Environment Protection Authority v Whitehaven Coal Mining Limited

103; (2014) 206 LGERA 239 Environment Protection Authority v P & M Quality Small Goods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89 Environment Protection Authority v Robinson [2004] NSWLEC 629 Environment Protection Authority v Wambo Coal Pty Ltd [2016] NSWLEC 125 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 Environmental Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Morton v R [2014] NSWCCA 8 Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Newcastle Port Corporation v MS Magdalene Schiffarhtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210 Obeid v R (No 12) [2016] NSWSC 1815 Plath v Fish; Plath v Orogen Pty Ltd [2010] NSWLEC 144; (2010) 179 LGERA 386 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Dodd (1991) 57 A Crim R 349 R v Kennedy [2000] NSWCCA 527 R v MacIntyre (1988) 38 A Crim R 135 R v Nichols (1991) 57 A Crim R 391 R v Oliver (1980) 7 A Crim R 174 R v Visconti [1982] 2 NSWLR 104 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Walden v Hensler (1987) 163 CLR 561 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Texts Cited: Category: Sentence Parties: Environment Protection Authority (Prosecutor) Whitehaven Coal Mining Limited (Defendant) Representation: Counsel: Mr P English (Prosecutor) Mr T Howard SC (Defendant)

Solicitors: Environment Protection Authority (Prosecutor) Ashurst (Defendant) File Number(s): 2017/241343 Publication restriction: N/A

Whitehaven Pleads Guilty to Contravening a Condition of its Environment Protection Licence

1. Whitehaven Coal Mining Limited ("WCM") has pleaded guilty to an offence against s 64(1) of the Protection of the Environment Operations Act 1997 ("POEOA"). WCM is charged with contravening condition 01.1 of environment protection licence ("EPL") 12870 on or about 10 August 2016, at or near Wean Road, Gunnedah in New South Wales ("the licensed premises").
2. The Further Amended Summons stated as follows: 1. An order that the defendant, Whitehaven Coal Mining Limited (ACN 086 426 253) whose registered office is at Level 28, 259 George Street, Sydney NW 2000, appear before a Judge of the Court to answer the charge that on or about 10 August 2016, at or near Wean Road, Gunnedah, in the State of New South Wales (Licensed Premises), it committed an offence against section 64(1) of the Protection of the Environment Operations Act 1997 in that it was the holder of licence, a condition of which was contravened by a person. Particulars a. Licence Environment Protection Licence Number 12870. b. Licence condition contravened Condition 0.1.1, which states: "Licensed activities must be carried out in a competent manner. This includes: (a) The processing, handling, movement and storage of materials and substances used to carry out the activity, and (b) The treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity." c. Manner of breach The Defendant failed to carry out its licensed activities at the Licensed Premises in a competent manner, in that it conducted a blast, namely blast RG16_0713_RL240 in a less than competent manner in that: i. the blast was carried out without a written risk assessment being undertaken; ii. the blast was carried out using explosive products that did not reduce to the greatest extent the risk of blast fume generation in the conditions; iii. 8.5% of blast holes were overloaded with explosives; iv. there were several departures from provisions contained in internal blast management plans; v. a neighbouring property owner was not notified when the fume moved offsite and As a consequence, the defendant failed to minimise air pollution. 2. An order that the Defendant be dealt with according to law for the commission of the above offence. 3. Such orders pursuant to section 8.3 of the Protection of the Environment Operations Act 1997 as the Court in its discretion see fit to make. 4. An order that the Defendant pay the Prosecutors costs.

The Licensed Premises at Which the Blast Incident Occurred

1. WCM is a wholly owned subsidiary of Whitehaven Coal Limited ("WCL"). WCM owns and operates Rocglen Mine. Rocglen Mine is an open-cut coal mine situated at Wean Road, approximately 28 km north of Gunnedah in the north east of NSW. Rocglen Mine is one of three open cut coal mines operated by subsidiaries of WCL (collectively, "the Gunnedah Operations"). The other two mines comprising the Gunnedah Operations are Tarrawonga Coal Mine ("Tarrawonga") and Werris Creek Coal Mine ("Werris Creek").
2. WCM is the holder of EPL 12870 in respect of Rocglen Mine. The scheduled activities on the EPL are coals works (0 - 2,000,000 tonnes annual handling capacity) and mining for coal (greater than 50,000 - 2,000,000 tonnes annual production capacity).
3. The licensed activity includes the removal of the material overlaying a coal seam ("overburden") to enable the mining of coal seams beneath. The removal of the overburden involves the use of explosives.
4. The process of preparing an area of overburden for explosion and exploding it through the detonation of explosives is referred to as drilling and blasting. Each drill and blast event is usually conducted by a drill and blast crew under the supervision of a drill and blast engineer.
5. Following blasting, the overburden is loaded by an excavator into a truck and removed. The coal is then mined, stockpiled and transported by road to a coal handling preparation plant in Gunnedah (which is also owned and operated by WCM), where it is processed prior to being loaded for transportation to the Port of Newcastle.
6. Associated activities such as pit dewatering, water storage and rehabilitation works are also undertaken at Rocglen Mine. WCM is authorised to produce up to 1.5 million tonnes of run of mine coal from Rocglen Mine every calendar year.

Personnel Involved in the Blast Incident

1. At the time of the blast incident, the General Manager of the Gunnedah Operations, including Rocglen Mine, Mr Nigel Wood, reported and communicated daily with Mr Jamie Frankcombe, the Chief Operating Officer of WCL.
2. The day to day operations of Rocglen Mine (including the management of health, safety and environmental issues) were overseen by the Operations Manager, Mr Jason Conomos. Mr Conomos reported to Mr Wood on a weekly basis.
3. The other relevant personnel of WCM involved in the blast were as follows: 1. Mr Graham Cope - WCL's drill and blast engineer, and drill and blast manager. His principal duties (which extended to Rocglen Mine) included designing blasts and ordering the required explosives from the explosive supplier, Low Density Explosives Corporation Australia ("LDE"). Mr G Cope has held a blasting explosives user licence (shot-firers certificate) since the mid-1980s and has been designing blasts since the late 1990s. He has 30 years of experience in the mining industry. At the time of the blast incident, Mr G Cope was also the supervising drill and blast engineer for Werris Creek and Tarrawonga; 2. Mr Paul Wicks - who was employed by WCM as an operator and a shot-firer for Rocglen Mine and Tarrawonga. He was the senior shot-firer of the blast. The other shot-firers for the blast were Mr Jamie Southwood and Mr Jeremy McKay; 3. Mr Alvin Cope - who was employed by WCM as a shot-firer for Rocglen and Tarrawonga Mines. He was also involved in the blast incident as supervisor to Mr Wicks. Mr A Cope also worked for WCM as a Step Up. Mr A Cope's role as Step Up involved managing the people that were involved in a blast, however, this role did not relate to the blast design or technical advice. Mr A Cope had around 30 years of experience working as a shot-firer in the NSW mining industry; and 4. Ms Madeline Whitten - Rocglen Mine's Environmental Graduate who reported to Mr Conomos. Ms Whitten was present at the time of the blast. Her duties included monitoring environmental conditions prior to the shot being fired (including wind conditions), completing an environmental blast checklist, providing environmental information to the Operations Manager, and participating in monitoring and assessing any fume cloud.
4. At the time of the blast Ms Whitten was positioned on Wean Road with Mr Conomos and Mr G Cope. Ms Whitten took photographs of the blast (including the fume) and completed the environmental blast checklist.

