Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Collex Pty Ltd [2002] NSWLEC 196 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Collex Pty Ltd (ACN 051 316 584) FILE NUMBER(S) : 50026 of 2002 CORAM: Pain J KEY ISSUES: Prosecution :- plea of guilty - pollution of waters - penalty - whether the Court can consider likely harm to a creek in the absence of evidence that the pollutant reached the creek - whether s 257 of the Protection of the Environment Operations Act 1997 creates a duty not to allow polluted water to escape from premises and enter other waters - matters in mitigation of penalty LEGISLATION CITED: Clean Waters Act 1970 s 16 Protection of the Environment Operations Act 1997 s 120(1), s 123(a), s 241, s 257 Axer Pty Ltd v Environment Protection Authority (2001) 113 LGERA 357; Cameron v The Queen (2002) 76 ALJR 382; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Dyer v Borg & Anor (Stein J, NSWLEC, 28 April 1988, unreported); Dyer v Borg & Anor (Stein J, NSWLEC, 5 September 1989, unreported); Environmental Protection Authority v Collex Pty Ltd (2001) 115 LGERA 337; Environment Protection Authority v Great Southern Energy (1999) 110 LGERA 254; CASES CITED: Environment Protection Authority v Pioneer Road Services Pty Ltd (1995) 86 LGERA 52; Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409; Hoare v The Queen (1989) 167 CLR 348; R v Ireland (1987) 49 NTR 10; R v Sharma (2002) 54 NSWLR 300; R v Thomson; R v Houlton [2000] NSWCA 309; State Pollution Control Commission v Kelly (Hemmings J, NSWLEC, 21 June 1991, unreported); State Pollution Control Commission v White Wings Limited (Bignold J, NSWLEC, 1 November 1991, unreported); Veen v The Queen [No. 2] (1988) 164 CLR 465 DATES OF HEARING: 02/09/2002 DATE OF JUDGMENT: 11/22/2002 PROSECUTOR Mr G Plath (solicitor) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr BJ Preston SC SOLICITORS Collex Pty Ltd JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50026 of 2002 Pain J 22 November 2002 Environment Protection Authority Prosecutor v Collex Pty Ltd (ACN 051 316 584) Defendant Judgment Introduction 1 The Defendant has pleaded guilty to a charge of polluting waters under s 120(1) of the Protection of the Environment Operations Act 1997 (PEO Act). The summons charges the Defendant with the pollution of waters at or near Riverstone, NSW on or about 29 March 2001. The waters the subject of the offence is a pond located inside the Defendant's property at 127 Burfitt Road, Schofields. The pond is described in the summons as a pond by the side of Neville Road, Riverstone, near the intersection with Carnavaron Road Riverstone (the Pond). 2 Section 120(1) of the PEO Act provides that: "A person who pollutes any waters is guilty of an offence". The Defendant admits all the elements of the offence by pleading guilty. Section 123(a) of the PEO Act provides that the maximum penalty for an offence of pollution of waters by a corporation is $250,000. THE FACTS 3 The parties filed a voluminous Agreed Statement of Facts of 19 pages, which is summarized in the following paragraphs. It is necessary to set out the facts in some detail, as while there was agreement on the elements of the offence committed, there were differences on matters relevant to sentencing, namely whether there was likely to be harm to the environment, whether the harm/likely harm was foreseeable and whether practical measures may have been taken to prevent, control, abate or mitigate that harm. The Defendant's operations 4 The Defendant conducts a waste management business with operations (including landfills and depots) in all Australian States and New Zealand and through its parent company, Vivendi Environnement, in over 70 countries. 5 At all relevant times, the Defendant conducted a business including the operation of a landfill facility at 127 Burfitt Road, Schofields (the Landfill). The Defendant has operated the Landfill since March 1999, during which time it has been used as a landfill and quarrying facility. At the time of the offence Riverstone Waste Disposal Pty Ltd, a fully owned subsidiary of the Defendant, owned the Landfill and the Defendant managed and operated all aspects of the Landfill. Riverstone Waste Disposal held an environment protection licence issued by the Prosecutor for a solid waste class 2 Landfill (the Licence). The licence has now been transferred to the Defendant. The site is licensed as a quarry and landfill. Site Description 6 A map of the Landfill contained in the Agreed Statement of Facts (as Document 3) is attached as Annexure A. That map identifies the features of the Landfill that are relevant to the incident the subject of the offence. The site adjoins Neville Road and Burfitt Road. There are two channels along the edge of the site (Channel 1 and Channel 2) which collect stormwater from surrounding areas. Both channels empty into a pond, which is one of two EPA licensed stormwater ponds on the property, and is marked as a circle to the left of the map in Annexure A (the Pond) (Note that this pond is not part of the Defendant's leachate management system, it is only meant to receive rainwater runoff). When the Pond reaches a certain level it overflows into an unnamed channel (of approximately 260m in length), which then joins Eastern Creek. 7 There is a compacted clay bund around the perimeter of the site (the clay bund), which is mainly to prevent floodwaters flowing into the site during extreme rain events. A second bund, comprised of shale (the shale bund), was constructed by the Defendant on part of the perimeter along Neville Road and is located partially on top of, but inside, the clay bund. It was constructed to screen potential visual, noise and dust impacts due to the increasing visibility of the quarry from outside the site (because of the level of waste fill). 8 There are irrigation areas at the Landfill that are used in water management practices, as discussed below. The relevant irrigation areas are marked on Annexure A as irrigation areas 1 and 2. Water Management 9 There are three aspects of water management at the Landfill: groundwater management, stormwater management and leachate management. The water management practices used at the Landfill are a combination of those that have operated from prior to the Defendant's acquisition of the site, and those introduced by the Defendant since it acquired the site in 1999. The water management practices are acceptable under the Licence. The stormwater management plan aims to keep uncontaminated stormwater and potentially contaminated leachate separate. 10 The quarrying operations move around the site and, as they are operated below the groundwater table, it is possible for groundwater to seep into the quarrying areas. When this occurs it is necessary for the water to be drained out of the quarry areas by pumps. If the water is determined to be potentially contaminated, one method of dewatering the areas is to pump the water back to irrigation areas at the Landfill for irrigation back into the waste (i.e. treating the water in the same way as leachate, discussed below). 