Environment Protection Authority v Simplot Australia Pty Ltd

ENVIRONMENT PROTCTION AUTHORITY Prosecutor v SIMPLOT AUSTRALIA PTY LTD Defendant

This case is a prosecution by the Environment Protection Authority against the defendant Simplot Australia Pty Limited. The defendant is charged with an offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("the POEO Act"), in that on 7 April 2000 it polluted waters.

In the summons the pollutant is particularised as matter that causes biochemical oxygen demand, and/or oil and/or fat, and/or vegetable matter, and/or batter. The waters are particularised as an open stormwater drain leading to Raglan Creek.

The defendant has entered a plea of guilty to the charge, and the only task of the Court in those circumstances is to consider the appropriate penalty and costs.

The parties have filed an agreed statement of facts from which the following salient facts are derived.

The defendant operates food processing facilities at Bradford Street, Kelso. In the course of the operation of its business, food waste is discharged and there is a system of treating the food waste. Under a trade waste agreement with the local council, treated effluent is discharged to the sewer.

In the incident that occurred on 7 April 2000, food waste was being discharged into a pipe across the factory roof. Because of some cuts that had been made in that pipe, the food waste discharged into a gutter, and it then discharged to an underground stormwater pipe, from which it was carried by water (which had emitted from the spiral freezers in the factory) to an open stormwater drain.

The pipe had been cut in three places by employees of the defendant in an effort to remove a blockage that they had discovered and about which they had some concern. Before they made the three cuts, they bunded some of the guttering around the pipe, but they left one gutter unbunded, and it was into that gutter that the waste material drained. The operator who failed to bund the gutter at this point did so because he was under the mistaken belief that the gutter had previously been connected to the food waste system in the course of capital works proposed for the factory.

About 100 litres of food waste, comprising flour, water, and vegetable matter, travelled for about 10 metres along the open stormwater drain from the point where the pipes entered it. The drain itself is about 320 metres long. It collects stormwater from the local industrial estate, and it leads to the flood plain region of Raglan Creek.

The agreed statement of facts refers to a report prepared by Mr P Anink of Marine Pollution Research Pty Ltd, in which the opinion was proffered that the open stormwater drain in Raglan Creek was in a poor state prior to the incident, and contained water quality stress, soil erosion and sedimentation, and minor industrial spillages, amongst other things.

An EPA officer, Dr T Kobayashi, prepared a report in relation to his assessment of the environmental effects resulting from the incident. He examined the area and also the reports of the samples which were taken by the prosecutor's officers. He concluded that the discharge contained high levels of chemical oxygen demand, total kjeldahl nitrogen, and total phosphorus. In his opinion, these elements had the potential to cause stress or to kill aquatic life. There was, however, no evidence of any actual harm because there did not appear to be any aquatic life in the open stormwater drain. Nevertheless, the levels of total kjeldahl nitrogen and total phosphorus exceeded ANZECC National Guidelines for the Protection of Aquatic Life so that there was incontrovertibly a potential for environmental harm.

Once the incident was identified by the defendant, a prompt and complete remediation of the stormwater system and the open stormwater drain took place. Containment dams and booms were installed, the stormwater system impacted by the incident was flushed and contained, and organic material in the open stormwater drain was removed. That clean up operation was undertaken, as I have said, immediately and completed within about 11 hours of the incident occurring.

I am required under s 241(1) of the POEO Act to take into account a number of matters. The first of these is the extent of the harm caused or likely to be caused to the environment by the commission of the offence. Dr Kobayashi's evidence supports a conclusion that there was a potential for environmental harm but no evidence of actual environmental harm.

Secondly, I am required to take into account the practical measures that may be taken to prevent control abate or mitigate that harm. The defendant did endeavour to mitigate the harm by undertaking a prompt and complete clean up of the discharge. The fact is, however, that the incident could probably have been avoided altogether if the gutters in the location of the pipe which was cut had been completely bunded but they were not.

Next, I am required to take into account 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. It seems to me that the incident was reasonably foreseeable. It involved the cutting of a pipe containing trade waste. The possibility that the pipe might discharge must be taken to be foreseeable on the part of the defendant.

I am required to take into account the extent to which the person who committed the offence had control over the causes that gave rise to the offence. There is no doubt that the defendant, whose factory was the source of the offence, had complete control over the causes that gave rise to the offence.

In one respect, this is an unusual case. The parties have furnished joint written submissions and in those written submissions they jointly request the Court, in dealing with the offence, not to impose a penalty under s 123 of the POEO Act but to make an order under s 250(1)(c) of the POEO Act which provides as follows: Additional Orders

The Court may do any one or more of the following: (c) order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit.

The basis upon which the parties jointly seek that order is as follows: (1) the defendant has expended in the vicinity of $850,000 to review its trade waste system and to commission a new trade waste system which has been operating since April 2001. According to the agreed statement of facts, the new system has a greater capacity, less likelihood of blockages, and it significantly enhances the defendant's ability to treat its trade waste at the factory. It ensures that the incident cannot be repeated.

