State Pollution Control Commission v Metropolitan Collieries Limited

Division 2 of Part IIIA provides that a person may apply to the Commission for pollution control approval to do any thing specified in, inter alia, s 19(1)(a) of the Clean Waters Act or s 16(1)(a) or (b) of the Clean Air Act. Section 19(1)(a) of the Clean Waters Act forbids the installation, construction or modification of any apparatus etc, for the storage, treatment or disposal of matter of a prescribed class or the carrying out of any work that constitutes the beginning of such activities. Control equipment refers to any apparatus or device used or designed to prevent pollution of waters. Section 16 of the Clean Air Act forbids the occupier of scheduled premises from altering the method of operation or altering the type of materials etc in a manner that is likely to cause or increase air pollution or to carry out any work that constitutes the beginning of such a step except in accordance with the pollution control approval or in accordance with a Notice by the Commission under s 17 of the Clean Air Act. Se ction 20 of the Clean Waters Act imposes an obligation on occupiers of premises to maintain control equipment in an efficient condition and to operate the equipment in an efficient and proper manner.

On 1 January 1988 the Commission granted the Company an Air Licence and a Water Licence. The Licences came into force on 1 January 1988 and were each for one year (s 17E of the State Pollution Control Commission Act). Following upon a site inspection on 3 March 1988, the Commission gave a Notice dated 7 March 1988 that new conditions would be attached to the Water Licence. The relevant conditions were that:

clean water from the road and sealed car area does not enter the dirty water (5) A vegetated bund wall not less than two metres maintained from the top of the stockpile to (6) A minimum buffer of five metres shall be between the base of any coal or stockpile and any railway line or was received by the Company on 9 April as evidenced by the Company's date receipt stamp appearing on it. There is no receipt stamp appearing on the Notice which was produced from the Company's records. For reasons which I shall explain in due course, I am satisfied beyond reasonable doubt that the Company received the Notice given to it pursuant to s 17D(3)(c) on or about 9 March 1988. Although there is no provision in the State Pollution Control Commission Act for the time within which an appeal must be lodged to the Land and Environment Court against the Commission's decision, the provisions of the Land and Environment Court Act and the Rules of Court made thereunder have the effect that the time limit is 60 days. Upon that const ruction, the new conditions came into force on 9 May 1988.

On 18 May 1988, Mr Woodward, Mr O'Gorman and Mr Dover inspected the premises on behalf of the Commission and about six months later Company was charged with nine offences under the Clean Air Act, the Clean Waters Act and the State Pollution Control Commission Act.

The charges were heard together. The Company pleaded not guilty to all charges. Affidavit and oral evidence was presented by Mr Woodward and Mr O'Gorman on behalf of the Commission and by Mr Flemming, Mr Clarke and Mr Leventhal on behalf of the Company. On behalf of the Company it is submitted that I should view the evidence of Mr O'Gorman and Mr Woodward as unreliable and motivated by spite against the Company. On behalf of the Commission it is submitted that I should reject the evidence of Mr Flemming and Mr Clarke as untruthful. I mention at the outset that I have not formed the opinion that any of the witnesses were attempting to deceive the Court or that any made statements believing them to be untrue.

The Company is charged in terms that on or about 18 May 1988 in breaches of s 19(1)(b) of the Clean Waters Act it did "carry out work in connection with the modification of works at its premises at Park Street, Helensburgh, for the treatment of liquid wastes, arising in the course of a process or operation carried on in connection with a mine, by means of the use of a pond, other than in accordance with a pollution control approval ...".

The Company was proposing to extend its coal washery at the mine. It had received the consent of the Wollongong Council and as at 18 May 1988 the work had commenced. At that time, it was known by the Company that the Commission wanted a particular filter system to be installed. There were meetings between the Company and the Commission concerning this matter. Water from the washery is finally discharged into the filter bed pond which is the area for the final treatment of contaminated water before it is discharged into the creek. Building approval was issued by the Council on 16 May 1988 and as at 18 May 1988 the work had commenced.

Section 19 of the Clean Waters Act relevantly provides:

(a) install, construct or modify any apparatus, (i) the discharge of pollutants into any (ii) the treatment of pollutants prior to and the purpose of their discharge into (iii) the storage, treatment or disposal, in a manner or in prescribed prescribed (b) carry out any work that constitutes the of, or any subsequent step in, the of apparatus, equipment or works of the except in accordance with a pollution control under in cl 11A:

matter is stored, treated or disposed of in prescribed manner or circumstances if it of (i) the use of any lagoon, pond, irrigation (ii) ...

