Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Cleary Bros (Bombo) Pty Limited [2007] NSWLEC 466 This decision has been amended. Please see the end of the judgment for a list of the amendments. PROSECUTOR: Environment Protection Authority PARTIES : DEFENDANT: Cleary Bros (Bombo) Pty Limited ACN 000 157 808 FILE NUMBER(S) : 50002 of 2006 CORAM: Lloyd J Environmental Offences :- water pollution - inadequate capacity of bund - modifications to bund - failure of bund - overflow of untreated leachate into creek - actual environmental harm - control over causes - contractual obligations KEY ISSUES: Prosecution :- plea of guilty - penalty - parity in sentencing - subjective circumstances of offender - mitigating factors - publication order inappropriate Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, s 21A, s 22(1), s 23(1), s 23(2) LEGISLATION CITED: Protection of the Environment Operations Act 1997 (NSW) s 120(1), s 120(2), s 241(1), s 248(1), s 250(1)(a), s 257, s 257(2), s 258(2) State Owned Corporations Act 1989 Waste Recycling and Processing Corporation Act 2001 Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) NSWLR 683; Environment Protection Authority v Bega Valley Shire Council, NSWLEC, Sheahan J, 14 August 1998, unreported; Environment Protection Authority v Bellingen Shire Council [2003] NSWLEC 42; Environment Protection Authority v Byron Shire Council [2001] NSWLEC 54; Environment Protection Authority v Cleary Bros (Bombo) Pty Limited, NSWLEC, 14 August 1998, Bignold J, unreported; Environment Protection Authority v Lake Macquarie City Council, NSWLEC, Lloyd J, 18 December 1998, unreported; Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66; CASES CITED: House v The King (1936) 55 CLR 499; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; R v Ngui (2000) 1 VR 579 ; R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Whyte (2002) 55 NSWLR 252; State Pollution Control Commission v Hunt (1990) 72 LGRA 316; State Pollution Control Commission v Tiger Nominees Pty Limited (1991) LGRA 337; Veen v The Queen (No.2) (1988) 164 CLR 465; Wong v The Queen (2001) 207 CLR 584; Woodward (for and on behalf of the State Pollution Control Commission of New South Wales) v Cleary Bros (Bombo) Pty Limited (1984) 54 LGRA 409 DATES OF HEARING: 06/12/2006; 07/12/2006; 08/12/2006; 17/04/2007; 18/04/2007; 19/04/2007; 20/04/2007 DATE OF JUDGMENT: 1 August 2007 PROSECUTOR: D A Buchahan SC SOLICITOR: Gordon Plath Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT: G T W Miller QC and S A Duggan (barrister): 06/12/2006; 07/12/2006 and 08/12/2006 S A Duggan (barrister): 17/04/2007, 18/04/2007; 19/04/2007 and 20/04/2007 SOLICITORS: Sparke Helmore JUDGMENT: Contents Section Paragraph number/s INTRODUCTION 1 AGREED BACKGROUND FACTS 2 - 13 THE INCIDENT 14 AFTER THE INCIDENT 15 - 17 ENVIRONMENTAL HARM 18 - 21 PROSECUTOR'S EVIDENCE 22 - 70 Ms Anita Mitchell 23 - 26 Dr Fleurdelis Pablo 27 - 45 Dr Ian Joliffe 46 - 47 Dr Grant Christopher Hose 48 - 51 Mr Spiros Ross Manolas 52 - 66 Mr John Gray 67 - 68 Mr Richard Lawrence McClenahan 69 - 70 DEFENDANT'S EVIDENCE 71 - 98 Mr Paul John Anink 72 - 77 Mr Peter Donnelley 78 - 80 Mr Greg Venus 81 - 85 M Craig Johnson 86 - 87 Mr Graeme Granger 88 - 98 SENTENCING CONSIDERATIONS 99 OBJECTIVE GRAVITY OF THE OFFENCE 100 - 134 Maximum penalty 102 Objective harmfulness of the offence 103 - 112 Practical measures to prevent risk of harm 113 - 118 Foreseeability of risk of harm 119 - 124 Control over causes 125 - 133 Complying with orders 134 SUBJECTIVE CIRCUMSTANCES OF OFFENDER 135 - 156 Prior criminality 136 - 140 Prior good character 141 - 142 Plea of guilty 143 - 146 Contrition and remorse 147 - 153 Assistance to authorities 154 - 156 REVIEWING THE APPROPRIATE SENTENCE 157 - 159 THE APPROPRIATE PENALTY 160 - 166 PUBLICATION ORDER 167 - 169 PAYMENT OF COSTS AND EXPENSES 170 CONCLUDING OBSERVATIONS 171 - 175 FINAL ORDERS 176 - 60 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Wednesday, 1 August 2007 LEC No. 50002 of 2006 ENVIRONMENT PROTECTION AUTHORITY v CLEARY BROS (BOMBO) PTY LIMITED [2007] NSWLEC 466 JUDGMENT Introduction 1 HIS HONOUR: The defendant, Cleary Bros (Bombo) Pty Ltd (Cleary Bros), has pleaded guilty to an offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("the POEO Act") in that it polluted waters at or near New Illawarra Road, Lucas Heights in the state of New South Wales on or about 9 January 2005 and 10 January 2005. The pollutant was untreated leachate, a liquid waste product, which is generally associated with modern landfill operations. The waters polluted were Mill Creek, at a point adjacent to the Lucas Heights Waste Management Centre, and up to a point 800 metres downstream of the point where the leachate initially entered Mill Creek. The questions for determination are: (a) the appropriate penalty to be imposed; and (b) whether a publication order should be made under s 250(1)(a) of the POEO Act. Agreed background facts 2 The parties have prepared an agreed statement of facts which I will briefly summarise before going into the disputed evidence. 