Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Cleanaway Equipment Services Pty Ltd [2022] NSWLEC 40 Hearing dates: 8 March 2022 Date of orders: 14 April 2022 Decision date: 14 April 2022 Jurisdiction: Class 5 Before: Pain J Decision: See [125] Catchwords: SENTENCING – plea of guilty to charge of water pollution resulting from spill of industrial solvent into stormwater system and Molonglo River due to valve failure – no aggravating factors – actual environmental harm caused – medium level of objective seriousness – mitigating factors – early guilty plea – contrition SENTENCING – plea of guilty to charge of water pollution from spill of industrial solvent into stormwater and Molonglo River – second spill occurred after attempted clean-up of original spill – no aggravating factors – actual environmental harm caused – medium level of objective seriousness – mitigating factors – early guilty plea – contrition SENTENCING – plea of guilty to charge of failing to immediately notify water pollution incident – notification of EPA within four hours of becoming aware that spill of industrial solvent had entered stormwater system – low level of objective seriousness – no aggravating factors – early plea of guilty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23 Criminal Procedure Act 1986 (NSW), ss 257B, 257G Fines Act 1996 (NSW), s 122 Protection of the Environment Operations Act 1997 (NSW), ss 3, 120, 123, 148, 152, 241, 248, 250, Dictionary Protection of the Environment Legislation Amendment Act 2011 (NSW) Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014 (NSW) Cases Cited: Axer Pty td v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 Environment Protection Authority v Ardent Leisure Ltd [2018] NSWLEC 36 Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Boral Australia Gypsum Limited [2009] NSWLEC 26 Environment Protection Authority v Bulga Coal Management Pty Limited (2014) 200 LGERA 235; [2014] NSWLEC 5 Environment Protection Authority v Caltex Australia Petroleum Pty Limited [2007] NSWLEC 647 Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 Environment Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80 Environment Protection Authority v Queanbeyan City Council (No 3) (2012) 225 A Crim R 113; [2012] NSWLEC 220 Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Peel [1971] 1 NSWLR 247 R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd (2020) 245 LGERA 241; [2020] NSWLEC 125 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Cleanaway Equipment Services Pty Ltd (Defendant) Representation: Counsel: E Muston SC with G Westgarth (Prosecutor) S Callan SC with S Love (Defendant) Solicitors: Environment Protection Authority (Prosecutor) Norton Rose Fulbright (Defendant) File Number(s): 2021/47924 2021/47925 2021/47926 Judgment 1. Cleanaway Equipment Services Pty Ltd (the Defendant) pleaded guilty on 21 May 2021 to the following offences: 1. one offence against s 120 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) for pollution of waters on 14 May 2020 in matter no. 2021/47925 (Charge 1); 2. one offence against s 152 of the POEO Act for failing to notify each relevant authority immediately after it became aware a pollution incident occurred on 14 May 2020 that threatened and caused material harm to the environment in matter no. 2021/47924 (Charge 2); and 3. one offence against s 120 of the POEO Act for pollution of waters on 15 May 2020 in matter no. 2021/47926 (Charge 3). 1. It is necessary to sentence the Defendant for these offences. A plea of guilty can be considered as an admission of the essential elements of an offence. Charges 1 and 3 in respect of water pollution under s 120 of the POEO Act are strict liability offences so that mens rea is not an essential element of the offence. The elements of Charge 2 in respect of the ss 148 and 152 offence include that the Defendant was aware of a pollution incident which caused or threatened material harm which it failed to notify immediately: Environment Protection Authority v Bulga Coal Management Pty Limited (2014) 200 LGERA 235; [2014] NSWLEC 5 (Bulga) at [81]-[95] (Pain J). When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at 281. Any contested matter relied on by a defendant must be established on the balance of probabilities: Olbrich at 281. 2. These offences arise out of pollution incidents that occurred on 14 May and 15 May 2020 at the Defendant's waste storage facility at 42B Aurora Avenue in Queanbeyan (the premises). On 14 May 2021 a solvent known as Vivasol 2046 (Vivasol) leaked from a pipe located on the premises into the Queanbeyan-Palerang Regional Council (the Council) stormwater system linked to a stormwater outlet flowing into the Molonglo River at the border of NSW and the Australian Capital Territory (ACT) (Charge 1). By no later than 12:44 on 14 May 2020 Damien Beck, the site supervisor at the premises at the time, became aware that Vivasol had spilled into the stormwater system. Between 12:44 and 16:57 there were a number of telephone calls and text messages sent between employees of the Defendant. At 16:58, Mr Rossback, the environmental business partner, contacted the Environment Protection Authority (the Prosecutor) to notify it of the spill of what was thought to be 2,000 litres of Vivasol into the stormwater drain (Charge 2). The following day, on 15 May 2021 Vivasol was pumped from the Molonglo River into a truck and the polluted water was brought back to the premises for disposal. Between 9,000 and 10,000 litres of water brought back to the premises from the Molonglo River which contained Vivasol was poured into a containment pit on the premises. Some of the contaminated water escaped from the containment pit into the stormwater system which connects to the stormwater outlet on the Molonglo River (Charge 3). Protection of the Environment Operations Act 1997 1. Relevant sections of the POEO Act in force at the time of the offences provided: Chapter 1 Preliminary … 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, … (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection. … Chapter 5 Environment protection offences … Part 5.3 Water pollution 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. (2) In this section— pollute waters includes cause or permit any waters to be polluted. … 123 Maximum penalty for water pollution offences A person who is guilty of an offence under this Part is liable, on conviction— (a) in the case of a corporation—to a penalty not exceeding $1,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues, or … Part 5.7 Duty to notify pollution incidents … 148 Pollution incidents causing or threatening material harm to be notified (1) Kinds of incidents to be notified This Part applies where a pollution incident occurs in the course of an activity so that material harm to the environment is caused or threatened. (2) Duty of person carrying on activity to notify A person carrying on the activity must, immediately after the person becomes aware of the incident, notify each relevant authority of the incident and all relevant information about it. (3) Duty of employee engaged in carrying on activity to notify A person engaged as an employee in carrying on an activity must, immediately after the person becomes aware of the incident, notify the employer of the incident and all relevant information about it. If the employer cannot be contacted, the person is required to notify each relevant authority. (3A) Duty of employer to notify Without limiting subsection (2), an employer who is notified of an incident under subsection (3) or who otherwise becomes aware of a pollution incident which is related to an activity of the employer, must, immediately after being notified or otherwise becoming aware of the incident, notify each relevant authority of the incident and all relevant information about it. (4) Duty of occupier of premises to notify The occupier of the premises on which the incident occurs must, immediately after the occupier becomes aware of the incident, notify each relevant authority of the incident and all relevant information about it. (5) Duty on employer and occupier to ensure notification An employer or an occupier of premises must take all reasonable steps to ensure that, if a pollution incident occurs in carrying on the activity of the employer or occurs on the premises, as the case may be, the persons engaged by the employer or occupier will, immediately, notify the employer or occupier of the incident and all relevant information about it. (6) Extension of duty to agents and principals This section extends to a person engaged in carrying on an activity as an agent for another. In that case, a reference in this section to an employee extends to such an agent and a reference to an employer extends to the principal. (7) (Repealed) (8) Meaning of "relevant authority" In this section— relevant authority means any of the following— (a) the appropriate regulatory authority, (b) if the EPA is not the appropriate regulatory authority—the EPA, (c) if the EPA is the appropriate regulatory authority—the local authority for the area in which the pollution incident occurs, (d) the Ministry of Health, (e) SafeWork NSW as referred to in clause 1 of Schedule 2 to the Work Health and Safety Act 2011, (f) Fire and Rescue NSW. … 152 Offence A person who contravenes this Part is guilty of an offence. Maximum penalty— (a) in the case of a corporation—$2,000,000 and, in the case of a continuing offence, a further penalty of $240,000 for each day the offence continues, or … Chapter 8 Criminal and other proceedings … Part 8.2 Proceedings for offences … Division 5 Sentencing 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, (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant. … Part 8.3 Court orders in connection with offences … 248 Orders regarding costs and expenses of investigation (1) The court may, if it appears to the court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the regulatory authority the costs and expenses so incurred in such amount as is fixed by the order. (2) An order made by the Land and Environment Court under subsection (1) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979. An order made by the Local Court under subsection (1) is enforceable as if it were an order made by the court when exercising jurisdiction under the Civil Procedure Act 2005. (3) In this section— costs and expenses, in relation to the investigation of an offence, means the costs and expenses— (a) in taking any sample or conducting any inspection, test, measurement or analysis, or (b) of transporting, storing or disposing of evidence, during the investigation of the offence. … 250 Additional orders (1) Orders The court may do any one or more of the following— (a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person, (b) order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its environmental and other consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender's conduct), … (2) Machinery The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order. … Dictionary … environment means components of the earth, including— (a) land, air and water, and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)–(c). … 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. … pollution means— (a) water pollution, or (b) air pollution, or (c) noise pollution, or (d) land pollution. … water pollution or pollution of waters means— (a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or (b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or (c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, and, without affecting the generality of the foregoing, includes— (d) placing any matter (whether solid, liquid or gaseous) in a position where— (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or (e) placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters. waters means the whole or any part of— (a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or (b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water. 1. Section 148(2) was amended by the Protection of the Environment Legislation Amendment Act 2011 (NSW) (the amending Act) with "as soon as practicable" replaced by "immediately", coming into force on 6 February 2012. There have been few prosecutions of the amended ss 148(2) and 152. Only one other case was identified by the Prosecutor (Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 (Forbes) (Pain J). Protection of the Environment (Operations) General Regulation 2009 (NSW) 1. The Protection of the Environment (Operations) General Regulation 2009 (now repealed) provided relevantly at the time of the offence: Schedule 5 Prescribed matter for the definition of water pollution For the purposes of paragraph (c) of the definition of water pollution in the Dictionary to the Act, the following are prescribed as matter: … (i) oil, grease or flammable liquid of any description. … Summonses Charges 1 and 3 1. The summonses for Charges 1 and 3 each dated 25 February 2021 stated: [In Charge 1] The Prosecutor claims: 1. An order that the defendant, Cleanaway Equipment Services Pty Ltd (ACN 001 576 889), having its head office at Level 4, 441 St Kilda Road, Melbourne, VIC 3004, appear before a Judge of the Court to answer the charge that, on or about 14 May 2020, at or near 42B Aurora Avenue (Premises), Queanbeyan, in the state of New South Wales, it committed an offence against s 120 of the Protection of the Environment Operations Act 1997, in that it polluted waters. Particulars a. Waters The Queanbeyan-Palerang Regional Council stormwater system from 42B Aurora Avenue, Queanbeyan in the State of New South Wales to stormwater outlet at the border of New South Wales and the Australian Capital Territory, including along Aurora Avenue and Wycombe Street, as marked in Attachment 1 (Waters). b. Pollutant Vivasol 2046 (Pollutant) c. Manner of breach On or about 14 May 2020, the Pollutant escaped from a pipe located on the Premises and flowed into the Waters. … [in Charge 3] The Prosecutor claims: 1. An order that the defendant, Cleanaway Equipment Services Pty Ltd (ACN 001 576 889), having its head office at Level 4, 441 St Kilda Road, Melbourne, VIC 3004, appear before a Judge of the Court to answer the charge that, on or about 15 May 2020, at or near 42B Aurora Avenue, Queanbeyan (Premises), in the state of New South Wales, it committed an offence against s 120 of the Protection of the Environment Operations Act 1997, in that it polluted waters. Particulars a. Waters The Queanbeyan-Palerang Regional Council stormwater system from 42B Aurora Avenue, Queanbeyan in the State of New South Wales to stormwater outlet at the border of New South Wales and the Australian Capital Territory, including along Aurora Avenue and Wycombe Street, as marked in Attachment 1 (Waters). b. Pollutant Water which contained Vivasol 2046 (Pollutant). c. Manner of breach On or about 15 May 2020 the Pollutant was placed into a containment tank at the Premises from which it escaped into the Waters. Charge 2 1. The summons dated 25 February 2021 for Charge 2 stated: … The Prosecutor claims: 1. An order that the defendant, Cleanaway Equipment Services Pty Ltd (ACN 001 576 889), having its head office at Level 4, 441 St Kilda Road, Melbourne, VIC 3004, appear before a Judge of the Court to answer the charge that, on or about 14 May 2020, at or near 42B Aurora Avenue, Queanbeyan (Premises), in the state of New South Wales, it committed an offence against s 152 of the Protection of the Environment Operations Act 1997 (the Act), by contravening s 148(2) of the Act in that, the Defendant was carrying on an activity, during the course of which a pollution incident occurred so that material harm to the environment was caused or threatened and it failed to immediately notify each relevant authority after it became aware of the incident. Particulars a. Activity Waste storage b. Pollution Incident Vivasol 2046 escaped from the Premises into the Queanbeyan-Palerang Regional Council's stormwater system (Stormwater System). c. Relevant Authorities Environment Protection Authority; Queanbeyan-Palerang Regional Council; Ministry of Health; Safework NSW; Fire and Rescue NSW. d. Manner of breach The Defendant, after becoming aware of the Pollution Incident, failed to immediately notify any of the Relevant Authorities of the Pollution Incident. e. The harm caused or threatened by the pollution The escape of a significant volume of Vivasol 2046, which is a hazardous and combustible substance, into the Stormwater System had the potential to i. adversely impact the ecosystem within the Stormwater System and the Molonglo River in which it flowed; and ii. threaten the health safety of human beings, in a manner that was not trivial. f. When Defendant became aware of the Pollution Incident By no later than 12.44pm on 14 May 2020. g. When the Defendant became aware that the Pollution Incident caused, threatened or had the potential to cause material harm to the environment No later than 12.44pm on 14 May 2020. … Evidence 1. The parties prepared a Statement Of Agreed Facts (the SOAF) dated 8 September 2021 which was tendered by the Prosecutor as Ex A together with two folders containing the documents annexed to the SOAF. The Defendant tendered the material exhibited to Mr Richard Pittard's affidavit dated 7 December 2021 (Ex 1). Statement of Agreed Facts 1. The SOAF stated as follows in full (annexures omitted): STATEMENT OF AGREED FACTS The offences 1 Cleanaway Equipment Services Pty Ltd (the Defendant) has pleaded guilty to the following offences: a. one offence under s 120 of the Protection of the Environment Operations Act 1997 (POEO Act) for pollution of waters on 14 May 2020 (Charge 1); b. one offence under s 120 of the POEO Act for pollution of waters on 15 May 2020 (Charge 2); and c. one offence under s 152 of the POEO Act for failing to notify each relevant authority immediately after it became aware a pollution incident occurred on 14 May 2020 that threatened and caused material harm to the environment (Charge 3). 2 The maximum penalty for an offence contrary to s 120 of the POEO Act in the case of a corporation is $1,000,000 and $120,000 for each date the offence continues where the offence is a continuing offence. 3 The maximum penalty for an offence contrary to s152 of the POEO Act in the case of a corporation is $2,000,000 and in the case of a continuing offender, a further penalty of $240,000 for each day the offence continues. The Defendant 4 The Defendant is an Australian registered company, formerly known as ERS Australia Pty Ltd. The Defendant is wholly owned by Environmental Recovery Services Pty Ltd. A company search for the Defendant is at Tab 1. 5 The ultimate holding company of Environmental Recovery Services Pty Ltd is Cleanaway Waste Management Limited. A company search for Environmental Recovery Services Pty Ltd is at Tab 2a. and the Annual Report for Cleanaway Waste Management Limited for the 2019-2020 financial year is at Tab 2b. The Licence 6 The Defendant is the holder of Environment Protection Licence 6090 (the Licence). A copy of the Licence is at Tab 3. 7 At all relevant times, the Licence permitted the scheduled activities of waste storage at 42B Aurora Avenue, Queanbeyan NSW 2620 (the Premises). 8 At all relevant times, the Defendant was the occupier of the Premises with control and management of all activities occurring on the Premises. 9 The Defendant is engaged by its customers to collect liquid waste products. The Defendant's contractors and/or drivers travel to those customers, collect drums with the relevant liquid waste and transport those drums to the Premises. At the Premises, the drums containing liquid waste are emptied into a trough or storage tank for later disposal offsite. The drums are then cleaned using a solvent and are then available to repeat this process. The Premises at the time of the offence 10 An aerial image of the Premises with the boundary of the Premises outlined in red is at Tab 4. 