher accessed the Molonglo River from the farm marked as Farm on the map at Tab 19. She observed booms on the water and a rainbow sheen. Ms Fletcher walked along the Molonglo River upstream towards the Yass Road Bridge. She observed slicks around the reeds and on the water and smelt an odour. 116 Between approximately 13:30 and 14:10, Ms Fletcher was at the stormwater outlet and walked downstream along the Molonglo River. She observed a rainbow sheen along the water and slicks captured in the booms in the river. 18 May 2020 117 At or about 07:30, Mr Rizzuto inspected parts of the Molonglo River and observed hydrocarbon upstream and downstream of the stormwater discharge outlet, but not at further locations downstream. 118 At approximately 10:00, Ms Armstrong observed a noticeable slick on the surface of the water immediately downstream of the stormwater outlet and smelt a strong hydrocarbon odour. 119 At approximately 10:40, Ms Armstrong walked along the Yass Road Bridge and observed a noticeable slick of product in the river from both sides of the bridge. Ms Armstrong walked to the causeway off Yass Road. She observed a rainbow sheen and oily slick in the river and smelt a strong hydrocarbon odour. 120 At approximately 11:00, Ms Armstrong accessed the Molonglo River off a dirt track through a farm off Oaks Estate Road. She observed a rainbow sheen and oily slick on the water and smelt a hydrocarbon odour. She walked upstream for approximately 50 metres and observed an oily slick consistently discharging downstream to where a number of booms were located. 19 May 2020 121 Between 07:30 and 09:50, Mr Rizzuto inspected the Molonglo River and only observed hydrocarbon sheen and smelt hydrocarbon odour immediately upstream and downstream of the stormwater discharge point. 122 At 11:00, Mr Rizzuto observed the Defendant and Avcon conducting clean up works, including installing a large tarpaulin near the stormwater discharge outlet to prevent hydrocarbon contamination of soils and barriers at the discharge outlet to create a sump. 123 At 19:42, Mr Cambaz sent Mr Rizzuto an email outlining the clean up actions taken that day, a copy of which is under Tab 20. 20 May 2020 124 At approximately 12:00, Ms Goodwin was at the railway culvert stormwater outlet pondage. She followed the drainage line to an area of rock rubble. She observed a pool of water with solvent and smelt a strong chemical smell. She walked approximately 20 metres upstream of this location and did not observe a chemical sheen on the water nor did she smell any odour. She then walked about 10 metres downstream of the discharge location and smelt a mild chemical odour and observed a small amount of chemical sheen on the river surface. 125 At approximately 12:30, Ms Goodwin was at the Molongo River culvert, marked Point 6 on the map at Tab 16. She observed plumes of chemical caught in the riverbank vegetation adjacent to the culvert, and smelt a moderate chemical odour. 126 At approximately 12:50, Ms Goodwin was about 200 metres upstream of the Yass Road Bridge. She observed containment booms within the river at multiple spots. She observed evidence of a chemical plume of the river surface and smelt a moderate chemical odour. 127 At 22:00, Mr Cambaz sent Mr Rizzuto an email outlining the clean-up actions taken that day, a copy of which is under Tab 21. 21 May 2020 128 On 21 May 2020, the EPA issued Notice no. 1595085 being a variation to Clean Up Notice No. 1594975. A copy of the variation notice is at Tab 22. 22 May 2020 129 At 19:19, Mr Cambaz sent Mr Rizzuto an email outlining the clean-up actions taken that day, a copy of which is under Tab 23. 23 May 2020 130 Mr Rizzuto inspected the Molonglo River and observed hydrocarbon sheen and smelt odours at a point 100 metres downstream of the discharge point. 24 May 2020 131 At approximately 12:00, Ms Goodwin was at the railway culvert stormwater outlet pondage. She observed that the culvert pondage area contained a small amount of water, with chemical sheen in sections. She smelt a faint chemical odour. She followed the drainage line to the rock rubble drain area and smelt a very faint chemical odour. Estimation of volume of Vivasol 132 The volume of contaminated water discharged from the Premises into the stormwater network as a result of each incident was approximately: a. 2,500L of Vivasol 2046 was discharged into the Council's stormwater system on 14 May 2020; and b. 1,500L of water which contained Vivasol 2046 was discharged into the Council's stormwater system on 15 May 2020. Cause of the incident 133 On 1 June 2021 Jordan McPeake of Lucid Consulting provided an expert opinion as to the cause of the incidents on 14 May 2020 and on the 15 May 2020. Mr McPeake has tertiary qualifications in mechanical engineering and is an engineer. A copy of the report is at Tab 24. 134 In relation to the spill on 14 May 2020, Mr McPeake found that the cause of the incident was the separation of the solvent ball valve and lack of secondary containment system at the location of this component. Mr McPeake was unable to confirm the cause of separation of the ball valve on the information available to him. Mr McPeake opined that the valve was unsuitable for use in the solvent system and the valve seal may have been subject to degradation from prolonged exposure to the solvent. This may have been the cause of earlier failures and leaks in the valve. Mr McPeake found that absence of the seals at the time of his inspection may have been due to the valve separation event as these components are held in place by compression within the valve assembly. 