Environment Protection Authority v Ridley AgriProducts Pty Limited - [2019] NSWLEC 119 - NSWLEC 2019 case summary — Zoe

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Environment Protection Authority v Ridley AgriProducts Pty Limited

[2019] NSWLEC 119

Land and Environment Court (NSW)|2019-07-31|Before: Robson J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-07-31

Before

Robson J

Catchwords

(2017) 227 LGERA 290 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd
(2012) 192 LGERA 314 Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd
(2009) 168 LGERA 121 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89 Environment Protection Authority v Steggles Foods Mt Kuring-gai Pty Ltd [2017] NSWLEC 178

Source

Original judgment source is linked above.

Catchwords

(2017) 227 LGERA 290 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd(2012) 192 LGERA 314 Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd(2009) 168 LGERA 121 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89 Environment Protection Authority v Steggles Foods Mt Kuring-gai Pty Ltd [2017] NSWLEC 178(2006) 148 LGERA 299 Environmental Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103(2014) 206 LGERA 239 Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242(2006) 145 LGERA 189 Harris v Harrison (2014) 86 NSWLR 422[2014] NSWCCA 84 Hili v RJones v R (2010) 242 CLR 520[2010] HCA 45 Pearce v R (1998) 194 CLR 610[1998] HCA 57 R v DP [2019] NSWCCA 55 R v Hawker [2001] NSWCCA 148 R v Olbrich (1999) 199 CLR 270

Judgment (32 paragraphs)

[1]

Background

The background facts in relation to both offences are largely uncontested and are briefly summarised as follows.
At the time of the incidents giving rise to the offences, Ridley owned and occupied the premises and was the holder of Environment Protection Licence No. 2421 ('Licence'). The Licence authorised Ridley to conduct "livestock processing activities" in the form of a rendering plant at the premises, producing more than 4,000 tonnes of product per year.
The Licence contained conditions including condition O2.1 which provided: O2 Maintenance of plant and equipment O2.1 All plant and equipment installed at the premises or used in connection with the licenced activity: a) must be maintained in a proper and efficient condition; and b) must be operated in a proper and efficient manner.
The licensed activities involve the rendering of poultry and fish waste received from meat processors primarily around the Sydney area by cooking, squeezing out and collecting oil, and collecting the residual protein meal. Approximately seven tonnes of fish and poultry waste is received as raw material input per day. This activity is known as animal waste rendering. The premises has been used as an animal waste rendering plant since the late 1970s. Ridley has operated the plant since it acquired the premises from Camilleri Stockfeeds Pty Ltd in 2011. At the time of the offences, Ridley produced approximately 25,000 litres of poultry oil per day. The factory operates 24 hours a day for five and a half days per week (Monday to Saturday).
The licenced activities generate wastewater from condensation, the removal of sediment and suspended solids, washing the factory floors, receiving excess liquid, and stormwater entering the system.
Ridley undertakes treatment of the wastewater associated with the rendering process to generate biogas to fuel its operations at the premises. This treatment involves the cycling of water between several dams that are used to process, treat and store the wastewater. The dams are connected by open causeways and high-density polyethylene subterranean pipes. The wastewater system is intended to operate as a closed system. For convenience, and to understand what follows, an informal plan to identify the wastewater management system at the premises (extracted from the Statement of Agreed Facts) is reproduced below:
The Bottom Dam is the lowest and last dam in this closed system. The land slopes generally downwards from the southern side of the property to a gully at the northern boundary, where the Bottom Dam and Dalgetys Creek are located. As such, wastewater generally moves through the system of dams on the premises under force of gravity. In addition, during high rainfall events, excess rainwater runs across the ground surface of the premises in a generally downward direction from south to north towards the gully.
Dalgetys Creek, which is typically dry, enters the premises from its northern boundary, and runs through the north-eastern corner of the premises including into the north-western bank of the Bottom Dam. The creek channel restarts past the south-eastern bank of the Bottom Dam and runs in a south-easterly direction for approximately 150 metres until it meets a smaller dam known as the Last Dam. On the eastern bank of the Last Dam is an overflow pipe that leads back into the Dalgetys Creek channel. Thereafter, Dalgetys Creek continues for approximately 175 metres until it flows through the eastern boundary and into the Marramarra National Park, and through the Bush Dam within the National Park.
Prior to June 2017, Ridley's management of the freeboard (capacity) in its dams relied predominantly on daily visual monitoring by staff of the available freeboard in the Bottom Dam. Staff would decide whether pumping was necessary to create further freeboard. When the water levels in the Bottom Dam appeared to be near capacity, staff would operate the centrifugal pump installed at the Bottom Dam ('Pump'), pumping water from the Bottom Dam back up to the Main Dam and back into the wastewater treatment cycle.
The Last Dam is not intended to be part of the day-to-day wastewater system, rather, it is intended to capture any unintentional overflow from the Bottom Dam. The Bottom Dam is connected to the Last Dam by the typically dry Dalgetys Creek channel which, at that point, runs through the premises. If water from the Bottom Dam overflowed into the Dalgetys Creek channel within the premises and descended into the Last Dam, the diesel pump at the Last Dam could also be operated to pump water to the Main Dam to prevent any discharge from the Last Dam into Dalgetys Creek and beyond the premises.
The Bottom Dam, the Last Dam, Dalgetys Creek and the Bush Dam (within Marramarra National Park) are all hydrologically connected in that the dams are all directly in the flow path of Dalgetys Creek. Dalgetys Creek, within Marramarra National Park, is a slow flowing first order stream. It has a high conservation/ecological value system as defined in the Australian and New Zealand Environment and Conservation Council ('ANZECC') & Agriculture and Resource Management Council of Australia and New Zealand ('ARMCANZ'), 2000 water quality guidelines (defined in the Statement of Agreed Facts as 'ANZECC').
As considered below, it is agreed between the parties that based on water samples from Dalgetys Creek at a sampling point in the National Park approximately halfway between the eastern premises boundary and the Bush Dam ('NP Sample Point'), the water quality of the Creek was already significantly degraded prior to the offences.
In essence, the June offence caused the Bottom Dam to overflow and the October offence caused the Main Dam to overflow.