11 The Premises consists of an office and three depot areas as illustrated in the site diagram at Tab 5 (the site diagram). The Premises is a fenced rectangular block of land approximately 1,400m2. 12 There is a containment system on the Premises. The containment system consists of the following components: a. Two storage tanks in a bunded area, one being for "clean" solvent and the other for "waste" liquid. The clean solvent tank is marked A and the waste liquid tank is marked B on the site diagram. b. An emergency shut-off valve, which is located close to the storage tank for clean solvent. The approximate location of the valve is marked C on the site diagram. c. A pipe, with a ball valve (the ball valve), running from the clean solvent storage tank to a pump with a handheld trigger nozzle used to clean drums (the clean solvent pipe). The ball valve is marked E on the site diagram. d. A pipe designed to convey waste liquid from the building to the waste liquid tank (the waste liquid pipe). The clean solvent pipe and the waste liquid pipe are adjacent to each other and are marked D on the site diagram. e. The pipes run along the boundary of the Premises and then make a 90 degree turn and move underground before emerging from underground close to the location of the ball valve. f. A grated drain, designed to collect any spills or leaks from the pipes, which is connected to a sump. The sump is a pit containing a coarse filter. The grated drain is marked F and the sump is marked G on the site diagram. g. A large holding tank (also referred to as the containment pit), adjacent to the sump, which is marked H on the site diagram. There are three grated drains over the holding tank. The holding tank has a maximum capacity of 8,000L and is connected, via a three way valve, to the sump and the stormwater pit. When the capacity of the holding tank is reached, it has an overflow pipe which flows into the stormwater pit. The three way valve is marked I on the site diagram (the three way valve). The three way valve is intended to direct flow from the sump to either the holding tank or to the stormwater pit. It has a handwheel and an indicator showing "open" and "close" positions. In the "open" position flow goes to the stormwater pit and in the "close" position flow remains in the holding tank. h. Adjacent to the holding tank is a stormwater pit which is marked J on the site diagram. Stormwater is delivered to this stormwater pit through a number of inlet pipes, marked with black arrows on the site diagram, including from the holding tank. The stormwater pit includes a sluice valve marked K on the site diagram (the sluice valve). The sluice valve was installed in 2011 by Greaney & Sweeney ACT Pty Ltd (Greaney & Sweeney) and a diagram of the sluice valve provided by Greaney & Sweeney is at Tab 6. When the sluice valve is closed or shut, stormwater is prevented from moving out of the stormwater pit. Stormwater leaves the Premises as shown by the blue arrows on the site diagram. The valves in the containment system at the Premises The ball valve 13 The purpose of the ball valve is to provide an isolation point within the solvent system for maintenance and operational purposes. The valve allows for isolation of the clean solvent pump and downstream systems from the clean solvent storage tank, which can be utilised for system control in the event of failure or for system isolation when completing maintenance. 14 The ball valve was ordinarily left in the closed position when it was not being used and was opened only to allow solvent to be pumped up from the solvent tank. 15 The ball valve was inserted about 4 or 5 years ago, due to a leak with an earlier valve. Three-way valve 16 The three-way valve was left on or open when there was no perceived risk of onsite spill and was turned off or closed when tankers arrived to decant dirty oil. However some of the Defendant's staff understood that the valve was to be closed at all times. A "Work Instruction" for the Premises dated 3 July 2012 instructed that the three way valve "is to be set to stormwater when there is no risk of an onsite spill". A copy of the Work Instruction is at Tab 7 (the Work Instruction). Sluice valve 17 The Work Instruction dated 3 July 2012 notes that a stormwater protection pit had been installed to collect any spills on site. The Work Instruction noted that there was a three-way valve which was to be set to stormwater when there is no risk of an onsite spill. It also set out the procedure of how to operate the stormwater protection pit, which included closing the stormwater valve to pit (the three-way valve) and closing the small valve on the pipe to the right of pump to storm water (the sluice valve) prior to the transfer of solvent from the tank. It then stated that after the completion of the transfer, these valves could be reopened. 18 The sluice valve was usually kept in the open position to reduce the risks of the Premises flooding, unless the Defendant's employees or contractors were decanting to or from the waste solvent tank when the sluice valve would be closed. However, some of the Defendant's staff understood that the sluice valve should be closed at all times, and others understood that it should be closed when the Premises is operational. 19 The stormwater pit is connected to the local council's stormwater system. The relevant local government authority is Queanbeyan-Palerang Regional Council (the Council). The entry point is separated by the sluice valve. A diagram of the stormwater system is at Tab 8 of these Facts. Emergency shut off valve 20 The emergency shut off valve is operated by a lever and is usually kept in the on or open position. The pollutant - Vivasol 2064 solvent 21 The "clean" solvent tank on the Premises contained Vivasol 2046. Vivasol 2046 contains approximately 100% Kerosene (petroleum, hydrosulfised) and less than 2% naphthalene. Kerosene is a petroleum distillate fraction, derived from the refining of petroleum oil. It has very low solubility in water. Oil is a liquid that is insoluble in water and has origins either as a refined product from crude oil or from biological origins. The Safety Data Sheet for Vivasol 2046 is at Tab 9. The Defendant's personnel Damien Beck – site supervisor 21 Damien Beck was the site supervisor at the Premises at time of the incidents. He had been employed in this role from November 2007 to May 2020. Mr Beck resigned on 20 May 2020. 22 Mr Beck's role was to supervise all staff that worked at and from the Premises (being the two staff members who worked at the Premises from time to time, Darryl Hancock and Gary Dow); working with the Defendant's environmental team to ensure the Premises complied with the requirements under its environmental protection licence; scheduling service runs for the Premises; checking equipment to check it was operational; updating and reviewing procedural documents if and when required in consultation with others including OH&S managers, EPA business partners or his direct supervisor. He managed two staff members who worked from time to time on the Premises, Darryl Hancock and Gary Dow. He was the most senior person at the Premises on 14 May 2020 and directly reported to Jason Young. 23 Mr Beck has had training in dangerous goods and hazardous waste management and, at all relevant times, had knowledge of the Safety Data Sheet for Vivasol 2046. The Safety Data Sheet for Vivasol 2014 contained information indicating that it was toxic to animals and humans, and that it would be harmful to aquatic life if it entered any waterways. Jason Young – Operations Manager 24 At all material times, Jason Young was the Operations Manager, employed by Cleanaway Operations Pty Ltd (Cleanaway Operations) at Wetherill Park. He was previously a supervisor at Transpacific Pty Ltd which required him to supervise drivers and the day to day collection of filters, rags, oily water and other oily products. In his role as an Operations Manager, he is required to manage the supervisors, manage the business and its profit and loss responsibilities and manage stock control and waste accrual. His responsibilities extended to the Premises, Damien Beck reported to him and he in turn reported to the General Manager, Blake Senior. Haydn Rossback – Environmental Business Partner 25 At all material times, Haydn Rossback was an environmental business partner employed by Cleanaway Operations. Mr Rossback commenced this position in January 2020. As part of the NSW environment team, his role included document development such as environmental management plans, incident response, management of environmental issues and site inspections. He reported to Orhan Cambaz and works alongside Bart Downe. Orhan Cambaz – Senior Environmental Business Partner 26 At all material times, Orhan Cambaz was a Senior Environmental Business Partner for Cleanaway Operations and is based in Sydney. In this role, he provided advice to the Defendant on environmental compliance issues, including reviewing pollution incident response management plans and site emergency management plans. Mr Rossback and Mr Downe reported to Mr Cambaz. Mr Cambaz reported to Richard Pittard. Richard Pittard – Head of Environment and Regulatory Compliance 27 Richard Pittard has been employed by Cleanaway Operations since January 2015. At all material times Richard was the Head of Environment and Regulatory Compliance. This role required him to support the business in order to protect and maintain the Defendant's licence to operate, support organisational growth and work with the business to ensure that the Defendant meets their regulatory obligations. His team included subject matter professions, which included Orhan Cambaz, Haydn Rossback and Bartholomew Downe. Blake Senior – General Manager 28 Blake Senior is the General Manager, Hydrocarbons for Cleanaway Operations and has been employed by this company for 24 years. In this role, Mr Senior had overall management and oversight of the Defendant's operations at the Premises, and line reporting responsibility for staff including Damien Beck and Jason Young. The Defendant's Pollution Incident Response Management Plan 29 At all material times, the Defendant had in place a Pollution Incident Response Management Plan (the PIRMP) as required by s 153A of the POEO Act. The PIRMP is at Tab 10 and relevantly provided at p 3 that: "In the event of any pollution incident notify the Business Unit Manager immediately to determine if it meets the definition of the attached protocol. The Business Unit Manager will be the primary contact point for the authorities. If the incident clearly requires notification, (e.g. tank collapse with bund breached and liquid entering creek), the most senior person on site shall commence notification (Emergency Numbers) if the business unit manager is not present. This person shall also then immediately contact the Business Unit Manager of who will notify all remaining authorities immediately including EPA." [sic] 30 Appendix A to the PIRMP is the Protocol for Industry Notification of Pollution Incidents and relevantly provides: Appendix A to PIRMP - text version (214661, rtf) 31 The PIRMP identifies the following persons under the heading "3.3.5 Contact details [clause 98C(1)(g) and (h)]" (the PIRMP list) [telephone numbers omitted]. Position Name Work Number After Hours Regional Manager Ian Phillipps Business Unit Manager Nathan Hage Operations Damien Beck Supervisor Environmental Bart Downe Specialist Health & Safety Laurence Rooney Business Partner Environmental Orhan Cambaz Specialist Head of Health, Safety and Environment Richard Pittard 32 Ian Phillips, Laurence Rooney and Nathan Hage were not employed in these roles on 14 May 2020. 33 Any of the Defendant's employees, including any person on the PIRMP list, had the responsibility and authority to report an incident to relevant authorities when they became aware of the pollution incident threatening or causing material harm to the environment had occurred. 34 At all material times, Mr Rossback understood the PIRMP places responsibility for notification of relevant authorities on the business unit manager or the site supervisor as the most senior person on the Premises, unless there is a discussion with the Environment Team who take on responsibility for notification. 35 At all material times, Mr Cambaz and Mr Pittard understood if any significant quantity of a substance such as a solvent left the Premises, there would be the potential for harm and it would be reportable under the PIRMP. Site Emergency Plan 36 A Site Emergency Plan was drafted on 25 January 2019, which provided guidance to the Defendant's employees about what to do in an emergency. A copy of the Site Emergency Plan is at Tab 11. It stated that, in the event of a product spill, an employee must determine whether the incident can be contained locally but if there is any doubt as to local containment then the appropriate Emergency Services ought to be called. Further, it stated in the event of an incident that is beyond the local containment capability, then emergency services must be notified. It also noted that the National HSE Manager and Environmental Manager was to notify the relevant government authorities. 11 May 2020 37 On or about 11 May 2020, Darryl Hancock, an employed driver of the Defendant at the Premises, observed that the ball valve was leaking. He ran his finger along the ball valve and thought that it was leaking solvent. He observed that the solvent was leaking onto the concrete below the ball valve and that the ball valve looked like it needed tightening. He reported this to Mr Beck. On the same day, Mr Beck rang Greaney & Sweeney to attend to the ball valve. 12 May 2020 38 On or about 12 May 2020, Dean Tatum, a plumber from Greaney & Sweeney attended the Premises. He observed a small patch of liquid underneath the ball valve and a slow drop from under the ball valve handle. He cleaned the area with a rag and found a leak underneath the ball valve handle. He observed that the handle was secured by a "pac nut". He removed the handle and tightened the pac nut using multigrips. He then replaced the handle and tightened the pac nut again. The pump, which is connected to the solvent line, was turned on and Mr Tatum observed the ball valve for about 2 minutes. During this time, he did not observe any leak from the ball valve. He left the ball valve in the open position. 14 May 2020 39 At approximately 06.00on 14 May 2020, Mr Beck arrived at the Premises, conducted a walkaround of the Premises and did not notice anything unusual. Between or about 06:00 and 12:00, Mr Beck was in the office working and was the only person on the Premises. 40 The first employee of the Defendant to become aware of the incident giving rise to Charge 1 was Damien Beck at or about 12:00 on 14 May 2020. 41 At approximately 12.00, Mr Beck left the office to attend the shed. While walking outside from the back of the shed, Mr Beck heard a sound that he recognised to be the sound of running water. 42 On hearing this sound, Mr Beck observed that the ball valve in the clean solvent pipe had ruptured and there was a steady flow of Vivasol 2046 coming out of the ball valve and entering the grated drain. The grated drain connected to the containment pit which connected to the stormwater drain that runs along Aurora Avenue. From Mr Beck's experience as site supervisor and his knowledge of the Premises, Mr Beck knew that the solvent had flowed from the containment pit into the stormwater pit and then into the council's stormwater system. Mr Beck states that he was not aware at this time that the stormwater system led to the Molonglo River. 43 Mr Beck immediately went to the emergency shut off valve near the base of the clean solvent tank and turned it to the closed position so that there was no further clean solvent flowing from the clean solvent tank into the line. Mr Beck then closed the three-way valve and the sluice valve which were in the open position at the time. When closing the sluice valve, Mr Beck saw solvent going into and down the stormwater pipe. 44 Mr Beck ran back to where the spill was occurring and took out some grates and placed some oil socks from a spill kit into the drain. Mr Beck then started collecting solvent out of the drain by using a bucket poured into an intermediate bulk container (IBC), collecting about 500L of solvent in 20 minutes. 45 Mr Beck then measured the contents of the Clean Solvent Tank, calculated that there was 23,000L remaining including the 500L collected in the IBC, and concluded that 2,200L of solvent had leaked into the Council's stormwater system. Mr Beck made notes of his calculations, which after 14 May 2020, he later reviewed and revised to conclude that in fact 2,800L of solvent had escaped into the Council's stormwater system. 46 After entering the stormwater pipe, the solvent travelled through the council stormwater system and discharged into the Molonglo River at the stormwater outlet marked as SW-DP-1 in the map at Tab 12. 47 At approximately 12.03, Mr Beck telephoned his supervisor, Jason Young. Mr Young did not answer the phone and Mr Beck did not leave a message. At about 12:04, Mr Young sent a text to Mr Beck saying "I'll call you back." 48 At 12:44, Mr Beck sent a text message to Mr Young, which read "I am going ahead with changing the pump I have just lost between 2 and 3000 ltr of solvent another bust line." Mr Young replied to this text with "please send quote mate and I'll sort it." 49 At 13:13, Mr Beck spoke to Mr Young over the phone for approximately two minutes. Mr Beck states that during this call, he said words to the following effect: Mr Beck said: Jason I have had a rupture on the ball joint valve at the back of the shed. I have closed the T-Valve and the sluice valve so that no more product could get into the stormwater drain. I saw it going into the pipe from the stormwater pit. I have lost between 2,000 and 3,000 litres of clean product. Can you let the relevant people know? Mr Young said: Okay, I will look after it, I will call Blake. 50 At 14:14, Mr Young called Mr Beck. Mr Young states that during this conversation, Mr Beck said words to the following effect: Mr Beck said: "Mate, we've lost about 3,000 litres down the stormwater line." Mr Young said: "How did it happen?" Mr Beck said: "It was a burst line." Mr Young said: "Have we contained it?" Mr Beck said: "No, it is further down the line." Mr Young said: "Well, how can that happen?" Mr Beck said: "I don't know, it's just either come apart or its broken. The pipes are actually close to the grate and it's gone down there." 51 At approximately 14.24, Mr Beck sent Mr Young an email stating "Hi Jason This is the second break in solvent line" and attaching four photographs of the ball valve, solvent pipe and grated drain. A copy of the email is under Tab 13. 52 At 14:23, Mr Young called his manager, Blake Senior. Mr Young stated that during this call, he relayed the information that he had received from Mr Beck to Mr Senior to the effect that "we've had been a break in a line somewhere and that we've lost about 2,500 litres down the stormwater." Mr Young reports that Mr Senior stated that he would notify Richard Pittard. 53 At 14:40, Mr Young called Mr Beck. Mr Young and Mr Beck had a conversation to the following effect: Mr Young said: "How much did you lose?" Mr Beck said: "2000 to 3000 litres." Mr Young said: "How did you arrive at that figure?" Mr Beck said: "I took Friday's dip, subtracted what we'd used and added how much we'd saved. Then less the amount that was in the tank. That's how I arrived at the figure." Mr Young said: "I'll contact Haydn and tell him what's happened." 