Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Byron Shire Council [2002] NSWLEC 128 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Byron Shire Council FILE NUMBER(S) : 50145; 50146 of 200 CORAM: Talbot J KEY ISSUES: Prosecution :- pollute waters - conviction - whether the defendant is to carry out a specific project in lieu of penalty Clean Waters Act s 19(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10 Protection of the Environment Operations Act 1997 s 120(1), s 244(2), s 250, s 250(1)(a), s 250(1)(c), s 251 CASES CITED: Environment Protection Authority v Simplot Australia Pty Ltd [2001] NSWLEC 264, unreported DATES OF HEARING: 25/07/2002 DATE OF JUDGMENT: 07/31/2002 PROSECUTOR Mr T G Howard (Barrister) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr Lloyd QC SOLICITORS Abbott Tout JUDGMENT: IN THE LAND AND Matter No. 50145 of 2001; 50146 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 31 July 2002 Environment Protection Authority Prosecutor v Byron Shire Council Defendant REASONS FOR JUDGMENT 1. The defendant has entered a plea of guilty to two charges that it committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("the PEO Act") in that it polluted waters near Mullumbimby, namely an unnamed creek in the vicinity of the Byron Shire Council Water Treatment Plant ("the WTP") leading to Yankee Creek and downstream thereof. The first charge relates to a period from about 9:00am on 24 December 2000 and continuing until about 26 December 2000. The second charge relates to a discharge on or about 28 December 2000. In both cases it is alleged that the defendant discharged pollutant from the WTP into the above waters. 2. The summonses were first returned before the Court on 28 February 2002 and on the next callover, namely 2 April 2002 the defendant entered a plea of guilty to both charges. 3. A Statement of Agreed Facts has been tendered. 4. The prosecutor seeks orders pursuant to s 250(1)(a) and (c) of the PEO Act. The relevant parts of s 250 provide as follows:- 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 and its environmental and other consequences and any other orders made against the person, (b) …, (c) order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit, (d) … A Local Court is not authorised to make an order referred to in paragraph (c) or (d). 5. Depending upon which of the three options presented to the Court is adopted, the prosecutor may not press for a monetary penalty if Byron Shire Council ("the council") agrees to carry out a specified project. The three options are as follows:- (1) Option A – Restoration of Fish Passage at the Coral Avenue Waterway Crossing at Mullumbimby – Estimated cost is $112,000; (2) Option B – Removal of Mullumbimby Creek Weir – Estimated cost is $30,000; or (3) Option C – Assessment and Prioritisation of Waterway Crossings – Estimated cost is $13,000. 6. The prosecutor initially indicated, through its counsel, Mr Howard, that if Option A or Option B were adopted it would not be submitting that the defendant should pay an additional monetary penalty. Following issues raised by the Court as to whether, as a matter of construction, Pt 8.3 of the PEO Act could operate in circumstances where no penalty is imposed except where the Court makes an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 ("the Crimes (Sentencing Procedure) Act") the prosecutor and Mr Lloyd QC, who appears for the defendant, agree that an order could not be made pursuant to s 250(1) of the PEO Act unless, at the same time, the Court convicted the offender and imposed a penalty. In making this concession counsel concentrated on, in particular, s 244(2) of the PEO Act which provides that orders may be made under Pt 8.3 in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. The defendant does not submit that the Court, in the circumstances of this case, could make an order under s 10 of the Crimes (Sentencing Procedure) Act. In the light of the concession made by both parties, it is not proposed that the Court make a final determination as to whether an order can be made pursuant to s 250 of the PEO Act where no penalty is imposed after conviction. However, as noted above, s 244(2) is not restricted to cases where a penalty is imposed but contemplates that the Court may take "other action…in relation to the offence" . It may be appropriate to address this question more comprehensively when the matter returns before the Court, as it must do, as a consequence of the steps the Court proposes to take today. 7. The Court has had regard to the following facts before determining that the matter should be adjourned for a period of approximately six months before all outstanding matters in relation to costs and penalty are finally determined. The facts 8. In the case of each offence the pollutant discharged from the WTP into the unnamed tributary of Yankee Creek and Yankee Creek itself was wastewater containing sulphur and concentrations of aluminium which were above the threshold at which the waters are classified as a chemical toxicant by the ANZECC "Australian Water Quality Guidelines for fresh and marine waters" published in November 1992. The water had a pH of around 6.0. The discharge occurred during the backwashing of filters used for pre-treatment of drinking waters. 