Policies and Procedures in Effect at the Time of the Blast Incident

1. Blasting occurs at Rocglen Mine approximately three to four times per month. Blasting operations at Rocglen Mine are the subject of a number of management plans some of which, pursuant to the terms of the mines overall planning approval, required approval from the Department of Industry Division of Resources and Energy.
2. The principal plans and operating procedures relating to blasting activities in place at Rocglen Mine at the time of the blast incident were: 1. the WCM Blast Management Plan, dated 17 February 2016 ("the Blast Management Plan"); 2. the Rocglen Coal Mine Blast Fume Management Procedure, revised on 12 February 2015 ("the Blast Fume Management Procedure"); 3. the Whitehaven Coal Procedure - Blasting Clearance and Firing, revised on 12 December 2014 ("the Blasting Clearance and Firing Procedure"); 4. the Whitehaven Coal Procedure - Loading and Stemming Blast Holes, revised on 12 December 2014 ("the Loading and Stemming Blast Holes Procedure"); and 5. the Whitehaven Coal Procedure - Planning Design and Record Keeping, revised on 12 December 2014 ("the Planning Design and Record Keeping Procedure").
3. The Blast Management Plan and the Blast Fume Management Procedure are plans specific to Rocglen Mine, whereas the other plans listed above are applicable to all of WCL's operations. The Blast Management Plan is required to be prepared to the satisfaction of the Secretary of the Department of Planning and Environment ("the Department") pursuant to condition 12 in Schedule 3 of the Project Approval 10_0015 for Rocglen Mine ("the project approval").
4. Condition 12 of the project approval relevantly stated that: The Proponent shall prepare and implement a blast Management Plan for the project to the satisfaction of the Secretary. This plan must: (a) be prepared in consultation with the EPA, and submitted to the Secretary for approval by the end of December 2011; (b) describe the measures that would be implemented to ensure compliance with the relevant conditions of this approval; and (c) include a blast monitoring program to evaluate the performance of the project.
5. The above plans incorporated and referenced the Australian Explosives Industry and Safety Group Inc Code of Practice - Prevention and Management of Blast Generated NOx Gases in Surface Blasting ("the AEISG Code"). At the time of the blast incident, WCM was aware of the existence of and had regard to the AEISG Code as the relevant practice standards for Australia and New Zealand.

Policies and Procedures Relevant to the Blast Design

1. The general area to be blasted within Rocglen Mine (including the precise location within the mine pit, the blast size and general timing) was determined by the overall works schedule for Rocglen Mine, and was usually coordinated by Mr Conomos. This level of planning involved input from mining engineers, geologists and personnel involved in logistics and business planning.
2. Once the area to be blasted was identified at Rocglen Mine, the design of the individual blast ("the blast design") was undertaken by the drill and blast engineer.
3. Generally speaking, the blast design involved the following first steps: 1. the identification of an appropriate location, burden and spacing, depth of the holes drilled into the area to be blasted; 2. the nomination of the burden; 3. the choice of explosives; 4. the creation of a shot pattern (a map marking out the features outlined in (a)); and 5. consideration of previous blasts (including similar geology, entry levels and fume, noise and vibration).
4. The drill and blast engineer then provided the blast design for review to both the Mine Operations Manager and Operations Manager. The blast design was prepared in the form of both an electronic copy, which was usually saved on the computer of the drill and blast engineer, and a hardcopy which was placed in the blast pack for each individual blast.
5. The shot pattern (or drill pattern) was provided to the shot drillers so they could drill holes in the bench (the surface of the area to be blasted into which explosives could subsequently be loaded).
6. The drilling instructions could additionally include a requirement for the drillers to drill deeper in some locations, or after a certain number of holes, in order to assist in confirming the geological model for Rocglen Mine.
7. The drill and blast engineer was also involved in planning for the loading of the shot pattern. In addition to prescribing which type of explosive was to be used, the drill and blast engineer's design would include: 1. the quantity of explosive to be used in each individual hole; 2. the powder factor of the blast; 3. whether gas bags need to be used (a gas bag is a pressurised bag used to control the height at which explosives and stemming are placed in individual drilled holes); 4. the amount of stemming to be used (material placed in the drilled holes over the explosives); and 5. the method, timing, and sequence, of the ignition process used in the blast.

The Relevant Consultation Processes between Drillers, Shot-firers and Blast Engineers When Blast Holes Are Drilled

1. If ground conditions encountered when drilling are different from the expected geological model, the drill and blast engineer consult with the shot-firers about the information collected from drilled blast holes in order to consider whether the blast design required changes (for example, whether the ground condition, or condition of the drilled holes, require that changes be made to the type or quantity of explosive).
2. Information regarding the ground conditions is captured by the drillers in drill logs. WCM's processes required the drill and blast engineer to review the drill logs containing information about the holes. However, it was not uncommon for the shot-firer not to see the drill logs prior to a blast.

Assessment of the Blast Holes Prior to the Loading of Explosives

1. After the individual blast holes had been drilled, but prior to explosives being loaded, the individual blast holes were dipped by the shot-firer. The dipping process employed at Rocglen Mine was to use a weighted tape measure to measure various characteristics of each drilled hole, namely: 1. the depth of the hole that existed post drilling (to ensure that the hole has been drilled to the correct depth or to ensure that any change in depth could be factored into the design of the blast); 2. if there was water or mud in any of the holes, and if so how much; and 3. the condition of the walls of the holes (whether, for example, the hole had wet or damp walls).
2. Following the assessment of the drilled holes, explosives were loaded and the drilled holes were stemmed and wired for detonation.