54 At 14:50, Mr Senior called Mr Young. During this call, Mr Senior notified Mr Young that an incident had occurred on the Premises. 55 At 15:04, Mr Young called Mr Cambaz. During the phone call Mr Young stated "We have had a spill onsite, of about 3,000 litres of solvent." 56 At around 15:10, Mr Cambaz called Mr Rossback and directed him to discuss the issue with Mr Beck, obtain further information, and if Mr Beck had not already reported the incident to the EPA, to then make a report to the EPA. 57 At approximately 15:42, Mr Cambaz forwarded the email from Mr Beck sent at 14:24, to Mr Rossback. 58 At or about 15:50 and 16:01, Mr Cambaz made enquiries with the Council to obtain stormwater plans. 59 At about 16:00, Mr Rossback called Mr Beck and stated words to the effect: Can you go to the creek and take some samples, take some booms and socks with you? I will send you the information from the Council and talk to my boss about whether this is reportable to the EPA. 60 Mr Rossback then sent an email to Mr Beck at 16:01, asking him to inspect a section of the Molonglo River depicted in a screenshot to determine whether there was any solvent odours or visible sheen on the waters. A copy of this email is at Tab 14. 61 At approximately 16:08, Mr Cambaz sent an email to Ms Brooke Green at Council requesting a copy of the stormwater network in relation to 42 Aurora Avenue, Queanbeyan. A copy of the email chain between Mr Cambaz and Ms Brooke is at Tab 14a. 62 At approximately 16:30, Mr Beck, accompanied by Mr Gary Dow, an employed driver for the Defendant, went down to the point where the stormwater drain discharges into the Molonglo River. Mr Beck did not smell, taste or see any solvent in the water in the culvert area. 63 At or about 16:58, Mr Rossback contacted the EPA's Environment Line and notified the EPA of the First Incident. The Environment Line report records the description of the First Incident provided by Mr Rossback as follows: "SELF REPORT FROM CLEANAWAY 42b Aurora Ave Queanbeyan re we had a solvent spill of 2500 litres which we have captured 500 litres. We believe 2000 litres discharged into stormwater drain. Cause of the spill was a broken gate valve on a pipe. No rainfall occurred on site today. We will be inspecting the stormwater outlet nearby the site. NSW Fire and Rescue were not notified." 64 At or about 17:00, the EPA Environment Line sent an email to EPA Officers Ms Carlie Armstrong and Ms Janine Goodwin conveying the report from Mr Rossback regarding the First Incident. 65 Between about 17:00 and 18:15, Janine Goodwin, an EPA authorised officer, was on the Molonglo River bridge on Yass Road and smelt a chemical type odour. 66 At or about 17:05, Mr Rossback had a telephone conversation with Carlie Armstrong, an authorised officer of the EPA and informed her that: a. a spill occurred at 12noon; b. Mr Rossback had sent a staff member to the Molonglo River to see if he could smell hydrocarbon odour; c. Mr Rossback had not spoken to the staff member, and did not know whether he could smell anything; and d. Ms Armstrong informed Mr Rossback that the Defendant needed to notify NSW Fire and Rescue (FRNSW) about the pollution incident immediately. 67 At or about 17:28, Mr Rizzuto telephoned Ms Natasha Abbot of the Queanbeyan-Palerang Regional Council and notified her that a pollution incident had occurred at 42A Aurora Avenue Queanbeyan earlier that day. 68 At approximately 17:42, Mr Beck sent an email to Mr Rossback and Mr Cambaz, reporting that he did not observe any sheen or odour and attaching photographs. A copy of the email dated 14 May 2020 and attachments is at Tab 15. 69 At 17:48, Mr Rossback telephoned FRNSW by dialling 000 and reported the pollution incident. 70 At 18:00, Matthew Rizzuto, a Unit Head of the Regulatory Operations Regional South branch of the EPA, spoke to Mr Rossback regarding the notification. The words of the conversation were to the following effect: Mr Rizzuto said: "You need to get someone down to the site to inspect the stormwater outlets as soon as possible to determine whether the solvent has discharged to the environment and if it hasn't to determine where it is sitting in the stormwater drain because it will eventually discharge into the environment." Mr Rossback said: "We have inspected all of the stormwater drain outlets in the area and we also inspected the Molonglo River and didn't detect any sign of the material so we are confident that it hasn't discharged to the environment." Mr Rizzuto said: "But the material has left the site so it is clearly in a position where it can end up in the environment. What is the name of the solvent and how much do you think may have left the site?" Mr Rossback said: "The solvent is named Vivasol 2046. We believe that it is up to 2500 litres, but it may be less. We think that we collected about 500 litres from the site." 71 At 18:15, Janine Goodwin of the EPA arrived at the Premises and met with Mr Beck. Mr Beck informed Ms Goodwin that: a. he was the site supervisor; b. he found the leak around lunchtime that day; c. he did not think the fire brigade needed to be notified and had not called them as the spill did not trigger the need to do so in the Defendant's procedures; d. he thought he had recovered 500 litres of the spilt solvent onsite and that about 2,000 litres had gone offsite down the stormwater drain; e. he had walked down to the stormwater outlet and river and could not see or smell any solvent; and f. he did not know where the solvent had gone down the stormwater system but they had engaged someone to come the next morning to clean the stormwater system. 72 At approximately 18:27, Mr Rizzuto notified FRNSW of the incident and FRNSW stated it had been notified of the incident but that the caller stated the EPA and the Council were aware so there is no need for FRNSW to attend the site. Mr Rizzuto requested FRNSW attend the incident. 73 At or about 18:37, Mr Rizzuto called Mr Rossback and informed him EPA Officers have observed hydrocarbon at the stormwater outlet and detected hydrocarbon odour in the Molonglo River and directed him to have someone on site and to get a pump-out truck to the site to remove as much material before it all entered the river. Mr Rossback stated that he would attend by 23:00 hours and that he was trying to source a pump-out truck. 74 At 18:42, Mr Rossback telephoned Council by dialling 1300 735 025. 75 On or about 18:40 to 19:00, FRNSW firefighter Nicholas Hornbuckle attended the stormwater outlet on Molonglo River. He observed what he thought was clear oil sitting on the surface of the water at the exit of the stormwater outlet and smelt a strong chemical odour, similar to diesel. Mr Hornbuckle and his crew placed booms at the exit of the stormwater outlet to soak up the discharging liquid. 76 At approximately 20:00, Mr Rizzuto inspected the Molonglo River at the stormwater discharge point and observed beads of hydrocarbon flowing downstream and smelt a strong hydrocarbon odour. 77 At or about 20:30, Mr Rizzuto called Mr Rossback and confirmed that there was hydrocarbons in the Molonglo River and Mr Rossback said he and a tanker truck were on the way and would arrive about 11:30pm. 78 At approximately 20:49, Mr Beck met Patrick Bacon of the ACT Environment Protection Authority and Ms Armstrong. Mr Beck informed them that he had called Flexible Australia Pty Ltd (Flexible) in an attempt to have that company come and vacuum pump the polluted water as required but that he had received no answer. 79 At 21:06, Ms Goodwin called Mr Rossback and gave him a clean-up direction under s 93 of the POEO Act. 80 At approximately 21:55, Ms Goodwin was about 20 – 30 metres downstream of the stormwater drain, at a point marked as Point 3 on a satellite photo at Tab 16, where she smelt a strong hydrocarbon odour and observed a hydrocarbon like substance sitting on water surface within the drainage line. 81 At approximately 22:20, Ms Goodwin was at the railway culvert marked Point 1 on the photo at Tab 16, where she smelt a strong chemical odour and observed a hydrocarbon substance sitting on water surface. 82 At approximately 22:45, Ms Goodwin was about 20 metres upstream of the discharge point on the Molonglo River, at the point marked as Point 5 on the photo at Tab 16. She did not smell any chemical odour or observe any chemical like substances at this location. 83 At approximately 23:25, Ms Goodwin was at the Molonglo River causeway, downstream of the discharge point, marked as Point 6 on the map at Tab 16. She smelt a strong chemical odour and observed a hydrocarbon substance on the surface of the water. 84 At 23:50, a pump truck arrived from Flexible, being the company Mr Beck had contacted. The drivers of the vehicle were Jonathan Tabner and Adam Smith. On arrival, the truck became bogged and required the assistance of a tow truck before it could commence vacuum pumping water contaminated by the spill. 85 The Defendant did not notify Queanbeyan-Palerang Regional Council before the EPA and did not notify SafeWork NSW or the Ministry of Health of the occurrence of the first pollution incident or provide those authorities with relevant information about the first pollution incident under s 150 of the POEO Act. 15 May 2020 86 From 04:30 on 15 May 2020, tankers from Flexible were emptying contaminated water collected from the Molonglo River into IBCs on the Premises as part of the Defendant's clean up action in relation to the First Incident. Flexible were required to do multiple trips between Molonglo River and the Premises. EPA officers were present at the Premises during this activity. 87 The sluice valve and the three way valve were both in the closed position during this time. 88 At or about 07:00, Ms Goodwin went to locations marked as Points 1 and 7 on the map at Tab 16, where she smelt a strong chemical odour and observed a hydrocarbon substance on the river surface. She also observed a white boom downstream of the culvert. 89 At or about 08:00, Mr Rizzuto met with Mr Young who told him words to the effect "The Avcon team will use jet skis to drag a floating boom upstream, pushing the contaminated water floating from the surface to a point on the river where it can be vacuumed into a pump-out truck." 90 The "Avcon team" to which Mr Rossback refers is Avcon Projects who were engaged by the Defendant as its Response Contractor to undertake emergency spill response and environmental remedial works in response to the incident, including at the stormwater culvert. 91 From 09:00 onwards, the EPA's Environmental Sampling and Response Team arrived at the Molonglo River and began taking samples from the stormwater system, the discharge point and the Molonglo River. 92 At approximately 13:30, Ms Goodwin was at River Street, Oaks Estate, marked as Point 1 on the map at Tab 16. She smelt a faint hydrocarbon odour and observed a hydrocarbon sheen on the surface of the Molonglo River. 93 Ms Goodwin walked approximately 100 metres upstream of this location and observed a pump operating adjacent to the Molonglo River. The pump appeared to be extracting water. She observed a hydrocarbon sheen on water adjacent to the pump. She did not smell a chemical odour. 94 Between about 13:50 and 14.30, Mr Smith and Mr Tabner of Flexible Australia were on their fifth return to the Premises when they were met by Mr Beck, who said "we've run out of IBCs and we are waiting for more to be delivered so just empty your truck into the underground storage pit". 95 Mr Tabner parked the truck near the two solvent tanks and observed Mr Beck and one of his staff unlock a square grated lid on the ground nearby. Mr Beck removed the grate and Mr Tabner could see a pit under the grate. Mr Tabner and Mr Smith hooked a hose onto the back of the truck, Mr Beck assisted them to direct the hose into the containment pit and Mr Tabner opened the release valve. Mr Beck then went back to the office to do other work. There was between 9,000 and 10,000 litres of liquid in the truck and all that liquid was emptied into the containment pit. 96 At approximately 13:54, Ms Armstrong was at the manhole at the front of the Premises, marked as MANHOLE 1- S7 on the map at Tab 17. As the lid to the manhole was lifted at approximately 14:17 hours, she observed a volume of liquid discharging from a pipe in the manhole that appeared to come from the Premises. She smelt a strong hydrocarbon odour and observed a rainbow sheen. 97 Natasha Abbott, an officer at Queanbeyan-Palerang Regional Council, was present at the manhole with Ms Armstrong. Ms Abbott observed "strong diesel like fumes and a flow coming from the property storm water line into the pit." She describes a "running flow" discharging from a pipe into this pit. 98 Ms Abbott went into the Premises and informed Mr Beck of her observations. Mr Beck and Ms Abbott went to the stormwater pit and saw it was full of liquid, which Ms Abbott described as smelling like diesel. 99 Mr Beck instructed two employees of the Defendant to pump liquid out of the stormwater pit and they removed approximately two IBCs and two 44-gallon drums of liquid. He observed a swirling flow of water in the stormwater pit. 100 At approximately 14:30, Ms Armstrong observed that the stormwater pit and the adjacent holding tank were full. Staff of the Defendant and Flexible Australia were pumping liquid from the holding tank and stormwater pit into IBCs. 101 At approximately 14:40, Ms Armstrong was at the manhole at the front of the Premises, marked as Point MANHOLE 1-S7 on the map at Tab 17 and she observed that the flow of water had increased. 102 Ms Goodwin also observed liquid discharging from a pipe inside the manhole. She contacted FRNSW to attend the Premises. 103 At approximately 14:45, in response to the call to FRNSW, Mr Hornbuckle returned to the stormwater outlet on the Molonglo River. Mr Hornbuckle and his crew placed additional booms across the stormwater outlet. Mr Hornbuckle observed "significantly more of the chemical substance on the water and flowing from the stormwater outlet". 104 At approximately 15:10, FRNSW officers were also at the Premises collecting liquid that was discharging into the manhole at the front of the Premises and pouring it into IBCs. 105 At approximately 16:00, Ms Armstrong observed that a small amount of liquid and sludge remained in the stormwater pit. She observed that water level in the adjacent holding tank was below the three-way valve and that there was no movement of liquid from the holding tank into the stormwater pit. 106 At approximately 17:30, Mr Hornbuckle arrived at the Premises. He observed his colleague attempt to push down on the handle to the sluice valve and noticed that he could not push it down completely. Mr Hornbuckle obtained a rubber mallet from his truck and returned to the sluice valve. He firmly tapped the handle of the sluice valve with the rubber mallet, applying more pressure than he could have with his hand. He observed that the handle moved down about 50mm. He went to the manhole at the front of the Premises and observed that water had stopped flowing. He observed this pit for about 10 minutes and noticed that the flow did not start again. 16 May 2020 107 At 07:30, Mr Rizzuto inspected the Molonglo River at the culvert crossing immediately upstream of the Yass Road bridge and observed that the river had a rainbow sheen on the surface both upstream and downstream of the culvert crossing. Mr Rizzuto took photographs, which are at Tab 18. 108 At approximately 08:40, Mr Rizzuto met Mr Rossback at the stormwater discharge point and had a conversation to the effect that: Mr Rossback said: We have set up additional booms in the Molonglo River and placed them under the Yass Road bridge and we have a skimming point at this location so that no hydrocarbon moves downstream. We also have a skimming point set up 500 meters downstream of the Yass Road bridge. We are set up with portaloos at each site so assist in maintaining a presence at the site all day. We have developed more of a cleanup program. The program involves the strategic placement of skimming, pumping and temporary storage resources using pump out trucks at 4 key locations. These locations will be permanently resourced during the cleanup event. Recovered solvent will be transported to Wollongong and disposed at our facility there. The 4 locations are the outlet of the stormwater drain, a causeway directly downstream of the discharge location, at a boom 200 m downstream and at confluence of the Queanbeyan and Molonglo River to capture any solvent with migrates past the primary booming locations. Mr Rizzuto said: You need to also get the pool of water adjacent to the stormwater outlet pumped out this morning and it needs to be a priority because it is still very odorous indicating that a lot of the product is lying within the pool and free to move down the river. Mr Rossback said: OK, we will be onto it within a couple of hours. We are just finishing off the jetting of the stormwater drain and we have 2 trucks busy doing this at the moment and then they will be sent here when they have finished to start on the pool. 109 At approximately 09:20, Ms Armstrong observed a rainbow sheen and oily slick on the water downstream of the discharge location in the Molonglo River prior to the causeway on Yass Road. 110 Between about 11:30 and 15:30, Ms Armstrong visited various locations along the Molonglo River: a. She smelt a slight hydrocarbon odour at River Street and Hill Street in Oaks Estate, marked as MR-DS-4 on the map at Tab 12. b. She took a dirt track through a farm, marked as MR-DS-2 on the map at Tab 12, and observed a liquid with a rainbow sheen discharging around booms in the Molonglo River. c. She accessed the Molonglo River via a causeway off Yass Road, marked as MR-DS-1 on the map at Tab 12. She smelt at strong hydrocarbon odour and observed an oily slick on top of the water. d. She walked along the Yass Bridge Road and looked down into the Molonglo River. She observed a large visible spread of an oily substance with a rainbow sheen and smelt a strong hydrocarbon odour. e. Mr Rizzuto observed hydrocarbon slicks in the liquid pooled at the stormwater discharge outlet and the immediately adjacent Molonglo River and smelt strong hydrocarbon odours. 17 May 2020 111 At approximately 06:45, Ms Goodwin was at the Yass Road Bridge, marked as Point 7 on the map at Tab 16. She observed a white containment boom placed across the river, located downstream of the causeway. She observed a chemical sheen on the river surface both upstream and downstream of the boom and a brown coloured substance abutting the boom on the river surface. She smelt a strong chemical odour at this location. 112 Ms Goodwin travelled to the railway culvert stormwater outlet pondage. She smelt a strong chemical odour and observed a chemical sheen on the pondage surface. She again followed the drainage line. She smelt a strong chemical odour and observed a hydrocarbon like sheen on the discharging water in the discharge channel. 113 At approximately 07:44, EPA officer Amanda Fletcher was at the stormwater culvert. She smelt a strong hydrocarbon odour. 114 At approximately 09:07, Ms Fletcher accessed the Molonglo River from River Street and smelt a faint hydrocarbon odour. She observed several booms at this location. 115 At approximately 10:00, Ms Fletcher accessed the Molonglo River from the farm marked as Farm on the map at Tab 19. She observed booms on the water and a rainbow sheen. Ms Fletcher walked along the Molonglo River upstream towards the Yass Road Bridge. She observed slicks around the reeds and on the water and smelt an odour. 