81 There were falls prior to all of the relevant offences of:
(1) 27 April 2017: 57mm fell between 1 April 2017 and 27 April 2017.
(2) 23 May 2017: 21.6mm fell between 28 April 2017 and 23 May 2017.
(3) 26 May 2017: 25.6mm fell between 28 April 2017 and 26 May 2017.
(4) 9 June 2017: 40.8mm fell between 4 June 2017 and 9 June 2017.
82 For the Leachate Treatment Plant to operate at maximum treatment and discharge capacity, all treated leachate must meet ammonia requirements under the TWA so it can be discharged to sewer.
CONTEXT OF OFFENCES
History of complaints to the Environment Protection Authority
83 There were 33 complaints to the EPA about odour from the Premises between about 2012 and March 2017. These complaints all related to periods of time before CPB held the License in relation to the Premises. The premise, given the historical use, was always capable of giving rise to odours, some of which could be reasonably characterised as offensive within the meaning of the POEO Act. The EPA records indicate that there were 8 complaints on 27 April 2017, 5complaints on 23 May 2017, 18 complaints on 26 May 2017 and 13 complaints on 9 June 2017. In the period 27 April 2017 to 9 June 2017 there were 141 complaints from 90 different individuals.
Odours Not Always Offensive
84 When undertaking an investigation of odour events, EPA Officer Alex McGuirk objectively distinguished between odours considered to be unpleasant and those that could objectively be characterised as offensive.
85 For example, on the 23 May 2017, on two occasions, Ms McGuirk identified leachate odours that did not satisfy the offensive threshold:
(1) At 10:49am: "I smelled a leachate egg odour that I scored 2-3/6 ... unpleasant but not offensive to me"; and
(2) Between 11:15 and 11:17: "I smelled ... leachate egg odours that I scored 3/6 ... I considered that the leachate odour I was smelling here was unpleasant but not offensive to me."
86 Ms McGuirk undertook to objectively demonstrate why a particular odour event satisfied the requisite threshold. For example:
(1) "I considered the odour was offensive to me because it was making me feel physically ill and I could not have carried out normal activities, like having lunch, with an odour of that nature and strength present. I noted I felt sick in the stomach because of the odour. I recall that the odour upset my eyes and my breathing. I recall my skin, hair and clothing felt dirty due to the odour. I wanted to get away from the odour quickly;"
(2) "I recorded that I was scrunching up my face and blowing out my cheeks to try to prevent breathing the odour in ... I felt a slight stinging in the back of my throat due to the odour;"
(3) "The odour was offensive to me because I felt physically unwell and I would not have wanted to sit, eat, study, work or play with an odour of that nature and strength present;" and
(4) "The leachate odour was offensive to me because it prevented me from carrying out my normal lock-up routine. I wanted to get away from the leachate odour as quickly as possible."
21 April 2017 odour issue
87 At about 1pm on 21 April 2017, an EPA officer, Ms Alex McGuirk called Mr Scarf and had a conversation in relation to complaints from members of the public about a rotten egg odour affecting people's health, and a concern that the smell might continue over the Anzac Day long weekend.
88 At about 4:15pm, Mr Scarf called Ms McGuirk and said words to the following effect:
"There's odour leaving the boundary. It's a 4-70U. There's been a leachate breakout, it's coming out of the batters. We're excavating trenches so we can collect it in a pit and pump it. We'll cover it with gravel and tarp. We think the underlying cause is a waste cell that's not hydraulically connected, or that the connection's blocked, so there's been a build-up of water in that cell. The water level in the sump and the main riser is low.
There's a nor east wind. We re-oriented the odour cannon. There'll be a full crew onsite Saturday, Sunday and Monday with trucks and pumps and tickets. I'll be onsite myself and we'll try to keep the leachate underground or covered.
The project director is signing off on the report today so it's accurate as of 9am today."
89 By about 6.30pm no odour was detected as corrective actions and remedial odour controls had addressed the odour emissions.
90 CPB subsequently reported to the EPA in accordance with the License that the cause of the event was odours from leachate exposed to air (Attachment J).
THE OFFENCES
Charge 1: 27 April 2017
91 At about 12pm, at her house at 12 Brown Street, St Peters, Ms Tamara Regan smelled a rotten egg, sulphur, pungent smell. The smell was a strong offensive odour rated 6 on a scale of 0 to 6 (with 6 being the worst rating) by her and almost made her vomit. The smell was still strong and offensive at Ms Regan's home at 4:47pm when she made a call to the EPA to complain about the smell.
