Environment Protection Authority v Crown in the Right of New South Wales - [2019] NSWLEC 66 - NSWLEC 2019 case summary — Zoe

NSWNSWLEC

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

[2019] NSWLEC 66

Land and Environment Court (NSW)|2019-05-21|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-05-21

Before

Pepper J

Catchwords

(2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
(2013) 248 CLR 483 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280

Source

Original judgment source is linked above.

Catchwords

(2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280(2013) 248 CLR 483 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280

Judgment (50 paragraphs)

[1]

Environment Protection Authority v Mid North Coast County Council trading as Mid Coast Water [2003] NSWLEC 416 Environment Protection Authority v New South Wales [2002] NSWLEC 52 Environment Protection Authority v New South Wales [2010] NSWLEC 67; (2010) 174 LGERA 19 Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415 Environment Protection Authority v Robinson [2004] NSWLEC 629 Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 Environment Protection Authority v Supreme Poultry & Chickens Pty Ltd & Anor [2001] NSWLEC 215 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Dodd (1991) 57 A Crim R 349 R v Nichols (1991) 57 A Crim R 391 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 1; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Texts Cited: Category: Sentence Parties: Environment Protection Authority (Prosecutor) Crown in the Right of New South Wales (Office of Environment and Heritage) (Defendant) Representation: Counsel: Mr P English (Prosecutor) Ms J Single (Defendant)

[3]

OEH Pleads Guilty to Polluting Waters

The defendant, the Crown in the Right of New South Wales (Office of Environment and Heritage) ("OEH"), has pleaded guilty to an offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("POEOA"). OEH is charged with polluting waters from about 14 June 2017 to 4 September 2017 inclusive, at or near the Perisher sewage treatment plant, North Perisher Road, Perisher Valley in New South Wales ("STP").
The summons relevantly stated: 1. An order that the Defendant, Crown in the Right of New South Wales (Office of Environment and Heritage), Level 14, 59-61 Goulburn Street Sydney in the State of New South Wales, appear before a Judge of the Court to answer the charge that, from about 14 June 2017 to about 4 September 2017 inclusive, at or near the Perisher sewage treatment plant, North Perisher Road, Perisher Valley in New South Wales (the STP), it committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 in that in polluted waters. Particulars a. Waters Perisher Creek near the STP and downstream thereof. b. Pollutant Partially treated sewage effluent containing elevated levels of ammonia and total nitrogen. c. Manner of breach The defendant, being the occupier of the Premises, discharged Pollutant from the STP into the Waters.
Section 120(1) of the POEOA provides that: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence.
OEH held (and holds) an Environment Protection License number 1797 ("License") under the POEOA for the operation of the STP.
Between 14 June and 4 September 2017, OEH contravened s 120(1) of the POEOA insofar as: 1. it was the occupier and operator of the STP; 2. the STP discharged sewage effluent with elevated levels of nitrogen (total) and nitrogen (ammonia) into Perisher creek; and 3. the levels of nitrogen (total) and nitrogen (ammonia) exceeded the respective concentration limits stated in the License.

[12]

History of Use of AlChlor at the STP

AlChlor was first used to treat sewage at the STP on 1 July 2016. Prior to this, sewage was treated with Aluminium Sulfate ("Alum").
In May 2015, staff at the STP began investigating the use of AlChlor in lieu of Alum, following a discussion with staff at Tumut Shire Council who had experienced positive results from the use of AlChlor at Tumut Shire Council Sewage Treatment Plant ("Tumut STP"). Two OEH staff from the STP visited Tumut STP to examine the use of AlChlor there and engaged in further discussion with Tumut STP operators about the use of AlChlor.
In February 2016, Mr Cowcher corresponded with Hardman Chemicals about the possibility of purchasing and using AlChlor supplied by them at the STP.
As a coagulant, AlChlor is approximately three times more effective than Alum, so less AlChlor is required to achieve the same result as Alum. Given this, all the AlChlor required by the STP for the winter season can be stored in the four bulk storage tanks at the STP. When Alum was used, additional 200 litre storage drums were required to store the necessary quantity of Alum at the STP. No additional drums are required to store AlChlor. This reduces Work Health and Safety risks and potential for injury by eliminating the need for staff to move such drums around the STP. AlChlor is also less acidic than Alum, reducing the need to adjust the pH of the sewage with soda ash. These were some of the benefits associated with AlChlor that made it more attractive than Alum for use at the Plant.
On 4 April 2016, the STP received its first delivery of AlChlor from Hardman Chemicals.
In April 2016, staff at the STP began testing AlChlor to determine the correct dose of AlChlor for treatment of the sewage. The testing process was carried out using jar testing equipment to create a simulation of the aeration tanks in a jar, to assess how much AlChlor was required to achieve: 1. the desired level of phosphorus; and 2. settlement.
AlChlor was initially dosed at the rate at which Alum was dosed, and this was gradually reduced to achieve the desired phosphorus levels in the jar. From the testing process, the dose of AlChlor to be used at the STP was determined to be between 30-50% of the rate at which Alum was dosed ("AlChlor Dose").
The AlChlor Dose was communicated verbally to operators of the STP by Mr Cowcher and Mr Naisby. No other instructions or formal training were provided to the operators at the STP in relation to the introduction of AlChlor as the physical dosing process was identical to that of Alum.

