Environment Protection Authority v Crown in the Right of New South Wales - [2019] NSWLEC 178 - NSWLEC 2019 case summary — Zoe

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Environment Protection Authority v Crown in the Right of New South Wales

[2019] NSWLEC 178

Land and Environment Court (NSW)|2019-11-11|Before: Duggan J, Ms J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-11-11

Before

Duggan J, Ms J

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

Judgment

The Defendant is the Crown in the Right of New South Wales. The Crown is a corporation sole. The proceedings concern the then Office of Environment and Heritage (OEH). At all times the OEH was a public service agency, related to what is now the Department of Planning, Industry and Environment.
The Defendant operates the Perisher Sewage Treatment Plant (the STP) located within the Kosciuszko National Park and holds an Environmental Protection License (EPL) regulating the operation of the STP.

[2]

Nature of charges to which guilty pleas entered

The Defendant has pleaded guilty to the commission of two offences: 1. Proceedings 2019/10492 (the Licence Breach Offence) - that on or about 2 April 2018 at or near the STP, North Perisher Road, Perisher Valley, it committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in that it was the holder of a license, a condition of which was contravened by it, being condition O2.1 of Environmental Protection License number 1797 (Exhibit A) (the License); 2. Proceedings 2019/104593 (the Pollute Waters Offence) - that between 2 April 2018 and 12 April 2018 it polluted waters, being Perisher Creek, by discharging treated sewage effluent containing aluminium contrary to s 120(1) of the POEO Act.
Both offences relate to the same event being the discharge of a quantity of treated sewage that contained an amount of aluminium chlorohydrate (ACH) which is a dosing agent employed by the Defendant in the STP as a means to reduce phosphorus to a level below which it is permitted by the License to discharge into Perisher Creek. The License prescribed the level of phosphorus that was permitted to be discharged to Perisher Creek, however, the License provided that no substance other than those nominated were permitted to be discharged from the STP and therefore no level of aluminium (that is the constituent component of ACH) was permitted to be discharged to Perisher Creek: the License condition L3.3.

[3]

Usual STP operations

The Defendant is the operator of the STP located at North Perisher Road, Perisher Valley, within the Kosciuszko National Park. The STP has been in operation since the 1980's. The STP operates pursuant to an EPL that permits it to discharge effluent treated at the STP into the adjacent Perisher Creek.
The STP, being located in an alpine environment within a national park, means that it operates under different conditions depending upon the season. In summer the inflows into the STP are less as the population in the locality is less and it can operate with lower staffing levels. In winter there is a significant population increase with consequential increased inflows into the STP that is also covered in snow. The winter months require different operating systems to be implemented (such as a heating system that can maintain the effluent in a liquid form) and also requires increased staffing levels. The STP has been designed to be operated in all of these anticipated weather and population conditions.
The STP operates both a primary and secondary treatment system. The primary treatment of sewage is the screening process. Thereafter, the screened sewage undergoes a secondary treatment process that comprises aeration in aeration tanks that results in solid and liquid separation, thereafter, the solids settle out at the bottom of each aeration tank. Settlement is achieved by the application of a blanket of biologically active sludge, aeration by blowers and the chemical dosing of ACH. This secondary treatment results in a reduction of carbon based organics, nitrogen and phosphorus.
The secondary treated effluent is decanted from the aeration tanks into a decant channel and then into a catch balance pond. The catch balance pond detains the treated effluent for a period of time to permit the solids to settle out and to remove the phosphorus precipitated by the ACH dosing. If the effluent is not of sufficient quality to release it can be returned to the STP for further treatment from the catch balance pond. If the effluent is sufficiently treated it can be released from the catch balance pond via a UV filter into Perisher Creek.

[4]

ACH dosing

Sewage is chemically dosed with ACH in the treatment process for two purposes: 1. To reduce the concentration of phosphorus to levels below that permitted by the License for release into Perisher Creek; and 2. To encourage settlement of solids such that treated effluent released into Perisher Creek will be below the level of suspended solids permitted by the License.
The ACH binds with the phosphates and solids and settles out of the treated effluent prior to discharge. As a consequence the constituent component, being aluminium, is collected as "sludge" either in the aeration tanks or the catch balance pond and is processed prior to disposal off site.
The ACH is added to the sewage in two stages during secondary treatment. First, it is added at the point the screened (primary treatment) is diverted to the secondary treatment via one or two dosing pumps before the sewage enters the aeration tanks. This first dose is intended to reduce the phosphorus to 1mg/L (the Primary Dose). Secondly, it is added in the decant channel via one to three dosing pumps prior to the catch balance pond holding and later release into Perisher Creek. The second dose is intended to reduce the phosphorus to less than 0.3mg/L (the Secondary Dose).
The Primary and Secondary Doses are generally automatically dosed. However, the dosing can be manually adjusted by the STP operators. Manual dosing is not a usual event, but it does occur, on occasion, when the input variables of the incoming sewage or the reaction in the catch balance pond require.
In order to determine the quantity of ACH to be manually dosed in any given circumstance a "jar test" is undertaken which creates a simulation of the effluent to be dosed to determine the quantity of ACH to be added. Then a "drop test" is undertaken to determine the quantity of ACH that is being provided by a dosing pump to determine the amount of time the pump will be required to run to provide the quantity of ACH determined by the jar test.
Historically, ACH was introduced as the dosing agent at the STP on about 1 July 2016 after investigation of its qualities and performance. Prior to that time aluminium sulfate (Alum) was used as the dosing agent. ACH is approximately three times stronger than Alum and therefore less is needed to achieve the same results (about 30-50% of the Alum dose is now used).

