Environment Protection Authority v Waste Recycling and Processing Corporation

Crimes (Sentencing Procedure) Act 1999 s 3A(a)-(f), s 21A(2)(d), s 21A(3)(e)-(f), s 21A(3)(i), s 21A(3)(k), s 21A(3)(m), s 22(1), s 22(1)(b), s 23(1), s 23(2)(b)-(d), s 23(2)(i), s 23(3) LEGISLATION CITED: Protection of the Environment Operations Act 1997 (NSW) s 120(1), s 120(2), s 241(1)(b)-(e), s 248(1), s 250(1)(a), s 257, s 257(1)(b), s 257(2), s 258(2) Waste Recycling and Processing Corporation Act 2001 s 5(1)(a)

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Baumer v R (1988) 166 CLR 51; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006); Brimble v Epping Rubber Company Pty Ltd [1990] NSWLEC 94 (17 August 1990); Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1992) 32 NSWLR 683; Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610; Environment Protection Authority v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006); Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289 (5 May 2006); Environment Protection Authority v BHP Steel (AIS) Pty Limited [1999] NSWLEC 197 (3 September 1999); Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2000] NSWLEC 19 (8 February 2000); Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2001] NSWLEC 214 (11 September 2001); Environment Protection Authority v Biosolids Management Pty Ltd (2004) 141 A Crim R 573; Environment Protection Authority v Byron Shire Council [2001] NSWLEC 54 (revised 1 May 2001); Environment Protection Authority v Coe Drilling Australia Pty Limited [2005] NSWLEC 719 (5 December 2005); Environment Protection Authority v Coggins (2003) 126 LGERA 219; Environment Protection Authority v Devro-Teepak Pty Ltd [2000] NSWLEC 275 (20 December 2000); Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269; Environment Protection Authority v Hochtief AG [2006] NSWLEC 200 (28 April 2006); Environment Protection Authority v HTT Huntley Heritage [2003] NSWLEC 142 (20 June 2003); Environment Protection Authority v Illawarra Coke Pty Ltd [2005] NSWLEC 296 (21 February 2005); Environment Protection Authority v Incitec Ltd (2003) 131 LGERA 176; Environment Protection Authority v Integral Energy Australia Pty Ltd [2006] NSWLEC 141 (28 March 2006); Environment Protection Authority v Metalcorp Recyclers Pty Ltd (2004) 136 LGERA 125; Environment Protection Authority v Nationwide Oil Pty Ltd [2002] NSWLEC 201 (15 November 2002); Environment Protection Authority v Orica Australia Pty Ltd [2005] NSWLEC 621 (4 April 2005); Environment Protection Authority v Pannowitz [2006] NSWLEC 219 (9 May 2006); Environment Protection Authority v Pannowitz; EPA v Steepleton Pty Limited [2005] NSWLEC 175 (22 April 2005); Environment Protection Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 223 (28 September 2001); Environment Protection Authority v Ramsay Food Processing Pty Ltd (2003) 125 LGERA 369; Environment Protection Authority v Simplot Australia Pty Ltd [2001] NSWLEC 40 (7 March 2001); Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156 (21 July 2001); Environment Protection Authority v Tyco Water Pty Ltd (2005) 142 LGERA 241; Environmental Protection Authority v Warringah Shire Council Ltd (No 2) (2003) 129 LGERA 211; Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66; CASES CITED: Gibson v The Queen (1991) 172 CLR 353; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006); Hoare v R (1989) 167 CLR 348; Ibbs v R (1987) 163 CLR 447; Indian Council for Enviro-Legal Action v Union of India AIR 1996 SC 1446; Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Lowe v The Queen (1994) 154 CLR 606; M.C. Mehta v Union of India, Supreme Court of India, Writ Petn No 3727/1985 (19 December 1996); M.C. Mehta v Union of India, Supreme Court of India, Writ Petn No 13381/1984 (30 December 1996); Markarian v The Queen (2005) 79 ALJR 1048; Mickelberg (1984) 13 A Crim R 365; R v A [2004] NSWCCA 292 (16 December 2004); R v Allpass (1993) 72 A Crim R 561; R v Carter [2001] NSWCCA 245; R v Dodd (1991) 57 A Crim R 349; R v El Hani [2004] NSWCCA 162 (21 May 2004); R v Frank Waqa (No 2) 156 A Crim R 454; R v Gallagher (1991) 23 NSWLR 220; R v McGourty [2002] NSWCCA 335 (13 August 2002); R v Morgan (1993) 70 A Crim R 368; R v Murray (unreported, NSW Court of Criminal Appeal, 22 October 1997); R v Nicols (1991) 57 A Crim R 391; R v H (1980) 3 A Crim R 53; R v Oliver (1980) 7 A Crim R 174; R v Rushby [1977] 1 NSWLR 594; R v Scott [2005] NSWCCA 152 (18 April 2005); R v Sharma (2002) 54 NSWLR 300; R v Stahl [1999] NSWCCA 160 (26 May 1999); R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v United Keno Hill Mines Ltd (1980) 1 YR 299; 10 CELR 43; Research Foundation for Science Technology and Natural Resources Policy v Union of India, Supreme Court of India, Writ Petn No 657/1995, (5 January 2005); Ryan v The Queen (2001) 206 CLR 267; State Pollution Control Commission v White Wings Ltd. (unreported, Land & Environment Court, No 50129 of 1991, Bignold J, 1 November 1991); Veen v R (No 1) (1979) 143 CLR 458; Veen v R (No 2) (1998) 164 CLR 465; Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2715; Waweru v Republic of Kenya, High Court of Kenya, Misc Civ App No 118 of 2004, 2 March 2006

PROSECUTOR Ms E Fullerton SC with Ms M Moody (barrister) SOLICITORS LEGAL REPRESENTATIVES: Environment Protection Authority DEFENDANT Mr I Lloyd QC SOLICITORS Clayton Utz

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ENVIRONMENT PROTECTION AUTHORITY V WASTE RECYCLING AND PROCESSING CORPORATION

1 HIS HONOUR: To the south of the conurbanation of Sydney, in a suburb known as Lucas Heights, runs a creek named Mill Creek. Mill Creek traverses the urban area of Lucas Heights before entering the fringing urban bushland. It is a typical urban creek. It is moderately disturbed. Nevertheless, it functions ecologically. There are frogs and crustaceans, including freshwater crayfish. There are a variety of insects including mayflies, dragonflies, caddisflies, damselflies and crane flies. The bottom and sides of the creek provide good habitat for this fauna. The banks are clothed in riparian vegetation. 2 Adjacent to Mill Creek is a landfill, the Lucas Heights landfill. It is one of the largest waste disposal sites in Sydney. It receives up to 575,000 tonnes of solid waste each year. The landfill is owned by the Waste Recycling and Processing Corporation ("the defendant"). 3 On the evening of 9 January 2005 and into the following morning, a pulse of pollution entered the creek. Toxic leachate from the nearby landfill overflowed into Mill Creek. Between 116,000 and 124,000 litres escaped into the creek. 4 The creek was polluted for a distance of about 800 metres, from a point adjacent to the landfill to a natural rock bar in the creek which fortuitously contained the pollution. 5 The pulse of toxic pollution killed most of the aquatic life in that length of creek, including the crayfish, insects and tadpoles. For five weeks the waters of the creek remained at levels toxic to aquatic life. After careful clean-up by the defendant, the levels returned thereafter to provide an environment suitable for re-colonisation by aquatic life. 6 The pollution of the waters of Mill Creek was a breach of the law. Section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) ("the Act") provides that any person who pollutes waters is guilty of an offence. 7 The defendant has pleaded guilty to the charge that it committed an offence under s 120(1) of the Act by polluting the waters of Mill Creek between 9 and 10 January 2005. 8 The Court's task is to determine the appropriate punishment for the defendant's crime. The offence provisions 9 Section 120(1) of the Act provides that a person who pollutes any waters is guilty of an offence. The concept of "pollute waters" is defined in s 120(2) of the Act to include cause or permit any waters to be polluted. There are a variety of ways in which a person may cause waters to be polluted, and hence pollute the waters. Of relevance to this case is the fact that the defendant is a holder of a licence under the Act and is taken to be the occupier of the premises from which pollution emanated. Section 258(2) of the Act provides: "In any proceedings under this Act, the holder of a licence under this Act in respect of any premises at a particular time or period is taken to be the occupier of the premises at that time or during that period." 10 The landfill is scheduled premises under the Act. It operates under an Environment Protection Licence 5065 ("the licence") granted to the defendant. Accordingly, by way of s 258(2) of the Act, the defendant is taken to be the occupier of the landfill. 11 An occupier of premises from which pollution occurs is taken to have caused the pollution, unless the occupier establishes certain matters. Section 257 of the Act states: "(1) In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that: (a) the pollution was caused by another person, and (b) the other person was not associated with the occupier at the time the pollution occurred, and (c) the occupier took all reasonable steps to prevent the pollution. A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier". 12 The defendant had a contractual relationship with Cleary Bros (Bombo) Pty Ltd ("Cleary Bros") for the day to day operation of the landfill. Such an arrangement results in the defendant being associated with Cleary Bros for the purposes of s 257(1)(b) of the Act. 13 Under s 257(2) of the Act, proceedings may still be taken under the Act against Cleary Bros if they are shown to have actually caused the pollution. In fact, proceedings have been brought by the prosecutor against Cleary Bros. These proceedings are yet to be dealt with by this Court. The charge 14 The defendant is charged with the offence that: "…between about 9 January 2005 and 10 January 2005 inclusive, at or near New Illawarra Road, Lucas Heights in the State of New South Wales, it committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) in that it polluted waters.