[13]

The 2017 Feed Program

The 2017 Feed Program was carried out from 8 February 2017 to 9 June 2017. On 23 February 2017, staff at the STP observed that settlement was not being achieved in the aeration tanks because the Sludge was "bulking", which is when the Sludge fails to separate from, and settle below, the liquid in the aeration tanks. The cause of the lack of settlement was not known at this stage.
In March 2017 some of the Sludge was "wasted" from the aeration tanks, to encourage settlement in the aeration tanks. The process of "wasting" involves removing Sludge from the aeration tanks to holding tanks, to maintain the required volume and to increase the ratio of Feed Program chemicals to Sludge. However, excess wasting can lower the processing capacity of the aeration tank. To maintain the processing capacity of the aeration tanks when wasting was carried out in March 2017, the quantity of chemicals added as part of the Feed Program had to be reduced from the quantity set out in an earlier plan ("the 2017 Plan"), to reduce the pollutants being discharged. The 2017 Plan specified that, by 10 June 2017, a total of 130 kg of urea would be added per day to the three aeration tanks. However, only 60 kg of urea was being added per day to the three aeration tanks, in total, by 10 June 2017.
On 18 May 2017, the dissolved oxygen probes ("DO Probes") in the three aeration tanks stopped functioning as the caps on the probes had expired. OEH had arranged with Thermofisher (the supplier of the DO Probes) to have a technician visit the STP and replace the caps prior to the expiry date. However, due to the unforeseen resignation of the technician and despite several requests from OEH, the supplier did not provide a technician to replace the caps until 24 May 2017. The DO Probes constantly monitor the level of dissolved oxygen ("DO") in the aeration tanks. The level of DO in the aeration tanks is used to inform the speed at which the air blowers blow air into the aeration tanks to maintain the appropriate DO levels. Without the DO Probes, it is difficult for the operators to monitor the level of DO in the tanks and the air blowers must be manually operated. OEH staff used a hand held DO probe to measure and record DO at least once on 19 May 2017, once on 20 May 2017, once in Tank 1 on 22 May 2017 and once in each of the three tanks on 23 May 2017. Between 18 and 25 May 2017 the air blowers were manually operated. The manual operation of the air blowers resulted in over-aeration of the Sludge and high nitrates. Over-aeration can also result in poor settlement. As a result, the Feed Program was stopped until the caps on the DO Probes were replaced.
Between 22 May and 24 May 2017, no urea was added to the aeration tanks, because staff at the STP were concerned about elevated levels of nitrogen (ammonia) in the effluent.
On 23 May 2017, the actual concentration of nitrogen (ammonia) in the discharged effluent was 3 mg/L, based on samples taken and analysed by staff at the STP. This exceeded the 90 percentile concentration limit for nitrogen (ammonia), which is 2 mg/L as set out in Condition L3.4 of the Licence.
On 24 and 25 May 2017, a technician attended the STP and replaced the caps on the DO Probes.
On 25 May 2017, the Feed Program recommenced.
In June 2017: 1. there was still a lack of settlement in the three aeration tanks, which had been an ongoing problem since approximately 23 February 2017; and 2. nitrification was limited.
On 15 June 2017, Mr Naisby contacted Mr Allen, an engineer from consulting firm Simonds & Bristow, to seek his advice on the lack of settlement in the aeration tanks at the STP. Mr Allen informed Mr Naisby that the lack of settlement was likely to be a result of insufficient phosphorus levels in the aeration tanks, as a result of dosing with AlChlor. While treatment of the sewage at the STP is intended to reduce the level of phosphorus in the sewage to a concentration within the limit set by condition L3.4 of the Licence, some phosphorus is required to remain in the sewage to: 1. ensure that "bulking" conditions do not occur, which improves settlement in the aeration tanks; and 2. optimise nitrification.
AlChlor performs better at removing phosphorus than Alum. With the benefit of hindsight, OEH considered that the lack of phosphorus in the aeration tanks, likely caused by AlChlor: 1. caused Sludge "bulking" which affected settlement in the aeration tanks; and 2. possibly reduced the rate of nitrification.
On 20 June 2017, operators at the STP began dosing the sewage with diammonium phosphate ("DAP"), to increase the availability of phosphorus in the aeration tanks.
Staff at the STP did not realise that the lack of settlement and lack of nitrification in the aeration tanks could be a result of low levels of phosphorus in the aeration tanks at any point prior to receiving advice from Mr Allen on 15 June 2017. The staff at the STP had been trained in the requirements for phosphorus but because of the complicated and busy operations at the plant had, for some months, failed to consider the 1 mg/L target levels for phosphorus after the Primary Dose, as set out in OEH's Operational Environmental Management Plan.