92 At about 3:20 to 3:25pm, while picking her children up from St Peters Public School, Ms Kate Hafey smelled a "rotten egg, farty smelf' that gave her a tight chest feeling, like her throat was closing up. The smell made Ms Hafey feel unwell and short of breath. Ms Hafey had an asthma attack. Ms Hafey observed her youngest child have an asthma attack as well. Her other child was also wheezy.
93 During the day, Ms Carol Anne Russell of 10 Campbell Avenue, Alexandria detected an odour entering her house, being a sulphuric, rotten egg smell. Later in the afternoon the smell became very strong, very obnoxious (making one person at her residence think their colostomy bag had broken. and causing that person considerable embarrassment). Around 6pm the smell was again very strong, very noxious.
94 Throughout the day, the winds were recorded as being from the south or from the south to south-west and from the south-west at about 6:00pm. Ms Regan's premises and the school are located to the north of the Premises. Ms Russell's is located to the north-east.
95 At 5:26pm Mr Scarf sent an email to persons including Mr O'Leary stating that "odour is strong today and it is likely we will have to self report again...".
96 From 5:50pm to 7:15pm SEMA conducted an odour survey. At a location on Campbell Road, Alexandria downwind of the Premises, odour was detected at 4 to 7 units with a nasal ranger. The odour smelled of black water, compost and sulphides through to leachate tones towards Euston Road, Alexandria. The wind was south to south-west at the time.
97 A foreman's report notes that in the shift 5:15am to 6:00pm on 27 April 2017, 6 EPS staff were onsite, with one from subcontractor JCM. The report notes "fought with the odour until 8pm and finally got it under controf".
98 According to the Foreman's Diary, Easman (Supervisor/Foreman), Guenther (Engineer) and Lehman (Leading Hand 2) were on site. Charles Scarf was conducting odour monitoring around the perimeter of the site and in the suburb on 27 April 2017. He cannot recall if he went on site to observe the odour.
99 At about 11:00am on 28 April 2017, Mr Scarf called the Pollution Line number and reported an odour greater than 2 odour units on Campbell Road at St Peters, starting at 6:15pm on 27 April 2017.
100 On 28 April 2017, Mr O'Leary sent an email to various persons, copying in Mr Scarf. The email stated in relation to the previous day's odour:
"The contributing factors are:
1. Some of the leachate that is perched in the intermediate riser found its way to the surface after lunch yesterday.
2. The issue was compounded by our odour cannon being broken down at the same time.
4. The odour became a problem around 3pm yesterday afternoon as identified by the site team but we were not fully aware of the external goings on.
5. We fixed the breach with the intermediate riser and applied chemical dosing to the exposed leachate.
6. The de-oderising spray system along Canal road boundary were [sic] still in operation.
7. The odour persisted as a problem to about 8:00pm .. ."
101 On 28 April 2017, CPB provided a written report under the Licence (Attachment J).
102 The CDSJV stated "... as we excavate areas on this very large site, we will find pockets of unexpected leachate. We act on this immediately but odour may already have been released; the odour can be pervasive and linger after our controls are in place. We expect that other areas of leachate may be encountered on which we will act immediately to mitigate."
103 The CDSJV later prepared a power point presentation which states "date: 27 April; odour readings: 15 and missing; cause: leachate outbreak from near intermediate riser; comments: outbreak was capped and backup odour cannon sourced from Melbourne."
104 At a planning meeting on 27 April 2017 between CDSJV and EPS, the planned works from 27 April 2017 were the placing of waste on T2 from Cut 2, among other works. No works are identified at the Intermediate Riser. During interview, Mr Scarf stated that the location of the leak was not subject of active works.
Charge 2: 23 May 2017
105 On the morning of 23 May 2017, EPA officers attended the boundary of the Premises and observed two large pools of water at the Leachate Pooling Point of the waste cut.
106 The EPA officers carried out an odour survey between 10:30am and 11:45am. During the survey the officers almost circumnavigated the Premises. Between 10:57am and 11:06am while on Canal Road, EPA officer Ms Alex McGuirk detected an offensive odour (rated 4 on the 6-point scale) that made her feel sick in the stomach and that would preclude ordinary activities like eating lunch at the location. It irritated her eyes and breathing as well as her appetite. Mr Mark Jansons of the EPA also detected an offensive odour at about 11:06am, persisting for the time he was at the location (that is, one minute). At the time the wind was relatively still, with gusts from the northwest.