i. contains nitrogen compounds (being ammonia); and/or

ii. contains sulphur compounds (being sulphate); and/or iii. causes biochemical oxygen demand. B Waters Mill Creek, near the Lucas Heights landfill, and downstream thereof. C Manner of Breach The defendant, being the occupier of premises, namely the Lucas Heights Landfill ("the landfill") from which pollution of water occurs, caused that pollution; and/or The defendant: i. by itself and/or contractor Cleary Bros (Bombo) Pty Ltd ("Cleary Bros"), failed to provide any written instructions regarding the operation of the pump from the leachate dams to the leachate storage tanks to the individual human operators of the pump; and/or ii. by itself and/or its contractor Cleary Bros, failed to provide any adequate mechanical or electrical means of ensuring that the pump from the leachate dams to the leachate storage tanks would not continue to pump after the leachate storage tanks were full and/or the bund was full; and/or iii. by itself and/or its contractor Cleary Bros and/or its contractor JPG Pty Ltd and/or its contractor John Phillip Gray, failed to ensure that the bund around the leachate storage tanks was of sufficient capacity and/or would not fail and/or would not be overtopped; and/or iv. by its licensee Mr Lionel Dwyer Evans, left the pump from the leachate storage dams to the leachate storage tanks on, and thereby caused the pollutants to be placed in the waters." Plea of guilty 15 The matter was first returnable before the Court of 10 February 2006. On that day, both parties sought an adjournment by consent for a period of 6 weeks to allow the prosecutor to serve any remaining evidence and the defendant to review that evidence to determine the nature of its plea. The defendant also informed the Court that it was likely to enter a plea of guilty to limit the particulars of the charge and this plea would be entered at the next appearance after the defendant had reviewed the additional evidence filed by the prosecutor. 16 On 31 March 2006, the defendant entered a plea of guilty to the charge but only insofar as certain of the particulars and summons were concerned, namely, that the defendant was the occupier of the premises from which the pollution escaped. 17 On the hearing on sentence on 14 June 2006, the defendant confirmed that it admitted that it, as the occupier of the premises, namely the Lucas Heights landfill from which pollution of waters occurred, caused that pollution and further admitted the particulars in C(ii) and (iii). It maintained its non-admission of the particulars in C(i) and (iv). The evidence 18 The parties tendered by consent a detailed and comprehensive Agreed Statement of Facts (Exhibit A). The statement included a folder of documentary and photographic attachments. The statement described, amongst other things, the landfill and its operation, the pollution incident and subsequent events. 19 The prosecutor read the affidavit of Dr Fleurdelis Pablo, an ecotoxicologist, and tendered a macroinvertebrate identification sheet referred to by Dr Pablo (Exhibit B). Dr Pablo's evidence concerned the environmental impact of the pollution incident. The defendant read an affidavit by Mr Paul Anink, an aquatic ecologist. Mr Anink's evidence also addressed the environmental impact of the pollution incident. Neither Dr Pablo nor Mr Anink were required for cross-examination. 20 The defendant also read two affidavits of Ms Anita Mitchell, the defendant's General Manager - Sustainability and Assurance. Ms Mitchell's first affidavit expressed the defendant's contrition and remorse for the incident, explained the defendant's environmental management system and the defendant's sustainability, environmental and community initiatives. Ms Mitchell's second affidavit set out the costs of clean-up of the incident and the reasons for the choice of clean up strategy, the defendant's annual budget at the Lucas Heights landfill, and a description of an additional measure that the defendant recently approved which will enable 24 hour remote monitoring of the leachate management system at the Lucas Heights landfill. The defendant 21 The defendant owns and operates Australia's largest waste management network of 10 waste recycling, processing and disposal facilities in the Sydney metropolitan area. 22 One of these facilities is a Solid Waste Class 1 (Putrescible) landfill at New Illawarra Road, Lucas Heights ("the landfill") at the Waste and Recycling Centre at Lucas Heights 2 which is bordered by Heathcote Road to the west and New Illawarra Road to the south. 23 The defendant currently employs approximately 340 people. Over the past two years, the defendant has sought to in-source the day-to-day management of its operations. The defendant has resumed control of all of its landfills except the landfill. The defendant sub-contracts the day-to-day operation of the landfill to Cleary Bros (Bombo) Pty Ltd. Operation of the landfill and leachate system 24 The landfill is a scheduled premises operating under Environment Protection Licence 5065 issued under the Act. The licence did not authorize the discharge which resulted from this incident. 25 The landfill has development consent to receive up to 575,000 tonnes of solid waste per annum, making it one of the largest waste disposal sites in metropolitan Sydney. 26 The landfill accepts council and household solid waste, primarily from kerbside collections and certain categories of industrially sourced waste such as asbestos and commercial waste. 27 Leachate is defined in the EPA's Solid Waste Guidelines (1996) as: "liquid released by, or water that has percolated through waste and which contains dissolved and/or suspended liquid and/or solids and/or gases." 28 Leachate is formed from the degradation of waste within a landfill and from the percolation of water through waste. The composition of landfill leachate is influenced by the type and age of waste, the physical and chemical conditions inside the landfill and microbiological activity. 29 Essentially, leachate is collected from the base of the landfill cells in pipes. These drain into a temporary leachate collection dam ("the Main Dam"). Downstream of this dam is a further temporary dam ("the Overflow Dam"). The Overflow Dam is used for additional leachate storage and/or to temporarily store contaminated stormwater. Leachate from the Overflow Dam is pumped into the Main Dam. Each dam has a capacity of approximately 5 megalitres. 30 The location of the dams has moved over the years as the location of the waste filling has moved. 31 It was the usual practice to pump out the Main Dam regularly in order to keep the volume of leachate in the Main Dam at a low level and to provide maximum spare storage capacity in case of an emergency. The leachate is pumped from the Main Dam approximately 200 metres to leachate storage tanks contained in a bunded area. The Main Dam is usually less than 20% full if leachate has been transferred to the leachate storage tanks fairly regularly. 32 Leachate from the eastern ring main also drains into the leachate storage tanks at a rate of approximately 0.4 litres per second. The eastern ring main is a main gravity fed drain located on the eastern perimeter which collects leachate from areas which have been landfilled since approximately 2000 on the eastern side of the landfill. 33 At the time of the incident, the leachate was pumped from the Main Dam into the leachate storage tanks by Cleary Bros' employee, Mr Lionel Dwyer Evans, using a mobile four inch diesel pump. 34 This pump operates at approximately 15 litres per second. The pump is manually turned on and manually turned off. There was no written work instruction for the operation of the diesel pump. 35 At the time of the incident, there were five leachate storage tanks in the bunded area, each capable of holding approximately 113 000 litres. One of these tanks contained approximately 16,000 litres of leachate which was being used in an experimental trial and was not available for the storage of leachate from the dams. This tank was self-contained and the leachate within the tank did not contribute to the leachate spill. The other four tanks were interconnected so that leachate could flow between them, in effect, operating as one large tank. 36 The earthen bund surrounding the tanks was designed to hold 110% of the volume of the leachate storage tanks and, assuming the capacity of the five tanks is 565 000 litres, this means the bunded area was designed to hold approximately 621 500 litres. 37 The capacity of the bunded area, excluding the tank capacity is between approximately 188.6 and 196 cubic metres (or 188,600 to 196,000 litres). 38 An automatic pump operates to remove leachate from the leachate storage tanks to an off-site leachate treatment plant. This pump operates at a rate of approximately 7.85 litres/second. It is set at this rate as this is the amount that is appropriate for the off-site leachate treatment system. There are floats which allow the level of the leachate in the tanks to be monitored so that if the level of the leachate in the tanks drops below a certain level the pump will automatically switch off to prevent the pump burning out. Similarly, the pump will automatically switch on if the level of the leachate in the tanks is high. This pump starts operating when the tanks contain leachate up to a level of 0.84 metres from the floor of the tank. The pump automatically cuts out when the level of leachate in the storage tanks drops below a level of 0.65 metres from the floor of the tank. 39 Generally, the amount of leachate that is left in the leachate storage tanks at any given time is between a third and a half of the total capacity of the leachate storage tanks. A Cleary Bros' employee checked the amount of leachate in the leachate storage tanks at approximately 12:50pm on 9 January 2005 and noted that the tanks were approximately one third full. Contractual arrangements and responsibilities 40 Since 1986, Cleary Bros have been contractually responsible for the operation and management of the landfill. 41 Under the contract between the defendant and Cleary Bros, Cleary Bros is to supply sufficiently trained and competent personnel and other equipment at all times to conduct the operations in a safe and approved manner; operate and maintain safe and suitable plant and equipment and machinery; and provide a high level of service and commitment to continuously improve the operation and levels of service to meet changing standards for safety and environmental performance. 42 From the date of commencement of the contract to the date of conclusion of the contract, Cleary Bros is responsible for the care and maintenance of "existing infrastructure" (i.e. plant and equipment supplied under the contract) and is required to keep such items in good order and operational and must replace them where necessary. The existing infrastructure includes the "four inch diesel pump, hose and fittings" and "leachate storage tanks". 43 Under the contract, the defendant is to appoint a representative who can give oral directions to Cleary Bros which must be confirmed in writing within a reasonable time. 44 Under the contract, Cleary Bros is to ensure that all Works are carried out in accordance with the Site Management Plan ("SMP"). Cleary Bros prepared the SMP set out in Part 3 of the contract. The SMP includes the Environmental Management Plan ("the EMP") prepared by the defendant. 45 Under the contract, in the case of any harm to the environment, Cleary Bros is prima facie contractually responsible for all harm to the environment and all payment of fines, if any, as imposed by the Environment Protection Authority ("EPA") or equivalent authority arising as a result of any harm to the environment caused by the use of the site for the provision of the services as per the contract. 46 Under the contract, Cleary Bros is to comply with the law and licence, however, the defendant has responsibility for obtaining the EPL and this is expressed to be "mainly in the supervisory capacity". 47 Under the contract, Cleary Bros, as the Contractor, was given access to the landfill but it did not have exclusive possession. The defendant has a right to access at all times. In general, this access will be in accordance with the CSMS implemented by the contractor. 48 Under the contract, Cleary Bros is to carry out risk analysis for the environmental and all OH&S aspects in all foreseeable activities and accordingly develop and implement an Emergency Response Plan prior to commencing works on site. This plan is to be tested on a six monthly interval or as may be reasonably required by the defendant. A copy of this plan shall be available on site at all times for review/audit by the defendant. 49 Under the contract, Cleary Bros is to ensure that all of its staff are adequately trained and have suitable and up to date licences to carry out the works as per the contract. All new Cleary Bros' employees are to receive induction training in all aspects of operations of the works, especially with respect to customer service, environmental management, occupational health and safety and emergency response procedures. The defendant is responsible for the development and provision of basic training in environmental due diligence at the commencement of the contract. Cleary Bros was responsible for all subsequent environmental training. 50 Under the contract, Cleary Bros is required to construct and operate the Leachate Management System in accordance with the guidelines and design as described in the SMP. Cleary Bros is to ensure complete day to day operational control of the leachate system within the landfill site thus preventing any contamination of any surface water. Cleary Bros is required to manage leachate on site using the available systems and leachate storage tanks. Cleary Bros is required to monitor, maintain and operate the leachate collection and treatment and disposal system and carry out any record keeping for reporting to the defendant. Any structures such as gas wells, ventpipes, electrical or mechanical components, leachate containment systems, etc which are prone to damage, either wilful or accidental, through vandalism, theft, breakage or other means, need to be inspected on a regular basis and any damage reported to the defendant for action. Such inspection frequencies are indicated in the SMP. Minor damage is required to be repaired immediately with action reported to the defendant. Environmental Management Plan 51 The defendant had prepared an Environmental Management Plan dated 23 August 2001 ("the EMP") for the landfill. A copy of the EMP had been provided to Cleary Bros prior to the incident. 52 Mr Lionel Evans was the Cleary Bros acting Leading Hand on 9 January 2005 and 10 January 2005, although his normal position was as a Cleary Bros plant operator. He had worked at the landfill for 18 years. 53 Mr Evans had not seen the EMP prior to the incident. 54 The EMP states that the Site Manager (Cleary Bros) is responsible for ensuring that operations are performed to manage leachate, including pumping, treatment, storage, in accordance with the EMP. Work instructions 55 Cleary Bros had prepared work instructions in relation to Environmental Management and Control and Leachate Management and Control at the landfill. 56 Mr Evans had seen the Leachate Management and Control document prior to the incident. 57 Cleary Bros had also prepared work instructions in relation to Emergency Procedures at the landfill. Roles and responsibilities of the defendant and Cleary Bros 58 A Centre Manager of the defendant is normally present on site between 3 to 4 days per week to oversee Cleary Bros' operations to ensure that Cleary Bros complies with the EPL conditions, the Site Management Plan (including the Environmental Management Plan) and the Contract. He has power to issue directions to Cleary Bros. At the time, the Centre Manager was Mr Ross Manolas. 59 Mr Manolas is assisted in his role by a graduate engineer, Ms Angela Cheyne, and Ms Jennifer Sage who provides him with advice on environmental matters. Mr Manolas reports to Mr Anthony Johansson (General Manager for landfills). 60 A Mr Greg Venus is the Cleary Bros Site Manager - Construction Supervisor at the landfill. He is responsible for supervising the day to day operations of the landfill under the contract. Approximately 35 Cleary Bros staff work at the Waste and Recycling Centre at Lucas Heights 2 depending on the activities taking place on-site. Mr Venus reports to Mr Graeme Granger. 61 A Cleary Bros employee was responsible for turning on the four inch pump that transfers leachate from the dams to the tanks. The same employee was also responsible for turning off the four inch pump. 62 At the time, it was the practice of Cleary Bros employees to operate the four inch pump for a period of approximately four hours most days, as and when required, depending on the levels of leachate in the Main Dam. 63 JPG Pty Limited, trading as JPG Engineering ("JPG "), is employed by the defendant on a regular basis to provide consultancy services in relation to various new infrastructure upgrade programs which are being conducted across the defendant's landfill operations. Liaising with Cleary Bros 64 The defendant holds monthly contract review meetings which are attended by Mr Venus and Mr Granger (Cleary Bros), Mr Manolas, Ms Cheyne and Mr Johansson (the defendant). The purpose of these meetings is to monitor the progress of the contract and provide an opportunity for the parties to discuss operational or contractual issues. 65 Mr Manolas also holds monthly Safety, Environment and Quality Management ("SEQM") meetings with Mr Venus which are organised by Ms Sage. Other employees from the defendant and Cleary Bros attend as required. At these meetings issues such as environmental monitoring, compliance with the EPL, the findings of site inspections, incidents, training and emergency response procedure tests are discussed. Mr Venus informs the defendant of training and audit programs at the SEQM meetings. 66 The defendant can request that Cleary Bros provides it with information or records to confirm issues discussed at the above meetings, for example, training records. Cleary Bros only allows the defendant to view such records at the site office. 67 In the case of a non-compliance, the Centre Manager will normally discuss it with the Site Manager initially and then, if required, will issue a written site direction regarding the matter. 68 If Cleary Bros has a concern or problem with the operations on-site, the Site Manager or another Cleary Bros' employee can either:

(a) raise it verbally with any employee of the defendant at any time, or

(b) raise it at a contract review or SEQM meeting, or

(d) issue a Site Notice. Cleary Bros tends to use site notices: when it requires the defendant to take action, requires information from the defendant, or wishes to provide a record of an incident. Leachate management operations 69 Mr Evans was aware of the practice of turning the pump at the Main Dam on and off and for it to be operated for about 4 hours a day. He knew that he was responsible for turning the pump off if he turned it on. He became aware of this practice by watching other Cleary Bros' employees. He had not been trained in the operation of that pump. 70 Mr Evans had been provided with induction training in relation to the landfill on 10 March 1994. 71 Each day, the Cleary Bros employee who was in charge of the landfill would complete a daily checklist and send this to the defendant. Normally, this would have been done by Mr Venus but Mr Venus was not present on 9 January 2005. Mr Venus was present at the landfill on 10 January 2005. The daily checklist reports on issues such as whether there is sufficient storage capacity in the leachate pond and the leachate tanks, whether flow meter readings at LH1 (the treatment plant) have been recorded and whether the leachate pump at LH1 is operational. 72 Mr Evans was aware of the existence of the checklist but he could not access the relevant computer to complete the checklist and left this to be completed by Mr Venus on 10 January 2005. This was subsequently done by Mr Venus on 10 January 2005. 73 There is also a weekly checklist completed by Mr Manolas or Ms Cheyne which is provided to Mr Johansson. This checklist deals with matters such as whether: (i) all stormwater and leachate dams/leachate risers have been checked for their drainage levels (including a record of the approximate capacity); (ii) daily checklists have been completed; (iii) any OH&S or environmental incident has occurred and been reported and investigated where required; (iv) training records have been submitted to HR and training records are up to date; and (v) the emergency response plan is understood by all staff. 74 Mr Manolas also holds Leachate Management meetings on average every two months which are attended by Ms Sage, the defendant's engineers and a representative from JPG. The main purpose of these meetings is to plan infrastructure upgrades. Environmental risk assessments 75 A draft hazardous operations risk assessment (HazOp) of the Leachate Transfer System had been prepared for the defendant. It is dated 31 October 2002. The draft risk assessment was provided to the defendant's Mr Manolas in January 2003. 76 The risk assessment involved assessing a number of foreseeable "what if scenarios". Of relevance to the events that happened is the scenario of leaving the pump on when pumping from the main dam to the leachate storage tanks or holding tanks. The risk assessment stated: " Plant/System Component : Pipeline from Pump to Holding Tank What if event : Pump left on Existing Controls : Procedures Possible Outcomes : Overflow holdings tanks; Collect in bunded area; Pump failure Using standard risk matrix : Consq 3; L/hood 2; Risk Level 4; Recommendations : Daily inspection + procedure; Overall management system; Review the need for a cut-off timer switch." 77 The risk assessment also evaluated the risks of the holding tanks rupturing or leaking (whereby leachate would overflow into the bund) and the bund leaking (whereby contamination to creek would occur). Recommended action included reviewing the bund capacity and integrity. 78 The matters raised in the risk assessment were discussed in meetings between Mr Manolas and JPG, Mr Ezio DiGiovanni and Mr Robert Aposhian (the risk assessment authors) and Scott Hagan (a project manager) on 24 January 2003, 7 February 2003, 4 March 2003 and 4 July 2003. 79 The defendant determined that no further action in relation to a risk posed by overflow of the tanks through human error was necessary at this time as Cleary Bros had procedures in place and had trained its staff. The defendant further determined that it was not reasonably practicable or feasible to install an electric cut-off switch to the pump as the Main Dam was going to be relocated (and thus any electricity supply would only be temporary), there could be increased risks associated with having electricity in an operational part of the site where machinery and plant were used and the Defendant understood that Cleary Bros had appropriate procedures in place to operate the pump. 80 For this reason, the defendant did not provide the HazOp to Cleary Bros. 81 Cleary Bros carried out its own assessment of Environmental Aspect/Potential Impacts on 14 October 2004. Cleary Bros did not provide Mr Manolas or Ms Sage with a copy of this document. The defendant does not participate in Cleary Bros' regular risk assessments which it undertakes to maintain its EMS assurance certification. 82 The assessment of environmental impacts carried out by Cleary Bros included assessing the impact on the creek ecology system. The assessment states: " Impact : Eco System Effect Risk Level : H.R. [High Risk] Target : L.R. [Low Risk] Annual EAP : The potential risk of leachate escaping to the creek causing high ammonia levels and effecting the eco system is high. HR Due to inadequate leachate infrastructure. Waste service to upgrade leachate infrastructure and make it more efficient and environmentally sound. Start : Last Qtr 03 Complete : Mid 05 Accountability : WS/CB [Waste Service/Cleary Bros]". Events prior to the pollution incident 83 The defendant arranged for work to be done in and around the leachate storage tanks, this being done by another contractor, JPG. As part of this work, a trench was dug through the bund around the tanks to a depth of approximately 600 millimetres below the ground level of the storage tank area to allow for the installation of power lines to allow electricity to be provided to the adjoining stormwater treatment plant. 84 The trench was constructed in the first half of October 2000 and this trench was backfilled by JPG. JPG states that it did not reinstate the bund. 85 The defendant suggests that the reinstating of the bund was done by Cleary Bros on the basis that it was responsible for the maintenance of bund under the Contract, it was the only party who had the equipment on-site to conduct the works and its practice, at the time, was to insist that the defendant offered all work of this type to Cleary Bros before allowing the defendant to go out to tender to other contractors. Cleary Bros denies that it reinstated the bund wall. 86 The HazOp included a requirement to review the bund capacity and integrity and check the lining of the bund area. 87 The defendant commissioned an audit report prepared by Moore Management which was conducted on 20 July 2004 to investigate the integrity of the bunds at all its landfills. This audit was an "exceptions only" report which did not identify any action in relation to the earthen bund around the storage tanks. The Centre Manager and Environment and Workforce Safety Officer regularly checked the integrity of the bund through site inspections but a formal survey of the capacity of the bund was not conducted until after the incident. 88 The reinstated part of the bund wall is near to or at the point of the bund failure, which allowed the release of the leachate to Mill Creek. It is not clear to what degree the bund failed.