Supply of Explosives for Rocglen Mine

1. Because Rocglen Mine did not have an explosives storage facility, explosives were transported to Rocglen Mine directly from LDE's supply sources at Blackwater in Queensland or Kooragang Island near Newcastle, in advance of each blast.
2. Bulk explosives for each blast ordered by WCM were brought to Rocglen Mine in LDE's tankers or trucks and the raw explosive product was then loaded into LDE's MMUs operated by LDE staff, which enabled the mixing of the explosives at Rocglen Mine.
3. The MMU was driven to the area of the bench where drill holes were to be filled. A computer system was used to program the type and quantity of explosive to be delivered. The explosive was then fed from the MMU into each blast hole, which was then stemmed by the shot-firers.
4. Under the arrangement between WCM and LDE, WCM paid demurrage in the event that: 1. trucks loaded with LDE explosives were returned with explosives unused; or 2. unloading of explosives from trucks was delayed and turnaround times were extended.
5. The standard practice at Rocglen Mine was for explosives to be ordered the week prior to a blast occurring, usually on the Thursday of that week.
6. LDE's MMU operators were advised by WCM's shot-firers of what mixture of explosive products were required and in what quantities (depending on the bulk materials supplied and present at Rocglen Mine).
7. Once on the bench, the shot-firer provided instructions to the LDE operator and the LDE operator then augured explosives into each drilled hole as instructed by the WCM shot-firer.
8. Mr Rock, who was ordinarily based in Gunnedah, was available on request to travel to Rocglen Mine to provide technical information to the shot-firer.
9. LDE also produced a number of technical data sheets for their explosive products including heavy ammonium nitrate fuel oil ("ANFO") products, XLoad products, and GPE70 products. The technical data sheets for these products were held by WCM at the time of the blast incident.
10. LDE has been supplying WCL's operations with explosives since 2014, and WCL have knowledge of, and experience in, the use of all of LDEs explosives products across all of its sites, including at Rocglen Mine.
11. Mr G Cope and Mr Wicks were provided with technical information regarding LDE's explosive products, including HiDex, GPE70 and XLoad products, and had seen the technical data sheets for those products.

The Original Blast Design

1. The original blast design for the blast prescribed that dry holes were to be loaded with HiDex 100, dewatered holes were to be loaded with XLoad 100, and that wet holes were to be loaded with GPE70. The blast was originally designed by Mr G Cope.
2. At 6.40am on 4 August 2016, Mr G Cope placed an order to LDE for the explosives required for the following week for Rocglen Mine. It included an order for products for other blasts at Rocglen Mine.
3. The order consisted of the following products: 1. 8 August 2016 - 100 tonnes of HiDex 100 and 20 tonnes of XLoad 100, and 20 tonnes of GPE70; 2. 9 August 2016 - 80 tonnes of HiDex 100; 3. 10 August 2016 - 160 tonnes of HiDex 100; 4. 11 August 2016 - 12 tonnes of GPE70 and 40 tonnes of HiDex 100; and 5. 12 August 2016 - 100 tonnes of HiDex 110.
4. It was intended to have HiDex, XLoad and GPE70 explosives all available for loading the blast on 8 August 2016.
5. The original proposed design prescribed the use of XLoad in dewatered holes.
6. The drill and blast engineer, Mr G Cope, had an expectation that the shot-firer would load XLoad if dewatering of the holes occurred.

Change to the Order

1. On 5 August 2016 at 12:56pm, Mr McDonald sent an email to Mr Andrew Gill, LDE's Operations Coordinator, which said: I just finished speaking with Alvin. He said that we will be running with HiDex product for Monday at Rocglen, so we won't need the poly trailer or mineral oil.
2. On 5 August 2016 at 2.38pm, Mr G Cope emailed LDE and indicated that WCM required the ability to load hybrid XLoad explosives on 8 August 2018, and also required technical support to do so.
3. On 5 August 2016 at 5:14pm, LDE advised Mr G Cope by email that LDE would not be able to supply mineral oil on 8 August 2016, and therefore, would be unable to supply its XLoad product until the following day on 9 August 2016, and that the delivery time would not be known until the 8 August 2016.
4. Had WCM changed back to the use of explosives incorporated in to the original blast design and used XLoad and GPE70 in the blast, LDE could have supplied the explosives but this would have resulted in delaying the commencement of loading and subsequent firing of the blast by one day.
5. When formally interviewed on 15 February 2017, Mr G Cope stated that he was satisfied that HiDex 120 was a suitable product to be used as a replacement for HiDex 100 in the blast design.

Postponement of the Blast Due to Wet Weather Conditions

1. In the weeks preceding the blast there were a number of rain events at Rocglen Mine as follows: 1. 20 July 2016 - 11mm; 2. 21 July 2016 - 17.4mm; 3. 22 July 2016 - 0.2mm; 4. 2 August 2016 - 13.6 mm; 5. 3 August 2016 - 45.4 mm (68mm was recorded at an admin gauge); and 6. 8 August 2016 - 0.2mm.
2. The blast was originally to take place on 4 August 2016, however, the drill and blast engineer decided to postpone the shot due to rain events that occurred during 2 to 4 August 2016.
3. The blast was postponed on 8 August 2016, and again on 9 August 2016.

WCM Undertook Dewatering of the Blast Holes and Loading of Explosives

1. Drilling of the blast pattern (the pattern of individual drilled holes into which explosives are loaded) commenced on 22 July 2016, however, due to wet weather conditions, initial drilling was delayed.
2. WCM was aware from past experience that the area to be blasted included areas with soft ground conditions. This was confirmed when the holes for the blast were drilled.
3. WCM was aware that weak or soft ground conditions were a factor, amongst others, that could contribute to NOx fume generation.
4. Following drilling, holes were initially dipped on 3, 4 and 5 August 2016. Holes that had not yet been drilled were dipped prior to the loading of explosives the following week (between 8 and 10 August 2016).
5. When the holes for the blast were drilled it was recorded that drillers encountered water. Water was encountered at depths deeper than the 12m design level. Records of encountering water during drilling are different from encountering water when holes are dipped.
6. The blast report for the blast recorded that 90% of holes were wet holes. When interviewed, Mr Wicks indicated that the reference to "wet holes" on the blast report did not mean that the drill hole had standing water in it, rather that the hole had wet or damp walls. This was indicated by the presence of mud on the tape that was used to dip the hole. Mr Wicks stated that only some holes were found to contain standing water. As a result, a number of holes were required to be, and were, dewatered. Dewatered holes were then checked for groundwater recharge 24 hours later by being dipped prior to being loaded with explosive product. The dipping of dewatered holes indicated that no groundwater recharge had occurred in those holes.
7. A number of holes on the western side of the shot were required to be dewatered. When holes were dewatered the ground beside the hole was marked with paint. Holes that were dewatered on 8 and 9 August 2016 were dipped again the following day prior to the loading of explosive product.
8. If a hole was dipped more than once, the results of the dipping were not recorded if nothing had changed since the initial dipping.
9. Following the rain which occurred on 6 and 7 August 2016, a clean-up process occurred on 8 August 2016, so that the area of the shot would be accessible for loading of explosives by LDE's MMU vehicles. The weather station did not record any rain on 6 August 2016 or 7 August 2016, however, it did record 0.2 mm of rain in the early morning of 8 August 2016.

