Environment Protection Authority v Maules Creek Coal Pty Ltd

Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Natural Resources Access Regulator v Maules Creek Coal Pty Ltd [2021] NSWLEC 135 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Dodd (1991) 57 A Crim R 349 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 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 R v Wheeler [2000] NSWCCA 34 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 Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Maules Creek Coal Pty Ltd (Defendant) Representation: Counsel: E Muston SC with B Anniwell (Prosecutor) T Howard SC (Defendant)

Solicitors: Environment Protection Authority (Prosecutor) Ashurst (Defendant) File Number(s): 2021/9091, 2021/9092, and 2021/9093 Publication restriction: Nil

Maules Creek Coal Pty Ltd Pleads Guilty to Three Water Pollution Offences

1. The defendant, Maules Creek Coal Pty Ltd ("MCC"), has pleaded guilty to three offences against s 120(1) of the Protection of the Environment Operations Act 1997 ("POEOA") at or near the Maules Creek mine ("the mine") located at Therribri Road, Boggabri, New South Wales. MCC is charged with: 1. one count of polluting waters with sediment on 18 January 2020 (matter 2021/9091) ("the first offence"); 2. one count of polluting waters with sediment on 8 February 2020 (matter 2021/9092) ("the second offence"); and 3. one count of polluting waters with expanded polystyrene beads ("EPBs") on 8 February 2020 (matter 2021/9093) ("the third offence").
2. The amended summons for the first offence relevantly charged MCC with the following: RELIEF CLAIMED The Prosecutor claims: 1 An order that the Defendant, Maules Creek Coal Pty Ltd (ACN: 140 533 875), whose registered office is at Level 28, 259 George Street, Sydney, NSW appear before a Judge of the Court to answer the charge that, on or about 16 January 2020, at or near the Maules Creek Coal Mine, Therribri Road, Boggabri in the State of New South Wales (the Licensed Premises), it committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in that it polluted waters. Particulars (a) Waters: Back Creek and downstream thereof. (b) Pollutant: Sediment and/or soil and/or earth and/or mud and/or stones and/or sand and/or clay and/or similar inorganic matter and/or washings and/or spoil from any extractive operation, and/or expanded polystyrene beads. (c) Manner of breach: The Defendant, which was the occupier of the Licensed Premises at or from which the pollution occurred, failed to manage sediment and erosion controls on the Northern Overburden Emplacement Area (NOEA) on the Licensed Premises, so as to prevent the Pollutant overtopping the wall of the subdrain that ran along the northern base of the NOEA and the Pollutant consequently: (a) entering the Waters; and/or (b) being placed in a position where it was washed into the Waters; and/or (c) being placed in a position where it was likely to wash into the Waters.
3. The amended summons for the second offence stated: RELIEF CLAIMED The Prosecutor claims: 1 An order that the Defendant, Maules Creek Coal Pty Ltd (ACN: 140 533 875), whose registered office is at Level 28, 259 George Street, Sydney, NSW appear before a Judge of the Court to answer the charge that, on or about 8 February 2020, at or near the Maules Creek Coal Mine, Therribri Road, Boggabri in the State of New South Wales (the Licensed Premises), it committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in that it polluted waters. Particulars (a) Waters: Back Creek and downstream thereof. (b) Pollutant: Sediment and/or soil and/or earth and/or mud and/or stones and/or sand and/or clay and/or similar inorganic matter and/or washings and/or spoil from any extractive operation. (c) Manner of breach: The Defendant, which was the occupier of the Licensed Premises at or from which the pollution occurred, failed to manage sediment and erosion controls on the Northern Overburden Emplacement Area (NOEA) on the Licensed Premises, so as to prevent the Pollutant overtopping of the wall of the subdrain that ran along the northern base of the NOEA and the Pollutant consequently: (a) entering the Waters; and/or (b) being placed in a position where it was washed into the Waters; and/or (c) being placed in a position where it was likely to wash into the Waters.

MCC Operates a Mine

1. The facts giving rise to the commission of the three offences were not in dispute and were contained in a statement of agreed facts dated 29 October 2021, an additional statement of agreed facts on environmental harm dated 21 February 2022, and a further statement of agreed facts on environmental harm dated 21 February 2022.
2. The mine is owned by Aston Coal 2 Pty Ltd ("Aston Coal 2") and J-Power Australia Pty Ltd, which hold mining leases over the mine. They have engaged MCC to operate the mine. Whitehaven Coal Limited ("WCL") is the ultimate holding company of MCC, Aston Coal 2 and Whitehaven Coal Mining Limited ("WCML").
3. The mine is an open cut coal mine located 45 km southeast of Narrabri and approximately 16 km northeast of Boggabri.
4. On 23 October 2012 the mine was approved under s 75J of the Environmental Planning and Assessment Act 1979 ("EPAA"). The State government declared the mine to be a State significant development for the purposes of the EPAA in August 2018.
5. Coal Lease 375, a mining lease granted under the Mining Act 1992 over the land on which the mine is situated, was renewed on 9 May 2013 until 4 June 2033 ("CL 735"). On 9 October 2014 an additional mining lease was granted, namely, mining lease 1701 ("ML 1701"). Both CL 735 and ML 1701 authorise mining for coal at the mine subject to the terms and conditions of those licenses.
6. Mining operations commenced at the mine in 2014.
7. The mine is an approved regulated activity under environment protection license 20221 ("the EPL") issued to MCC under the POEOA on 2 May 2013. The boundaries of the mine are as follows:
8. Back Creek, an ephemeral tributary, is situated on the northern boundary of the mine. Back Creek flows in a westerly direction into Maules Creek, and Maules Creek ultimately joins the Namoi River.

The Environment Protection License

1. The EPL was issued to MCC in respect of the scheduled activities carried out at the mine, including mining for coal, coal works and crushing, grinding or separating of rock for construction activities. The EPL was most recently varied by the EPA on 27 November 2019.
2. The EPL provides for a number of licensed discharge points and water monitoring locations:
3. Condition P1.2 of the EPL sets the limits for the discharge of pollutants to water from the mine: Water and land EPA Identification no. Type of Monitoring Point Type of Discharge Point Location Description 3 Wet Weather Discharge Wet Weather Discharge Dam labelled EPL(SD3) on aerial photo titled "Maules Creek Coal Project = MCC.EPL20221 Monitoring Locations" (DOC19/986052) dated 15/08/2019 Discharge water quality monitoring Discharge water quality monitoring

1. Condition L2.3 of the EPL prohibits the pollution of waters by any pollutant other than oil, grease, pH and total suspended solids ("TSS"): L2.3 To avoid any doubt, this condition does not authorise the pollution of waters by any pollutant other than those specified in the table/s.
2. The EPL sets the concentration limits for the discharge of oil and grease, pH and TSS at the mine from three sediment dams (labelled as EPL 3, EPL 7 and EPL 9 in the above image) in condition L2.4: L2 Concentration limits L2.1 For each monitoring/discharge point or utilisation area specified in the table\s below (by a point number), the concentration of a pollutant discharged at that point, or applied to that area, must not exceed the concentration limits specified for that pollutant in the table. L2.2 Where a pH quality limit is specified in the table, the specified percentage of samples must be within the specified ranges. L2.3 To avoid any doubt, this condition does not authorise the pollution of waters by any pollutant other than those specified in the table\s. L2.4 Water and/or Land Concentration Limits.
3. The discharge point known as EPL 3 (see the figure above) or Sediment Dam 3 ("SD3"), was the location of the third offence.
4. Condition L2.5 of the EPL permits the TSS concentration limits at the discharge points to be exceeded if: 1. the discharge occurs solely as a result of rainfall measured at the mine that exceeds 38.4 mm over any consecutive five day period prior to the discharge occurring; and 2. all practical measures have been implemented to dewater all sediment dams within five days of rainfall, such that they have capacity to store runoff from a 38.4 mm five day rainfall event.

The Water Management System

1. Operations at the mine included the removal of overburden (waste rock) using explosives and diggers to expose underlying coal seams. Overburden was transported by haul truck and deposited at a waste rock emplacement area known as the Northern Overburden Emplacement Area ("NOEA") located near the northern boundary of the Mine.
2. Running along the northern base of the NOEA was a subdrain which conveys dirty water in a westerly direction along the eastern and northern boundary of the NOEA to SD3.
3. The NOEA was built to an engineered design prepared by Golder Associates Pty Ltd ("Golder"). Golder provided the designs to MCC but was not responsible for the implementation and construction of the NOEA, or other erosion or sediment controls.
4. The water management infrastructure at the mine at all relevant times included various water storage dams, water diversion drains, and erosion and sediment controls. Sediment dams were designed to capture and treat dirty water from the disturbed areas of the mine. Runoff that was captured by the sediment dams was transferred into the mine water management system to maintain the sediment dam capacity or was discharged off the mine if the EPL conditions for pollutant levels were met.
5. Under the terms of its approvals MCC was responsible for the implementation of the water management system and drainage infrastructure at the mine.
6. Condition 38 of Sch 3 to the consolidated development consent for the mine (last modified on 20 December 2019) ("the consent"), relevantly required MCC to: …ensure that any surface water discharges of mine water from the site: (a) are of equal or better quality than the receiving waters; and (b) comply with the discharge limits (both volume and quality) set for the project in any EPL. Note: The project is based on a zero discharge basis of mine water in all modelled meteorological events, however the Department acknowledges that discharge of treated water may be required to be undertaken following very extraordinary events outside modelled data, if approved under an EPL.
7. The consent required MCC to implement the Water Management Plan for the mine dated March 2019 ("the WMP") and approved on 21 March 2019 by the Department of Planning, Industry and Environment pursuant to the consent. The WMP included a detailed description of erosion and sediment controls (dirty water management system) and the mine water management system.