[5]

Circumstances surrounding the offences

The relevant parts of the SOAF that set out the circumstances of the incident are: 2 April 2018 35. On 2 April 2018: a. Peter Mylan, an operator at the STP, was present at the STP. Mr Mylan was the only staff member physically working at the STP; and b. Mr Mylan's supervisor, Mr Scarlett, was present at the NPWS office in Perisher. 36. Mr Mylan telephoned Mr Scarlett to inform him that the level of phosphorus in the catch-balance pond was 0.28mg/L. This concerned Mr Mylan because the target level for phosphorus in the catch-balance pond is 0.2mg/L, to ensure that the 90 percentile limit set by the Licence, of 0.3mg/L of phosphorus, is not exceeded when the effluent is discharged to Perisher Creek. Effluent was being discharged from the STP to Perisher Creek on 2 April 2018. 37. Mr Mylan and Mr Scarlett discussed the problem and concluded that Mr Mylan should carry out manual dosing of ACH by adjusting the Secondary Dose. When questioned in a record of interview (ROI) on 26 September 2018, Mr Scarlett said he believed that he instructed Mr Mylan to carry out this manual dosing by turning two dosing pumps at the Secondary Dose on to manual for 30 minutes. Mr Mylan, when questioned in a ROI on 26 September 2018, said that he could not remember how many dosing pumps Mr Scarlett told him to turn to manual, but that he did remember that Mr Scarlett told him to carry out manual dosing for 30 minutes. 38. Neither Mr Mylan nor anyone else conducted a jar test or a drop test to determine the quantity and rate of ACH to be manually dosed. As to why he did not conduct a drop test, Mr Mylan said, when questioned in a ROI on 26 September 2018, "I guess I was just in a hurry to beat the decant" of one of the aeration tanks into the catch-balance pond, due to occur at 12pm, which meant that he considered that he did not have time to do the drop test. The benefit of carrying out manual dosing before or during the decant is that the ACH will mix in to the effluent as it is decanted from the aeration tanks to the decant channel and does not need to be manually mixed in. 39. At approximately 12pm, Mr Mylan switched all three dosing pumps at the Secondary Dose to manual. Mr Mylan switched all three dosing pumps to manual because that was what he had done previously when Alum was used for chemical dosing at the STP. In respect of the rate at which the ACH was being manually dosed, Mr Mylan has said "[p]retty sure [the pumps] were all on a hundred percent". The rate at which the dosing pumps should dose ACH cannot be determined without conducting a drop test. 40. Between 12pm and 1:20pm, Mr Mylan: a. left the STP to have lunch; and b. on the way back to the STP after having lunch, was asked by Mr Scarlett to undertake another task. This task involved pulling water through a hydrant that was on Mr Mylan's way back to the STP. 41. Mr Scarlett was aware that Mr Mylan had left the STP after commencing manual dosing and that Mr Mylan was the only operator on duty that day at the STP. 42. At some point between 1pm and 1:20pm, after Mr Mylan arrived back at the STP, he turned all three dosing pumps at the Secondary Dose off. Mr Mylan did not consider that it was a problem that he had left the dosing pumps on for longer than 30 minutes, based on his experience using Alum for chemical dosing. 43. OEH have estimated that, on 2 April 2018: a. approximately 208 litres (L) of ACH were added to the decant channel during manual dosing; b. by the time the three dosing pumps at the Secondary Dose were switched off, there were 39.3 kilograms (kg) of aluminium in the catch-balance pond (equating to 48.5 mg/L) (Overdose of ACH); and c. 4.4kg of aluminium was discharged from the STP to Perisher Creek. … 45. There is no record of Mr Mylan, nor anyone else, retesting the effluent in the catch-balance pond on 2 April 2018 to determine whether the manual dosing of ACH had lowered the level of phosphorus in the catch-balance pond. 3 April 2018 46. On 3 April 2018, when Mr Mylan arrived at the STP, he noticed that there was white foam on top of the catch-balance pond. Mr Mylan reported the presence of this foam to Mr Scarlett and Mr Scarlett instructed Mr Mylan to turn the catch-balance pond off and to remove the foam using a pool scoop. The effluent underneath the foam was clear in appearance, so staff at the STP considered that it was suitable for discharge and the catch-balance pond outlet was re-opened that afternoon. The staff considered that the foam on top of the catch-balance pond was foam from one of the aeration tanks and unrelated to the Overdose of ACH. … 51. On 5 or 6 April 2018, during a discussion about operations at the STP, either Mr Mylan or Mr Scarlett mentioned the Overdose of ACH to Robert Naisby, Senior Engineer at the STP. … 54. On 13 April 2018, at approximately 3:33pm, ALS sent an email to Ryan Petrov, Manager of Southern Ranges Services for NPWS, providing the results of the samples taken by staff at the STP on 4 April 2018 and analysed at ALS's laboratory. 55. On 16 April 2018: a. in the morning, Mr Petrov, read the email that was sent by ALS on 13 April 2018; b. at approximately 11:37am, Mr Naisby sent an email to Carlie Armstrong of the EPA stating that: i. OEH had exceeded the 90-percentile concentration limit set by the Licence for total suspended solids; and ii. this exceedance had been caused by the Overdose of ACH. A copy of this email is at Tab 7; and c. at approximately 11:54am, Angus Adair of the EPA called Mr Naisby to discuss the Overdose of ACH. Mr Naisby told Mr Adair that the results provided by ALS of samples taken on 4 April 2018 showed that there was 4.34 mg/L of aluminium in Perisher Creek, downstream of the STP.