(b) matter is of a prescribed class or description it is liquid wastes arising in the course (i) any process or operation carried on in with any mine ..., coal I have said, it is not suggested that the washery works of themselves constituted a contravention of s 19. It is said, however, that what was undertaken was relevantly the "beginning of ... works of the nature referred to in paragraph (a)" because water from the washery, being "liquid wastes" in connection with "coal washery", was to be stored in the "pond". It is common ground that the "pond" itself was not being physically modified. The water from the modified washery would have eventually drained into the settlement pond. However, the only nexus between the "pond" and the "work", the subject of the charge, was that the water from the works drained into the pond. The circumstance that for the purpose of s 19(1)(a)(ii) matter is stored etc if it is stored or treated by means of, inter alia, a pond does not, in my opinion, permit a conclusion that in t he present case the washery was "apparatus, equipment or works for the storage, treatment or disposal of prescribed matter". If the Company had attempted to modify the pond without approval, it would have committed an offence because the pond was relevantly the apparatus, equipment or works for the storage, treatment or disposal of matter. It follows that the Company was not guilty of an offence under s 19(b) carrying out any work constituting the beginning of work referred to in s 19(1)(a)(iii) because had it completed the work the subject of the charge, ie the washery, it would not have been guilty of an offence under s 19.

The Company is charged that during the period 3 March 1988 to 18 May 1988 in breach of s 16(1)(a) of the Clean Air Act as an occupier of "scheduled premises" it altered its method of operation by creating an additional stockpile of coal at a nominated site. Section 16 of the Clean Air Act relevantly provides that:

(i) alter the method of operation of ... any trade, industry or process ...

by so doing he is likely to cause or is no issue that the subject premises are "scheduled premises". Furthermore, there is evidence that satisfies me beyond reasonable doubt that in the event that the stockpiling of coal was relevantly an alteration of the method of operation it was likely to cause or increase air pollution. However, the question for determination is whether I am satisfied beyond reasonable doubt that the stockpiling in question was relevantly an alteration in the method of operation of the industry or process then being undertaken.

Photographs tendered by the SPCC indicate that at some unnamed date in 1986 there was no material stockpiled in the nominated area although coal was stockpiled generally throughout the site. Mr Woodward has also said that there was no coal on the nominated area in early May 1988. Mr Clarke, on behalf of the Company, has said that the subject area was stockpiled on and off over a number of years and that in 1988 there was a small stockpile of coal. I accept Mr Clarke's evidence. I am satisfied beyond reasonable doubt that between March 1988 and May 1988 the quantity of material stockpiled at the site increased significantly. The question is, therefore, whether that increase represented "an alteration in the method of operation of the industry". The operation of the undertaking of the Company included the washing and storing of coal. Stockpile by their nature are sometimes high and sometimes low. The circumstance that for some time before the relevant date there may have been only a small amount of coal, or ind eed none at all, in the nominated area does not persuade me that the placing of coal in the quantity demonstrated by the photographs amounted to an alteration in the method of operation of the industry. Whether or not the use of a new area entirely for the stockpiling of coal which had previously been used for another purpose would amount to an alteration in the method of operation need not be determined. It is sufficient in the present case for me to state that I am not satisfied beyond reasonable doubt that the area the subject of the present charge was not stockpiled on and off for a period prior to the subject of the charge. That being so, I am not satisfied beyond reasonable doubt that there was any alteration in the method of operation of the industry.

As I have said above, I am satisfied beyond reasonable doubt that the Company received the Notice advising it of additional conditions on or about 9 March 1988. The records of the Commission which were admitted into evidence pursuant to s 14(c) of the Evidence Act and the evidence of Mr O'Gorman satisfy me beyond reasonable doubt that both the Notice and the accompanying letter were posted in the one envelope on 7 March 1988. The Company's date receipt stamp on the letter of 9 March 1988 of the letter establishes that that letter arrived at the Company's premises on that date. I do not know why no date receipt stamp appears on the Notice. One possibility is that the stamp was only affixed to one item in the envelope. I have not overlooked the fact that Mr Clarke in his affidavit said that he first noticed the Notice two weeks after it was dated. However, I am not persuaded that I should not draw the inference that the Company received the letter on or about 9 March 1988. First, because his evidence is not inc onsistent with the Notice having been with the Company for two weeks prior to him seeing it. Second, his cross examination persuaded me that his memory with respect to the two documents was, at best, very vague.