The NOEA Was a Condition of MCC's Approvals to Operate the Mine

1. Condition 2 of Sch 2 of the consent required that the construction and operation of the mine be carried out generally in accordance with the EA.
2. Figures 9 to 13 of the EA show the conceptual mine plan, including the location of the NOEA and the collection drain at the base of the NOEA (known as the subdrain) that drains to SD3.
3. The EA relevantly stated: The ongoing management of overburden will include pre stripping topsoil from areas to be mined for use in final rehabilitation activities and placement of overburden within the Overburden Emplacement Areas in a manner that limits the risk of surface erosion. Field trials to identify the most appropriate topsoil and overburden materials for the revegetation and rehabilitation of final landforms will also be undertaken. … The Northern OEA is anticipated to be fully developed up to Reduced Level 430 m by the end of Year 10 (Figure 11). Rehabilitation activities of the Northern OEA will be undertaken progressively ensuring this area is largely rehabilitated by around Year 15 (Figure 12). The Western and southern faces of the Northern OEA are not proposed to be shaped for final rehabilitation until mining activities cease. Temporary rehabilitation activities will be undertaken on these faces to provide the relevant cover to these slopes to minimise wind blow dust and reduce visual effects to receivers to the north-west… Various minor infrastructure supporting day to day activities will be constructed within the Project Disturbance Boundary as required. This is likely to include: topsoil stockpiles, erosion and sediment control structures… … Since the presentation of the preferred mine plan within the PEA submitted in August 2010, the Project mine plan has been adjusted to address environmental, social and economic issues raised during the stakeholder consultation and assessment process. The Project mine plan and the assumptions used for modelling have been adjusted. Including: …Temporary rehabilitation of the exposed spoil that will not be rehabilitated for extended periods of time…
4. The Mine Plan Justification 2011 prepared by Hansen Bailey at Appendix B to the EA stated that: During the first ten years of operation, the NOEA is under progressive rehabilitation. As a portion of the NOEA is completed and no more emplacement of overburden is required to be undertaken out of pit, the NOEA will be topsoiled and vegetated to the standards in accordance with the Rehabilitation Management Plan. The steady state mining process sees that all waste materials generated from Year 10 onwards is dumped in-pit and rehabilitated progressively.

MCC Had Not Yet Completed Construction of the NOEA

1. The emplacement and shaping of overburden on the lower sections of the NOEA's northern and eastern faces was completed in December 2019. The emplacement of topsoil and ripping on those parts of the NOEA was completed on 20 December 2019. The NOEA had therefore not been constructed to its final height and was at RL 421.197 at its highest point on the eastern side as of 31 December 2019. Consequently, sediment and erosion controls for, and rehabilitation of, the NOEA were not complete by 16 January 2020.
2. As at 16 January 2020 the construction of the drop structures recommended in the 2019 Golder Report had also not been completed. Some drop structures had been partially installed on the NOEA, but they were not yet rock-lined.
3. MCC implemented ripping along the slope of emplaced topsoil designed to promote infiltration and slow down water flow. This work was completed on 20 December 2019, and was undertaken as an erosion control measure designed to reduce erosion on the NOEA until drains and drop structures could be installed.

Explosives Were Used at the Mine to Access Coal Seams

1. Explosives are used at the mine to fracture rock to access coal seams. In the process of preparing the explosives at the mine, EPBs are used to create low-density explosives.
2. An explosives compound is located within the mine. It comprises a storage facility and ancillary buildings and structures ("explosives compound"). HMS Australia Operations Pty Ltd ("Hanwha") operates and manages the explosives compound under a contract with WCML (dated 30 November 2016) to supply explosive products, systems and services to the mine for a period of five years from 1 October 2016 ("supply contract").
3. The supply contract relevantly stated (footnotes omitted): … b. Hanwha agreed to perform its obligations under the Supply Contract in accordance with (among other things): i. all applicable laws and regulations; ii. any licence, permit, consent, authorisation etc; iii. "Good Operating Practices"; iv. the "Site Rules" including all rules, regulations, directions and policies of WCML which relate to health, safety, environmental protection, security and emergencies; and v. directions of WCML (clause 6(a)); c. Hanwha was required to prepare, submit for approval by WCML, and comply with "Project Plans" for the Mine, which was defined to include an "Environmental Management Plan" and a "Licensed Area Management Plan" (clause 7); … e. Hanwha warranted to WCML that (among other things): i. at all times while performing the Supply Contract, it would: 1. "exercise due skill, care and diligence and Good Operating Practices"; … ii. the explosive products and systems would comply with all relevant laws and regulations and the Supply Agreement (clause 14.1(c)); iii. with respect to the Explosives Compound: 1. the storage facility at the Explosives Compound would: a. be constructed and installed so that it would be fit for its intended purposes; b. be maintained so that at all times it would be fit for its intended purposes; 2. the Explosives Compound would comply with all applicable licences, permits, consents authorisations etc; and 3. the Explosives Compound would comply with all applicable laws and regulations (clause 14.1(d)); iv. any plant or equipment to be utilised by Hanwha in the performance of its obligations under the Supply Contract would be fit for their intended purposes and comply with all relevant laws and regulations (clause 14.1(e)); … k. Hanwha was responsible for the safe and proper disposal of all waste (including any water and surface water or other material contained in any bunded areas) produced by the manufacture of the explosive products, the Explosives Compound, and in the performance of its obligations under the Supply Contract in accordance with all laws and regulations, Good Operating Practices, and the requirements of any authority and all reasonable requests of WCML (clause 30(a)).

The Management of the Drainage Run-Off and EPBs at the Explosives Compound

1. Water run-off from the explosives compound was categorised as contaminated water and was required to be drained into the mine's water management system.
2. At the time of the commission of the second and third offences on 8 February 2020, there was a bund around the internal perimeter of the explosives compound and drainage infrastructure in place to drain run-off from the explosives compound into a water dam on its southwestern side.
3. Representatives of MCC carried out a number of audits and inspections of the explosives compound including: 1. a General Environmental Inspection dated 22 September 2015; 2. an audit - Inspections Reports dated 22 September 2015; 3. a General Environmental Inspection dated 2 December 2015; 4. a monthly RMS Safety Inspection Sheet dated 25 July 2016; 5. a monthly RMS Safety Inspection Sheet dated 23 August 2016; and 6. a monthly RM Inspection dated 19 January 2017.

An Inspection by the EPA in 2018 Found Evidence of EPBs Discharge

1. On 8 August 2019 EPA Senior Operations Officer Simon Lund, together with MCC's Environmental Superintendent Emma Bulkeley and outgoing Maules Creek Coal Environmental Superintendent Scott Mitchell, conducted an inspection of the mine.
2. Lund inspected the explosives compound and observed that EPBs were escaping along two drainage lines running under the perimeter fence of the explosives compound and into a drainage channel that was located towards the roadway and which led into the sediment dams.
3. Lund observed that bunding around the explosives compound needed to be installed to stop the discharge of EPBs. He also identified that further action was required to clean up the EPBs around the compound.
4. Within days of Lund's inspection, MCC: 1. scraped the area around the explosives compound with an excavator to collect the escaped EPBs; 2. adjusted the camber outside the north eastern boundary of the explosives compound; 3. reinstalled drainage around the outside of the explosives compound, including the re-establishment of bunds on the outside of the explosives compound; and 4. gave verbal directions to Hanwha personnel at the mine regarding the improvement of drainage, clean-up, handling and management of EPBs within the explosives compound.
5. As a result of MCC's directions, Hanwha completed the following steps between August 2019 and February 2020, namely, it: 1. sealed holes in the EPBs containers that were stored in the explosives compound that had been caused by general wear and tear; 2. gave directions to the transporter of EPBs to the mine to improve the condition of containers in which EPBs were delivered to the mine; 3. placed additional screening around the EPBs loading station within the explosives compound to prevent EPBs being blown away while they were being loaded by an auger into mobile processing units; and 4. improved the internal explosives compound bunds and drainage system.

The Commission of the First Water Pollution Offence on 16 January 2021

1. The weather forecast for Boggabri on 16 January 2020 was for thunderstorms with a 90% chance of between 20 to 40 mm rain. For the month of January 2020 prior to the rainfall event on 16 January 2020, a total of 5.6 mm of rain only was recorded at the mine, with no individual rain event exceeding 2.8 mm.
2. On 16 January 2020 approximately 55.6 mm of rainfall was recorded between 1:30 pm and 5:15 pm at a rainfall station located 2.4 km northwest of the discharge location. Of that rainfall, 33 mm fell between 1:30 pm and 1:50 pm. Rainfall intensity peaked between 1:45 pm and 1:50 pm.
3. The rainfall intensities for durations between 10 minutes and 30 minutes had Annual Exceedance Probabilities ("AEP") of approximately 3-4% which equated to a 1 in 25 to 1 in 33 years Average Recurrence Interval ("ARI") event.
4. At the time of the rainfall on 16 January 2020, the subdrain had been constructed, maintained and desilted, and was operating to its design capacity.
5. During the rainfall event rehabilitated material (including topsoil and waste rock) on the NOEA was mobilised and washed into the subdrain built around the base of the NOEA. The subdrain commences to the south of the explosives compound, as marked with a brown line and identified as the "Dirty Water Drain for Sediment laden Water only":
6. By approximately 1:40 pm that day, the material that washed into the subdrain caused its partial blockage, which in turn caused sediment laden water to overtop the subdrain ("the first discharge") and flow across the adjacent paddock. That sediment laden water continued to flow beyond the boundary of the mine and discharged into Back Creek.
7. The duration of the overtopping of the subdrain was estimated to be for a period of 15 to 30 minutes between 1:45 pm and 2:15 pm. At approximately 2:15 pm, the flow in the subdrain scoured through the blockage and runoff ceased to overflow towards Back Creek.
8. The estimated duration of the overflow of the subdrain coincided with, and immediately followed, the peak rainfall intensity. Approximately 21.2 mm of rain was recorded during the period when the subdrain overflowed.
9. The first discharge into Back Creek did not occur from a licensed discharge point. Rather, it occurred approximately 1 km east of SD3 (see the image above).