[7]

Statutory matters required to be taken into account in sentencing

For the purposes of sentencing in this matter the following factors as provided for in s 21A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) are relevant: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters - (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (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 or Division 1A), (m) assistance by the offender to law enforcement authorities (as provided by section 23), … (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.
In addition, the provisions of s 241 of the POEO Act require the following relevant matters to be considered in sentencing: 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.

[9]

Nature of offences and maximum penalty

Each of the offences arises under the provisions of the POEO Act that, for the purposes of the consideration of sentence in these proceedings, relevantly includes as its stated objects: 3 Objects of Act The objects of this Act are as follows: (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, (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, … (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, … These relevant objects reinforce the public protective nature of the legislative regime and the essential role that the regulation of pollution - through the licensing regime and the prohibition on nominated types of pollution outside that regime (such as the pollution of waters) - plays in achieving those objects.
Each of the two offences are strict liability offences and carry the maximum penalty for a corporation (which was agreed relevantly includes the Defendant) of $1,000,000: s 64(1)(a) and s 123(a) of the POEO Act. The strict liability nature of the offence and the quantum of the maximum penalty are indicators of the public expression by Parliament of the seriousness of the offence and the gravity of the offences as perceived by the community: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at 698.
In addition, there is a need for strict compliance conditions imposed upon an EPL, as the licensing regime is a system of 'authorised pollution' and the failure to observe the conditions imposed upon such authority will undermine the achievement of the objects of the POEO Act and the legislative intent of managing the discharge of pollutants into the environment: Environment Protection Authority v Orica Australia Pty Ltd [2014] NSWLEC 103 at [204]; Environment Protections Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Ltd [2017] NSWLEC 89 at [37].

[10]

The extent of the harm caused or likely to be caused to the environment by the commission of the offence: s 241(1)(a) POEO Act

