> Land and Environment Court of New South Wales CITATION : Environmental Protection Authority v Cianfrano [2003] NSWLEC 380 PARTIES : Environment Protection Authority (Prosecutor) Robert David Cianfrano (Def) FILE NUMBER(S) : 50120 of 2002 CORAM: McClellan CJ Environmental Offences :- Water pollution Orchard owner excavated willow trees from creek bank Subsequent works completed in compliance with clean-up notice and preventive action notice KEY ISSUES: Whether seven months later during rain event sediment entered creek because of defendant's actions Whether pollution caused by work done in compliance with notices Evidence of other potential sources of pollution LEGISLATION CITED: Protection of the Environment Operations Act 1997 CASES CITED: DATES OF HEARING: 17-20 November 2003, 24 November 2003, 26 November 2003 EX TEMPORE JUDGMENT DATE : 11/26/2003 J Kelly (Prosecutor) Environment Protection Authority (Sol) LEGAL REPRESENTATIVES: Robert David Cianfrano (Def - in person) JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50120/02 McCLELLAN J FRIDAY 26 NOVEMBER 2003 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v CIANFRANO Defendant Judgment Introduction 1 HIS HONOUR: The defendant, who appears in person, has been charged with a breach of s 120(2) of the Protection of the Environment Operations Act 1997. It is alleged that "on or about 7 January 2002 at or near Towac [which is near Orange] he caused waters to be polluted". The pollutant identified by the prosecutor includes inorganic matter including soil, earth and stones, sand and clay residue. It is alleged that the pollution was caused by the pollutants being placed in a position where they fell or were washed into Molong Creek. 2 The prosecutor and the defendant have agreed some basic facts, embodied in a document tendered in the proceedings headed "Agreed Statement of Facts". In that document it is agreed that the defendant is the owner of Fernbank Orchards, a farm situated adjacent to Old Canobolas Road, also known as Towac Road, Orange. The farm primarily consists of apple orchards. Molong Creek passes through the site roughly adjacent to Old Canobolas Road. The evidence tendered in the proceedings indicates that the creek runs generally parallel with the road which forms the eastern boundary of Fernbank Orchards. The evidence also discloses that it is a stream which runs generally in the winter time following rainfall but is dry for periods during the warmer summer months. The Agreed Statement of Facts records that Molong Creek flows into Lake Canobolas which is approximately three kilometres downstream from the site. 3 With respect to the particular matters alleged in the offence the Agreed Statement of Facts includes the following matters. From early June 2001 the defendant cleared willow trees (salix), commonly referred to as WG4 crack willows and other vegetation from the bed and banks of a section of Molong Creek. This section of Molong Creek ran through the defendant's property. The defendant did the willow clearing work himself. He undertook the work by pulling the willows off Molong Creek with an excavator, removing the trees, their root systems and other vegetation. 4 Evidence was tendered to the court of the disturbance to the creek during these works. The evidence includes photographs from which it can be clearly seen that a number of trees were removed, the channel was excavated and in places a vertical batter was left. Debris from the clearing was strewn over the site. The length of the disturbance of the creek was approximately 300 metres. 5 On 3 June 2001, Mr Gardiner, an officer of the department then known as the Department of Land and Water Conservation observed the defendant carrying out this work. Mr Gardiner was passing the site on his motorbike and did not immediately intervene. However he returned to the site the next day and observed the state of the work. 6 Mr Gardiner returned again to the site on 4 June and thereafter informed other officers of the Department of Land and Water Conservation and of the Environmental Protection Authority of his observations. On 5 June Mr Gardiner and another officer went to the site and observed the defendant undertaking work with an excavator. The defendant was told to stop work and that he would be required to clean up the site, and for this purpose a clean up notice would be issued. 7 On 8 June the defendant was sent a Notice of Clean Up Action pursuant to s 91 of the Protection of the Environment Operations Act. It required the preparation of a plan for the long-term management of the necessary rehabilitation work. Some weeks later on 22 August a further notice, this time a Notice of Preventative Action issued pursuant to s 96 of the Protection of the Environment Operations Act was issued. 8 During the period after 8 June until the date of the alleged offence on or about 7 January 2002 the defendant undertook some of the works required to rehabilitate the site. A plan has been tendered which indicates the area rehabilitated which is generally towards the middle of the disturbed area, extending over about 100 metres where the defendant reduced the batter of the western bank of the creek to the order of 45 degrees. By the time of the alleged offence this batter had not revegetated, the defendant indicating that this was due to the weather conditions during the relevant time which meant that grasses were unable to be established. I accept that evidence. 9 The defendant had also undertaken work to install sediment controls although by the day of the offence, and perhaps on that day - the evidence is unclear - those controls appear to have failed. He also installed some rock revetments which were required to slow the movement of water through the creek and thereby minimise the possibility of erosion. 