135 While the solvent ball valve was not fit for purpose and may have led to minor leaks, Mr McPeake found the incident on 14 May was caused by a separation in the valve that may have been caused by either the rotation of components from latent rotational stresses in the system; separation due to longitudinal stresses; or manual disassembly by rotation of components. As above, Mr McPeake was unable to confirm the cause of the separation of the ball valve. Nevertheless, Mr McPeake found the failure of the solvent ball valve presented a significant risk of pollution due to the lack of secondary containment provided for the component, particularly as components in mechanical and hydraulic systems are subject to failure. 136 Mr McPeake considered the first incident foreseeable due to the lack of secondary containment. He opined that components in hydraulic and mechanical systems are subject to failure and a secondary containment should have been in place to mitigate the risk of pollution events from the valve or pipework framework. 137 Mr McPeake considered a number of practical measures that would have supported the prevention of the first pollution incident included a secondary containment for the solvent transfer system, which could include encasement of valves and pipework within a secondary housing to contain solvent spill and exclude the ingress of stormwater drainage. Additionally, Mr McPeake considered that the materials within the solvent transfer system must be suitable for prolonged exposure to solvent. 138 In relation to the second incident on 15 May 2020, Mr McPeake opined that the second incident occurred due to the containment pit overflowing into the stormwater outlet pit. Based on the site reports provided to Mr McPeake, he assumed the cause to be the fact that the stormwater sluice was not in the closed position and allowed contaminated liquid to discharge into the stormwater system. The stormwater sluice valve was subject to one of two failures. First, the sluice valve was left in the open position; or second, the poor valve condition as it did not have a complete seal. The handle to the sluice valve did not incorporate obvious indicators to show the valve position and it was therefore possible that the valve could appear to be in the closed position to the operator while still allowing fluid to discharge to the utility network. 139 Mr McPeake considered it foreseeable that the overfilling of the containment retention pit may have led to the risk of pollution. Mr McPeake opined that there were practical measures that may have supported the prevention of the second incident including avoiding overfilling the containment retention pit, regular cleaning and maintenance of stormwater sluice valve, clear indication of the valve position for stormwater sluice valve and ensuring that site personnel were familiar with the design, construction and operation of the site containment system. Expert analysis of harm to the environment 140 Adrian Dickson, a Senior Scientist at the Department of Planning, Industry and Environment has produced an expert report dated 4 June 2021 in which he sets out his findings following an investigation of the impact of the two incidents on the aquatic ecosystem of the receiving waters of the Molonglo River. A copy of this report is at Tab 25. The assessment focused on aquatic macroinvertebrates. Mr Dickson has tertiary qualifications in ecology and environmental science, and has had 15 years' experience working as a researcher, consultant and scientist in the field of freshwater ecology. Mr Dickson has predominately worked in the field of river health assessment using macroinvertebrates as biological indicators of stream and ecosystem condition. 141 On 15 May 2020, staff from the Department of Planning, Industry and Environment collected macroinvertebrate samples from the waterway with samples collected both upstream and downstream of the stormwater discharge point. The sampling was repeated at the same sites on 16 June 2020 to investigate potential ongoing impacts of the contaminant discharge on the macroinvertebrate community. 142 Following an analysis of the samples collected and from a review of relevant data, Mr Dickson found that: a. The results consistently indicated the contaminant had a significant impact on the macroinvertebrate community downstream of the discharge; b. The difference in the total abundance was evident with the samples collected from downstream generally having lower abundances, which indicates a high mortality and decline in macroinvertebrate biomass in the downstream site; c. Total taxa richness (i.e. the number of different macroinvertebrate taxa contained in a sample) was significantly lower downstream. These results suggest that the contaminant had an impact on the diversity of the macroinvertebrate community and the taxa there may be physiological, history or habitat preferences (or all or a combination) that was disrupted by the contaminant. d. The SIGNAL 2-Family results indicated that the sensitive taxa were severely impacted. e. The AUSRIVAS results indicated a significant difference between the upstream and downstream samples with most samples rated as "significantly impaired". f. The results from