Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Nambucca Shire Council [2000] NSWLEC 222 PROSECUTOR: Environment Protection Authority PARTIES : DEFENDANT: Nambucca Shire Council FILE NUMBER(S) : 50099 of 1999 CORAM: Bignold J KEY ISSUES: Prosecution :- Pollution of waters - Repairs undertaken to damaged rising main in Council's sewerage system causing water pollution - Mitigating factors. LEGISLATION CITED: Clean Waters Act 1970, s 16(1) CASES CITED: DATES OF HEARING: 13 June 2000 EX TEMPORE 06/13/2000 JUDGMENT DATE : PROSECUTOR: Mr D Samuels, Solicitor SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT: Mr A Galasso, Barrister SOLICITORS Mallesons Stephen Jacques JUDGMENT: IN THE LAND AND Matter No . 50099 of 1999 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 13 June 2000 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v NAMBUCCA SHIRE COUNCIL Defendant JUDGMENT Bignold J: 1. The Defendant has pleaded guilty to a charge of an offence against the Environmental Offences and Penalties Act 1989, in that on or about 26 April 1999 it did, at Nambucca Heads, pollute waters, contrary to s 16(1) of the Clean Waters Act 1970. 2. These statutes have, since the date of the commission of the offence, been repealed by the Protection of the Environment Operations Act 1997. However, by virtue of savings provisions, the liability created by the earlier mentioned statutes continues by virtue of the Interpretation Act 1987, s 30 . 3. The parties have very helpfully presented to the Court an agreed statement of facts which comprehensively sets out the pollution incident, the subject of the charge. In addition, there is a helpful summation of the sewerage systems that are maintained by the Nambucca Council (the Defendant) in its local government area. The sewerage system was initially installed by the Department of Public Works in the 1970s, and the Council has been responsible for its operation since then. 4. The system is quite extensive, as is set out in paragraphs 3, 4, 5 and 6 of the Statement of Agreed Facts: Exhibit 1. It comprises the following infrastructure: some 114 km of gravity sewer mains, nearly 3,000 manholes, 45 pump stations, some 14 km of rising mains, and four sewerage treatment works. The overall system caters for a very large quantity of sewerage, dealing with the population centres of Nambucca Heads (the principal one) Macksville, Bowraville and Scotts Head. The system services some 5,200 properties, and the system is the subject of heavy recurrent and capital costs incurred by the Council. For example, since 1993 the Council has expended some $14,000,000 on capital works in respect of the system, having received State Government subsidies of about $5,000,000. 5. The pollution incident giving rise to the present charge is comprehensively summarised in par 12 - 21 of the Statement of Agreed Facts. The incident occurred in connection with the underground sewer pump station no. 3 located near the intersection of Riverside Drive and Seaview Street, Nambucca Heads. The location of that pump station is situate only a few metres from an unnamed water course leading directly to the Nambucca River, situate only some 70 m from the pump station. 6. The incident occurred in the following way. Acting upon a report by a local resident notifying the Council's after-hours telephone number that sewerage was leaking from the ground adjacent to No 3 pump station, the Council quickly attended the site by despatching three members of staff to undertake the investigation and repairs. (I note that the incident occurred on the Anzac Day public holiday). The three employees who attended the site observed the ground in the vicinity of the pump station to be damp and wet, and observed sewerage flowing into a grassed area and into a watercourse. This incident is not the principal cause of complaint on the charge, but as will appear later, the discharge of pollutant into the Nambucca River, and the associated unnamed creek or watercourse, was brought about by virtue of action taken by the repair crew in carrying out the repairs to the leaking rising main, located in close proximity to the pump station. 7. The repairs were undertaken by the crew after first shutting down four nearby pump stations, up gradient from pump station No 3, so as to reduce the load on that station. After probing the ground, the repair crew excavated a hole in proximity to the pump station some 1.5m -1.7m in depth, finding the leaking sewer pipe. In order to get to it, they had to remove a section of stormwater pipe laid above the sewer pipe. Effluent was observed in the rising main, and it and stormwater discharge filled the excavation. It was this fact, or, more precisely, what the Council repair team did in relation to it, that caused the pollution incident. Namely, instead of containing the sewage and stormwater that filled into the excavation, they simply pumped, with a portable pump, the contents from the excavation onto the adjacent ground. From there the pumped liquid readily made its way a short distance down into the creek, (mangrove-type creek) and from thence, the short distance into the Nambucca River. 