Inspections of the Drilled Holes

1. After the drilled holes had been loaded and stemmed, but before the blast was fired, Mr A Cope inspected the bench or walked the shot. He was concerned at the fact that slumping had occurred at a couple of holes and he conveyed this to the shot-firer, Mr Wicks.
2. Slumping of a loaded and stemmed hole can be an indication of a number of different factors: 1. failure or leakage of a gas bag; 2. explosive product seeping into cracks; 3. dynamic water in holes; 4. rainfall on a sleeping shot; 5. collapse of the hole; or 6. disintegration of the explosive product.
3. Mr Wicks walked the shot after Mr A Cope and noticed three or four holes that had settled, possibly owing to gas bags in the holes having given way, which Mr Wicks "kicked in" by kicking the stemming back on top of the holes.
4. Gas bags were installed in the holes above the explosive product and below the stemming material in order to create an air deck.

Steps Undertaken Prior to the Blast

1. Prior to the blast being fired, a blast exclusion zone was identified at Rocglen Mine. A number of WCM's staff were positioned as sentries on Wean Road outside of Rocglen Mine. One sentry was positioned to the north of the blast, at the intersection of Wean Road and Jaeger Lane, to stop any traffic travelling south on Wean Road or west on Jaeger Lane from entering the blast exclusion zone. Another sentry, the Mines Operations Manager, was positioned to the south of the blast on Wean Road, around 100m outside the blast exclusion zone, to stop any traffic travelling north on Wean Road from entering the blast exclusion zone. Ms Whitten and Mr G Cope were standing at the same location at the time of the blast. A third sentry was positioned to the west of the mine pit in the Vickery Forest to stop any persons travelling from the forest into the blast exclusion zone.
2. A number of the staff positioned as sentries outside Rocglen Mine were not informed of the possibility of fume generation.

The Blast Incident and Its Aftermath

1. At approximately 12:00pm on 10 August 2016, WCM fired blast RG16_0713_RL240 at Rocglen Mine which generated a blast fume cloud containing NOx gases.
2. As stated above, drilling of the blast pattern for the blast commenced on 22 July 2016. The explosives used in the blast were loaded into drill holes over a three-day period from 8 to 10 August 2016. The blast was fired on day three, namely, 10 August 2016. The longest period of time any of the explosive products were in the drill holes was approximately 54 hours.
3. As could be seen in two videos of the blast played to the Court, the blast resulted in the generation of a post-blast fume cloud. Within the mine pit the fume initially migrated towards the south and then hit the pit's high wall. After rising from the mine pit, the blast fume moved in a generally easterly direction, progressively moving higher and decreasing in density. It crossed Wean Road which forms the eastern boundary of the licensed premises.
4. The blast fume, as depicted in photographs and the videos, moved across the paddock of a neighbouring private property where some work sheds were located. Sentries were located on Wean Road in order to exclude persons travelling on Wean Road from entering the blast exclusion zone. The blast fume continued to move in a generally easterly direction away from the neighbouring private property towards hills that are located on land owned by WCM, where the visible fume cloud ultimately disappeared. The land on which the fume finally dissipated is owned by WCM.
5. On 10 August 2016 WCM self-reported the fume event to the: 1. Environment Protection Authority ("the EPA"); 2. Public Health Unit - Tamworth; 3. SafeWork NSW; 4. Gunnedah Shire Council; 5. NSW Fire and Rescue; and 6. Department.
6. No complaints from any members of the public were received by WCM in relation to the blast or the fumes generated from the blast.
7. WCM undertook an internal investigation into the fume event known as an "Incident Cause Analyst Method Investigation" ("the ICAM investigation"). The participants involved in the ICAM investigation into the blast incident were as follows: 1. the WCM Rocglen Safety and Training Coordinator, acting as a facilitator; 2. Mr Conomos; 3. a Senior Mining Engineer at WCM; 4. Mr G Cope; 5. Mr Wicks; 6. Mr A Cope; 7. Ms Whitten; 8. Mr Parsons; 9. Mr Rock; and 10. an Graduate Engineer working at LDE.

Impact of the NOx Gases

1. NOx fume or NOx gases are gases that are often formed as a by-product of the incomplete detonation of ammonium nitrate-based explosives, including bulk industrial explosives such as ammonium nitrate fuel oil with emulsion (or Heavy ANFO).
2. NOx gases are oxides of nitrogen and largely comprised a mixture of colourless nitric oxide ("NO"), and yellow and red coloured nitrogen dioxide ("NO2").
3. When ANFO is exposed to water it will break down because it is water soluble. By contrast, Heavy ANFO (the explosive product used in the blast) contains an emulsion product which itself is highly water resistant and will coat the prill and provide protection from water damage if present in a sufficient ratio.
4. Prior to the blast incident, WCM was aware that a cause of NOx fume production was the degradation of ammonium nitrate based explosives as a consequence of water ingress.
5. The degree of water degradation protection in the Heavy ANFO explosive products is related to the amount of emulsion in the product (that is, the higher the emulsion content the higher the water resistance).
6. Another potential cause of NOx fume is a less than optimal detonation of the explosive due to soft ground conditions. A higher emulsion ANFO explosive, such as Heavy ANFO, has a higher velocity of detonation. In soft ground where the detonation is less confined or contained, the explosive product expands more rapidly which in turn can lead to less complete detonation and fume production.
7. The AEISG Code includes a scale which is used across the industry to identify and rate post-blast NOx gases using a scale from 1A to 5C (where 1A signifies the lowest intensity and 5C is the highest intensity).
8. The blast viewed from the pit was consistent with either a 3B or a 4B rating.
9. NOx gases created by the use of industrial explosives can be influenced by a number of factors including: 1. blast design and explosive selection; 2. geological and hydrological conditions; 3. blasting practices, including dewatering and charging/loading of the individual blast holes; 4. contamination of explosives once loaded; and 5. explosive formulation.
10. Blast detonation at mines is a series of complex and interrelated chemical reactions that have different end points. If the post detonation temperature is not sufficiently high, then some of these reactions are effectively quenched leading to unwanted products including NOx. In addition to those listed above, factors that can influence the detonation reaction of a properly formulated explosive include, but are not limited to, rock type, rock structure, rock hardness, rock strength, jointing, cracking, damage from previous blasts, charge diameter, charge depth, water content of the explosive, water in the rock mass, groundwater, shock waves from previously detonating charges, product density, product delivery methods, initiation systems, and primers.