107 The EPA officers entered the Premises at about 12:10pm to 1:15pm and smelled a an odour similar to and of the same nature as the odour detected on Canal Road. The smell on the Premises was emitted from pooled leachate in the vicinity of the Leachate Pooling Point, there scoring it 4 to 5 then 5 to 6 on the 6-point scale. The odour was much stronger, more offensive and more consistent than it was on Canal Road. The pooled leachate on the Premises was the source of the offensive odour on Canal Road. The wind was recorded as being from the west to south-west at this time. Photographs of the source of the odour, being leachate pooled near the Leachate Pooling Point on 23 May 2017 are at Attachment K.
108 At 11:20am, Mr Jack Murray of EPS conducted odour surveys on the Premises. Mr Murray detected an odour at 2 units using a nasal ranger at the "cut and cover" (being a location adjacent to T2) that was very strong but intermittent.
109 At about 12:00pm a meeting was organised by Mr Scarf by email. The email states that "one of the areas of concern was the leachate sump with no free water on top but rather sludge. In the base of Cut 2 groundwater was visible. Jay Eastley called EPS and had the area filled with waste."
110 At about 12:10pm, EPA officers had a discussion with CPB employees including Mr Scarf while onsite. Mr Scarf said words to the following effect: "the waste has only a very faint odour. Leachate management is the issue."
111 At 4:20pm an employee of CPB, Mr Paris Spellson, who had been trained by SEMA in odour detection, recorded a leachate odour at 2 to 4 units using a nasal ranger. At that time the wind was from an east north-east, to north-east direction.
112 A shift report from 5:15am to 6:00pm recorded that "Water now prevalent in all cuts". Mr Easman was listed as the supervisor/foreman. Three employees of EPS, 8 employees of Antquip and 1 employee of Hibbs are recorded as onsite.
113 In interview, Mr Scarf recalled that perched leachate had been encountered throughout April and May that was not collected by the leachate collection system. On 23 May 2017, he observed leachate in the base of Cut 2 but only sludge on top of the Leachate Pooling Point.
114 On 30 May 2017, CPB provided a report to the EPA under the Licence (Attachment L).
115 The CDSJV stated ".. .as we excavate areas on this very large site, we will find pockets of unexpected leachate. We act on this immediately but odour may already have been released; the odour can be pervasive and linger after out [sic] controls are in place. We expect that other areas of leachate may be encountered on which we will act immediately to mitigate."
Charge 3: 26 May 2017
116 At about 9:30am on 26 May 2017, Ms Regan went to Sydney Park. She was in charge of taking children from a local school to participate in a school zone cross-country carnival. Early on during the day, Ms Regan experienced a heavy, dense, rotten egg smell that got stronger throughout the morning. The odour made Ms Regan feel nauseous and like she wanted to leave the park.
117 According to her, the children complained about a rotten egg smell. At about 11:05am Ms Regan made a complaint to the EPA stating her children, who were attending the Sydney Park School Zone Cross-Country race had complained about a rotten egg smell, and that there were lots of children attending the carnival. Ms Reagan went on to describe the odour as overpowering rotten eggs/ faeces and in her view had a strength of 6/6. Ms Regan left the park at about 12:30pm.
118 At 12:52pm, Ms Aubrey of Silver Street, St Peters sent an email to the EPA complaining of the "filthy smell emanating from St Peters WestConnex site".
119 During the day, Ms Hafey detected an overpowering smell in her home at Tempe and at her children's school, St Peters Public School. Ms Hafey also detected a smell at around 2:30pm, which entered her car whilst waiting at the Canal Road and Princes Highway intersection, despite the windows being wound up. The smell was a rotten egg/burnt toast smell. She was affected, having a feeling of revulsion, a tight chest and some nausea. It made her feel unwell and queasy. A roofer who was due to do some work at Ms Hafey's home had left without completing the work because of the smell.
120 The wind was recorded as being from the west to south-west up to 10:30am, then changed direction to be from the south, south-east after that (noting that the Leachate Pooling Point at the Premises was located to the east of Sydney Park).