MCC Obtained Water Samples on 16 January 2020

1. Water samples were obtained by MCC on 16 January 2020 during the rainfall event. Curiously, results for water samples taken from Back Creek at locations upstream and downstream of the mine showed that levels of turbidity and TSS in Back Creek were lower downstream of the mine compared to upstream of the mine.
2. On 17 January 2020 further water samples were obtained by MCC during the rainfall event from the monitoring points identified in the EPL, as follows: 1. sample 200140-1 was collected from the same location as sample 200106-4 collected on 16 January 2020; and 2. sample 200140-2 was collected from the same location as sample 200106-3 collected on 16 January 2020.

MCC Reports the First Discharge

1. Bulkeley made the following report to the EPA Environment Line by telephone at 4:44 pm on 16 January 2020: Due to severe storm in area there is potential uncontrolled discharge of sediment-laden water at a drainage area, with potential to enter Back Creek. Sediment-laden water is run-off from a rehabilitation area. This is a non-licensed discharge point. There has been about 50mm of rain in an hour. A crew were attempting to clear out the drain area to ameliorate the problem but have had to seek shelter due to continuing lightning activity and heavy rain.
2. Bulkeley also contacted Lund at 6:40 pm on that same day, first by phone call and then email. The email stated: In follow up to the message I left you this afternoon Maules Creek Coal has initiated their PIRMP. At approximately 2pm today 16th January a sub drain around the outside of the mine overtopped during a large rain event (approximately 40mm over 1hrs). This uncontrolled discharge resulted in sediment laden water being transported into Back Creek. Appropriate measures including sampling of discharge and receiving waters have been undertaken. Additional rain is predicted over the next couple of days and all measures will be undertaken to mitigate any further discharges from this drain. In accordance with the PIRMP a detailed report will be provided of the incident within 7 days of occurrence of this incident. I will contact you tomorrow to discuss the steps taken by site.
3. MCC provided an Environmental Event Report relating to the first discharge to the EPA within seven days of the event occurring.

The EPA Received a Complaint About the First Discharge from Druce

1. On 17 January 2020 the EPA received a complaint about the first discharge from a member of the public, Roselyn Druce. Druce's email of complaint was as follows: Official complaint of the Maules Creek Coal Mine releasing water into Back Creek after a rain event on the 16th January 2020, which I believe may have come about due to a levee bank failing to divert the water into the sediment dam near Back Creek, or run-off from the overburden below the sediment dam capture area… As a concerned local I would ask that this incident be fully investigated, including Water sampling below the mine site.
2. Druce lives at 66 Teston Lane, Wongalea, Maules Creek, located adjacent to Back Creek and 7 km downstream of the mine.

Action Taken by MCC After the First Discharge

1. Between 16 January 2020 and 8 February 2020, MCC desilted and removed material from the subdrain that runs around the base of the NOEA, constructed a 0.5 m high bund on top of the southern embankment of the subdrain at the location where the subdrain overflowed and dewatered SD3 to increase its available capacity.
2. As at 16 January 2020 SD3 had a catchment area of 516 ha and a capacity of 170.8 ML. Records show that water was pumped out of SD3 and into the mine water dam as follows: 1. between 13 to 20 January 2020, 11.342 ML was pumped; 2. between 20 January to 3 February 2020, 23.174 ML was pumped; and 3. between 3 to 20 February 2020, 114.028 ML was pumped.
3. By 23 January 2020 SD3 had approximately 70% available capacity. On 23 January 2020 there was 2.4 mm of rain over the mine and the next day there was 12.4 mm rain.
4. A week after the event on 16 January 2020, MCC commenced desilting the subdrain using excavators and Moxy trucks to cart the silt to the top of the NOEA. This continued for approximately one month. However, no rehabilitation work was able to be undertaken on the NOEA between 16 January and 8 February 2020 due to inclement weather and the ground conditions being too wet to allow equipment to operate safely without damaging the slope or posing a risk to people operating the heavy machinery.
5. The mine received 6.6 mm of rain on 6 February 2020 and 14.4 mm on 7 February 2020. The rainfall on 6 February 2020 was the first rain recorded over the mine since 24 January 2020. A pre-rainfall inspection checklist dated 7 February 2020, stated that SD3 had approximately 40% capacity and was being dewatered.
6. On 28 January 2020 Lund and EPA Operations Officer Angus Adair attended the mine to inspect the location of the first discharge. Bulkeley and Ross Wilson, MCC's Health, Safety and Environment Manager, also attended the inspection. Lund observed a large amount of sediment dispersed on the ground that had discharged from the subdrain and had deposited across the paddock and extending into Back Creek.
7. The EPA's Inspection Report, dated 28 January 2020, stated as follows: Drove to northern side of min, as we drove i notices that: 1. The OB emplacement [NOEA] in at least three locations had serious gully erosion on them… 2. significant amount of sediment had washed into the sub-drain along its length… …at about 900m to the east of Sediment dam a large section of the OB emplacement [NOEA] had suffered from gully erosion and could see that a discharge had occurred at this point by the scouring on the far side of the sub-drain wall and the volume of sediment discharged across the paddock. …We walked from the wall of the sub-drain across the paddock…The sediment in the paddock was the same colour and make up of the sediment on the OB emplacement [NOEA]… that ran for about 250 metres in length by about 400 to 500 metres wide…down to the creek, there was a wire fence that was confirmed as being the mine boundary. The sediment…ran under the fence and into Back Creek…

The Commission of the Second and Third Water Pollution Offences on 8 February 2020

1. The weather forecast for Boggabri on 8 February 2020, was thunderstorms with a 90% chance of between 10 to 20 mm of rain. However, approximately 96 mm of rain was recorded as falling at the mine that day at licenced monitoring point EPLW1.
2. Between 11:20 am and 2:20 pm, 83.6 mm of that rainfall fell. This event had an AEP of less than 1%, which is greater than a 1 in 100 ARI event.
3. During that rain event, in addition to sediment laden water, EPBs from the explosives compound mobilised and were deposited at off-site locations along the watercourse of Back Creek.

The Second Discharge

1. During the rain event material eroded off the NOEA and entered the subdrain at the base of the NOEA causing a partial blockage of the subdrain. The blockage caused sediment laden water to overtop the subdrain for a period of approximately 45 minutes between 2:15 pm and 3:00 pm and to flow across an adjacent paddock ("the second discharge"). The sediment laden water continued to flow beyond the boundary of the mine and discharged into Back Creek.
2. The second discharge did not occur from a licensed discharge point. It occurred close to the location of the first discharge.
3. WRM estimated that approximately 2.16 ML of sediment laden water overflowed into Back Creek. It estimated that around 10% of the runoff within the subdrain overflowed at the partial blockage between 2:15 pm and 3 pm and flowed north towards Back Creek. The remaining 90% of the runoff within the subdrain continued to flow west towards SD3.
4. Given the depth of rainfall prior to and during the drain overflow, WRM estimated that 100% of the water that overflowed the subdrain would have reached Back Creek.
5. Based on the recorded flows at the water level gauge SW10 in Back Creek upstream of the overflow from the subdrain, WRM estimated that approximately 61 ML of runoff flowed past the mine in Back Creek between 2:15 pm and 3:00 pm. Therefore, the available dilution volume within Back Creek for the duration of the 45 min overflow of the subdrain was approximately 28:1.

The Third Discharge

1. On 8 February 2020 sediment laden water and EPBs also discharged from SD3 ("the third discharge"). From 1:30 pm that day SD3 commenced overflowing into Back Creek and continued to overflow until 10 February 2020.
2. Over the preceding two days, that is between 1:30pm on 6 February 2020 and 4 pm on 7 February 2020, 21 mm rainfall was recorded at the mine. By 11:35 am on 8 February 2020 the rainfall recorded at the mine had surpassed 38.4 mm for a five day period. No discharge from the licenced discharge point at SD3 had occurred. Therefore, in that time period and in accordance with condition L2.5 of the EPL, MCC was permitted to exceed the TSS concentration limit specified for water discharged from SD3. This is what occurred from approximately 1:30 pm on 8 February 2020.

After 8 February 2020 MCC Obtained Additional Water Samples

1. During the rainfall event on 8 February 2020 and from 9 to 11 February 2020, MCC personnel collected water samples at a number of monitoring points. There were no EPBs in the samples.
2. No samples were taken from the wall of the subdrain where the overtopping occurred in respect of the second discharge because the discharge had ceased by the time that the MCC Environmental Superintendent attended the second discharge location.

The EPA Received a Second Complaint about the Second and Third Discharge Events

1. On 8 February at 8 pm, the EPA received a complaint by email from Druce that EPBs had washed down Back Creek and onto her property. The email was accompanied by photographs showing the overburdened Back Creek and embankments with EPBs discharge: I am reporting an incident regarding the Whitehaven Coal Maules Creek Mine. Back Creek has been contaminated by Flooding and overflowing of MCCM drill blast station, I believe that this has to be the source of contamination as I have found tiny Styrofoam balls that I believe is used in the blast holes and is most likely stored at this drill blast station. …the site…was flooded and overflowed down the channel that extends around the north/eastern side of the mine and feeds into the sediment dam adjacent to Back Creek. This sediment dam has a discharge point above the dam which may have overflowed before any of the contamination from the drill blast station reached the sediment dam. The property 'Wongalea' is approximately 7klms distance from the spill site, yet there was clear evidence that this contamination was collecting along the banks of the contour and flowing down with the rapidly moving water. Back Creek feeds into Maules Creek at Harparary which then flows on to enter the Namoi River. I have labeled this on the Google map that I will send in the next email.