3 The Lucas Heights Waste Management Centre, commonly known as Lucas Heights landfill ("the landfill"), is owned by Waste Recycling and Processing Corporation (WRAPC), a statutory state owed corporation which commenced its operation in 2001 under the Waste Recycling and Processing Corporation Act 2001 and which is listed in Sch 5 to the State Owned Corporations Act 1989. The landfill is licensed as a Solid Waste Class 1 (Putrescible) landfill under environment protection licence 5065 (EPL 5065). WRAPC contracted the day-to-day operation and management of the landfill to Cleary Bros and some other aspects of the landfill are contracted to other contractors. The landfill was open on both relevant days being, as noted above, 9 January 2005 and 10 January 2005. 4 The landfill has development consent to receive up to 575,000 tonnes of solid waste per annum, including putrescible wastes. The term "leachate" is defined by the Environmental Guidelines: Solid Waste Landfills, published by the prosecutor in January 1996, as: "liquid released by, or water that has percolated through waste and which contains dissolved and/or suspended liquid and/or solids and/or gases." As I understand it, landfills generate leachate as a result of precipitation and groundwater entering landfills as well as from moisture that exists in the waste when it is disposed. The resulting liquid contains a range of chemicals and bacteria that may cause harm to the surrounding environments. 5 The landfill has a Leachate Management System (LMS) which collects leachate from the base of the landfill cells in a network of pipes. These pipes drain into a temporary leachate collection dam (the main dam), which is located in the southwest bottom corner of the landfill site. The adjacent overflow dam in turn collects any overflow from the main dam and is also used to store contaminated stormwater. Each dam has a holding capacity of approximately 4 to 5 megalitres. It is necessary to pump out the dams on a regular basis to maintain sufficient holding capacity in the dams at all times. The leachate is pumped from the dams to the five aboveground storage tanks contained in a nearby bunded tank farm. 6 Since 1992, there has been a bund in place around the five above-ground storage tanks to protect any overflow from escaping into the adjacent creek. The earthen bund surrounding the storage tanks should be designed to hold about 110% of the volume of the tanks within it and, assuming the capacity of the five storage tanks is about 590,000 litres, this means the bunded area was to hold approximately 649,000 litres. 7 In or around 2000, WRAPC engaged JPG Pty Limited, trading as JPG Engineering (JPG), to construct a Water Treatment Plant (WTP) near the tank farm. There was no link between the WTP and LMS; however, it was necessary to run electrical cables from the distribution box at the storage tank farm to the WTP. While the electrical conduits were being laid a section of the bund wall was temporarily removed by JPG so that a trench could be dug to carry conduits and cables through the bund wall. During the construction of the WTP this section of the bund wall was then reinstalled. Cleary Bros had no involvement in the removal and reinstalment of the bund wall or any associated works during the construction of the WTP. 8 At the time of the incident in January 2005, the leachate was pumped from the main dam into the leachate storage tanks using a mobile four-inch pump, which had been supplied by WRAPC. The pump is manually turned on and off each day. The practice of Cleary Bros at the time had been to operate the four-inch pump for approximately four hours each day depending on the level of leachate in the main dam. 9 Prior to modifications to the storage tanks and the pumping system at the tank farm beginning in 2002, there were five leachate storage tanks in the bunded area each with a volume of approximately 118,000 litres. WRAPC's Environmental Management Plan (EMP) for the landfill, dated 23 August 2001, states that the combined volume of the five storage tanks was about 600,000 litres. This plan had been provided to Cleary Bros prior to the incident. At the time of the incident, however, one of these storage tanks was being used in an unrelated experiment by WRAPC and was unavailable for the storage. 