121 At 2:41pm the CDSJV sent an email to members of the community stating "over the past week there has been intermittent release of odour from the landfill. We're continuing to implement measures such as the leachate capture systems and misting/odour suppressant to minimise impacts to the local community. Once again, we apologise for the discomfort the odour is causing and thank you for your patience while we remediate the landfill and build St Peters interchange."
122 Between 3:18pm and 4:30pm, EPA officers conducted an odour survey. The officers circumnavigated the Premises. The EPA officers did not go onto the Premises. The EPA officers detected an offensive odour on the boundary of the premises at Church Street/Campbell Street (scored at 5 on the 6 point scale) and along the Princes Highway from Campbell Road to the carparks (being 4 to 5 on the 6-point scale). Ms McGuirk described the odour as the most offensive odour she has experienced and identified the source as a low point within the waste cut on the Premises. Ms McGuirk marked a photograph of the Premises (previously taken by Ms McGuirk on 23 May 2017): two 'pools' of surface liquid in the waste cut in pink as the low point she identified as the source of the odour. The marked photograph is Attachment M.
123 The odour detected at the Fitness Empire, downwind, was scored a 3 out of 6 on the 6-point scale by the EPA officers, but not above the offensive odour-threshold.
124 At 4:40pm the wind was southerly according to the Sydney Airport weather station and the onsite weather station, but still locally variable with gusts.
125 At 4:40pm to 6pm SEMA carried out odour surveys and did not detect odours associated with the Premises, other than at two locations which were downwind of the Campbell Road/Princes Highway corner of the Premises. At those locations, odour was detected at 4 units and at 4 to 7 units on a nasal ranger. The wind was from the south at the time. These odours were characterised as "PAH, tar, mercaptan and grey water characteristics; and as sewer/black water and grey water, sulphides and occasional odorant."
126 The foreman's report for the night shift (5:15 am to 6pm) on 26 May 2017 records that "the dam in cut 4 overflowed, pumps turned off, spray systems moved around, leachate covered in sand, Anotec deployed onto roads and Rusmar sprayed on all of the standing leachate that we could reach." Labour onsite was recorded as 3 persons from EPS and 5 from Antquip.
127 Easman (Supervisor/Foreman) and Guenther (Engineer) were on site on 26 May 2017.
128 At 8:01pm, Mr O'Leary sent an email stating "the pooled leachate the EPA is asking us to cover is our pumping sump. We were moving the location of the sump today. We were doing nothing today that was significantly different to what we explained in the phone hook up... there was an odour on Canal Road today but at a low level (maybe a 4 on the scale)."
129 According to Mr Binstead, CPB's Senior Project Engineer, it was the CDSJV team that moved the sump on 26 May 2017.
130 At 8:36pm on 26 May 2017, Mr Victor Sanflieu sent an email to Mr O'Leary stating:
"If we cover all leachate ponds, there is two consequences
1. We can't excavate in cut 2. On the contrary we will have to fill. This means a 4-6 week delay minimum in starting the driven piles....we are currently pumping from the leachate pond to cut 4, and there are symptoms we are saturating the area too. lf we stop pumping, leachate water will arise anyway in the C&C area, and that delays the whole of WestConnex stage 2 program. Until we drop the current underground water levels (and that is months away) it is difficult to have zero leachate ponds."
In referring to "leachate ponds" Mr Sanflieu was referring to pooled leachate.
131 In interview, Mr Scarf stated that leachate was flowing from waste in Cut 2 and Cut 3. Waste was placed in low areas of the cuts to displace the leachate towards the drainage channel and sump.
132 On 1 June 2017 CPS provided a report to the EPA under the Licence (Attachment N).
133 The CDSJV stated "we are currently excavating the landfill and unfortunately continue to expect to encounter leachate which emits odour."
134 CDSJV later prepared a power point presentation which states "26 May, odour readings: 4 and 7, cause: relocating leachate sump to improve capture; comments: works to improve leachate capture and reduce future odour risk."
Charge 4: 9 June 2017
135 On 9 June 2017, at about 8:45am, Ms Hafey smelled a foul smell during school drop off at the school at St Peters. Ms Hafey described it as a rotten egg smell with air freshener over the top and burnt toast as well. The odour was very strong almost to the point of nauseating. Ms Hafey called the EPA at 9:27am to make a complaint. She rated the odour at 3 out of 6.