89 Cleary Bros did not raise any issue about the use or operation of the four inch diesel pump with the defendant prior to the incident either in a meeting or otherwise. Cleary Bros did, however, raise an issue concerning the two automated transfer pumps installed by JPG to pump leachate from the holding tanks to LH1. This was because one of the transfer pumps had burnt out shortly after it was installed because the tanks were allowed to run dry. Cleary Bros was provided with an instruction for its employees in respect of the leachate pumps until the automated pumps could be brought back on line. JPG installed float switches in the tanks to prevent them running dry and trained Cleary Bros' staff on the operation of the new automated pumps. The pollution incident 90 At approximately 12.50pm on Sunday 9 January 2005, a Cleary Bros employee, Mr Lionel Evans, turned on the four inch pump between the Main Dam and the tanks. Mr Evans checked the operation of the pump on the leachate storage tanks twice after that to make sure it was pumping. During those inspections, Mr Evans did not observe any overflow from the tanks. Mr Evans then finished work later that day at 5:00pm. Mr Evans left the site without switching off the four inch pump. 91 At approximately 6:00am on Monday 10 January 2005, Mr Evans arrived at work and realised that the diesel pump had not been switched off. Mr Evans was the first person to realise that the four inch pump had been left on overnight. Mr Evans then switched off the four inch pump. The automatic pump which pumped leachate from the holding tanks to the leachate treatment plant was still operating at this time. 92 At some point between 3:00pm on 9 January 2005, being approximately the last time Mr Evans checked the tanks, and 6:00am on 10 January 2005, leachate overflowed from the tanks into the bund around those tanks and the bund then failed. There are two possible causes of the bund failure. The bund may have failed as a direct result of it being overtopped. Alternatively, the bund may have failed as a result of an initial seepage of leachate through the bund ("a piping failure") caused by poor re-compaction of the bund wall. 93 The EPA was notified at approximately 9.20am on 10 January 2005 by Ms Jennifer Sage of the defendant. EPA officers attended at the landfill at approximately 10.45am that day. Mr Manolas and Ms Jennifer Sage, arrived at the site office to meet the EPA officers shortly thereafter. Mr Manolas had previously been to check the temporary dam that had been constructed by Cleary Bros and to get a de-briefing from Mr Venus. Ms Sage and Mr Manolas escorted the EPA officers around the landfill. Clean-up 94 Following the discovery of the incident the measures set out below were taken to mitigate the impact of the discharge. 95 The bund wall was repaired by Cleary Bros to stop any further discharge from the bund at approximately 6.10am on 10 January 2005. 96 Mill Creek was dammed at a point approximately 1,500 metres downstream of the entry point of the leachate at approximately 7.30am. This point was the closest accessible downstream point from the leachate spill. This point was near a monitoring point known as MC3. This point was chosen in order to avoid further damage to riparian habitats along the creek line which would have resulted if vehicles and/or equipment had had to be taken off-road. 97 The leachate that remained in the bunded area was pumped back into the storage tanks. 98 The defendant liaised very closely with the EPA, particularly in the initial stages of clean-up, where Ms Sage provided almost daily reports to Jane Burgett following the incident and thereafter whenever there was any new issue. Following discussions with EPA officers on-site regarding the appropriate mitigation measures to be taken, the leachate contaminated water in the impacted ponds within the first 600 to 800 metres of Mill Creek was addressed as set out below:

a pump was installed at largest affected pond on the afternoon of 10 January 2005;

three pumps were installed between 11 and 12 January 2005 and moved between various smaller ponds in the creek;

a pump was also installed at a pool near the point at which the creek was dammed on 10 January 2006 until it was confirmed that this area was not affected. Pumping was stopped on 12 January 2005 on the advice of Consulting Earth Sciences ("CES");

additional pumps were installed on 12 and 13 January 2005 to allow pumping to continue along the 800 metre stretch downstream from monitoring point MC1; and

the areas of Mill Creek which had been pumped dry or only contained a small amount of liquid were emptied by hand (using buckets and sponges). 99 This work was done largely by Cleary Bros' employees at the direction of the defendant. The defendant also sought the advice of external specialists: CES for matters relating to water quality impact mitigation and Marine Pollution Research Pty Limited ("MPR") for matters relating to mitigation of aquatic and riparian impacts during clean-up. The defendant's aquatic ecology consultant, Paul Anink, made an initial site inspection on 14 January 2005 and provided suggestions on the clean-up operations to Ms Sage at this time. 100 On balance, the defendant decided, in consultation with Paul Anink, that the clean-up system underway in conjunction with the water quality monitoring program put in place by CES was the most efficient in terms of minimising further harm to the creek or the creek riparian habitats. Given the good to very good condition of the native riparian ecology of the creek within the impacted area, it was determined that, on balance, bringing in machinery or even hand implements such as wheel barrows to facilitate sediment removal would probably cause unacceptable harm to the riparian ecology of the creek. 101 The defendant remained in constant contact with EPA officers to discuss and obtain their concurrence on the defendant's remediation proposals throughout this period. In this regard, the defendant instructed CES to undertake regular monitoring of water quality parameters and used the results to guide its determination of the most appropriate mitigation/clean-up measures to recommend to the EPA. 102 CES conducted water quality sampling and field measurements on 10, 12, 14 and 18 January 2005; 3 and 21 February 2005 and 4 and 23 March 2005. CES also tested the groundwater adjacent to the creek bed in 2 locations. The results showed that there had been little if any leachate impact on the groundwater in the creek banks, at the points sampled. 103 In close consultation with EPA officers and with their approval, treated stormwater that had been stored on the landfill was pumped into the ponds to facilitate residual leachate removal. This commenced on 17 January 2005. The stormwater used had been treated to remove sedimentation and tested to ensure that it complied with the discharge criteria set out in the EPL. WSN discussed the possibility of using a large stormwater discharge as a flushing mechanism, possibly in conjunction with a rainfall event, but this option was rejected mainly on the grounds of unpredictability. In order to minimise the possibility of heavy rainfall events overwhelming the clean-up operations the system of stormwater discharge and pool draw-down was managed using Bureau of Metrology rainfall predictions, with the larger ponds drawn down as far as possible prior to any predicted medium or heavy rainfall events. 104 An incident report was provided by the defendant to the EPA in accordance with the EPL conditions on 17 January 2005. 105 The defendant undertook water quality monitoring within Mill Creek on a regular basis, and additionally during rain events, to measure key chemical indicators until 5 May 2005. The results of these tests were provided to the EPA. 106 The defendant provided a verbal update to the EPA on the clean-up on 17 February 2005, followed by a written progress report which was sent on 23 February 2005 detailing the clean-up strategy, proposed actions and the results of water quality monitoring. 107 There were three rainfall events between 10 January 2005 and 31 March 2005. The first, on 25 January 2005, was contained within Mill Creek due to the low levels of water in the creek as a result of the pumping. The second, on 2 February 2005, resulted in a small overtopping of the dam at MC3. At this time, the ammonia concentrations in the water were low (approximately 0.4 mg/L). The third, on 3-4 March 2005, again resulted in a small overtopping of the dam at MC3. Again, the levels of ammonia in the water were low. At each rainfall event the EPA was consulted with regard to the alternative remediation options of continued containment or removal of contaminated water. 108 Following consultations with EPA officers and with their concurrence, the dam erected downstream of the entry point of the leachate was removed on 31 March 2005. Prior to removing the bund, a silt fence was erected downstream to minimise the downstream flow of sediment during the work. On 1 April 2006 the defendant provided the EPA with a further progress report. Actions taken to prevent a further incident 109 The defendant's Centre Manager held a number of meetings with Cleary Bros' Site Manager and other parties to discuss ways to improve leachate management at LH2WRC in order to ensure that a further incident could not occur. The steps taken by the defendant since the incident are set out in the following paragraphs in chronological order. 110 On 21 January 2005, the defendant issued Cleary Bros with a written instruction to conduct further works to reinforce the bund around the holding tank area as an interim measure while options for the long term future of the holding tank area and repair of the bund were assessed. 111 In February 2005, the defendant commissioned an investigation into the design specifications and the cost of rebuilding or repairing the bund around the holding tanks. The defendant also instructed JPG in February 2005 to investigate the possibilities for automating the whole of the leachate management systems. 112 On 10 March 2005, the defendant's Centre Manager sent an electronic mail containing suggestions regarding the operation of the pumping of leachate at the Landfill to Cleary Bros' Site Manager including a suggested operating instruction. 113 As a consequence of the provision of this operating instruction, Mr Venus, Mr Gray from JPG and Mr Manolas met to discuss the options for preventing a re-occurrence of the incident. The parties agreed that the most practical solution would be to reduce the size of the fuel tank on the four inch pump from 200 L to 60 L which would limit the amount of time it could operate to approximately 6 hours. At the Contract Review meeting held on 18 March 2005 the defendant directed Cleary Bros to attach a smaller fuel tank to the four inch pump. 114 Cleary Bros connected a 60 L fuel tank to the four inch pump shortly thereafter. 115 In August 2005, the defendant issued an instruction to Cleary Bros to provide a quote for the construction of a new earthen bund. JPG was also engaged by the defendant at approximately the same time to design works to allow automated pumping from the Main Dam to comply with a new EPL condition. 116 In August 2005, the defendant engaged Maunsell Australia Pty Limited to undertake an environmental risk assessment of the leachate management systems at all the defendant's landfill sites, focusing on the collection, storage and transfer of leachate on and between sites. Ms Sage has been directly involved in this project by developing the scope of the assessment and managing the consultancy project. This has included site inspections and gathering and disseminating information between relevant employees and consultants of the defendant. The defendant met with Maunsell on 12 May 2006 to discuss the process for finalising the report. 117 In October 2005, Cleary Bros provided a quote for construction of the earthen bund. Given that the Main Dam was due to be moved to its new and final location in mid 2006, the defendant decided to investigate the possibility of pumping leachate directly from the new leachate dam to LH1 thereby avoiding the need for a holding tank area. 118 In February 2006, the defendant and JPG carried out a HazOp study on the proposed automated leachate transfer system designed by JPG to review the risks associated with the leachate transfer system. JPG was instructed by the defendant to eliminate the holding tank area from its design. 119 In April 2006, pumping from the Main Dam and the Stage 5 leachate collection system to the holding tank area was automated. 120 A new leachate dam and stormwater dam will be constructed and should be ready to come on line by August 2006. The volume of the new leachate dam will be approximately 10 - 11 megalitres and the volume of the new stormwater dam will be approximately 15 megalitres. The leachate dam will overflow into the stormwater dam if it is full, in the case of emergencies. The stormwater dam will be designed to have approximately 50% spare capacity to deal with heavy rainfall events. Leachate will be pumped directly from the new leachate dam to the leachate treatment plant at LH1. The tanks will no longer be utilised on-site and they are due to be decommissioned following completion of the new dam construction. 121 Several new audits and procedures have also been introduced through the defendant's EMS including:

(a) the introduction of an electric Action Log in accordance with the Corrective and Preventive Action IMS Procedure which ensures that any non-compliance issue identified is logged and cannot be closed out until the requisite corrective or preventive action has been taken; and