11 Leachate is managed by pumping the liquid that collects in the low points in the waste cells and irrigating it back through the waste using an irrigation area (see Annexure B). The irrigation area is not lined and is designed to encourage the liquid to disperse downward through the waste and is then collected by the leachate collection system. 12 Cover which is placed over the active tipping surface every day (and intermediate impermeable cover if the waste cell is not used for more than 90 days) is broken up by scraping away or punching holes in the surface to allow the liquid to move downward through the cell. The Landfill operators are experienced in this practice and there have been no previous incidents concerning this practice at the Landfill. 13 Surface water, stormwater discharges, groundwater and leachate are regularly monitored at the Landfill in accordance with the Licence. The Landfill manager (Mr Don Billington) walks around the Landfill each day in order to notice any issues that require attention and is responsible for organising any necessary pumping, removal or discharge of water at the Landfill. Operations at the site leading up to the incident 14 Prior to the date of the incident, water had collected in the stormwater pond in the active quarry area. The water was pumped into irrigation areas 1 and 2 in order to be treated in the same manner as leachate. This method had been used for many years and it was expected that the water would disperse downwards through the waste in the irrigation areas to the base of the site, as had previously occurred. 15 The level of covered waste in the area around irrigation areas 1 and 2 was slightly above the height of the clay bund. The shale bund is in between the clay bund and the waste. Routine inspections inside the clay bund area by the Landfill manager revealed that the operation appeared to be working correctly, that is, that water was seeping downwards. No evidence of any lateral movement of water was evident from the inspections conducted inside the clay bund. The Incident 16 At approximately 10am on 28 March 2001 the EPA received a complaint concerning liquid leaving the Landfill. Ms Una Wicks, an EPA officer, verified the complaint with the complainant at approximately 10am on the 29 March 2001 and then met the complainant at the Landfill, outside of the security fence but inside the property, at 11:45am on 29 March 2001. The Pond contained liquid that Ms Wicks described as black and odorous. Channel 1, which enters into the Pond, was empty except for a few puddles that were observed by Ms Wicks to be clear and odorous. Channel 2, which also enters into the Pond, was full of liquid that Ms Wicks observed to be black and odorous. When Ms Wicks followed Channel 2 upstream for approximately 100m from the Pond, she observed at several locations along the bund wall that liquid was seeping through the shale bund, continuing down the clay bund wall and making its way into Channel 2. Ms Wicks took a number of water samples from different locations on the Landfill, including samples from the Pond and Channel 2. Samples were also taken in the unnamed channel at a point just north west of Neville Road and at the exit point of the Pond before the unnamed creek went under Neville Road. No samples were taken along Eastern Creek on the day of the incident. 17 In par 35 of her affidavit sworn 19 December 2001, part of which was incorporated by the parties into the agreed statement of facts at the hearing, Ms Wicks stated: I also saw that black coloured liquid was flowing quite quickly from the Pond into the unnamed creek. I saw the black coloured liquid flowing along the unnamed creek a short distance before it went under Neville Road and when it surfaced. I went as far as the perimeter fence with [sic] the complainant's property as shown in Photo 23 and Photo 24, I could see black coloured liquid in the unnamed creek for about 10 metres (which was as far as I could see) after it passed under Neville Road. I could not see any further than 10 metres along the unnamed creek to the north west of Neville Road. … 18 Ms Wicks then spoke to Mr Billington, the Landfill manager, and together they inspected the Pond and the bank of the Landfill where the liquid was going into Channel 2. Mr Billington suggested a possible source was either irrigation area 1 and/or 2. They inspected the water that was being collected at the quarry area and then irrigation areas 1 and 2. Ms Wicks observed liquid that was black and odorous in one of the irrigation areas, which was a new irrigation area that had been constructed two days prior to the incident. Liquid in the other older irrigation area appeared clear and odorous to Ms Wicks. They then inspected the shale bund and observed liquid seeping through the shale bund and flowing slowly down the clay bund wall. 19 Mr Billington then agreed with Ms Wicks to take immediate measures to stop the discharge from the Landfill. Mr Paul Barnes, the Defendant's NSW Disposal Facilities Manager arrived at the site and discussions ensued between Mr Barnes, Mr Billington and Ms Wicks as to the measures to be taken to address the incident. The following actions were taken by the Defendant in response to the incident: (a) The Defendant called out its liquid tankers, whose operators are trained to attend emergency situations, to the site. (b) A clay plug was placed in the Pond on 29 March 2001 to stop any liquid leaving the pond. (c) The liquid in irrigation areas 1 and 2 was removed via a pump. The pumping started at 2:30pm and was complete by 5pm on the 29 March 2001. The liquid was placed on the active landfill surface. (d) The Defendant's tankers pumped out the liquid in Channel 2 and the Pond between 2:30pm and 4pm on the 29 March 2001. (e) A drainage channel between irrigation areas 1 and 2 on the Landfill surface and the Landfill clay bund wall, to ensure any further seepage from the Landfill would be collected and directed back to the active landfill face, was constructed and completed by approximately 8am on 30 March 2001. (f) Channel 2 and the Pond were pumped out again by approximately 10am on 30 March 2001. Channel 2 was flushed repeatedly with clean water. The clean water was allowed to flow down Channel 2 and into the Pond. The water in the Pond was pumped out by a liquid tanker. (g) An excavator removed sediment and debris from Channel 2 and the Pond by 11:30am on 30 March 2001. (h) The clay plug was removed at approximately 1pm 30 March 2001. (i) On 30 March 2001 an incident report was faxed to the EPA. 20 On 30 March 2001 Ms Wicks returned to the Landfill with Ms Danielle Playford, another EPA officer, and they took a series of photos (which were included as evidence in Ms Wicks affidavit) and water samples. The photos show the Pond was relatively empty and was receiving what they observed to be clear and odourless water from Channel 2. This water was due to flushing from the cleanup operation. 