the ACT Monitoring program indicated a decline in the macroinvertebrate community at the Molonglo River site (downstream of the contaminant discharge) in Autumn 2020, which was sampled in June 2020 after the pollution incidents. It is likely the pollution incidents separately and collectively caused the decline in the macroinvertebrate community. g. ACT monitoring results for the site in spring 2020 showed the AUSRIVAS score increased considerably and returned to the high score, close to the spring 2019 results. This suggests that the impacts of the pollution incident were temporal and may be limited to less than two months after the incident. h. The multivariate analysis suggested that both pollution sensitive and pollution tolerant taxa were affected by the pollution event. i. There is strong evidence that the contaminant had direct negative effects on the macroinvertebrate community in the reach downstream of the discharge which is likely to have had a significant impact on aquatic ecosystem processes and more broadly river health. 143 Mr Dickson concluded that: a. The pollution incidents together caused actual harm to the macroinvertebrate community through downstream movement of the contaminant, Vivasol 2046. Due to the lower density of the contaminant, compared to the freshwater of the River, it would have mainly floated on the surface of the River creating a barrier that was toxic to aquatic organisms. The contaminant likely caused fatalities and loss of a large proportion of the macroinvertebrate community (which Mr Dickson did not say comprises any endangered species) by direct contact. b. The quantity of the contaminant released into the waterway led to a slick that stretched from the stormwater discharge and more than 500 metres downstream. Notes on the habitat in the area where samples were collected from the downstream location highlighted the strong odour and visible slick that coated aquatic plants and substrate in the edge habitat areas. These habitats are critical for the majority of the edge habitat macroinvertebrate fauna. The results suggest that the contaminant reached at least 500m downstream and polluted the habitat for up to one month. c. Mr Dickson is unable to isolate the effects of each pollution incident from 14 and 15 May separately. 144 Mr Stephen George Fuller, a Senior Scientist employed by the Department of Planning Industry and Environment has provided an expert opinion dated 16 February 2021, which is at Tab 26. In this report, Mr Fuller opines about the impact of the discharge of Vivasol 2046 on 14 May and 15 May 2020 on the stormwater system but he did not consider the effect of Vivasol 2046 had on the Molonglo River or any environment outside the stormwater system. Mr Fuller found that the discharge of 2,500 litres of Vivasol 2046 on 14 May 2020 into the stormwater drain was highly likely to have a significant and adverse effect on the chemical composition of the waters in the stormwater system. Mr Fuller also found that the impacts of the discharge of Vivasol 2046 on 14 May 2020 to the physical or biological nature of the stormwater system were minimal. 145 In addition, Mr Fuller opined that the discharge of the contaminated water with Vivasol 2046 that occurred on the 15 May caused substantial temporary contamination to the stormwater system. Mr Fuller stated that the water at the outlet of the system contained measurable and toxic concentrations of petroleum hydrocarbons after approximately 48 hours of 15 May 2020. The presence of kerosene range petroleum hydrocarbons in the stormwater discharges had immediately and greatly changed the chemical composition of the water in the stormwater system compared to the expected quality of water in the system which would reasonably be expected to be rainwater. Prior convictions 146 The Defendant has no prior convictions. Assistance with authorities 147 The Defendant cooperated with the EPA by making its staff available for interviews throughout the investigation and agreeing to site inspections of the Premises, including: a. voluntarily making its employees available for seven interviews with the EPA over several days; b. making its corporate representative, Richard Pittard (Head of Environment), available for interview; c. responding to five Notices to Provide Information and Records in a timely manner; d. responding to an extensive Prevention Notice, including preparing the Arcadis Report dated 6 November 2020; e. in the weeks following the incidents: i. voluntarily making the Premises available to the EPA; ii. Informally providing documents to the EPA at their request to assist in their investigations; and iii. making staff available at the Premises for the EPA to ask questions of during inspections. Summary of clean-up actions taken by the Defendant 148 As a part of its clean-up response, the Defendant engaged: a. Flexible Australia for the purposes of vacuum pumping the polluted water from Molonglo River, as discussed in paragraph 84 above; b. internal resources, including a tanker from Wetherill Park and labour and a tanker from Unanderra, which arrived at the Premises at approximately 5am on 15 May 2021; and c. Avcon Projects, discussed at paragraphs 149 and Error! Reference source not found. below. [sic] 149 On 15 May 2021, at approximately 09:00, the Defendant engaged Avcon Projects to undertake emergency spill response and environmental remedial works in response to the incidents. Avcon Projects subsequently engaged Aquachem Solutions (Aquachem) to sample water and soil from potentially impacted locations. 