Environment Protection Authority v Sydney Water Corporation

Land and Environment Court (NSW)|1993-11-22|Before: Sheahan J

CITATION : Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80 PROSECUTOR PARTIES : Environment Protection Authority DEFENDANT Sydney Water Corporation FILE NUMBER(S) : 50076 of 1999 CORAM: Sheahan J KEY ISSUES: Prosecution :- polluted waters LEGISLATION CITED: Clean Waters Act 1970 Protection of the Environment Operations Act 1997 Axer v EPA (CA) 22 November 1993; Camilleri Stock Feeds v EPA (CA) (1993) 82 LGERA 21; CASES CITED: EPA v Orange City Council (No. 50045 of 1995, 23 June 1995); EPA v Shell Co [2000] NSWLEC 16; EPA v Bega Valley Shire Council (Nos. 50011-13 of 1998, 14 August 1998) DATES OF HEARING: 03/03/00 EX TEMPORE 03/03/2000 JUDGMENT DATE :

PROSECUTOR SOLICITOR Mr Mark Kelly EPA LEGAL REPRESENTATIVES: DEFENDANT SOLICITOR Mr C H Shaw Andersen Legal

ENVIRONMENT PROTECTION AUTHORITY Prosecutor v SYDNEY WATER CORPORATION Defendant

Sydney Water Corporation has pleaded guilty to a charge that it polluted waters with an aluminium compound, contrary to s 16(1) of the Clean Waters Act 1970, in the course of the operation of its West Camden Sewerage Treatment Plant on 22-23 October 1998 .

The Camden plant outputs approximately 6.5 megalitres of tertiary treated effluent per day.

Sydney Water commissioned a mechanical dosing system for aluminium sulphate, known in the community as " alum ", in August 1998, pursuant to a strategy to improve its performance in phosphorus removal. Nutrients such as phosphorus are of particular environmental concern as they promote the growth of algae, and the new system has proved most effective in achieving very low phosphorus concentrations.

As a result of a seal failure in the alum dosing pump, an estimated 7,000-8,000 litres of alum siphoned into the plant's tertiary filter system, which has an authorised discharge point in an unnamed tributary of Matahil Creek. Such an amount over the maximum 18 hour period represented approximately 50 times the normal alum controlled quantity dose rate of 200 litres per day, but some 60% appears to have been caught by anthracite filter beds.

Design of the system included a mechanical regulator to counter the possibility of a siphonic effect. The design plans were wrongly transmitted by fax to the construction team, and the regulator was not installed, leaving the dosing pump's seal as the only protection against a siphonic mishap.

It is agreed that the discharge at the heart of this matter was caused by the seal failure. Until the incident was investigated, Sydney Water did not realise that its modified system would allow an uncontrolled discharge of alum to the effluent if the seal failed.

The system was regularly inspected. It was bunded in case of leaks. Some of it was appropriately alarmed and monitored. Sydney Water had in place a programme of preventative maintenance, which included periodic (it would seem annual) replacement of the seal. No problems were seen at 3.30pm on 22 October, and action was taken to stop the overdosing immediately it was identified at 9.30am on 23 October.

The incident resulted in extremely elevated aluminium concentrations along an 800m stretch of the two creeks, giving the waters a translucent blue appearance.

The Court has been assisted by the parties' agreement on a Statement of Facts ( Exhibit S1 ) and by their extensive written submissions. These documents will remain in the court file, and need not be repeated in this judgment.

Whatever the regrettable misadventure in instructing the construction team, no real explanation has been given to the court as to how the pump came to be commissioned by Sydney Water, without detecting the absence of the mechanical regulator, which would have prevented the incident giving rise to this charge.

Against that fact, the court has considered the following matters to the credit of Sydney Water: (a) its prompt response to the discovery (detailed in s 9 of the Statement of Agreed Facts and in Mr Shaw's written submissions); (b) its fulsome co-operation with the prosecutor in the investigation of the incident and in these proceedings; (c) its early plea of guilty, and agreement to pay the prosecutor's costs; (d) its maintenance and monitoring practices in respect of this and other plants, and its choice of world-class contractors to assist it, such as Australian Water Technologies and Asea Brown Boveri; (e) the commendable design features that were implemented at West Camden, both before and since the incident; (f) Sydney Water's stated ambition to be an environmental leader, as evidenced by its pursuit of - and subsequent achievement, in recent days, of - ISO 14000 certification of its sewerage treatment plants, including Camden; (g) the measures taken to ensure such an incident is not repeated (these measures are detailed largely in s 13 of the Statement of Agreed Facts) and I pay particular regard to the installation especially of the Archimedes loop, pH meters, a back pressure valve and a mechanical brake, or " break " as it appears in the facts, and (h) the assertion in oral evidence that Sydney Water's commissioning procedures have also been improved.

Mr Kelly for the EPA acknowledges that the defendant's response to this incident is " exemplary ", but he points out that these exemplary measures could have been taken prior to the incident.

With respect, I agree with that summation of the position.

Section 241 of Protection of Environment Operations Act (which replaced the well known s 9 of the Environmental Offences & Penalties Act ) identifies some matters which, among others, the Court should consider in determining penalty.

Turning firstly to the question of environmental harm, lower ranging pH levels persisted downstream for about 24 hours after the incident, and extraordinarily high aluminium concentrations (something like 10,000 times the ANZECC indicator) persisted for unacceptable periods into the next day, in Matahil Creek, before returning to appropriate values.

Fish in the environs were observed to be stressed, and 100 dead fish were removed from the creek.