21 On 30 March 2001 a cleanup notice was issued by the Prosecutor on Riverstone Waste Disposal (the Defendant's subsidiary company) and given to Mr Billington. The cause of the incident 22 The Agreed Statement of Facts states that it was later determined that the Landfill surface in irrigation areas 1 and 2 had been correctly dug to penetrate the intermediate waste cover. Daily cover breaking had also been undertaken in the irrigation areas to allow water to seep downwards through the waste. The suspected cause of the incident was the unexpected lateral migration of water through the waste strata instead of the anticipated downward percolation. EVIDENCE OF ENVIRONMENTAL HARM 23 The Statement of Agreed Facts states "there is no evidence that Collex's actions had a significant effect on the environment". The Prosecutor and the Defendant disagree over the extent, if any, of environmental harm, but agree that any harm caused was not significant. In terms of the affected environment, although the summons refers only to the pollution of the Pond on the Defendant's land, the Prosecutor also alleged there was potential for harm to Eastern Creek. It should be noted that both parties' experts agree that Eastern Creek is already a degraded and disturbed system. Prosecutor's evidence of environmental harm 24 The Prosecutor relied on an affidavit of Maria Doherty, Senior Environmental Scientist at the EPA, sworn 15 April 2002 and part of an affidavit sworn by her on 1 September 2002. 25 In her affidavit sworn 15 April 2002 Ms Doherty discusses the results of the water testing of the samples taken on 29 and 30 March 2001 and the issue of harm to the environment. Analysis of samples 26 The samples taken on 29 March 2001 (the date of the incident) contained high concentrations of nutrients, chemical oxygen demand (COD), biological oxygen demand (BOD), electrical conductivity (EC) and some metals in comparison to national water quality guidelines. The samples taken on the 30 March 2001 had reduced levels of nutrients, COD and EC, but still exceeded the national water quality guidelines for certain substances. Total suspended solids, turbidity and some metal concentrations had increased. Samples taken on 30 March 2001 in Eastern Creek upstream and downstream of the point of discharge of the unnamed channel into Eastern Creek showed little difference in pollutant levels, with the exception of ammonia which was higher downstream than upstream. Assessment of environmental harm 27 Ms Doherty concludes in relation to the samples taken on 29 March 2001 that the high concentrations of nutrients, especially ammonia, posed potentially serious threats of environmental harm. Although there were no samples taken in Eastern Creek on that day she concludes that "if substantial quantities of a discharge of this nature reached Eastern Creek it would have potentially acute toxic and lethal effects on most aquatic organisms unless substantial dilution or sorption occurred." It would also have cumulatively increased the nutrient load of Eastern Creek, potentially leading to excessive algae and aquatic plant growth. Similar conclusions were drawn in relation to samples taken on 30 March 2001: In my opinion, the ammonia concentrations in the discharge of 30 March 2001 derived from the Riverstone Waste Disposal site would have added to the cumulative nitrogen load of the receiving water system and had the potential to contribute to eutrophication of Eastern Creek thus increasing the possibility of excessive growth of nuisance algae and aquatic plants and resulting in the deterioration of ecosystem health of Eastern Creek. 28 In relation to the samples taken in Eastern Creek on 30 March 2001, Ms Wicks concludes from the fact that there was little difference in concentrations of the samples up and downstream that the "environmental effects of such a discharge were limited to 100 metres downstream of the discharge entry point or were reduced or not detected due to the processes of dispersion, sorption and decay". Ms Wicks stated that as Eastern Creek is already a degraded system, its water quality should, at the least, be maintained. The Defendant's evidence of environmental harm 29 The Defendant relied on a report prepared for it by Mr Paul Anink, dated August 2002 and entitled "Contaminated Seepage Water Discharge to Stormwater Detention Pond, Riverstone Aquatic Ecological Impacts", in relation to environmental harm. Assessment of environmental harm 30 Mr Anink states (at 7 – 9) that there is no evidence to show that there was any aquatic plant or animal life in the Pond, Channel 2 or the unnamed channel. None were reported or observed during the March 2001 inspections by the EPA officers. This was also confirmed by Mr Anink's own inspections in August 2002. Furthermore, those bodies had little or no capacity for significant water storage, such that they could not support any significant aquatic plant or animal life. Consistently with this conclusion, there was no evidence of any harmed aquatic flora or fauna, which leads to the conclusion that there was "no significant effect on actual water quality or aquatic ecology" in the Pond, Channel 2 and the unnamed channel (at 25). Furthermore, although the water discharged was itself significantly polluted, as there was no indication of a significant aquatic community in the Pond, Channel 2 and the unnamed channel, there was no actual impact on aquatic biota in the Pond and said Channels, nor was there "potential for a pulse disturbance on aquatic biota" (at 26) (Mr Anink defines a pulse disturbance as "an acute, short-term episode of disturbance, which may cause a temporary response in a population". Essentially it is the lowest in magnitude of the three types of disturbances he identifies). 31 He further notes (at 27 – 8) that any discharge that may have been left in the unnamed channel after the plug was inserted would have been diluted by the flushing water before it reached Eastern Creek and that "any remaining pollutants reaching the creek from the Unnamed Channel were rapidly assimilated by mixing and dilution by the Eastern Creek flow", such that there would have been no significant/measurable impact on the water quality of Eastern Creek. 