116 Between approximately 13:30 and 14:10, Ms Fletcher was at the stormwater outlet and walked downstream along the Molonglo River. She observed a rainbow sheen along the water and slicks captured in the booms in the river. 18 May 2020 117 At or about 07:30, Mr Rizzuto inspected parts of the Molonglo River and observed hydrocarbon upstream and downstream of the stormwater discharge outlet, but not at further locations downstream. 118 At approximately 10:00, Ms Armstrong observed a noticeable slick on the surface of the water immediately downstream of the stormwater outlet and smelt a strong hydrocarbon odour. 119 At approximately 10:40, Ms Armstrong walked along the Yass Road Bridge and observed a noticeable slick of product in the river from both sides of the bridge. Ms Armstrong walked to the causeway off Yass Road. She observed a rainbow sheen and oily slick in the river and smelt a strong hydrocarbon odour. 120 At approximately 11:00, Ms Armstrong accessed the Molonglo River off a dirt track through a farm off Oaks Estate Road. She observed a rainbow sheen and oily slick on the water and smelt a hydrocarbon odour. She walked upstream for approximately 50 metres and observed an oily slick consistently discharging downstream to where a number of booms were located. 19 May 2020 121 Between 07:30 and 09:50, Mr Rizzuto inspected the Molonglo River and only observed hydrocarbon sheen and smelt hydrocarbon odour immediately upstream and downstream of the stormwater discharge point. 122 At 11:00, Mr Rizzuto observed the Defendant and Avcon conducting clean up works, including installing a large tarpaulin near the stormwater discharge outlet to prevent hydrocarbon contamination of soils and barriers at the discharge outlet to create a sump. 123 At 19:42, Mr Cambaz sent Mr Rizzuto an email outlining the clean up actions taken that day, a copy of which is under Tab 20. 20 May 2020 124 At approximately 12:00, Ms Goodwin was at the railway culvert stormwater outlet pondage. She followed the drainage line to an area of rock rubble. She observed a pool of water with solvent and smelt a strong chemical smell. She walked approximately 20 metres upstream of this location and did not observe a chemical sheen on the water nor did she smell any odour. She then walked about 10 metres downstream of the discharge location and smelt a mild chemical odour and observed a small amount of chemical sheen on the river surface. 125 At approximately 12:30, Ms Goodwin was at the Molongo River culvert, marked Point 6 on the map at Tab 16. She observed plumes of chemical caught in the riverbank vegetation adjacent to the culvert, and smelt a moderate chemical odour. 126 At approximately 12:50, Ms Goodwin was about 200 metres upstream of the Yass Road Bridge. She observed containment booms within the river at multiple spots. She observed evidence of a chemical plume of the river surface and smelt a moderate chemical odour. 127 At 22:00, Mr Cambaz sent Mr Rizzuto an email outlining the clean-up actions taken that day, a copy of which is under Tab 21. 21 May 2020 128 On 21 May 2020, the EPA issued Notice no. 1595085 being a variation to Clean Up Notice No. 1594975. A copy of the variation notice is at Tab 22. 22 May 2020 129 At 19:19, Mr Cambaz sent Mr Rizzuto an email outlining the clean-up actions taken that day, a copy of which is under Tab 23. 23 May 2020 130 Mr Rizzuto inspected the Molonglo River and observed hydrocarbon sheen and smelt odours at a point 100 metres downstream of the discharge point. 24 May 2020 131 At approximately 12:00, Ms Goodwin was at the railway culvert stormwater outlet pondage. She observed that the culvert pondage area contained a small amount of water, with chemical sheen in sections. She smelt a faint chemical odour. She followed the drainage line to the rock rubble drain area and smelt a very faint chemical odour. Estimation of volume of Vivasol 132 The volume of contaminated water discharged from the Premises into the stormwater network as a result of each incident was approximately: a. 2,500L of Vivasol 2046 was discharged into the Council's stormwater system on 14 May 2020; and b. 1,500L of water which contained Vivasol 2046 was discharged into the Council's stormwater system on 15 May 2020. Cause of the incident 133 On 1 June 2021 Jordan McPeake of Lucid Consulting provided an expert opinion as to the cause of the incidents on 14 May 2020 and on the 15 May 2020. Mr McPeake has tertiary qualifications in mechanical engineering and is an engineer. A copy of the report is at Tab 24. 134 In relation to the spill on 14 May 2020, Mr McPeake found that the cause of the incident was the separation of the solvent ball valve and lack of secondary containment system at the location of this component. Mr McPeake was unable to confirm the cause of separation of the ball valve on the information available to him. Mr McPeake opined that the valve was unsuitable for use in the solvent system and the valve seal may have been subject to degradation from prolonged exposure to the solvent. This may have been the cause of earlier failures and leaks in the valve. Mr McPeake found that absence of the seals at the time of his inspection may have been due to the valve separation event as these components are held in place by compression within the valve assembly. 135 While the solvent ball valve was not fit for purpose and may have led to minor leaks, Mr McPeake found the incident on 14 May was caused by a separation in the valve that may have been caused by either the rotation of components from latent rotational stresses in the system; separation due to longitudinal stresses; or manual disassembly by rotation of components. As above, Mr McPeake was unable to confirm the cause of the separation of the ball valve. Nevertheless, Mr McPeake found the failure of the solvent ball valve presented a significant risk of pollution due to the lack of secondary containment provided for the component, particularly as components in mechanical and hydraulic systems are subject to failure. 136 Mr McPeake considered the first incident foreseeable due to the lack of secondary containment. He opined that components in hydraulic and mechanical systems are subject to failure and a secondary containment should have been in place to mitigate the risk of pollution events from the valve or pipework framework. 137 Mr McPeake considered a number of practical measures that would have supported the prevention of the first pollution incident included a secondary containment for the solvent transfer system, which could include encasement of valves and pipework within a secondary housing to contain solvent spill and exclude the ingress of stormwater drainage. Additionally, Mr McPeake considered that the materials within the solvent transfer system must be suitable for prolonged exposure to solvent. 138 In relation to the second incident on 15 May 2020, Mr McPeake opined that the second incident occurred due to the containment pit overflowing into the stormwater outlet pit. Based on the site reports provided to Mr McPeake, he assumed the cause to be the fact that the stormwater sluice was not in the closed position and allowed contaminated liquid to discharge into the stormwater system. The stormwater sluice valve was subject to one of two failures. First, the sluice valve was left in the open position; or second, the poor valve condition as it did not have a complete seal. The handle to the sluice valve did not incorporate obvious indicators to show the valve position and it was therefore possible that the valve could appear to be in the closed position to the operator while still allowing fluid to discharge to the utility network. 139 Mr McPeake considered it foreseeable that the overfilling of the containment retention pit may have led to the risk of pollution. Mr McPeake opined that there were practical measures that may have supported the prevention of the second incident including avoiding overfilling the containment retention pit, regular cleaning and maintenance of stormwater sluice valve, clear indication of the valve position for stormwater sluice valve and ensuring that site personnel were familiar with the design, construction and operation of the site containment system. Expert analysis of harm to the environment 140 Adrian Dickson, a Senior Scientist at the Department of Planning, Industry and Environment has produced an expert report dated 4 June 2021 in which he sets out his findings following an investigation of the impact of the two incidents on the aquatic ecosystem of the receiving waters of the Molonglo River. A copy of this report is at Tab 25. The assessment focused on aquatic macroinvertebrates. Mr Dickson has tertiary qualifications in ecology and environmental science, and has had 15 years' experience working as a researcher, consultant and scientist in the field of freshwater ecology. Mr Dickson has predominately worked in the field of river health assessment using macroinvertebrates as biological indicators of stream and ecosystem condition. 141 On 15 May 2020, staff from the Department of Planning, Industry and Environment collected macroinvertebrate samples from the waterway with samples collected both upstream and downstream of the stormwater discharge point. The sampling was repeated at the same sites on 16 June 2020 to investigate potential ongoing impacts of the contaminant discharge on the macroinvertebrate community. 142 Following an analysis of the samples collected and from a review of relevant data, Mr Dickson found that: a. The results consistently indicated the contaminant had a significant impact on the macroinvertebrate community downstream of the discharge; b. The difference in the total abundance was evident with the samples collected from downstream generally having lower abundances, which indicates a high mortality and decline in macroinvertebrate biomass in the downstream site; c. Total taxa richness (i.e. the number of different macroinvertebrate taxa contained in a sample) was significantly lower downstream. These results suggest that the contaminant had an impact on the diversity of the macroinvertebrate community and the taxa there may be physiological, history or habitat preferences (or all or a combination) that was disrupted by the contaminant. d. The SIGNAL 2-Family results indicated that the sensitive taxa were severely impacted. e. The AUSRIVAS results indicated a significant difference between the upstream and downstream samples with most samples rated as "significantly impaired". f. The results from the ACT Monitoring program indicated a decline in the macroinvertebrate community at the Molonglo River site (downstream of the contaminant discharge) in Autumn 2020, which was sampled in June 2020 after the pollution incidents. It is likely the pollution incidents separately and collectively caused the decline in the macroinvertebrate community. g. ACT monitoring results for the site in spring 2020 showed the AUSRIVAS score increased considerably and returned to the high score, close to the spring 2019 results. This suggests that the impacts of the pollution incident were temporal and may be limited to less than two months after the incident. h. The multivariate analysis suggested that both pollution sensitive and pollution tolerant taxa were affected by the pollution event. i. There is strong evidence that the contaminant had direct negative effects on the macroinvertebrate community in the reach downstream of the discharge which is likely to have had a significant impact on aquatic ecosystem processes and more broadly river health. 143 Mr Dickson concluded that: a. The pollution incidents together caused actual harm to the macroinvertebrate community through downstream movement of the contaminant, Vivasol 2046. Due to the lower density of the contaminant, compared to the freshwater of the River, it would have mainly floated on the surface of the River creating a barrier that was toxic to aquatic organisms. The contaminant likely caused fatalities and loss of a large proportion of the macroinvertebrate community (which Mr Dickson did not say comprises any endangered species) by direct contact. b. The quantity of the contaminant released into the waterway led to a slick that stretched from the stormwater discharge and more than 500 metres downstream. Notes on the habitat in the area where samples were collected from the downstream location highlighted the strong odour and visible slick that coated aquatic plants and substrate in the edge habitat areas. These habitats are critical for the majority of the edge habitat macroinvertebrate fauna. The results suggest that the contaminant reached at least 500m downstream and polluted the habitat for up to one month. c. Mr Dickson is unable to isolate the effects of each pollution incident from 14 and 15 May separately. 144 Mr Stephen George Fuller, a Senior Scientist employed by the Department of Planning Industry and Environment has provided an expert opinion dated 16 February 2021, which is at Tab 26. In this report, Mr Fuller opines about the impact of the discharge of Vivasol 2046 on 14 May and 15 May 2020 on the stormwater system but he did not consider the effect of Vivasol 2046 had on the Molonglo River or any environment outside the stormwater system. Mr Fuller found that the discharge of 2,500 litres of Vivasol 2046 on 14 May 2020 into the stormwater drain was highly likely to have a significant and adverse effect on the chemical composition of the waters in the stormwater system. Mr Fuller also found that the impacts of the discharge of Vivasol 2046 on 14 May 2020 to the physical or biological nature of the stormwater system were minimal. 145 In addition, Mr Fuller opined that the discharge of the contaminated water with Vivasol 2046 that occurred on the 15 May caused substantial temporary contamination to the stormwater system. Mr Fuller stated that the water at the outlet of the system contained measurable and toxic concentrations of petroleum hydrocarbons after approximately 48 hours of 15 May 2020. The presence of kerosene range petroleum hydrocarbons in the stormwater discharges had immediately and greatly changed the chemical composition of the water in the stormwater system compared to the expected quality of water in the system which would reasonably be expected to be rainwater. Prior convictions 146 The Defendant has no prior convictions. Assistance with authorities 147 The Defendant cooperated with the EPA by making its staff available for interviews throughout the investigation and agreeing to site inspections of the Premises, including: a. voluntarily making its employees available for seven interviews with the EPA over several days; b. making its corporate representative, Richard Pittard (Head of Environment), available for interview; c. responding to five Notices to Provide Information and Records in a timely manner; d. responding to an extensive Prevention Notice, including preparing the Arcadis Report dated 6 November 2020; e. in the weeks following the incidents: i. voluntarily making the Premises available to the EPA; ii. Informally providing documents to the EPA at their request to assist in their investigations; and iii. making staff available at the Premises for the EPA to ask questions of during inspections. Summary of clean-up actions taken by the Defendant 148 As a part of its clean-up response, the Defendant engaged: a. Flexible Australia for the purposes of vacuum pumping the polluted water from Molonglo River, as discussed in paragraph 84 above; b. internal resources, including a tanker from Wetherill Park and labour and a tanker from Unanderra, which arrived at the Premises at approximately 5am on 15 May 2021; and c. Avcon Projects, discussed at paragraphs 149 and Error! Reference source not found. below. [sic] 149 On 15 May 2021, at approximately 09:00, the Defendant engaged Avcon Projects to undertake emergency spill response and environmental remedial works in response to the incidents. Avcon Projects subsequently engaged Aquachem Solutions (Aquachem) to sample water and soil from potentially impacted locations. 150 The Defendant and Avcon completed remedial works between 15 May 2020 and 3 June 2020. Those works comprised: a. Installation of multiple surface containment booms at five separate locations across the Molonglo River. The solvent contained by the booms was removed from the water surface via a vacuum truck, or other task specific methods including high pressure water, skimming and absorbents; b. removal of pooled liquids from the culvert to the Oaks Estate Road Bridge via vacuum truck and installation of HDPE liner across the culvert footprint to capture stormwater discharge. Liquids contained by the liner were removed via a vacuum truck; and c. cleaning of the concrete lined stormwater drain using high pressure water and a vacuum truck, which was performed until solvent was no longer present in discharge waters. 151 Throughout the completion of the remedial works, Aquachem were engaged to collect representative water and soil samples to assess and validate the progress of the remedial works. 152 The remedial works concluded on 3 June 2020. 153 A report by Aquachem engaged by Avcon for the Defendant titled "Remedial Works Assessment – Avcon Projects, Queanbeyan Spill (2 July 2020, ref: AR-2006031- Final" dated 2 July 2020 is at Tab 27. 154 A peer review of that report by Lee Douglass of Reditus, titled "CEnvP-SCS Technical Peer Review of "Remedial Works Assessment – Avcon Projects, Queanbeyan Spill" prepared by Aquachem Solutions Pty Ltd (2 July 2020, ref: AR- 2006031-Final" dated 2 July 2020 is at Tab 28. Actions since the incidents 155 On 7 June 2020, the EPA issued a Prevention Notice No. 1595392 to the Defendant pursuant to s 96(3)(i) of the POEO Act requiring it to "prepare and carry out a plan of action to control, prevent and minimise pollution at the Premises" (the Action Plan) by 7 August 2020, including engaging an independent expert to undertake an assessment to inform that action plan (the Assessment) by 21 July 2020. A copy of the Prevention Notice is at Tab 29 (the Prevention Notice). 156 On 31 July 2020, the Defendant's legal representatives requested the EPA amend the Prevention Notice to amend its requirements to only prepare, not carry out, an action plan and to extend the dates for compliance with the requirement to prepare the Assessment and the Action Plan. 157 On 6 August 2020, the Prevention Notice was varied by Variation Notice No. 1598549, which extended the date for the Defendant to submit a final report on the Action Plan and Assessment to 15 September 2020. A copy of the Varied Prevention Notice is at Tab 30 (the Varied Prevention Notice). 158 A final report on the Action Plan and Assessment by Arcadis titled "Assessment in relation to EPA Prevention Notice 1595392 for 42B Aurora Avenue, Queanbeyan ACT 2620" dated 6 November 2020 was provided to the EPA on 6 November 2021. A copy of this report is at Tab 31. 