[17]

OEH's Immediate Response Upon Becoming Aware of Exceedances of its Licence Limits

On 23 June 2017, Mr Petrov notified Carlie Armstrong, an Operations Officer employed by the NSW Environment Protection Authority ("EPA"), of the preliminary results provided that day by ALS of analysis of the 14 June Samples.
On 28 June 2017, Mr Allen visited the STP to review how the STP was operating and collect samples of the Sludge for microscopic analysis.
On 30 June 2017, Mr Allen advised Mr Naisby by email that "microsand dosing" of the aeration tanks with a material called Zeolite would likely help to increase the density of the Sludge and encourage settlement.
On 6 July 2017, Mr Petrov provided Ms Armstrong an update on the performance and operation of the STP, including a summary of the actions undertaken over the previous weekend.
On 14 July 2017, Mr Petrov advised the EPA during a phone call of the preliminary results of analysis of the 12 July Samples that had been received from ALS that day.
On 14 July 2017, OEH notified Perisher Blue Pty Limited ("Perisher Blue"), Snowy Hydro Limited and Snowy Monaro Regional Council by email of the elevated ammonia levels in Perisher Creek.
OEH engaged in further discussion with Perisher Blue about the elevated ammonia levels, as snow making operations conducted by Perisher Blue source water from Perisher Creek, downstream of the STP. OEH and Perisher Blue agreed that the elevated ammonia levels did not pose a risk to human health as a result of snow making.
OEH did not engage in any further discussions about the elevated ammonia levels with either Snowy Monaro Regional Council after an email on 14 July 2017, or Snowy Hydro Limited after an email of 4 August 2017, because Snowy Hydro Limited use water from Perisher Creek for power generation purposes only once it has entered Guthega Dam, after which the rate of dilution would have removed any of the elevated levels of ammonia.
Snowy Monaro Regional Council only use water from Jindabyne Dam for town water supply after it has passed through both Guthega Dam and Island Bend Dam before entering Jindabyne Dam and mixing with those waters. The storage capacity of Jindabyne Dam is 389,000 ML which is over three times that of Guthega Dam which has a capacity of 1280 ML.
On 14 July 2017, Mr Allen submitted a report to OEH, titled "STP Sludge Settlement Inspection Report" ("the first Allen Report"). This report: 1. observed that the Sludge in two of the three aeration tanks was, to varying extents, made up of "filamentous bacteria", which is a type of bacteria that inhibits settlement and nitrification; and 2. recommended that all three aeration tanks be dosed with Zeolite.
On 15 July 2017, OEH staff: 1. commenced daily testing of the water quality in Perisher Creek; and 2. began providing daily updates, by email, to the EPA to provide monitoring data and operational details.
On 17 July 2017, the EPA carried out an inspection of the STP and, with assistance from OEH staff, collected samples of the effluent and water in Perisher Creek for the purposes of nutrient analyses and ecotoxicology testing. The EPA continued to collect samples on a weekly basis until 6 September 2017 and OEH provided over snow transport to EPA officers to enable them to do so.
EPA officers carried out sampling at four locations as follows: 1. at Perisher Creek about 350 m upstream of the STP (location EPA 2) on 11 August 2017; 2. at the point at which effluent is discharged from the STP to Perisher Creek (location EPA 1) on 3 August 2017; 3. at the licence monitoring point about 60 m downstream of the STP on Perisher Creek (location EPA 3) on 3 August 2017; 4. at the licence monitoring point about 60 m downstream of the STP on Perisher Creek (location EPA 3) on 22 August 2017; 5. at the weir about 1.4 km downstream of the STP on Perisher Creek (location Sample Site 1) on 3 August 2017; and 6. at the weir about 1.4 km downstream of the STP on Perisher Creek (location Sample Site 1) on 29 August 2017.
On 21 July 2017, the EPA issued a Clean-Up Notice to OEH, pursuant to s 91 of the POEOA, requiring OEH to relevantly: 1. engage a suitably qualified and independent specialist sewage treatment process engineer to inspect the STP and assess its operational performance, make recommendations on procedures or practices to achieve optimum operational performance and prepare a report; 2. submit to the EPA an action plan, prepared in consultation with the specialist engineer, addressing options to improve sludge settlement and sewage treatment processes at the STP and options to reduce the concentration of ammonia being discharged into Perisher Creek; 3. commission the necessary operational resources necessary to return the STP to normal operational performance; 4. provide the EPA with a written progress update every second day until a date approved by the EPA; and 5. undertake daily sampling at Point 1 and Point 3 (in Perisher Creek downstream of the STP) and have the samples analysed for ammonia concentrations.
From 21 July 2017, the daily updates provided by OEH to the EPA decreased in frequency to every second day, until they ceased on 15 September 2017.
On 22 and 23 July 2017, operators at the STP dosed one of the aeration tanks (Tank 3) with Zeolite in accordance with Mr Allen's advice.
On 24 July 2017, Mr Allen arrived at the STP to oversee operations, the implementation of corrective action and prepare a second report on the STP's operations.
On 24 July 2017, Simonds & Bristow employee Mr Ford arrived at the STP to assist with operations.
On 28 July 2017, Mr Allen submitted a report to OEH, titled "Perisher Valley STP Initial Operations Recommendations Report" ("the second Allen Report"). This report: 1. observed that the STP had been deficient in phosphorus for much of the Feed Program; and 2. concluded that the lack of phosphorus was the probable cause of the lack of settlement of the Sludge and limited nitrifier behaviour and growth in the Sludge, which decreased the ability of the Sludge to remove ammonia from the sewage.
On 31 July 2017, Mr Petrov contacted Adrian Ridgely, a senior process specialist at Aspect Process Services Pty Ltd, to request a peer review of the first and second Allen Reports.
On 31 July 2017, Mr Fisher arrived at the STP to assist with operations.
On 1 August 2017, the EPA engaged OEH's Science Division to conduct macroinvertebrate sampling in Perisher Creek. OEH provided logistical support for this sampling event.
On 4 August 2017, Mr Ridgely provided comments on the first and second Allen Reports to Mr Petrov and Mr Naisby. Mr Ridgely: 1. in relation to the first Allen Report, considered that: 1. the root of the problem experienced at the STP was the fact that the Sludge was not settling during the Feed Program; 2. the presence of "filamentous bacteria" could be because of too little phosphorus or because of too much sugar in the aeration tanks; and 3. dosing with Zeolite was an appropriate step to take to improve settlement; and 1. in relation to the second Allen Report: 1. agreed that AlChlor dosing should be reduced to rule out the lack of phosphorus as the case of settlement and nitrification problems; 2. agreed that Zeolite dosing should be continued to improve settlement; 3. recommended that, contrary to Allen Report 2, the nitrification problem be dealt with at the same time as the settlement problem; 4. suggested that: 5. the aeration phase of the treatment in the aeration tanks be extended; 6. the temperature of the reactors be increased; 7. sugar dosing be kept to a minimum; and 8. the age of the sludge be considered as a possible factor affecting nitrification.
On 4 August 2017, OEH provided Perisher Blue and Snowy Hydro Limited with an update, by email, on the ammonia levels in Perisher Creek.
On 19 August 2017, Mr Allen left the STP but continued to provide advice remotely via email until the levels of nitrogen (total) and nitrogen (ammonia) in the discharged effluent no longer exceeded the concentration limits set by the Licence.
On 1 September 2017, Mr Fisher finished providing assistance at the STP.
On 5 September 2017, testing carried out at the STP indicated that the concentration of ammonia in the discharged effluent at Point 1 was 1.2 mg/L, which is within the relevant concentration limit set by the Licence.
On 6 September 2017, the concentrations of nitrogen (total) and nitrogen (ammonia) in the discharged effluent at Point 1 were within the concentration limits set by the Licence, based on samples taken by staff at the STP and analysed by ALS. The table below sets out the actual concentrations of both pollutants in the discharged effluent as at 6 September 2017, based on the results provided by ALS, and the concentration limits set by the Licence. Pollutant 90 percentile concentration limit set by Licence (mg/L) Actual concentration on 6 September 2017 (mg/L) Nitrogen (total) 10 2.28 Nitrogen (ammonia) 2 0.8