10 The creek passes through volcanic soil which is part of the foothill structure of Mount Canobolas. Because the soils are volcanic they have a low potential for erosion and accordingly when disturbed will, if appropriately battered and grassed quickly, return to a stable condition. However the evidence tendered demonstrates that if disturbed and left in a loose state or with a vertical face some erosion and collapse will occur before the earth returns to its natural angle of repose. 11 Between June 2001 and the date of the alleged offence, rainfall records tendered by the defendant indicate that approximately 500 millimetres of rain fell at the site. This must have been sufficient to cause the creek to run and undoubtedly introduced some sediment into the creek apart from that which had been placed there by the works which the defendant had undertaken. 12 The charge brought by the prosecution is confined to an allegation that the waters were polluted on or about 7 January 2002, seven months after the excavation of the willows occurred. The prosecutor has not brought proceedings alleging pollution at an earlier time, nor has the prosecution brought any proceedings alleging an offence by reason of any failure to comply with a statutory notice. Accordingly the question before the court is whether on or about 7 January 2002 soil or other material entered the creek because of the activities of the defendant. 13 On 7 January 2002, Orange experienced a significant storm event during the morning. Mr Scarborough, an officer of the Environment Protection Authority, who had been involved in the earlier consideration of restoration processes for the site, was travelling to Orange and observed the storm as it occurred. He apparently had to attend a meeting in Orange that morning but when the meeting concluded he went straight to the site. By this time the rain had stopped but the creek was flowing swiftly. He observed an increasing level of suspended solids in the creek as the waters passed through the area which the defendant had previously disturbed. He also took four samples of the water from the flowing stream. One of those samples was taken beyond the southern extremity of the work which the defendant had previously undertaken. When tested it revealed a level of suspended solids less than four milligrams per litre. The second sample was taken about a third of the way along the area previously disturbed and at a point where the western bank had been re-battered, that revealed a reading of 45 milligrams per litre of suspended solids. The third sample was taken just beyond the area which had been re-battered and revealed a level of solids of 140 milligrams per litre. The fourth sample was taken further downstream adjacent to the access road over a culvert which contained the creek. The reading at this location was 430 milligrams per litre. 14 Mr Scarborough took a video film of the site while he was present. That film reveals areas of loose soil, some in steep banks of the creek, and shows areas of slumping and partial collapse of some of the embankments. It also shows areas of rilling, particularly rilling of the re-battered area, and sediment in the bed of the creek. In some areas it is apparent that following the original disturbance by the defendant in June, grass has grown. There are other areas where the evidence indicates the defendant did not create a disturbance but which naturally have near-vertical banks. 15 The rainfall which occurred in the storm that morning has been calculated to be of the order of a one-in-50 year storm event. It was obviously significant and given the volume of water which must have entered the stream the rainfall had a potential to erode the creek bank. That potential would probably have been reflected in some erosion taking place even if the defendant had never carried out his original excavation. 16 The readings from the samples taken by Mr Scarborough clearly demonstrate an elevation in the level of suspended solids adjacent to the area disturbed by the defendant. The prosecutor says this supports an inference that the work undertaken by the defendant at an earlier time has caused particles to be released and captured by the storm event and carried down the creek. It is submitted that there can be no doubt, having regard to the readings, and the fact that it was not raining at the time when they were taken that the disturbance caused by the defendant is responsible for the contamination of the water samples. 17 The defendant has two prospective answers to this proposition. Firstly he says that the prosecution must accept that the restoration work which he carried out may have been responsible for the elevated readings. Accordingly it is submitted that the prosecution has not been able to negative the inference that, rather than the work carried out by the defendant of his own volition having caused the pollution, it was the work which he was required to do pursuant to the notice which had this effect. Accordingly it is submitted that the prosecution has failed to prove beyond reasonable doubt that the defendant caused the pollution as against the pollution being caused by his actions taken in compliance with a statutory notice. 18 In my opinion this submission by the defendant should not be accepted. The statutory notices with which he had partially complied were issued because of the work which he had originally undertaken. But for those works it would not have been necessary for the notices to be issued requiring restoration. Accordingly to the extent that the restoration or rehabilitation works may have themselves disturbed material which could be released into the creek, those works should be seen as a necessary part of the original activity by the defendant. 19 In recent years the but-for test as a guide to causation has been discussed and sometimes criticised. I do not think it necessary to depend upon that test to reach the conclusion which I have expressed. A commonsense understanding of the situation would lead to the conclusion that the work which was required to be done pursuant to the notice is but part of the activity originally carried out by the defendant. 