9. Raw dam water is pre-treated with alum prior to entering the flocculation tanks at the WTP. Alum is acidic and causes the pH of the water to decrease. Clean water is drawn off the bottom of the sand filters. The filtered water is dosed with soda ash to counteract the acidic effect of the addition of the alum and to restore the pH of the treated water. Sand filter beds filter the water from the flocculation tanks allowing the water to pass through the filter, but collecting the particulate matter which has coagulated with the aluminium. 10. Backwashing is a process applied to the sand filters in the flocculation tanks. Each of the two filters installed are expected to automatically backwash once in a given 24-hour period. During 24 December 2000, the differential pressure cell began triggering an unusually high number of automatic backwash cycles resulting in 17 backwashes in the 24 hours to 9:00am on 25 December 2000. There were a further 20 backwashes in the 24 hours to 9:00am on 26 December 2000. Although the telemetry and pager system at the WTP would not have advised about the number of backwash cycles, it nevertheless malfunctioned during the relevant period. Following observations made by an operator on 26 December 2000 the differential pressure cell in tank No. 2 was checked and cleaned. When the system was turned on again on 27 December 2000 automatic backwashes continued to be triggered. There were 13 backwashes in the 24 hours to 9:00am on 28 December 2000. 11. The cause of the malfunction was ascertained on around 29 December 2000. Because filter No. 2 was operating at a rate exceeding 36 litres of treated water per minute, sand from the filters was drawn into the differential pressure cell and interfered with its measurements. The differential pressure cell continually registered resistance in the filters. The resistance was caused by the sand rather than the clogged filters. The water taken from the flocculation tank to the filter was not given sufficient time to allow a good-sized flocculation during the continuous backwash cycles. As a consequence of the discharge of wastewater with an elevated level of alum, the flocculation process took place within the waters of Yankee Creek and its unnamed tributary instead of taking place within the flocculation tank. This caused suspended matter naturally occurring in Yankee Creek to sink to the bed of Yankee Creek. It also reduced the pH level of Yankee Creek and its unnamed tributary. Between 25 December 2000 and 2 January 2001, 80 per cent more alum was used than would generally be used in a nine-day period. 12. The council does not hold any licence nor, at any stage, did it hold a licence under the PEO Act that would permit the discharge of backwash waters from the WTP. The WTP has operated for many years without any authority for the discharge to the unnamed creek. 13. During the council's investigation of the system's capacity to serve Mullumbimby in the future in 1999, it wrote to the Department of Land and Water Conservation ("the DLWC") on 13 December 1999 expressing concern with the environmental impacts associated with the filter backwash water without treatment. The council expressed commitment to environmentally sustainable services and to that end noted that it was assessing the need to introduce environmental flows for works associated with enhanced environmental performance of the WTP. The letter was written to the DLWC following advice from the Environment Protection Authority ("the EPA") that it considered re-circulating the backwash water to be the preferred solution for dealing with the discharge of filter backwash. After the malfunction in December 2000, where there was no response to approaches by the council to the DLWC, the council proceeded with the works without formal approval from the DLWC. Formal approval was not received until after the works were completed. In the meantime, the EPA acquiesced in the continuing discharge from the WTP, without the requirement for a formal licence, in the interest of achieving a change in the system. As a result of the works, which were completed in September 2001, the filter backwash water is now re-circulated at the plant and not discharged from the WTP into the unnamed creek. 14. It is not disputed that the council has co-operated with the prosecutor in its investigations. Pleas of guilty were entered at an early stage of the proceedings. 