[2]

June offence

At approximately 8.00am on 19 June 2017, Chris Plain, who was employed by Ridley as a cook operator in the rendering plant but who also had duties as a groundsman relating to the dams, checked the Bottom Dam and commenced operating the Pump to pump water to the Main Dam. The Bottom Dam was not overflowing at that time.
Mr Plain considered that there was "plenty of pressure" in the Pump at that time, that it was primed and was working satisfactorily, although it was "starting to get a little bit slow". He reported this observation to his supervisor, Shane Pratt and the then Site Manager, Ewin Williams.
Neither Mr Plain, Mr Pratt, Mr Williams nor any other Ridley staff member checked whether the Pump was operating properly on 19 June 2017 after it was turned on.
In the afternoon of 20 June 2017, Environment Protection Authority ('EPA') officers Alex Bowlay and Anna Ernst who were at the premises to carry out an inspection, noticed that the Bottom Dam was discharging a "very dark brown" liquid with a "mild sewage odour" from an eastern overflow point. The liquid was trickling into the natural gully area, into Dalgetys Creek and onwards into the Last Dam. The Last Dam was overtopping and discharging wastewater into the part of Dalgetys Creek that flowed through the premises boundary into Marramarra National Park.
Mr Bowlay took water samples from the discharge point where the water was overtopping the Last Dam and from Dalgetys Creek near where the premises adjoins Marramarra National Park. He observed that the Creek was trickling steadily. These samples were later analysed by Dr Katelyn Edge, Senior Scientist at the Office of Environment and Heritage, who determined that the samples contained concentrations of ammonia known to cause toxicity in a range of aquatic organisms and were acutely toxic to water flea and larval fish.
In summary, the discharge of wastewater resulted from the Pump losing prime and it ceased pumping water from the Bottom Dam to the Main Dam. At some time between the time when the Pump lost prime on 19 June 2017 and the inspection of the Bottom Dam by the EPA officers on 20 June 2017, the Bottom Dam reached and exceeded its capacity and overflowed, discharging the wastewater into Dalgetys Creek and ultimately Marramarra National Park.
During the evening of 20 June 2017, prime was restored to the Pump and it was operated to reduce the water level in the Bottom Dam by pumping it to the Main Dam. The discharge from the Bottom Dam ceased shortly after the Pump restarted.

