Environment Protection Authority v Fletcher International Exports Pty Ltd

Land and Environment Court (NSW)|2000-02-18|Before: Talbot J, Mr P

CITATION : Environment Protection Authority v Fletcher International Exports Pty Ltd [2000] NSWLEC 41 PROSECUTOR: Environment Protection Authority PARTIES : DEFENDANT: Fletcher International Exports Pty Ltd FILE NUMBER(S) : 50068 of 1999 CORAM: Talbot J KEY ISSUES: Prosecution :- consideration of mitigating factors LEGISLATION CITED: Clean Waters Act 1970 Protection of the Environment Operations Act 1997 CASES CITED: DATES OF HEARING: 18/02/2000 EX TEMPORE 02/18/2000 JUDGMENT DATE :

PROSECUTOR: Mr P Barley (Solicitor) SOLICITORS: Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT: Mr G Carter (employee appearing for the company in person) SOLICITORS: n/a

Environment Protection Authority Prosecutor v Fletcher International Exports Pty Ltd Defendant

HIS HONOUR: The defendant, Fletcher International Exports Pty Ltd, is the operator of an abattoir at Dubbo in western New South Wales. It is clear from the evidence and it appears from the statement of facts that the abattoir is substantial. There are approximately 700 people employed on the site. Effluent from the abattoir buildings and the operation is collected on the site and dealt with in accordance with approved procedures through a collection process whereby the effluent is discharged into a maceration dam and then generally recycled back into the works.

On the day before the date upon which the charge alleges the offence took place, the EPA received an anonymous call by way of a complaint regarding a pollution event. The details of that call are not available to the Court except to the extent that as a consequence of its receipt the relevant officer at the EPA made contact with the environmental manager at the defendant's works. The evidence of the conversation between the EPA officer and the environmental manager suggests that the discussion related to an odour event. Mr Carter, who appears for the defendant under the instruction from its director, seeks to place some significance on the nature of the complaint made on 28 September 1998.

The evidence discloses that on 29 September 1998 a discharge from a standpipe adjacent to a stormwater collection dam was observed. As I will indicate in more detail, the discharge was found to contain effluent from the abattoir. Having regard to the analysis of the effluent, there would have been some odorous discharge associated with the flow of liquid.

However, the fact is that the discharge was not observed until such time as further inquiry was made and further investigation carried out in conjunction with the EPA on 29 September 1998.

It is agreed that the standpipe was discharging liquid at a rate estimated at about five litres per second. The discharge was directed away from the stormwater dam. It first went to ground and then flowed into a table drain running alongside a railway line for about 400 metres. At that point a coincidental flow from premises operated at the Dubbo sale yards joined the flow from the abattoir premises. From that confluence the joint discharge found its way to another drain along and beside the Old Gilgandra Road. There was sufficient flow to maintain a significant run along the latter drain for about one kilometre until it discharged out of a culvert into a small creek with steep banks. It then found its way for some 30 or 40 metres along that creek into the Talbragar River.

The Court accepts that there was a large volume of discharge from the standpipe over some hours. This is corroborated by the erosion around the foot of the standpipe. It discloses that a flow had occurred over some time. There is nothing to suggest that it was caused by anything other than the subject flow.

The prosecutor's case is that the defendant failed to adequately provide for the protection, maintenance or security of the standpipe in such a way that it could not be interfered with by persons unauthorised by it. Further, that in the event a discharge did occur, some procedures should have been in place to detect it and take remedial action. Mr Barley, appearing for the EPA, submits that following the telephone advice on 28 September, the company should have then carried out an inspection and investigation. That should have led to an earlier detection of the offending discharge.

I have already alluded to the nature of the conversation which took place between the reporting officer and the environmental manager of the company. I do not need to go back over that evidence. I am prepared to accept that there may have been some misunderstanding on 28 September as to the nature of the event that the company was being asked about. The inquiries may have been confined to the aspects of the operations of the company that could lead to odour. But as I have said, discharge of effluent of the type that has been described to the Court in itself leads to an odour event or at least would generally be expected to lead to an odour event.

The Court has been assisted by the evidence of Michael John Curry, an Environment Protection Officer with a Bachelor of Applied Science degree from the University of Technology who has some experience as a scientific officer. He has drawn some conclusions from the results of sampling that took place on 29 September. His opinion is that the concentrations of ammonia were high and well in excess of the concentrations recommended in ANZECC guidelines for the protection of aquatic ecosystems. Ammonia is recognised as having a potential for creating lethal toxicity for organisms such as freshwater invertebrates and freshwater fish. The BOD5 concentrations of the sample of effluent discharging from the defendant's premises on 29 September showed levels 20 times higher than the maximum level specified in the ANZECC guidelines for the protection of freshwater ecosystems.

Mr Curry confirmed that an oxygen demanding material such as organic waste has the effect of reducing the amount of dissolved oxygen in receiving waters. The actual reduction is dependent on the concentration in each case. In this case, as I have said, the concentration was 20 times higher than the maximum specified in the ANZECC guidelines. The combined concentration at the confluence with the Talbragar River was at the same level as the discharge from the Fletcher premises. The Court appreciates that by the time there was discharge to the Talbragar River, the effluent from the defendant's premises had been joined by the effluent from the Dubbo sale yards. The concentration found in the river cannot be solely attributed to this defendant. Nevertheless, this resulted in an actual discharge of unacceptable BOD5 concentrations into the Talbragar River. If BOD5 concentrations continue for any period of time they can lead to high oxygen demand with subsequent reduced levels of dissolved oxygen in the waters, resulting in the undesirable effects I have referred to.