(b) an annual compliance audit to check that Cleary Bros has properly implemented and is complying with its EMS including undertaking appropriate site specific risk assessments. The first audit is due to be carried out during June 2006. 122 Ms Sage is in the process of updating the landfill EMP to incorporate the recent infrastructure changes that have occurred at the landfill in consultation with Cleary Bros. A revised landfill EMP will be completed by August 2006. Environmental impact of pollution incident 123 Dr Pablo, an ecotoxicologist called by the prosecutor, and Mr Anink, an aquatic ecologist called by the defendant, provided affidavit evidence on the environmental harm caused by the pollution of Mill Creek. 124 Dr Pablo first described the environment of Mill Creek in the following terms: "Mill Creek generally consists of a series of small to large ponds separated by shallow areas lined with bedrocks and occasionally with soft sediment. The volume of water in the creek depended on the size and depth of the ponds, with water flowing extremely slowly between ponds through crevices on rocks or over sediments in riffle areas. During dry weather when flows are extremely low, the creek would have a high capacity for storing in-channel water. The bottom and sides of the creek is mainly soft silty sediment, which is a good habitat for macroinvertebrate fauna. The banks of the creek had riparian vegetation consisting of various shrubs, trees and patchy areas covered with grass. During our site visit, we heard the croaking of frogs along the length of Mill Creek we visited, however we observed numerous mosquito fish ( Gumbusia ) with size up to 2 cm, swimming around only in the downstream portion of Mill Creek that we visited." 125 Dr Pablo sampled and analysed surface sediments along the edge of the bank of the creek just below the water surface to identify the macro invertebrate fauna to family level. Dr Pablo summarised her analysis as follows: "All of these sediment samples collected during my site visit were analysed and showed the presence of moderately sensitive insect species such as mayflies, dragonflies, caddisflies, damselflies, crane flies, midge fly larvae; crustacean species, copepods and ostracods; and an introduced mollusc species snail. The samples also showed a relatively huge number of tolerant worm species and chironomid non-biting midges, which can better withstand the presence of pollutants. Overall, the species composition indicates that the creek is a typical urban creek perhaps leaning more towards a moderately disturbed system. " 126 Dr Pablo then discussed the pollutant, namely the leachate from the landfill: "Leachate is that liquid formed within a landfill site that is comprised of the liquids that enter the site (including rainwater) and the material that is leached from the wastes as the infiltrating liquids percolate downwards through the waste. When leachate is produced, the liquid picks up dissolved materials from the decomposing wastes. Generally leachate has a high Biochemical Oxygen Demand (BOD)* and high concentrations of organic carbon, nitrogen (N), chloride (C1-), iron (Fe), manganese (Mn) and phenols. Many other chemicals may be present including pesticides, solvents and heavy metals. Depending on characteristics of the landfill, the wastes it contains, and the stages in the decomposition process occurring within the wastes, the leachate composition will vary with waste constituents and their solubilities, and leachate quality will change with time. Hence the leachate may be relatively harmless to extremely toxic. [*BOD measures the oxygen utilised during a specified incubation period for the biochemical degradation of organics and oxidation of inorganic materials.]" 127 Dr Pablo carried out a chemical analysis of the leachate material spilt into Mill Creek during the incident by the defendant and by the prosecutor. Both sets of samples were collected on 10 January 2005. 128 The defendant's sample was collected from the leachate collection dam while the EPA sample was collected from the bunded area of leachate storage tanks. Some differences in chemical analysis results could be expected. Dr Pablo summarised the results as follows: "30. Nitrogen-containing compounds. Both WSN and EPA measured high ammonia (NH3) concentration of approximately 1400 mg/L in the leachate, and low nitrite/nitrates (NOx). The high Total Kjeldahl Nitrogen (TKN) measured by EPA is consistent with the high nitrogen levels in ammonia. High ammonia levels are consistent with a progressing decomposition of leachate components in an environment of diminishing levels of oxygen. High levels of ammonia contaminating the waterway is a concern because it has adverse effects on aquatic life. 31. Phosphorus and sulfur-containing compounds . WSN measured 250 mg/L sulphate while EPA measured 12 mg/L total phosphorus in the respective samples. These values are typical in leachate materials. 32. BOD and Chemical Oxygen Demand (COD) . There is a large discrepancy in BOD measured by WSN and EPA in their respective samples. WSN measured relatively high BOD of 4100 mg/L of leachate from the dam, while EPA measures 250 mg/L BOD and 2500 mg/L COD in leachate from bunded area around the storage tanks. Leachate materials are expected to have high oxygen demand primarily because the biochemical breakdown of organic and some inorganic materials requires oxygen O2. This was consistently observed in our laboratory when the test solutions prepared from ecotoxicity tests exhibited huge drop in dissolved O2 over 48 hours (see paragraph 52 below). The discrepancy in measured BOD by WSN and EPA may be due to the differences in the source of the samples and their handling until the time of analysis. 33. Metals and conductivity . WSN measured relatively high concentrations of metals calcium Ca, magnesium Mg, sodium Na and potassium K (Table 1), which are soluable and mobile metals easily picked up by the percolating liquid through waste materials. These metals are mainly responsible for the high conductivity (1800 µS/cm, measured by EPA) of the leachate material. The EPA conducted tests on its sample to detect any heavy metals which, if present in the waterway in higher than the ANZECC trigger values, may be of concern. Except for iron at 5.3 mg/L, these metals measured below one mg/L and so they might not be of concern. 34. Organics . Phenols are a common constituent of leachate materials. WSN measured 4.3 mg/L total phenolics in their sample, while EPA identified a trace of bisphenol from its sample. As with the BOD, differences in phenols measured by WSN and EPA could be due to differences in their source of sample. Bis-2-ethylhexyl phthalate was identified in the EPA sample, however this is most likely residual from the plasticizer in plastic bottles used for sampling. Other organics detected by EPA were the last 3 chemicals (all organic acids) under column 3 in Table 1. Organic acids are common intermediate products of the aerobic degradation by hydrolysis of carbohydrates or deamination of proteins in wastes. These organic acids continue to decompose to carbon dioxide, hydrogen, ammonia and other simpler compounds." 129 Dr Pablo noted that of these leachate components: "…the high concentration of ammonia is clearly the principle chemical-of-concern affecting aquatic life. The high oxygen demand (BOD) of the sample would also be of concern because the leachate components, even upon entering Mill Creek, would continue to decompose required dissolved oxygen from water. This had the potential to deplete O2 levels in Mill Creek water. The high conductivity of the leachate material also had the potential to adversely affect aquatic life." 130 Water samples were collected along Mill Creek. Dr Pablo analysed the results obtained from the samples and concluded as follows: "37. Where the overflowed leachate entered Mill Creek at the top main pond (site 5), the ammonia concentration, BOD, COD and conductivity were reduced to ~60% of their levels in the raw leachate material. This indicates that during sampling on 10 January 2005, the liquid at the discharge point in the top main pond was dominated by leachate material. In my opinion, the volume of water in Mill Creek during that mid-part of summer would have been low, so that dilution of the overflowed leachate was poor and the flow of liquid through Mill Creek depended on how much leachate spilt into the creek. … 39. The ammonia concentration, BOD and conductivity of water decreased with increasing distance going downstream from the discharge point. This is consistent with the Mill Creek being contaminated with spilt leachate material from the bunded storage tanks area up to at least site 11, with ammonia levels ranging from 820 to 17 mg/L, BOD of 170 to 6 mg/L and conductivity of 12000 to 770 µS/cm. I note that this is consistent with visual observations made by Ms Burgett (paragraphs 20 to 21 of the affidavit Jane Burgett of 16 December 2005) who attended the incident on 10 January 2006. At the next site, being site 13, ammonia was slightly high at 3.5 mg/L, while BOD and conductivity were typical background levels. … 41. Towards the upstream direction of Mill Creek from the discharge point, the ammonia levels, BOD and conductivity of waters were significantly lower than at the discharge point. This indicates that there was no source of leachate material above the discharge point from the bunded area of storage tanks. I note that what was called site 6 by DEC staff is not well defined with respect to distance from the discharge point or the main pond; it is likely that it is close to the licensed monitoring point MC1 by WSN. At the headwaters of Mill Creek (site 7), ammonia level, BOD and conductivity were similar to those at MC3 (site 1), the most downstream site inspected by DEC staff on 10 January 2005. I consider these levels typical background levels, upon which I compare levels at other sites. 42. The progress reports that WSN submitted to NSW EPA showed that the ammonia and conductivity measured at the monitoring point MC1 were extremely high (499-716 mg/L ammonia; 7752-8950 µS/cm) for at lease 2 days following the incident…For 4 weeks from 18 January 2005, ammonia significantly decreased from 12.3 to 3.3 mg/L. 43. At MC3, the ammonia and conductivity were at background levels following the incident on 10 January 2005 to 15 February 2005. 45. I note that the measured results for ammonia on 10 January 2005 in Mill Creek (820 mg/L to 17 mg/L) are approximately 328 to 7 times the licence limit for ammonia and the highest concentration from the ANZECC (2000) guideline for ammonia. Similarly, for conductivity, the measured results (12000 to 770 µg/L) are 8 to 0.5 times the licence limit and the 1992 ANZECC guideline." 131 Dr Pablo conducted toxicity tests whereby organisms were exposed to a range of concentrations of samples containing the chemical components. The results were as follows: "50. The results of C. dubia and V. fischeri toxicity tests agree in showing the following: (i) The sample from the leachate storage tanks (sample 4.2) was very toxic to the test organisms, confirming the toxic nature of the leachate that overflowed into Mill Creek. (ii) The samples taken at Mill Creek (samples 3.2, 12.2, 1) exhibited decreasing toxicity as the sample was collected father downstream from the discharge point. This is consistent with the toxicity being due to leachate material spilt into the Creek. The most downstream sample (site 1), collected from MC3, did not exhibit toxicity. (iii) The sample taken at the headwaters of Mill Creek (sample 7) was not toxic to the test organisms, indicating the absence of source of toxic material above the discharge point." 132 Dr Pablo also noted the effect of dissolved oxygen: "52. …One of the parameters measured was DO which I note from test reports were low at the start of tests, being 72% and 68% saturation respectively for 30% dilution of leachate from inside the bund (site 4) and 50% dilution of Mill Creek water sample collected downstream of discharge point (site 3). Further, I note that the DO decreased significantly over the 48 hours of C . dubia tests. This is a clear indication of the presence of leachate chemicals in solution whose biodegradation utilised oxygen in solution. In my opinion, when leachate material is spilt into Mill Creek, a similar consumption of oxygen from water would occur to support the aerobic decomposition of leachate components. In effect, depending on the volume of overflowed leachate and available oxygen in water, the DO in Mill Creek waters would have reduced significantly." 133 Having regard to these results, Dr Pablo drew the following conclusions in relation to the environmental harm caused by the pollution incident: "53. The spill of leachate material from WSN storage tanks into Mill Creek caused the increase in ammonia concentration, conductivity and BOD in at least 800-metre length of the Creek downstream of the discharge point immediately following the incident on 10 January 2005. At MC1, ammonia was extremely high for the next 2-7 days, then decreased the following 4 weeks but still exceeding the ANZECC (2000) WQG. Below I address the harm caused by ammonia, conductivity and decreased DO in water. 54. Ammonia . Ammonia is a non-persistent and non-culmulative toxicant to aquatic life. It consists of 2 chemical forms that are in equilibrium in water: the un-ionised ammonia, NH3, and the ionised ammonia, NH4+. Typically the concentration is expressed as 'total NH3-N' which is the sum of concentrations of the two forms expressed as mass of nitrogen N. Of the 2 forms of ammonia, the un-ionised NH3 is the principal toxic form because it is able to cross epithelial membranes of aquatic organisms more readily that NH4+. The toxicity of ammonia is dependant on pH such that at higher pH, the un-ionised NH3 contributes greater proportion to the toxicity and the ionised NH4+ is more important at lower pH. Ammonia is acutely toxic to freshwater organisms at concentrations ranging from 0.5 to 23 mg/L for invertebrate species and from 0.88 to 4.6 mg/L for fish species. Generally, the sensitivity to ammonia increases in the order: phytoplankton < invertebrates < fish. Acute toxicity to fish and invertebrates may cause loss of equilibrium, hyperexcitability; increased breathing rate, cardiac output and oxygen output; and in extreme cases, convulsions, coma and death. Chronic effect include a reduction in breathing process, reduction in growth rate and morphological development, and pathological changes in gill, liver and kidney tissue. 55. The ammonia measured in Mill Creek of 500-820 mg/L in the main pond for 2 to 7 days following the incident on 10 January 2005, have severe impact on aquatic life in the area. These concentrations were sufficient to cause death of most invertebrates, including crustaceans like crayfish in the main pond and the organisims identified in the sediments during my site visit. The dead crayfish and other invertebrates observed at the main pond of Mill Creek on the second and third days after the incident (see paragraph 14(ii) and 14(iii)) would have been due to the high ammonia in waters. If mosquito fish Gambusia and tadpoles were present in the main pond during the incident, they would have very likely died as well. 56. The high ammonia in the main pond over a period of 2-7 days would consequently have serious impact on the ecosystem structure and function. As for frogs if present, they would have likely escaped the polluted water and gone either upstream or far downstream to find unpolluted habitat. 57. In the next approximately 800-metre length of the creek (up to what DEC staff call site 11), the toxicity test results and ammonia levels measured on 10 January 2005, indicate that invertebrates and micro-organisms would have been adversely affected by the presence of ammonia in the water. The few hours following the incident would still have high ammonia, and would have acute toxicity to both moderately-sensitive and sensitive invertebrates. With time, the ammonia in this part of the creek would have gradually decreased because of the non-persistent characteristic of ammonia, hence there would be decreasing impact to aquatic life. 58. Conductivity . Conductivity increases in water is brought about by increase in ion concentrations such as metals Na, K, Mg, Ca (see paragraph 33) and negative ions such as chloride. High conductivity directly affects the osmotic regulation by aquatic organisms. It disrupts the salt balance across cell membranes, resulting in intracellular chemicals to increase concentration. Consequently, it has adverse implications on the physiological processes of the organism. Invertebrates, particularly those in early stages in the life cycle, are among the most sensitive species to increased conductivity, with adverse effects apparent for some species to as low as 1500 mg/L dissolved salts (~3000 µS/cm) [Hart BT, Lake PS, Webb JA and Grace MR (2003) Ecological risk to aquatic systems from salinity increases. Australian Journal of Botany, 51, 689-702]. The high conductivity of water at Mill Creek main pond for 2 to 7 days following the incident on 10 January 2005 (7700 - 12000 µS/cm), would have affected the invertebrates present, including those mentioned in paragraph 20. In addition to ammonia, high conductivity would have contributed to the death of crayfish and invertebrates in the main pond. 59. Reduced DO . Low DO concentrations in water can result in adverse effects on many aquatic organisms which depend upon oxygen for their efficient functioning. There are few data on the oxygen concentration tolerance range of Australian freshwater invertebrate species, however literature suggests that DL below 5 mg/L are stressful to many species and should be prevented where possible. As mentioned in paragraph 52, waters at Mill Creek which have been contaminated with the spilt leachate material would have the DO reduced significantly due to high O2 demand of the leachate decomposition during the first few days following the incident. Particular in the mid-summer dry weather temperatures during the incident, the transfer of oxygen from the atmosphere to the water would have been very slow. This would have been serious impact on the invertebrates in the creek. Low DO had very likely contributed to the death of crayfish and invertebrates in the main pond of Mill Creek. If tadpoles were present at the main pond, they would have definitely been affected because they require greater oxygen to survive. 60. In summary, the extremely high ammonia at the main pond, and moderately high ammonia in at least 800-metre length of Mill Creek downstream of the discharge point of the spill, for 2 to 7 days following the incident, were sufficient to cause serious adverse effects on invertebrates, and tadpoles if present. The dead crayfish and other invertebrates was evidence of the impact of ammonia. Further, it would have effects on the ecosystem structure and functioning. Effects would have continued but decreased in the next 4 weeks when ammonia concentrations were decreasing. Ammonia levels exceeded the ANZECC (2000) WQG. 61. High conductivity for 2 days following the incident, would have contributed to the death of crayfish and also adversely affected invertebrates. 62. The presence of leachate material in about 800-metre length of Mill Creek immediately following the incident, most likely reduced the DO significantly. Laboratory tests indicated that the DO levels were most likely lower than the WSN licence limit. Low DO would have contributed to the adverse effects on invertebrates and tadpoles if present. 63. The overflow caused a change in the chemical composition of the Creek waters. The visual observations made by DEC staff who inspected Mill Creek at various times after the incident and the results of chemical analysis of both NSW EPA Chemistry laboratories and WSN, gave clear evidence to this. The presence of leachate in 800-metre length of Mill Creek had most likely also reduced the DO significantly. 64. The results of toxicity tests by the EPA Ecotoxicology Section and comparison with ANZECC WQGs gave evidence that the spilt leachate material had serious adverse effects on organisms in approximately 800-metre length of Mill Creek for 2-7 days following the incident. The factors that contributed to this were high ammonia and conductivity, and the likely reduced DO in leachate-contaminated waters. The ANZECC WQG for ammonia and recommended guideline for conductivity, were exceeded for 5 weeks and 2-7 days respectively. Extremely high ammonia concentrations were sufficient to cause the death of crayfish and other invertebrates observed by witnesses at the main pond of Mill Creek. Adverse effects on organisms at the main pond would have continued for 5 weeks following the incident." 134 Mr Anink inspected Mill Creek on 14 January 2005, some 4 days after the pollution incident. He inspected the creek pools downstream of the spill entry. He made the following observations: "11…I observed that impacted pools had a dark brown-black colour sometimes with a sheen on the surface and with a distinct odour including that of ammonia…I noted the lack of swimming (submerged) macroinvertebrate fauna (although there were a few water striders observed in some pools) and the presence of dead or dying freshwater crayfish (mostly juvenile Euastacus sp ., and most probably the Sydney crayfish, E. spinifer ). These observations were made of pools downstream to a long natural rock bar in the creek line." 135 He concluded: "14. Based on the observations of contrasting water appearance, contrasting water odours, presence or absence of aquatic macroinvertebrate fauna including the observations of dead or dying crayfish, I concluded that, as at 14 January: (i) The initial spill had been contained in creek ponds within Mill Creek for a distance of about 800 m downstream of the discharge point, above a natural rock-bar section. I estimated this distance by reference to the first downstream tributary draining into Mill Creek from the east (some 40 to 50 m further downstream). (ii) The section of Mill Creek upstream of the discharge point was not impacted by the spill. (iii) The section of Mill Creek, from the rock-bar referred to in 14(i) above through to MC3, was not impacted by the leachate spill, at least to the extent that there was no obvious dark or discoloured water colour, no ammonia odour, no dead or dying aquatic fauna observed plus live aquatic macroinvertebrates (including live juvenile crayfish) observed in and on the water. (iv) Based on similar observations outlined in 14(iii) above I concluded that the section of Mill Creek observed below the coffer dam at MC3 was not impacted by the leachate spill". 136 Mr Anink made recommendations for clean-up operations. Mr Anink designed and supervised an aquatic macroinvertebrate monitoring program. The monitoring was undertaken on 18 and 19 January 2005 (8-9 days after the pollution event). A repeat aquatic sampling program was undertaken on 12 May 2005. Mr Anink compared the results obtained from these surveys. Mr Anink summarised the comparison as follows: "26…The results confirm that sites Refill Pond and Impact Pond were impacted by the spill of leachate on 18 January 2005 and that Impact Pond had recovered sufficiently to support a diverse range of aquatic macroinvertebrate to a level comparable with Reference sites by May 2005. The fauna included several taxa with SIGNAL scores of 5 and 6 (i.e., mildly pollution intolerant taxa) which were not found during the January 2005 sampling. 27. Crayfish had not re-colonised the impact section of the creek by May 2005 but, given the intact population upstream, colonisation from upstream (at least) could be expected during the next summer. Tadpoles were observed U/S Ref and D/S Ref at the 'During' surveys and at U/S Ref plus Impact Pond at the May survey. The Plague minnow (a listed pest species) was observed at D/S Ref at both surveys and at LH15 in May 05." 137 Mr Anink assessed the impact of the pollution to be as follows: "28. Based on the combined chemical and biological data contained in the affidavits and from my own observations and measurements I conclude that the spill of leachate to Mill Creek on 10 January 2005 caused a spike of toxic but non persistent chemicals to be deposited in the waters of the creek, which caused a pulse impact on the aquatic biota of the creek. The pulse had the form of a sharp peak with a long tail recovery. There was most likely a sharp and immediate rise in toxicity during the leachate spill with high levels of toxicity remaining for about a week, followed by a gradual decrease in toxicity over the next four weeks. 29. Based on the combined chemical analysis results produced by WSN, NSW EPA, this report and CES (2006), it is apparent, as concluded by Dr Pablo in her affidavit at paragraph 35, that ammonia was "clearly the principal chemical-of-concern affecting aquatic life" exacerbated by high BOD and resulting low Dissolved Oxygen concentrations. 30. I also agree with Dr Pablo that the creek length directly impacted by the leachate spill was around 800 m downstream from the discharge point and was contained by a rock bar at that point. 31. My aquatic biota monitoring also confirms Dr Pablo's opinion that the chemical impacts in terms of ammonia, BOD and dissolved oxygen were probably most severe at the discharge pond (at MC1) with a gradual decrease downstream for 800 m. Adverse effects on aquatic biota within this creek length would have continued for up to five weeks following the incident. 32. I also note that aquatic ecological impacts were confined to the area of the creek above MC3 and most likely confined to the jointly agreed immediate creek impact length of 800 m, by the combined imposition of a coffer dam at site MC3 and by the prompt commencement of the clean-up procedure. … 35. The aquatic ecological monitoring undertaken in May 2005 confirmed that recovery in the main section of the impacted creek section had proceeded to a sufficient degree such that the ponds supported a diverse range of macroinvertebrate taxa, with a community structure similar to that found at reference sites within Mill Creek and at a site in a reference creek. 36. It is concluded that as the main constituents of the leachate spill were degradable there is unlikely to have been any further intermediate impacts and no long-term impacts of the leachate spill on the aquatic ecology of Mill Creek, Lucas Heights." Sentencing considerations 138 The sentence imposed by the Court must reflect (be proportionate to) both the objective gravity or seriousness of the offence and the personal or subjective circumstances of the defendant: Veen v R (No 1) (1979) 143 CLR 458 at 490; Veen v R (No 2) (1998) 164 CLR 465 at 472; R v Scott [2005] NSWCCA 152 (18 April 2005) at [15]. Objective gravity of the offence 139 The primary factor to consider is the objective gravity or seriousness of the offence: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474, 475 and Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-80. 140 The objective gravity or seriousness of the crime fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never 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 R (No 2) (1988) 164 CLR 465 at 472, 485-486, 490-491 and 496; Baumer v R (1988) 166 CLR 51 at 57-58; Hoare v R (1989) 167 CLR 348 at 354. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot 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; R v Nicols (1991) 57 A Crim R 391 at 395; R v Allpass (1993) 72 A Crim R 561 at 563; R v Murray (unreported, NSW Court of Criminal Appeal, 22 October 1997) at pp 6-7 per Barr J with whom Newman J agreed; and R v Scott [2005] NSWCCA 152 (18 April 2005) at [15]), or the objectives of punishment such as retribution and general and individual deterrence (R v McGourty [2002] NSWCCA 335 (13 August 2002) at [34] and [35]). 141 In determining the objective gravity or seriousness of the offence the Court may have regard to a number of factors, many of which are required to be considered by the Act. I will deal with those relevant to the circumstances of this offence and the defendant.