The POEO Act contains in the dictionary the following relevant definitions for a consideration of this aspect of sentencing: 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. environment means components of the earth, including: (a) land, air and water, and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)-(c).
These defined terms raise wide ranging considerations relating to this aspect of sentencing. It is to be noted that where a Prosecutor contends that a particular sentencing consideration should be treated as an aggravating feature it must establish by evidence, beyond reasonable doubt the presence of such aggravating factor. Where a Defendant contends for the presence of a mitigating factor in sentencing it must establish the presence of such factor on the balance of probabilities: EPA v Sydney Water Corporation [2019] NSWLEC 100 at [131].
In the SOAF it was agreed: Environmental harm The pollutant 75. Between about 2 April 2018 and 12 April 2018, effluent containing aluminium was discharged from the STP into Perisher Creek (Aluminium Discharge). Perisher Creek is located in an area of high conservation and ecological value, based on the Australian and New Zealand guidelines for fresh and marine water quality (ANZECC Guidelines). 76. On 4 April 2018, the concentration of total aluminium in Perisher Creek, at Perisher Creek D/S, approximately 60-70m downstream of the STP, was 4.34mg/L. This is more than 100 times the "Guideline value" set by the ANZECC Guidelines of 0.027mg/L of aluminium (Guideline Value) for 99% of species protection for pristine environments. However, the concentration of total aluminium at Perisher Creek U/S on 4 April 2018 was 0.08mg/L, which suggests that the concentration of aluminium in Perisher Creek is naturally higher than the Guideline Value. If the concentration of aluminium exceeds the Guideline Value, then there is the potential for environmental harm. 77. The Guideline Value is based on dissolved aluminium, not total aluminium. The concentration of dissolved aluminium is generally considered to be the bioavailable form of the metal, most likely to cause toxicity. The concentration of total aluminium and dissolved aluminium may be the same or may be different, depending on the chemistry of the water. The concentration of dissolved aluminium in samples taken from the water of Perisher Creek was not analysed, so it cannot be determined whether the total aluminium measured was in the dissolved phase or not. Impact 78. The potential for environmental harm in Perisher Creek due to the Aluminium Discharge occurred between 2 April 2018 and 8 April 2018, as the STP did not discharge effluent from the catch-balance pond on 9 April 2018 and the estimated concentration of aluminium in the effluent being discharged from the STP was <1mg/L by 9 April 2018. 79. Given that the Aluminium Discharge only became known to OEH and the EPA on 16 April 2018, sampling could not be carried out to determine if the Aluminium Discharge caused actual harm to the waters of Perisher Creek. 80. The Aluminium Discharge caused the level of aluminium in Perisher Creek, up to 60-70m downstream of the STP, to rise to a level known to cause toxicity to a range of aquatic organisms including crustaceans. 81. However, because the concentration of dissolved aluminium was not analysed, it is difficult to determine the potential for harm to the environment by the Aluminium Discharge. 82. From about 2 April 2019 to 8 April 2018, there was potential harm to the environment from the elevated total aluminium and suspended solid concentrations from the Discharge Point to Perisher Creek D/S (a distance of approximately 60m-70m). Increased suspended solids and precipitated aluminium could have toxic effects to aquatic organisms through physical effects such as smothering and clogging of respiratory mechanisms. However, these effects could also have been caused by the presence of suspended solids in Perisher Creek. 83. It is unlikely that potential harm to Perisher Creek could have occurred after 8 April 2018.
The Prosecutor submitted in its written submissions (PS) at PS [29]-[30] that such agreed facts demonstrated that there was both a likelihood of harm and actual harm in that the incident caused the level of aluminium in Perisher Creek to rise to a level known to cause toxicity to a range of aquatic organisms. It further submitted that whilst there was no evidence of actual harm to aquatic organisms there was a likelihood of such harm. In its address on sentence the Prosecutor further stated that the actual harm upon which it relied was the pollution by aluminium in the waters which by the definition of harm (recited above) constitutes actual harm as it comprises an act or omission that results in pollution. The Prosecutor submitted that the actual and the likely harm was an aggravating factor in the License Breach Offence (I note that no such submission was put in respect to the Pollute Waters Offence).
The Defendant accepted in its written submissions (DS) that there was a likelihood of harm as agreed in the SOAF and that the levels of aluminium in Perisher Creek were at potentially toxic levels (DS [49]) but disputed the reliance of the Prosecutor on actual harm. It submitted that there was no such evidence and therefore could not be treated as an aggravating feature.
In this case it is agreed by both parties that the primary reason why it was impossible for the Prosecutor to identify any actual environmental harm (apart from that submitted above) was that by the time the EPA was notified of the breach (on 16 April 2018) any consequence of the breach would have already dissipated. As a consequence of the inability of the EPA to investigate actual harm no evidence to the requisite standard can be adduced by the Prosecutor. It is for that reason that there can be no evidence of actual harm. It cannot be said that, upon investigation, there was no evidence of actual harm.
For that reason alone I am unable to find as an aggravating feature of this offence that there was any actual harm. The absence of evidence of actual harm, however, cannot in the circumstances of this case be seen as a mitigating factor, as the inability to assess the actual harm does not support a positive finding that the upon proper investigation there was no evidence of actual harm.
Therefore, in both of the charges, I find that there was a likelihood of harm in the manner and to the extent agreed in the SOAF, but no evidence of actual harm. I find that the likelihood of harm is low due to the limited period of time any likely effect would have been present and the limited physical extent of the creek likely to be impacted by the presence of the aluminium. I find that the likelihood of such harm is an aggravating factor. I do not find that in the circumstances of this case that no evidence of actual harm is a mitigating factor.
To the extent the Prosecutor submitted that the presence of aluminium in the waters of Perisher Creek is evidence of actual harm, I do not consider the presence of the pollutant to be a matter I can take into account in the circumstances of this case as an aggravating factor. The presence of the aluminium in Perisher Creek as a pollutant is an essential element of the s 120(1) offence and an element of establishing the breach of the condition in s 64(1) and therefore should not also be considered an aggravating factor in this case: s 21A(2) CSP Act; R v Johnson [2005] NSWCCA 186 at [22].