There was very substantial potential for longer-term harm, but the court accepts the evidence of the independent expert engaged and called by the defendant, Paul Anink, that there was no permanent impact on ecology. Rather, it was, according to Mr Kelly, " a small insult " to the environment.

It is useful to quote from the Executive Summary of Mr Anink's report. I quote a passage that is relied upon also by the defendant at the bottom of page (v): The extent of harm was estimated using disturbance criteria, as recommended in DUAP (1998). Overall the incident was a short term pulse disturbance which resulted in the death of a number of fish due to low pH and possibly high aluminium concentrations in the water. The incident was short-term due to the prompt action by Sydney Water staff who correctly concluded that the low pH was the prime problem and set about to provide sufficient dilution water to neutralise the low pH effects of the spill. No other parts of the aquatic environment would appear to have been impacted and the recovery of the fish fauna would appear to have been rapid and complete. That is the aquatic environment was resilient (i.e., able to recover) and stable (i.e., recovery was rapid).

On the question of aluminium sediments I also accept Mr Anink's evidence that the relevant water courses normally display a high aluminium background and that he can find from this incident " no enduring environmental harm ".

Practicable measures to prevent, control, abate or mitigate harm?

The second consideration is practicable measures to prevent, control, abate or mitigate harm.

The mechanical regulator's omission from the corporation's improvement works is obviously the crucial failure on the defendant's part. The court acknowledges, on the other hand, the corporation's comprehensive and rapid response to mitigate harm, and prevent any recurrence.

The next two factors, r easonable foreseeability and relevant control of operations are acknowledged in general and contrite terms by the defendant, tempered as these aspects are by Sydney Water's reliance on reputable contractors.

Sydney Water has a number of prior convictions in this court. Three of them involved s 16 of the Clean Waters Act , but none involved the Camden plant. None of the prior cases is of real or direct relevance to this particular case.

Sydney Water is in business with a statutory obligation to enhance the environment. The Court acknowledges that it is a very large and complex undertaking that is increasingly aware of its responsibilities in and to the environment.

I do not, however, accept the submission that the extenuating circumstances of " contractor failure " on the commissioning of the improvements take this case down to one calling for a penalty of only 5% of the maximum.

As Mahoney JA said in Axer v EPA , an often quoted but unreported decision of the Court of Criminal Appeal delivered on 22 November 1993, and I quote from page 3 of His Honour's judgment: The fine should be such as will make it worthwhile that the cost of precautions be undertaken. In the end the object of the legislation is to prevent pollution and to do this inter alia by the deterrent effect of a substantial fine and by in consequence persuading the industries concerned to adopt preventative measures. In assessing the fine in a particular case it is proper to bear in mind the economic realities upon which such legislation is based.

Just because the Defendant does a job that few others would relish, and acts in the general public interest, does not entitle it automatically to a discount.

In deciding the appropriate penalty to impose I have also had regard to the principles in Camilleri Stock Feeds v EPA (CA) (1993) 82 LGERA 21; to the gradation of offences by Stein J in EPA v Orange City Council (No.50045 of 1995, 23 June 1995); to the comments of the Chief Judge in EPA v Shell Co [2000] NSWLEC 16; and to the issues I confronted regarding public authorities in EPA v Bega Valley Shire Council (Nos. 50011-13 of 1998, 14 August 1998).

I have already mentioned those matters which I think entitle the defendant to mitigation of the penalty I would otherwise find appropriate in the circumstances. On balance, I have decided to impose a fine of $30,000, being roughly midway between 20% and 30% of the maximum provided, and slightly above those in Shell and Orange .

Accordingly, the Court makes the following orders: 1. The defendant is convicted of the offence with which it is charged. 2. The defendant is fined an amount of $30,000, payable to the Registrar within 28 days. 3. The defendant is ordered to pay the Prosecutor's costs in the agreed sum of $5,000 within 28 days.

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.

26. As Mahoney JA said in Axer v EPA, an often quoted but unreported decision of the Court of Criminal Appeal delivered on 22 November 1993, and I quote from page 3 of His Honour's judgment:

The fine should be such as will make it worthwhile that the cost of precautions be undertaken. In the end the object of the legislation is to prevent pollution and to do this inter alia by the deterrent effect of a substantial fine and by in consequence persuading the industries concerned to adopt preventative measures. In assessing the fine in a particular case it is proper to bear in mind the economic realities upon which such legislation is based.

27. Just because the Defendant does a job that few others would relish, and acts in the general public interest, does not entitle it automatically to a discount.

28. In deciding the appropriate penalty to impose I have also had regard to the principles in Camilleri Stock Feeds v EPA (CA) (1993) 82 LGERA 21; to the gradation of offences by Stein J in EPA v Orange City Council (No.50045 of 1995, 23 June 1995); to the comments of the Chief Judge in EPA v Shell Co [2000] NSWLEC 16; and to the issues I confronted regarding public authorities in EPA v Bega Valley Shire Council (Nos. 50011-13 of 1998, 14 August 1998).

29. I have already mentioned those matters which I think entitle the defendant to mitigation of the penalty I would otherwise find appropriate in the circumstances. On balance, I have decided to impose a fine of $30,000, being roughly midway between 20% and 30% of the maximum provided, and slightly above those in Shell and Orange.

30. Accordingly, the Court makes the following orders:

1. The defendant is convicted of the offence with which it is charged.

2. The defendant is fined an amount of $30,000, payable to the Registrar within 28 days.

3. The defendant is ordered to pay the Prosecutor's costs in the agreed sum of $5,000 within 28 days.

Environment Operations Act 1997

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Judgment (45 paragraphs)

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Cited By (9)