8. It was obvious that the repair team, in order to get to the leaking rising main to be repaired, had to clear the excavation of the build-up and inflow of effluent and stormwater. It is equally clear that in order to do so, some further excavation was necessary as a temporary holding measure. But instead, in the emergency, it seems that that elementary precaution was overlooked and instead the excavation was simply pumped out onto the adjoining ground with the inevitability of the contents finding their way into the creek and thence into the river. 9. All this happened in the space of a few hours from about midday to 3.30pm that afternoon. The evidence indicates (in par 19 and following) at about that time in the afternoon the Council's Manager, Water and Sewerage Division, attended the scene to assess what had happened and thereafter, returned to the Council office and sought to make contact with the Environment Protection Authority and the Oyster Growers' Association, but initially without success. Thereafter, he sent a facsimile transmission to both the Environment Protection Authority and the Oyster Growers' Association, alerting each of them of the pollution incident. Later when contact was had with the Environment Protection Authority, the Council staff was requested to flush with fresh water the area where the contents from the excavation had travelled and this was done to flush and dilute the pollution. 10. Samples were taken of the receiving waters of the Nambucca River on the following day, that is 27 April 1999 at 9am, and again the next day. The results of the laboratory analysis are set out in the affidavit sworn by Stephanie Wallace, employed in the environmental science branch of the Environment Protection Authority. Her affidavit is Annexure J to the Statement of Agreed Facts. 11. The readings, or the laboratory analyses of the samples collected on both the day following the incident and the next day, indicate that the sample taken at the creek mouth, nearest the point of discharge into the receiving waters, on the day immediately following the discharge, that is some 15 hours after it occurred, registered a high reading of what is described as colony forming units, CFU/100 ml, of 1,185 CFU/100 ml. These readings are discussed in par 9 and following of Miss Wallace's affidavit, and her conclusion is set forth in par 15, which includes the following statement: Despite uncertainty regarding the quantity and duration of effluent discharge, together with the lack of sample replication, the faecal coliform level measured at the point of entry to the Nambucca River watercourse, at the creek mouth, up to twenty hours after the time of contamination was substantial when compared with the Australian water quality guidelines for recreation waters and the consumption of edible aquatic organisms. 12. After referring to the national guidelines, her conclusion continues: The environmental effect of the discharge on 26 April 1999 could have led to a decrease in the water quality of the receiving waters, with the potential to adversely affect the quality of seafood for human consumption and the potential to render the water unsuitable for primary and secondary recreational use. 13. I at once point out that at the time of this pollution incident, the Nambucca River was closed to oyster harvesting, apparently due to the river water quality being at low salinity due to the prevailing rain over the preceding months. This was, no doubt, a providential circumstance which avoided any problem of contamination of oyster farming. 14. The Council has, at all times, cooperated with the Environment Protection Authority, both in reporting, explaining, investigating, and in follow-up action to this pollution incident. A frank disclosure of the circumstances giving rise to this incident is contained in its letter to the Environment Protection Authority dated 4 May 1999. It was in that letter that the Council estimated that the quantity or volume of discharge to be approximately 500 - 600 litres of effluent. This was based upon the capacity of the portable pump. No other evidence assists me in quantifying the volume, and I am prepared to accept the Council's estimate contained in its letter to the Environment Protection Authority. 15. In that letter, the Council pointed out that it did not have a specific contingency plan for breaks in rising mains. It went on to say that its operating procedures will be expanded to include emergency response arrangements, for instance like the one that occurred. The letter concluded: The Council staff responded quickly to the emergency which occurred and attempted to carry out the repairs in the shortest time possible to prevent any further overflows. We have learnt from this incident and will amend our procedures to ensure, in the future, the minimum effect occurs to the environment and public health. 