159 Since the incidents the subject of the Proceedings, the Defendant has taken a number of steps to further improve its environmental practice at the Premises, in accordance with the Action Plan and Assessment developed under the Prevention Notice and the Varied Prevention Notice, including: a. replacing the three way valve; b. changing the operation of the retention pit and three way valve so that the default position is closed; c. amending processes for the drum washing and filling process so that use of clean solvent occurs within the warehouse, reducing the risk of a spill; d. removing the solvent and used solvent transfer infrastructure (including the ball valve). The solvent transfer system has been replaced by refills from IBC units, and a new procedure for the changed drum rinsing and filling process, based on the assessment of risk, has been developed. This has included the preparation of the following documents: i. Risk Assessment Form – Assessing the tasks and risks associated with: 1) the removal of the solvent transfer infrastructure; and 2) replacing the clean solvent transfers with IBC deliveries to the warehouse; ii. Modification Form MOC-0025 – Solvent infrastructure and dock area; and iii. Job Safety Environmental Analysis (JSEA) – Removal of solvent lines and associated isolation; e. Prior to opening the sluice valve and three-way valve, ensuring that inspections are undertaken to check for spills, odour in stormwater drains, visible product in stormwater drains and drain wardens; f. undertaking a significant review and update of Site plans, including: i. the Stormwater Management Plan and Pollution Incident Response Management Plan; ii. the Work Instruction Form: Loading/Unloading Waste Oil; iii. the Site Environmental Risk Register, iv. developed a Stormwater Standard Operation Procedure and Work Instruction Form: Solvent Bay Usage Unloading and Loading of Shellsol 2046; v. developed a Preventative Maintenance List and documentation of daily site inspections; g. delivering additional toolbox and training talks to ensure staff are familiar with plans and procedures in place for the Premises, including: i. PIRMP training; ii. re-training on Site Emergency Plan; iii. Queanbeyan Stormwater Procedure – Interim; and iv. CES Queanbeyan Stormwater SOP (July 2020); and h. undertaking daily documented inspections of the stormwater and spill capture systems. Vivasol safety data sheet 1. The Prosecutor tendered as part of the SOAF (Ex A, see SOAF par 21) a document headed 'Safety Data Sheet' in respect of Vivasol issued by Viva Energy Australia Pty Ltd (formerly Shell Company of Australia Ltd) dated 28 March 2017. 2. Section 2 entitled 'Hazard Identification' notes the GHS (Globally Harmonized System of Classification and Labelling of Chemicals) classification of the substance as "Carcinogenicity: Category 2" and "Hazardous to the Aquatic Environment – Long-Term Hazard: Category 3." The hazard number H351 "Suspected of causing cancer" and H412 "Harmful to aquatic life with long lasting effects" is identified. In section 6 under the heading 'Accidental Release Measures', the document states: "if contamination of sewers or waterways occurs inform the local water and waste management authorities in accordance with local regulations." In section 12 under the heading entitled 'Ecological Information' and the subheading 'Ecotoxicity', the document states: "[h]armful to aquatic life with long lasting effects." Expert report of Mr Adrian Dickson 1. Mr Adrian Dickson is a senior scientist at the Department of Planning, Industry and Environment. He was engaged by the Prosecutor to assess the environmental impact of the incidents the subject of Charges 1 and 3 in respect of macroinvertebrates. He collected samples (over two sample events) on 15 May 2020 and 16 June 2020 in addition to reviewing data provided by the ACT government from its biannual monitoring program. The parties agreed facts in relation to environmental harm based on Mr Dickson's report, at SOAF pars 140-143. Some relevant findings in Mr Dickson's report referred to by the parties but not recounted in the SOAF follow: 9. ACT monitoring results for the site in spring 2020 showed the AUSRIVAS score increased considerably and returned to the high score close to the spring 2019 results (Figure 15). This suggests that the temporal extent of impacts related to the Incident may be limited to months after the incident. … 11. As requested in the instruction 6.4 of the Brief my opinion on the nature and extent of actual harm is as follows; a. The incident caused actual harm to the microinvertebrate community through downstream movement of the contaminant, which is known as VivaSol, a Kerosene based industrial solvent. Due to the lower density of the contaminant, compared to the freshwater of the River, it would have mainly floated on the surface of the River creating a barrier that was toxic to aquatic organisms. The contaminant likely caused fatalities and loss of a large proportion of the macroinvertebrate community by direct contact. This is supported in the results of the May 2020 sampling that occurred in the days following the Incident. b…the results suggest the spatial extent of the contaminant, and hence actual harm, was at least 500m downstream and the temporal extent at the very least one month. … 12. As requested, (6.5 of the Brief) it is my opinion that the escape of a significant volume of VivaSol 2046 into the Stormwater System as a result of the pollution incidents; … b. I am not qualified to assess the actual or potential harm to human beings. Although, the strong odours I experienced when collecting samples on 15 May 2020 certainly had the potential to be a nuisance odour that could cause harm to sensitive people, but this is outside my area of expertise. … Taxa Richness 103. Analysis of the taxa richness results (Figure 2) show that there was some difference in the richness of samples collected upstream of the contaminant discharge, compared to those collected downstream, which was more apparent in the samples collected in June. Results of a t-test (two-tailed, p<0.05) showed a significant difference in the taxa richness of samples from upstream (M=22.17, SD=3.06) and downstream (M=18, SD=3.35) of the contaminant discharge; t(10)=2.25, p=0.048. In addition, the replicate sample with the highest taxa richness (28) was from the upstream site and the sample with the lowest richness (14) from the downstream site, although these were from two different sample events approximately one month apart so there may be other factors to consider. 104. Considering the total taxa richness results for each site there was an obvious difference between the two sample events with samples collected in June having a lower richness scores compared to the equivalent May samples. While there was a decrease in richness at the upstream site, the decline in richness was greater for the downstream site, as indicated by the slope of the regression lines in Figure 3. However, there are only two sample events and only two sites which provides insufficient data to report any meaningful statistics on the taxa richness trends at the site level. … 122. I received copies of the reports and AUSRIVAS results data for the ACT Water Quality Monitoring Program Macroinvertebrate Component for spring 2018 (IAE 2019), spring 2019 (IAE 2020a), autumn 2020 (IAE 2020b) and spring 2020 (IAE 2021), via email from Mr Butler on 1 Jun 2021. Copies of these reports are provided as Appendix E. 123. The report for the Macroinvertebrate Component of the ACT Water Quality Monitoring Program indicated that the sample collection for the Molonglo River site 242 occurred on 5 June 2020 (IAE, 2020b) which was after the Incident. While the precise sampling locations for this program are not given in the report the location is stated to be 'Molonglo River @ Sutton Rd Bridge'. It is assumed that this sample site is downstream of the stormwater drain that conveyed the contaminant to the River. 124. The results of the ACT monitoring program were provided in the report and in a Microsoft Excel, file containing the AUSRIVAS scores. These two data sources were cross checked to ensure results matched. 125. The ACT monitoring program results indicate the Molonglo River (site 242) has consistently been assessed as significantly impaired (Band B) for autumn monitoring since 2012 (Figure 14). The AUSRIVAS score for the site in autumn 2020, after the pollution incidents occurred, was 0.38, which rated it as severely impaired (Band C) and was a decline from the high score in spring 2019 of 0.89, which rated it as equal to reference (Band A). 126. This decline from spring 2019 to autumn 2020 was also evident in the results for the site on the Queanbeyan River (site 235) (Figure 15) although the decline at the Molonglo River site (-0.51) was considerably more than at the Queanbeyan River site (-0.16). … [Figure 14 table omitted] 127. The results of the ACT monitoring program for the Molonglo River indicate that it was equal to the condition of the reference sites in spring 2019 but was the lowest scoring of all ACT monitoring sites in autumn 2020 (Figure 15). While the report does not suggest drivers of this decline it does provide a list of macroinvertebrate taxa that were predicted to occur by the AUSRIVAS model but were missing from the test site data. The Molonglo River site had the greatest number of taxa missing (15) of all ACT monitoring sites sampled for the program in autumn 2020. This result implies a decline in biodiversity in the River that is most likely attributed to the contaminant released in the pollution incidents. 128. ACT monitoring results for the site in spring 2020 (16 and 17 Nov 2020) showed the AUSRIVAS score increased considerably and returned to the high score close to the spring 2019 results (Figure 15). This suggests that the temporal extent of impacts related to the Incident may be limited to less than two months after the incident. … 138. The results of the macroinvertebrate study demonstrate that actual harm was caused by the Incident as a reduced macroinvertebrate abundance, diversity and number of sensitive taxa was observed in the replicate samples at the downstream site. In addition, the results of the ACT monitoring program show a steep decline in AUSRIVAS score at the Molonglo River monitoring site that was not observed in the Queanbeyan River. 139. This report provides assessment on macroinvertebrate samples collected over two sample events on 15 May 2020 and 16 June 2020. The limited spatial and temporal extent of this sampling, with only two sites sampled on two occasions (with three replicates from each site for each sample event) needs to be considered as a serious limitation of this study. However, given the nature of the event and the limited time available for the response, it should be considered adequate to demonstrate potential impacts to the waterway and general river health in the contaminated reach. There is no analysis of the spatial extent of the impacts from the contaminant beyond the assessed reach 200 m downstream of the Yass Road bridge. Expert report of Mr Stephen Fuller 1. The parties agreed facts in relation to environmental harm to the stormwater system and Mr Fuller's findings are summarised in the SOAF pars 144-145. Some relevant aspects of Mr Fuller's findings referred to in submissions which were not traversed by the SOAF follow: 20. The rainfall data indicates that no rainfall was recorded during the period 2nd May 2020 to 20th May 2020. From this information I conclude that the stormwater drain was unlikely to have significant water flow during the time of the alleged incidents on 14th and 15th May 2020. … 23. The drain is constructed of two materials, PVC and concrete. This is based on my observation of the drain in the videos supplied at Tab 6 of Exhibit SF2. On the videos supplied, I also observed a substantial amount of water at section 10 of the system as marked in the map at Tab 8 of Exhibit SF2. I also note a break in the system integrity in this area, visible in the supplied video, which could result in flow of water and other materials into the surrounding soil. … 48. On this basis I consider that the actual harm to the stormwater system was trivial. However, I consider that the potential harm of the discharges into the stormwater system to have considerable potential for environmental harm. The analysis of Samples MOL 1 and MOL 2 at the exit of the stormwater system found a mixture of VivaSol 2046 and water that was toxic according to ANZECC criteria. Without effective pumping or other removal initiatives, the mixture will flow on and adversely impact ecosystems and recreational amenity downstream of the stormwater system. 1. Annexure B to Mr Fuller's report was a daily rainfall report for 2020 for 'Canberra Parliament House.' Aquachem Solutions report 1. The report dated 2 July 2020 by Aquachem Solutions (Aquachem) was commissioned by Avcon Projects, a company contracted by the Defendant to supervise remedial works at the stormwater culvert and along the Molonglo River, to provide sampling, analytical and interpretive assistance to the remedial project following the incidents giving rise to the charges (SOAF par 149-153 and annexures to SOAF). In the executive summary the report states that: …By the 22nd of May 2020 the Total Petroleum Hydrocarbon and Naphthalene concentrations were lower than the analytical limits of reporting and the ANZG and ANZECC Trigger Values… The assessment conducted concludes that, notwithstanding a small spike in hydrocarbon was detected on the 28th of May 2020 sampling event at the stormwater culvert and Sample Point 3, it is unclear what the source is, and the environmental remedial response to the original spill was adequate and satisfactorily carried out. Affidavit of Mr Richard Pittard 1. Mr Richard Pittard was employed by Cleanaway Operations Pty Ltd (Cleanaway Operations) as the Head of Environment and Regulatory Compliance as at 14 and 15 May 2020. He is now the Head of Sustainability at that company. The Defendant's business and the premises fell within his remit as the Head of Environment and Regulatory Compliance. 2. He had senior responsibility for the management of environmental regulatory and compliance functions of businesses within Cleanaway Operations' operation and control, including in relation to the Defendant's business. He had a number of subject matter professionals reporting to him and he had oversight over the management and response to incidents. 3. Mr Pittard was aware that the Defendant had pleaded guilty to the offences the subject of these proceedings. He acknowledged the incidents giving rise to the offences occurred at the premises. He acknowledged the seriousness of the incidents at the premises and emphasised on behalf of Cleanaway Operations and the Defendant their commitment to the following: 1. Being accountable to the public when incidents occur and mistakes are made. In relation to the incidents in particular, the matters have been acknowledged and reported to the public in the annual Sustainability Report published on the website of the Defendant's ultimate parent company Cleanaway Waste Management Ltd (in Ex 1). 2. Reviewing and strengthening systems and processes to minimise the likelihood of an incident of this nature happening again. 1. On behalf of Cleanaway Operations, Mr Pittard apologised for the incidents and any harm caused. 2. Mr Pittard deposed to a range of actions taken by Cleanaway Operations since the incident and endorsed by Cleanaway Operations' executive management. Following the incidents, Cleanaway Operations has taken the opportunity to learn from the incidents and to consider means to further improve environmental risk management, infrastructure and maintenance systems and the management of waste on the premises with a view to minimising the risk of any future incident of a similar nature from occurring, not just on the premises, but on all Cleanaway Operations sites. The measures taken include: 1. updating policies around stormwater system operating procedures; 2. installation of new monitoring systems which provide real-time data of tank levels, including the stormwater containment pit; 3. removal of the infrastructure used to transfer the solvent between the storage tank and filling station (including the ball valve); 4. updating premises documentation to reflect revised site practice, such as the Stormwater Management Plan, Stormwater Operating Procedure and Stormwater Isolation Valve Procedure; 5. upgrades to the spill kits on the premises to be fully equipped to respond to future spills, having regard to the sensitive receptors in the area; 6. further staff training in a number of areas, including in relation to environmental awareness, regulatory compliance and reporting of pollution incidents; and 7. changes to the way in which Vivasol is handled on the premises. 1. These changes are the key improvements to the premises and those which Mr Pittard believes demonstrate the seriousness with which the organisation has taken the incidents and its commitment to ensure better environmental performance at the premises in the future. Since May 2020 Cleanaway Operations has expended more than $75,000 in relation to the upgrade and replacement of infrastructure at the premises; and $750,000 on clean-up costs to address and rectify immediate risk and any harm caused by the incidents. 2. In March 2021 bulk tank radars were installed on the two 35 kilolitre above-ground storage tanks and the containment pit within the premises. The radars are a monitoring system which provide real-time electronic information regarding the liquid level and capacity of each vessel. The data is visible through screens to drivers arriving at the premises and using the tanks and is also available on an online remote monitoring system. The purpose of the radars is to mitigate and avoid the risk of the tanks or the stormwater containment chamber overflowing by providing real time data to both the users on the premises, such as premises personnel and delivery drivers who are using the infrastructure, and to provide a mechanism to remotely monitor the tank levels from head office as an additional compliance and auditing measure. 3. Following the incidents, changes to the stormwater operational procedures at the premises were immediately implemented. The key changes included the following. 1. The policy around the operation of the retention pit and stormwater valve has changed so that the default position of the stormwater valve is closed; it is not to be opened until an assessment of the retention pit and its contents is completed. 2. The procedures around discharging stormwater have changed so that no stormwater is discharged directly from the premises. On an interim basis all stormwater is contained onsite and taken offsite for disposal, however once Cleanaway Operations gains comfort that the captured site stormwater is free from pollution, controlled discharge from the premises may recommence. 3. In mid-October 2020 the clean and used solvent transfer system piping network was removed. The solvent transfer system has been replaced by refills from Intermediate Bulk Container (IBC) units and a new procedure has been implemented for changed drum rinsing and filling process. This has effectively eliminated the risk of any leaks associated with this system and process. The transfer of clean and used solvent now only occurs in the bunded warehouse. 1. The changes to procedure have been captured in the new Stormwater Management Plan dated July 2020. The sluice valve has also been replaced around 6 July 2020 with a new valve making it easier to operate, including clearer identification of whether it is open or closed. 2. Cleanaway Operations has reviewed operating procedures in place at the premises. This review involved updating documented procedures, including an ongoing review schedule for updating documents and updating site procedures to reflect required practice in terms of addressing areas where risks can be mitigated or ameliorated. Updated documents, which are clearly displayed around the premises, are as follows: 1. the Stormwater Management Plan (to reflect the new procedures mentioned above); 2. the stormwater isolation valve procedure; 3. the pollution incident response management plan; 4. the 'work instruction form: loading and unloading of waste oil for transfers of waste oil at the tank farm'; 5. the site environmental risk assessment; 6. the stormwater standard operation procedure and 'work instruction form: solvent bay usage unloading and loading of Shellsol 2046 (rinsing and filling solvent drums)'; 7. The proactive inspection and maintenance schedule; and 8. documented regular inspections of the premises. 