15. On 24 April 2001 the council was convicted of two offences in relation to its landfill at Myocum. The offences were a breach of s 19(1) of the Clean Waters Act 1970 by failing to obtain a pollution control approval and polluting waters contrary to s 120 of the PEO Act. The former attracted a penalty in the sum of $30,000 and the latter a fine of $60,000. The Court is satisfied that the council has an unblemished record in relation to the operation of the WTP and that it had taken steps since 1999, prior to the occurrence of the offences, to introduce a new backwash system in the interest of eliminating the adverse environmental effects caused by the discharge of backwash water into the tributary of Yankee Creek. Court Orders 16. At the conclusion of the evidence and submissions, the EPA tendered draft orders whereby it is proposed that the defendant carry out one of the three options outlined above for a specified project for the restoration or enhancement of the environment, pursuant to s 250(1)(c) of the PEO Act, in conjunction with the publication of the order pursuant to s 250(1)(a). As I have already stated, the estimated costs of implementing the proposed orders range from $13,000 to $112,000. The Court is satisfied that Option B, with an estimated cost of $30,000, is the most appropriate order having regard to the gravity of the offences involved. 17. The Attorney General in the Legislative Council explains the purpose behind s 250 of the PEO Act in the second reading speech on 5 December 1997 as follows:- Court Proceedings and sentencing: In addition to doubling the penalty regime for application by the courts, the Bill clarifies who can initiate court proceedings and also gives the courts a wider range of sentencing options. We are working to broaden the options available to the courts. We want changed behaviour and improved environmental performance and are giving the courts an opportunity to teach a salutary lesson to those who have been found guilty. For example, the court can require a guilty party to publicise the facts of their offence in the media or require them to perform an environmental service such as restoring a public place. 18. The Court has once previously made an order under s 250 of the PEO Act in Environment Protection Authority v Simplot Australia Pty Ltd [2001] NSWLEC 264, unreported. At [22] in the judgment, the Chief Judge referred to the provisions of Pt 8.3 in which s 250 appears in the PEO Act and then at [203] she expressed the opinion that it was appropriate to make such orders in a case such as the subject case where the defendant had signalled its willingness to be bound to orders of the nature proposed in accordance with s 250(1)(c). In that case it was proposed the defendant undertake works to stabilise levee banks and river banks of the Macquarie River, Raglan Creek and associated freshwater drains, gullies and levee banks. A second project was that the defendant undertake an assessment of ways of reducing greenhouse gas emissions from the defendant's coal-fired plant to a level that is at or below 108 per cent of the estimated levels emitted from the premises in the year 1990 through its re-design and replacement with a gas-fired plant. 19. Although her Honour appears to have recognised that s 251 of the PEO Act provides that a person who fails to comply with an order composed under Pt 8.3 is guilty of an offence, the issue of the capacity to comply with the orders consistently with other legislation does not seem to have been raised. 20. In the present case, obligations imposed upon the defendant specifically include the following:- 4. Byron Shire Council is to take reasonable steps to attempt to complete the following tasks by 31 March 2003: a) Consult with affected stakeholders, including riparian landowners, and irrigators, local fishing, environment and other community groups; b) Complete all necessary planning and environmental approvals required to remove the weir; c) Remove the structure. 21. The Court has raised with the parties the prospect that the consequence of consultation and assessment could be that the project is not viable or objectionable on other grounds. That may have the consequence that the approvals referred to are not, or cannot, be obtained. Although the defendant may be able to comply with obligations 4(a) and 4(b), it may not then be in a position to remove the weir across Mullumbimby Creek. This would mean that the defendant may be in technical breach of the order and thus liable to a further penalty pursuant to s 251 of the PEO Act. In the case of a corporation the maximum penalty is $120,000 for each day the offence continues. Furthermore, if it transpires that the weir cannot be removed and thus eliminate what is considered to be a significant barrier to fish passage in Mullumbimby Creek, some other project specified, pursuant to s 250(1)(c) could be considered. 22. In order to deal with the contingencies identified by the Court and accepted by the parties as being realistic, the Court has adjourned the proceedings to 7 February 2003 for final sentence. 23. In the meantime, the Court makes the following formal orders:- (1) The defendant is convicted. (2) The defendant is ordered to pay the costs of the prosecutor in such sum as may be agreed and if not agreed, assessed in accordance with the Land and Environment Court Act 1979 and the Land and Environment Court Regulation 2000. 24. The Court notes that during the period of the adjournment the council proposes to carry out procedures in connection with proposed obligations 4(a) and 4(b) as set out above. 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.