Impact of the Blast Fumes on the Environment and on the Neighbouring Property

1. The blast incident occurred approximately 200m from the boundary of a private property ("the Belmont property"). The blast created a NOx fume cloud which moved in a generally easterly direction and beyond the boundary of Rocglen Mine and moved across a public road, Wean Road, before entering the Belmont property.
2. As the fume cloud progressively moved eastward, it rose in height and its density reduced. The fume cloud continued to move in a generally easterly direction onto property owned by WCM where it disappeared approximately 15 minutes after the blast.
3. The blast fume was reportable to the EPA under s 148 of the POEOA and condition O4.1 of the EPL because it moved beyond the boundary of the licensed premises. The blast fume was also reportable to the Department in accordance with section 4.3(3) of the Blast Fume Management Plan because it moved beyond the project approval boundary. WCM complied with both of these reporting requirements.
4. The worst of the fume was generated from the area of the blast that was the last to be drilled where only some dewatering occurred.
5. Mr Ronald Rennick is the owner and occupier of three farming properties located in the vicinity of Rocglen Mine. They are the Belmont property, the Rosebery property and the Glenrock property. Mr Gary Rennick is the son of Mr R Rennick. Mr G Rennick is an electrician based in Gunnedah who sometimes undertook work at the Belmont property.
6. Mr R Rennick was 82 years of age at the time of the blast incident. On the Belmont property were a number of work sheds. The work sheds include a shearing shed, a hay shed, a workshop, a machinery shed, a utility shed and a lunch room. Mr R Rennick attends the sheds every day. The work sheds are approximately 800m from the licensed premises.
7. The work sheds on the Belmont property can be accessed by a lockable gate on Wean Road or by internal access lanes from within Mr R Rennick's other properties. Mr R Rennick ordinarily accesses the sheds by the internal access lane.
8. The Belmont property, the Rosebery property and the Glenrock property are used for grazing sheep and cattle all year. Combined, the three properties have a total area of approximately 2,000 acres. Sheep and cattle are moved around the properties on a rotational basis.

WCM Agrees that the Licensed Activity Was Carried Out in a Less than Competent Manner

1. WCM agreed that that the licensed activity was carried out in a less than competent manner for the following reasons. First, WCM had failed to undertake a written risk assessment prior to conducting the blast.
2. Second, WCM had failed to adopt a different explosive product, despite being aware of factors such as the softness of the ground, the wetness of ground conditions, whether holes were required to be dewatered, and whether gas bags were used in drilled holes.
3. They were aware that there were a number of drilled holes which contained standing water which required dewatering.
4. Dewatered holes were dipped 24 hours later, prior to loading, to ascertain whether there had been any groundwater recharge. Dipping of dewatered holes did not identify any significant groundwater recharge. Some mud was noted at the bottom of some holes. Gas bags were placed above the mud to isolate the product from the mud.
5. HiDex 110 was loaded into dry holes and HiDex 120 was the explosive loaded into all other holes.
6. WCM's direction that HiDex 120 be loaded by LDE into dewatered holes, and holes with no standing water but with wet or damp walls, was in conformity with the Loading and Stemming Blast Holes Procedure which stated that: Low density heavy ANFOs with emulsion content less than 30% and ANFO should only be loaded into dewatered blast holes that have had time to dry out (where there is no recharge). These products can also be loaded above water, using a gas bag to seal the hole, as long as recharge is not taking place higher up the water column.
7. WCM placed two gas bags in most drilled holes. A total of 600 gas bags were used in the blast. Where mud or water was detected in the bottom of a hole as a result of dipping, a gas bag was placed at the bottom of the hole and the explosive product was then loaded on top of it. A gas bag was placed around one metre above the top of the HiDex 120 as an air deck.
8. A gas bag when placed in a drilled hole prior to explosive product being loaded ensures that the explosive product is isolated from water in the bottom of the hole and prevent the explosive product from interacting with the water.
9. The use of XLoad would have reduced to the greatest extent the risk of blast fume generation in the prevailing conditions. Therefore, in using an explosive that did not reduce to the greatest extent the risk of blast fume generation in the conditions, WCM carried out the scheduled activity in a less than competent manner.

Evidence of Mr Frankcombe

1. Mr Frankcombe, the Chief Operating Officer, gave evidence on behalf of WCM. He acknowledged that WCM is a wholly owned subsidiary of WCL, a company listed on the Australian Stock Exchange. Mr Frankcombe has responsibility for Rocglen Mine.
2. In his affidavit, Mr Frankcombe acknowledged that WCM was responsible for the fume event and apologised for it. He noted that the mine had been operating since 2008 and that there had been 335 blasts at the mine. He further noted that WCM promptly notified the blast to the EPA and the Department and that WCM has subsequently taken steps to minimise the likelihood of a fume event recurring at the mine. These steps were outlined in detail in his affidavit. They included the retention of experts to provide advice, the relocation of the mine's weather station, reviewing and modifying the Blast Management Plan, and the provision of additional training to those involved in blasting.
3. Mr Frankcombe also detailed the various ways in which WCM has engaged and participated in community activities in the Gunnedah region.
4. The EPA relied on parts of a record of interview with Mr Frankcombe dated 4 May 2017, to cross-examine Mr Frankcombe. He was cross-examined in an attempt to elicit a concession to the effect that WCM did not accept that it had done anything wrong in selecting the explosive product used on the day in question. Presumably this was in order to found a submission that the Court should not afford full weight to the expression of contrition given by Mr Frankcombe on behalf of WCM.
5. However, as Mr Frankcombe reiterated orally, he, and therefore WCM, wholly accepted that, given the benefit of hindsight, the benefit of fulsome investigations, and the benefit of expert advice, a different available explosive product ought to have been selected to reduce to the greatest extent possible the potential risk of a fume event occurring. Having said this, given the knowledge and experience of WCM at the time of the commission of the offence (including technical data sheets for Heavy ANFO and common industry usage), the selection and use of Heavy ANFO that day was not necessarily wrong.
6. To the extent that the EPA sought to cross-examine Mr Frankcombe on the differences between the written procedures in place at the time of the commission of the offence and the present written procedures in place for blasting, in my view, this merely emphasised the extent to which WCM had learned from the blast incident and had taken steps to improve its internal processes.

The Purposes of Sentencing

1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

Statutory Matters Required to be Taken into Account in Sentencing

1. The POEOA sets out the matters which are to be taken into account when sentencing for offences committed under that Act. Section 241(1) and (2) of the POEOA provides that: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.
2. Sections 21A(2) and (3) of the CSPA also set out aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case they are as follows: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender is a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offenders age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23),

Objective Circumstances

1. The objective gravity of the offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not 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 The Queen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not 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 and R v Nichols (1991) 57 A Crim R 391 at 395).
2. The objective seriousness is to be determined by reference to the nature of the offence and not by reference to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).
3. In determining the objective seriousness or gravity of the offence the relevant objective circumstances include, the nature of the offence, the maximum penalty under the Act establishing the offence, the reasons for committing the offence, the environmental harm caused by the commission of the offence, the foreseeability of the risk of environmental harm caused by the commission of the offence, the practical measures to prevent any environmental harm caused by the commission of the offence, WCM's control over the causes giving rise to the offence, and WCM's state of mind in committing the offence.

Nature of the Offence

1. The objective seriousness of an environmental offence is illuminated by the nature of the statutory provision creating the offence and its place in the statutory scheme. A proper understanding of the underlying purpose of offence is assisted by consideration of the objects of the statute. A fundamental consideration is the degree to which the WCM's conduct offends against the legislative objective expressed in the offence (Environment Protection Authority v Hanna [2018] NSWLEC 80 at [97]; Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 at 242-246; Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49]).
2. The relevant objects of the POEOA identify the purpose of the offence as follows: 3 Objects of Act The objects of this Act are as follows: (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, … (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection…
3. The offence of contravening a condition of an EPL is one of strict liability. In Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 the Court held that strict compliance with the conditions of any EPL is necessary to ensure that the objectives of the POEOA are met (at [104]).
4. The condition that was contravened required the licensed activities to be carried out in a competent manner. This condition was imposed to ensure that WCM carried out its business in accordance with a standard that reflects the environmental risks accompanying its licenced activities.