1. Site specific "environmental awareness" training has been carried out for all personnel who are working from the premises on 4 March and 9 March 2021. The new supervisor of the premises undertook that training on 14 April 2021. This awareness training was part of a national training program delivered across Cleanaway Operations' New South Wales managed sites in March 2021. That training has included content related to the requirements of environment protection licences under the POEO Act, notification requirements to the EPA and other authorities under the POEO Act and procedures and expectations around spill management, maintenance of plant equipment and storage of waste. Additional training related to updated procedures and documents was delivered to staff at the premises in June and July 2020. 2. Vivasol is now handled differently on the premises. Bulk storage of solvent no longer occurs. Material is now only stored in IBCs, typically four to six on the premises. The IBCs are contained in a bunded shed. There is also no fixed distribution infrastructure remaining on the premises meaning the incidents could not happen again. 3. An emergency spill kit has been designed and is held in the warehouse at the premises for easy access. It was designed specifically for the premises to deal with any incidents which result in spills in a waterway. The kit contains floating booms and robust spill equipment exceeding that typically found in standard spill kits. It was installed in August 2020. 4. Since the incidents there has been a re-prioritisation and emphasis on reviewing and improving (where required) environmental management procedures across all of Cleanaway Operations' sites. This has been part of a process of re-emphasising that environmental compliance and sustainability is one of the key foundations of the business. Commitment to encouraging environmental compliance is a core part of the operation of each Cleanaway site. Examples of nationwide measures that demonstrate this approach include the introduction of the following. 1. 'Environmental Absolutes', which are documents distributed to employees that provide a clear set of minimum requirements that must be adhered to on each site and elevate the importance of the management of the environment and safety. They are used for benchmarking and reporting to executive management. 2. 'Compliance Essentials', which are aimed at improving risk identification while providing a list of management strategies and controls to guide sites to achieve environmental compliance and good practice. 3. Two new national roles focused on driving down environmental risks and improving performance through data analytics and other efficiencies respectively. 4. 'Safe, Compliant, Reliable Operating Assets', a new tool to assist in the carrying out of benchmarking and auditing of compliance. 1. Mr Pittard also deposed to the various community and educational initiatives to which Cleanaway Operations has contributed and its embrace of reconciliation action plans. Some of the community initiatives include assisting the charity Clean Up Australia and operating the "kNOw Waste" school program teaching children the importance of sustainability and recycling through kerbside waste education. Financial report for Cleanaway corporate group 1. The Annual Report for Cleanaway Waste Management Limited, the ultimate holding company of the Defendant, for the 2019-20 financial year was annexed to the SOAF. In 'FY2020 snapshot', the 'financial highlights' include that that company had revenue of $2,332 million. Purposes of sentencing 1. All the offences will be considered together unless it is necessary to differentiate between them. 2. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) states: Part 1 Preliminary … 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. 1. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of a defendant: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-73 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-91 (Deane J). The sentence should not exceed what is justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen (No 2) at 472, 485-86, 490-91, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 (Hoare) at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ). Objective seriousness Nature of the offences 1. A fundamental consideration for environmental offences is the extent to which the defendant's conduct offends against the legislative objectives expressed in the offence: R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [52]; and Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Rae) at [15]. The objects of the POEO Act are set out in s 3 above, which assist in ascertaining the purpose of creating an offence: Environment Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80 at [97] (Preston CJ). The objects include the reduction of risk to human health and the prevention of degradation of the environment by the elimination of harmful wastes in subs (d) inter alia. Charges 1 and 3 1. The offence of water pollution plays an important role in giving effect to the objects of s 3 of the POEO Act (see above in [4]) which include to protect the quality of the environment and to prevent pollution of it. As Preston CJ observed in Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 at [23]: "pollution of waters is a result offence where the prescribed result directly undermines the object of the Protection of the Environment Operations Act 1997." In Axer Pty td v Environment Protection Authority (1993) 113 LGERA 357, Mahoney JA referred to the need for businesses to take steps to ensure their activities complied with the requirements under the POEO Act, as at 359 his Honour stated: 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 that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur. 1. As the Prosecutor submitted, the prohibitions on pollution in the POEO Act are moderated by the licencing regime in the legislation, which allows holders of environment protection licences to undertake activities that would otherwise constitute pollution or may cause pollution. The Defendant's Environment Protection Licence 6090 allowed the Defendant to undertake certain activities relating to waste storage at the premises (see pars 6-9 of SOAF). By polluting waters, the Defendant undermined the objects of the POEO Act and the statutory scheme that prohibits pollution unless in accordance with an environment protection licence. Charge 2 1. The Defendant's failure to immediately notify the spill of the harmful chemical Vivasol undermines the statutory scheme for addressing polluting activities. The requirement to report a pollution incident to government entities as required under s 148 of the POEO Act enables the government entities to make decisions about the appropriate response to a pollution incident: Forbes at [51]. Defendant's state of mind 1. Offences under ss 148 and 152 involve a mens rea element (see above in [2]). Offences under s 120 are offences of strict liability. Mens rea is not an element of the offence. The offender's state of mind at the time of committing the offence may nevertheless be relevant when assessing the objective seriousness of the offence: Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 at [72] (Brereton JA, Harrison and Bellew JJ agreeing); Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd (2020) 245 LGERA 241; [2020] NSWLEC 125 at [14] (Preston CJ). The Prosecutor did not identify any relevant aspect of the Defendant's state of mind as manifested through the beliefs and actions of its employees. 2. As the Defendant submitted no deliberate conduct on its part to avoid or ignore its obligations under its licence was alleged. The incidents giving rise to Charges 1 and 3 were not part of a pattern of pre-existing conduct whereby it wilfully carried out its activities without regard to the environment. Maximum penalty 1. In setting a penalty the Court should have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and 701: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided... …the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty. 1. The maximum penalty for an offence represents the legislature's assessment of the seriousness of the offence and therefore provides a sentencing yardstick. It commonly invites comparison between the case before the Court and cases falling within the category of the "worst case". 2. The maximum penalty for an offence against s 120 of the POEO Act in the case of a corporation at the time of the offending was $1,000,000 and $120,000 for each date the offence continues where the offence is a continuing offence. Neither Charges 1 nor 3 are continuing offences. 3. The maximum penalty for an offence contrary to s 152 of the POEO Act in the case of a corporation was at the time of the offending $2,000,000 and in the case of a continuing offence a further penalty of $240,000 for each day the offence continues. Charge 2 is not a continuing offence. Matters to be considered in imposing sentence under POEO Act s 241(1) 1. Section 241 of the POEO Act provides for a range of matters that the Court is required to take into account in sentencing offenders under the POEO Act. It is helpful to set it out as relevant at the time of the offending once again as follows: Chapter 8 Criminal and other proceedings … Part 8.2 Proceedings for offences … Division 5 Sentencing 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. (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant. Harm or likely harm to environment: s 241(1)(a) 1. The SOAF contains the matters agreed in relation to environmental harm at pars 140-145. I note for completeness that the Molonglo River is in the ACT. No jurisdictional issue arises in taking the harm or the potential for harm caused by the offences in the Molonglo River in the ACT into account: Environment Protection Authority v Queanbeyan City Council (No 3) (2012) 225 A Crim R 113; [2012] NSWLEC 220 at [149]-[153] (Pepper J). Submissions on Charges 1 and 3 1. The Prosecutor emphasised that actual harm to the environment was caused as well as potential for harm. The POEO Act defines "environment" broadly (see above in [4]). In Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Preston CJ held at [145]: Harmfulness needs to not only be considered in terms of actual harm, the potential of risk of harm should also be taken into account. 1. In Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66, Lloyd J held at [44]: In considering the harm likely to be caused to the environment, it is noted that the word "likely" in this context has been held to mean a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance… 1. It is not possible to separate out the environmental harm caused by the incidents the subject of Charges 1 and 3 (SOAF pars 140-145). The Safety Data Sheet for Vivasol identifies that it is harmful to the aquatic environment as well as humans (see above in [11]-[12]). Molonglo River 1. The solvent caused substantial harm to the ecosystem of the Molonglo River as evidenced by the report of Mr Dickson. He found that Charges 1 and 3 had a significant impact on the macroinvertebrate community downstream of the point of discharge including the decline in macroinvertebrate biomass in the downstream site and the diversity of the macroinvertebrate community. Mr Dickson concluded that the pollution incidents caused actual harm to the macroinvertebrate community as it was toxic to aquatic organisms and caused fatalities and loss of a large proportion of the community by direct contact. The quantity of contaminant led to a slick that stretched from the stormwater discharge to more than 500 metres downstream. It caused a strong odour and visible slick that coated aquatic plants and substrate in the edge habitat areas, which are critical for the majority of the edge habitat macroinvertebrate fauna. Mr Dickson found the habitat was polluted for up to one month (SOAF pars 142-143). 2. The harm caused was also evidenced by the observations of EPA officers of hydrocarbon odour, an oily sheen and slicks of oil on the river from 14 May 2020 to 20 May 2020 as set out in pars 73, 76-83, 88, 92-93, 107-131 of the SOAF. The hydrocarbon odour and the visible sheen on the surface of the water were themselves a species of environmental harm (Tcpt, 8 March 2022, p 22(2-3)). 3. The Prosecutor submitted in response to the Defendant's submissions below in [57] that there was in fact evidence of water quality in the Molonglo River at the relevant time (Tcpt 8, March 2022, p 31(24)-32(4)). Mr Dickson engaged with evidence that was available to him from AUSRIVAS in his report (Mr Dickson pars 122-128 above in [13]). It is accepted that there was no assessment made of macroinvertebrates immediately before the pollution incidents, but this is to be expected and is unimportant where recent AUSRIVAS data was available. 4. The Defendant accepted that the amount of Vivasol discharged was not trivial but submitted that it was not a significant quantity in the context of the scope of the most serious offences of this kind. The incident giving rise to Charge 1 was not lengthy in the context of this type of offending. Mr Beck did not notice anything amiss at 06:00 and noticed the leak of Vivasol at 12:00 (SOAF pars 39, 41 and 42). He immediately closed the emergency shut off valve (SOAF par 43) and took steps to ameliorate risk and investigate possible harm by placing oil socks from a spill kit into the drain and collecting around 500 litres of solvent out of the drain using a bucket and an IBC (SOAF pars 43, 44). In relation to Charge 3, the Defendant submitted that its responses were efficient and appropriate and ensured any harm was controlled, minimised, or abated. 5. The Defendant accepted that there was actual harm caused to the aquatic ecosystem of the receiving waters of the Molonglo River. Mr Dickson assessed the actual harm was "at least 500m downstream and the temporal extent at the very least one month" (Mr Dickson par 11(b) above in [13]). Macroinvertebrate samples were collected on 15 May 2020 and 16 June 2020. There is no evidence and no analysis as to the potential impacts after 16 June 2020. The quantity of contaminant was said to lead to a slick that stretched from the stormwater discharge and more than 500m downstream (but does not specify how far). 6. There is no evidence of harm further than the spatial area of 200m downstream of the Yass Road Bridge, being the assessed reach (Mr Dickson par 139 above in [13]). 7. There is no evidence specifically as to water quality of the Molonglo River prior to the incident. The extent of the harm is difficult to identify especially where there is no evidence as to what, if any, macroinvertebrates were present shortly before the date of the offences in the relevant area. 8. That only two sample events (May and June) and only two sites were employed by Mr Dickson meant that he provided insufficient data to report any meaningful statistics on taxa richness trends at the site (Mr Dickson pars 103-104 above in [13]). 9. Mr Dickson's report, in the Defendant's submission, also indicated that harm to aquatic environment was limited in other ways: 1. harm was limited to the Molonglo River and did not reach the Queanbeyan River (Mr Dickson par 138 above in [13]); 2. Vivasol would have mainly floated on the surface of the river because of its lower density compared to freshwater, meaning there is no evidence to suggest it infiltrated or permeated the lower levels of the water (Mr Dickson par 11(a) above in [13]); 3. ACT monitoring results for the site in Spring 2020 showed AUSRIVAS scores increased considerably and returned to the high score close to the Spring 2019 results, suggesting that the temporal extent of the impacts related to the incidents may have been limited to less than two months after the incidents giving rise to Charges 1 and 3 (Mr Dickson above in (Mr Dickson par 9 above in [13]). 1. The Defendant replied to the Prosecutor's submission above in [53] by submitting that the nature of the AUSRIVAS data lacks specificity, for example in relation to the approximate location given for the sampling site, especially in relation to the stormwater drain. Not unusually, there are limitations to the data. Stormwater 1. The Prosecutor submitted that the Vivasol leaked on 14 and 15 May 2020 likely caused harm to the waters in the stormwater system. Mr Fuller opined that the discharge of 2,500 litres of Vivasol on 14 May 2020 likely had a significant and adverse effect on the chemical composition of the waters in the stormwater system and the discharge of 1,500 litres of water that contained Vivasol on 15 May 2020 immediately and greatly changed the chemical composition of the water compared to the expected quality of the water, namely rainwater (SOAF pars 144-145). 2. The Defendant emphasised other aspects of Mr Fuller's opinion. Mr Fuller concluded that the contamination of the stormwater system was temporary and the impacts on the physical and biological status of the stormwater system were minimal (SOAF at 144). There was no significant established ecosystem in the stormwater system (at least until near the end point) and the actual harm to the stormwater system was trivial (Mr Fuller at par 48 above in [14]). The impact of the Vivasol on the stormwater system lasted until the oil either slowly evaporated or the system was flushed out with rainwater, which would have occurred on 21 May 2020 (Mr Fuller at par 23 above in [14] and Annexure B). Submissions on Charge 2 1. The Prosecutor submitted that the delay in notification to authorities caused delay in the clean-up which can result in an amplification of harm to the environment. While there is no evidence that harm was in fact amplified, potential for harm is relevant to sentencing. The clean-up only began on 15 May 2020. The Prosecutor submitted the Defendant's actions in making enquiries with the Council to obtain stormwater plans and sending Mr Beck to the Molonglo River to take samples, undermines the purposes of s 148 of the POEO Act as it caused unnecessary delay in reporting the incident. It is not for the Defendant to undertake its own investigations as to the environmental harm actually caused in circumstances where it is obvious that a large quantity of solvent entering the municipal stormwater system has the potential to cause environmental harm. Undertaking such investigations undermines the object and purpose of s 148 which requires swift reporting to the relevant authorities so that appropriate steps may be taken to mitigate environmental harm. The longer the Vivasol took to reach the Molonglo River, the greater the potential impact of the delay in notifying. If it was the case that the Vivasol would take a long period of time to reach the Molonglo River, that means there was a greater period of time in which something could have been done to mitigate the environmental harm which may have been caused. 