Environment Protection Authority - V - Lake Macquarie City Council [1999] NSWLEC 4

The amount of oxygen depleted from the Wilton Road Creek would have been approximately equal to the BOD values obtained from the samples taken from the creek. The normal level of dissolved oxygen in the Wilton Road Creek would have been unlikely to have exceeded 10-12 mg/L of oxygen.

The very high BOD values obtained for samples S4 and S5 from the Wilton Road Creek indicate that there was potential to remove all oxygen from the water in the creek during the period of the discharge of leachate for a distance of at least 240 metres downstream from the discharge point into that creed.

A total lack of oxygen over a period of three days is likely to have killed all macro invertebrates in the Wilton Road Creek at least for a distance of 240 metres downstream of the discharge point into the creek.

The high BOD values obtained from samples taken from Wilton Road Creek continued at least until 11 August 1997, 4 days after the discharge.

The Wilton Road Creek contains suitable habitat for a number of species of frogs, which have aquatic life stages (eggs and tadpoles).

During two surveys conducted on 12 August 1998 and 8 September 1998, seven species of frogs were positively identified as using the Wilton Road Creek habitat, or ponds associated with the creek, below the Awaba Tip. These species were the common eastern froglet (crinia signifera), striped marsh frog (limnodynastes peroni), spotted grass frong (limnodynastes tasmaniensis), Peron's tree frog (litoria peroni), Tyler's frog (literia tyleri), red backed toadlet (pseudophryne coriacae) and the dusky frog (uperoleia fusca). Only two species of these frogs would have had tadpoles at that time of the year.

No threatened or endangered species of amphibians were found during the survey. Those found were common to the region.

The eggs of all species of frogs detected in the surveys as being present in the Wilton Road Creek are laid in water or very moist situations near the edge of water courses and their tadpoles live in the water. As noted above, no adult frogs were affected.

It is likely that four out of the seven frog species identified would have been active in the Wilton Road Creek below the landfill at the time of the discharge of the leachate into the creek. These were the common eastern froglet, red back toadlet, striped marsh frog and spotted marsh frog. These four species were active at the time of the surveys in 1998 and their tadpoles were found in an adjacent catchment, a tributary feeding into the Wilton Road Creek below the Awaba tip but not in the Wilton Road Creek below the Awaba Tip. As already noted, however, only two of the species would have had tadpoles at that time of the year.

The defendant concedes that there was a likelihood of pathogens present at all the sample points which were relevantly affected by the leachate, thus presenting a risk to human health. It is not possible to say whether or not there was a risk to human health beyond 500 metres below the confluence of the two unnamed creeks.

Recovery of the affected creek would have taken weeks or months. As a result of the flushing operations conducted by the defendant, the water quality in the reach of the Wilton Road creek between the discharged point of leachate into the creek and the constructed sump, would have recovered more quickly. It is less likely, however, that the biological recovery of this section of the creek by macroinvertebrates and frogs would also have occurred more quickly as a result of the flushing.

65. On 24 February 1998 Ms L Silk, an officer of the prosecutor, conducted a compliance on the Awaba Tip, accompanied by Ms Bruce.

Ms Silk observed the following at the Awaba Tip:

(a) the western stormwater diversion drain at the tip was poorly maintained, containing a tree limb and various bits of rubbish. Mr R W Taylor, the defendant's Waste Manager and Emergency Services Manager, states that the tree limb was placed within the western stormwater drain to slow the velocity of water therein;

(b) the leachate drain in the south of the tip was eroded and contained litter;

(c) leachate was seeping out of the eastern slope of the landfill, but was being directed to a leachate pond.

The executive summary of the compliance audit report refers to issues of concern at the tip, including a concern that the leachate barrier system, collection system and storage system may not be effective in preventing surface water and groundwater pollution.

It is convenient to consider the question of penalty by reference to the heads of consideration under the Environmental Offences & Penalties Act , s 9, together with other relevant considerations.

69 (a) The extent of the harm caused or likely to be caused to the environment by the commission of the offence .

There is no dispute between the parties as to the extent of the harm caused or likely to have been caused in this case. This is set out in paragraphs 51-65 above. The discharge of leachate into the creek occurred for some two or three days before 7 August 1997 and the high levels of BOD continued for four days after the discharge. There was thus a total of about seven days of high levels of BOD in the creek which had the effect described in the abovementioned paragraphs. The harm was, however, limited in extent to a few hundred metres of the length of the creek. Neither was the harm pemanent; the creek would have recovered in a matter of months.