Maximum Penalty

1. The maximum penalty reflects the public expression by the New South Wales Parliament of the seriousness of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Muldrock at [31]). It also provides a sentencing yardstick for the case before the Court (Markarian at [31] and Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]).
2. While the maximum penalty is of significance in determining the objective seriousness of the offence (Rawson at [57]), it is it is only one of a number of factors that has bearing on the Court's assessment of the seriousness of the offence. In Elias, French CJ, Hayne, Kiefel, Bell and Keane JJ stated (at [27]): 27. The maximum penalty is one of many factors that bear on the ultimate discretionary determination of the sentence for the offence…The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted.
3. The maximum penalty for an offence against s 64(1) of the POEOA by a corporation is $1,000,000.

WCM's State of Mind

1. An offender's state of mind is a permissible sentencing consideration in respect of an offence committed in contravention of s 64 of the POEOA. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally (Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [122]).
2. There was no evidence before the Court demonstrating that WCM committed the offence intentionally, recklessly or negligently.

WCM's Reasons for Committing the Offence

1. The criminality involved in the commission of the offence by WCM is measured not only by the seriousness of what actually occurred, but also by reference to the reasons for its occurrence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley at [237]).
2. There was no evidence demonstrating that WCM committed the offence for commercial gain thereby aggravating the seriousness of its offending.

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offence

1. Section 241(1)(a) of the POEOA requires the Court to take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offence. "Harm" is defined in the Dictionary to the POEOA as: harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
2. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Preston J stated that harm includes both actual harm and potential harm (at [145]-[149]): 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: Camilleris 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 offenders 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].

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offence

1. Section 241(c) of the POEOA requires the Court to have regard to the extent to which the person who committed the offence could reasonably have foreseen the harm caused, or likely to be caused, to the environment. In Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 Craig J remarked that "the holder of an environment protection licence is clearly on notice of the possibility of harm to the environment occasioned by any of the activities which it carries out on the site to which that licence relates" (at [81]).
2. Foresight of the possibility of environmental harm increases where, as in this case, an EPL holder such as WCM used an explosive that did not reduce to the greatest extent the risk of blast fume generation in the conditions, overloaded holes, and failed to notify adjoining land holders when potentially dangerous fumes traversed onto their property.
3. WCM conceded that the potential for a blast fume to be generated and the consequential potential for environmental harm associated with the generation of a blast fume was reasonably foreseeable in the circumstances of this case.

Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm

1. In determining the objective seriousness of the offence it is appropriate to have regard to the precautions that were taken by an offender, as well as the practical measures that could have been taken by an offender to avoid incidents that resulted in environmental harm (s 241(1)(b) of the POEOA).
2. WCM accepts that it could, and should, have taken practical measures to reduce to the greatest extent possible the risk of the blast fume being generated and migrating offsite and reduced the potential for any consequential harm. To identify the practical measures which WCM should have taken regard may be had to the agreed position as to the respects in which WCM did not carry out the licenced activities in a competent manner.
3. WCM should have used an explosive which reduced to the greatest extent possible the risk of a blast fume being generated, namely, LDE's XLoad product, as distinct from the Heavy ANFO product which it used. Having said this, the Heavy ANFO explosive product which was used was, according to LDE's specifications, suitable for use in the conditions which prevailed, namely, where holes had been dewatered. In other words, this was not a case where a product was used otherwise than in accordance with the manufacturer's specifications.
4. Once it became evident that a blast fume had been generated, WCM should have immediately taken steps to try to contact Mr R Rennick to warn him of the existence and location of the blast fume to minimise any possibility of exposure to the fume.
5. In addition, while it was not a requirement of WCM's approved Blast Management Plan at the time, WCM could, and should, have carried out a written risk assessment and this may have reduced to the greatest extent possible the risk of the blast fume eventuating.
6. Finally, WCM accepts that it should not have overloaded 8.5% of the holes, although it must be acknowledged that there is only a speculative causal connection between that circumstance and the occurrence or intensity of the blast fume.

Control Over the Causes of the Commission of the Offence

1. At all times WCM had control of the blast, including its design and execution. Thus at all times it had control over the causes of the commission of the offence.

Conclusion on the Objective Seriousness of the Offence

1. Having regard to the factors above, I find that the offence was at the upper end of the lower range of seriousness for offences against s 64(1) of the POEOA (Waste Recycling and Processing Corp at [173]).
2. In so finding, I note that the offending is of a less serious nature, objectively, than the offending conduct attracting the penalties imposed in Environment Protection Authority v Hunter Valley Energy Coal Pty Ltd [2015] NSWLEC 120 and Environment Protection Authority v Wambo Coal Pty Ltd [2016] NSWLEC 125 (the facts of each are discussed below).

Subjective Circumstances of WCM

1. A proportionate sentence requires the Court to take into account any mitigating factors that are personal to the WCM (s 21A(3) of the CSPA). Relevant subjective circumstances include: 1. whether WCM has a prior criminal record (s 21A(3)(e) of the CSPA); 2. whether WCM is of good character (s 21A(3)(f) of the CSPA); 3. whether WCM has demonstrated remorse for the commission of the offences (s 21A(3)(i) of the CSPA); 4. whether, and when, WCM entered a guilty plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]); and 5. whether WCM provided assistance to the regulatory authorities in the investigation and prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA).

WCM Has No Prior Criminal Convictions

1. WCM has no record of previous convictions for environmental offences (s 21A(3)(e) of the CSPA). Although there was evidence before the Court of a penalty notice having been issued to WCM for an offence of "contravene any condition of licence relating to noise - corporation" on 21 February 2012, for which WCM was fined $1,500, it is not known under which Act this offence occurred, and moreover, the payment of a fine under a penalty notice is not a conviction. I therefore place no weight on the notice.

Contrition and Remorse

1. In his affidavit, Mr Frankcombe expressed regret for the blasting incident. WCM submitted that by its conduct, its apology, and its acknowledgement of responsibility, it had shown continuing remorse for the offence and has accepted responsibility for its actions.
2. I agree, despite suggestions by the EPA to the contrary. I find that there is sufficient evidence demonstrating WCM's genuine contrition and remorse (Waste Recycling and Processing Corp at [203] - [215]).

WCM Cooperated with the EPA's Investigation

1. WCM cooperated fully with, and provided assistance to, the EPA in its investigation of the offence (ss 21A(3)(m) and 23 of the CSPA). Relevantly, WCM agreed to the preparation of a comprehensive statement of agreed facts and ensured that its officers were available to assist with the EPA's investigation.