142 The maximum statutory penalty is of great relevance in determining the objective gravity of the offence. As was stated in Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1992) 32 NSWLR 683 at 698 "the maximum penalty for an offence reflects the 'public expression' of parliament of the seriousness of the offence". See also R v H (1980) 3 A Crim R 53 at 65; R v Oliver (1980) 7 A Crim R 174 at 175; Gibson v The Queen (1991) 172 CLR 353 at 364; Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 at 633 and Markarian v The Queen (2005) 79 ALJR 1048 at 1056 [30], [31]. 143 Although the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which the penalty is prescribed (see Ibbs v R (1987) 163 CLR 447 at 451-452) that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case. Ingenuity can always conjure up a case of greater heinousness: Veen v R (No 2) (1988) 164 CLR 465 at 478 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. 144 At the time of the offence, the maximum penalty for an offence against s 120(1) of the Act committed by a corporation was $250,000. For offences committed after 1 May 2006, the penalty has been increased to $1,000,000. Objective harmfulness of offence

Principles 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: Camilleri's 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 offender's 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]. Environmental harm in this case 150 The prosecutor submits that the environmental harm caused by the offence was substantial because: "(a) the leachate is by definition a toxic substance with high pollutant qualities; (b) the leachate entered a relatively pristine environment of Mill Creek in a considerable volume and over a considerable time frame extending approximately 800 metres down the creek from the point of entry; (c) actual harm to the environment resulted including: - the death of crayfish and other invertebrates; - serious adverse effects on organisms for 2-7 days following the incident; - biochemical oxygen demand (BOD) in the creek; - continuing adverse affects on organisms for 5 weeks after the incident; - crayfish had not re-colonised the section of Mill creek adversely impacted by the overflow by May 2005." 151 The prosecutor submits that the pollution incident caused both immediate and long term harm to the environment. 152 The prosecutor submits the nature and elevated levels of the pollutants had both actual and likely impacts on the environment. Of particular concern were the elevated levels of ammonia, the high conductivity and the significant reduction in the level of dissolved oxygen. 153 The defendant submits that: "(a) only 800 metres of Mill Creek was likely to have been impacted by the leachate spill; (b) the leachate spill caused a spike of toxic but non-persistent chemicals to be deposited in the Creek which led to the death of crayfish and other invertebrates in the main pond directly beneath the discharge point for the first few days; (c) the principal chemical of concern affecting aquatic life was ammonia exacerbated by high biological oxygen demand (resulting in low dissolved oxygen concentrations); (d) there was likely to be a gradual decrease in the effect of these chemicals further away from the discharge point; and (e) adverse effects on aquatic biota would have continued for up to 5 weeks." 154 The defendant accepts that the actual environmental harm was serious. However, the defendant submits that the impact was of a short term duration as the main constituents of the leachate are non persistent and degrade. This is demonstrated by Mr Anink's findings in his survey of May 2005 which showed that a diverse range of aquatic macroinvertebrates had re-populated the impacted section with a community structure similar to that found at the reference sites within Mill Creek and at a site in a nearby reference creek. The prosecutor has not filed any evidence which disputes the rapid recovery of macro-invertebrates and appears to agree that the pollutants were non-persistent and would result in only short term adverse effects. 155 In addition, the defendant submits the actual environmental harm was short term due to prompt clean up measures implemented by the defendant and its contractor, Clearly Bros, which ensured immediate containment of the leachate in Mill Creek. 156 The defendant submits that the penalty imposed by the Court should reflect the short term environmental harm and the fact that:

(a) the most serious effects were limited to the pond beneath the discharge point on the day of the incident and for the two days following the incident,

(b) adverse effects were localised and impacted only 800 metres of Mill Creek, and

(c) there was a rapid recovery of macroinvertebrates and other invertebrates and no intermediate or long term environmental harm. 157 I find the environmental harm to be substantial, and an aggravating circumstance of the crime, for the following reasons:

(a) The aquatic environment of Mill Creek was of ecological and other value. Although moderately disturbed by reason of its location on the urban fringe, the creek nevertheless provided good habitat and supported a diverse range of aquatic fauna including frogs, crustaceans (including freshwater crayfish), a variety of insects such as mayflies, dragonflies, caddisflies, damselflies and crane flies, and worms.

(b) The pollutant, the leachate from the landfill, was toxic. It contained high levels of ammonia, had a high biological oxygen demand and had a high conductivity. Each of these attributes had the potential to adversely affect aquatic life.

(c) The leachate caused serious, actual, environmental harm. The waters of the creek were severely affected in the manner that would be expected by the leachate by increasing the ammonia concentrations, the biological oxygen demand and conductivity of the waters. The increased biological oxygen demand resulted in low dissolved oxygen concentrations in the water. These effects were exacerbated by the fact that the volume of water in the creek during that mid-part of summer was low, so that dilution of the leachate was poor and the flow of liquid through the creek depended on the volume of leachate spilt into the creek.

(d) The waters of the creek were adversely affected for a distance of 800 metres.

(e) The elevated ammonia concentrations, biological oxygen demand and conductivity and the low dissolved oxygen concentrations in the main pond near to the discharge point caused the death of most invertebrates, including crustaceans like freshwater crayfish, organisms such as the insect larvae and worms in the creek sediments, tadpoles and the introduced mosquito fish. The deaths would have occurred immediately after the discharge, caused by the spike or pulse of toxic chemicals in the leachate.

(f) The toxicity of the polluted waters, manifested in elevated ammonia concentrations, biological oxygen demand and conductivity and reduced dissolved oxygen concentrations, continued in the main pond over a period of 2-7 days. This had a serious impact on the ecosystem structure and function.

(g) In the next 800 metres length of the creek, the spilt leachate had a serious adverse effect on the invertebrates, micororganisms and tadpoles, especially by reason of the high concentration of ammonia, high conductivity and the low dissolved oxygen concentrations in the water. The acute toxic effect to aquatic life would have occurred within a few hours following the incident. Dead crayfish and other invertebrates were observed. The adverse effects persisted for 2-7 days. This would have had effects on the ecosystem structure and functioning.