[13]

Control over causes

I find, on the evidence in the SOAF, that there were a number of direct reasons why the event occurred on the day in question, in particular: 1. Inadequate training of STP staff as to the manual dosing with ACH, and in particular the training of Mr Mylan (who was the only operator at the STP on the date of the offence); 2. Failure to carry out (or to be directed to carry out) a jar test or a drop test to determine the quantity and rate of ACH dosing required; 3. Failure of the operator to remain at the STP during the period of manual dosing or to limit the period of the manual dosing to 30 minutes as authorised; 4. Failure of the supervisor, after giving the direction to manual dose, to ensure that the dosing was undertaken properly - both in respect to the pre-dosing testing regime and the length of dosing required.
There is also an indirect cause of the events on the day, namely the failure to provide to STP operators an updated OEMP which detailed the requirements for manual dosing using ACH. The failure to update the OEMP such that the only available guide to the operator were details relating to the use of Alum - that was discontinued when replaced by ACH as a dosing agent in 2016.
There are also a number of direct and indirect causes that allowed the breach to go undetected by the Defendant: 1. The failure of the Defendant to have on site a relatively inexpensive and accessible means of testing the level of aluminium in the catch balance pond prior to discharge; 2. The failure of Mr Scarlett, who was the officer who directed the ACH to be manually dosed, to require action or investigation upon becoming aware the day after the incident that there was "foam" on the catch balance pond; 3. The inaction of the senior engineer, Mr Naisby, to undertake any further action or enquiry or report to the supervising officer (Mr Petrov) the dosing incident when he was advised of it on 5 or 6 April 2018; 4. The failure to immediately consider the testing results when received by a single officer in his email inbox (on Friday) until the following Monday; 5. The failure of Mr Mylan to record on the "Daily Operational Record" Sheet the manual dosing with ACH. The failure of the operations sheet to provide for details of dosing with ACH and the continued reference on those sheets of the use of Alum which had ceased; 6. Failure of a system of checking on or after manual dosing had been approved by a supervisor to ensure that dosing was undertaken in accordance with pre-dosing tests and in accordance with directions; 7. Failure of the officer giving the direction to manually dose the effluent from keeping any record of his direction or reporting what is accepted to be an unusual occurrence to other senior officers; 8. Failure to communicate to superior officers that manual dosing had occurred so that testing could be checked immediately (or additional testing undertaken) or to respond to unusual occurrences at the STP such as the presence of "foam" on the catch balance pond.
If the breach was detected earlier the discharge into Perisher Creek could have been prevented, or at least the quantity of aluminium could have been significantly reduced by, for example, the measure agreed at SOAF [53]: 53. OEH did not do anything to rectify or mitigate against the effects of the Overdose of ACH, because staff at the STP considered at the time that the effluent in the catch-balance pond was suitable for discharge. OEH: a. did not hold the effluent in the pond temporarily. The effluent could have been held in the pond temporarily for 4-5 days; and b. did not return the effluent in the pond to the STP for treatment to remove the aluminium caused by the Overdose of ACH. Some of the effluent could have been moved from the catch-balance pond to a 1200 kL "sludge holding tank" which had some spare capacity and then reprocessed through the STP.
There were clearly practical measures which could have been taken to prevent or mitigate the environmental harm on the day of the event or the days immediately following the dosing event.

[16]

Voluntary reporting the commission of both offences to the Prosecutor

Both the Defendant and the Prosecutor submit that the Defendant voluntarily reported both offences. The evidence, however, discloses that neither offence was in fact reported and the EPA only became aware of the commission of the offences when it contacted the Defendant.
Paragraph [55] of the ASOF references the reporting in the following manner: 55. On 16 April 2018: a. in the morning, Mr Petrov, read the email that was sent by ALS on 13 April 2018; b. at approximately 11:37am, Mr Naisby sent an email to Carlie Armstrong of the EPA stating that: c. OEH had exceeded the 90-percentile concentration limit set by the Licence for total suspended solids; and d. this exceedance had been caused by the Overdose of ACH. A copy of this email is at Tab 7; and e. at approximately 11:54am, Angus Adair of the EPA called Mr Naisby to discuss the Overdose of ACH. Mr Naisby told Mr Adair that the results provided by ALS of samples taken on 4 April 2018 showed that there was 4.34 mg/L of aluminium in Perisher Creek, downstream of the STP.
The email at Tab 7 of the ASOF relevantly provides information to the EPA in the following terms: Good morning Carlie, We have received our most recent results for samples collected on 4 April 2018 for Perisher STP (Licence no. 1797) showing an exceedance of a licence limit: This is the first exceedance of the 90%ile limit for suspended solids for the current reporting period so does not constitute a non-compliance at this stage. The exceedance was caused by excess secondary Alchlor dosing. Alchlor is dosed direct to the catch-pond, in accordance with the OEMP, to reduce orthophosphate concentration in the final effluent. On 3 April 2018 manual dosing was implemented and overdosing occurred and was visually evidence in the catch-pond. The excess Alchlor contributed to the suspended solids test result.
There are a number of matters to be observed with respect to these communications. Firstly, the Defendant did not report the discharge of the ACH as a pollution event. It is accepted that the Defendant had no License to release ACH into Perisher Creek at any concentration. The express provisions of the License provided: L1.2 The licensee may only discharge untreated or partially treated sewage from the sewage treatment plant and/or the reticulation system subject to the conditions of this licence, including O1 and O2. … L3.3 To avoid any doubt, this condition does not authorise the pollution of waters by any pollutant other than those specified in the table/s. … R2 Notification of environmental harm R2.1 Notifications must be made by telephoning the Environment Line service on 131 555. R2.2 The licensee must provide written details of the notification to the EPA within 7 days of the date on which the incident occurred. Note: The licensee or its employees must notify all relevant authorities of incidents causing of threatening material harm to the environment immediately after the person becomes aware of the incident in accordance with the requirements of Part 5.7 of the Act.
Notwithstanding the prohibition in the License on the release of ACH at any concentration, the email at Tab 7 purports to report a test result relating to suspended solids and notes that the result being reported "does not constitute a non-compliance". Whilst the email goes on to mention the ACH dosing it does so by way of explanation of the suspended solids test result and does not, in terms, report the discharge of ACH into the receiving waters of Perisher Creek in breach of the License and in breach of s 120(1) of the POEO Act.
Secondly, the email does not contain the test report that identifies the aluminium test result such that, without more, the EPA would have been unable to identify the breach. I was advised by the solicitor for the Defendant, that such test results should be attached to a reporting email and that no explanation was available as to why that was not the case for this email.
Thirdly, clearly the test results identified the aluminium level as the Defendant's Senior Engineer, Mr Naisby, was able to provide that level when he received the telephone call from the EPA some ten minutes after the email was sent by him to the EPA. The level of aluminium in the test results and the breaches resulting from the ACH dosing were only disclosed in terms to the EPA upon the EPA making the enquiry in response to the otherwise vague references in the email.
For those reasons I do not consider that the Defendant did in fact voluntarily report the commission of both offences, rather it alluded to the breach and reported it when further enquiries were instigated by the EPA. Such action is not consistent with the Defendant being entitled to a beneficial finding on the contended for self-reporting. However, I do not consider, in light of the circumstances of this case, the failure to report is an aggravating circumstance, as it was open to the Prosecutor to charge the Defendant with a breach of the License condition R2.2 which required the breach to be reported and it has declined to do so.