[23]

OEH's Long Term Response

Following the incident, OEH: 1. engaged Simmonds & Bristow to review operations at the STP and provide advice on such operations. The scope of Simonds & Bristow's review included: 1. analysis of the historic inflows and identification of trends, in terms of equivalent persons ("EP"), daily inflows, carbon based organics and nitrogen (ammonia); 2. review of the Feed Program requirements and update to the Feed Program based on inflow analysis; 3. advice on operational settings for the "off-season", Feed Program, and "winter peak season"; and 4. provision of an approach for primary and secondary AlChlor dosing, and supplementary phosphorus dosing (in the form of DAP); 1. ensured staff at the STP completed training in microscopic examination and "AS filament identification" (in October 2017), such that they are now able to examine the Sludge and identify if "filamentous" bacteria is preventing settlement from occurring; 2. has made operational changes such that the Senior Engineer at the STP now has greater responsibility to monitor the Feed Program to ensure that the concentration of pollutants in discharged effluent is within the limits set by the Licence. This involves a fortnightly inspection and sign-off of STP operations. During the 2017 Feed Program, and as at 13 March 2018, Mr Naisby was the Acting Senior Engineer at the STP; 3. has made changes such that there are now four operators employed to undertake water and wastewater operations, as opposed to two operators and one senior operator; 4. has implemented all improvements and measures referred to above in a manner that saw the STP improve operations during the 2018 peak winter season; 5. has engaged an independent expert, Mr Zlatko Tonkovic of Yabbie Pond Pty Ltd, to carry out a peer review of operations at the STP. The peer review highlighted areas of operation at the STP where improvements can be made, but also recognised the difficulty of operating this particular STP with limited access in winter; 6. intends to incorporate advice and recommendations from Mr Tonkovic into ongoing operations at the STP; and 7. worked with the EPA to formalise a Pollution Reduction Program on the Licence, which includes a capability assessment, review of technologies at the STP and environmental risk assessment.

[25]

Statutory Matters Required to be Taken into Account in Sentencing

In addition to the matters set out in Div 1 of the CSPA, the POEOA sets out the matters which are to be taken into account when sentencing for offences committed under that Act. Section 241 of the POEOA provides that: 241 Matters to be considered in imposing penalty … (2) 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): the extent of the harm caused or likely to be caused to the environment by the commission of the offence, the practical measures that may be taken to prevent, control, abate or mitigate that harm, 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, the extent to which the person who committed the offence had control over the causes that gave rise to the offence, whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (3) The court may take into consideration other matters that it considers relevant.
Subsections 21A(2) and (3) of the CSPA also set out aggravating and mitigating factors that the Court must take into account. Relevant to the facts of this case, these are as follows: 21A Aggravating, mitigating and other factors in sentencing (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), … (o) the offence was committed for financial gain… 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: the injury, emotional harm, loss or damage caused by the offence was not substantial, the offence was not part of a planned or organised criminal activity, … the offender does not have any record (or any significant record) of previous convictions, the offender was a person of good character, the offender is unlikely to re-offend, the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, the remorse shown by the offender for the offence, but only if: the offender has provided evidence that he or she has accepted responsibility for his or her actions, and 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), … a plea of guilty by the offender (as provided by section 22 or Division 1A), … assistance by the offender to law enforcement authorities (as provided by section 23)…
The appropriate sentence for OEH is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).
Importantly, the sentence to be imposed on OEH for the offence must be proportionate to both the objective seriousness or gravity of the offence and OEH's subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 1; (1988) 164 CLR 465 at 472).