16. I think that statement is a fair commentary on what happened, although, as I have earlier noted, a moment's reflection would indicate a certain laxity of concern for environmental protection with the action of pumping out of the contents of the excavation onto the ground inevitably destined to find its way into the nearby creek and river system. But I accept that no doubt in the forefront of the repair team's mind was the necessity to fix the leaking pipe as soon as possible without causing attendant problems up-slope by virtue of the temporary shutdown of the three close-by pumping stations. 17. Another matter must be mentioned however, which operates against a finding that the conduct of the Council's repair team on this occasion is to be solely explained by the commitment and desire to solve the leaking pipe problem as quickly as possible. This is the fact that there was another incident some nine months earlier, where the rising main split, allowing sewage to escape when the pipe was under pressure. This matter is referred to in par 23 of the agreed statement. According to Mr Zell, who was one of the three who comprised the repair team in this case, a similar system to rectify the problem was used on that occasion as was used in the present case. By that I take it that there was no secondary containment of effluent discharging into the excavation. 18. It appears that it required the present incident, which apparently in some fashion replicated the earlier incident in July 1998, before the Council could learn from the incident and bring about changes to its emergency operating procedures, changes which, if implemented in the present case, would have in all probability avoided any pollution incident. 19. The Agreed Statement of Facts also indicates further follow-up action by the Council all designed to avoid a recurrence of this pollution incident. Thus par 24 refers to the new procedures which have been instituted by the Council advising Council employees of the principles for containment when pumping to prevent sewage and waste waters reaching a river. 20. Another action taken by the Council is its decision to replace this particular rising main at a cost estimated at some $86,000. Another initiative taken by the Council in its quest for environmental enhancement is a comprehensive environmental audit that it has obtained from an independent environmental auditor of its sewerage system. 21. It is against those background facts that I come to consider the question of penalty. Mr Samuels, on behalf of the Prosecutor, has asked that the Court impose a fine to register the community's disapproval of environmental offences, and to provide a general deterrent effect that punishment exerts in the field of the criminal law. He accepts that the Council has taken action which if implemented is likely to avoid a similar incident. He also accepts that the Council has entirely cooperated with the Environment Protection Authority in connection with its investigation of the incident, and has been forthcoming and candid in informing the Environment Protection Authority of all action that the Council took in connection with the incident occurring on 26 April 1999. The Council entered early a plea of guilty to the charge. Additionally, he recognises the fact that this will be the Council's first conviction of any offence against environmental legislation. And that the Council has expressed both to the Environment Protection Authority and now to the Court in the letter of its General Manager (Exhibit A) of its contrition about the incident and its dedicated commitment to adopt the best practices and procedures in relation to environmental management, drawing attention to the Council's previous unblemished record in respect of environmental responsibilities. All these matters weigh heavily in favour of the Council and in mitigation of the offence, and in mitigation of the penalty. 22. Mr Samuels, in his helpful submission, suggested to the Court that in terms of objective seriousness, and the subjective culpability, the offence should carry a penalty in the order of 10 to 20 per cent of the maximum penalty, which is $125,000 in the case of a Defendant corporation such as the Council. 23. Mr Galasso, Defence Counsel, in his very helpful address, urged leniency and a penalty reflecting the lowest end of the spectrum of penalties for this type of offence. 24. In my opinion, the circumstances of the present case require and justify a conviction of the Defendant of the offence charged, an imposition of a penalty at the lower end of the spectrum, a result brought about in large part by the several mitigating circumstances that operate in favour of the Council, which I have earlier recited. 25. The Council has agreed to pay the Prosecutor's costs in the sum agreed of $4,500. 26. In my opinion a reasonable and fair penalty to impose in the present case, giving the Defendant the benefit of the mitigating factors referred to, is to impose a penalty of $15,000, slightly more than 10 per cent of the maximum penalty. 27. In the circumstances, I make the following orders for the foregoing reasons: 1. The Defendant is convicted of the offence charged. 2. A penalty of $15,000 is imposed. 3. The Defendant shall pay the Prosecutor's costs in the agreed sum of $4,500. 4. The exhibits may remain on the Court papers. 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.