10 The leachate was transferred from the storage tanks to an off-site treatment plant using an automatic pump. The pump operated at a rate based upon the capacity of the off-site plant. There were floatation switches inside the tanks which would switch the pump off if the level of leachate in the tanks was low and switch it on if the level of leachate was high. There were two pumps at the tank farm which could be used simultaneously but only one was used at a time with the other remaining on standby. If both pumps were used simultaneously the flow rate would be 13.3 L/s. At the time of the incident only one pump was operating at a rate of 7.5-7.8 L/s. The levels of leachate could also be determined using red markers on the outside of the tanks. Generally the amount of leachate in the storage tanks at any given time is about a third of the tanks' total holding capacity. The amount of leachate in the tanks on the morning of 9 January 2005 is not known. 11 The current contract between WRAPC and Cleary Bros for the day-to-day operation and management of the landfill commenced on 11 June 1999 and is to run for a period of up to 12 years with a further option of 2 years. The Site Management Plan (SMP), including the EMP, Landfill Technical Report (LTR), work instructions, the development application itself and various other technical documents were expressly included in Pt 3 of the current contract. Cleary Bros' responsibility for landfill operations commenced under a previous contract dated 24 December 1986. 12 There was a WRAPC's centre manager on site to, amongst other things, oversee the activities of Cleary Bros at the landfill and to ensure they complied with the EPL 5065 conditions, the EMP and other regulations. Mr Spiros Ross Manolas, WRAPC's centre manager, was not present on site on 9 January 2005, but was present on 10 January 2005. Mr Greg Venus, Cleary Bros' site manager at the landfill and construction supervisor, was not present on site on 9 January 2005, but was there on 10 January 2005. A Cleary Bros' employee, Mr Lionel Evans, acting leading hand on 9 January 2005 and 10 January 2005, was responsible for turning on the four-inch pump to transfer leachate from the dams to the storage tanks and turning it off when the tanks were full. Mr Evans' usual position within Cleary Bros was as a plant operator and he had worked at the landfill for 18 years. He had been provided with induction training in relation to the landfill on 10 March 1994. Mr Evans had also received training from Mr Craig Lehane, a site foreman of Cleary Bros, before operating the transfer pumps at the landfill. Mr Evans had received training in the operation of the four-inch pump between the dams and the storage tanks and was aware of the need to regularly check the leachate levels in both the dams and the tanks on a roughly hourly basis. Mr Evans was aware of the practice of turning the pump on and off and of the practice for it to be operated for about four hours a day. He was aware that if he turned the pump on he was responsible for turning it off and that the pump at the main dam must be switched off before the end of the day shift. 13 Under the terms of the contract Cleary Bros had prepared work instructions in accordance with the EMP. The work instruction in relation to LMS states, inter alia, that while pumping leachate on site, the operator should monitor the level of the dam and storage tanks regularly. Mr Evans had seen this document prior to the incident. The incident 14 At approximately 12:50 pm on Sunday 9 January 2005, Mr Evans turned on the four-inch pump between the dams and the storage tanks. He checked the operation of the pump twice to make sure it was pumping, the last time being at approximately 3:00 pm. He observed no overflow from the storage tanks. He finished work later that day at about 5:00 pm and left, forgetting to turn off the four-inch pump. At approximately 6:00 am on Monday 10 January 2005, Mr Evans arrived at work and realised that the pump had not been switched off overnight. He was the first person to realise this. He then switched off the four-inch pump. The main dam was nearly empty. At some point between 3:00 pm on 9 January 2005 and 6:00 am on 10 January 2005, the leachate overflowed from the storage tanks into the bund around them. Part of the bund wall failed – and this was the part that had been reinstalled during the construction of the WTP by JPG. Leachate escaped from the breach in the bund wall and flowed downhill into Mill Creek, entering the creek near a water sampling point identified in EPL 5065 as MC1. The prosecutor was notified of the incident at approximately 9:20 am on 10 January 2005 by WRAPC staff after they received a notice of it from Cleary Bros. After the incident 15 To mitigate the impact of the discharge a number of measures were taken, as summarised below. At approximately 6:10 am on 10 January 