[27]

Nature of the Offence

The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, is illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at [242]-[246]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and [259] and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
The relevant objects of the POEOA identify the purpose of creating the offence as follows: 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, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection…
The EPA submitted that the offence plays an important role in giving effect to the objectives of the POEOA and, in particular, pollution prevention. The EPA also submitted that the legislation reflects the community's adoption of "a stern policy against pollution" (Axer Pty Ltd v EPA (1993) 113 LGERA 357 per Mahoney JA at [359]) and that "pollution of waters is a result offence where the proscribed result directly undermines the object of the POEO Act" (Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 per Preston CJ at [23]).
OEH acknowledges that the conduct of polluting waters, other than in accordance with the conditions of its License, undermined the statutory scheme set out in the POEOA. I agree.

[30]

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offence

Section 241(1)(a) of the POEOA requires the Court to take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offence. "Harm" is defined in the dictionary to the POEOA as: 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.
In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Preston J stated that harm includes both actual harm and potential harm (at [145]-[148]): 145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146. Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. 147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. 148. The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleris Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
The meaning of the words "likely to be caused to the environment" was considered by Lloyd J in Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66, where his Honour stated (at [44]): 44. In considering the harm likely to be caused to the environment, it is to be noted that the word "likely" in this context has been held to mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance" (Mathews v Goulburn Wool Processors, NSWSC, Smart J, 6 November 1986, unreported); "only a real chance or possibility, and not more probably than not" (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGERA 221 at 224); and "does not mean probable. It means a real possibility" (New South Wales Sugar Milling Co-operative Ltd v State Pollution Control Commission (1991) 73 LGRA 86 at 100, affirmed by the Court of Criminal Appeal on other grounds, (1992) 75 LGRA 320).
Over the three month offence period, effluent containing nitrogen (predominantly in the form of ammonia) was discharged from the STP into Perisher Creek, such that levels were above the Licence limits for both ammonia and total nitrogen over the offence period ("Elevated Discharge"). The discharge of effluent containing elevated ammonia and nitrogen did not continue during the spring thaw and snow melt.
Water sampling was carried out in August 2017 at sites including: 1. Site 123, located on Perisher Creek immediately downstream of the STP; and 2. Site 124, located on Perisher Creek approximately 700 m downstream of the STP.
The results of sampling carried out in August 2017 ("August Sampling Results") demonstrate that the Elevated Discharge caused increases in nitrogen and ammonia in Perisher Creek at Site 123 and Site 124, such that the concentration of each of these chemicals was more than 100 times the Guideline value set by the Australian and New Zealand guidelines for fresh and marine water quality for slightly disturbed ecosystems of south-east Australia ("Trigger Value"). The Trigger Value is set at the highest level of a water quality analyte that signifies the expected protection of 95% of species.
Studies indicate that ammonia is toxic to aquatic biota at high concentrations and that the Elevated Discharge caused very high concentrations of ammonia in Perisher Creek. Some effect on macroinvertebrate populations and/or community composition would be expected from these concentrations, however, no clear impacts were detected and it is likely that the Elevated Discharge caused only limited environmental harm to Perisher Creek.
There was, moreover, no evidence that the Elevated Discharge caused any change in dissolved oxygen or turbidity of the waters of Perisher Creek and it is unlikely that the Elevated Discharge influenced the electrical conductivity of the waters of Perisher Creek.
The August 2017 Sampling Results showed an increase in pH at sampling sites both upstream and downstream of the STP, which suggests that the downstream elevated pH is unlikely to be due to the Elevated Discharge.
The macroinvertebrates that were detected in Perisher Creek during the 2017 sampling included beetles, crustaceans (including amphipods and isopods) dragonflies, flies (including caddisflies, mayflies and stoneflies), midges, molluscs, snails and worms. The population (abundance) of specific taxa was unable to be assessed by the sampling methodology used.
Based on the August Sampling Results, there are no statistically significant results that demonstrate that the Elevated Discharge caused any change to: 1. the in situ water quality parameters of dissolved oxygen, pH, electrical conductivity or turbidity in Perisher Creek at Sites 123 and 124, downstream of the STP; or 2. the community composition of benthic macroinvertebrates at Sites 123 and 124, downstream of the STP.
Prolonged exposure to increased nutrients associated with discharges from the STP (both since the commencement of operation of the STP and to a lesser degree since its upgrade in 2002-2003) was likely to have led to a macroinvertebrate community in Perisher Creek downstream of the STP that is tolerant of elevated nutrient loads. Analysis of long-term monitoring results indicates that the waters of Perisher Creek generally have high dissolved oxygen concentrations and low pH, which limits the toxicity of ammonia and may enhance the resilience of the macroinvertebrate community to high nutrient loads within the waterway.
As such, the Elevated Discharge may not have had any discernible impacts on the benthic macroinvertebrates of Perisher Creek.
Studies further showed that ammonia is toxic to aquatic biota at high concentrations and the toxicity of ammonia increases with decreasing dissolved oxygen concentrations. While this suggests that the Elevated Discharge was likely to have had localised impacts on specific benthic macroinvertebrate taxa, such as decreases in abundance and possible changes in the community structure, the assessment of populations of specific taxa could not be assessed by the sampling methodology used. Therefore, it was not possible to determine any acute toxicity effects on benthic macroinvertebrate populations related to the Elevated Discharge.
Nitrogen and ammonia concentrations in Perisher Creek downstream of the STP had returned to normal by November 2017.
The parties disagree as to the extent of the harm to the environment based on the above evidence. The EPA submitted that actual harm was caused to the environment albeit limited, but that the duration of the offending conduct (three months) contributed to the seriousness of the offence.
OEH submitted that the nature of the chemical processes involved and the need to continue treating sewage meant that OEH could not practically bring an immediate stop to the conduct. The OEH further submitted that there was no "discernible" harm caused by OEH's actions, and moreover, that the minimal levels of pollutants in Perisher Creek downstream of the STP returned to normal.
Having regard to the wide statutory definition of "harm" and the evidence discussed above, I find that OEH's actions caused extremely limited actual environmental harm of limited duration.