The sampling also indicates the levels of chemical oxygen demand were substantially in excess of the background levels in the Talbragar River. COD is an indicator of the amount of organic material present in a sample and measures the amount of oxygen it will consume under strictly defined chemical conditions in the laboratory.

Conductivity tests were undertaken. These disclose concentrations of various ions present in solution which the Court takes to be a measure of the amount of salts that are found in the samples. These were found to be slightly above the level specified in the ANZECC guidelines for protection of aquatic ecosystems.

Phosphorous was also found to be significantly higher than the upper limit specified in the ANZECC guidelines. Phosphorous loads can lead to the growth of plants or animals adhering to parts of rooted aquatic plants, algae blooms or the growth of nuisance macrophytes downstream. This can lead to problems associated with recreation and fishing, apart from contributing to unpleasant conditions in the waterway.

Nitrogen concentrations were found to be 52 times higher than the upper limit specified in the ANZECC guidelines at the point of discharge from the Fletcher premises. Nitrogen, according to Mr Curry, would most likely stress the already stressed conditions of the Talbragar River, thereby reducing its ability to maintain the ecosystem's health and affecting its ability to recover from incidents such as the present one.

The nature of the material discharged from the defendant's premises had the potential to cause serious environmental harm even though on 29 September 1998 there was no actual harm to any particular flora or fauna or animals, apart from the short term effects caused by the pollutants passing through the system.

I am required to have regard to the matters set out in s 241 of the Protection of the Environment Operations Act 1997. I have already dealt with the extent of the harm or the likely harm caused to the environment as I am required to do. The evidence shows that once the discharge from the standpipe was detected it was dealt with quickly and cheaply. On the one hand this is to the credit of the defendant but on the other hand shows that there was a readily available practical method of dealing with the problem.

As I said earlier, dealing with the competing submissions regarding the reaction to the initial reporting on 28 September, it is open for the Court to conclude, and I do, that a more thorough inspection of the premises could have resulted in the discharge being discovered many hours before it actually was. I have already alluded to the extent to which the defendant could have reasonably foreseen the harm.

The standpipe was a piece of equipment connected to the effluent system which was capable of being turned on by a simple operation. Nobody knows how this incident occurred. There is no suggestion that it occurred as a consequence of any overt act on the part of the defendant or of the defendant's employees. In an offence such as this there is however a strict liability. When a discharge occurs contrary to the terms of s 16 of the Clean Waters Act 1970 then the person in charge of the premises is liable to be charged with an offence against that section.

It is important to note that this company has an impeccable record in relation to its environmental conduct. It has no previous charges of this nature against it. It is obviously a large operation, self-evidently dealing with materials that have the potential to cause harm to the environment if they are discharged in a way which leads to untreated material reaching waters such as the Talbragar River or indeed any waters. On the one hand the fact that there is that potential means the defendant has a heightened responsibility to be vigilant. On the other hand the Court must take account of the greater difficulty involved in supervising and controlling activities of this magnitude. However, where business is conducted in an industry where there is potential for environmental harm then there is a responsibility on the part of persons conducting such a business to carry on that business in such a way that pollution events do not occur otherwise than in accordance with the terms of any licence issued to them.

In the present case the catalyst for the incident has not been identified. There is no suggestion that the equipment was faulty or that it was not properly maintained in the sense of its efficient operation. Nevertheless, it is not such an event that could be described as unforeseen or not preventable.

The defendant acted responsibly in response to the event once the problem was identified. On the first occasion that the matter came before the Court there was an indication that a plea of guilty would be entered. The defendant has cooperated with the prosecutor in the preparation of an agreed statement of facts, thereby facilitating the efficient and economic disposal of these proceedings. Mr Carter has made a statement to the Court on behalf of the company which clearly shows the contrition of the company and the regret it has that the incident occurred. There is a clear understanding of the gravity of the offence. Mr Carter points out that the company considers itself to be a good environmental citizen. Mr Barley, appearing for the prosecutor, is not heard to say otherwise in so far as the antecedents of this company are concerned.

I am assured that appropriate action has been taken to ensure that the event cannot happen again. I am told that over the 10 years or so since this abattoir was taken over by this company, there has been constant discussion and cooperation with the EPA and other regulatory authorities to ensure that these premises are operated in a way that is safe for the environment. I accept that the incident occurred not as the result of any fault on the part of the defendant apart from its failure to foresee the prospect that some miscreant might enter the premises and interfere with the standpipe, that being the most logical explanation for what occurred. It is conjecture but nevertheless goes to the culpability of the defendant.

It is indeed unfortunate that a company which heretofore has a clean record and has conducted its essentially messy business in a responsible and cooperative way finds itself before the Court facing a serious charge. The offence attracts a substantial penalty with a maximum fine of $125,000.

The amount of the prosecutor's costs have been agreed at the sum of $5,000 and the company consents to an order being made against it for that amount.

The company is in the fortunate situation of having a significant number of matters which can be called to its aid in mitigation. I have attempted to outline those and to balance them against what occurred and the serious possible consequences that might have occurred.

In all of the circumstances I am satisfied that a penalty should be imposed in the higher end of the low range. I propose to fine the defendant the sum of $12,000.

The orders that I make are: 1. I find the offence proved.

The defendant is convicted of the charge particularised in the summons.

The defendant is ordered to pay the prosecutor's costs agreed in the sum of $5,000.

Mr Carter, there is a sum of $17,000 involved, do you need me to make any special order in relation to the time to pay that amount or are you happy to leave it on the basis that it will be paid in due course? The company can handle the payment of that sum within 28 days without any special order?

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Environment Operations Act 1997

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