2005 the breach in the bund wall was repaired by Mr Venus to stop any further discharge. Mr Venus also constructed a road to a water sampling point identified in EPL 5065 as MC3, the first point where Mill Creek could be accessed by the plant for a proper cleanup without damaging the surrounding catchment. Once MC3 was reached, Mr Venus arranged for a temporary dam to be constructed across the creek to contain any leachate travelling downstream. Following this Mill Creek was dammed at a point approximately 1500 metres downstream of MC1 near MC3. Cleary Bros arranged for the pond at MC3 to be pumped. The water was removed and transported back to the main dam at the landfill. After the initial cleanup Cleary Bros continued the cleanup and remediation at the site under the directions of WRAPC. The prosecutor's officers approved these operations. 16 The leachate that remained in the bunded area around the storage tanks was pumped back into the storage tanks. The leachate contaminated water in the creek was addressed by: installing a pump at a pool near the point at which the creek was dammed until it was confirmed that this area was not affected; a six-inch pump was installed at the largest affected pond on the afternoon of 10 January 2005; three pumps were installed between 11 January 2005 and 12 January 2005 and moved between various smaller ponds in the creek; the affected ponds were progressively pumped dry and the liquid removed was pumped back to the leachate storage tanks; all affected ponds were pumped dry by 13 January 2005; and the areas of Mill Creek which had been pumped dry or only contained a small amount of liquid were emptied by hand. In consultation with the prosecutor's officers, the ponds were flushed with treated stormwater that had been stored on the landfill, commencing on 17 January 2005. WRAPC undertook water quality monitoring within Mill Creek on a weekly basis. 17 After the incident WRAPC reduced the size of the fuel tank on the four-inch pump from 200 litres to 60 litres to limit the amount of time it can operate without running out of fuel. Environmental harm 18 The incident caused actual environmental harm, including leachate entering the waters of Mill Creek and the death of organic organisms in the creek. 19 Cleary Bros has agreed to a number of harm propositions in lieu of reading all affidavits. These are as follows: a) Leachate escaped from the land and entered Mill Creek. b) The quantity of leachate that entered Mill Creek is estimated to be in the order of 100,000 litres – 115,000 litres. c) The Leachate that entered Mill Creek affected the creek for a maximum distance (from the point of entry) of 800m. d) The impact on Mill Creek was contained by the Cleary Bros' actions undertaken upon the spill being detected. e) By virtue of the leachate being contained in the creek the impacts on Mill Creek were limited to the maximum distance of 800m. f) The leachate in the creek caused the death of many (but not all) aquatic organisms including but not limited to crayfish. The impacts of the leachate were variable depending upon the proximity to the point of entry of the leachate into the creek (i.e. the impacts reduced with distance from the point of entry). g) The water quality impacts in the affected portion of Mill Creek improved generally until the water quality returned to pre-impact quality within 5 weeks of the leachate entry. h) As at the date of sentence the organisms have recolonised the affected part of the creek and there is no continuing harm. i) The present condition of the affected part of Mill Creek is the same as its pre-impact condition. 20 Cleary Bros has made a number of additional written admissions with respect to its contractual obligations for the purposes of these proceedings only. These admissions are as follows: a) At the time of the incident WRAPC had contracted with Cleary Bros to undertake the operation and management of the landfill. b) Under the contract, Cleary Bros was to supply sufficiently trained and competent personnel, with suitable and up to date licences, and other equipment and to conduct the operations in a safe and approved manner at all times; to operate and maintain safe and suitable plant and equipment and machinery; to ensure the operation and levels of service meet changing standards for safety and environmental performance; all new employees were to receive induction training in all aspects of operations of the works. c) WRAPC was responsible for the provision of existing infrastructure and additional infrastructure if and when required. d) During the contract Cleary Bros was responsible for the care and maintenance of "existing infrastructure" and to keep such items in good order and operational and to replace them where