[32]

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offence

Section 241(c) of the POEOA requires the Court to have regard to 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.
The EPA submitted that the holder of a Licence is on notice of the possibility of harm to the environment arising from the activities regulated by the license (Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 per Craig J at [81]). The EPA also submitted that the OEH's prior convictions, which relate to operations at the premises to which the EPL attaches, served to further increase the foreseeability of harm (see, for example, Environment Protection Authority v Supreme Poultry & Chickens Pty Ltd & Anor [2001] NSWLEC 215 at [21] and Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano (No 2) [2019] NSWLEC 39 at [60]).
I accept that it was reasonably foreseeable that environmental harm would be caused, or was likely to be caused, by the commission of the event.
The EPA further submitted that there were several "red flags" in the lead up to the commission of the offence which ought reasonably to have put OEH on notice of the potential for unexpected results during the 2017 Feed Program, namely: 1. the change in procedure from using Alum to AlChlor; 2. the lack of sludge settlement in the aeration tanks from February to June 2017; and 3. the procedural irregularities caused by the non-functioning DO Probes.
OEH conceded that the risk of harm to the environment arising from the commission of the offence was foreseeable, however, it noted that the failure of the probes and the subsequent manual operation of the blowers caused a delay in the 2017 Feed Program but did not constitute any "red flag".
OEH also submitted that several events in the chronology leading up to the commission of the offense were out of its control, for example, the sudden resignation of Mr Knowles leaving it under staffed and the expiration of the DO Probes resulting in the blowers having to be manually operated. While OEH agreed that an expert ought to have been engaged earlier than 15 June 2017 to assist it, this nevertheless occurred prior to the actual commission of the offence.
I accept that it was reasonably foreseeable that environmental harm could result from the 2017 Feed Program results and thus the commission of the offence, however, I do not accept, as the EPA submitted, that the level of foreseeability was high due to the presence of a number of "red flags".

[34]

Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm

Section 241(1)(b) of the POEOA requires the Court to take into account the practical measures available to the defendant to control, abate or mitigate the environmental harm.
The parties disagreed on the extent to which OEH took all reasonably available practical measures to prevent or mitigate the environmental harm.
The EPA submitted that there should have been, but was not, a documented plan for the 2017 Feed Program that outlined the new procedure using AlChlor instead of Alum, and a formal plan to review the Program's success. OEH has conceded this submission.
The EPA further submitted that the 2017 Feed Program lacked adequate supervision, and that the malfunction of the DO Probes between 18 and 25 May should have alerted OEH to the potential for complications with the 2017 Feed Program.
In response, OEH contended that the 2017 Feed Program was adequately supervised, and that the failure of the DO Probes caused a delay in the 2017 Feed Program but was not itself an indicator of potential problems. OEH also took prompt steps to arrange for the DO Probes to be fixed. OEH accepted, however, that the ongoing sludge bulking was an indication of a possible problem.
The EPA further argued that due to the inadequacy of staff numbers and training at the STP, OEH ought to have sought expert consultancy advice earlier.
OEH generally agreed, but again noted the unforeseen resignation of Mr Knowles. In addition, OEH submitted that the STP staff were in fact undergoing training before the offence occurred which was completed in October 2017. At the time of the offence, however, STP staff had not yet completed all necessary specific training on managing phosphorous levels which could have aided them to detect the underlying cause of the issues with the 2017 Feed Program.
The EPA observed that seeking specialist advice in circumstances where settlement was not occurring in the aeration tanks due to bulking was required under the OEH's OEMP, and that had OEH done so earlier than 15 June 2017, the offending conduct may have been avoided. OEH did not seek to cavil with this submission.
OEH further submitted that despite the above, they took a number of practical measures to avoid harm to the environment in the immediate aftermath of the incident (see above at [61]-[89]), and have since implemented a range of longer term strategies to avoid future harm (see above at [101]).
I find that while OEH took some appropriate practical steps to prevent or mitigate harm, these nevertheless fell short of a more comprehensive set of measures that OEH could reasonably have taken to prevent or minimise harm.