70. (b) The practical measures which may be taken to prevent, control, abate or mitigate that harm.

The development consent which the defendant granted to itself, as noted in paragraph 7 above, contained a number of conditions of consent, together with a number of measures designed to ensure that there would be no pollution of waters downstream of the Tip described in the Environmental Impact Statement and noted in paragraph 8 above. Moreover, the Environmental Guidelines for Solid Waste Landfill had been published in January 1996 (as noted in paragraph 14 above). The Guidelines contained in that publication had not been observed by the defendant. If the conditions of the development consent and the measures described in the Environmental Impact Statement had been implemented then the polluting event would not have occurred. Likewise, if the Guidelines published by the prosecutor had been observed the polluting event would not have occurred. There were thus practical measures which were envisaged by the terms of the development consent which the defendant granted to itself, which was specified in the conditions of that consent, in the Environmental Impact Statement which was the subject of that consent and in the Guidelines, which not only could have been taken but should have been taken.

71. (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 .

The offence, although not deliberate or intentional, was entirely foreseeable. It was the result of negligence. The immediate cause of the particular incident was the result of leachate not being diverted to the designated leachate pond and instead running into a sedimentation pond; and the sediment pond was itself full of silt and sediment because it was not being properly maintained. The defendant's employee at the Tip, Mr Merrett, recognised the risk. I have referred (in paragraph 25 above) to the fact that some three weeks before the incident Mr Merrett had ordered a long-reach excavator to clean out the sediment pond, but it had not been delivered. Moreover, Mr Merrett had noticed not only a large amount of silt in the sedimentation pond, but that leachate was present in and discharging from the pond for two to three days before 7 August 1997. The less immediate cause of the particular incident was the large exposed area which had not been stabilised, again leading to the foreseeable consequence of high levels of sedimentation; and the failure to separate the leachate and stormwater run-off.

72. (d) The extent to which the person who committed the offence had control over the causes which gave rise to the offence.

The defendant owned and operated the Tip. It was solely responsible for the manner in which the Tip was operated. No third party was involved and no circumstances which were not within the control of the defendant contributed to the incident.

73. (e) Whether, in committing the offence, the person was complying with orders from and employer or a supervising employee.

As required by the Crimes Act 1900, s 493, I take into consideration the fact that the defendant pleaded guilty at an early stage. I also take into consideration the facts that this is a first offence, the defendant immediately responded to the incident in the manner described in paragraphs 29 and 30 above, the defendant took the further steps described in paragraphs 32 and 34 above to prevent any recurrence of the incident, the defendant has authorised the further work described in paragraph 35 above, the defendant has incurred the expenditure described in paragraph 34(h), (k), (n) and (o), and the defendant has decided to employ properly qualified staff as described in paragraph 34(l) and (m) above. Moreover, the defendant has now committed a further $1 million to implement the recommendations of Coffey Geosciences Pty Ltd noted in paragraph 35 above. These will amount to permanent measures which should prevent any repetition of the offence. Finally in favour of the defendant I take into consideration the fact that it is providing a public facility for the community and not for the purpose of making a profit therefrom; and that it must not only pay a fine but also pay the costs of the prosecutor, which fine and costs would fall upon the general body of ratepayers.

75. Against these considerations is the fact that the defendant is the Council of a local government area which itself has a responsibility to enforce and institute proceedings for offences arising under the Clean Waters Act : see Environmental Offences & Penalties Act , s 13(4)(a). The defendant should thus be setting an example for others, rather than itself committing a breach of that Act. It did not seek advice from Coffey Geosciences Pty Ltd until after the commencement of this prosecution. It has belatedly taken the steps which it should previously have taken to prevent the occurrence of the kind of offence for which it is now prosecuted. The audit of the Tip on 24 February 1998, noted in paragraphs 65-67 above, disclosed that some six months after the incident there still existed an unsatisfactory state at the Tip. I also have regard to the fact that the imposition of a fine is intended to act as a general deterrent.

76. Having regard to the principle of even-handedness, that is to say, taking into consideration the general pattern of penalties imposed by the Court in similar cases, and bearing in mind that the maximum penalty for this offence, in the case of a corporation, of $125,000 is reserved for the worst category of offence, I am of the view that a penalty of $40,000 is appropriate in this case.

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $40,000 for the offence.

3. The defendant pay the prosecutor's costs determined under the Land & Environment Court Act 1979, s 52(2).

4. The exhibits, other than exhibit B, may be returned.

I certify that the 36 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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