[17]

Has and is continuing to take action to address the causes of the offences

Both parties submit that the Defendant's actions since the commission of the offence to address the causes of the offence should be considered as factors demonstrating remorse and contrition.
The SOAF outlines the steps the Defendant has taken and continues to take to address the causes of the offence in the following terms: 68. OEH has stated that: a. on 6 June 2018, it conducted "Pollution Incident Awareness Training". All staff who were at the STP on that day attended the training. Two other staff received the training later. This training was conducted primarily because Mr Mylan and Mr Scarlett did not consider the Overdose of ACH to be a potential pollution incident; b. it has carried out a complete review and update of the ACH dosing procedures at the STP. On 6 June 2018, a formal session was held to inform staff who were at the STP on that day of the ACH dosing procedure; c. it is carrying out a review and update of its "Pollution Incident Response Management Plan"; b. in relation to aluminium, it has: i. established target levels for the concentration of aluminium in the final effluent in the catch-balance pond at the STP; ii. purchased equipment to test for the concentration of aluminium in the effluent at the STP at a cost of approximately $1500 - $2000 per year; and iii. trained staff on how to test for the concentration of aluminium in the effluent at the STP, which is being done regularly. Prior to the Overdose of ACH, effluent at the STP was not tested onsite by OEH for aluminium; and c. it arranged for staff at the STP to attend "Hazardous Substances Training", run by PeopleSafe, a workplace safety training provider. This training is aligned to the national competency "TLID2003 - Handle Dangerous Goods and Substances" and covered the handling and storage of chemicals, as well as incident and emergency procedures. This training provided a general overview on working with hazardous substances but did not focus on the specific substances used at the STP, such as ACH, as there are no training courses available that focus on ACH specifically. 69. OEH is also in the process of reviewing and updating the OEMP. This update will include the ACH dosing procedure that was communicated to staff on 6 June 2018.
In addition to the matters recited in the SOAF, Mr Pettitt deposed in his affidavit that: 1. A restructure in 2018 has ensured that decision making in relation to the Perisher STP is now taken at Branch level, rather than from Sydney: [7]; 2. A new position has been created (Manager, Southern Ranges Services) which is to have as one of its "key accountabilities" the management of the municipal services (which I understand to mean including the STP) and that would report directly to him. This position is now held by Mr Petrov:[10]; 3. A review of staffing levels and recruitment programmes have ensured full time permanent staff levels of a minimum of four persons: [11]-[13]; 4. Institution of weekly face to face meetings with Mr Petrov, to gain a greater understanding of the STP, discuss current operations and to explore opportunities for continued operational improvements: [20].
Mr Petrov deposes that in addition to the matters in the SOAF: 1. The update to the OEMP to incorporate a dosing procedure relating to the use of ACH for phosphorus control has been completed and now forms part of the OEMP: [18]; 2. There has been a process review of operations conducted by a number of external consultants and commitments to implement the recommendations of those reviews including the "environmental risk assessment": [21]-[23].
I note that the Defendant submitted to the Court in Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [159]-[163] in mitigation of the offence the subject matter of that decision that a number of responses outlined above were being undertaken in response to the earlier breach. In particular: the review of operating procedures by independent experts; the transfer of the STP responsibility to branch level and face to face meetings; and the review of staffing levels. I also observe that the deficiencies in the OEMP and daily operational records had been noted in that proceeding (for an offence in 2017) as being out of date in so far as it continued to refer to the dosing agent Alum instead of ACH.
I acknowledge that the Defendant is, and is continuing, to seek to implement a long term solution to the risk posed by inappropriate operation of the STP. However, I further observe that, in light of the risk to the environment of inappropriate operations as evidenced by the breach in 2017, the fact that the implementation of at least some of these factors (such as reflecting the change of dosing agent in the daily sheets and the OEMP) has taken until 2019 to complete. This delay indicates a lack of urgency in implementing change that does not reflect favourably on the Defendant. I do not consider this an aggravating factor in this case and I do consider the implementation of considerable changes in staffing and training a positive reaction, there is, however, an expectation, (particularly after two adverse events) that priority will be given to completing the implementation of the identified changes.
I also observe that much of the changes are being focused on the day to day operators at the STP and less attention is being paid to the deficiencies in communication between supervising officers and the ability of the person with ultimate responsibility to be advised and therefore assess and respond to risks when (and in some cases before) they arise. It would benefit the Defendant to ensure that it addressed the higher levels of supervision as well as the "on the ground" workers.