(h) The adverse effects on organisms persisted for 5 weeks following the incident. The effects were acute immediately after the discharge and for the next 2-7 days and then decreased in the following 4 weeks, but still exceeded acceptable ecological thresholds over this time. The ANZECC Water Quality Guidelines for ammonia and the recommended guideline for conductivity were exceeded for 5 weeks and 2-7 days respectively.

(i) Although recovery of the creek has proceeded to a sufficient degree such that it supports a diverse range of macroinvertebrates and has a community structure similar to that found at reference sites outside of the impacted creek section, the adverse effects on aquatic life were not completely abated by the end of the 5 week period after the discharge. Mr Anink noted that crayfish had not re-colonised the impact section of the creek by May 2005. However, he predicted that given the intact population upstream, colonisation from upstream could be expected in the next summer (2005-2006). This would be the first breeding season after the pollution incident. There would, therefore, be a period of about a year where a biotic component of the ecosystem, the crayfish, was absent.

(j) The fact that the adverse effects on the environment are limited in duration (at least 5 weeks) or in space (800 m length of the creek) does not mean that the harm is not substantial: see Environmental Protection Authority v Warringah Shire Council Ltd (No 2) (2003) 129 LGERA 211 at 215 [10]. Foreseeability of risk of harm 158 The extent to which the offender could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence is a relevant objective circumstance of the offence: s 241(1)(c) of the Protection of the Environment Operations Act 1997; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [228], [230], [231], [236] and Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289 (5 May 2006) at [103]. 159 The harm to the environment of the creek, including its aquatic life, by an overflowing of the leachate storage tanks and bunded area was clearly foreseeable. The hazardous operations risk assessment prepared for the defendant dated 31 October 2002 provided to the defendant's Centre Manager, Mr Manolas in January 2003, identified the potential for overflow of the leachate storage tanks caused by leaving the pump on, and for the bund to leak whereby contamination to the creek would occur. 160 The defendant did not dispute these conclusions. Nevertheless, it submitted that it was reasonable for the defendant to assume that if it had hired an independent contractor with specialist expertise in leachate management, with an independently audited environmental management system, that this contractor would have appropriate procedures and training in place. Further, the defendant submitted, Cleary Bros had built much of the earthen leachate management infrastructure at the site under a previous contract and had occupied the site for over 20 years. The overall effect was that Cleary Bros had a wealth of experience on the day-to-day management of the landfill which it was not reasonable for the defendant to have. 161 The defendant also submitted that it had undertaken its own investigations to determine that Cleary Bros had appropriate procedures in place and had adequately trained its staff following its risk assessment. The defendant submitted it had taken all reasonably practicable steps to oversee Cleary Bros operations to ensure it was complying with the site management plan and environment protection licence. 162 Consequently, the defendant submitted, it was not reasonable for the defendant to foresee that an employee of Cleary Bros would have filled the fuel tank in the pump to capacity and then left the fuel pump running all night. 163 The problem with this submission is that the defendant did foresee the precise event of leaving the pump on when pumping from the main dam to the leachate storage tanks. This was the very "what if event" in the hazardous operations risk assessment prepared for the defendant. The outcome of overflow of leachate from the storage tanks and collection in the bunded area was foreseen. The recommended actions to avoid the occurrence of this foreseeable event and outcomes, were daily inspection and procedure, overall management system and review the need for a cut off time switch. 164 The defendant also foresaw the events of rupture or leak of the holding tank causing the leachate to overflow into the bund, as well as leak of the bund, causing contamination to the creek. The recommended actions to avoid these events and outcomes included reviewing the bund capacity and integrity. 165 Notwithstanding the defendant foreseeing these events and outcomes and knowing of the recommended actions to avoid the events and outcomes, the defendant neither elected to provide Cleary Bros with the hazardous operations risk assessment which evaluated these risks and consequences nor take itself or require Cleary Bros to take the recommended actions. 166 The reasons given by the defendant for its failure to take the recommended actions are not defensible. The first reason was that Cleary Bros had procedures in place and had trained its staff. Yet the foreseeable event was that the pump would be left on, which event presupposes human error. The recommended action of installing a cut off timer switch on the pump was clearly intended to remedy the human error of leaving the manually operated pump on. It did not depend on any further human action for its efficacy. 167 It was, therefore, not reasonable for the defendant to rely on human action (Cleary Bros having procedures in place and training its staff to turn off the pump) in substitution for the recommended action which did not depend on human action for its efficacy. 168 The second reason of the defendant was that it was not reasonably practicable or feasible to install a cut off timer switch to the pump as the main dam was going to be relocated. This reason was a commercial one. The defendant elected to run the risk of the foreseeable events and consequences occurring rather than expend money in taking proper precautions to avoid these events and consequences. 169 Such an attitude is contrary to the Act and to the licence. As stated in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359, "business must be arranged and precautions taken so as to ensure that pollution will not occur". The cost of precautions to avoid pollution must be accepted as an ordinary cost of operating in an industry where, absent precautions, pollution will occur. 170 It was not acceptable for the defendant to operate its business, for even a temporary period, without taking the recommended precautions. As events happened, the period has not been short. The action of installing a cut off timer switch was recommended in October 2002 but the main dam had still not been relocated at the time of the incident in January 2005. Indeed, only now is a new dam being built. Furthermore, after the incident an automated pumping system was implemented, evidencing the practicability of the recommended action. 171 The third reason of the defendant, that there could be increased risks associated with having electricity in an operational part of the site where machinery and plant were used, was also unreasonable. The installation of the cut off timer switch (which depended on electricity) was the very recommendation in the hazardous operations risk assessment. It would not have been recommended as an action if it was itself hazardous. Moreover, after the incident, an automated pumping system was installed evidencing the feasibility of such action. 172 The risk of an employee of Cleary Bros filling the fuel tank of the pump and leaving it on for such a length of time as to cause the tanks to overflow was foreseeable. The defendant did not act reasonably in relying on Cleary Bros to take action to ensure that the pump was not left on. It ought reasonably to have taken other action, including the recommended action. Practical measures to prevent risk of harm 173 The practical measures that could have been taken to prevent, control, abate or mitigate the environmental harm caused or likely to be caused to the environment by the commission of the offence is another relevant consideration. An offence is objectively more serious if the commission of the offence and the risk of harm occasioned by the commission of the offence, are foreseeable and there are practical measures that could be taken to prevent, control, abate or mitigate the occurrence of the offence or the harm, but those practical measures are not taken: s 241(1)(b) of the Protection of the Environment Operations Act 1997; Environment Protection Authority v Ramsay Food Processing Pty Ltd (2003) 125 LGERA 369 at 378 [43]; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [228], [230], [231], [236]; and Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289 (5 May 2006) at [103]. 174 The prosecutor submits that the defendant could have taken any of the following measures to prevent the storage tanks overflowing and/or to have prevented and mitigated the harm resulting from such an incident:

(a) the installation of a cut-off timer switch on the mobile leachate pump;

(b) providing for two people to sign off after the operation of the manual pump had been activated;

(c) installation of a smaller fuel tank so that the pump could not operate for more than four hours;

(d) testing the integrity of the bund wall after it was reinstated;

(e) conducting a survey of the capacity of the bund;

(f) installation of an automatic pump to replace the manual pump;

(g) issuing a standard operating procedure to Cleary Bros in relation to the operation of the manual pump;

(h) issuing a written site instruction to Cleary Bros or engaged a contractor to carry out any of the actions listed in (a)-(f);

(i) informing Cleary Bros of the potential risks in relation to the manual pump, the storage tanks and the bund; and

(j) providing Cleary Bros with a copy of the hazardous operations risk assessment which was prepared for the defendant and which identified risks associated with, and recommendations for preventing:

• a leak in the bund; - the overflowing of a storage tank; - the pump being left on. 175 The defendant submits that:

(a) the defendant had various measures in place to oversee Cleary Bros' operations at the landfill and thus to prevent, control, abate or mitigate harm at the site;

(b) the defendant had delegated the operation of the landfill to Cleary Bros and was not responsible for instructing Cleary Bros on how to write its operating instructions or disseminating those instructions to Cleary Bros staff;

(c) the defendant required Cleary Bros to have a site management system in place which was certified to the internationally recognised standard for such systems ISO14001 (environmental management system) as well as ISO 9001:2000 (quality management);

(d) the defendant had conducted its own risk assessments and compliance audits at the landfill to check that Cleary Bros was complying with the environment protection licence, the site management plan and other regulatory requirements. These included emergency response reviews, review of safety management systems, an external review of site security and safety, environmental compliance audits to check compliance with the environmental protection licence, an external review of bunding and a hazardous operations risk assessment of the leachate system;

(e) at the time of the incident, given the checks the defendant had performed and the information that Cleary Bros had provided, the defendant had taken all reasonably practicable steps to ensure that Cleary Bros had adequately trained its staff on the use and operation of the leachate management infrastructure; and

(f) the defendant had considered the option of installing an electric cut off switch prior to the incident following its hazardous operations risk assessment but had decided that this was not possible for various reasons. The defendant had not considered a mechanical cut off device such as a reduced fuel supply, although this would have been practical. 176 As I have found above, the risk of human error in the operation of the fuel pump was clearly foreseeable. There were practical measures to abate that risk, including the installation of a cut off timer switch on the pump. By reason of its hazardous operations risk assessment, the defendant both foresaw this risk and knew of this practical measure to avoid the risk. 177 This risk and this practical measure were supplementary to the measures that the defendant had already undertaken and which are relied upon by the defendant in its submission. Hence, the taking of these measures are not an answer to the prosecutor's submission that there were further practical measures that could have, and should reasonably have been taken to avoid the risk of human error by leaving the pump on and the consequences of overflow of the leachate storage tanks and bund and contamination of the creek. 178 At the minimum, the practical measures included:

(a) informing Cleary Bros of the risks in relation to the manual pump, the leachate storage tanks and the bund and the consequences of overflowing and contamination of the creek. This could readily have been done by providing to Cleary Bros a copy of the hazardous operations risk assessment which disclosed the risks, consequences and recommended actions: see prosecutor's submitted practical measures (i) and (j).

(b) installing an automatic cut off timer switch on the pump: see prosecutor's submitted practical measure (f); and

(c) taking some mechanical means of limiting the time of operation of the pump such as a reduced fuel supply: see prosecutor's submitted practical measure (c). 179 Both of these last two measures were in fact taken after the incident indicating that they were reasonably practical to implement. If either of these measures had been taken, the harm to the environment would have been avoided or certainly mitigated. 180 Having regard to the relationship between the defendant and Cleary Bros and the measures that were taken by the defendant, I do not find that the defendant ought to have taken, as practical measures, the steps of providing to Cleary Bros written instructions regarding the operating of the pump or directly supervising the person (Mr Evans) who turned the pump on to ensure he turned it off: see particulars C(i) and (iv) to Manner of Breach in the Summons and the prosecutor's submitted practical measures (b), (g) and (h) above. 181 The evidence is inconclusive in relation to the role the bund wall played in the incident. Accordingly, it is not established that any practical measure in relation to the bund wall ought to have been taken, such as testing the integrity of the bund wall or surveying the capacity of the bund: see prosecutor's submitted practical measures (d) and (e). Control over causes

182 The extent to which the offender had control over the causes that gave rise to the offence affects the culpability of the offender: s 241(1)(d) of the Protection of the Environment Operations Act 1997. 183 The prosecutor submits the defendant did have sufficient control over the causes which gave rise to the offence. The prosecutor submits:

(a) the defendant both owns the site and has access to it at all times;

(b) the defendant holds the environment protection licence in respect of the site;

(c) the defendant entered into the contract with Cleary Bros and supervised it as a contracting party to ensure it complied with its contractual obligations together with the site management plan and the licence;

(d) the defendant provided plant and infrastructure (including the relevant plant and infrastructure in respect of the transfer of leachate from the main dam to the holding tank and on to the treatment plant), and had input into the standard operating procedures for the operations at the site;

(e) the defendant had a right to inspect or audit any of the contractor's works or activities and could direct Cleary Bros with respect to a wide range of matters, including compliance with its environmental obligations, and did so on many occasions;

(f) the defendant ultimately directed Cleary Bros to reinforce the bund and change the size of the fuel tank on the pump and issued a new draft standard operating procedure with respect to the operation of the pump on 10 March 2005; and

(g) the defendant clearly had control over the procedures relating to the operation of the site and had the authority to take reasonable practical measures (or to instruct Cleary Bros to take measures) in relation to the operation of the manual pump, the construction of the bund, ensuring adequate capacity in and the integrity of the bund, and the procedures to be followed by persons working on the site in relation to operating this aspect of operations at the site. 184 The defendant submitted that it did not have control over some of the key factors which gave rise to the incident, namely:

(a) control over Cleary Bros' employees operation of the leachate management infrastructure, in particular the leachate pump;

(b) Cleary Bros' failure to ensure that adequately trained staff were operating the landfill; and

(c) the procedures and work practices that Cleary Bros had in place to prevent human error. 185 As I have found in the sections on foreseeability and practical measures, the defendant foresaw the risk of human error by leaving the pump on and the consequences of overflowing and contamination of the creek. The defendant did have the ability to take practical measures to avoid this risk of human error and hence avoid or mitigate any consequential harm to the environment. These practical measures included providing the hazardous operations risk assessment to Cleary Bros and requiring the installation of either an automatic cut off switch or some mechanical cut off for the pump. These measures were within the control of the defendant, for the reasons submitted by the prosecutor. The failure of the defendant to take these measures was one of the causes that gave rise to the offence. Complying with orders 186 The culpability of the offender may also be affected if, in committing the offence, the offender was complying with orders from an employer or supervising employee: s 241(1)(e) of the Protection of the Environment Operations Act 1997. This consideration is not relevant to this defendant. Subjective circumstances of offender 187 Within the limits set by reference to the objective gravity of the offence, the court may take into account the favourable and unfavourable factors personal to the offender: Veen v R (No 2) (1988) 164 CLR 465 at 491. Prior criminality 188 Existence or lack of prior criminality is a factor in sentencing: s 21A(2)(d) (existence of prior record is an aggravating factor) and s 21A(3)(e) (lack of prior criminal record is a mitigating factor) of the Crimes (Sentencing Procedure) Act 1999. See also Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. 189 The defendant has been convicted for the following environmental offences. Date Offence Penalty Max. penalty Comment 30/12/94 Negligently causing a substance to escape in a matter likely to harm the environment (s6(1) EOP Act) $100,000 $1,000,000 Lidcombe Liquid Waste Treatment Plant A contractor who was transporting liquid treatment plant stabilisation residue spilt sludge along a 10km stretch of road when the spot welding in his tank failed. The Contractor was given a Tier 3 fine. 26/3/96 Offensive odours (s15A Clean Air Act) $12,500 $125,000 Lidcombe Liquid Waste Treatment Plant. This business was sold in July 2005 to Transpacific Industries. Odour control equipment was subsequently installed 12/3/98 Breach of licence condition (s17D(9) Pollution Control Act) $17,500 $125,000 Lidcombe Liquid Waste Treatment Plant This business was sold in July 2005 to Transpacific Industries. Odour control equipment was subsequently installed 27/5/01 Cause water pollution (s120(2) POEO Act) $15,000 $250,000 Leachate spill at the Belrose Landfill arising from the failure of the rising main from the leachate transfer tank to sewer. This failure was caused by subsidence in an area that was filled by the previous operator. The rising main and the leachate transfer system had been reviewed by a consultant in the mid 1990s.