20 The defendant secondly submits that there were other sources of contamination including an identified table drain, access roadways, and natural slumping of undisturbed areas of the creek embankment. Mr Scarborough was cross-examined about these matters and he indicated that he did not observe pollution from these sources entering the stream when he carried out his detailed observation on 7 January. It is true that at that time it was not raining and accordingly it may have been the case that during the storm itself, run-off from these other sources may have introduced pollutants into the creek. However as it was not raining when Mr Scarborough carried out his inspection it is necessary to seek an explanation for the elevated levels of suspended solids. I accept Mr Scarborough's evidence. 21 As I have indicated the storm event has been described as a one-in-50 event because of the intensity of rainfall over a short period of time. An event of this magnitude would have initially charged the stream and would have been likely to have flushed any loose sediment which was in the stream through the system. Accordingly at the time Mr Scarborough was there the elevated readings cannot be explained by run off from other sources and can only be explained by the taking up by the creek of sediment as it passed through the disturbed areas of the site. 22 The defendant called two experts. The first was Mr Stuart Brisbane who is a senior soil scientist with Environmental and Earth Science. He has skills in soil characterisations, soil and water chemistry, physics and methodology. He has had a great deal of experience in relation to the contamination of soil and ground water, the investigation of such problems and remediation where contamination exists. He investigated this site at the request of the defendant and identified that the upper catchment of the creek has a diverse range of land use from intensive horticulture through to grazing, forestry with developing residential areas and national parks. He describes the creek as having a steep topography upstream of the site but a lesser gradient through the subject site. 23 Mr Brisbane was not present on the site in January 2002 and did not carry out an inspection until January 2003. He has visited the site twice in January 2003 and February 2003. By the time Mr Brisbane visited the site it had fully remediated in accordance with the requirements of the relevant authorities. He observed the site to be stable, no major rill slumping or erosion was found and appropriate vegetation cover was in place. However he found the stability of the eastern bank appeared to have been poor as old scouring points and slumping were detected. He observed this side of the creek was steep and it had been constantly eroded over the past given the closeness of the boundary fence and the evidence of a diversion channel. 24 He also found two table drains entering the area of the creek which had been previously disturbed. There were also drains collecting water from the nearby orchard and stormwater run off from the roads. Mr Brisbane observed that turbidity of the water changed along the different portions of Molong Creek strongly influenced by surrounding land uses. By the time he inspected the previously disturbed sections of the creek they were stable and there were no active signs of erosion or potential sediment sources. 25 Mr Brisbane took samples in a number of locations upstream and downstream of the site. The sample locations are shown on a map included in his report which is in evidence. Samples taken on 1 January 2003 reveal a reading at sample three which is immediately downstream of the disturbed area of the site of 390 milligrams per litre. Sample two which is within the disturbed area showed a reading of 61 milligrams per litre. Samples four and five which are further downstream of sample three revealed a level of suspended solids of 25 and 30 milligrams per litre respectively. 26 When he carried out his further inspection on 23 March 2003 Mr Brisbane took further samples. Those samples were taken from four locations and upstream of the disturbed area revealed a level of suspended solids of 140 milligrams per litre, downstream 220 milligrams per litre and then two samples taken significantly further downstream revealed levels of 1,030 milligrams per litre and 180 milligrams per litre. 27 Mr Brisbane was retained to advise in relation to the state of the creek and also express his opinion as to whether or not any environmental harm would have occurred having regard to the level of suspended solids captured by Mr Scarborough. He concluded that having regard to the level of suspended solids in the creek which were measured after the site had been restored that this was a stream which from time to time would ordinarily carry a reasonable sediment load. His opinion was that accordingly the stream would have naturally adjusted to that load and the level of solids identified in Mr Scarborough's samples would not have caused environmental harm. As I understand the position the prosecutor agrees with this conclusion. Accordingly much of the evidence which Mr Brisbane gives is not relevant to the resolution of the problem which the court faces. 