2. The Defendant submitted that it was dealing with multiple relevant considerations at the same time; it was plainly and responsibly seeking to discuss internally the fact of the spill event and its implications, to take swift action to deal with it and to commence the steps required to mitigate harm. It was alive to its notification obligations. There is no evidence that the delay resulted in the amplification of harm or had a deleterious impact on clean-up efforts. The Vivasol did not enter the Molonglo River until approximately 18:37 (SOAF par 73), nearly two hours after notification of the EPA. No rainfall was recorded during the period 2 May 2020 to 20 May 2020, meaning the stormwater drain was unlikely to have significant water flow during the time of the incidents on 14 and 15 May 2020 (Mr Fuller at par 20 above in [14]). That also tends against the inference that any delay in notification or clean-up efforts amplified the harm caused to the environment. There was no evidence that the EPA would have done anything differently had it been aware of the incident earlier. Consideration of environmental harm 1. The substantial amount of Vivasol discharged into the Council's stormwater system on 14 May 2020 was estimated to be 2,500 litres. On 15 May 2020 1,500 litres of water that contained Vivasol was estimated to be discharged into the Council's stormwater system: SOAF par 132. The safety data sheet for Vivasol summarised above at [11]-[12] identifies its toxicity in aquatic environments with long lasting effects and negative impact on human health. Charge 1 and 3 1. Given the close proximity in time and discharge of the same pollutant it is not possible to distinguish between the harm caused by each offence. Actual harm to the environment, as defined in the Dictionary to the POEO Act, occurred. Water pollution as defined in the POEO Act occurred. The summary of the evidence of harm by the Prosecutor above in [50]-[52] accurately summarises the expert evidence on actual and potential environmental harm in relation to the Molonglo River in the SOAF at pars 140-143 being the evidence of expert Mr Dickson. The undisputed analysis of Mr Dickson about the impact of the two water pollution incidents focussed on aquatic macroinvertebrates, based on sampling undertaken by departmental staff. Mr Dickson's findings, summarised in the SOAF par 142, were that there was a significant impact on the macroinvertebrate community downstream of the discharge point in the Molonglo River due to severe impacts on abundance and taxa richness. Monitoring in autumn 2020 indicated a decline in the macroinvertebrate community which was likely to result from the two pollution offences. Actual harm occurred, as identified in the SOAF par 143, for a distance of some 500 metres downstream from the discharge point. Extracts of Mr Dickson's report are set out above in [13] in particular his observations and findings about the negative impact on the richness of taxa samples resulting from comparison of upstream and downstream sampling resulting from the offence, and his consideration of AUSRIVAS data for the ACT Water Quality Monitoring Program Macroinvertebrate Component during 2019, 2020 and 2021. That data suggests a decline in taxa in the Molonglo River as a result of the incident according to Mr Dickson with decline considerably more than at the Queanbeyan River site. 2. While the Defendant sought to emphasise that the impact on the aquatic environment in the Molonglo River was short lived on the basis it was no more than two months and of limited geographical extent, that the harm occurred over several weeks was significant and a not insignificant stretch of the Molonglo River was affected. 3. In relation to the stormwater system, Mr Fuller considered the effects of Vivasol discharged on 14 May 2020 on the stormwater system would have highly likely been significant and adverse for the chemical composition of the waters in the stormwater system, as summarised in the SOAF at par 144. In the extract of his report at [14] he concluded that actual environmental harm was trivial although identified considerable potential for environmental harm in the stormwater system from the discharges. In relation to Charge 3 on 15 May 2020, Mr Fuller found that the discharge caused substantial temporary contamination to the stormwater system and immediately and greatly changed the chemical composition of the stormwater such that it had elevated concentrations of petroleum hydrocarbons. These findings were not disputed. The Defendant sought to minimise these by emphasising other findings of Mr Fuller such as that contamination was temporary (lasting at most until 21 May when rainfall would have flushed the pollutant out), the impacts on the physical and biological status of the stormwater system were minimal, there was no significant established ecosystem in the stormwater drain and actual harm was trivial. Such arguments raise matters of impression or emphasis. It is clear that Charges 1 and 3 were highly likely to have had a significant adverse effect on the chemical composition of the waters of the stormwater system albeit the harm was temporary. 4. The Prosecutor accepted that there is no evidence of any actual harm to humans as a result of the contamination. In relation to potential harm to human health, the safety data sheet for Vivasol in Ex A (see above in [11]-[12]) explicitly states that the substance is dangerous to humans including as a carcinogen. The Defendant submitted that, given the conclusion of the Acquachem Solutions report above in [16], potential harm to humans did not exist beyond 22 May 2020 as no chemical was detected above ANZG and ANZECC trigger levels on that day, accordingly potential harm to humans existed from 14 May to 22 May 2020. While the Vivasol was present in the river for a relatively short period the volume of Vivasol was substantial and there was potential for adverse impacts on human health which underscores the seriousness of the offence. Charge 2 1. The consequence of the failure to notify the Prosecutor identified in the summons for Charge 2 was disputed as set out at [63]-[64]. The potential for greater environmental harm arises if any clean-up the Prosecutor considered appropriate did not commence as fast as desirable. As the Defendant submitted, there is no evidence the delay in notification of the EPA of some four hours did in fact result in greater additional risk of environmental harm. 2. There is no evidence that the failure to notify the Ministry of Health or SafeWork NSW had any impact on the response to the pollution incident, such as that those two organisations would or might have made decisions or responded to the incidents. FRNSW did not need to attend the premises. The Council was notified shortly after the EPA and attended the premises at the request of the Prosecutor (SOAF par 72). In other words the failure to notify the Prosecutor in a timely manner represents the gravamen of Charge 2. Practical measures to prevent or mitigate harm: s 241(1)(b) 1. As the Prosecutor submitted there were practical measures that could have been taken to prevent or mitigate the harm from the spill the subject of Charge 1. The SOAF pars 133-137 provides the opinion of Mr McPeake about the causes. He found that a secondary containment system would have mitigated the risk of failure of the ball valve particularly as the equipment is subject to risk of failure (SOAF par 136). The absence of such a secondary containment system renders the offence more objectively serious because the Defendant is part of a large waste management corporate group where the parent company, Cleanaway Management Limited, has significant resources making $2,332 million in revenue in the 2020 financial year (see above in [32]). The Defendant had the resources and knowledge to ensure these measures were taken on the premises. The measures that the Defendant has taken as deposed by Mr Pittard above in [17]-[31] were practical measures which could have been undertaken earlier to prevent the spill that occurred. 2. In relation to Charge 3 and based on Mr McPeake's evidence as summarised in the SOAF pars 138-139, as the Prosecutor submitted, the Defendant could have avoided overfilling the containment pit (which had a capacity of 8,000L, where the tank which discharged to it held 9,000-10,000L), engaged in regular cleaning and maintenance of the sluice valve so that it could close properly, ensured the sluice valve had a clear indication of the valve position, and ensured that its personnel were familiar with the design, construction and operation of the containment system. The necessity of those measures is demonstrated by the fact that the Defendant implemented many of them after the incidents. 3. In relation to Charge 2 practical measures could have been taken to ensure that the Defendant's officers reported to the relevant authorities immediately. The Defendant's Pollution Incident Response Management Plan was not up-to-date as it stated that the Business Unit manager, who was required to be notified of any pollution incident, was Mr Nathan Hage, who no longer worked for the Defendant as of 14 May 2020 (SOAF pars 29-32). Foreseeability of harm: s 241(1)(c) Charge 1 1. In relation to Charge 1 while there is no evidence of what caused the separation of the ball valve, the precise cause of the incident is not required to be foreseeable: Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 at [122] (Robson J). There is nevertheless evidence that the valve had leaked previously. A plumber was called to the premises to investigate the ball valve on 12 May 2020 and he observed a small patch of liquid underneath the valve suggesting it had leaked previously (SOAF par 38). Mr Beck messaged Mr Young: "I have lost between 2 and 3000ltr of solvent another bust line" (SOAF par 48) suggesting that the line had failed in the past. At 14:34 on 14 May 2020 Mr Beck emailed Mr Young stating: "this is the second break in the solvent line", further evidence of foreseeability (SOAF par 51). Mr McPeake, a mechanical engineer, opined that the 14 May 2020 incident was foreseeable due to a lack of secondary containment in the context of hydraulic and mechanical systems that are subject to failure (SOAF par 136). 2. The Defendant submitted that Charge 1 was not foreseeable because it could not be foreseeable that the ball valve would fail in the way that it did and it cannot be contended that the Defendant was alive to the issue and failed to do something about it. On 11 May 2020 an employed driver of the Defendant observed that the ball was leaking and arrangements were made for a plumber to attend to the ball valve (SOAF par 35). There is no evidence that it was obvious that the ball valve would fail in the way it did in circumstances where a contractor was promptly engaged to ameliorate the possibility or risk. In fact the expert evidence of Mr McPeake was unable to confirm the cause of separation of the ball valve (SOAF par 134). 3. Concerning Charge 1 Mr McPeake's evidence about the causes of the incidents are identified in SOAF pars 133-136. The causes were the separation of the solvent ball valve and lack of secondary containment system at the location of this component. Mr McPeake considered the valve was not fit for purpose given its use in a system which gave rise to long exposure to solvents. This combined with the absence of a secondary containment system which should have been in place gives rise to a finding that the circumstances giving rise to the offence were foreseeable and the harm that resulted was foreseeable, as the Prosecutor submitted. Charge 3 1. In relation to Charge 3 Mr McPeake opined that the incident was foreseeable in that if the sluice valve was not in the closed position it would allow contaminated liquid to discharge into the stormwater system. 2. The Defendant accepted that Charge 3 was foreseeable given Mr McPeake's opinion that the handle of the sluice valve did not incorporate obvious indicator to show the valve position and it was possible that the valve could have appeared closed while still allowing fluid discharge (SOAF par 138). Mr Beck closed the sluice valve shortly after 12:00 on 14 May 2020 and there is no evidence that the Defendant was on notice of the potential sluice valve failure or that it was in an obvious state of disrepair. 3. Charge 3 was clearly foreseeable. The capacity of the holding tank of 8000 litres, SOAF par 12(g), was exceeded by the amount of liquid discharged from the holding tank on the truck used in the clean-up which had a capacity of some 9,000 to 10,000 litres (SOAF par 95). The inadequacies in relation to the sluice valve positioning and the absence of a secondary collection system as highlighted by Mr McPeake's evidence set out in the SOAF pars 138-139 confirms that foreseeability of the circumstances and the harm that resulted. Charge 2 1. Concerning Charge 2 I have found above there was potential for harm to the environment caused as a result of the circumstances of the offence. To the extent I have made that finding foreseeability of harm arises. Control over the causes giving rise to the offence: s 241(1)(d) 1. The Defendant had control over the causes of all three offences. Complying with orders: s 241(1)(e) 1. Section 241(1)(e) is not applicable. Conclusion on objective seriousness of offences Charges 1 and 3 1. Given their close connection in time and nature I will consider Charges 1 and 3 together. The industrial solvent released into the stormwater system and the Molonglo River was highly toxic and the quantities spilled as a result of Charges 1 and 3 were substantial. Actual environmental harm to the environment as well as potential for harm to the environment and to human health arose. The causes of the offences were foreseeable, avoidable and the Defendant had control over the causes. Charges 1 and 3 are in the mid-range of the medium range of objective seriousness. Charge 2 1. The parties agree that the obligation to inform the five entities identified in the summons for the charge arose at 12:44 on 14 May 2020 when Mr Beck became aware that a large amount of Vivasol had escaped into the stormwater system. The EPA was notified some four hours later (SOAF par 63), the Council some 4 and a half hours later (SOAF par 67) and Fire and Safety NSW some five hours later (SOAF par 69). The Ministry of Health and SafeWork NSW were not informed (SOAF par 85). There is no evidence that the Ministry of Health and SafeWork NSW had any role to play in responding to the events giving rise to Charge 1. Failure to notify them was a failure to notify a relevant authority regardless. 2. The Prosecutor criticised the Defendant delaying notification while it took action to address the spill, submitting that was not the Defendant's role. As I observed in Bulga at [89] nothing in the POEO Act supports that submission. The submission also overlooks the substantial efforts made by the Defendant's employee Mr Beck immediately after the spill was noticed to stop further discharge into the stormwater system, implement some clean-up measures promptly including removal of Vivasol using a bucket to prevent more escaping, and reporting the incident to his boss. It is agreed that the Defendant via Mr Beck did not know the stormwater system drained to the Molonglo River at around 12:00 when he first started investigating the spill (SOAF par 42). The Prosecutor submitted that clean-up action was delayed but there is no evidence to support that submission. It is not necessarily the case that delayed notification means that no clean-up action can occur. Clean-up action did occur in this case. 3. The Defendant did not dispute that its Pollution Incident Response Management Plan was out of date in that it did not specify the appropriate people to contact. 4. I accept the Defendant's submission that the chronology in the SOAF reveals that the Defendant's employees were alive to the potentially harmful effects of Vivasol, including on the environment (SOAF par 9, Safety Data Sheet above in [12]); alive to the obligation to report to the EPA (SOAF par 56 and 59); and took steps to assess whether it was a reportable incident and to mitigate any potential harm. While notification to the EPA was not immediate in the context of the obligation under s 148(2) of the POEO Act, notification was made a little over four hours after the Defendant became aware that the incident was a pollution incident that might cause material harm to the environment. There was no wilful disregard by the Defendant of the obligations to report. There was no attempt on the part of the Defendant to conceal the spill. There is also no evidence that the delay resulted in amplification of harm, as accepted by the Prosecutor (above in [63]) or had a deleterious impact on clean-up efforts. 5. For the reasons above Charge 2 is in the low range of objective seriousness. Subjective matters 1. Section 21A(3) of the CSP Act identifies a number of mitigating circumstances which must be considered in determining the appropriate sentence for an offence. Other provisions in Part 3, Division 1 of the CSP Act where relevant require the Court to take into account other factors in sentencing or confer discretion to take into account further matters. Guilty plea: ss 21A(3)(k), 22 1. Pleas of guilty can be considered in mitigation depending on when a plea is entered by a defendant. The utilitarian value of a plea should generally be assessed in the range of a 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall is the timing of the plea: R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] (Spigelman CJ, with whom Wood CJ at CL, Foster AJA and Grove and James JJ agreed). 2. I accept the Defendant's submission that the plea of guilty on 21 May 2021 at the second directions hearing should attract the maximum discount of 25% because it was entered at the first reasonable opportunity. Contrition/remorse: s 21A(3)(i) 1. The Defendant submitted that its guilty plea, the evidence in the SOAF and Mr Pittard's affidavit demonstrate that it has accepted responsibility for its actions, has acknowledged the harm caused by its actions and made reparations for such harm. Mr Pittard apologised for the incidents, acknowledged their seriousness, and confirmed the commitment of the Cleanaway group to accountability in the form of self-reporting incidents to the industry, its clients and the public in the annual sustainability report published on its website. Mr Pittard's affidavit demonstrates that the Cleanaway group is committed to reviewing and strengthening its processes and systems to minimise the likelihood of a recurrence of these incidents. The Defendant accepted that it should have notified the Prosecutor earlier and has provided comprehensive training to staff about notification requirements. I accept that the Defendant has demonstrated contrition including by its actions taken after the offences to ensure no repetition, as attested to by Mr Pittard. Good character: s 21A(3)(f) 1. The Defendant has no previous convictions (SOAF par 146) and I accept is of a good corporate character in light of the evidence of Mr Pittard above in [31]. Cooperation with regulatory authority: ss 21A(3)(m), 23 1. The Prosecutor accepted that the Defendant cooperated with the Prosecutor by making its staff available for interviews throughout the investigation and agreeing to site inspections as set out in the SOAF par 147. Unlikely to reoffend, s 21A(3)(g) 1. The Defendant submitted that the Court should be assured that it is unlikely to reoffend, due to proactive and significant policy and training changes that have been made as described in Mr Pittard's affidavit (see above in [17]-[31]) and which go well beyond the requirements in the Prevention Notice issued. The Court should reject the Prosecutor's contention that it cannot be satisfied the Defendant will be unlikely to reoffend in relation to the Charge 2 offence. The Defendant accepted that notification to the EPA should have been made earlier and it has provided comprehensive training to staff about the notification requirements under the POEO Act. 2. The Prosecutor accepted that Mr Pittard's affidavit (see above in [17]-[31]) demonstrates that the Defendant has implemented staff training as to the reporting requirements under the POEO Act if an incident occurs. Mr Pittard is otherwise silent as to the content of that training. It is unclear whether the Defendant is instructing staff to undertake its own investigations as to whether the incident caused actual harm to the environment prior to reporting where the incident clearly has potential to cause material harm to the environment, as occurred on 14 May 2020. The Defendant's evidence is insufficient to establish that the Defendant will not re-offend in relation to its reporting requirements under s 148 of the POEO Act. 3. I accept the Defendant's submission that it is unlikely to reoffend. Sentencing principles General and specific deterrence 1. General deterrence is an important consideration in offences before the Court. Nominal fines do not deter: Rae at [13] (Preston CJ), Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [140] (Preston CJ); Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 at [98] (Sheahan J). 