[3]

October offence

Between 20 October and 23 October 2017, the Bureau of Meteorology Station at Maroota ('BOM Station') recorded a total of approximately 38.2 millimetres of rain. No rainfall was recorded in the area between 24 October and 26 October 2017. Approximately 19.2 millimetres was recorded by the BOM Station on 27 October 2017.
At approximately 8.00am on 28 October 2017, Brian Albers, Ridley's Capital Projects Manager for the premises, noticed that the Main Dam was overflowing and flowing across a sloping paddock area into the Last Dam and that water from the Last Dam was discharging into Dalgetys Creek.
Mr Albers noticed that the Pump at the Bottom Dam was operating and pumping wastewater to the Main Dam. He immediately turned it off and to further reduce the discharges from the Main Dam and the Last Dam, he: 1. commenced operating the diesel pump at the Last Dam to reduce its water level by pumping water from the Last Dam to the Main Dam; 2. commenced operating the other pumps from the Main Dam to transfer water from the Main Dam into the plant and ultimately into the Bottom Dam which had approximately 1.8 metres of freeboard as a result of the Pump running throughout the previous night; and 3. shut down plant operations to reduce additional wastewater entering the system.
At approximately 9.00am on 28 October 2017, Mr Williams contacted the EPA to self-report the overflow of high nutrient load water into Dalgetys Creek due to what he asserted was "a massive rain event on the evening of 26 October 2017 and throughout 27 October 2017".
At around 11.00am, Mr Albers took three samples of the water that was discharging into Dalgetys Creek outside the premises boundary and into Marramarra National Park.
The discharge from the Last Dam that resulted from the omission to turn off the Bottom Dam Pump on 27 October 2017 ceased at around 2.30pm on 28 October 2017, however at some point during the night of 28 October 2017, the Main Dam started to overflow again. At approximately 6.15am on 29 October 2017, Mr Albers resumed pumping water from the Last Dam and the discharge from the Last Dam ceased by around 9.00am that day.
It is estimated that approximately two megalitres of wastewater discharged from the Last Dam into Dalgetys Creek.
The water was continuously pumped to the Main Dam due to the Pump at the Bottom Dam being inadvertently left on overnight on 27 October 2017, resulting in the Main Dam overflowing into the Last Dam and ultimately into Dalgetys Creek and Marramarra National Park.
The prosecutor accepts that a contributing cause of the October offence was approximately 19 millimetres of rainfall received in the vicinity of the premises on 27 October 2017.

[9]

Nature of the offences

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 environmental offences: Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 ('OEH v Orica') at [59] and Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140; (2017) 227 LGERA 290 at [22].
Conditions imposed upon an environmental protection licence traverse a spectrum of obligations. Some are procedural, the consequences of non-observance of which are not necessarily adverse to the environment, while others are regarded as more fundamental in the control of the regulated activity: Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 ('Huntsman') at [65]. I consider that the condition the subject of the current offences, being one requiring that plant and equipment used in connection with the licenced activity be operated in a proper and efficient manner, is a condition of the latter kind such that failure to observe the requirements involved a system-based failure.
I accept and adopt the comments of Pepper J in Environmental Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 ('EPA v Orica') at [104] that: …Compliance with licence conditions is the price that entities must pay for permission to engage in potentially polluting manufacturing processes. The conditions imposed in any licence are aimed at maximising beneficial environmental outcomes and minimising environmental harm. They represent a balancing exercise between fostering economic growth and development, on the one hand, and protecting and preserving the environment now and for the future, on the other. Strict compliance with the conditions of any environmental licence is therefore necessary to ensure that this balance is achieved and that the objectives of the POEOA are met.
The prosecutor submits that it is clear from its objects (set out at [41] above) that the POEO Act is directed to avoid or at least reduce pollution in order to prevent harm to human safety and the natural environment: Environment Protection Authority v Unomedical Pty Limited (No 3) (2010) 79 NSWLR 236; [2010] NSWLEC 198 at [188]. The prosecutor contends that Ridley's failure to operate its equipment in a proper and efficient manner on two separate occasions, contrary to condition O2.1(b), resulted in the overflow of dams and the discharge of wastewater into the environment, thereby causing environmental harm (that is, actual harm in relation to the June offence and possible harm in relation to the October offence) and contravening s 64(1) of the POEO Act.
Ridley submits that this is not a case involving total disregard of the requirement to operate the Pump in a proper and efficient manner, but a failure to meet that standard despite genuine but flawed efforts on the part of its workers. Ridley acknowledges that the particular condition that was breached was important and that the failure to properly meet that standard has resulted in two transgressions that are incompatible with the statutory scheme and its objectives for the protection of the environment.
I agree with the prosecutor's submissions and I find that the actions of Ridley and the consequences thereof in relation to each offence offended against the legislative objectives enshrined in s 3 of the POEO Act.

