Environment Protection Authority v Supreme Poultry & Chickens Pty Ltd & Anor

HIS HONOUR:

These are three prosecutions for an offence against sub-s 120(1) of the Protection of the Environment Operations Act 1997 ("the POEO Act"). That sub-section provides that a person must not pollute any waters. The maximum penalty for the offence is, in the case of a corporation, two hundred and fifty thousand dollars ($250,000); and in the case of an individual, one hundred and twenty thousand dollars ($120,000). The defendants have pleaded guilty to each charge.
The first offence in proceedings No. 50019 of 2001 occurred on or about 21 February 2000. The defendant in that case is Supreme Poultry & Chickens Pty Ltd. The second offence occurred on 19 June 2000, and there are two defendants. The first (in proceedings No. 50064 of 2001) is Supreme Poultry & Chickens Pty Ltd and the second (in proceedings No. 50063 of 2001) is Peter Charles Attard, the managing director of that company.
The facts can be briefly stated. Supreme Poultry & Chickens Pty Ltd operates and at all relevant times operated a chicken slaughtering and processing factory at No. 590 Great Western Highway, Arndell Park. As I have said, Mr Attard, the defendant in proceedings No. 50063 of 2001, is the managing director of that company. The operation of the factory involves the use of considerable amounts of water and a large amount of liquid waste is generated during the killing and processing of poultry.
On 21 February 2000, liquid waste from the premises was seen flowing from the factory into a drainage pit in Penelope Crescent adjoining those premises. As I understand it, waste from the processing of chickens was collected in a waste water ballast pit where chicken waste remaining in the water was separated from the liquid by pumping it through a rotary screen. There was a float switch in the pit which automatically activated the pump, pumping the waste water from the pit through the screen and into a tanker. The tanker transported the waste water off site. The company had two tankers for this purpose and when one was full, the other took its place.
It seems that on 21 February 2000 the float switch in the effluent pit was blocked and out of position. According to the evidence of the defendant, this was and remains the only occasion when this incident occurred, causing water to overflow the pit. Waste waster from the ballast pit which, as I have indicated, was full and overflowing, flowed across a paddock, through a fence and into the drainage pit in Penelope Crescent. The waste water had then flowed into a stormwater drain and then into an open stormwater canal. Liquid in the canal was seen to be discoloured and was a "browny greeny" colour with a white scum floating on the surface. This was similar to the waste waster seen at the premises.
Mr Attard, was not at the premises at the time, having gone away to obtain medical treatment for an injury to his leg. When interviewed, he freely admitted that what happened was that the pump was activated by a float switch which had stuck and which had stopped the pump from operating.
On 19 June 2000, waste water was seen discharging from a PVC pipe in the waste water treatment area. It flowed across the rear paddock and thence into the stormwater drain in Penelope Crescent. The amount of discharge on this occasion was less than on 21 February 2000 but on this occasion, the discharge was not due to any equipment failure, rather the water was being deliberately pumped onto the paddock for the purpose of watering it so as to provide fodder for livestock that then grazed in the paddock. Mr Attard says that he checked the paddock before releasing any water. He did not think that enough water had been released to saturate the paddock and to then seep into the stormwater drain in Penelope Crescent at the rear of the premises. On that occasion the flow from Penelope Crescent was insufficient to reach the canal.
Samples were taken of the discharge on each occasion. These have been described in the evidence of Mr Murray Root, an environmental scientist. In each case there were elevated levels of biological oxygen demand and chemical oxygen demand in the waste waters that had been discharged. According to Mr Root, waste waters with a high oxygen demand will lower dissolved oxygen concentrations in the receiving water. Most aquatic organisms cannot tolerate conditions of lowered oxygen concentrations for any length of time. Waste waters with a high oxygen demand can have a stressing or lethal consequence for such organisms.
In the case of the incident on 21 February 2000, the levels indicated that the discharge had a potential to lower the dissolved oxygen concentrations in any receiving waters. Nitrogen and phosphorus were also present in the discharge. According to Mr Root, when these elements occur in excessive amounts in the aquatic environment they can encourage the nuisance growth of algae and other aquatic plants. Excessive plant growth can lead to a variety of adverse effects on aquatic habitats including habitat degradation, clogging of watercourses and extreme variations in dissolved oxygen concentrations, leading to stress or death of aquatic fauna.
The level of total phosphorus in the discharge was found to be some eighty times higher than the ANZECC guidelines; and for total nitrogen some thirty-seven times higher than the ANZECC guidelines; indicating that the discharge had the potential to stimulate excessive plant growth in the receiving waters. Similarly, ammonia, which may potentially have a toxic effect upon aquatic life. The sample disclosed that the level of total ammonia was some fifteen times greater than the ANZECC guideline value and that the discharge had the potential to cause toxic effects to aquatic fauna of receiving waters.
I accept the defendant's submission, however, that whilst this evidence shows a potential for environmental harm, no actual environmental harm was demonstrated.
In the case of the offence that occurred on 19 June 2000, again Mr Root examined the samples taken of the discharge from the defendant's premises. The analysis showed that the biological oxygen demand was moderately high and the chemical oxygen demand was also moderately high, indicating that the discharge had some potential to lower dissolved oxygen concentrations in the receiving waters.
The total phosphorus on that occasion was also at a concentration that could have resulted in excessive aquatic plant growth; and the concentration of total nitrogen, some twenty-five times higher than the ANZECC guideline value, also had the potential to stimulate excessive plant growth in receiving waters. On that occasion the level of ammonia was some four times higher than the ANZECC guideline value and it had the potential to cause toxic effects to aquatic fauna in receiving waters.