WCM's Guilty Plea

1. WCM pleaded guilty to the charge on 8 December 2017, which was the second or third (the evidence was not clear in this regard) mention date for the matter.
2. WCM submitted that its plea of guilty was entered at the earliest reasonable opportunity. As such, it was entitled to the full discount of 25% for the utilitarian value of its plea (R v Thompson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [152] and [160]).
3. By contrast, the EPA submitted that WCM had not entered its plea of guilty at the first available opportunity which had served to diminish the utilitarian value of the plea (Morton v R [2014] NSWCCA 8 at [32] - [35]).
4. The utilitarian value of a plea of guilty is not to be determined by recourse to some formulaic mathematical value directly dependent upon the number of times a defendant comes before a court prior to the entry of the plea (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [76]). In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 the plurality of the High Court said (per Gaudron, Gummow and Callinan JJ at [20] - [22], citations omitted): 20. The question whether it was possible for a person to plead at an earlier time is not one that is answered simply by looking at the charge sheet. As was acknowledged in Atholwood by Ipp J, in the Court of Criminal Appeal of Western Australia, the question is when it would first have been reasonable for a plea to be entered. 21. In Atholwood, the person concerned had been charged with several counts. After a process of negotiation, the prosecution withdrew a number of the charges and the offender pleaded guilty to one of the remaining charges. Ipp J said this: "It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts ... to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity". 22. The remarks of Ipp J in Atholwood reflect what has earlier been said in relation to the rationale for the rule that a plea may be taken into account in mitigation, namely, that, leaving aside remorse and acceptance of responsibility, the operative consideration is willingness to facilitate the course of justice. And once that rationale is accepted, the respondent's suggestion that the extent to which a plea of guilty may be taken into account in mitigation may vary according to whether it was or was not a "fast-track" plea must be rejected. Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity

The Weight to be Placed on the Good Character of WCM

1. Prior good character is a multi-faceted concept (Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 (at [27]): 27. As Gleeson CJ observed in R v Levi "[T]here is a certain ambiguity about the expression 'good character' [in the sentencing context]. Sometimes it refers only to an absence of prior convictions and has a rather negative significance, and sometimes it refers to something more of a positive nature involving or including a history of previous good works and contribution to the community."
2. Good character can refer to the absence of prior convictions and an offender otherwise not having previously engaged in other criminal conduct (Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [25]). It can also refer to a history of prior good works and contribution to the community (Ryan at [27]). Good character operates to reduce the sentence which the objective culpability of the offence would otherwise attract (Ryan at [174]).
3. There are generally two stages in using prior good character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. Second, it is necessary to determine the weight that must be given to that mitigating factor. The weight that must be given to an offender's otherwise good character will vary according to all the circumstances (Ryan at [23] and [25]). The weight to be given to prior good character can depend on the character of the offence committed (Ryan at [143]).
4. The EPA submitted that certain classes of offences are ones in which many, perhaps even most, offences are committed by persons who are not members of a criminal class or do not have criminal convictions (R v MacIntyre (1988) 38 A Crim R 135 at 139; R v Kennedy [2000] NSWCCA 527 at [21] and Ryan at [143]). For example, white collar and misconduct in public office offences are often committed by people whose absence of criminal history has enabled them to attain the position from which the offending occurred. Less weight is therefore properly accorded to prior good character in sentencing for such offences (Obeid v R (No 12) [2016] NSWSC 1815 at [94]).
5. However, no real assistance from the Obeid (No 12) may be derived in present case. That decision stands for a narrower proposition, namely, that in cases of corruption, including wilful misconduct in public office, where the need for general deterrence is especially strong, prior good character is to be afforded less weight than it otherwise would. In so concluding, the Supreme Court did not seek to rely on the circumstance (or perception) that most offences of that type were committed by persons with no prior convictions.

General and Specific Deterrence

1. The Court is required to take into account both specific and general deterrence. As the High Court stated in Walden v Hensler (1987) 163 CLR 561, "the chief purpose of the criminal law is to deter those who are tempted to breach its provisions" (at 569 per Brennan J).
2. With respect to specific deterrence, in his affidavit, Mr Frankcombe deposed that although mining operations (including blasting activities) are scheduled to cease at Rocglen Mine in June 2019, WCM intends to carry out four further ground blast exercises in 2019, and moreover, that the EPL will remain extant while WCM trades for another 18 months after June 2019 for the purposes of mine rehabilitation.
3. On this basis, as WCM accepted, with which I agree, that there is a need to take into account an element of specific deterrence in determining the appropriate sentence to be imposed.
4. The penalty imposed by the Court must serve as a general deterrent. Section 3A(b) of the CSPA provides that one of the purposes for which a Court may impose a sentence is to prevent crime by deterring the offender and other persons from committing similar offence. General deterrence is vital "to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences" (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [118]).
5. General deterrence plays a crucial function in sentencing (P & M Quality Small Goods at [87]). In Axer, Mahoney JA stated that "the legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure pollution does not occur" (at 359).
6. In relation to general deterrence: 1. offenders will not be deterred from committing environmental offences by the imposition of nominal fines (Bentley at [140] and Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 at [98]); and 2. a penalty for a breach must be sufficient to compel attention to the environmental issues to ensure that the offender, and others, are encouraged to comply with the law and that the environment is not exposed to risk of harm (Environment Protection Authority v Robinson [2004] NSWLEC 629 at [30] and Elf at [99]).
7. The Court accepts that embedded with the determination of the appropriate sentence to be imposed on WCM must be an element of general deterrence to ensure that other corporate EPL holders who engage in mining activities involving blasting, carry out these activities in a competent manner.

Retribution and Denunciation

1. Finally, it should be noted that the purposes of retribution and denunciation are also relevant. In particular, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offence and making WCM accountable for its actions.

Consistency in Sentencing

1. The task of the sentencing court is to pursue the ideal of even-handedness in the matter of sentencing (R v Oliver (1980) 7 A Crim R 174 at 177; R v Visconti [1982] 2 NSWLR 104 at 107). However, care must be taken in the task of achieving consistency. There is always difficulty comparing the penalty in one case with a penalty in another because of the wide divergence of facts and circumstances in each case (Axer at [365]), and one case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312 and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
2. The parties drew to the Court's attention two comparable cases concerning blast fume emissions, albeit occasioned by a breach of s 129(1) of the POEOA. First, in Wambo Coal a blast at Peabody Energy's Wambo Mine resulted in the emission of fume of a 3C rating which left the licensed premises and caused short term physical harm to six nearby residents and had the potential to harm children at a nearby childcare centre. Factors contributing to the blast fume generation included powder factor, water damage to some drill holes or cracks/cavities in some drill holes, and lack of confinement in some soft weathered material. Wambo received complaints from five members of the public in relation to the blast. Actual harm was caused to the health of six neighbouring residents who were exposed to the fume, but this harm was of limited duration and seriousness due to the generally short exposure times (at [38] and [72]). It was not anticipated that the affected residents would suffer any serious or long term health problems as a result of the incident (at [39]). However, the incident had the potential to impact other nearby residents including the children at the nearby childcare centre (at [40])
3. The Court found that the offender had general control over its blasting procedures and had followed the usual protocols in its blast management plan by utilising the meteorological station and weather balloons. However, the Court acknowledged the difficulties associated with wind prediction and considered that the offender should have been careful in monitoring any discrepancies between the two methods of measurement (at [91]). The Court held that the offence was at the lower end of the middle range of objective seriousness (at [96]). The offender had one previous conviction for an environmental offence involving the same form of conduct (at [102]). A fine of $60,000 (discounted from $90,000) was ordered. A publication order and an order for costs were made (at [170]);