[12]

June offence

As a result of joint conferencing between experts in relation to environmental harm resulting from the June offence, it was agreed between the parties and the Court was informed that: 1. water samples taken from the discharge point at the Last Dam and Dalgetys Creek near the premises boundary on 20 June 2017 contained concentrations of ammonia 200 times higher than the ANZECC water quality guideline; 2. ammonia concentrations at this level are known to cause toxicity to a range of aquatic organisms and were acutely toxic to indicator species cladocera (water flea) and larval fish as follows: 1. immobilisation in 100% of exposed Ceriodaphnia dubia ('C. dubia'). Immobilisation is considered similar to mortality. The sample would need to be diluted eight times to avoid these acute toxic effects on C. dubia; and 2. imbalance in 100% of exposed Melanotaenia duboulayi ('M. duboulayi'). The sample would need to be diluted greater than 25 times to avoid these acute toxic effects on M. duboulayi. 1. the discharge of wastewater arising from the June offence caused actual harm to the environment which consisted of contamination of the soils, stream and groundwaters by contact with the pollutant within the premises and up to a sampling point in Marramarra National Park (identified in the informal map at [11] as 'NP Sample Point'); 2. the June offence would have caused acute toxicity to the biodiversity within Dalgetys Creek downstream of the Last Dam, including offsite into the Marramarra National Park up to the NP Sample Point. This would have reduced the biodiversity within Dalgetys Creek downstream of the Last Dam, including offsite into the Marramarra National Park; and 3. the extent of harm would have been the extent of flow within Dalgetys Creek, as a result of the discharge. The maximum possible extent was up to the junction between Dalgetys Creek and the Hawkesbury River.
In Waste Recycling at [147], Preston CJ of LEC stated: Harm can be direct or indirect, individual or cumulative and activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously.
Further, in EPA v Orica at [119], Pepper J noted that: …harm is not mitigated by the fact that the waters into which a pollutant is discharged are, at the time, already disturbed or modified: Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [48], Waste Recycling at [149] and Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415 at [159]. Although the disturbed condition of receiving waters is not a mitigating factor, it is relevant to the assessment of the extent of harm or likely harm caused by the commission of the offence: Waste Recycling at [149], Environment Protection Authority v Hanson Precast Pty Limited [2008] NSWLEC 285 at [66] and Environment Protection Authority v Hochtief AG and Thiess Pty Ltd [2007] NSWLEC 177 at [19].
Given the Statement of Agreed Facts on Environmental Harm, I accept, as I must, that the discharge arising from the June offence caused actual harm to the environment as noted above. While I find beyond reasonable doubt that the extent of the harm was within Dalgetys Creek, I am not satisfied that the harm extended to the Hawkesbury River.
I take into account the significance of the exceedance of the ANZECC water quality guideline in relation to concentrations of ammonia and I note that such concentrations are known to cause toxicity to a range of aquatic organisms. I do not consider that the harm is lessened, as Ridley submits, because Dalgetys Creek was expected to convey overflow from the Bottom Dam and/or has been highly modified, for the reasons noted by Pepper J in EPA v Orica at [119] referred to above. I find beyond reasonable doubt that the conduct constituting the June offence has caused environmental harm in the manner noted above.
While harm to the environment is not an element of the offence in s 64 of the POEO Act, if contravention of a licence condition results in environmental harm, the offence is aggravated: Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 ('Ballina') at [99].
I also find, as conceded by the prosecutor, that the evidence is not sufficient to establish beyond reasonable doubt that the harm is substantial for the purpose of s 21A(2)(g) of the Sentencing Act. However, as the environmental harm resulted from the contravention of a licence condition, the contravention is aggravated in the sense considered by Preston J in Ballina at [99] and thus falls within s 241(1)(a) of the POEO Act which requires the Court to take into account the extent of the harm caused or likely to be caused by commission of the offence.