136 The wind was recorded as from the south south-east at the time and was recorded predominantly from the south to east all that day.
137 During the day, Ms Rebecca Louise Clarke at 26 Silver Street, St Peters, detected a continuous stink that gave her a headache. Ms Clarke worked from home as a music tutor. She complained by email at 11.37pm on 9 June 2017 that "[t]here has been a horrible stench coming and going from the Westconnex sight [sic] at Canal Rd. This week it is close to unbearable. I have developed a cough and have been getting headaches. I believe it's due to the stench, as I never get headaches and rarely get sick. Lot's of my neighbours are having similar symptoms and also can't stand the smell... How Jong will this foul stench be emanating and what can be done about it?"
138 Ms Aubrey, at the same location, also detected an odour that filled her home with a stench, giving her headaches, watery eyes and a sinus infection.
139 At 10:35 am Mr Jack Murray of EPS detected a leachate odour less than 2 units on a nasal ranger at McDonalds, affected by the wind conditions which were swirling at the time.
140 EPA conducted an odour survey during the afternoon. The EPA officers circumnavigated the Premises. At about 2:42 pm, EPA officers observed a strong offensive odour at 187 Princes Highway near the Anglican Church, as well as at 178 Princes Highway at the IBIS Hotel and at Fitness Empire. The odour was an offensive leachate/rotten egg odour that made the EPA officers feel uncomfortable and want to leave the area. The odour was persistent over about 15 minutes. The EPA officers considered it would be very unpleasant to have lunch with the odour present. According to the EPA officers, the wind was gusty and from an easterly direction at the time. There was no odour detectable at the corner of Canal Road and the Princes Highway.
141 At 3:25pm EPA officers observed water pooling on several locations at the Premises and leachate flowing from the "old waste cell" towards the Leachate Pooling Point. Attachment O is a photograph of the leachate flowing to the Leachate Pooling Point area, accompanied by a second aerial image in which the Leachate Pooling Point is circled. The odour was emitted from leachate flowing to and collecting at the Leachate Pooling Point. The odour cannon was functional. There was no cover on the Leachate Pooling Point. At 3:40pm the EPA contacted CPB to inform it of the pooled leachate and offensive odour.
142 At 3:50pm to 5:00pm, SEMA carried out an odour survey. At the time the whole of the Premises seemed to be inundated with water due to rainfall. The survey detected no odours at all sites, other than an odour below 2 units at one site. The wind was south south-east at the time.
143 In interview, Mr Scarf stated that the cause of the event on 9 June 2017 was high rainfall on 7 and 8 June 2017. According to Ms Batch, both the CDSJV and EPS carried out works in the period 6 to 9 June 2017. According to CPB's onsite weather station, about 36mm of rain fell on 7 and 8 June 2017.
144 CDSJV stated on 9 June 2016 that "due to heavy rain in the last few days a significant amount of rain has fallen into the Alexandria landfill which may create the potential for odorous leachate". CDSJV also stated that "as we excavate the landfill we encounter pockets of leachate which emits odour".
145 On 23 June 2017, CPB provided a report under the Licence (Attachment P).
HARM
146 The offences caused actual harm as summarised in the table below and referred to in the identified paragraphs of these facts, and detailed in the accounts of community members below:
Table Four: Harm
Offence Date Impact Type Paragraph Reference
27 April 2017 Community members: Almost vomiting, tight chest, asthma attacks, short of breath, feeling unwell, wheezy, very strong and obnoxious smell in home, embarrassment, [91]-[93]
Odour at 4 to 7 units according to SEMA off the Premises. [96]
23 May 2017 EPA: Feeling sick in the stomach, affected eyes, breathing and appetite. Rated 4 off the Premises and up to 6 on the Premises on the 6-point scale. [106]-[107]
Odour at 2 to 4 units according to CPB employee. [111]
26 May 2017 Community members: Nausea, feeling of revulsion, tight chest, overpowering smell in home and at local school, smell inside car with windows wound up, athletics carnival involving lots of children impacted. [116]-[119]
Most offensive odour experienced. Comfort and repose impact. Rated up to 6 on the 6-point scale off the Premises. [122]
Odour at 4 to 7 units according to SEMA off the Premises. [125]
9 June 2017 Near nausea, at home, almost to the point of nauseating at local school. [135], [137]-
[138]
Comfort and repose impact. [140]