MCC Reported the Second and Third Discharge to the EPA

1. On 8 February 2020 Bulkeley made a report to the EPA as follows: Telephone Recording After hours call EPA106915. Overflow of a drain in a…[86mm] rain event…[Maules] Creek Coal Mine. Water into back creek for potentially 45 minutes. DO advised at 17:23, DO acknowledged at 17:56. Email This is a notification in accordance with Condition R2.1 of EPL 20221. During an extreme wet weather event of 186mm on the 8th February 2020 MCCM a wet weather discharge occurred from the sub drain on the northern end of the mine. It is estimated that the area discharged water for approximately 45minutes from approximately 14:15 - 15:00, this water reported to Back Creek which was in flood at this time. This event has been reported to the EPA hotline reference number #906035. In accordance with Condition 2.2 a detailed report will be made available in 7 days.
2. The EPA was not advised that EPBs had been discharged in the 8 February 2020 notification. However, on the morning of 10 February 2020, Bulkeley made a further report to the EPA Environment Line reporting that: Due to heavy rain and flooding staff have found likely impact to Back Creek from polystyrene balls used in blast product. The volume of balls lost is not known at present. Another storm is expected imminently - when safe to do so crew will inspect the waterway to identify mitigation measures if feasible.
3. MCC prepared Environmental Event Reports in relation to the second and third discharges and emailed them to the EPA on 14 February 2020.

Action Taken by MCC After the Second and Third Discharges

1. MCC engaged Golder to prepare a report following the rainfall event on 8 February 2020, Maules Creek Erosion Reivew [sic] following extreme rainfall in February 2020, dated 10 March 2020 ("the Golder Erosion Review").
2. The issues addressed by the Golder Erosion Review relevantly included: 1. whether the NOEA performed reasonably in the circumstances and, considering the state of construction work, whether the storm on 8 February 2020 highlighted potential issues that needed to be addressed; 2. what could have been done to better manage the risks associated with extreme weather events during construction of the NOEA; and 3. what was the best strategy to cost-effectively repair the erosion damage given that access was constrained on some areas of the NOEA.
3. The Golder Erosion Review found that erosion on the NOEA had been exacerbated by: 1. the extreme rainfall; 2. the prolonged drought of the previous few years; 3. the fact that there was no vegetation on any of the rehabilitated areas; 4. the fact that the water management infrastructure on the NOEA was still largely under construction, notably: 1. no rock armouring in the drainage lines had been installed at the relevant time; and 2. the western drop structure had been shaped but not completed because no rock armouring had been installed; 1. the fact that topsoil had been stockpiled in two locations along the top of the NOEA extending across drainage lines and that this material had been washed out by the storm; and 2. the fact that the partial blockage and overflow of the subdrain on 8 February 2020 occurred at the base of the western drop structure, which had eroded significantly.
4. The Golder Erosion Review also noted that: …the drop structures have eroded significantly in the lower extents with head cutting back upslope, particularly at the drain shown in Figure 2. This is not unexpected with the high velocities and tractive stresses requiring rock armouring. It seems likely that the lack of contour banks limited erosion further up the slope on this drain, with more significant head cutting extending upslope to the point where runoff from above the topsoil stockpiles would have concentrated and then drained into the drop structure.
5. Finally, the Golder Erosion Review recommended that the following could have been done to better manage risks associated with extreme events during construction of the NOEA: …if not already part of the planning process, a risk assessment needs to feed into the construction planning process for those areas where the preferred sequencing cannot be implemented. Such a process may have resulted in a different sequence of construction on the WRD.

The EPA Inspected the Mine and Druce's Property Following the Commission of the Second and Third Offences

1. On 10 February 2020 Lund and EPA Operations Officer Curtis Attard attended the mine and observed EPBs in puddles and drainage lines around the explosives compound and vegetation along the side of Back Creek.
2. The EPA officers took a number of photographs during the inspection. The Court was taken to three of these images which showed: the discharge point of the second offence; EPBs in Back Creek; and EPBs in a tree near the creek.
3. Attard and Lund inspected Druce's property on 11 February 2022. They took photographs during this inspection. The photographs depicted EPBs in the vegetation of the levee bank and riverbanks of Back Creek.
4. The EPA also took water samples at the explosives compound on 10 February 2020 and at Druce's property on 11 February 2020.

WCL Directed Hanwha to Take Actions to Ensure That No Further EPBs Were Discharged

1. Following the release of the EPBs from the explosives compound on 8 February 2020, WCL directed Hanwha to: a. install the necessary plant, equipment and storage facilities at the Explosives Compound to control storage of the EPS balls (including setting out when that plant, equipment and storage facilities will be installed) and ensure no further EPS balls are released from the Explosives Compound; b. investigate other options rather than the use of EPS balls in the manufacture of its explosive products; and c. deploy the necessary resources to assist Whitehaven and Maules Creek Coal in the clean-up activities required for Maules Creek Coal's compliance with the First Clean-Up Notice.
2. In response to a statutory notice issued by the EPA to it, Hanwha produced the Hanwha Environmental Management Plan ("HEMP"), dated 7 March 2017.
3. The HEMP prepared pursuant to the supply contract, noted under the heading "environmental history" that there were several known events of EPB spills during windy conditions in October 2015.
4. The Aspects and Impacts Register in the Hanwha Environmental Management Plan recorded "significant aspects and impacts identified for the site", which included: EPS [EPBs] escape from loading container" which was identified as being very likely to occur without the controls specified in the Register and potential impacts being "land contamination, impact to fauna and flora". … EPS [EPBs] escape from shute into top of truck", which was identified as being very likely to occur without the controls specified in the Register and potential impacts being "land contamination, impact to fauna and flora. … Rain/storm" involving "contaminated sediments leaving site boundaries due to rainwater" which was identified as being likely to occur without the controls specified in the Register and potential impacts being "land and groundwater contamination, impact to fauna and flora.
5. The EPA interviewed Derrick Henning, General Manager of Hanwha Mining Services NSW on 23 July 2020. Henning relevantly stated: a. When asked by the EPA in "terms of daily operation of the Compound…What responsibilities do Whitehaven have?": "Not, not, much at all. So, pretty much all the activities in the compound are managed by Hanwha." b. When asked by the EPA "in terms of meeting Hanwha's contractual obligations with Whitehaven. What processes are in place by Whitehaven to ensure that you guys are meeting their requirements?": "…a daily report…a weekly update, or a report and a monthly report as well…monthly management meetings and then quarterly meetings and a quarterly report…and we're also required to report any incidences…into their INX system…any incidences that happen on the mine sit …we have our own INX system which is not linked to theirs but we…follow their process - their safety management process which we also - but we also follow ours so it's kind of a duplication but it's necessary". c. When asked by the EPA "So, at the time when you noticed that what issues did you raise with Whitehaven in relation to that?: "I didn't raise any issues with Whitehaven…in hindsight I probably should have, I just figured we would clean it up…I was, I guess, ignorant of the extent of it and didn't really appreciate the extent of it…" d. When asked by the EPA "So, in terms of those past practices [prior to Mr Henning starting with Hanwha on 16 September 2019] what were you told?": "I meant I didn't see it but from what I'm being told and what's been happening. Things have spilt well, we'll get, get some more gravel and we just cover it over…it's spilt a bit more gravel and cover it again it's over…Whitehaven's coming down for a visit just cover it over with gravel." e. When asked by the EPA about the "work practice where EPS could escape from": "when the shipping containers backed up to the loading room…there were gaps between the shipping containers and outside…there was numerous leaks and holes…in the actual loading room. …the auger where it goes out the bottom of the loading room…into the explosive's truck…there was leaks…there's a tube that hangs down off the auger and I asked…"What was the stuff on the floor?"…they said, "that dribbles out from the, from the auger sometimes"…actually just lift up the tube…to stop that from happening…a culture existed that wasn't conducive to improving thing, there was no mindset around continuous improvement…it was just…this is what it is…we'll get on and do…what we've always done."

The EPA Issued Two Clean-Up Notices to MCC

1. On 21 February 2020 the EPA issued a Clean-Up Notice to MCC under s 91 of the POEOA ("the first Clean-Up Notice").
2. The first Clean-Up Notice required MCC to, among other things: 1. take immediate action to ensure that no EPBs were located in any structure designed to carry water at the mine, as far as practicable, including, but not limited to, subdrains, stormwater drains and stormwater dams; 2. pump out SD3 and ensure that no EPBs were, as far as practicable, contained within it; 3. in order to ascertain the extent of the pollution incident: 1. within five days after receipt of the Notice, contact all downstream landowners neighbouring Back Creek to identify if these landholders had been impacted by the release of the EPBs; 2. within two days of any notifications provided to MCC by the landowners, attend the property and record the location, quantity, and area affected by EPBs; 3. identify potential clean-up options for properties where EPBs was identified; and 1. within five days of receipt of the Notice, contact the NSW Department of Industries - Fisheries to arrange an inspection of the reach of the Namoi River (known as the Namoi River Demonstration Reach) to determine if any EPBs had entered it and to determine any necessary clean-up actions.
3. MCC undertook the following actions in compliance with the first Clean-Up Notice: 1. it carried out works on all water carrying structures to remove all EPBs as far as practicable; 2. it pumped as much water as possible from SD3 and used machinery to scrape down the sides and remove all visible EPBs; 3. because small numbers of EPS were identified on properties adjoining Back Creek downstream of the mine, MCC continued along Back Creek at 51 different locations and recorded quantities of EPBs at each location ranging between "less than 5" to "greater than 200"; and 4. an inspection was undertaken of the Namoi River Demonstration Reach on 29 February 2020. No EPBs were identified.
4. MCC submitted its report on the activities undertaken by it in compliance with the first Clean-Up Notice to the EPA on 25 March 2020.
5. On 9 April 2020 following receipt of this report the EPA issued another Clean-Up Notice to MCC under s 91 of the POEOA ("the second Clean-Up Notice"). The second Clean-Up Notice required MCC, among other things, to: By 5pm on 30 April 2020, the licensee must remove all EPBs from the locations identified in the maps marked Annexure A of this notice. The EPBs must be removed by walking those areas identified in the maps mark Annexure A of this notice, and only by using Blower Vacs to remove the EPBs.