It follows, therefore, that the Company was bound to observe the new conditions as from 9 May 1988.

The purpose of additional condition 2 was to avoid overloading the dirty water treatment system by "clean run-off water". It is alleged that clean run-off water entered the dirty water treatment system from the sealed car parking area and the road. I am not satisfied beyond reasonable doubt that water entered the dirty water treatment system from the sealed car parking area. That is, I am not satisfied beyond reasonable doubt that the water did not go into the spoon drain and then into grates SP12, 13 and 14. I accept Mr Woodward's evidence that there was some blockage but even if that blockage operated to prevent the water entering the drain, I am not satisfied beyond reasonable doubt that the gradient was such that the water would in fact have entered the dirty water treatment system. It would seem to me that circumstances having arisen which , if true, would mean that there is no breach, the onus is on the prosecution to negative beyond reasonable doubt the existence of those circumstances. In the present case, the gradient is an illustration of what I am referring to. Mr Leventhal, the expert retained by the Company and whose evidence I accept, said that even if the water did not enter the drain at the point inspected by Mr Woodward, the water from the car park would not go into the dirty water system. It is true that both Mr Woodward and Mr O'Gorman believe that the gradient was more easterly than northerly but their evidence does not persuade me beyond reasonable doubt that

any water from the car park would have entered the dirty water treatment system.

I am, however, satisfied beyond reasonable doubt that water from the road would have entered the dirty water treatment system because the drain was not properly maintained. Mr Tobias' principal submission is that the water from the road was not "clean run-off water" within the meaning of the condition because it would be contaminated by coal dust fines dropping from the wheels of trucks travelling along the road. However, I do not think the words "clean run-off water" from the road were intended to mean that the water from the road must be pure. In my opinion, the expression was intended to convey,and would have been accepted by the Company as meaning, that the run-off water from the road was not to go into the dirty water system. It is true, as Mr Tobias points out, that upon that interpretation there was no need to use the word "clean". However, and notwithstanding being reminded by Mr Tobias that this is a "criminal" prosecution, I think I must have regard to the circumstance that I am dealing with an indu stry condition imposed by an authority having a statutory authority to regulate the industry. I do not think the Company had any doubt at all as to what was meant by additional condition 2. I venture the opinion that until the lawyers became involved, it was not suggested that the water from the road could run into the dirty water treatment system because it was not "clean run-off water". Anyone having any experience with coal mines would know that inevitably some coal fines fall on the road. I am of the opinion, therefore, that it has been established beyond reasonable doubt that condition 2 of the Clean Water Licence was breached and I so find.

It is alleged the Company was in breach of additional condition 5 because the bund wall was less than two metres in height and was not vegetated. I am satisfied beyond reasonable doubt that the bund wall was less than two metres in height and I am satisfied beyond reasonable doubt that as at 18 May 1988 the Company had undertaken no work to vegetate the bund wall.

Mr Tobias' essential argument on behalf of the Company is that the Notice which the Company received did not come into force until 9 May and it only had ten days within which to carry out the work. It would seem to me, with respect, that although the Notice did not come into force until 9 May, that circumstance is relevant only to penalty. I assume, without deciding, that the conditions should be read as permitting the Company a reasonable time after 9 May within which to build up the wall and commence vegetation work. However, on the evidence before me, I am satisfied beyond reasonable doubt that the Company could have built up the bund to a height of more than two metres and have commenced vegetation in the ten days after 9 May 1988. Accordingly, I find the Company to have breached condition 5.

It is alleged that the Company did not comply with additional condition 6. Again, it is submitted that I should not be satisfied beyond reasonable doubt that it was possible as at 18 May for the Company to have complied with that condition. Again, I make the assumption referred to above. I am of the opinion, however, that the Company could have moved refuse stockpiled five metres from the line within the ten days available to it. In my opinion, the material referred to by Mr Tobias as the platform material and referred to by Mr Woodward as the stockpile material is relevantly "coal or refuse stockpile". Furthermore, with respect to the area closer to the cutting, I reject the submission that what was there on 18 May was not a "coal or refuse stockpile" but a "coal rejection dump". Although the use of the word "stockpile" may have been a little loose, it was clear to the Company what the Commission required it to do. The area had been inspected. It can scarcely be supposed the Company did not know what the con dition was referring to. Indeed, Mr Clarke's complaint in evidence was not that he did not know what was referred to but that he thought the Commission's requirement was unreasonable. Accordingly, I find the Company was in breach of additional condition 6.