Again, I accept the submission of the defendant that no actual environmental harm was demonstrated and that there was, in this instance, only the potential for environmental harm.
Supreme Poultry & Chickens Pty Ltd has since changed its method of disposal of waste water. As I understand it, a dissolved air flotation water treatment plant has now been installed; and the effluent passes through that system before being pumped into a tanker to be taken away. Alarms have been attached to the water treatment system so that if there is a failure at any point, alarms are sounded. The defendant company has also, as an added precaution, had the area around the system contained by concrete bunding. It is also investigating the possibility of disposing of waste water by directly discharging it to the sewer. The dissolved air flotation system was installed at a cost, which includes the concrete bunding and electrical work, of seventy-eight thousand dollars ($78,000).
Before approval for the waste water to be discharged in the sewer system can be obtained, further requirements must be met. This includes the installation of roofing over the yard area to prevent rainwater going into the system; and this will cost another fifty thousand dollars ($50,000). Another cost in connection with the sewer connection is the construction of that sewer connection at an estimated cost of thirty-nine thousand dollars ($39,000); and upon connection and before water can be discharged there is a further one-off cost, being payment to Sydney Water of a developer's sewage payment charge of sixty-four thousand one hundred and seventy-seven dollars ($64,177). That is, the company has incurred or will incur a total of two hundred and thirty-one thousand one hundred and seventy-seven dollars ($231,177) in order to ensure that no further incidents of this kind will occur in the future.
The prosecutor seeks an order under s 245(c) of the POEO Act, to which the defendant has agreed, under which the Court may order the defendant to take such steps as are specified in the order, within the time specified, to prevent the continuance or recurrence of the offence. The order agreed to is in the nature of works which the defendant has already committed itself to undertake.
In considering the question of penalty, a number of matters must be taken into consideration and these are set out in s 241 of the POEO Act. The first of those is the extent of the harm caused or likely to be caused to the environment by commission of the offence. I have noted that there was a potential for environmental harm, although no actual environmental harm occurred in this case.
Next are the practical measures that may be taken to prevent, control, abate or mitigate that harm. It seems to me that practical measures could have been taken to prevent, control, abate or mitigate that harm, being the measures that have been taken since the occurrence of the offence.
Both defendants must have been aware of the possibility of an occurrence this kind because there have been three previous penalty infringement notices against the company for pollution of waters under the Clean Waters Act, 1970; and one previous conviction against the company for polluting waters arising from a pollution incident that occurred in April 1999.
The next consideration is 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. Again I think that the offence in each case must have been reasonably foreseeable, as evidenced by the previous penalty infringement notices and previous conviction to which I have referred.
The next consideration is the extent to which the person who committed the offence had control over the causes that gave rise to the offence. In this case, the defendants had complete control over the causes that gave rise to the offence.
There are a number of other considerations that must be taken into account. Firstly, the fact that the defendants have pleaded guilty to each of these charges. In the case of proceedings Nos. 50063 and 50064 of 2001, those pleas were entered at the earliest opportunity. In the case of No. 50019 of 2001, again I accept that the plea of guilty was entered at an early opportunity. Pursuant to s 22 of the Crimes (Sentencing Procedure) Act 1999 that is a matter which is taken fully into consideration. Secondly, I accept the defendants' submission that the offences were unintentional. I do not accept the submission that they were unforeseen. Thirdly, I accept that remedial action was quickly and promptly taken. Fourthly, I accept the fact that precautions have since been taken to ensure that the offences will not be repeated. In order to ensure that the offences will not be repeated, I will, as requested, make an appropriate order under s 245(c) of the POEO Act.
I have had regard to the range of penalties imposed for similar offences in other cases and note that since those penalties were imposed, the penalty for this offence has been doubled. That is, since 1 July 2000, the penalties were increased from one hundred and twenty-five thousand dollars to two hundred and fifty thousand dollars ($250,000) for a corporation, and from sixty to one hundred and twenty dollars ($120,000) for an individual. I do not accept, however, that it follows that the range of penalties that are generally imposed by the Court should double. Recently the Chief Judge of the Court, in Environment Protection Authority v Timber Industries Limited [2001] NSWLEC 25 considered this question, and her Honour said (at par 33): The maximum penalty for a breach of s 120 of the PEOA Act in the case of a corporation is $250,000 (s 123(a)). It is to be noted that, upon the enactment of the PEOA Act, the maximum penalty for water pollution offences if a corporation was doubled - that is, the maximum penalty was increased from $125,000 to $250,000. That does not mean, however, that the Court should simply impose a penalty effectively twice that which the Court would have imposed had the offence been committed before the coming into force of the POEA Act. Rather, the proper approach of the Court must be to assess the relative seriousness of the particular offence in relation to a worst case, for which the maximum penalty of $250,000 is now provided; that is, the penalty to be imposed is that which correlates upon the scale of penalty set by the legislature from zero to the maximum."
In considering the question of penalty in this case, I have to take account of the fact of the antecedent criminal history of the defendant: see Veen v The Queen [No.2] (1988) 164 CLR 465 at 477. I do not believe, therefore, that the offences in this case were an uncharacteristic aberration. The previous penalty notices and the previous conviction must be taken into account.
Having regard to all of these circumstances, I make the following formal orders: Firstly, in relation to No. 50019 of 2001:

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Judgment (10 paragraphs)

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