32 He further concludes, in relation to the potential impact, that if contaminated water had reached Eastern Creek, there would need to be some means to convey the contaminated water to Eastern Creek and this would most likely be by way of stormwater runoff (at 28-9). This stormwater runoff and the volume of water in Eastern Creek would have diluted the contaminated water. Essentially due to the already poor quality of the water in Eastern Creek, there would not have been any measurable impact on aquatic biota, nor would the nutrient load of the Creek have been noticeably increased (at 29). How far did the polluted liquid flow? 33 At page 18 of his report Mr Anink states that it was not clear how much of the liquid flowed into the unnamed channel from the Pond and how far it travelled down the unnamed channel. Although flow of a black coloured liquid was observed by Ms Wicks in the channel for about 10m, it was not investigated beyond that point, nor could she see beyond the 10m. 34 Mr Anink concludes from the photographs taken on the day of the incident, the lack of investigation of Ms Wicks, namely that she observed flow in the Unnamed Channel but did not investigate whether it had reached Eastern Creek even though she was able to, and the fact that photographs and observations were taken prior to notifying the Defendant's staff in order to stop the flow, that the flow leaving the Pond was sluggish (at 22). He further concludes that there was no evidence that the liquid reached Eastern Creek and it could not be assumed that it did, as there were other conceivable possibilities such as the water being retained as surface water and groundwater in the combined Channel 2, Pond 3 and unnamed channel aquifer (at 22, 25). 35 I will discuss the evidence of environmental harm, or lack thereof, in the context of s 241 of the PEO Act. CONSIDERATION OF PENALTY TO BE IMPOSED 36 In imposing a penalty for pollution of waters there are five matters that the Court must take into consideration under s 241(1) of the PEO Act (so far as they are relevant). I will now consider those matters. (a) the extent of the harm caused or likely to be caused to the environment (i) actual harm 37 The Prosecutor accepted that there was no or minimal evidence of actual harm to the environment. The only evidence of actual harm was dead grass as the liquid exited the clay bund. In relation to the dead grass, the Defendant argued that as this was a water pollution offence, any harm to the grass could not be taken into account; the only relevant harm in relation to an offence of pollution of waters was harm to waters: Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409 at 420. I accept this proposition and accordingly, there is no evidence of any actual harm caused to the environment as a result of this incident. (ii) likely harm Prosecutor's submissions 38 The Prosecutor relies on the fact that the leachate discharged was found to be black and odorous and, when sampled, was found to contain high concentrations of ammonia, nitrogen, phosphorous, electrical conductivity, turbidity and total suspended solids. The chemical substance of most concern to the Prosecutor was the high level of ammonia present, which greatly exceeded the ANZECC guidelines (700 mg/L sampled in the unnamed channel compared with 0.02 mg/L recommended in the ANZECC guideline). The Prosecutor relies on Ms Doherty's statements that if substantial quantities of such a discharge had reached Eastern Creek it would have acute toxic and lethal effects on most aquatic faunal life unless there was substantial dilution or sorption. 39 There was potential for the leachate to reach Eastern Creek and threaten the freshwater quality and aquatic ecosystems of the Creek and contribute to excessive growth of algae and other nuisance aquatic plants. There was evidence to show that the flow occurred for approximately one day during which time the Pond filled and the pollutant was discharged from the Pond to the unnamed channel. Additionally, Ms Wicks stated that the liquid leaving the pond was flowing quite quickly. Thus, despite the evidence of Mr Anink that it was unlikely that the leachate reached the Creek, there was evidence to show that it was likely that it reached the Creek. The Prosecutor did not submit that it is beyond reasonable doubt that the liquid reached Eastern Creek. 40 There is no evidence of the actual amount or flow rate of leachate discharged as a result of the incident. The Prosecutor estimated in written submissions that at a flow rate of 1 Litre per second a discharge of 3600 Litres per hour would result. I note however, that as there was no evidence as to the actual flow rate or volume of leachate discharged this calculation is of little assistance to the Court (par 35 of Ms Wicks affidavit only states, from her personal observations, that the liquid was flowing quickly, Mr Anink concluded, from the photographs taken, the lack of investigation by the Prosecutor as to how far the liquid had flowed and from the Prosecutor taking photographs and observations prior to notifying the Defendant in order to stop the incident, that the flow was quite sluggish – there are no calculations as to the actual flow rate or volume of leachate discharged). 41 The Prosecutor argued that although there is no evidence that the pollutant reached Eastern Creek, the Court was entitled, in considering the likely harm, to take into account the possible harm to the environment as if the pollutant had reached the Creek. The Prosecutor relies on the judgment of Cowdroy J in Environment Protection Authority v Great Southern Energy (1999) 110 LGERA 254 at [11] - [13] where his Honour admitted evidence as to the possible effects on a creek by an oil spill even though there was no evidence that it reached the creek, and stated (at [13]) that: the Court notes the decision of Stein J in Dyer v Borg & Anor (unreported, Land and Environment Court, NSW, Stein J, No 50015 of 1998, 5 September 1989) in which His Honour by inference, determined that the Court was entitled to speculate on a possible consequence of an offence under s 16 of the [Clean Waters Act 1970] even though no actual overflow of water had occurred and no actual damage caused. I concur with His Honour's approach to the interpretation of s 9 of the [Environmental Offences and Penalties Act 1989] …It is consistent also with the approach adopted by Her Honour the Chief Judge in Environment Protection Authority v Pioneer Road Services Pty Ltd (1995) 86 LGERA 52 where Her Honour considered it was appropriate to take into account evidence which suggested that diesel oil which escaped was likely to cause environmental harm even though there was no evidence that such damage in fact occurred. 42 The Prosecutor further noted that Eastern Creek is a degraded water body. The Prosecutor submitted that the fact that the Creek is in a poor condition is not a factor that should weigh in favour of the Defendant. Such a proposition was accepted by Bignold J in State Pollution Control Commission v White Wings Limited (Bignold J, NSWLEC, 1 November 1991, unreported) where his Honour stated, at 4, that: Counsel for the prosecution is right to point out that a Defendant discharging effluent into degraded waters is not to be given any advantage by way of mitigation simply because the receiving waters are in a degraded state. 