[37]

Contrition and Remorse

OEH has demonstrated contrition and remorse (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 at [203]-[215]). Relevantly, once aware of the chemical imbalance, OEH took immediate action to remedy it, and is taking long term action to address the cause of the offence.
The CEO of OEH, Mr Anthony Lean, and the Director Southern Ranges Branch, Mr Michael Pettitt, gave written evidence (affirmed 27 February 2019 and sworn 28 February 2019, respectively) expressing their contrition and remorse that the offence occurred (both were present in Court, together with Mr Ryan Petrov, Manager, Southern Ranges Services), and outlining steps to prevent further offences from being committed in the future.
1 For example, Mr Pettitt stated that he and/or his team had: 1. upon being notified of the exceedances, immediately notified the Chief Operating Officer for the Perisher Ski resort; 2. brought the STP within his own branch to be managed locally under direct supervision, rather than remotely from Sydney (as was the case prior to the offence); 3. created the position of Manager, Southern Ranges Services, which has, as one of its key accountabilities, the management of municipal services at Perisher resort (including the STP); 4. increased the number of operators at the STP from three to four; 5. prioritised and supported the induction, training, development and familiarisation of the staff to the unique operation of the STP; 6. requested that OEH coordinate an information sharing session with other resort STP operators in the Snowy Mountains Region; 7. engaged Simmonds & Bristow to undertake a review of the Feed Program prior to its commencement in 2018; 8. engaged an independent consultant to undertake a peer review of the operations of the STP during the 2017 winter period; 9. committed to a process review as requested by the EPA; and 10. instituted weekly face to face meetings with Mr Petrov, the Manager of Southern Ranges Services.
In addition, Mr Pettitt deposed to the fact that he is "continuing to review the operating procedures, staffing levels and budgets under [his] control to try and prevent this happening again." He also indicated that he and his team take the health of the water systems within the Park very seriously as demonstrated by the fact that the NPWS commits $45,000 each year to fund a comprehensive water quality and macroinvertebrate monitoring program within the Park. The monitoring program has been running since 1993, is conducted independently, and data from the program is made available to a number of organisations, including the EPA.
Similarly, Mr Lean, in addition to the matters contained in Mr Pettitt's affidavit, noted that: 1. he had voluntarily attended a meeting with the EPA on 12 June 2018 and had subsequently formulated a plan of action for OEH's operational improvements (described in detail in Mr Pettit's affidavit); 2. the specialist advice originally sought during the time of the commission of the offence would be retained by OEH for future use; and 3. he has asked the relevant Executive Directors to keep him informed about operations at the STP and OEH's ongoing compliance with the License.

[40]

Prior Convictions of OEH

OEH has prior convictions for environmental offences. In 2002 OEH was convicted for an offence under s 120 of the POEOA in relation to the operation of the STP (Environment Protection Authority v New South Wales [2002] NSWLEC 52). In 2010 OEH was again convicted for an offence relating to its operation of the STP under s 64(1) of the POEOA (Environment Protection Authority v New South Wales [2010] NSWLEC 67; (2010) 174 LGERA 19). A summary of each case is given later in the judgment.
The third conviction was for an offence in 2016 of harming Aboriginal objects under s 86 of the National Parks and Wildlife Act 1974 (Chief Executive of the Office of Environment and Heritage v Crown in the Right of New South Wales (National Parks and Wildlife Services which is a part of Office of Environment and Heritage) [2016] NSWLEC 147). The EPA submitted that there were sufficient similarities between that offence and the current offence which make it relevant to assessing OEH's prior criminality, namely, a failure to use proper equipment and machinery and a lack of adequate training and supervision. Referring to the 2002 and 2010 convictions, Robson J found that the evidence demonstrated beyond reasonable doubt that there was a "systemic failure" on the part of the Crown (through NPWS) to prevent the harm caused by the commission of the offence (at [99]).
The EPA argued that the three offences referred to above demonstrated a persistent "substantial" and "systemic" failure of OEH's processes and disregard for the law. I do not accept this submission. First, although not wholly irrelevant, the factual circumstances of the 2016 conviction are markedly different from the present facts. Second, the 2016 conviction related to a different division of NPWS. Third, unlike the 2002 and 2010 offences, the commission of this offence was in large part due to the sudden resignation of an STP staff member which reduced operational staff levels from three to two, the decision to use AlChlor (which was based on evidence of positive results at the Tumut STP), and the unforeseen resignation of a technician at the supplier of the DO Probes (which had expired). In addition, the STP staff were, at the time of the commission of the offence, part-way through a training program which was completed in October 2017.
I accept OEH's submission that OEH's acts in the present case do not amount to a substantial and systemic failure on its behalf. On the contrary, the commission of this offence was aptly characterised by OEH as "an unfortunate series of events."
Nevertheless, the earlier convictions for environmental offences, including the 2016 conviction (on which less weight in placed), prevent the Court from considering a lack of prior convictions as a mitigating factor in determining an appropriate sentence in these proceedings.