28 Mr Brisbane had access to the video film which has been tendered in evidence. In his report he expresses these conclusions in his section headed "Response to EPA Investigations": "As the storm event on the morning of 7 January 2002 was equivalent to 1:50 year event (above the design capacity of the structural works,) high velocity flow and scouring would be expected. A high volume water flow or minor flooding was supported by the NSW EPA video as some of the temporary sediment structures were destroyed and willow debris was strewn around the creek bank in the video footage. Quantitative data was sourced to verify the flow rate of Molong Creek during this storm even, however the closest stream gauge was deemed unsuitable. The gauge was located at the intersection of Molong and Heifer Station Creek and down gradient from Carcoar dam, which is over 5 kilometres from the site. Given the nature of the site observed the NSW EPA video TSS levels would be expected to be high and variable after being subjected to a high intensity storm event. However subsequent investigations showed that the TSS levels obtained by the NSW EPA were in a natural range for Molong Creek which is contrary to the opinion that there was the possibility of environmental harm due to the state of the site. To illustrate this point further, TSS levels sampled within the works area were equivalent to the upgradient sample taken in the natural and native surroundings. The second factor to consider is that at the time of the rainfall event (7 January 2002) Mr Cianfrano had constructed temporary siltation fences, one permanent sediment structure, a rock revetment structure, removed willows and remoulded and shaped the bank. The only additional process which may have restricted potential sediment movement within the creek, is the establishment of a pasture crop across the disturbed western bank. However, given that the clean up notice was finalised at the end of August 2001 the pasture would have had only 2-3 months to establish, depending on rainfall. Whether this period allowed for significant reductions in any potential sediment movement is debatable as the roots would not have had enough mass to stop any slippage or slumping and groundcover may not have been dense enough. This is supported by Lang and McCaffrey (1984) who have shown that 40% of total soil loss from a site may result from a single erosion event, regardless of the amount of cover. Therefore, as this was a high intensity storm event (1:50 year), pasture cover may have been irrelevant. For significant reduction in sediment erosion Lang and McCaffrey conclude that it is essential that any area be adequately revegetated and that at least 70% groundcover is achieved before heavy rainfalls are received. Again it is debatable whether the time allowed to establish a pasture cover was adequate for 70% groundcover. The NSW EPA video showed the site in March, two months after planting, and the pasture was sparse and did not have a 70% groundcover. Given the intensity of the storm event, any addition of mulch or litter across the site would have been ineffectual against the high velocity flow. This was supported by the stated temporary sediment structures, which were destroyed after the rain event. Temporary sediment structures are only designed to withstand 1:20 year storm event and as such would have been ineffectual during a 1:50 year storm event. The stability of the soil has already been established and defined with a nil to low mass movement hazard. It is therefore debatable whether the addition of temporary sediment structures would have been capable of withstanding the 1:50 year storm event experienced at the site. It should also be stated at this point that the similar soil conditions like those observed on 7 January 2002 would have been present even if the works were completed within the time specified in the clean up notice. In fact, the potential to contaminate would have been greater as August, September and October were the wettest months and the soil was likely to be in a wet saturated state. It was due to saturated soil conditions that the site works were delayed. Time delays were reportedly discussed with the DLWC representative. Another issue which needs further consideration is proportioning between what if any TSS levels in the creek originated from the remoulded and cleared sections and what material has been resuspended due to the high velocity creek flow. Site works such as removing the willows and remoulding the bank would have disturbed the deposited sediment within the creek It is for this reason that permanent and temporary sediments were to be installed. The presence of temporary structures and one permanent structure could have also biased the TSS levels detected by the NSW EPA.. Environmental & Earth Science investigations showed, which is also supported by the ANZECC and ARMCANZ (2000), that (70-90%) of Suspended Particulate Matter is transported during high flow events. Sediment structures as seen in the NSW EPA video although destroyed could have inhibited the movement of the sediment down gradient and concentrated suspended solids within the works area. Sampling within the site works and immediately down gradient could result in sampling suspended solids derived from upgradient sources which have become trapped." 29 In his conclusions Mr Brisbane is critical of the work of the EPA in capturing the samples from the creek on only one occasion. He says that the EPA sampling regime was not a fair representation of creek conditions. As I understand his criticisms they are directed to any suggestion that environmental harm may have been occasioned by the sediment observed to be in the stream on 7 January. He says, and I accept, that unless you knew the normal rate of movement of sediment in the stream, it would be impossible to determine whether the levels measured on the particular day have caused an elevation of the sediment to the point where environmental harm was likely to occur. He then says this: "The sampling regime of the NSW EPA did not also account for other dynamic processes within Molong Creek or the works site. Processes were found throughout the works site which could have contributed or caused the elevated levels of TSS obtained by the NSW EPA. It is not scientifically justifiable to contribute all of the TSS within the works site to the soil disturbance by Mr Cianfrano". 