150 The Defendant and Avcon completed remedial works between 15 May 2020 and 3 June 2020. Those works comprised: a. Installation of multiple surface containment booms at five separate locations across the Molonglo River. The solvent contained by the booms was removed from the water surface via a vacuum truck, or other task specific methods including high pressure water, skimming and absorbents; b. removal of pooled liquids from the culvert to the Oaks Estate Road Bridge via vacuum truck and installation of HDPE liner across the culvert footprint to capture stormwater discharge. Liquids contained by the liner were removed via a vacuum truck; and c. cleaning of the concrete lined stormwater drain using high pressure water and a vacuum truck, which was performed until solvent was no longer present in discharge waters. 151 Throughout the completion of the remedial works, Aquachem were engaged to collect representative water and soil samples to assess and validate the progress of the remedial works. 152 The remedial works concluded on 3 June 2020. 153 A report by Aquachem engaged by Avcon for the Defendant titled "Remedial Works Assessment - Avcon Projects, Queanbeyan Spill (2 July 2020, ref: AR-2006031- Final" dated 2 July 2020 is at Tab 27. 154 A peer review of that report by Lee Douglass of Reditus, titled "CEnvP-SCS Technical Peer Review of "Remedial Works Assessment - Avcon Projects, Queanbeyan Spill" prepared by Aquachem Solutions Pty Ltd (2 July 2020, ref: AR- 2006031-Final" dated 2 July 2020 is at Tab 28. Actions since the incidents 155 On 7 June 2020, the EPA issued a Prevention Notice No. 1595392 to the Defendant pursuant to s 96(3)(i) of the POEO Act requiring it to "prepare and carry out a plan of action to control, prevent and minimise pollution at the Premises" (the Action Plan) by 7 August 2020, including engaging an independent expert to undertake an assessment to inform that action plan (the Assessment) by 21 July 2020. A copy of the Prevention Notice is at Tab 29 (the Prevention Notice). 156 On 31 July 2020, the Defendant's legal representatives requested the EPA amend the Prevention Notice to amend its requirements to only prepare, not carry out, an action plan and to extend the dates for compliance with the requirement to prepare the Assessment and the Action Plan. 157 On 6 August 2020, the Prevention Notice was varied by Variation Notice No. 1598549, which extended the date for the Defendant to submit a final report on the Action Plan and Assessment to 15 September 2020. A copy of the Varied Prevention Notice is at Tab 30 (the Varied Prevention Notice). 158 A final report on the Action Plan and Assessment by Arcadis titled "Assessment in relation to EPA Prevention Notice 1595392 for 42B Aurora Avenue, Queanbeyan ACT 2620" dated 6 November 2020 was provided to the EPA on 6 November 2021. A copy of this report is at Tab 31. 159 Since the incidents the subject of the Proceedings, the Defendant has taken a number of steps to further improve its environmental practice at the Premises, in accordance with the Action Plan and Assessment developed under the Prevention Notice and the Varied Prevention Notice, including: a. replacing the three way valve; b. changing the operation of the retention pit and three way valve so that the default position is closed; c. amending processes for the drum washing and filling process so that use of clean solvent occurs within the warehouse, reducing the risk of a spill; d. removing the solvent and used solvent transfer infrastructure (including the ball valve). The solvent transfer system has been replaced by refills from IBC units, and a new procedure for the changed drum rinsing and filling process, based on the assessment of risk, has been developed. This has included the preparation of the following documents: i. Risk Assessment Form - Assessing the tasks and risks associated with: 1) the removal of the solvent transfer infrastructure; and 2) replacing the clean solvent transfers with IBC deliveries to the warehouse; ii. Modification Form MOC-0025 - Solvent infrastructure and dock area; and iii. Job Safety Environmental Analysis (JSEA) - Removal of solvent lines and associated isolation; e. Prior to opening the sluice valve and three-way valve, ensuring that inspections are undertaken to check for spills, odour in stormwater drains, visible product in stormwater drains and drain wardens; f. undertaking a significant review and update of Site plans, including: i. the Stormwater Management Plan and Pollution Incident Response Management Plan; ii. the Work Instruction Form: Loading/Unloading Waste Oil; iii. the Site Environmental Risk Register, iv. developed a Stormwater Standard Operation Procedure and Work Instruction Form: Solvent Bay Usage Unloading and Loading of Shellsol 2046; v. developed a Preventative Maintenance List and documentation of daily site inspections; g. delivering additional toolbox and training talks to ensure staff are familiar with plans and procedures in place for the Premises, including: i. PIRMP training; ii. re-training on Site Emergency Plan; iii. Queanbeyan Stormwater Procedure - Interim; and iv. CES Queanbeyan Stormwater SOP (July 2020); and h. undertaking daily documented inspections of the stormwater and spill capture systems.