Section 16 of the Clean Waters Act makes it an offence for a person to pollute waters. I am satisfied beyond reasonable doubt that material was placed above Camp Creek that was likely to fall, descend, be washed, blown or percolated into the creek. I am further satisfied that some quantity of this material, was coal. It is provided by s 16(6) of the Clean Waters Act that it is not an offence to pollute waters if the polluter holds a licence and does not pollute the waters in contravention of any condition of the licence. Mr Tobias has taken me to the terms of the charge, namely, that the Company "did cause stockpiles of spoils and black sooty material to be placed in a position on and around the banks of Camp Creek located within its premises likely to fall or descend into Camp Creek was not placed on the banks of Camp Creek. The material was placed about thirty metres above the bank of the creek and some distance back from the bank when measured horizontally. In my opinion, the provisions of s 43 and s 44 of the Land and Environment Court Act answers this submission and, accordingly, the Company was in breach of s 16(1) of the Act.

occupier of any premises in or on which any (a) maintain the equipment in an efficient or designed to prevent the pollution of waters". Mr Woodward and Mr O'Gorman gave evidence that the drains at the point inspected were not in an efficient condition because they were blocked up. It was at this point and the later inspection of the filter ponds that the evidence of Mr Woodward and Mr O'Gorman, on the one hand, and of Mr Flemming, on the other, departed. The question I have to determine is whether I am satisfied beyond reasonable doubt that the drain was not maintained in an efficient condition. This in turn requires an understanding of what was meant by the expression "maintain in an efficient condition". I am satisfied beyond reasonable doubt that part of the drains was covered with coal fines. However, I am not satisfied beyond reasonable doubt that had the conditions existed for which the drains were installed that the drains would not have operated efficiently. It is accepted that coal fines will fall in to the drains and that the drains must be periodically cleaned out. For this reason, the drains are bigger and longer than otherwise they need be. I reject Mr Tobias' submission that the Company would not be guilty of an offence if the drains were in fact fully blocked but the Commission had failed to prove that the system of cleaning had broken down. It would seem to me, with respect, that the drains are in an efficient condition or they are not and, if they are not, the reason is relevant only to penalty. In my opinion, the expression "efficient condition" means that the drain must be in a condition permitting it to fulfill the function it is designed to serve. In the present case, I am not satisfied beyond reasonable doubt that the drain was not in such a condition. It is clear that although some parts of it were partially blocked, other parts were not or, if they were, they were blocked to a lesser extent. There was considerable conflict between Mr Flemming on the one hand and Mr Woodward and Mr O'Gorman on the other. Mr Dover was not called. As I have said above, I do not think any of the witnesses gave evidence believing it to be wrong. But a build up of coal dust in part of the drain would not of itself prove that the drain was not in a condition permitting it to fulfill its designed function. In my opinion, the evidence of Mr Flemming raises a doubt and that doubt must be resolved in favour of the Company. Accordingly, the charge is dismissed.

The filter pond is the last filter process designed to ensure that the water which eventually enters the unnamed stream leading into Camp Creek will be free of pollution. Charge 50039 is that the Company, in breach of s 20 of the Clean Waters Act which I have referred to above, did not maintain its control equipment, ie the filter bed, in an efficient condition because it allowed the residue of filter contaminated water to build up on the filter bed and prevent contaminated water from draining through the bed. Charge 50040 is that the Company was in breach of s 16(1) of the Clean Water Act because it caused "the residue of filtered contaminated water to be placed in a position on the water bed" at its premises where it was likely to fall into an unnamed creek. It can be seen, therefore, that the complaint with respect to both charges is essentially the same ie that the filter bed system was not functioning properly because it had been allowed to build up so that it was no longer allowing water to pass through the filter system on the bed.