2. In Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 (Abbas), concerning an offence under s 142A(1) inter alia, at [104]-[105] I stated: 104. General deterrence is an important aspect of sentencing in environmental crime. As held by Preston CJ in Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]-[140]: The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93] per Lloyd J. 105. Specific or personal deterrence is applicable where an offender has a prior criminal record which manifests a continuing attitude of disobedience, such that more weight should be given to retribution, personal deterrence or protection of the community: Veen (No 2) at 477; R v Abboud [2005] NSWCCA 251 at [33]; R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [54]. 1. As the Prosecutor submitted general deterrence is important because the prohibition on water pollution is a critical aspect of the regulatory framework for environmental protection established by the POEO Act. 2. Turning to specific deterrence, the Prosecutor submitted that has particular importance where the offender continues to operate in the same area of operation as that in which the offence occurred: Environment Protection Authority v Ardent Leisure Ltd [2018] NSWLEC 36 (Ardent Leisure) at [135] (Robson J). The Defendant meets that criterion. There is an ongoing risk of water pollution. The penalty must also be sufficient to deter the Defendant in circumstances where the Defendant is part of a large corporate group with revenue in 2020 of $2,332 million. 3. The Defendant submitted that it has taken extensive measures to review and strengthen its systems and processes to minimise the likelihood of an incident happening again (see Mr Pittard's affidavit above in [17]-[30]). Mr Pittard's evidence is that the Defendant and the Cleanaway corporate group acknowledge the seriousness of the incidents and have taken the opportunity to learn from this, improving environmental risk management, infrastructure and maintenance systems at the premises and across sites nationally. The Defendant's conduct was not deliberate. It submitted there is no need for specific deterrence to be considered in sentencing. 4. This is the first conviction for this Defendant so that specific deterrence in terms of a continuing attitude of disobedience to the law does not arise. The Defendant will continue to operate in the same field of operation. I consider it has demonstrated through Mr Pittard's evidence that it has taken substantial steps to prevent a recurrence so that specific deterrence has less relevance for this particular Defendant. Even-handedness/parity 1. The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty: R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Lee and Maxwell JJ agreeing). This principle must always be applied subject to the particular circumstances of the case before the Court: Hoare at 354. The principle of even-handedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [42]. A history of sentencing in other cases does not limit my sentencing discretion. 2. The parties provided a large number of s 120 water pollution cases in tables attached to their submissions. The following cases were identified as of possible assistance. 3. In Ardent Leisure, the defendant was charged with inter alia an offence against s 120. The maximum penalty was $1,000,000 for a corporation. Approximately 5,845 litres of diesel fuel flowed into Sydney Harbour from the defendant's premises through the stormwater system. The offence was in the moderate range of objective seriousness. Actual harm and likely harm to invertebrates, algae and marine organisms and little penguins was established. Practical measures could have been taken to prevent the offence, the defendant could have provided accurate drawings and other parties involved could have taken measures to prevent the incident. The defendant had control over the circumstances. The harm was foreseeable. The defendant was fined $135,000 reduced from $200,000 by 25% for an early guilty plea and further by 10% to take into account double punishment. 4. In Environment Protection Authority v Boral Australia Gypsum Limited [2009] NSWLEC 26 (Boral) the defendant was sentenced for an offence against s 120 of the POEO Act. A chemical known as Gardisperse flowed from the defendant's premises and along an unnamed waterway to the Paramatta River while liquid was being transported from a large storage tank to a small batching tank and an electronic sensor failed. The maximum penalty was $1,000,000 for a corporation. About 6,400 litres of Gardisperse overflowed the bund, entered onsite stormwater drains and ultimately flowed into the Paramatta River. There was no evidence of actual harm. There was likely to be harm to sediment dwelling organisms and plankton and clear potential for harm. The harm was unlikely to be long term but was reasonably serious. Practical precautionary steps could have been taken including ensuring adequate bunding around the batching tank, installing an overflow alert mechanism, and programming the computer program controlling the supply process between the storing tank and batching tank so that it did not work when the concrete plant was not operating. The probability of the incident arising was reasonably remote and the foreseeability was at the lower end of the scale however inadequate capacity of bunds was reasonably foreseeable. The defendant received a large discount for an early guilty plea and other mitigating circumstances. The defendant was fined $58,500 discounted by 35% from a penalty of $90,000. 5. I consider the circumstances in this matter are similar to Ardent Leisure. 6. As noted above there have been few prosecutions in the Court of offences under ss 148(2) and 152 since the amending Act coming into force in 2012. The Prosecutor identified Forbes. In Forbes, I sentenced the defendant for an offence against s 152 of the POEO Act as well as s 120 of the POEO Act. Approximately 11,261 kilolitres of effluent discharged from a commercial livestock sales yard facility into a stormwater drain and then into an ephemeral creek on a neighbours' land over two days. The defendant's supervisor did not know that this was occurring. He became aware of the incident in the morning of the third day and did not immediately report it. The EPA was made aware of the incident by a neighbour. The objective seriousness was low. No actual environmental harm was caused and the potential for harm was limited given the short period of the s 152 offence. Practical measures could have been taken by the defendant to ensure that its officers were aware of reporting requirements. The harm was foreseeable and the defendant had control of the circumstances giving rise to the offence. A fine of $35,000 reduced from $50,000 was imposed. 7. The Defendant identified two prosecutions under ss 148(2) and 152 predating the amending Act, being Environment Protection Authority v Caltex Australia Petroleum Pty Limited [2007] NSWLEC 647 (Caltex) and Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 (Ramsey). In Forbes, I analysed these cases for the purposes of examining even-handedness/parity as follows at [76]-[78]: 76. [These cases] …were considering the obligation to notify in its previous form of requiring notification "as soon as practicable". The change to immediate notification is a significant change in my view. In addition to the recent change in the maximum penalty, that is another reason why these cases are of less assistance. 77. In Caltex pipework at a bulk fuel depot failed, causing an unknown quantity of hydrocarbons consistent with diesel fuel to leak from the pipework, such that they descended or were likely to descend into groundwater. Caltex did not notify the EPA. Caltex entered pleas of guilty to offences under s 120(1) and s 148(2) of the PEO Act. Caltex could have taken practical measures to prevent both offences. Both offences involved a reasonable foreseeability of the likely harm to the environment. Caltex had control over the causes of both offences: at [23]. Biscoe J at [24] held that the failure to report was not deliberate, but was the product of an unintentional and regretted oversight, and failure to have adequate reporting systems in place. Both offences were of low objective seriousness. The principle of totality applied in sentencing for the two offences. Mitigating factors were the entering of an early guilty plea and the good character of the defendant. A penalty of $27,000 for the two offences (s 120 and s 148) was imposed. 78. In Ramsey Food Processing the defendant pleaded guilty to two offences of pollute waters and one offence of failing to notify a pollution incident. The circumstances of the case were that untreated effluent from the defendant's abattoir escaped for four days into a creek as a result of a split pipe and a valve being open. The defendant failed to notify the appropriate regulatory authority as soon as practicable after becoming aware of the incident. There was serious short term environmental harm, including dead fish and other aquatic life. The objective seriousness of the pollution offences was low to medium. The objective seriousness of the failure to notify offence was found to be medium. The failure to notify offence was committed without regard for public safety was held to be an aggravating factor. There was a prior conviction for a pollution offence. Mitigating factors were an early plea of guilty and expression of remorse. A penalty of $80,00 for the s 148 offence was imposed. 1. Having considered Forbes again I do not consider I adequately took into account the maximum penalty of $2 million which applies to offences of this nature. That maximum penalty should be given greater recognition in this case. The cases of Caltex (2007) and Ramsay (2010) concerned differently worded legislation and were respectively fifteen and twelve years ago and are therefore of minimal assistance. Totality 1. The sentencing principle of totality is relevant where more than one similar offence is being considered to ensure that the sum of any fines imposed is not disproportionate to the total criminality of a defendant: Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [98] citing Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; and Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]. 2. This principle is relevant to Charges 1 and 3. There are similarities between the offences and significant accumulation in terms of harm to the environment caused by the two offences. Some reduction in the total fine should be made to reflect the total criminality of the Defendant's conduct. 3. I do not consider that the totality principle arises in relation to Charges 1 and 2, contrary to the Defendant's submission that it should. Charge 2 is different in nature and circumstance from Charge 1. Publication order – POEO Act s 250(1)(a) 1. The Prosecutor sought a publication order under s 250(1)(a) of the POEO Act. The Defendant did not oppose such an order during the hearing. The terms of the order are set out in Annexure A to this judgment. Such an order is appropriate in the circumstances of this case to publicise the nature of the offences, to encourage compliance with the law by acting as a deterrent and to fulfil an educational role. I consider it is appropriate to make such an order in the terms agreed. Investigation expenses 1. The Prosecutor sought and the Defendant agreed to an order under s 248 of the POEO Act for reimbursement of specific investigation costs of $110,778. Moiety 1. The Fines Act 1996 (NSW) (Fines Act) provides for the possibility of an order for moiety, as follows: Part 9 Miscellaneous … 122 Payment of share of fine to prosecutor (1) This section applies where— (a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and (b) the prosecutor is not a police officer. (2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor. … 1. The Prosecutor applied for an order under s 122 of the Fines Act for half of the monetary penalty not paid to Council be paid to the Prosecutor. The expenses to be reimbursed under any order under s 248 of the POEO Act will not include the significant time spent by the Prosecutor's officers investigating the offences. A moiety order would not result in windfall for the Prosecutor as it will not completely recover its investigation costs under s 248 of the POEO Act: Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 at [246] (Pepper J). The Prosecutor seeks the moiety to compensate it and to support environmental law enforcement activities: Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 at [116] (Pain J). 2. I will make an order for moiety such that the Defendant must pay half of the monetary penalty to the Prosecutor as I consider that is appropriate for the reasons identified by the Prosecutor. Costs 1. The Prosecutor sought an order that the Defendant pay its professional costs as agreed or assessed under s 257B and s 257G of the CP Act. The Defendant has agreed to pay the Prosecutor's legal costs of $195,000. Conclusion on penalty to be imposed 1. When sentencing, the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case": Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J. 2. Taking into account the various objective and subjective factors outlined above, the appropriate penalty for Charge 1 is $400,000 which should be reduced by 30% to $280,000 in light of the early plea of guilty and other mitigating circumstances. The appropriate penalty for Charge 3 is $300,000 reduced by 25% to $225,000 in light of the early guilty plea, to be further reduced in light of the application of the totality principle to $150,000. 3. The appropriate penalty for Charge 2 is $250,000 reduced by 25% in light of the early guilty plea to $187,500. Penalty/orders 1. The Court orders that: In matter no. 2021/47924 (Charge 2): 1. The Defendant is convicted of the offence against section 152 of the Protection of the Environment Operations Act 1997 (NSW) as charged. 2. The Defendant is fined $187,500. In matter no. 2021/47925 (Charge 1): 1. The Defendant is convicted of the offence against section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged. 2. The Defendant is fined $280,000. In matter no. 2021/47926 (Charge 3): 1. The Defendant is convicted of the offence against section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged. 2. The Defendant is fined $150,000. In matter nos. 2021/47924, 2021/47925, 2021/47926: 1. Pursuant to s 248(1) of Protection of the Environment Operations Act 1997 (NSW), the Defendant is to pay the Prosecutor's costs and expenses incurred during the investigation of the offences in matters no. 2021/47924, 2021/47925 and 2021/47926 in the amount of $110,778.00. 2. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant is, at its own 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 14 cm x 12 cm: 1. The Australian Financial Review; 2. The Canberra Times; and 3. Inside Waste – June/July 2022 edition. 1. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant is to: 1. within 14 days of the date of this order, post the text of Annexure A to these orders on its Facebook homepage, https://www.facebook.com/CleanawayAU, together with: 1. a hyperlink to the Court's judgment as published on the New South Wales Caselaw website; 2. tagging in the post the EPA's Facebook profile; https://www.facebook.com/NSWEnvironmentProtectionAuthority; and 3. "pinning" the post to its Facebook homepage for 7 days and retaining the post for a minimum of 30 days from the date of publication. 1. within 14 days of the date of this order, publish a tweet containing the following text from its Twitter account, https://twitter.com/CleanawayAU, as a "pinned tweet" for 7 days and retaining the tweet for a minimum of 30 days from publication: @CleanawayAU prosecuted by @NSW_EPA and convicted and fined by the Land and Environment Court of causing water pollution on 14 and 15 May 2020 when large quantities of kerosene solvent escaped from its Queanbeyan premises into the stormwater system and the Molonglo River, causing actual but temporary harm to the environment, and failing to immediately notify the relevant authorities that a reportable pollution incident had occurred: https://www.caselaw.nsw.gov.au/decision/180216e9f9b83a611a72e1b6 1. Within 7 days of the date of the publications referred to in Orders 8 and 9, the Defendant must provide to the Prosecutor a complete copy of the pages of the publications and websites in which the notices have appeared pursuant to Orders 8 and 9. 2. Pursuant to s 122 of the Fines Act 1996 (NSW), a moiety or half share of any monetary penalty imposed by the Court is to be paid to the Prosecutor. 3. Pursuant to sections 257B and 257G of the Criminal Procedure Act 1986 (NSW), the Defendant is to pay the Prosecutor's legal costs in the agreed sum of $195,000. 4. The exhibits are to be returned. ********** Annexure A Cleanaway Equipment Services Pty Ltd convicted of two water pollution offences and failing to immediately notify relevant authorities of a pollution incident Cleanaway Equipment Services Pty Ltd (CES) has been prosecuted by the EPA, pleaded guilty and was convicted in the Land and Environment Court of causing water pollution when large quantities of kerosene solvent escaped from its licensed premises at Queanbeyan on 14 and 15 May 2020. On 14 May 2020, approximately 2,500L of solvent entered the stormwater system and the Molonglo River. On 15 May 2020, contaminated water (containing solvent) that had been pumped from the Molonglo River by CES following the incident on 14 May 2020 escaped from CES' premises again and entered the stormwater system and the Molonglo River. The incidents caused actual harm to the environment and significant short-term impacts (lasting approximately two months) on macroinvertebrates in the river. CES also pleaded guilty and was convicted of failing to immediately notify the relevant authorities on 14 May 2020 that a reportable pollution incident had occurred. On 14 April 2022, the Court recorded convictions and fined CES the amount of $617,000. The Court also ordered CES to pay the EPA's investigation costs of $110,778 and legal costs and publish this notice. The Court's judgment may be accessed at https://www.caselaw.nsw.gov.au/decision/180216e9f9b83a611a72e1b6. 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: 20 April 2022