43 The Defendant did not dispute this proposition. However, the Prosecution further argues that the high concentrations of ammonia and nitrogen would have added to the cumulative amount of such nutrients in the already degraded Eastern Creek. It was not clear from this submission whether the Prosecutor was trying to submit that the fact that Eastern Creek is already degraded is an aggravating factor. Defendant's submissions 44 The Defendant points out that there was no testing undertaken in the unnamed channel or Eastern Creek on the 29 March 2001, the day of the incident. It therefore submits that no findings of likely environmental harm can be made in relation to Eastern Creek and the unnamed channel. On the 30 March 2001 water in Eastern Creek and the unnamed channel was sampled. The water in the unnamed channel was caused by flushing during the cleanup operation. Therefore, the Court cannot conclude in relation to those samples that the levels were caused by the incident as opposed to the clean up operation. Nor can it conclude that the water flushed into Eastern Creek resulted from the offence. A distinction must be drawn between direct evidence and circumstantial evidence. 45 The Defendant referred to the evidence of Ms Doherty in relation to Eastern Creek that the concentrations of pollutants were the same at the sample point 60 metres upstream as 100 metres downstream, with the resulting explanation by Ms Doherty that the extent of the impact from the discharged liquid was either limited to 100 metres downstream or was assimilated within the capacity of Eastern Creek such that it was not detectable. The Defendant argues that there are other inferences available, namely that it did not enter the Creek at all or that its concentration was similar to that of the Creek. The Prosecutor has to prove the inference beyond reasonable doubt and has not done so, as there are clearly other inferences available. 46 In determining the likely harm one has to look at the actual environment. There was no evidence of biota before or after the incident in the Pond and the unnamed channel. There was therefore no likely harm caused to that environment. Furthermore, the Defendant relies on the evidence of Mr Anink to argue that for the pollutant to get from the unnamed channel to Eastern Creek, there needed to be a means of conveyance, such as stormwater runoff. The pollutant would then need to pass 260 metres along the Unnamed Channel. There was insufficient evidence regarding flow rates and duration to establish that pollutants had made their way into Eastern Creek. 47 Furthermore, the conclusions drawn by Ms Doherty in relation to the likely impact on Eastern Creek cannot be accepted, because the sample would not have reached the Creek in that state. The Defendant's expert disagrees with Ms Doherty's interpretation of the results and her opinion in relation to likely environmental harm. 48 Furthermore, in relation to the statement of Ms Doherty set out at par 27 above, as there is no evidence as to the quantity of the liquid, if any, that reached the Creek, that opinion is purely hypothetical and is of no assistance in establishing beyond reasonable doubt that the effect occurred. The Defendant also questions other conclusions drawn by Ms Doherty in relation to the likely environmental effect, due to the fact that there is no evidence regarding the flow rate or dilution factor. The Defendant essentially argues that Ms Doherty's evidence in relation to environmental harm is largely theoretical, fails to take into account the actual environment and that fish have the ability to move away from pollutants. As there is no factual basis for Ms Doherty's evidence, the Defendant argues it should be given minimal weight. 49 The Defendant accepted that it is not to be advantaged simply because Eastern Creek was already degraded. However, the Defendant argued that if the Prosecutor was trying to submit that the Defendant should get a higher penalty because the environment is degraded, that proposition is inconsistent with accepted principles. The Defendant relied on Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 where the Court of Appeal held that the Court should look at the Defendant's objective conduct. Therefore, the Defendant should not get an increased penalty simply because the environment is already degraded. 50 In relation to the judgment of Cowdroy J in Great Southern Energy relied on by the Prosecutor, the Defendant argued that if his Honour was proposing the test put forward by the Prosecutor, then his Honour was clearly incorrect. However, the Defendant argues that all his Honour meant was that the Court is entitled to take into account the extent of harm proven to be likely to have been caused by the commission of the offence. This is consistent with the decision of Bignold J in Environmental Protection Authority v Collex Pty Ltd (2001) 115 LGERA 337 where it was held that in relation to proving harm or likely harm, which is an aggravating circumstance, the Prosecutor bears the onus of proof to the standard of beyond reasonable doubt. Finding on likely harm to the environment 51 The Defendant has pleaded guilty to water pollution of the Pond on its property. The summons was amended before the hearing to remove reference to "and downstream thereof". Furthermore, the Prosecutor has not pleaded or argued its case on the basis that the pollution was placed in a position where it was likely to fall, descend, be washed, blown or percolate into Eastern Creek (as is contemplated by the definition of "water pollution or pollution of waters" in the dictionary to the PEO Act). On penalty however the Prosecutor is seeking to argue that there was potential for the pollution to reach Eastern Creek along the unnamed channel, with consequential harm to the environment of Eastern Creek. 52 Section 241(1)(a) states that the Court must consider the extent of the harm caused or likely to be caused to the environment by the commission of the offence. In this case the offence was the pollution of waters, the waters in question being the Pond. The evidence shows that the leachate which flowed into the Pond was toxic to aquatic flora and fauna so that there was clearly likelihood of harm in the sense of a real, not remote, possibility of harm to the environment of the Pond. 53 The Prosecutor also presented evidence that toxic liquid was seen for some 10 metres along the unnamed channel which leads from the Pond towards Eastern Creek. The Prosecutor sought to argue that there was also a likelihood of harm to Eastern Creek as a result of the commission of the offence because the Pond drained along the unnamed channel to Eastern Creek. 