Environment Protection Authority v Lithgow City Council

Environment Protection Authority v Lithgow City Council - [2003] NSWLEC 425 - NSWLEC 2002 case summary — Zoe

[16]

The important point to note is that there was an alert issued by the Defendant to the public for the period from 14 February 2002 until 18 July 2002 warning of the presence of blue green algae in Farmer's Creek and advising that people and animals should avoid contact with the water. I also note that the Defendant has implemented procedures, in cooperation with its laboratory AWT, to prevent a recurrence of the licence breach with which it is charged. Further, the Defendant implemented a bacterial dosing programme after this licence breach was drawn to its attention but before it was notified of the Prosecutor's intention of bringing this prosecution. That bacterial dosing programme involves the injection of bacteria into the final effluent ponds which form part of the treatment works at Lithgow STP, with the aim of reducing the amount of algae present in the ponds. Over the last twelve month period, the Defendant has spent some $45,256 on this bacterial dosing programme. It is intended by the Defendant to continue this bacterial dosing treatment until the plant augmentation of Lithgow STP is completed and in operation. Environmental Harm 9. The Prosecutor's submissions relied on the evidence of Dr Lee Bowling, an expert in blue green algae science employed by the Department of Infrastructure, Planning and Natural Resources, whose evidence formed part of the Statement of Agreed Facts. Dr Bowling deposed to the harm resulting from blue green algae, particularly microcytes, a toxic form of blue green algae which was found to be present in the discharge. He gave evidence that the sewage treatment ponds in sewage treatment plants contain high concentrations of nutrients in which microcytes feed. He stated that microcytic blooms could change over time, so they may initially be non toxic and later become toxic and vice versa. Dr Bowling estimates that approximately sixty percent of microcytic blooms are toxic. He stated that ingesting microcytes may have a lethal effect on domestic stock, and may also cause gastroenteritis and diarrhoea in people. Dr Bowling's evidence was uncontested by the Defendant.

[17]

The Defendant made submissions to the effect that there is no evidence of actual environmental harm resulting from this particular breach. The Defendant further submitted that it is accepted that blue green algae will be discharged in any event until such time as the Lithgow STP has been upgraded. The Prosecutor did not disagree with this submission. The Defendant adduced evidence that the ability of the Lithgow STP to process the current sewage discharge which flows through it is insufficient to meet the current standards set by the EPA in relation to effluent quality for Farmer's Creek. The Defendant is currently required by the EPA to meet a sensitive water standard which is the highest standard achievable. The sewage treatment plant requires further augmentation works in order to meet that standard. The Defendant has been working with numerous other government agencies since 1996 to ensure that the necessary augmentation is achieved. The effect of the Local Government Act 1993 is that a Council cannot act unilaterally in improving sewage treatment works, but rather must do so through the Minister of Land and Water Conservation. Funds are required from the State government in order to enable the capital works to be conducted. Councils are also responsible for half of the costs of the capital works carried out in relation to sewage treatment facilities. The Defendant has ensured that its budget allocation is available for the augmentation works which it needs to carry out on the Lithgow STP but the Defendant is still waiting for the relevant State government funds. In the meantime, outbreaks of blue green algae occur from time to time in Farmer's Creek downstream from Lithgow STP, particularly during warmer weather. There is little that can be done to avoid that occurring. Section 241 of the Protection of the Environment Operations Act 1997 11. Submissions were put to me in relation to the factors contained in s 241 of the PEO Act which are to be taken into account, in so far as they are relevant, by the Court when imposing a penalty. Section 241(a) - the extent of the harm caused or likely to be caused to the environment by the commission of the offence 12. The Prosecutor noted, in submissions, that the provisions of s 241 are not necessarily directly applicable to a breach of licence conditions such as occurred here. The Prosecutor did, however, submit that the significance of the breach of the licence condition is that such licence conditions are important in the overall legislative scheme for the protection of the environment and the public. The requirement for the toxicity testing imposed on the Defendant's licence is, the Prosecutor submitted, intended to enable an assessment to be made of the level of potential for harm created by algal contamination in Farmer's Creek. It was said by the Prosecutor that neither the Defendant nor any other government body was in a position to understand the exact character of the hazard posed by this algal contamination without the toxicity testing required by the condition. As a result, it was impossible for the Defendant or anyone else to give the public accurate and complete information about the condition of the creek.

[18]

The Defendant's submissions in this regard were, as has already been noted, that there was no actual or likely harm caused to the environment by the breach of this licence condition. The Defendant submitted that there was already a system in place, implemented by the Metropolitan South Coast Regional Algal Coordinating Committee, of which the Defendant is a member, which ensures that the public is alerted to concentrations of blue green algae that are likely to be harmful. The public is notified as to harmful concentrations of blue green algae by letter box drops, newspaper articles and the placement of signs along the watercourse. The Defendant argues that over the period the offence was committed, namely on or about 11 March 2002, there was already in place an alert issued by the Metropolitan South Coast Regional Algal Coordinating Committee in relation to the algae in Farmer's Creek. The Defendant also submitted that no further specific action is required under the EPA licence as a result of toxicity testing to be conducted under condition R5.1 in the licence and that there was no evidence produced by the Prosecutor as to what use the toxicity testing results would, in any event, be put. Section 241(b) - practical measures that may be taken to prevent control, abate or mitigate harm 14. The Prosecutor submitted that, as evidenced by the steps that have since been taken by the Council, there clearly were actions which could have been taken to ensure compliance with the R5.1 licence condition. The Defendant submitted that as there was no harm resulting from the breach of the licence condition, the subject of this charge, s 241(b) did not apply in any event. Section 241(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 15. The Prosecutor submitted that it was reasonably foreseeable that the potentially toxic species of blue green algae would be discharged by the Lithgow STP. This was not disputed by the Defendant. However, the Defendant once again submitted that this section did not apply because there was no harm that was caused directly or likely to be caused by the commission of this particular breach of licence condition. Section 241(d) - the extent to which the person who committed the offence had control over the causes that gave rise to the offence 16. There was no dispute amongst the parties that the Defendant had control over the causes that gave rise to the offence at all relevant times.

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties

Cases Cited (4)

Cited By (3)