[13]

October offence

As a result of joint conferencing between experts in relation to environmental harm resulting from the October offence, it was agreed between the parties and the Court was informed that: 1. the wastewater released into that part of Dalgetys Creek downstream of the premises boundary as a result of the offence had concentrations of ammonia at a level known to be toxic to aquatic organisms; 2. the offence is unlikely to have caused additional actual harm to the pre-existing water quality of Dalgetys Creek because the water quality of the creek was already significantly degraded; and 3. the offence had the potential to cause harm to aquatic organisms. In the absence of evidence of flow downstream as a result of the offence, the extent of the potential for harm is uncertain.
Ridley submits that the Court would only have regard to the discharge from the Main Dam that commenced on the evening of 28 October 2017 because s 241(1)(a) of the POEO Act is concerned with "the extent of the harm caused or likely to be caused to the environment by the commission of the offence" (emphasis added). Ridley submits that the relevant conduct constituting the offence was the failure to turn off the Pump on the afternoon of 27 October 2017 with the consequence that it continued to pump water resulting in the Main Dam overflowing into the Last Dam. Ridley contends that the discharge ceased by 2.30pm on 28 October 2017 and there was no further water pumped from the Bottom Dam to the Main Dam thereafter. Ridley notes that it is not known how much water was pumped from the Bottom Dam to the Main Dam on 27 October 2017 so as to cause the initial discharge. In those circumstances, Ridley submits that it cannot be said that the discharge of water from the Main Dam that commenced on the evening of 28 October 2017 was caused by the failure to turn off the Pump on 27 October 2017. Accordingly, Ridley submits that the offence did not cause any additional harm.
Ridley submits that there are no ecotoxicity test results available for the discharge of 27 to 28 October 2017.
As noted above, I accept that the concept of harm in the context of environmental offences includes the potential or risk of harm, not merely actual harm: Waste Recycling at [145]. I find that the October offence had the potential to cause harm to aquatic organisms, notwithstanding the fact that the extent of the harm is uncertain. As canvassed with counsel for the parties at the hearing, I consider the wording "additional actual harm" in the Statement of Agreed Facts on Environmental Harm (at [63(2)] above) to be somewhat ambiguous. Despite this, I am not satisfied beyond reasonable doubt that the October offence resulted in actual environmental harm.

[14]