54 Applying s 241(1)(a), I consider the Prosecution has to show firstly, that there was a likelihood, which means "a real chance or possibility", (State Pollution Control Commission v Kelly (Hemmings J, NSWLEC, 21 June 1991, unreported)), that the toxic liquid in the Pond would have got to Eastern Creek and that secondly, if it was likely to get there that the environment is likely to be harmed. 55 In relation to the first issue, I do not think the evidence discloses such a likelihood if the real, not remote, test is applied. In this case, the Prosecutor accepted that there was no evidence that the Pollutant reached the Creek, although it argued it was likely that it had reached the Creek. In the circumstances of this case I cannot be satisfied beyond reasonable doubt that any pollutant reached the Creek or was likely to reach it. There was no evidence to show that the pollutants had reached the Creek, either by sampling or observation on the day of the incident, and there was no evidence as to the actual flow rate of the pollutant in the unnamed channel and how far it went along that channel. There is therefore no issue of likely harm to Eastern Creek to consider. 56 In relation to the reliance of the Prosecutor on Great Southern Energy it seems to me the decision of Cowdroy J should not be interpreted as the Prosecutor submits. If the cases which Cowdroy J refers to, namely Dyer v Borg & Anor (Stein J, NSWLEC, 5 September 1989, unreported) (judgment on penalty) and Environment Protection Authority v Pioneer Road Services Pty Ltd (1995) 86 LGERA 52 (see also Dyer v Borg & Anor (Stein J, NSWLEC, 28 April 1988, unreported) (judgment on guilt)), are considered those decisions do not support a submission that the Court was entitled to speculate on a possible consequence of an offence under s 16 of the Clean Waters Act where no actual overflow of water had occurred and no actual damage was caused and there was no evidence of the likelihood of this occurring. In both cases there was some evidence that pollution did or was likely to flow to the relevant environment. Cowdroy J's decision is not explicit on this matter but I think should be interpreted on this basis, which does not support the Prosecutor's contention. (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm The Prosecutor's submissions 57 The Prosecution relied on the statement of Mahoney JA in Axer Pty Ltd v Environment Protection Authority (2001) 113 LGERA 357 at 359 where 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. 58 The Prosecutor submitted that the defendant had inadequate systems in place to determine the adequacy of its irrigation areas at the Landfill and inadequate systems in place to check for leachate escaping from the Landfill or premises. This was the primary reason for the commission of the offence. Furthermore, although the Defendant was familiar with the systems used at the Landfill, the incident arose due to the lack of the Defendant's knowledge of the geology or levels of waste compaction at the irrigation areas. Notably, the shale and clay bunds were not capable of containing the leachate on the premises (the Landfill was actually at the height of the clay bund); the Defendant could have checked to ensure that the leachate was being retained on the Landfill; and there was nothing to prevent the leachate from exiting the irrigation areas and then the Landfill (again, the height of the Landfill was near the top of the clay bund). Defendant's submissions 59 The Defendant firstly submitted, in relation to the Prosecutor's arguments regarding the failure of the bunds to prevent water movement outside the premises, that the bunds were never designed for containing lateral movement of water. However, they could help to some extent in preventing lateral water movement. 60 The mechanisms that had been put in place to prevent lateral movement of water were firstly, the spraying of water on waste, which was intended to go straight down through the waste and into the collection system. If it went beyond that, the shale area was to stop the water so that it could then be pumped to the irrigation area. If the water went beyond the shale bund a further check was in place by way of the clay bund. The Defendant therefore argued that all water should have been able to have been kept within the bunded area. 61 Furthermore, the Defendant had a pumping system that stopped at 5pm each day and had designed a system to catch leachate. There were inspections to ensure that the leachate was moving down through the waste and it was reasonable to assume that the system was working. Finding 62 As there was evidence of likely harm in this case, the measures that may have been taken to prevent the incident are relevant matters. It does appear that the Defendant had made changes on the site, with the increase in height of the waste in the Landfill kept around the irrigation areas and the building of the shale bund. A cautious approach would suggest that greater monitoring could have been undertaken around the outside of the clay bund to detect discharges given these changes and the lack of any measures to prevent leachate exiting the irrigation areas. 63 The evidence discloses that there are certain measures that the Defendant could have implemented to prevent the incident from occurring such as an impermeable bund at a height that would be able to contain the liquid, regular inspections around the outside perimeter of the property, and a channel that would collect any straying liquid and allow it to be redirected back to the irrigation area (such as was used in the clean-up operation). (c) Reasonable foreseeability of the harm caused or likely to be caused Prosecutor's submissions 64 The Prosecutor submitted that any likely harm was foreseeable as the Defendant should have been aware that leachate which escaped from the Landfill could end up in Channel 1 or 2 and the Pond and travel towards Eastern Creek. Furthermore, due to the fact that the level of the Landfill waste had risen above the level of the clay bund the Defendant should have been aware that there was nothing to prevent the migration of leachate off site. 65 The Prosecutor further submitted, that even if the incident was not reasonably foreseeable, that under s 257 of the PEO Act the Defendant had a general duty not to allow polluted waters to escape from the Landfill and enter other waters. Section 257 of the PEO Act provides: Occupier of premises responsible for pollution from premises (1) In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that: (a) the pollution was caused by another person, and (b) the other person was not associated with the occupier at the time the pollution occurred, and (c) the occupier took all reasonable steps to prevent the pollution. … 66 The Defendant