190 The prosecutor submits that notwithstanding the fact that the defendant took prompt action to address the harm caused by its conduct, and that it has changed it current practices to prevent further offences of this kind occurring in the future, it remains a Corporation that undertakes the business of waste treatment for commercial gain: s 5(1)(a) of the Waste Recycling and Processing Corporation Act 2001. Accordingly, the penalty imposed upon it must serve to reinforce its overriding responsibility to conduct its business so as not to cause pollution. Its obligation to take the necessary steps to prevent water pollution is created by the Act and is not overridden by the contractual or commercial considerations it may choose to adopt as an incident of its business practices: Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156 (21 July 2001) at [47]. 191 The prosecutor submits that the fact that the defendant has a relevant prior record in relation to environmental offences gives continued currency to the need for specific deterrence in the calculation of penalty. 192 The defendant submits that none of these prior convictions relate to the Lucas Heights landfill. The Lucas Heights landfill is one of the largest waste disposal sites in metropolitan Sydney. It has been operating for over 20 years. 193 The defendant submits that none of the prior convictions relate to a similar incident as occurred in this case. The convictions in 1996 and 1998 related to odour incidents. The conviction in 1994 related to a leak of treated waste residues on to a road from a contractor's tanker. The leak was caused by the failure of a weld in a container which was not visible during routine inspections. The 2001 conviction involved a leachate spill at the Belrose landfill which arose as a result of the failure of a rising main from the leachate transfer tank to the sewer. 194 The defendant submits that its criminal record must be viewed in the context of the defendant being a major corporation operating in an industry where it would be unsurprising to find a record of some prior convictions: see Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2000] NSWLEC 19 (8 February 2000) and Environment Protection Authority v BHP Steel (AIS) Pty Limited [1999] NSWLEC 197 (3 September 1999). 195 The defendant submits that having regard to the absence of any prior conviction for a similar incident and the measures the defendant has subsequently taken to prevent a re-occurrence of the incident there is not a need for the sentence to include a component for specific deterrence. 196 I accept the defendant's submission that the prior convictions do not relate to incidents of a similar nature to the incident in this case. The record of prior convictions should not be viewed as an aggravating circumstance under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999. However, the existence of a record of four prior convictions speaks against a conclusion in mitigation that the defendant does not have any record (or any significant record) of convictions under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999. 197 The defendant has altered its practices in response to the incident with a view to preventing a re-occurrence of the offence. However, the incident may not have occurred had the defendant elected to take the precautions recommended in its hazardous operations risk assessment. The defendant allowed contractual or commercial considerations to override the need to comply with environmental laws and to take precautionary measures to prevent harm to the environment. There is a need for the sentence of the court to deter the defendant from such conduct in the future.

Prior good character 198 Prior good character is an established mitigating factor: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999 and Ryan v The Queen (2001) 206 CLR 267 at 278-279 [36]. 199 Evidence of the defendant's good corporate character was given in the statement of agreed facts and the affidavits of Ms Mitchell. The defendant's commitment to being a good corporate environment citizen includes:

(a) sponsoring environmental and community activities such as accepting free of charge all waste collected by Sydney councils on Clean Up Australia Day and being the foundation sponsor of the Keep Australia Beautiful Waste Watchers Program;

(b) reporting publicly on environmental, social and economic indicators on an annual basis;

(c) establishing a Sustainability Reference Group to provide the defendant with external, expert perspectives on sustainability in particular, the defendant's corporate social responsibility and community engagement initiatives;

(d) managing environmental risks associated with its operations, reflected in the defendant's governance of environmental issues within the organisation, its documented environmental policy and comprehensive environmental management system;

(e) implementing additional environment management controls across all of its landfills; and

(f) undertaking an extensive rehabilitation and capital works programme on its open and closed landfills which covers issues such as landfill capping, landscaping, seeding and planting. Plea of guilty 200 A sentencing court is required to take into account the fact that an offender has pleaded guilty and the timing of the plea. The court may impose a lesser penalty than it would have otherwise imposed. The utilitarian value to the criminal justice system for a plea of guilty has been assessed to be in the range of 10-25% on sentence: ss 21A(3)(k) and 22(1) of the Crimes (Sentencing Procedure) Act 1999; R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 [160]; R v Sharma (2002) 54 NSWLR 300. 201 A primary consideration in determining where in the range a particular case should fall is the timing of the plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 [160]; R v Carter [2001] NSWCCA 245 at [14] and s 22(1)(b) of the Crimes (Sentencing Procedure) Act 1999. 202 In this case, the plea of guilty was entered at the first reasonably available opportunity. A discount at the top end of the range should be allowed recognising the full utilitarian benefit of the plea. Contrition and remorse 203 Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives. The actions underlying genuine contrition and remorse may take at least four forms. 204 First, the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence is the clearest indication of contrition and remorse. Where it occurs it justifies a reduction in the sentence: Mickelberg (1984) 13 A Crim R 365 at 370; s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 and R v United Keno Hill Mines Ltd (1980) 1 YR 299; 10 CELR 43 at [24]. 205 The defendant promptly took action to prevent further pollution. The bund wall was immediately repaired on discovery of the overflow to stop any further discharge from the bund. Mill Creek was dammed 1,500m downstream of the entry point of the leachate within one and half hours of discovery of the overflow. This was downstream of the natural rock bar which, in fact, was acting as a barrier to further downstream movement of the pollution. The leachate that remained in the bunded area was pumped back into the storage tanks. 206 Thereafter the defendant co-operated fully with the EPA to select and implement appropriate mitigation measures. From 10 January 2005, pumps were installed and operated in the main pond and various smaller ponds in the 800 m length of the creek to pump out the leachate contaminated water. The pumping continued for 2 to 3 days. After a week, treated stormwater was pumped into the ponds to facilitate residual leachate removal. 207 Water quality sampling and testing and monitoring was carried out by and on behalf of the defendant. The defendant provided an incident report to the EPA on 17 January 2005. 208 The approximate cost of the defendant's clean up measures is $26,000. The defendant has also agreed to comply with an order to pay the EPA's costs in this prosecution agreed at $39,500 for legal costs and $7,240 for investigative costs and expenses. 209 These actions to rectify the harm caused were appropriate and timely. The prosecutor does not contend that any other action should have been taken or that the actions that were taken should have been taken quicker. 210 Secondly, voluntarily reporting the commission of the offence and any concomitant environmental harm to relevant authorities indicates a genuine desire to act responsibly. Environmental regulation depends upon the integrity of persons making full disclosure. Voluntarily reporting breaches should therefore be acknowledged as a mitigating circumstance by the courts in sentencing: R v United Keno Hill Mines Ltd (1980) 1 YR 299; 10 CELR 43 at [24]. 211 The defendant voluntarily reported the incident to the EPA at 9.20am on 10 January 2005, some 3 hours after the overflow was discovered. Shortly thereafter, officers of the defendant escorted EPA officers around the landfill and the impacted creek. 212 Thirdly, the taking of action to address the causes of the offence, such as designing and installing improved pollution prevention and control systems, also indicates a genuine desire to act responsibly: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700-701. 213 The defendant, by itself or by directing Cleary Bros, has taken active steps to ensure that the type of incident does not happen again. These steps have been set out earlier in the judgment. They include:

(a) reinforcing the bund wall shortly after the incident as an interim measure while design specifications and options for reinstating the bund were considered;

(b) in March 2005, reducing the size of the fuel tank on the manual pump (thereby reducing the amount of time it could operate) used for pumping leachate between the main dam and the leachate storage tanks;

(c) in April 2006, installing an automated pumping system between the main dam and the Storage 5 leachate collection system to the leachate storage tanks (instead of the manual system which operated at the time of the incident);

(d) constructing a new leachate dam and stormwater dams (expected to be completed by August 2006). The dams will be of a larger capacity. The leachate dam will overflow into the stormwater dam. The stormwater dam will have 50% spare capacity to deal with heavy rainfall events and overflow from the leachate dam;

(e) pumping leachate directly from the new leachate dam to the leachate treatment plant, instead of via the leachate storage tanks. The tanks will no longer be utilised on-site and will be decommissioned following completion of the new dams;

(f) in August 2005, commissioning environmental consultants to undertake an environmental risk assessment of the leachate management systems, which assessment is expected to be finalised in the near future;

(g) updating the Landfill Environmental Management Plan to incorporate recent infrastructure changes that have occurred at the landfill. The revised plan is expected to be completed by August 2006; and

(g) implementing new audit procedures including an annual compliance audit to check that Cleary Bros is properly implementing environmental management systems including undertaking appropriate site specific risk assessments. The first audit is due to be carried out during June 2006. 214 Fourthly, the personal appearance of corporate executives in court and their personal evidence outlining the company's genuine regret and stating future plans to avoid repetition of such offences is an indication of genuine corporate contrition: R v United Keno Hill Mines Ltd (1980) 1 YR 299; 10 CELR 43 at [26]; Environment Protection Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 223 (28 September 2001) at [28]. See also Environment Protection Authority v Coe Drilling Australia Pty Limited [2005] NSWLEC 719 (5 December 2005) at [186]-[187] and Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289 (5 May 2006) at [115]. 215 The defendant personally expressed its contrition and remorse to the Court in two ways: first, by the evidence of Ms Mitchell, the defendant's General Manager - Sustainability and Assurance, who expressed deep regret and remorse in respect of the incident, and secondly, by the personal attendance at the Court hearing of the defendant's Chief Executive Officer. Assistance to authorities 216 The cooperativeness of an offender with relevant regulatory and law enforcement authorities is a matter to be taken into account when fixing penalties. The court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700-701 and ss 21A(3)(m) and 23(1) of the Crimes (Sentencing Procedure) Act 1999. 217 The matters which the court must consider when deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty imposed include the significance and usefulness of the offender's assistance to the authorities concerned, the truthfulness, completeness and reliability of any information provided by an offender, the nature and extent of the offender's assistance or promised assistance, the timeliness of the assistance or undertaking to assist and whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence: s 23(2)(b), (c), (d) and (i) of the Crimes (Sentencing Procedure) Act 1999. 218 However, a sentence cannot be reduced for this factor of assistance to authorities to such an extent that the sentence becomes unreasonably disproportionate to the nature of the circumstances of the offence: s 23(3) of the Crimes (Sentencing Procedure) Act 1999. 219 The offender's willingness to assist the authorities may form a complex of inter-related considerations with its plea of guilty and expressions of contrition and remorse. For this reason, the factor of willingness to assist with authorities may be included as part of a single combined discount reflecting a guilty plea, contrition and remorse and cooperation with authorities: R v Gallagher (1991) 23 NSWLR 220 at 228; R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 [160]; R v El Hani [2004] NSWCCA 162 (21 May 2004) at [65]-[69]; R v A [2004] NSWCCA 292 (16 December 2004) at [27]; R v Frank Waqa (No 2) (2005) 156 A Crim R 454 at 457 [14] and 458 [21], [24] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006) at [165]. 220 The defendant has fully cooperated with the prosecutor at all stages of the investigation of the incident and the proceedings. 221 As mentioned above, as soon as the defendant became aware of the incident, it promptly notified the EPA and worked in close collaboration with the EPA to clean up the portion of Mill Creek affected by the incident. The defendant remained in constant contact with EPA officers to discuss and obtain their concurrence on the defendant's remediation proposals throughout the clean up period. 222 The defendant has fully cooperated with the Department of Environment Conservation's investigation by providing documents in response to statutory notices and allowing an employee to be available to take part in an electronically recorded interview. Following the issue of the Summons, the defendant has continued to cooperate with the EPA. 223 The defendant has agreed on a comprehensive Statement of Facts with the prosecutor. The appropriate sentence 224 The objective circumstances of the offence reveal it to be in the middle of the range of objective seriousness. Of particular significance are:

(a) the substantial environmental harm caused by the commission of the offence (contamination of the creek for a distance of 800m, death of most aquatic life and serious impacts on the ecosystem structure and functioning);

(b) the reasonable foreseeability of and the defendant actually foreseeing the event (human error in leaving the pump on) and the consequences of the event (overflow of the leachate storage tanks and bund and contamination of the creek);

(c) the availability of and the defendant's knowledge of practical measures to avoid the event and to avoid or mitigate the consequences of the event (providing the hazardous operations risk assessment to the contractor and installing automatic or mechanical cut off devices to the pump); and