WCM Agreed to Pay the EPA's Costs

1. WCM has agreed to pay the EPA's costs as agreed or assessed. Payment of the prosecutor's costs is a common aspect of sentencing for Class 5 proceedings. While it is legitimate to take into account any associated costs order in determining the appropriate penalty to be imposed (Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [100]), an order for costs is not a reason for reducing any penalty to an amount lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170 at [50]). Nevertheless if an offender agrees to pay the prosecution's costs voluntarily, this assistance may be recognised as a mitigating factor (ss 21A(3)(m) and 23 of the CSPA).

Publication Order

1. The EPA seeks a publication order pursuant to s 250(1)(a) of the POEOA. In Waste Recycling and Processing Corp Preston J noted that the Court had made publication orders in a number of cases. His Honour described their function as follows (at [242]): 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.
2. Because a publication order is made in addition to, rather than instead of, any penalty, it ought not be considered in determining the quantum of any monetary penalty to be imposed (Environment Protection Authority v Incitec Ltd [2003] NSWLEC 381; (2003) 131 LGERA 176 at [58]-[59]).
3. The parties agreed to the making of a publication order but there was a dispute as to its wording and reach. The EPA sought a publication order that extended to the WCL's company website and the WCL Annual Report. It relied on the decisions of this Court in Environment Protection Authority v Ardent Leisure Ltd [2018] NSWLEC 36 (where a notice was ordered to be published in six news publications) and Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 (where a notice was ordered to be published in three news publications). Also brought to the Court's attention (commendably by WCM) was the decision in Environment Protection Authority v Caltex Australia Petroleum Pty Ltd [2017] NSWLEC 8, where a publication order for a notice to be published in the company's annual report was made (at [112(3)]).
4. The reach of the publication order, particularly with respect to a notice being placed on WCL's website and in its annual report was strenuously resisted by WCM on the basis that this would amount to excessive punishment which was not warranted having regard to the objective seriousness of the commission of the offence and the subjective circumstances of WCM. It noted that both Ardent and Dyno concerned the pollution of waters where actual environmental harm occurred and the objective seriousness of the offences was much greater than that of the present case. WCM further noted that the monetary penalty in Dyno was set aside on appeal as manifestly excessive, however, it acknowledged that the publication order remained untouched (Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority [2017 NSWCCA 302 (at [63]). WCM drew the Court's specific attention to the comparable case of Hunter Valley Energy (the facts or which are discussed above) where, although a notice was ordered to be published in four news publications, no order was made that the notice be published on the company's website or in its annual report.

Appropriate Sentence

1. Having regard to the objective seriousness of the offence and the mitigating subjective factors of WCM, together with the sentences imposed in the relevant comparable cases referred to above, I consider that the appropriate penalty to be imposed for WCM's contravention is a fine of $55,000. This figure must be discounted by 30% having regard to the subjective circumstances of WCM, which results in a fine of $38,500.

Payment of Monetary Penalty Imposed to the Environmental Trust

1. Pursuant to s 250(1)(e) of the POEOA, the EPA seeks an order that any financial penalty imposed on WCM is made payable to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes.

Orders

1. The Court therefore makes the following orders: 1. WCM is convicted of the offence as charged against s 64(1) of the POEOA; 2. pursuant to s 250(1)(e) of the POEOA WCM is ordered to pay, within 28 days of this order, the amount of $38,500 to the Environmental Trust established under the Environmental Trust Act for environmental purposes; 3. WCM is, at its expense and within 28 days of the date of this order, to cause a notice in the form of Annexure 'A' to this order to be placed within the first 5 pages of the following publications, at a minimum size of 9 cm x 12 cm, pursuant to s 250(1)(a) of the POEOA: 1. The Sydney Morning Herald; 2. The Daily Telegraph; 3. The Australian Financial Review; and 4. The Northern Daily Leader. 1. WCM is, at its expense and within 28 days of the date of this order, to cause a notice in the form of Annexure 'A' to this order to be placed on the WCL company website under the "Company News" section, pursuant to s 250(1)(a) of the POEOA; 2. within 35 days of the date of this order, WCM must provide to the EPA a complete copy of the pages of the publications and website in which the notice appears referred to in Orders 3 and 4; 3. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986 WCM is to pay the EPA's legal costs as agreed or assessed; and 4. the exhibits are to be returned.

Annexure 'A' On 18 March 2019 Whitehaven Coal Mining Limited was convicted and fined $38,500 for a fume incident at Rocglen Mine near Gunnedah, New South Wales in 2016. Whitehaven Coal Mining Limited ("WCM") has been convicted and fined $38,500 by the Land and Environment Court of New South Wales of an offence against s 64 of the Protection of the Environment Operations Act 1997 for breaching a condition of its Environment Protection Licence ("EPL"), in that it failed to carry out its licenced activity in a competent manner. The charge related to a blast fume at WCM's Rocglen Mine at Gunnedah in the State's north east that left the mine site and passed over adjoining farmland on 10 August 2016. WCM conducted the blast using explosive products that did not reduce the risk of blast fume generation to the greatest possible extent, failed to undertake a written risk assessment prior to the blast, departed from provisions contained in its internal blast management plans, and some blast holes were overloaded with explosive. The blast resulted in a fume event. Such fumes typically include gases known as oxides of nitrogen (or NOx gases). The mixture of potentially harmful post-blast gases was carried from the mine site over neighbouring farmland which housed work sheds. WCM did not notify the neighbouring property that a fume cloud had left the mine. No persons or animals were exposed to the blast fume. Like all holders of an EPL issued by the Environment Protection Authority ("the EPA"), WCM was required to undertake its mining operations in a competent manner. It failed to do so. On 18 March 2019 the Land and Environment Court of New South Wales convicted WCM and ordered it to: (1) pay a monetary penalty of $38,500; (2) pay the EPA's legal costs; (3) place a notice in various national, State and regional news publications advising of the commission of the offence, and to pay for the placement of those notices; anD (4) place a notice on Whitehaven Coal Limited's (the parent company of WCM) website in the "Company News" section advising of WCM's commission of the offence.

Amendments 11 November 2019 - 1. citation added in full at [232]; 2. fixed formatting of bullet points at [255]; 3. added missing word, "who", at [256]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2019