should have taken positive actions, such as regularly checking the perimeter of the premises, to make sure no leachate escaped from the Landfill. Defendant's submissions 67 The Defendant submitted that the incident was not foreseeable i.e. that the water would move laterally through the waste and then through the screening of the shale bund and then the clay bund was not foreseeable. The Defendant had reason to believe that the system was operating successfully and that the water was going straight down through the waste and being collected as the system was designed to do. 68 The Defendant argued that the relevant factors for the Court to take into account are those contained in s 241(1). Section 257 is not relevant to s 241(1)(b) and (c). There is no greater legal obligation on the Defendant to carry out all reasonable steps to contain pollution which arises because of s 257. The relevant factors are those contained in s 241(1)(b) and (c). Finding 69 Firstly, I reject the Prosecutor's submissions in relation to s 257 of the PEO Act. That section deals with causation, namely that an occupier is deemed to have caused a pollution incident unless the matters in s 257(1) are proven. It does not impose any positive obligation on an occupier to prevent polluted waters from escaping from their property and entering other waters, but rather provides that the occupier is deemed to have caused the pollution unless they can establish the three matters set out in s 257(1), one of which is that the occupier took all reasonable steps to prevent the pollution (s 257(1)(c)). 70 In relation to s 241(c), foreseeability of harm caused or likely to be caused, while the Defendant had used a practice that had operated successfully for a number of years, and the practice had been properly implemented, it is clear there had been changes which potentially altered the operation of the system and that there were inadequate measures to prevent the flow of any straying leachate out of the site. The nature of the leachate was known to the Defendant. The likely harm caused by the escaping leachate was foreseeable, in my view. (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence 71 The Prosecutor submitted that the Defendant had control over the Landfill and its employees. The Defendant does not dispute this matter. I accept this matter has been proven. 72 Section 241(1)(e) of the PEO Act is not relevant in this case. Other Considerations Prosecutor's submissions 73 The Prosecutor acknowledges that the Defendant fully cooperated with the Prosecutor, quickly responded to the incident, cleaned up promptly and entered a plea of guilty at an early opportunity. The Defendant has also agreed to pay the Prosecutor's costs in the agreed sum of $9,500. 74 The Prosecutor submits that while the offence may be categorized as falling within the lower end of the spectrum, it does not fall into the lowest end of the spectrum because: · The discharged leachate contained very high levels of pollutants; · There was risk to Eastern Creek or other waters from the discharge; · The cumulative impact of potentially discharging such pollutants into an already degraded environment; · The Defendant did not detect the discharge; · The Defendant had inadequate systems in place to determine appropriate places to irrigate its leachate; and · The Defendant had inadequate systems in place to detect discharges from its premises. 75 The Prosecutor submits that in imposing a penalty the Court should have regard to the principles of general deterrence which operate to prevent pollution by imposing a large fine and persuading industry to adopt preventative measures: Axer; Camilleri's Stock Feeds. The Prosecutor also submitted that the penalty imposed should be sufficient to act as a deterrent, rather than merely being the cost of doing business, noting that the Defendant's annual turn-over is approximately $300 million. 76 The Defendant has one prior conviction being an offence under s 64(1) of the PEO Act for breach of a licence condition. The Defendant was fined $30,000 and ordered to pay the Prosecutor's costs of $10,500 (see Collex No 1). In relation to consideration of a defendant's prior criminal history, the Prosecutor referred the Court to Veen v The Queen [No. 2] (1988) 164 CLR 465. In that case in a joint judgment Mason CJ, Brennan, Dawson and Toohey JJ stated at 477: the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [[1970] AC 642 at 650]. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. … 77 The Prosecutor submits that even though the facts of the two offences are different, both cases show a break down in systems aimed at preventing pollution incidents. 78 The Prosecutor notes that the plea of guilty was entered at the earliest practicable time and that the Defendant's penalty should therefore be discounted: Crimes (Sentencing Procedure) Act 1999, s 22. The Prosecutor also submitted, referring to R v Thomson; R v Houlton [2000] NSWCA 309 at [138] – [140], that the value of a discount for any expression of contrition attributed to a plea of guilty is affected by whether or not the offence was revealed by the defendant and whether or not it is recognition of the inevitable. This, in turn, requires a consideration of the strength of the prosecutor's case and whether or not a conviction would have been obtained but for the plea. The Prosecutor further notes that although in Cameron v The Queen (2002) 76 ALJR 382 the High Court re-characterized the utilitarian value of a plea of guilty, the principles in relation to discounting remain the same. However, I note the decision of R v Sharma (2002) 54 NSWLR 300 where the Court of Criminal Appeal distinguished Cameron and held that R v Thomson is still the applicable law in NSW (at 315 – 6). Defendant's submissions 79 In relation to the gravity of the offence the Defendant submits that the sentence should never be greater than that which is proportional to the gravity of the crime: Hoare v The Queen (1989) 167 CLR 348 at 354. Furthermore, the maximum statutory penalty is an expression of the seriousness of the offence: Camilleri's Stock Feeds at 698. The consequences of the Defendant's conduct on the environment in relation to harm and likely harm should also be taken into account. The more serious and long lasting the environmental harm, the greater the penalty: Camilleri's Stock Feeds at 701. 80 The Defendant submits that the offence is not at the level that the Prosecutor argues, but rather is at the lower end of the scale. It is in the low range but is lower than the Prosecutor submitted. The sentence should not exceed the gravity of the offence. 81 The Defendant has one prior conviction. However, what happened in the two cases are different circumstances, such that the prior event cannot be used to show a continuing attitude of disobedience of the law: see Veen v The Queen [No 2]. There is no evidence suggesting that they were related events. The incidents related to different plants. There is no continual disobedience of the law evidenced. 