Water is capable of leaving the filter pond either by the overflow weir if the pond overflows or, as is intended, by the underground system which comes out at a V-notched weir just above the unnamed creek. Mr Flemming is the only person who makes reference to the weir overflowing. At paragraph 28 when he said that the party proceeded to the concrete overflow box and raised the hinged cover. Mr O'Gorman said: "Take a note that the filter bed pond is overflowing". Mr Woodward did not say that he had seen the overflow described by Mr Flemming. He said, however, he saw that the pond was full of water and "no effluent was discharging from the final outlet point". Mr O'Gorman said it was not overflowing. He said the surrounding area was wet but it was not possible for him to tell whether that was the result of recent overflowing or not. Mr Woodward correctly assumed that contaminated water was supposed to drain through the sandy base of the filter bed, but he did not inspect the V-notched weir referred to above. Mr O'Gorman said, in his affidavit, that he saw that the bed was full of water and "no effluent was discharging from the final outlet point". Although Mr O'Gorman gave oral evidence that he thought he had inspected the V-notched weir, I am doubtful that he did more than look from the top of the bank. I do not think the V-notched weir could have been inspected properly from that position. I accept Mr Leventhal's evidence that it would have been a simple matter to have determined whether the system was operating properly by examining the V-notched weir and by taking measurements of the amount of water, if any, flowing from it. At the time of inspection the pond was full to the point, if Mr Flemming is correct, of actually overflowing or, if Mr Woodward is correct, of almost overflowing. However, although that circumstance could lead to an inference that the bed was not functioning efficiently, the most reliable, if not the only effective way, of testing that was to inspect the V-notched weir and to measure the fl ow if any. This was not done. The matter is further clouded by the fact that Mr Flemming said he heard water running in the unnamed creek which, of course, could have been the result of water coming from the V-notched weir. Mr O'Gorman and Mr Woodward said they did not hear the creek running. Furthermore, Mr Flemming has said he saw the pond inlet pipe had water running through it. Mr O'Gorman and Mr Woodward believed that if there was any water in the pipe, the flow was slight. But without knowing earlier conditions, the state of flow of the inlet pipe could not of itself establish conclusively that the system was not working properly. If the V-notched weir was not discharging water at the rate of between one and three litres per second, the system was not functioning properly. If the system was operating at approximately five or six litres per second, it was relevantly operating efficiently. The purpose of the V-notch is to allow measurement to be taken of the rate at which water is passing. I note that Mr Dover was present at the inspection and was not called. The weir was not inspected again after May 1988 either by Mr O'Gorman or Mr Woodward although it was suggested by one of them that Mr Dover might have inspected it approximately two weeks after 18 May. It was said that because there were no written notes about the matter, the Commission inferred that Mr Dover saw the weir and that it was operating properly. Mr Clarke, the Manager of the colliery, gave evidence which was not the subject of cross examination that the next time after 18 May 1988 that the pond was cleaned out was in August 1988 in accordance with the Company's system of maintenance. If the bed was not functioning in May 1988, it would not have been functioning properly two weeks later. Indeed, on the way the Commission puts its case, it would have got worse and caused evident pollution of the unnamed creek. It is true, of course, that the Company might have cleaned out the filter bed but Mr Clarke said it did not and, as I have said, he was not cross examined about the matter. I am not satisfied beyond reasonable doubt that the weir was not maintained in an efficient condition.

Mr Joseph has submitted that nonetheless the Company should be found guilty of offence 50040 under s 16(1) of the Clean Waters Act because the overflow observed by Mr Flemming was relevantly the pollution of waters because the water that went over the overflow would have had some contaminated material in it. I think the first answer is that I do not know that it did. On the view of events most favourable to the Commission, ie Mr Flemming's evidence, very little water overflowed. I am not satisfied beyond reasonable doubt that there were any contaminants in the water that overflowed - de minimis non curat lex. The charge is that the material on the bed of the pond was likely, by reason of the Company's activities, to find its way into the creek. It is not clear how that case could have been made even if it had been established beyond reasonable doubt that the bed was not functioning properly because that material, on any view of the matter, would not have entered the waters of the unnamed creek. But, more impo rtantly, I think I should have regard to the circumstance that until the hearing of the proceedings, The Commission's case against the Company was the failure to efficiently maintain the filter bed system. As I have indicated above, I am not satisfied beyond reasonable doubt this is so. In my opinion, charge No 50040 should be dismissed.

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