The EPA Issued a Statutory Notice Seeking Information and Records Relevant to the Second and Third Offences

1. On 14 May 2020 the EPA issued a statutory notice under s 191 of the POEOA seeking information and records relevant to the second and third discharges. In response to the request to provide information on how the EPBs escaped the explosives compound and travelled into Back Creek, MCC responded by stating that: Windblown EPS [EPBs] were mobilised out of the RMS [the Explosives Compound], into the mine drainage system, which was then breached, resulting in loss of containment into Back Creek.
2. MCC personnel participated in recorded interviews with the EPA and made the following statements about EPBs in relation to the second and third discharges: 1. Bulkeley attended the location of the second discharge after the water had stopped discharging. She stated that she saw "a handful five to 10 range" of EPBs at the base of the levee running along the subdrain but that she did not think that EPBs had been mobilised in the overflow of the subdrain given the small number that she observed; 2. George Stevenson, who also attended the location of the second discharge after the water had stopped discharging, stated that he saw some EPBs in the "watermark" at the location where the subdrain overflowed and a "couple in the trash" in the paddock; 3. Matthew Smith observed "white poly balls" during the third discharge from the spillway located near SD3; 4. Jason Conomos, when asked about whether he had observed EPBs in the water at the location of the third discharge on 8 February 2020, said that he could not recall as there was a lot of debris. He could have, but did not make a specific note of them; and 5. when asked if he had seen any EPBs in the third discharge from the licensed discharge point, Christopher Walshe replied "I didn't see any [EPBs]".

The EPA Inspected the Mine on 23 June 2020

1. On 23 June 2020 Lund, and EPA Senior Investigators Catherine Stack and Stephen Knight, attended the mine to conduct an inspection. During the inspection they took a number of photographs, some of which the Court was directed to during the hearing. The photographs showed changes to the water management system infrastructure for EPBs loading.
2. Lund saw EPBs located in drainage lines, pipes, and on the nearby ground. He took photographs of the EPBs that he observed. He also noted that changes had been made to the explosives compound and NOEA since his inspection of the mine on 10 February 2020. In particular, he observed: 1. newly installed shade cloth covering the height of the perimeter fence; 2. a new bund inside the perimeter fence line; 3. drain more freely into a drain that ran into an existing mine water system dam located on the south-western side of the explosives compound; 4. re-grading of the land uphill from the explosives compound; 5. changes to the water infrastructure, including the installation of a new dam and pump infrastructure on the north-eastern side of the explosives compound to capture any runoff from around the outside of the explosives compound and direct it back to the mine water system; 6. re-grading of the NOEA to reduce its slope; and 7. installation of rock-lined drains on the NOEA.

The Causes of the Commission of the Offences

1. The offences were primarily caused by MCC not implementing sufficient erosion and sediment controls and by failing to prevent EPBs discharging from the spillway. The following factors contributed to the causes of the commission of the three offences: 1. MCC had not established vegetation on any part of the NOEA due, in part, to the drought; 2. erosion controls on the NOEA were still under construction at the time of the rainfall events on 16 January and 8 February 2020. In particular, the drainage structures on the NOEA had not yet been rock-lined resulting in the erosion of topsoil and overburden from those structures during the extreme rainfall events into the subdrain; 3. the topsoil was spread in concentrated flow paths on the NOEA; 4. the placement of topsoil stockpiles in concentrated flow paths and immediately adjacent to drain D1; 5. rip lines were not on the contour; and 6. MCC had failed to remove by means of contour ripping temporary access tracks and depressions formed by vehicle or machinery traffic.
2. There were two additional contributing causes to the commission of the first and second offences, either as a result of the partial blockage of the subdrain or as a consequence of the volume of sediment that was discharged from the subdrain, namely, that: 1. there had been prolonged drought conditions prior to 16 January 2020, from 2017 to 2020. The historical rainfall and streamflow data for Maules Creek indicated that the antecedent conditions in the vicinity of the mine prior to the three offences were dry. In particular: 1. the recorded annual rainfall for the Boggabri (Kanownda) daily rainfall gauge was significantly below the long-term average of 582 mm in 2017 (462 mm), 2018 (391 mm) and 2019 (274 mm) calendar years. The recorded 2019 rainfall was the lowest on record; 2. the Avoca East gauge, which monitors streamflow in Maules Creek upstream of its confluence with Back Creek, recorded two runoff events in March and May 2019, respectively, but no runoff events from mid May until the end of 2019; and 3. the dry antecedent conditions were likely to have resulted in poor vegetative cover in both the mine rehabilitation areas and the undisturbed land in the catchment of Back Creek. Poor vegetative cover correlates with higher expected rates of soil erosion. Prior to 16 January 2020, there were large areas of land upstream and downstream of the mine that were vulnerable to large scale erosion; and 1. the extreme rainfall events of 16 January and 8 February 2020.

The Purposes of Sentencing

1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

Statutory Matters Required to be Taken into Account in Sentencing

1. In addition to the matters set out in the CSPA, the POEOA sets out the factors which are required to be taken into account when sentencing for offences committed under that Act. Section 241 of the POEOA relevantly provides that: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):- (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant.
2. Subsections 21A(2) and (3) of the CSPA also set out aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case they are: 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), (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…

Objective Circumstances of the Commission of the Offences

1. The objective gravity of the offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
2. The objective seriousness is to be determined by reference to the nature of the offence and not by reference to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).
3. In determining the objective seriousness or gravity of the offence the relevant objective circumstances include: the nature of the offence; the maximum penalty under the Act establishing the offence; the reasons for committing the offence; the environmental harm caused by the commission of the offence; the foreseeability of the risk of environmental harm caused by the commission of the offence; the practical measures to prevent environmental harm; MCC's control over the causes giving rise to the offence; and MCC's state of mind in committing the offence.

Nature of the Offence

1. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
2. The relevant objects of the POEOA identify the purpose of creating the offences with which MCC has been charged: 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…
3. The pollution of water is considered a "result offence where the proscribed result directly undermines the object of the" POEOA (Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [23]). As Robson J observed in Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 at ([80]-[81]): 80 The offence of water pollution plays an important role in giving effect to the objects in s 3 of the POEO Act, which include to protect the quality of the environment and to prevent pollution of it. As Preston CJ of LEC observed in Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 ('Baiada') at [23]: "[p]ollution of waters is a result offence where the proscribed result directly undermines the object of the Protection of the Environment Operations Act." 81 The prohibitions on pollution in the POEO Act are moderated by the licencing regime in the legislation, which allows holders of environment protection licences to undertake activities that would otherwise constitute pollution (based on an assessment by the relevant regulator). Relevantly, the conditions of Sydney Water's EPL 378 allow sewage discharges in specific circumstances (such as the approximately 8,600,000 litres constituting the Wet Weather Discharge). By polluting waters, other than in accordance with the conditions of EPL 378 that were assessed and imposed by the regulator, Sydney Water undermined the objects of the POEO Act and the statutory scheme that prohibits pollution unless in accordance with an environment protection licence.

Maximum Penalty

1. The maximum penalty provided for an offence indicates the seriousness with which Parliament views the commission of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698E and Rawson at [57]). It also provides a sentencing yardstick for the case before the Court (Markarian at [31] and Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]).
2. The maximum penalty for an offence against s 120(1) of the POEOA by a corporation is $1,000,000.

MCC's State of Mind in the Commission of the Offences

1. The offences are crimes of strict liability which means that mens rea is not an element of the offence. However, the state of mind of MCC at the time of their commission is a relevant consideration in the determination of an appropriate sentence. A strict liability offence that is committed intentionally, negligently, or recklessly, will be objectively more serious than one committed accidentally (Camilleri's Stock Feeds at 700A-700E; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]; and Rawson at [98]).
2. The EPA did not make submissions in respect of MCC's state of mind in the commission of the offences. The circumstances of the commission of the three offences demonstrate that MCC did not act intentionally, recklessly or negligently.

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

1. The environmental harm caused by the commission of the offences is a central consideration in determining their objective gravity and MCC's culpability.
2. Section 241(1)(a) of the POEOA requires that the Court take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offences. "Harm" is defined in the Dictionary to the POEOA to include: 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.
3. The concept of harm in the context of environmental offences is broad. 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]-[149]): 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. 149 The fact that the environment harmed by the offenders conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd (unreported, Land & Environment Court, No 50129 of 1991, Bignold J, 1 November 1991) at p 4; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at 273 [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at 224 [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26].

The Extent of the Environmental Harm

1. Ephemeral streams, like Back Creek, are streams which are dry for long periods and contain water only for short periods after rainfall events. Often, after periods of no-flow, the rainfall events that generate first flow in ephemeral streams are of high intensity and cause flash floods that contain a high sediment load. Aquatic flora and fauna in ephemeral waterways are extremely resilient and can recover from disturbances such as drying and flash floods.
2. The bed of Back Creek consists of mobile sand and gravel sediment derived from the surrounding landscape.
3. In November 2019 12 sites along Back Creek, Maules Creek and the Namoi River were surveyed in accordance with the WMP. The riparian zone at all 12 sites was dominated by exotic grasses due to the absence of, or limited, water.
4. Cease-to-flow conditions persisted along the regulated portion of the Namoi River in the 10 months prior to February 2020. These conditions were broken by the arrival of a low-pressure system that generated flow in mid January and February 2020.
5. Back Creek TSS during a significant rainfall event is much higher than during low flow conditions, as reflected in routine water quality sampling. Data from 2016 to 2020 showed that Back Creek TSS concentrations were in the range of approximately 25 to 280 mg/L in low flow conditions. The intensity of the rainfall events on 16 January and 8 February 2020 would have amplified the naturally dynamic nature of soil erosion and sediment transport in the catchment.
6. Flow in Back Creek would have continued both before and after the overflow period of the first and second offences (30 mins and 45 minutes, respectively).
7. Soil erosion and sediment transport by overland flow are dynamic processes and sediment concentrations during a runoff event are highly variable. This means that sediment concentration recorded at a particular time is unlikely to be representative of the concentration throughout the duration of the event.
8. TSS is a reliable representative water quality parameter because many pollutants in runoff are associated with sediment particles.
9. As observed above, the recorded concentrations of TSS at Back Creek were higher upstream from the mine compared to downstream during the commission of the first and second offence. MCC therefore submitted that the first and second discharge of sediment laden water was unlikely to have caused any material harm to the environment insofar as the additional sediment load deposited on the environment as a result of the discharges could not be quantified (T32:30-33:18).