Vivasol safety data sheet
Expert report of Mr Adrian Dickson
Expert report of Mr Stephen Fuller
Aquachem Solutions report
Affidavit of Mr Richard Pittard
Financial report for Cleanaway corporate group
Purposes of sentencing
Nature of the offences
Charges 1 and 3
Charge 2
Defendant's state of mind
Maximum penalty
Matters to be considered in imposing sentence under POEO Act s 241(1)
Harm or likely harm to environment: s 241(1)(a)
Submissions on Charges 1 and 3
Molonglo River
Stormwater
Submissions on Charge 2
Consideration of environmental harm
Charge 1 and 3
Charge 2
Practical measures to prevent or mitigate harm: s 241(1)(b)
Charge 1
Charge 3
Charge 2
Control over the causes giving rise to the offence: s 241(1)(d)
Complying with orders: s 241(1)(e)
Charges 1 and 3
Charge 2
Subjective matters
Guilty plea: ss 21A(3)(k), 22
Contrition/remorse: s 21A(3)(i)
Good character: s 21A(3)(f)
Cooperation with regulatory authority: ss 21A(3)(m), 23
Unlikely to reoffend, s 21A(3)(g)
General and specific deterrence
Even-handedness/parity
Totality
Publication order - POEO Act s 250(1)(a)
Investigation expenses
Moiety
Costs
Conclusion on penalty to be imposed
Penalty/orders
Annexure A Cleanaway Equipment Services Pty Ltd convicted of two water pollution offences and failing to immediately notify relevant authorities of a pollution incident Cleanaway Equipment Services Pty Ltd (CES) has been prosecuted by the EPA, pleaded guilty and was convicted in the Land and Environment Court of causing water pollution when large quantities of kerosene solvent escaped from its licensed premises at Queanbeyan on 14 and 15 May 2020. On 14 May 2020, approximately 2,500L of solvent entered the stormwater system and the Molonglo River. On 15 May 2020, contaminated water (containing solvent) that had been pumped from the Molonglo River by CES following the incident on 14 May 2020 escaped from CES' premises again and entered the stormwater system and the Molonglo River. The incidents caused actual harm to the environment and significant short-term impacts (lasting approximately two months) on macroinvertebrates in the river. CES also pleaded guilty and was convicted of failing to immediately notify the relevant authorities on 14 May 2020 that a reportable pollution incident had occurred. On 14 April 2022, the Court recorded convictions and fined CES the amount of $617,000. The Court also ordered CES to pay the EPA's investigation costs of $110,778 and legal costs and publish this notice. The Court's judgment may be accessed at https://www.caselaw.nsw.gov.au/decision/180216e9f9b83a611a72e1b6. 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: 20 April 2022
Environment Protection Authority
Cleanaway Equipment Services Pty Ltd
[2005] HCA 25
[1988] HCA 70
[1998] HCA 57
(1993) 113 LGERA 357
(2006) 145 LGERA 234
(1993) 32 NSWLR 683
(2009) 168 LGERA 121
(2008) 163 LGERA 71
(2014) 200 LGERA 235
(2018) 235 LGERA 114
(2006) 148 LGERA 299
(2009) 164 LGERA 287
(2006) 160 LGERA 115
(2010) 242 CLR 520
(1989) 167 CLR 348
(2005) 228 CLR 357
(1988) 166 CLR 59
(2011) 244 CLR 120
(1998) 194 CLR 610
(1997) 189 CLR 295
(1999) 199 CLR 270
(2000) 49 NSWLR 383
(2020) 245 LGERA 241
(1979) 143 CLR 458
(1988) 164 CLR 465
(1993) 78 LGERA 349
(2006) 66 NSWLR 566