State of mind in committing the offences

While each of the offences against s 64(1) of the POEO Act is a strict liability offence, the state of mind of the offender at the time of an offence may make the offence objectively more serious. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally: Gittany Constructions Pty Limited 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 ('Rae') at [42] and Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90 at [35].
The prosecutor submits (in written submissions) that Ridley was responsible for creating the circumstances giving rise to these offences and, as such, displayed an indifference amounting to negligence (however, in oral submissions, counsel for the prosecutor submitted that Ridley acted recklessly, rather than negligently (Tcpt, 31 July 2019, p 33(45-49)) in the face of a known and obvious risk: Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 ('Elf Farm Supplies') at [79].
While the prosecutor acknowledges that Ridley implemented a variety of measures following both the June offence and the October offence, it submits that these measures could have been implemented before the overflow incidents occurred. The prosecutor submits that the only system of monitoring and prevention of overflows that Ridley had in place prior to June 2017 was visual checking of the available freeboard in the Bottom Dam by a staff member and the pumping of water from the Bottom Dam when the water levels in that dam appeared to be nearing capacity. The prosecutor contends that those measures were wholly inadequate to safeguard against the obvious risk of overflow of the dams.
Ridley submits that the breach of the licence condition on each occasion was not intentional, deliberate or even reckless. While Ridley accepts that it was responsible for the circumstances which gave rise to the offences, it disputes the prosecutor's characterisation of its state of mind as "indifferen[t]".
In Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 ('Brummell') at [51], Preston J noted that: A critical difference between [recklessness and negligence] is that recklessness is measured on a subjective standard (the referent being the offender) while negligence is measured on an objective standard (the referent is a hypothetical reasonable person).
For an offender to be reckless in the commission of an offence, they need to have "knowledge or foresight of the likelihood of the consequence or circumstance occurring" in the sense of a "real and not remote" chance: Brummell at [52]. While pertaining to different factual circumstances to those in the present matter, in Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126], Pepper J considered recklessness in the context of clearing native vegetation as follows: An offender's conduct will be classified as reckless where he or she is put on notice, in the sense that he or she believes or suspects, that the clearing of native vegetation may be unlawful but nevertheless proceeds to undertake the clearing without making further enquiries (Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [50] and Director-General, Department of the Environment and Climate Change v Olmwood (No 2) [2010] NSWLEC 100 at [50]).
As per Brummell at [53], negligence requires consideration of: …whether the risk of [the] consequence or circumstance was foreseeable to the reasonable person in the position of the offender, not whether the offender subjectively foresaw the risk: NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320 at 321, 324, 325.
In relation to the June offence, I find that the prosecutor has not established beyond reasonable doubt that Ridley acted recklessly or negligently. Even if Ridley's state of mind could be attributed to Mr Pratt (Mr Plain's supervisor) and/or Mr Williams (the then Site Manager), I am not satisfied that either Mr Pratt and/or Mr Williams was subjectively aware of the risk that the Pump would not be operated in a proper and efficient manner, contrary to condition O2.1(b) of the Licence and in breach of s 64(1) of the POEO Act, was likely to result, nor am I satisfied that, viewed objectively, a reasonable person in Ridley's position would have foreseen the risk that there would be a failure to operate the Pump in a proper and efficient manner, contrary to the Licence condition and in breach of the POEO Act. Although neither Mr Pratt, Mr Williams nor any other Ridley staff member checked whether the Pump was operating properly on 19 June 2017 after it was turned on despite Mr Plain's observations (which were subsequently reported to Messrs Pratt and Williams) that the Pump was "starting to get a little slow", I note that Mr Plain reported that there was "plenty of pressure" in the Pump at that time and that it was primed and working satisfactorily. In these circumstances, I do not find Ridley's conduct negligent to the criminal standard so as to warrant criminal punishment: Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 ('Ampol') at 439 and Brummell at [54]. It follows that I do not find that Ridley acted recklessly in the face of a "known and obvious risk" as submitted by the prosecutor.
I find that the October offence was committed negligently, but not recklessly. The evidence discloses that, viewed objectively, a reasonable person in Ridley's position, knowing what Ridley knew at the time of the October offence, would have foreseen that the failure to operate the Pump in a proper and efficient manner would breach condition O2.1(b) (and s 64(1) of the POEO Act). I find that Ridley was on notice of the offence following the June offence and I note that despite the fact that the October offence related to a different dam, it involved the same pump or system. In the circumstances, and having regard to the fact that the negligence required to be proved by the prosecutor is negligence of the criminal type, I consider that Ridley acted negligently in committing the October offence. I am satisfied that the failure to take precautions warrants criminal punishment: Ampol at 439 and Brummell at [54]. The evidence before the Court in relation to the October offence is insufficient to establish beyond reasonable doubt that Ridley was subjectively aware of the risk that the Pump would not be operated in a proper and efficient manner, contrary to the Licence condition and in breach of the POEO Act, was likely to result. As such, I do not find that Ridley acted recklessly in the commission of the October offence.

[17]

Practical measures to prevent risk of harm

The prosecutor submits that the harm could have been avoided and at the time of the June offence, there was no documented process to record dam water levels or determine when it was appropriate to operate the Pump. Further, the prosecutor submits that at the time of the October offence, there were no processes or procedures in place to respond to dam overflow events or manage dam water levels. The prosecutor submits that all of the steps that have subsequently been taken by Ridley could have been implemented sooner to prevent these incidents.
While Ridley accepts that there were practical measures it could have taken that may have prevented the discharges from occurring, it submits that the offences were not "accidents waiting to happen". Ridley submits that the offences involved instances of inadvertence on the part of its workers in failing to properly monitor dam water levels and the operation and functioning of the Pump. Ridley notes that in the case of the June offence, there is no evidence that it was on notice that the Pump would fail in the way that it did or that it was in an obvious state of disrepair.
Ridley highlights the fact that following the offences, it took steps which have successfully prevented any further contraventions. Ridley further submits that its responses following the identification of each incident were appropriate and ensured that any harm was controlled, minimised and abated.
Given the circumstances that led to the offences and in particular the fact, as submitted by the prosecutor, that there were no processes or procedures in place to respond to dam overflow events or indeed effectively manage dam water levels, and given that appropriate procedures and practices were later adopted, I find beyond reasonable doubt that there were practical measures to prevent the risk of harm. While I do not accept that the circumstances leading to the offences could be described as "accidents waiting to happen", in relation to both offences, it is clear that there were practical measures that Ridley could have adopted including the steps subsequently taken by Ridley which would have prevented (or significantly reduced) the risk of harm that occurred.