[20]

Prior convictions - s 21A(2)(d) CSP Act

The SOAF notes that the Defendant has 3 prior convictions in relation to its operation of the Perisher STP. The agreed summaries of those convictions as noted in the SOAF are: 71. On 19 April 2002, the Crown in the Right of New South Wales (specifically NPWS) was convicted of an offence under s 120 of the POEO Act in respect of the STP, fined $20,000 (against a maximum penalty for a corporation of $250,000) and ordered to pay the prosecutor's costs of $30,000: Environment Protection Authority v New South Wales [2002] NSWLEC 52. 72. On 6 May 2010, OEH (then named the Department of Environment, Climate Change and Water) was convicted of an offence under s 64(1) of the POEO Act in respect of the STP, fined $80,000 (against a maximum penalty for a corporation of $1,000,000) and ordered to pay the prosecutor's costs of $65,000: Environment Protection Authority v New South Wales (2010) 174 LGERA 19. 73. On 22 May 2019, the Crown in Right of New South Wales (OEH) was convicted of one offence under s 120(1) of the POEO Act in respect of discharges from the STP, fined $84,000 and ordered to pay the prosecutor's costs of $104,204; Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66.
In addition to the three convictions the Prosecutor also relies upon an additional conviction noted at PS [54] as: On 30 November 2016, the Defendant (specifically the Office of Environment and Heritage (OEH)), was convicted of an offence of harming objects that it knew to be Aboriginal objects in breach of s 86(1) of the National Parks and Wildlife Act 1974, fined $45,000 and ordered to pay the prosecutor's legal costs and to place three publication notices: Chief Executive of the Officer of Environment and Heritage v Crown in the Right of New South Wales (National Parks and Wildlife Service which is a part of the Office of Environment and Heritage) [2016] NSWLEC 147.
The Prosecutor submitted that this conviction was both a relevant prior conviction and that the facts relating to that conviction indicated that the Defendant had failed to provide sufficient training to its officers, which default is similar to the circumstances of this case. The Defendant, whilst it acknowledges that the conviction was recorded, submits at DS [84] that: "…This offence has no correlation to the current offence and as such the Defendant submits it should not be taken into account as a prior conviction." I accept that the fact of this additional conviction is a relevant matter to my consideration, however, I place little weight upon it due to the different circumstances relating to the nature of the offence and nature of the breach being dissimilar to the offences before me.
I do place significant weight on the recent conviction recorded in Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66. In that case there was conviction pursuant to s 120(1) of the POEO Act for the discharge of polluted waters from the STP. The cause of the offence was, in part, related to the ACH dosing regime and the consequences of reducing phosphorus on the secondary treatment of the effluent. Some of the causes of the offence were similar to those in these offences, such as training, supervision and the like. Accordingly, I consider the prior convictions of the Defendant, and in particular the 2019 conviction are aggravating circumstances.