82 In relation to penalty, the Defendant submits the Court must look at the gravity of the offence with regard to the maximum penalty, taking into account the objective circumstances. The Defendant argues that it has shown contrition and remorse and has taken actions to ensure that the incident does not reoccur and therefore individual deterrence is not required in this case. In relation to general deterrence (see Axer), the Defendant argues that the Court cannot use the principle of general deterrence to increase the penalty above the objective circumstances of the case: R v Ireland (1987) 49 NTR 10. Deterrence must give way to proportionality. Thus, the Court must take care in applying the concept of general deterrence. 83 The Defendant relies on the Affidavit of Paul Barnes, the Defendant's NSW Disposal Facilities Manager, sworn 28 August 2002. The affidavit essentially sets out a number of environmental projects that the Defendant and its associated companies are involved in, environmental policies and procedures that the Defendant has implemented; the upgrading of the subject Landfill in accordance with good environmental practices at the expense of the Defendant; and the strong commitment of the Defendant and Vivendi Environnement to sound environmental management and practices and their implementation. At par 20 he states: "Within Vivendi, Collex has long held a position of respect and leadership, primarily for its environmental initiatives and early adoption of sustainable practices." The Defendant submits it is aware that it is dealing with difficult materials and that they must be dealt with in a beneficially sound manner. Furthermore, it must be recognized that the Defendant is serving a socially beneficial purpose: see Camilleri's Stock Feeds. 84 In relation to mitigating circumstances the Defendant submits that after being notified of the pollution offence it took prompt action to prevent the material flowing out of the pond. 85 The Defendant has shown contrition and remorse and entered a plea of guilty. The Defendant submits that it is entitled to a discount of 25% for the guilty plea, relying on R v Thomson. In that case Spigelman CJ, with whom the rest of the Court agreed, stated at [160]: The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. 86 The Defendant also referred the Court to Cameron v The Queen, which recharacterised the utilitarian value of the plea, but submitted that discounting still applies in NSW (see the discussion of R v Sharma at par 77 above). The Defendant responded immediately to clean up the incident without delay. Furthermore, the response was undertaken without regard to cost or consequence. The Defendant cooperated with the Prosecutor and the parties submitted an agreed statement of facts. Furthermore, the Defendant has agreed to pay the Prosecutor's costs. The Defendant submits that on these factors it is entitled to a discount greater than the utilitarian discount of 25%. 87 I also note that the agreed statement of facts raises other matters in mitigation. Namely, the proposed closure, and post-closure environmental monitoring, of the Landfill, the engagement of a Landfill Technical Manager to ensure that the Defendant's facilities are operating as required and the Defendant's procedures are up to date, regular staff meetings at the site to discuss environmental issues and that there is no evidence that the incident had a significant effect on the environment. 88 Furthermore, I note the statement of Mr Barnes in his affidavit at par 85 – 86: Collex acknowledges that the incident should not have occurred and that it is in breach of EPA license requirements and Collex's own high standards. That it did occur is extremely disappointing and highly embarrassing to Collex. The current prosecution of Collex is only our second in 30 years of operations and is very embarrassing given our highly regarded reputation and profound commitment to environmental safety. Nevertheless, to reassert our commitment to excellence in environmental management, Collex has implemented numerous measures to ensure incidents of the kind of 14 March 2001 is not repeated at Riverstone or at any other Collex facility. Although our actions did not have a significant effect on the environment, it is of grave concern to the organization and its relationship with internal and external stakeholders that Collex's publicly stated and practiced environmental standards have been violated. Finding on Penalty 89 The maximum penalty for the offence is $250,000. In considering what penalty to impose I have considered all of the matters specified in s 241(1) as found in the evidence, namely that there was no evidence of harm and in relation to likely harm to the environment only in relation to the Pond. I note, however, that the leachate contained high levels of pollutants. The likely harm to the extent there was any caused by the offence was foreseeable. There were measures that the Defendant could have put in place to prevent the actual incident occurring. I note that the Defendant has one prior conviction. However, I do not consider the Defendant shows an attitude of disobedience to the law. In considering all the circumstances of the offence I consider that the offence is properly viewed as being in the low range for offences of this type and that a penalty of 10%, or $25,000 is appropriate. 90 I also take into account the following mitigating circumstances to reduce that penalty. The Defendant pleaded guilty and pursuant to s 22 of the Crimes (Sentencing Procedure) Act 1999 is entitled to a discount in penalty in the range of 10-25%: R v Thomson; R v Sharma. Furthermore, I take into account that the Defendant took prompt and effective action in relation to the incident, has shown contrition and remorse, fully cooperated with the Prosecutor in relation to the prosecution and has agreed to pay the Prosecutor's costs in the amount of $9,500. The incident was caused unintentionally and as a result of a practice that had operated effectively without incident for a number of years. The Defendant is actively committed to a number of environmental projects and is strongly committed to good environmental practices. In all the circumstances I think that the Defendant's penalty should be discounted by a total of 40% and consider that a fine of $15,000 is appropriate. Orders The Court makes the following orders: 1. The Defendant is convicted of the offence with which it is charged. 2. The Defendant is fined the sum of $15,000. 3. The Defendant is to pay the costs of the Prosecutor in the amount of $9,500. 4. The exhibits may be returned. 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