(2) the defendant has a comprehensive system for the education and training of its officers and has produced appropriate work procedure manuals.

(3) the defendant took prompt action to clean up the discharge and to mitigate the possibility of further harm.

(4) the defendant co-operated with the prosecutor. It foreshadowed a plea of guilty at an early opportunity, and its officers gave assistance and information to EPA officers during the course of their investigation.

In addition to these matters, I note that the defendant has agreed to pay the costs of the prosecutor in the sum of $8,500. I also note that the actual plea of guilty was entered at a reasonably early opportunity on 17 July 2001. I have also noted the contrition and regret of the defendant, which is expressed in the agreed statement of facts, and also in pars 51, 52 and 53 of the affidavit of Ms S E Pilkington (who is the defendant's national risk manager).

In my opinion, those factors entitle the defendant to a penalty in the lower range. However, in my view it is quite appropriate and consistent with the objects of the POEO Act that, instead of proceeding to impose a penalty, the Court make an order under s 250(1)(c). In coming to this conclusion, I have noted and taken into account that the defendant has two prior convictions recorded earlier this year for two breaches of s 120(1) of the POEO Act.

An important factor in prosecutions of this kind is not so much a monetary penalty but the possibility of making orders that have the effect of enhancing the environment and encouraging its protection, and the avoidance of its degradation. The orders which are sought are such orders.

During the course of the hearing, I expressed to the parties some doubt as to whether an order can be imposed under s 250(1)(c) without having first imposed a penalty under s 123. That doubt arose in my mind because s 250 is a section which contains what are entitled "additional orders", and furthermore s 123 provides that a person who is guilty of an offence is liable on conviction in the case of a corporation to a penalty not exceeding $250,000.

However, I note that pt 8.3, in which s 250 appears, is, by s 243(1), expressed to apply where a court finds an offence against the POEO Act or regulations proved. Section 244(2) provides that orders may be made under pt 8.3 in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.

Taking these provisions into account, I think that the Court does have a wide discretion to make orders under pt 8.3. I think it is appropriate to make such orders in a case such as this where the defendant has signalled its willingness to be bound to orders of the nature of those specified in s 250(1)(c).

Two orders are suggested. First, an order that the defendant, within 12 months of the date of the orders, and in consultation with representatives of Charles Sturt University and Macquarie River Care Bathurst Inc, carry out specified projects to the value of $20,000 for the restoration or enhancement of the environment. The specified projects are: (a) Undertake works to stabilise levee banks and river banks in the "Riverine Environment". That expression is defined as the environment of the Macquarie River, Raglan Creek and associated freshwater drains, gullies, and levee banks which are severely degraded.

(b) Remove willow trees and poplar trees along the river banks and levee banks in the "Riverine Environment".

(c) Clear blackberry bushes located on or near Macquarie River frontages in the "Riverine Environment".

(d) Plant native species for the creation of buffer zone between waterways and irrigated farming in the "Riverine Environment".

(e) Carry out programs agreed to by Charles Sturt University and Macquarie River Care Bathurst Inc for the restoration and the enhancement of environment in the "Riverine Environment".

The second order would provide that within 12 months of the date of these orders, the defendant undertake an assessment of ways of reducing greenhouse gas emissions from the defendant's coal-fired plant to a level which is at or below 108 per cent of the estimated levels emitted from the premises in the year 1990 through its redesign, and its replacement with a gas-fired plant, and in doing so: (a) Obtain estimated baseline data for greenhouse gas emissions at premises as at 1990.

(b) Assess other food manufacturing plants to observe and determine the operation of their gas-fired plants.

(c) Investigate, survey and price options to replace the defendant's coal-fired plant with gas-fired plant.

(d) Prepare a costed proposal for the replacement of the defendant's coal-fired plant with gas-fired plant.

(e) Present that costed proposal to the board of directors of the defendant for consideration by 31 December 2002.

Section 251 provides that a person who fails to comply with an order imposed under pt 8.3 is guilty of an offence. No doubt, in an endeavour to ensure the defendant's compliance, the orders which are sought provide for reporting about the outcome of the specified projects, and the estimated base line data for greenhouse gas emissions, to the Regional Manager, Western Regions of the EPA. In my opinion that is entirely suitable.

It is appropriate therefore for all these reasons that the defendant should be convicted, and that orders should be made in the nature of those that I have outlined.

I therefore make the following formal orders. (1) The defendant is convicted of the offence with which it is charged.

(2) In accordance with section 250(1)(c) of the Protection of the Environment Operations Act 1997, I make the orders set out in the document that I have signed for identification, and which is an annexure to the joint submissions of the parties.

(3) I order the defendant to pay the costs of the prosecutor in the agreed sum of $8,500.

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