30 I accept this statement, however, inherent in it is the opinion that although all of the sediment measured in the samples taken by Mr Scarborough may not have been due to the disturbance occasioned by Mr Cianfrano, at least some of it was. 31 The defendant also called Mr Newell to give evidence. Mr Newell commenced employment as an industrial chemist in the steel industry in 1969, however he has qualifications and extensive experience in water technology, environmental geology, hydro geology and engineering geology. He also inspected the subject site and has had access to the samples collected by environmental earth scientists and the results obtained from them. He was able to identify potential sources of contamination of the creek including an upstream source where paddocks had been disturbed by ploughing. He also was aware of the potential for sediment to have entered the creek through table drains and from the access ways to properties, particularly the property of the defendant and that immediately upstream. He also viewed the video film. 32 Mr Newell says of his inspections: "Our inspections while carried out a significant time after the event [he was there in August 2003], still identified remaining silt fencing in the structures requested to dissipate erosion energy of the water flow. The existence of the silt fencing is seen in the EPA video, as well as the energy dissipation structures. There is a basic operational issue with clearing vegetation from a watercourse. It is not possible in conditions of water flow to remove vegetation from a watercourse without creating a disturbance that will result in sediments and soil being disturbed to a point where discolouration of the water will occur. The same basic issue arises when the banks of the watercourse are regraded or energy dissipation structures are being created. There will almost always be a settling period after the construction event. More simply stated, the type of work to be carried out would disturb and discolour water flow in the creek". 33 These remarks were directed to the remedial works which the authorities have required the defendant to carry out, however of course they apply equally to the original disturbance. As I have indicated the original disturbance was carried out with an excavator which removed willows and other vegetation from the creek. Willows were extracted by their roots leaving behind loose and disturbed soil, and in many places a vertical or near vertical base. It is inevitable that those works would have introduced sediment into the creek. The question however in this case is whether the state of those works by 7 January was such that on or about that day sediment entered the creek because of the original disturbance. 34 Mr Newell emphasises in his report that there is a potential for erosion along the creek on its eastern banks in areas where the evidence suggests the defendant did not carry out excavation. I accept that evidence, however it is plain that that is not the only source of the introduction of suspended solids during the storm event on 7 January. 35 In his conclusions Mr Newell says that he has difficulty in drawing a conclusion and expressing an opinion because he was not able to view the site at the time of concern and the various testing programs have been spread over an 18 month period. However, he is of the opinion that other activities in the upper catchment may have influenced the results of samples tested. He found an area of exposed ground in the Towac Heights tributary area. 36 Mr Newell says that the initial clearing, although not authorised, was ultimately addressed by the defendant who has complied with orders issued to him, and that the potential for remediation would have been hampered by drought conditions which prevailed during the period preceding the major storm event on 7 January. He is also of the opinion that there is no evidence that the works had any significant impact on the creek and that environmental harm has not been identified. 37 Although the experts called by the defendant were able to identify other potential sources of sediment in the creek, and although they emphasised that a major storm event would have stirred sediment already in the creek, which would explain some of the sediment resulting in the elevated levels in Mr Scarborough's samples, I am not satisfied that the sediment in those samples is to be wholly explained in that way. 38 The evidence of Mr Scarborough and his observations, supported as they are by the video film, satisfy me beyond any doubt that some of the areas disturbed by the defendant in his initial works remained by 7 January 2002 in a highly erodable condition, unstable and vulnerable to erode in the event of a significant flow in the creek. The video evidence makes plain that there are areas of recent slumping, and loose material which must have contributed some sediment load to the creek during the storm of 7 January 2002. Beyond that matter, as the evidence of the defendant's experts also makes plain, for whatever reason the area of the western bank which had been remediated had not returned to a stable condition and accordingly a major storm event such as occurred on 7 January must have led to the introduction of loose material from the remediated area into the creek. 39 There are some unusual features in this case. Undoubtedly the defendant when he undertook the work believed that he was acting in an appropriate manner in order to alleviate localised flooding problems which were impacting upon his orchard. He also, undoubtedly, genuinely believed that because the impediment to the stream flow was caused by willow trees which are a common weed problem in rural areas, he was entitled to remove them. I am also satisfied that he believed that because of the volcanic nature of the soil on his site, major stability problems would not be occasioned by the work which he was undertaking. 40 However, whatever his motive in carrying out the works, I am satisfied beyond any doubt that those works so disturbed the bank of the creek that when the storm event occurred on 7 January 2002 as a result of the disturbance which the defendant had carried out to the creek banks, loose material was taken into the stream. 41 Accordingly I find that the acts of the defendant have caused the pollution of the creek. It follows that I find the defendant guilty of the offence as charged. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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