The Impact on the Environment Caused by the Commission of the First Offence

1. Next, the extent of the likely environmental impact caused by the commission of the three offences must be assessed.
2. The likely impacts on water quality caused by the commission of the first offence were as follows: 1. the TSS value dropped by more than 80% in less than 24 hours when compared to recorded TSS values in Back Creek upstream of the mine in the days prior to the first discharge. This value, however, should be considered in light of the significant variability in runoff sediment concentrations on 16 January 2020 because the rainfall event was an initial 25 minute heavy burst followed by lower rainfall; 2. the TSS in Back Creek upstream of the mine was not sampled until approximately 2.5 hours after the peak rainfall intensity. It is likely that the TSS upstream from Back Creek was substantially higher during the initial stage of the period of overflow from the subdrain than the recorded TSS (3,600 mg/L) at 4:15 pm; and 3. the recorded TSS downstream of the mine at 4 pm was 2,100 mg/L which was less than the upstream concentration recorded 15 minutes later. However, the upstream and downstream sample were taken more than two hours after the overflow of the subdrain ceased and are therefore unlikely to reflect the maximum TSS concentrations during the rainfall event, including from the overflow of the subdrain.
3. The potential for the commission of the first offence to have caused serious harm to the environment by degrading the water quality of Back Creek was low because the duration of the overflow was short (approximately 30 minutes) and it occurred in the context of sediment laden water flowing into Back Creek from other sources during the rainfall event.
4. While the commission of the first offence had the potential to adversely impact the aquatic ecology of Back Creek, this impact was also minor and short term because: 1. the number and diversity of aquatic invertebrates in Back Creek adjacent to, and downstream of, the mine immediately prior to 16 January 2020 was low because much of Back Creek was dry; 2. the commencement of flow in Back Creek on 16 January 2020 was rapid and would have included the mobilisation of bed sediments, the influx of catchment sediments, nutrients, organic matter, and the washing downstream of invertebrates living in remnant pools, regardless of the commission of the first offence; 3. the impact of sediment from all sources would have been minor in the short term, because there was very little aquatic biota present to be impacted; and 4. the longer term impacts of all sediment sources were likely to be negligible because of the mobile nature of the Back Creek bed and the amount of natural sediment movement that occurs during flow events.

The Likely Environmental Harm Caused by the Commission of the Second Offence

1. The upstream TSS concentration of 2,170 mg/L recorded at 4 pm on 8 February 2020 during the second rainfall event indicated concentrations of TSS approximately 8 to 80 times higher than in low flow conditions.
2. The downstream sample (TSS equalled 1,950 mg/L) at 3:15 pm was essentially unaffected by the subdrain overflow because the downstream TSS was lower than the upstream TSS (2,170 mg/L) recorded 45 minutes later at 4 pm. It is possible that TSS concentration in Back Creek downstream from the mine was lower than the TSS upstream concentrations because of: 1. the high dilution by Back Creek flow (estimated to be approximately 28 to 1); and 2. the reduction of TSS between the overflow point and Back Creek as a consequence of shallow flow across the paddock and filtration through vegetation.
3. The impact of the second offence on water quality in Back Creek was calculated by reference to an assumed TSS concentration of 47,500 mg/L in the water discharged from the subdrain compared to the upstream Back Creek TSS concentration at 4 pm. The results were an approximate TSS concentration of 3,700 mg/L downstream, which was unlikely to have caused anything more than minimal environmental harm because: 1. if the downstream concentration of TSS during the overflow was elevated compared to the upstream TSS concentration then the duration of the elevated concentration would have been short (approximately 45 minutes); 2. the theoretical TSS concentration of 3,700 mg/L was similar to the value recorded upstream from the mine during the rainfall event on 16 January 2020 (3,600 mg/L at 1615 hours), which indicates that TSS values in Back Creek would have been close to 3,700 mg/L irrespective of any impact from the mine discharge. In other words, any elevated concentration of TSS in Back Creek caused by the commission of the second offence would have been within the range of natural variability in TSS concentrations in Back Creek during high rainfall events (ignoring the impacts of other land uses within the catchment); and 3. had the commission of the second offence not occurred, then a much larger volume of water with similar TSS would have in any event been discharged (and did in fact discharge) as part of the permitted licensed discharge from SD3.
4. The commission of the second offence was unlikely to have caused environmental harm to Maules Creek or to the Namoi River because the volume of water that overflowed from the subdrain on 8 February 2020 would have been heavily diluted by the Maules Creek flow volume.

The Likely Environmental Harm Caused by the Commission of the Third Offence

1. The environmental harm caused as a result of the release of EPBs into the environment of Back Creek during the commission of the third offence was also low for the reasons outlined above regarding the EPB release during the commission of the second offence.

The Likely Harm to Amenity

1. The EPA submitted that the commission of the three offences caused harm to the amenity of the environment, relying on the decision in Waste Recycling (at [145]-[147]. Quoted above) (T16:13-17).
2. As Preston J's observations in Water Recycling indicates, the Court's enquiry into environmental harm is not limited to measurable environmental harms. The Court is permitted to undertake a holistic assessment of the environmental impact of the commission of the offence on the environment, including the extent to which adverse environmental impacts detract from the quality of life that people are otherwise entitled to enjoy.
3. Impacts to environmental amenity is a recognised aspect of environmental harm (City of Parramatta Council v Sydney Trees Excavation and Demolition Pty Ltd [2021] NSWLEC 71 at [81]).
4. The EPA received complaints about all three discharges from Druce. The EPA submitted that Druce's complaints demonstrate a degree of indirect harm to the public's use and enjoyment of Back Creek and the surrounding waterways. I agree.
5. Having said this, in light of the significant rainfall events on 16 January and 8 February 2022, which would have impacted upon the amenity of Back Creek in any event, I find that this harm was minimal.

Conclusions on Environmental Harm

1. MCC submitted that, irrespective of the actual and likely harms outlined in the agreed statement of facts, that environmental harm likely caused by the commission of each offence was very minor and limited in extent to Back Creek downstream of the mine. MCC further submitted that the harm was short-term because: 1. elevated TSS in Back Creek occasioned by the commission of the first and second offences was limited to the duration of each overflow (approximately 30 mins and 45 mins respectively); and 2. the EPBs discharged into the environment was cleaned up by 30 June 2020.
2. The EPA sought to characterise the actual and likely harm caused by the commission of the first and second offences as low, but the harm caused by the commission of the third offence as moderate because of the release of the EPBs.
3. In my opinion, the evidence plainly discloses that the commission of the three offences caused limited and short term actual environmental harm by the release of sediment and the EPBs into the environment.
4. In addition, the offences caused minimal harm to the water quality and aquatic ecology of Back Creek, as well as resulting in low ecotoxicological and amenity impacts.

MCC's Reasons for Committing the Offence

1. The criminality involved in the commission of the offence by a defendant is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley at [237]).
2. There was no evidence before the Court that MCC committed the offences for any reason, such as financial gain, that would increase the objective seriousness of the crimes (cf s 21A(2)(o) of the CSPA).

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

1. Section 241(1)(c) of the POEOA obliges the Court to have regard to the extent to which the offender could reasonably have foreseen the harm caused, or likely to be caused, to the environment.
2. The EPA submitted that having regard to the extent of MCC's mining activities, the harm caused by the commission of the offences was reasonably foreseeable. The EPA emphasised that the WMP for the mine had specifically addressed the management of surface water and had identified the activities that had the potential to cause erosion and sediment laden runoff at the mine. The WMP also explicitly outlined the importance of erosion and sediment control on the NOEA. Therefore, MCC ought to have been aware of the environmental impacts associated with a failure to manage sediment and erosion controls on the NOEA and of the EPBs escaping the mine and entering the surrounding waterways.
3. By contrast, MCC submitted that whether the harm was reasonably foreseeable was a narrower inquiry than simply whether MCC knew of the possible environmental harms resulting from erosion. The analysis required by s 241(1)(c) of the POEOA was whether the actual or likely harm caused by the commission of the offences was reasonably foreseeable. MCC accepted, however, that it had general knowledge of the environmental impacts of erosion.
4. Section 241(1)(c) requires an assessment of the reasonable foreseeability of the "harm caused or likely to be caused" by "the commission of the offence" not the reasonable foreseeability of some abstract harm.
5. Nevertheless, I consider that the actual and likely harm resulting from the commission of the first and second offence were reasonably foreseeable. MCC had commissioned a number of reports for the management of sediment and erosion, and water quality at the mine. MCC had also developed, and was progressively implementing, a WMP at the time of the offences. Additionally, MCC had not completed, as scheduled, the construction of the NOEA and emplacement of erosion control mechanisms. Therefore, MCC had actual knowledge of the erosion risks associated with the mine, as well as knowledge that its erosion controls were not fully operational. These factors put MCC on notice as to the risks of water pollution in the event of a rainfall event.