[21]

Contrition and remorse

As stated above at [40], pursuant to s 21A(3)(i) of the Sentencing Act, remorse will only be a mitigating factor 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),
Ridley submits that contrition and remorse are inherent features of its pleas of guilty and that there is also particular remorse and contrition shown by the fact that Ridley self-reported the October offence. Ridley notes that there was no need to self-report the June offence given that it first came to Ridley's attention at the time of the inspection by EPA officers on 20 June 2017. Ridley further submits that it has demonstrated contrition and remorse by its actions immediately following the incidents and in the affidavit of Mr Lower.
Ridley also relies upon the affidavit of Mr Linehan who gives uncontested evidence regarding Ridley's agribusiness operations and history, details the nature of the business and Ridley's role as a corporate citizen at various community-based activities. He deposes that the incidents the subject of the offences are at odds with Ridley's corporate culture which prides itself on its environmental record and care for the environment.
Mr Linehan also details improvements undertaken at the premises, including changes in practices and procedures which have increased the margin of safety by allowing diversions of water to occur sooner. He deposes that the maximum operating water level of the Settling Dam has been set so if no intervening action were to occur, it would take an estimated 72 hours before the Settling Dam reached close to the top of the dam wall under normal operating conditions. Mr Linehan says that the contingency of the revised high-water mark will also ensure that if there is a malfunction of the pump, there is now a 72 hour timeframe within which that mechanical issue can be rectified. He notes that there is a spare pump which is available onsite and can be installed in a matter of hours in the event of a malfunction. Mr Linehan further deposes as to the operating hours of the premises and notes that even when the premises are not operating, there is a caretaker onsite who oversees water levels in the dams. He also deposes to the installation of a rainwater drainage pit, gutters and a water storage tank and gives details of proposed future capital works relating to the installation of a new pumping system.
Mr Linehan provides a formal apology in relation to the discharge of wastewater containing ammonia into Dalgetys Creek and the consequent impact thereof on the environment.
The prosecutor accepts that Ridley has expressed contrition and remorse and that Ridley is otherwise a company of good character and repute.
I accept that the actions of Ridley outlined by Mr Linehan above are indicative of contrition and remorse and that subsequent to each incident, the company took relatively expeditious action. Although I note the prosecutor's suggestion that the more recent changes to procedures and protocols and further works could have been undertaken more promptly, I am conscious of the fact that the implementation of long-term, sustainable solutions to wastewater management take some time and I consider that the works show a genuine desire to act responsibly.

[26]

Even-handedness

In determining the appropriate penalty for each offence, the Court should be consistent with any patterns of sentencing for like offenses. The prosecutor directed the Court to various relatively recent cases concerning contraventions of s 64 of the POEO Act including Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89, Elf Farm Supplies, Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39, Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76, Environment Protection Authority v Wambo Coal Pty Ltd [2017] NSWLEC 152 and Environment Protection Authority v Steggles Foods Mt Kuring-gai Pty Ltd [2017] NSWLEC 178; (2017) 230 LGERA 24 ('Steggles').
While Ridley acknowledges that the Court should have regard to other cases as they provide a yardstick for sentencing, it submits that greater assistance should be obtained by reference to general sentencing principles: R v Woodman [2001] NSWCCA 310 at [24]-[25], R v Hawker [2001] NSWCCA 148 at [17], Cvetkovic v R [2013] NSWCCA 66 at [73], Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 ('Hili') at [54] and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305]. Ridley submits that it is important to have regard to not just what has been done in other cases, but why it was done: Hili at [18].
I have had regard to the matters considered by the Court in the decisions to which I have been referred, including the objective and subjective circumstances thereto. I am conscious of the fact that each case turns upon its particular facts and caution must be exercised in considering other cases because of the "…inevitable disparity between subjective and objective circumstances applicable to those cases, compared to the same circumstances found to exist in this case": Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 at [45]. This is particularly so in the context of Steggles, a case which the prosecutor acknowledged pertained to different factual circumstances and a breach of a different nature vis-à-vis the present proceedings. The sentence that I consider appropriate to be imposed for each offence is not inconsistent with the sentences imposed in the matters to which I have been referred.

Environment Protection Authority v Ridley AgriProducts Pty Limited

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