[25]

Publication order

In addition to any penalty imposed the Court may make further orders as identified in Division 5 Part 8.3 of the POEO Act. Section 250(1)(a) of the POEO Act provides that: (1) The court may do any one or more of the following: (a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,
The Prosecutor initially sought such a publication order, however, at the sentence hearing it withdrew this request. Both the Defendant and the Prosecutor suggested that the nature of the objective gravity of the offences and the fact that the Defendant was not a private offender justified not making the publication order. Further, the Defendant submitted that it would publish the convictions on its website and that the independent press was likely to report the convictions. I invited the Defendant to provide to me the form and nature of the publication it was proposing on its website (which it provided) and to indicate whether it was prepared to give some form of binding undertaking to carry out the publication it proposed in the event I was minded to permit this voluntary publication in lieu of a publication order.
Both parties also agreed that notwithstanding the inter-party position whether or not to make a publication order was entirely a matter for me in the exercise of the sentencing discretions. I requested that both parties agree a form of publication order in the event I was minded to make such an order and the parties provided a form of order which was largely (with some minor exceptions) agreed.
Whether it is appropriate it impose a publication order in a sentence has been considered by this Court on a number of occasions. The principles to be derived from those authorities and the factors that have been considered in determining whether to make such an order can be summarised as follows: 1. The Court has a wide discretion as to whether to impose a publication order and the POEO Act does not identify, in terms, the circumstances in which such an order should or should not be made: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [36]; 2. Publication orders assist in serving a deterrent purpose in environmental crimes: EPA v Waste Recycling Corporation (2006) 148 LGERA 299. Such a notice informs or reminds the public that such an offence exists, and may add some "sting" to the imposition of a fine. The objectives of general and specific deterrence are thus satisfied: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [163]. A publication order operates as a message to the community that a holder of an EPL is under a heightened responsibility to ensure that their operations are conducted in accordance with the conditions of such licence: Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90; 3. Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [242]; 4. Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd; (2003) 131 LGERA 176 at [58]-[59]); 5. If an order under s 250(1)(e) is imposed a publication order ought be made because it is important to publicise to the community at the time such an order is made that any works being undertaken are as a result of committing an offence: Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 at [141]; 6. Existing adverse publicity in the media or an intention to self-publicise a conviction will not necessarily preclude the making of a publication order: Environment Protection Authority v Sibelco Australia Limited [2011] NSWLEC 160 at [104]; 7. The circumstances of the case may dictate that the interests of justice and the purpose of the publication will not be served if publication is ordered such as: where the offence is a first offence and the harm and objective seriousness of the offence is low; where publication of the offence is likely to confuse or mislead the reader in light of the substance earlier Court ordered publication: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334 at [41]; Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 at [169]; 8. Such an order is no less appropriate because the offences have been found to be of a low level of objective seriousness: Secretary, Department of Planning and Environment v SingTel Optus Pty Ltd [2019] NSWLEC 44 at [164].
In the circumstances of this case I consider it appropriate to order a publication order with respect to the two offences in the terms as proposed by the Defendant. The fact that the Defendant has prior convictions for similar offences indicates that specific and general deterrence is required. Further, the publication of the conviction of this particular Defendant, for the charges for which it has pleaded guilty, operates to indicate to persons operating facilities such as an STP or who operates an activity pursuant to an EPL, that environmental crime is taken seriously and even a government agency will be held accountable for breaches of the POEO Act. I consider the general deterrence that will be achieved by the making of the publication order is substantial and warrants the order being made.
The notion of the Defendant self-publishing the convictions does not have the same force or reach of a Court ordered publication order and I therefore consider it, in the circumstances of this case, inadequate to ensure general and specific deterrence. However, I do not, by these observations, seek to discourage the Defendant from undertaking its own publications of these convictions.

[28]

Orders

In proceedings 2019/104592 the Court makes the following Orders: 1. The Defendant is convicted as charged; 2. The Defendant is fined the sum of $120,250. 3. Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 the fine imposed by Order (2) is to be paid to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes; 4. The Defendant is to pay the Prosecutor's legal costs in the agreed sum of $45,000 pursuant to s 257B of the Criminal Procedure Act 1986; 5. The Defendant is to pay the Prosecutor's investigation costs in the agreed sum of $3,618.95 pursuant to s 248(1) of the Act. 6. The Defendant, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, must cause a notice in the form of Appendix A, at its expense: 1. To be placed within 28 days of the date of this order in the Sydney Morning Herald within the first 13 pages on an odd-numbered page at a minimum size of 12cm x 12cm; and 2. To be placed within 28 days of the date of this order in the Monaro Post within the "Early General News" section on an odd-numbered page at a minimum size of 12cm x 12cm. 1. Within 7 days of the date of publication of each notice referred to in the previous order, the Defendant must provide to the Prosecutor, and file with the Court, a complete copy of the pages of the publications in which the notice appears.
In proceedings 2019/104593 the Court makes the following Orders: 1. The Defendant is convicted as charged; 2. The Defendant is fined the sum of $45,000. 3. Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 the fine imposed by Order (2) is to be paid to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes; 4. The Defendant, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, must cause a notice in the form of Appendix A, at its expense: 1. To be placed within 28 days of the date of this order in the Sydney Morning Herald within the first 13 pages on an odd-numbered page at a minimum size of 12cm x 12cm; and 2. To be placed within 28 days of the date of this order in the Monaro Post within the "Early General News" section on an odd-numbered page at a minimum size of 12cm x 12cm. 1. Within 7 days of the date of publication of each notice referred to in the previous order, the Defendant must provide to the Prosecutor, and file with the Court, a complete copy of the pages of the publications in which the notice appears. Appendix A (15.2 KB, docx)