Control Over the Causes of the Commission of the Offence

1. Section 241(1)(d) of the POEOA requires the Court to take into account the extent to which the person who committed the offence had control over the causes that gave rise to it.
2. In respect of the first and second offences, the EPA argued that MCC had control over the causes that gave rise to the offences. The EPA submitted that MCC was responsible for the implementation and construction of the NOEA, including erosion and sediment management and sediment controls at the mine.
3. In response, MCC contended that it did not have complete control over the causes of the commission of the first and second offences because it had no control over the dry antecedent conditions or the extreme rainfall events that precipitated the offences. I do not accept this submission. While it is incontrovertible that MCC did not control the weather, it nevertheless did control the sediment and erosion measures to be implemented to deal with the weather, including extreme weather.
4. In respect of the commission of the third offence, there was contention between the parties as to MCC's level of control over the storage of the EPBs and their discharge. The EPA submitted that although Hanwha operated the explosives compound, it was MCC that was responsible for implementing erosion and sediment controls, including measures to prevent the discharging of pollutant from the spillway at SD3. MCC refuted this submission.
5. The evidence discloses that MCC, through WCL, had a level of control over Hanwha's operations and the measures at the explosives compound to contain EPBs. Additionally, MCC had complete control over the NOEA, the mechanism by which the EPBs were released into the environment. However, I accept MCC's submission that Hanwha was primarily responsible for the management of the explosives compound, and therefore, MCC did not have complete control over all of the causes of the third offence.

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

1. There is no doubt that MCC could have taken additional practical measures to reduce erosion on the NOEA. Namely: 1. the installation of temporary diversion banks to reduce slope length and flow velocity until vegetation was established, as recommended by Landloch on 2 November 2018; 2. the surface spreading of timber debris to provide protection from raindrop splash erosion and to interrupt rill formation, as recommended by Landloch; 3. ripping on the contour, rather than not on the contour, as was carried out in some locations on the NOEA, including the removal of vehicle depressions from the slope of the NOEA; 4. not spreading topsoil in concentrated flow paths on the NOEA; and 5. the stockpiling topsoil away from drainage lines on the NOEA.
2. Such practical measures, if carried out prior to 16 January 2020, would have resulted in a reduction in the volume of sediment that eroded from the NOEA during the commission of the first and second offences.
3. However, it may be accepted that because of the high volume of rainfall on 16 January and 8 February 2020, it was unlikely that these measures would have prevented all of the sediment-laden water discharging from the NOEA. Additionally, even if MCC had rock-lined the drainage structures of the NOEA sediment would nevertheless have eroded from the NOEA during the commission of the first and second offence. What is not known, however, is whether sediment would have blocked the subdrain causing it to overflow to Back Creek had MCC implemented the measures outlined above.

Conclusion on Objective Seriousness

1. Contrary to the submission of the EPA, having regard to the matters discussed above, I characterise the objective seriousness of the three offences as low to moderate.

Subjective Circumstances of MCC

1. A proportionate sentence requires the Court to take into account any mitigating factors that are personal to MCC (s 21A(3) of the CSPA). Relevant subjective circumstances include: 1. whether MCC has demonstrated remorse for the commission of the offences (s 21A(3)(i) of the CSPA and see the remarks by Preston J in Waste Recycling at [203]-[215]); 2. whether, and when, MCC entered a guilty plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]); 3. whether MCC provided assistance to the regulatory authorities in the investigation and prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA); 4. whether MCC is of good character (s 21A(3)(f) of the CSPA); and 5. whether MCC has a prior criminal record (s 21A(3)(e) of the CSPA).

Contrition and Remorse

1. The affidavit of John Humphris, a director of MCC and WCL, dated 18 January 2022, deposed that MCC has: 1. expressed, through Humphris, "responsibility and regret for the Offences" on behalf of the company and apologised to "the Prosecutor, the Court and the broader community for the Offences"; 2. taken further action to improve the NOEA after February 2022, including: 1. reviewed and improved windrows and drains on the active dump boundaries of the NOEA above the partially rehabilitated sections were to further reduce water flow into the partially rehabilitated sections of the NOEA; 2. improved water drainage so that water is now drained into multiple catchments to reduce concentration, facilitate water dispersion and reduce erosion; 3. installed additional minor rock drain structures to divert water around topsoil stockpiles; and 4. redesigned the drop structure entry on the head cut area of the northern slope to improve its approach into the subdrain and the structure fully rock lined; and 1. improved the handling and management of EPBs, namely, by inspecting the explosives compound on 29 October 2020 to confirm that WCL's directions had been complied with by Hanhwa (see above). During the inspection Humphris observed improved bunds and drains in the explosives compound, the installation of a new shade cloth on the fence around the compound, a new vacuum system, and a new connection between the auger and the truck so that there was a sealed system between the storage container and the truck, for the loading of the EPBs.
2. I find this to be a genuine expression of contrition that I have taken into account.

Early Plea of Guilty

1. MCC entered a plea of guilty to all three offences at the earliest available opportunity. It is therefore entitled to the full 25% discount for the utilitarian value of its plea (ss 21A(3)(k) and 22 of the CSPA; R v Thomson; R v Houlton at [152]).

Assistance to the EPA

1. MCC provided assistance to the EPA in the investigation and prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA) by: 1. providing timely responses to statutory notices for information and records; 2. voluntarily giving full and frank evidence; and 3. extensively participating in the preparation of a number of agreed statement of facts for the hearing thereby significantly reducing the duration of the sentence hearing.

Prior Convictions of MCC

1. On 25 November 2021 MCC was convicted and fined $187,500 by the Court for a breach of s 60A(2) of the Water Management Act 2000 relating to the taking of water from the Maules Creek Water Source without an access licence for that water source between about 1 July 2016 and 30 June 2019 (Natural Resources Access Regulator v Maules Creek Coal Pty Ltd [2021] NSWLEC 135). It was fined $187,500.
2. The EPA also sought to rely upon two penalty infringement notices issued to MCC. However, these notices are not prior convictions and their payment cannot be taken as an admission of liability pursuant to s 22A(2) of the Fines Act 1996 (see Barnes v O'Haire [2020] NSWLEC 158 at [154]). I have, therefore, placed no weight on them in this context.

The Good Character of MCC

1. Despite a prior conviction, I find that MCC is nonetheless of good corporate character. In his affidavit, Humphris detailed the extensive and important community work undertaken by MCC and WCL, MCC's parent company, including the following projects: 1. investment in the employment, promotion and community engagement with First Nations People; 2. fostering greater employment and promotion opportunities for women; 3. investing in local skills development and prioritising local employment; and 4. financial contributions to local community projects since 2012, such as: 1. $73,000 to the Maules Creek Campdraft; 2. $46,100 to the Narrabri Rugby League Football Club; 3. $21,000 to the Nurruby Children's Services; 4. $10,000 to the Narrabri RSL Sub-Branch; and 5. $77,578 to a range of childcare services, including Mary Rankin Childcare, Li'l Achievers Preschool and the Children's Charity Network.

The Likelihood of MCC Reoffending

1. Because MCC is of good character, has demonstrated genuine contrition and remorse, and has put measures in place to prevent similar future offending, I find the likelihood that MCC will reoffend to be low.

Deterrence, Retribution and Denunciation

1. The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569-570 per Brennan J).
2. The penalty imposed by the Court must serve as a general deterrent (Axer at 359; Camilleri's Stock Feeds at 701; and Bentley at [139] and see s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of sentencing for environmental crime as follows (at [65]-[68]): 65 The sentence of the Court is an important denunciation of the conduct of the defendant. 66 The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597-598. 67 This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354; and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. 68 The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts.
3. The Court accepts that embedded in the determination of the appropriate sentence to be imposed on MCC must be an element of general deterrence to ensure that large scale mining projects operate in a manner that does not harm the environment, and in particular, do not pollute waters.
4. In relation to specific deterrence (s 3A(b) of the CSPA), the EPA submitted that specific deterrence is a relevant factor because: 1. MCC has a prior criminal conviction for an environmental offence; 2. MCC has a history of non-compliance with environmental regulations; and 3. MCC continues to operate the mine.
5. Notwithstanding that the extreme weather was a contributing factor in the commission of the offences and that MCC has since implemented extensive measures to ensure that future offending does not occur, I accept this submission for the reasons given by the prosecutor.

The Totality Principle

1. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62 to 63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]).
2. Because there are multiple offences arising out of the same, common or related conduct, the totality principle applies in the present case. The effect of the totality principle is to require the Court to review the totality of the sentence to consider whether the penalty imposed is just and appropriate and reflects the overall criminality of the offender before the Court.
3. Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Rawson at [222]; Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46]; and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). The application of the totality principle must not cause public confidence in the administration of justice to be undermined by any perception that "what is in effect being offered is some kind of discount for multiple offending" (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]). The Court discussed the totality principle and its application at length in Orica (at [224] to [229]). More recently see the examination and application of the principle in Barlow (at [111] to [112]).

