Environment Protection Authority v Collis

Environment Protection Authority v Collis - [2003] NSWLEC 190 - NSWLEC 1992 case summary — Zoe

[61]

It is necessary that I now consider the matter of penalty. Section 241(1)(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence 52. The Defendant has agreed that the environmental harm caused is as stated in the Statement of Agreed Facts set out at par 10. Clearly there is harm caused and likely to be caused to the environment, but that harm is likely to be short term only. Section 241(1)(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm Prosecutor's submissions 53. The Prosecutor argued that there were a number of steps which could have been taken by the Defendant to prevent the discharge and/or prevent and mitigate the harm caused by the offence. Given the unusual operating circumstances the Defendant should have undertaken a risk assessment to determine if additional procedures were warranted rather than apply usual procedures. There are six further steps which the Prosecutor identified in its submissions: (1) Use of a flow meter to measure the amount of sodium hypochlorite injected into the main; (2) Install and properly operate a valve between the sodium hypochlorite dosing pump and the main being dosed which could be closed when equipment was being set up to prevent any syphoning occurring; (3) Use of a "see through" sodium hypochlorite tank or a tank with a limited maximum capacity; (4) Take drum dips of the amount of sodium hypochlorite used whilst dosing. The usual practice at the time was for the operator to only take a drum dip reading at the start and end of the dosing (see exhibit MJC - 6 p34 to the affidavit of Mark John Clyne and Statement of Agreed Facts at par 4.8); (5) Fully investigate the incident at 8.45 am when Mr Innes reported there was a problem; and (6) Report the incident earlier than 7.26 pm. 54. Paragraph 9.1 of the Agreed Statement of Facts essentially states the Defendant has now done (1) and (3) and instructed operators to immediately report anything outside of normal procedures.

[79]

the inadequacy of the procedures used on the day of the offence As the Defendant had never disinfected a main using feed water from a second main before and given there was such a steep slope to the main to be disinfected, a special risk assessment should have been undertaken. The other steps not taken by the Defendant were articulated in relation to s 241(1)(b). The failure to use a flow meter was contrary to the Department of Public Works and Services specifications for the pipe disinfecting operation (note this is disputed by the Defendant's counsel who argues the dosage pump had a similar effect to a flow meter). 3. the failure to investigate the problem at 8.45am when Mr Innes advised the Defendant he had a problem The Defendant should have used basic care at the time that Mr Innes told him at 8.45am that he had a problem. The Prosecutor argued it was normal industry practice that this would have been followed up. If the Defendant had taken steps to identify the problem at 8.45am it is probable he would have realised that at that time a whole drum of sodium hypochlorite had been used. Further mitigating measures could have been taken at that time to neutralise the pollutants in the unnamed watercourse and the Fish River which may have prevented or reduced the size of the subsequent fish kill. 4. the second incident at 3.40pm at scour valve 7/8. The Prosecutor argued that despite the Defendant knowing at 3.40pm that he may have allowed 7,200 litres of contaminated water to discharge into the Fish River at scour valve 7/8, he did not report the incident to anyone until 7.26pm that night when he informed the Council and self-reported to the EPA. As the Defendant has operated under a pollution control licence under the Clean Waters Act 1970 for approximately ten years which had a discharge limit for chlorine of 3mg/L when disinfecting mains the Defendant should have been aware of the seriousness of any discharge to waters involving water chlorinated above that level. The incident should have been reported much earlier than it was. 74. Of the four matters raised by the Prosecutor to support its argument, matters 1 and 2 have already been considered in relation to s 241. I do not think it is appropriate to consider these again in the way the Prosecutor is suggesting. In relation to item 3, while the Defendant can be criticised for failing to inquire further of Mr Innes the cause of a problem at 8.45 am, his failure to do so was not reckless and should be characterised more as an unfortunate oversight. Nor do I accept that the Defendant was slow to report the incident at scour valve 7/8, as alleged in item 4. I therefore do not accept the Prosecutor's suggestion that there are aggravated circumstances in addition to matters I have considered pursuant to s 241(1).

Parties

Applicant/Plaintiff:

Environment Protection Authority

Respondent/Defendant:

Collis

Cases Cited (14)

CITATION : Environment Protection Authority v Collis [2003] NSWLEC 190 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT David Richard Collis FILE NUMBER(S) : 50004 of 2003 CORAM: Pain J KEY ISSUES: Prosecution :- water pollution - strict liability offence - plea of guilty - culpability of defendant - whether owner of business or employee - application of s 10 of the Crimes (Sentencing Procedure) Act 1999 refused - consideration of penalty - mitigating factors - means to pay Crimes (Sentencing Procedure) Act 1999 s 10 LEGISLATION CITED: Fines Act 1996 s 6 Protection of the Environment Operations Act 1997 s 120, s 241 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Environment Protection Authority v Attard [2000] NSWCCA 242; Environment Protection Authority v Egan (Bannon J, NSWLEC, 5 August 1992, unreported); Environment Protection Authority v Excel Fuels Pty Limited [2002] NSWLEC 160; Environment Protection Authority v Harris (Talbot J, NSWLEC, 19 February 1993, unreported); Environment Protection Authority v Orange City Council (Stein J, NSWLEC, 23 June 1995, unreported); Hunter Water Board v State Rail Authority of New South Wales [No 2] (1992) 75 LGRA 22; CASES CITED: Peter Carter v Verna Wall [2003] NSWLEC 94 ; R v Andrew [2002] NSWSC 489; R v Goh [2002] NSWCCA 234; R v Olbrich (1999) 199 CLR 270; R v Paris [2001] NSWCCA 83; R v Piccin (No 2) [2001] NSWCCA 323; R v Thomson; R v Houlton [2000] NSWCA 309; R v Sharma (2002) 54 NSWLR 300; Thorneloe v Filipowski (2001) 52 NSWLR 60 DATES OF HEARING: 02/06/2003 DATE OF JUDGMENT: 08/27/2003

(1993) 113 LGERA 357

(1993) 32 NSWLR 683

(1999) 199 CLR 270

(2002) 54 NSWLR 300

(2001) 52 NSWLR 60