[44]

General and Specific Deterrence

The Court is required to take into account both specific and general deterrence. As the High Court stated in Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, "the chief purpose of the criminal law is to deter those who are tempted to breach its provisions" (at [569] per Brennan J).
The penalty imposed by the Court must serve as a general deterrent. Section 3A(b) of the CSPA provides that one of the purposes for which a Court may impose a sentence is to prevent crime by deterring the offender and other persons from committing similar offence. General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [118]). In Axer, Mahoney JA stated that "the legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure pollution does not occur" (at [359]).
In relation to general deterrence: 1. (a) offenders will not be deterred from committing environmental offences by the imposition of nominal fines (Bentley at [140] and Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 at [98]); and 2. (b) a penalty for a breach must be sufficient to compel attention to the environmental issues to ensure that the offender, and others, are encouraged to comply with the law and that the environment is not exposed to risk of harm (Environment Protection Authority v Robinson [2004] NSWLEC 629 at [30] and Elf at [99]).
The Court accepts that embedded with the determination of the appropriate sentence to be imposed on OEH must be an element of general deterrence to ensure that other operators of sewage treatment plants do so in a competent manner that does not harm the environment. In particular, the operation of a sewage treatment plant in a national park is an activity that carries a clear risk of environmental harm if not appropriately managed. There must be a strong incentive for those undertaking similar activities in ecologically sensitive areas to implement appropriate mitigation measures to avoid and reduce environmental harm.
In relation to specific deterrence, there can be no doubt that specific deterrence is a relevant factor in these proceedings having regard to OEH's prior record of offending and continuing operation of the STP. Specific deterrence must therefore be taken into account in determining the appropriate sentence to be imposed in this instance.

[46]

Consistency in Sentencing

The task of the sentencing court is to pursue the ideal of even-handedness in the matter of sentencing (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at [107]). However, care must be taken in the task of achieving consistency. There is always difficulty comparing the penalty in one case with a penalty in another because of the wide divergence of facts and circumstances in each case (Axer at [365]), and one case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
The EPA referred to five cases which it submitted are "more or less comparable" to the present case. The first case was the OEH's 2010 conviction pursuant to s 64(1) of the POEOA. The pollution occurred due to an employee failing to operate the STP in accordance with the standard approved operational practices. Due to inadequate training an employee pumped supernatant to the decant pit instead of the splitter box or inlet works for further secondary treatment. OEH was fined $80,000. The Court took into account the following factors in imposing the fine: that there was no evidence of actual environmental harm and the likelihood of harm caused to the environment was low; some specific measures were taken at the time of the offence to minimise harm and at a more general level there were measures in place directed towards environmental protection although these proved insufficient to prevent the circumstances giving rise to the offence; the harm to the environment was foreseeable (although Pain J noted that foreseeability was less significant in this case due to the absence of actual environmental harm and the low risk of possible harm); the defendant had control over the circumstances giving rise to the offence; the defendant's prior 2002 conviction; the defendant had expressed contrition and remorse; and that the defendant had cooperated fully with the prosecutor but did not offer a "significant level of assistance".
The second was the OEH's 2002 conviction for water pollution. The cause of the commission of the offense was the discharge of partially treated effluent which occurred during augmentation works carried out at the STP. While the actual environmental harm was limited, the Court found that the potential for environmental harm was significant. Ultimately, the Court held that the objective seriousness of the offence was at the very lowest range for the purposes of s 241(1)(a) of the POEOA. The Court ordered OEH pay a fine of $20,000 (against a maximum penalty for a corporation of $250,000). Additional factors that the Court had regard to were: the fact that the defendant had previously received a number of penalty infringement notices; the defendant had demonstrated contrition and remorse; the defendant had fully cooperation with the prosecutor (including in relation to remediation works); and that the defendant did not take all opportunities available to it to prevent the occurrence of foreseeable harm.
The third case is Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39. There the defendant was convicted of an offence under both ss 120 and 64(1) of the POEOA for discharging sewage sludge onto a fire trail and nature reserve, including into an ephemeral creek by reason of failing to cap an open pipe running into a decant pit. The extent of likely environmental harm as a result of pollutant entering the watercourse was considered to be significant but temporary, spanning only a few weeks. This case also involved interference with a public right to enjoy a nature reserve and had the potential to harm public health. The defendant was fined $130,000 for the s 120(1) offence.
The fourth case was Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80, where Sydney Water Corporation caused the discharge of hundreds of thousands of litres of (primary) treated effluent into the ocean due to a leak in a split joint in a pipe which had occurred due to a failure to properly maintain the equipment for many years. There was no evidence of actual ecological harm, however, the surrounding beaches were closed for two days. As a result, the Court found that the environmental harm arising from the offences was substantial. Sydney Water Corporation was fined $78,750.
The final case was Environment Protection Authority v Mid North Coast County Council trading as Mid Coast Water [2003] NSWLEC 416. That case concerned the pollution of a farm dam and waters downstream due to overflow of raw untreated sewage before it entered a treatment plant. The sewage was considered unlikely to have had a significant effect on the ecology of the river, however, there was a clear localised impact in the vicinity of the spill and potential for harm to human health. The Court fined the defendant $30,000 (the maximum penalty was $250,000) after discounting for an early plea of guilty.
Many of the cases discussed above differ from the present case, especially with respect to the extent of environmental harm caused by the commission of the offence in question. The first and second comparable cases referred to by the EPA (that is, those concerning the OEH's prior convictions for environmental offences relating to the STP) are plainly more comparable to the circumstances of the present case.

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

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