Consistency in Sentencing

1. The task of the sentencing court is to seek even-handedness in the imposition of a sentence (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 achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer at [365]). The sentence imposed in a single 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]).
2. The EPA relied on seven comparable cases all relating to breaches of s 120(1) of the POEOA. MCC relied on one. They are summarised below: 1. Environment Protection Authority v Wambo Coal Pty Ltd [2017] NSWLEC 152, concerned the collapse of a dam wall, spilling sediment laden water into an ephemeral drainage line. The offence caused minor actual and likely environmental harm and the defendant failed to take practical measures to maintain the dam's structural integrity. The defendant displayed contrition and remorse and implemented a number of measures to improve its environmental management practices. While the defendant had two prior convictions, they were not considered relevant. Because the defendant was charged with offences under both ss 120(1) and 64 of the POEOA, the Court fined it $42,000 for the s 64 offence (after discounting by 30% for an early guilty plea, among other mitigating factors) and $20,000 for the s 120(1) offence, applying the totality principle; 2. in Environment Protection Authority v Big Island Mining Pty Ltd [2014] NSWLEC 131, sediment-laden water from a mine was discharged in three separate incidents into a nearby creek during heavy rainfall events. The Court held that the harm caused by the commission of the offences was reasonably foreseeable, noting that Big Island Mining Pty Ltd ("Big Island Mining") could have taken additional practical measures to minimise the harm. Pain J further held that the company had control over the commission over the offence notwithstanding that a contractor had failed to implement adequate erosion controls because Big Island Mining had supervisory control. Big Island Mining was charged with three offences under s 120(1) of the POEOA and was fined $103,000 in total (after discounting 35% for an early guilty plea and other mitigating factors); 3. in Environment Protection Authority v M A Roche Group Pty Ltd; Environment Protection Authority v Roche [2013] NSWLEC 191, sediment laden water was discharged into a creek on two separate occasions. While the Court found that the high turbidity of the water was likely to cause some harm to aquatic ecology, it determined that the harm during the commission of both offences was for a short time and in a limited area. The Court held that the extent of the environmental harm was low. However, there were a number of practical measures that the defendants could have undertaken to prevent the discharge of polluted water and the harm was considered reasonably foreseeable. In determining the appropriate sentence, the Court found that the defendants were of good character, were unlikely to reoffend and that they had very limited means to pay a fine. The penalty imposed was a fine of $5,000; 4. four separate discharges of sediment laden water in to a river, occurred in Environment Protection Authority v Moolarben Operations Pty Ltd [2012] NSWLEC 65. Although the Court emphasised that the potential impact on aquatic ecosystems should not be ignored, the environmental harm was at the lower end of the range of objective seriousness. Moolarben Operations Pty Ltd ("Moolarben") had elected not to implement adequate erosion and sediment control measures despite a condition of its development approval requiring the implementation of an Erosion and Sediment Control Plan. Consequently, the Court held that the primary cause of the four water pollution events was within the control of Moolarben and that the resulting environmental harm was reasonably foreseeable. Mitigating factors included that Moolarben had pleaded guilty at the earliest opportunity, there was a genuine expression of remorse and that it had cooperated with authorities. In all of the circumstances, Moore J applied a 30% discount and imposed a fine of $105,000; 5. Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 dealt with a single offence of discharging sediment laden water from a mine by a pipe into a local creek. The Court accepted that the likely harm was low, given the short duration of the commission of the offence and its limited geographical impact. However, Pain J found that Ravensworth Operations Pty Limited ("Ravensworth") ought not have allowed the pipe to be installed and that it had control over the causes of the offence. The Court further held that the harm arising from the commission of the offence was reasonably foreseeable. The Court accepted that the defendant had pleaded guilty at the earliest opportunity, was of good corporate character and had showed remorse. Ravensworth was fined $50,000; 6. in Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211, sediment laden water was discharged from a mine and into a tributary over four days. Craig J found that the offence was of moderate objective seriousness because the discharge had degraded the water quality of the creek, impacted aquatic ecosystems and had serious aesthetic consequences for the environment. It was accepted that the defendant could have taken a number of practical measures, including better controls and procedures for managing water at the mine, and that the harm was reasonably foreseeable. In relation to the subjective circumstances of the defendant, there was a prior conviction for a breach of s 120(1) of the POEOA but the defendant was of good character, had entered a guilty plea at the earliest opportunity, and had showed remorse. Craig J therefore determined that it was appropriate to apply a discount of 30%, resulting in a penalty of $105,000; 7. the decision of Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 354 concerned the pollution of a river with sediment laden water during dam upgrade works. The defendant, Fulton Hogan Pty Ltd ("Fulton"), was a contractor to Snowy Hydro Ltd ("Snowy"). Both entities were prosecuted in separate proceedings. Fulton was found to have been complying with orders from Snowy when it committed the offence, however, the Court considered that Fulton ought to have been aware of its statutory obligations, particularly given that it was a term of the contract between Fulton and Snowy that Fulton was obliged to satisfy all legislative requirements, including complying with the POEOA. In addition, the offence caused actual environmental harm, albeit minor and of limited duration, and in already degraded waters. The defendant took a range of measures to prevent the harm, however, there were further measures available to it. The Court fined Fulton $100,000 after discounting mitigating factors, including a 25% discount for an early guilty plea; and 8. finally, the case of Environment Protection Authority v John Michelin & Son Pty Ltd [2019] NSWLEC 88 is also relevant, in my opinion. In that case, John Michelin & Son Pty Ltd ("Michelin") discharged sediment laden water over three days into a table drain. The Court found that while Michelin could have taken further practical measures to avoid the harm, there were contributing causes to the commission of the offence outside of Michelin's control, including that the stormwater system did not operate as intended. The environmental harm resulting from the commission of the offence was low, although the harm was reasonably foreseeable. Michelin demonstrated remorse, had assisted the EPA, entered an early plea of guilty and was unlikely to reoffend. The Court applied a discount of 33% and ordered Michelin pay $43,550.

Costs

1. The Court must take into account any costs order likely to be made in determining the appropriate penalty to be imposed (Harris at [100], Barnes at [78] and Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123]). However, an order for costs does not result in a reduction in any monetary penalty imposed to an amount lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50]).
2. The parties have agreed that MCC is to pay the EPA's legal and investigation costs. However, the parties agreed that MCC ought not to pay the legal cost of the two notices of motion filed by the EPA on 5 July 2021 and 1 October 2021, seeking extensions to the Court's timetable (T22:32-36).
3. The EPA submitted that they have incurred approximately $300,000 in legal fees to date. Its investigation costs were fixed in the amount of $3,003.
4. It is therefore appropriate to take into account that MCC will pay investigation costs of $3,003 under s 248 of the POEOA and legal fees of approximately $300,000.

Appropriate Sentence

1. Having regard to the objective seriousness of the offences and the mitigating subjective factors of MCC, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. for the first offence a fine of $125,000; 2. for the second offence a fine of $75,000; and 3. for the third offence a fine of $75,000.
2. Each penalty must be discounted by 25% for the utilitarian value of MCC's plea of guilty resulting in the imposition of a monetary penalty for each offence as follows: 1. for the first offence a fine of $93,750; 2. for the second offence a fine of $56,250; and 3. for the third offence a fine of $56,250.
3. After the application of the totality principle, the penalties for the commission of the second and third offences should be reduced to $40,000 and $25,000, respectively.
4. This brings the total penalty to $158,750.

Any Monetary Penalty to be Paid to the Environmental Trust

1. The EPA sought an order that any monetary penalty imposed by the Court be paid to the Environmental Trust pursuant to s 250(1)(e) of the POEOA. I consider that such an order is appropriate in all of the circumstances of this case.

Publication Order

1. Finally, pursuant to s 250(1)(a) of the POEOA, MCC has consented to a publication order being made. The terms of the publication order were, after some discussion, agreed and are set out in annexure A to this judgment.
2. Having regard to the circumstances of this case, I find that the making of a publication order to be appropriate (Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76] and Waste Recycling at [242]).

Orders

1. In conformity with the reasons given above, the Court makes the following orders: In proceedings 9091 of 2021 1. Maules Creek Coal Pty Ltd is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 as charged; 2. Maules Creek Coal Pty Ltd is fined the sum of $93,750; In proceedings 9092 of 2021 1. Maules Creek Coal Pty Ltd is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 as charged; 2. Maules Creek Coal Pty Ltd is fined the sum of $40,000; In proceedings 9093 of 2021 1. Maules Creek Coal Pty Ltd is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 as charged; 2. Maules Creek Coal Pty Ltd is fined the sum of $25,000; In proceedings 9091 of 2021, 9092 of 2021 and 9093 of 2021 1. pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, Maules Creek Coal Pty Ltd is to pay the amount of $158,750 to the Environmental Trust within 28 days of the date of this order; 2. pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, Maules Creek Coal Pty Ltd is to pay the Environment Protection Authority's costs and expenses reasonably incurred during the investigation of the offences fixed in the amount of $3,002.70; 3. pursuant to s 257B of the Criminal Procedure Act 1986, Maules Creek Coal Pty Ltd is to pay the Environment Protection Authority's professional costs as determined under s 257G of that Act; 4. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Maules Creek Coal Pty Ltd is, at its expense, to: 1. within 28 days of the date of this order, cause a notice of a minimum size as near as practicable to 180 cm² to be published within the first 11 pages of The Sydney Morning Herald, The Daily Telegraph, The Australian Financial Review and The Northern Daily Leader, with the text of such notice and the Whitehaven Coal logo (of reasonable size), to be as set out in annexure A to these orders; 2. within 28 days of the date of this order, cause a notice to be placed on the Whitehaven Coal Limited company website under the "News section" ("the website") to be as set out in annexure A to these orders; 3. within 35 days of the date of this order provide to the Environment Protection Authority a copy of the entire page of each of The Sydney Morning Herald, The Daily Telegraph, The Australian Financial Review and The Northern Daily Leader and the website in which the notice was published; and 1. the exhibits are to be returned.

Annexure A - Terms of Publication Notice Maules Creek Coal Pty Ltd is Convicted for Three Offences of Polluting Waters at Back Creek Maules Creek Coal Pty Ltd ("MCC") has been convicted by the Land and Environment Court of NSW ("the Court") for having committed three offences against s 120(1) of the Protection of the Environment operations Act 1997 of having polluted waters. Two offences committed on 16 January and 8 February 2020, involved an amount of water containing sediment leaving the mine site and entering Back Creek. On 8 February 2020 the water that left the mine site and entered Back Creek contained some expanded polystyrene beads. At the time of the commission of the offences, expanded polystyrene beads were used in the preparation of explosives at the Maules Creek coal mine. MCC was prosecuted by the Environment Protection Authority ("the EPA"). MCC cooperated with the EPA during the course of its investigation and pleaded guilty to each of the three charges. The Court convicted MCC of each of the offences and ordered it to pay a total of $158,750 to the Environmental Trust, to pay the EPA's investigation costs fixed in the amount of $3,003, and in addition, to pay the EPA's legal costs as agreed or assessed. MCC was also ordered to publish this notice at its own expense.

Amendments 05 April 2022 - Update the year of the proceedings in the Orders to identify the correct year. 06 April 2022 - Paragraph 243 of Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33 has been amended pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 on 5 and 6 April 2022. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2022