(d) the defendant's control over some of the causes that gave rise to the event. 225 Also of relevance in setting the objective gravity of the crime are the purposes to be served by the sentencing exercise. The purposes of punishment, deterrence, retribution and denunciation are relevant: see s 3A(a), (b), (e) and (f) of the Crimes (Sentencing Procedure) Act 1999. 226 The offence committed by the defendant is a crime; it is not a mere administrative breach: R v United Keno Hill Mines Ltd (1980) 1 YR 299; 10 CELR 43 at [9]. The community views pollution and other environmental offences as extremely serious: Brimble v Epping Rubber Company Pty Ltd [1990] NSWLEC 94 (17 August 1990); Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [145], [149]; B Fisse, "Reconstructing Corporate Criminal Law: Deterrence, Retribution, Fault and Sanctions" (1982-1983) 56 S Cal L Rev 1141 at 1151 and footnote 29; and D Chappell and J Norberry, "Deterring Polluters: The Search for Effective Strategies" (1990) 13 UNSWLJ 97 at 98-99, 100-101, 104. 227 The community expects the court to take the community's views of the seriousness of the crime into account in the sentencing process. The more serious the crime, the more severe the sentence should be. The sentence must reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed: R v Scott [2005] NSWCCA 152 (18 April 2005) at [15]. The court must ensure that by its sentence the offender is adequately punished and the conduct of the offender is denounced: ss 3A(a) and (f) of the Crimes (Sentencing Procedure) Act 1999. 228 The purpose of general deterrence is also relevant for an offence such as committed by the defendant: see s 3A(b) of the Crimes (Sentencing Procedure) Act 1999. It is the duty of the court to see that the sentence that 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 light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. 229 Courts have repeatedly stated when sentencing for environmental crime that the sentence of the court needs to be of such magnitude as to change the economic calculus: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 369-360; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [150]-[157]. It should not be cheaper to offend than to prevent the commission of the offence: Sentencing Advisory Panel (UK), "Environmental Offences: The Panel's Advice to the Court of Appeal", 1 March 2000, para 16. Environmental crime will remain profitable until the financial cost to offenders outweighs the likely gains: M Watson, "Environmental Offences: the Reality of Environmental Crime" (2005) 7(3) Environmental Law Review 190 at 199-200. The amount of the fine needs to be such as will make it worthwhile that the cost of precautions be undertaken: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359. The amount of the fine must be substantial enough so as not to appear as a mere licence fee for illegal activity. 230 Sustainable and economically efficient development of environmental resources requires internalising the costs of preventing and controlling pollution as well as any environmental harm itself. This is the polluter pays principle. The polluter ought to pay for the costs of remedying any on-going environmental harm caused by the polluter's conduct. This can be done by the polluter cleaning up the pollution and restoring the environment as far as practicable to the condition it was before being polluted. The polluter ought also to make reparation for the irremediable harm caused by the polluter's conduct such as the death of biota and damage to ecosystem structure and functioning. 231 In sentencing for environmental crime, the court ought take into account such considerations in selecting the types and the severity of sentencing orders. In so doing, the court better achieves, first, retributive aims by ensuring the sentence is proportionate to the objective gravity of the offence, the offender is adequately punished and the conduct of the offender is denounced, secondly, deterrence aims by deterring the offender and other persons from committing similar offences which cause or are likely to cause environmental harmed, and thirdly, restorative aims by achieve restoration of the environment harm and reparation for the environmental harm caused. 232 For illustrations of courts having regard to the polluter pays principle, see: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [157]; in India see Indian Council for Enviro-Legal Action v Union of India AIR 1996 SC 1446 at 1466 [67]; Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2715 at 2721 [12], [13]; M.C. Mehta v Union of India, Supreme Court of India, Writ Petn No 3727/1985 (19 December 1996) at [19], [20]; M.C. Mehta v Union of India, Supreme Court of India, Writ Petn No 13381/1984 (30 December 1996) at [32]; Research Foundation for Science Technology and Natural Resources Policy v Union of India, Supreme Court of India, Writ Petn No 657/1995, (5 January 2005) at [24], [25], [27], [28], [31]-[34]; in Kenya, see Waweru v Republic of Kenya, High Court of Kenya, Misc Civ App No 118 of 2004, 2 March 2006, pp 22, 24, 33; see generally N de Sadeleer, Environmental Principles, From Political Slogans to Legal Rules, Oxford University Press, 2002, pp 21, 35, 36, 50, 52; J Moffet and F Bregha, "The Rule of Law in the Promotion of Sustainable Development" (1997) 6 Journal of Environmental Law and Policy 1 at 7, 8. 233 Taking these matters into account, the objective gravity of the offence warrants a fine in the amount of $125,000. However, offsetting the outer limit set by the objective gravity of the offence are the factors personal to the defendant. There are many factors favourable to the defendant in this case:

(b) the defendant's plea of guilty at the earliest available opportunity, entitling it to a discount representing the full utilitarian benefit of a guilty plea;

(c) the defendant's genuine contrition and remorse; and

(d) the defendant's cooperation with the authorities in voluntarily reporting the incident and assisting in the investigation of the offence and in the conduct of the proceedings. 234 These mitigating factors merit a discount of the sentence that would otherwise be fixed by reference only to the objective gravity of the offence. These mitigating factors may be combined into a single combined discount: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 [160]; R v El Hani [2004] NSWCCA 162 at [65]-[69]; R v A [2004] NSWCCA 292 at [27]; R v Frank Waqa (No. 2) (2005) 156 A Crim R 454 at 457 [14], 458 [21], [24]. 235 In the circumstances of this case, a combined single discount of 40% is appropriate. 236 This would yield a sentence of $75,000. This represents about 30% of the maximum penalty of $250,000. It reflects both the objective gravity of the offence and the personal or subjective circumstances of the defendant. Although the discount for subjective circumstances of the defendant is substantial, and reduces the penalty to near the lower limit of punishment that is proportionate to the objective gravity of the offence, it does not cause the penalty to become disproportionate to the objective gravity of the offence. Reviewing the appropriate sentence 237 Well accepted principles of sentencing operate as checks on the sentence. One of these is the principle of consistency or even-handedness (to check the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender): R v Oliver (1980) 7 A Crim R 174 at 177; Lowe v The Queen (1994) 154 CLR 606 at 610-611; R v Morgan (1993) 70 A Crim R 368 at 371; Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 at 641. 238 Care must be taken, however, because each case is different. A sentence in one case does not demonstrate the limits of a sentencing judge's discretion: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365; R v Stahl [1999] NSWCCA 160 (26 May 1999) at [10] and Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312. 239 The following cases, involving the same offence of pollution of waters against s 120(1) of the Act, suggest that a sentence in the order of $75,000 is not outside the appropriate range. However, each of the following cases are of lower objective gravity, principally because the environmental harm is less: · Environment Protection Authority v Devro-Teepak Pty Ltd [2000] NSWLEC 275 (20 December 2000): $60,000 (no actual environmental harm proven but strong potential environmental harm); · Environment Protection Authority v Simplot Australia Pty Ltd [2001] NSWLEC 40 (7 March 2001): $45,000 for one offence and $15,000 for another (low and no actual environmental harm respectively); · Environment Protection Authority v Byron Shire Council [2001] NSWLEC 54 (revised 1 May 2001): $60,000 (no proven environmental harm on aquatic life but considerable physical damage to vegetation and deposition of substantial quantities of rubbish and debris along drainage channel); · Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2001] NSWLEC 214 (11 September 2001): $60,000 (minimal actual environmental harm); · Environment Protection Authority v Nationwide Oil Pty Ltd [2002] NSWLEC 201 (15 November 2002): $50,000 (no actual environmental harm except for emission of odours when pollutant reacted with water in storm water drain); · Environment Protection Authority v Illawarra Coke Pty Ltd [2005] NSWLEC 296 (21 February 2005): $40,000 (actual environmental harm, limited to days); · Environment Protection Authority v Tyco Water Pty Ltd (2005) 142 LGERA 241: $50,000 (no proven actual harm but potential for serious environmental stress on somewhat degraded aquatic ecosystem). 240 These cases do not demand any adjustment of the sentence of $75,000 that reflects both the objective circumstances of this particular offence and the subjective or personal circumstances of this particular defendant. Publication orders 241 The prosecutor and defendant have also agreed that publication orders under s 250(1)(a) of the Act are appropriate. One order is for the defendant, at its expense, to cause an advertisement to be placed in a newspaper while the second order is that the defendant give notice in its annual report. The parties have agreed on the terms of the orders, including the terms of the notice to be published in the newspaper and in the annual report. 242 Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent. This is particularly applicable to corporate offenders, who are susceptible to criminal stigma: see B Fisse, "Reconstructing Corporate Criminal Law: Deterrence, Retribution, Fault and Sanction", (1982-1983) 56 S Cal L Rev 1141 at 1147, 1153, 1154, 1156, 1166, 1220, 1229, 1230, 1240. See also B Fisse, "The Use of Publicity as a Criminal Sanction against Business Corporations" (1971-1972) 8 Melb ULR 107; M Rankin and P Finkle, "The Enforcement of Environmental Law: Taking the Environment Seriously" (1983) 17 U Brit Colum L Rev 35 at 49; and D Chappell and J Norberry, "Deterring Polluters: The Search for Effective Strategies" (1990) 13 UNSWLJ 97 at 108. 243 The Court has made publication orders in numerous cases: see Environment Protection Authority v HTT Huntley Heritage [2003] NSWLEC 142 (20 June 2003); Environment Protection Authority v Warringah Golf Club Ltd (No. 2) (2003) 129 LGERA 211; Environment Protection Authority v Incitec Ltd (2003) 131 LGERA 176; Environment Protection Authority v Metalcorp Recyclers Pty Ltd (2004) 136 LGERA 125; Environment Protection Authority v Biosolids Management Pty Ltd (2004) 141 A Crim R 573; Environment Protection Authority v Pannowitz; EPA v Steepleton Pty Limited [2005] NSWLEC 175 (22 April 2005); Environment Protection Authority v Orica Australia Pty Ltd [2005] NSWLEC 621 (4 April 2005); Environment Protection Authority v Integral Energy Australia Pty Ltd [2006] NSWLEC 141 (28 March 2006); Environment Protection Authority v Hochtief AG [2006] NSWLEC 200 (28 April 2006); Environment Protection Authority v Pannowitz [2006] NSWLEC 219 (9 May 2006); Environment Protection Authority v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006). 244 In the circumstances of this case, I find the making of publication orders and the terms of the publication orders and notices agreed by the parties to be appropriate. Orders for payment of costs and expenses 245 The prosecutor and defendant have agreed that the defendant should pay both the prosecutor's legal costs, agreed at $39,500, and the prosecutor's investigative costs and expenses, pursuant to s 248(1) of the Act, agreed at $7,240. Orders 246 The orders of the Court are:

1. The defendant is convicted of the offence as charged.

3. The defendant is to pay the prosecutor's legal costs of the proceedings, agreed at $39,500.

4. The defendant, pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 is to pay the prosecutor's investigative costs and expenses, agreed at $7,240.

5. The defendant, at its expense and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997: (i) within 14 days of the date of these orders cause an advertisement in the form of "Annexure A" to be placed in the Early General News section of the Sydney Morning Herald. It is to be at least 16 centimetres high by three columns wide; and (ii) within its annual report applying to the year 2005-2006, cause a notice in the form of "Annexure B" to be placed in that annual report. It is to be at least half a page in size.

   ---

              THE LAND AND
              ENVIRONMENT COURT
              OF NEW SOUTH WALES
   

ENVIRONMENT PROTECTION AUTHORITY V WASTE RECYCLING AND PROCESSING CORPORATION ANNEXURE A PUBLICATION ORDER

Under Part 8.3 of the Protection of the Environment Operations Act 1997

247 CONVICTION FOR WATER POLLUTION OFFENCE [WSN logo] On 10 July 2006, the Waste Recycling and Processing Corporation (WRAPC), trading as WSN Environmental Solutions, was convicted by the Land and Environment Court for an offence of water pollution. WRAPC had pleaded guilty to the offence.

WRAPC owns a landfill located at New Illawarra Road, Lucas Heights. The landfill generated leachate that was transferred using a manually operated pump from a leachate dam to leachate storage tanks. WRAPC sub-contracted the day-to-day operation of the landfill to Cleary Bros (Bombo) Pty Ltd ACN 000 157 808 (Cleary Bros).

On 9 January 2005, an employee of Cleary Bros accidentally left the pump on overnight. The practice at the time was to run the pump for approximately 4 hours only. At some time between 9 and 10 January 2005, the storage tanks overflowed into a bund and the bund was either overtopped or failed, releasing leachate into nearby Mill Creek. As a result:

1. approximately 116 -124 kilolitres of leachate escaped into Mill Creek; 2. there was an impact on 800 metres of Mill Creek downstream of the discharge point for up to five weeks; and 3. macro-invertebrates, including crayfish, were killed by the discharge.

WRAPC and Cleary Bros took prompt and effective action to contain and clean up the spill. WRAPC immediately notified the Environment Protection Authority of the incident and liaised closely with it in relation to the clean up operation.

The assessable environmental harm to Mill Creek extended over a 5 week period. By May 2005 the impacted section of Mill Creek had recovered sufficiently to support a diverse range of aquatic macro-invertebrates.

The escape resulted from a Cleary Bros' employee leaving the pump on overnight and because:

1. WRAPC's hazardous operations risk assessment identifying the risk of leaving the pump on, the outcome of overflowing of leachate and the recommended action of installing a cut off timer switch on the pump, was not provided to Cleary Bros and was not implemented by WRAPC or Cleary Bros; and 2. there was no mechanical or electrical devices to limit the operation of the pump in the event that it was left on.

WRAPC was fined $75,000, ordered to place this notification at its expense and to pay the EPA's investigative costs of $7,240 and its legal costs of $39,500.

(DEC logo) The Environment Protection Authority is now part of the Department of Environment and Conservation

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ENVIRONMENT PROTECTION AUTHORITY V WASTE RECYCLING AND PROCESSING CORPORATION

ANNEXURE B WSN's Annual Report Statement WSN Environmental Solutions is a business that takes its environmental responsibilities seriously and dedicates considerable resources to best practice environmental management. It is therefore with deep regret that on 31 March 2006 we pleaded guilty to a water pollution offence at our Lucas Heights facility. This resulted in a $75,000 fine and an order to pay costs of $39,500 by the Land and Environment Court on 10 July 2006 date. WSN outsources the day-to-day operations of the site to Cleary Bros (Bombo) Pty Ltd, also being prosecuted by the EPA in relation to the incident. On 9 January 2005 an employee of Cleary Bros left a leachate pump on overnight contrary to procedures. Consequently, the storage tanks containing the leachate overflowed into a bund that was unable to contain the overflow. As a result, approximately 116 to 124 kilolitres of leachate escaped into nearby Mill Creek. The leachate impacted 800 metres of Mill Creek for up to five weeks and macro-invertebrates, including crayfish, were killed by the discharge. WSN immediately reported the incident and closely liaised with the EPA in relation to the clean-up operations. The creek has recovered from the incident and both WSN and Cleary Bros have undertaken measures to prevent a recurrence of the incident at Lucas Heights and our other sites. WSN is committed to securing our systems against any future failures.

09/11/2006 - The date in paragraph 144 should read 1 May 2006 instead of the date 1 May 2005 as published in the NSW Government Gazette No 50 dated 29 April 2006, page 2369. - Paragraph(s) 144

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