necessary. The "four-inch diesel pump, hose and fittings" and "leachate storage tanks" were listed as assets that were handed over to Cleary Bros under the contract. e) WRAPC was responsible for supplying two portable diesel pumps, one for LH2WMC and one for LH1. Cleary Bros was responsible for the maintenance and fuelling of these pumps. In addition, Cleary Bros must supply and maintain all necessary pumping and associated equipment including the provision of pumps, hoses and valving for use in leachate and stormwater management. f) Cleary Bros was required to ensure the availability of suitable plant, equipment and machinery on site at all times. This included pumps, hoses and other associated accessories for transfer and management of leachate. g) WRAPC was required to appoint a representative who could give oral directions to Cleary Bros, to be confirmed in writing within a reasonable time. h) Contractually Cleary Bros had to ensure all Works were carried out in accordance with the Site Management Plan (SMP). They were required to develop and implement an up to date SMP to conform to changing business, regulatory and statutory requirements. The SMP included the Environmental Management Plan (EMP) prepared by WRAPC. i) In the case of any harm to the environment, Cleary Bros was prima facie contractually responsible for all harm to the environment and all payment of fines as imposed by the EPA {environment Protection Authority] or equivalent authority arising as a result of any harm to the environment caused by the use of the site for the provision of the services as per the contract except where it can be demonstrated that the harm was due to factors beyond its control. j) Cleary Bros was required to comply with the law and WRAPC's environment protection licence (EPL). Cleary Bros was responsible for securing all other licences, approvals and consents required for carrying out all "works" in accordance with the contract. k) Under the contract Cleary Bros had access to the landfill but not exclusive possession, WRAPC had a right to access at all times. l) Cleary Bros was required to carry out risk analysis for the environmental and all OH&S aspects in all foreseeable activities and develop and implement an emergency response plan prior to commencing works on site. m) Contractually, Cleary Bros was required to operate the LMS in accordance with the guidelines and design as described in the SMP. They were required to ensure complete day to day operation control of the leachate system within the landfill site. n) WRAPC was responsible for treatment and control facilities. Such facilities were to be handed over to Cleary Bros for operation and maintenance once their performance was proven satisfactory. o) Cleary Bros was required to manage leachate on site using the available systems and leachate storage tanks. They were required to monitor, maintain and operate the leachate collection and treatment. p) Cleary Bros was responsible for the maintenance of all types of major and minor site drainage works, dams, bunds, drains, sediment retention traps/screens and erosion controls. Cleary Bros was required to maintain such works in a way so as to ensure they are in peak functional condition in accordance with their design specifications. q) Cleary Bros was required to maintain bunds specified in clause 3.2.2 in good condition. r) WRAPC could and did select other contractors to perform certain tasks on site, such as modification of WRAPC's assets maintenance or construction of plant. Under these provisions WRAPC contracted with JPG to install new pumps for the tank farm. Such works included the trenching of that part of the bund wall and its reinstatement. These works related to that part of the bund wall that failed during the incident for which these proceedings are brought. s) Cleary Bros had no obligation under the contract to supervise or check the work of other contractors. t) WRAPC was entitled to vary the obligations of Cleary Bros under the contract and no variation vitiated the contract. u) Cleary Bros was entitled to be paid a rate on a weekly basis to cover all costs for the operation and management of the LHWMC not included elsewhere, such as, the protection of environmental control systems. There was a specific rate which included all costs per week for the operation and management of the LMS. 21 Notwithstanding the agreed statement of facts which I have set out above, the parties proceeded to rely upon a large amount of additional affidavits and oral evidence. (This had the consequence that the estimated hearing time for this sentence hearing – two days – blew out to seven days.) Prosecutor's evidence 22 In addition to the agreed facts recited above the prosecutor read several affidavits together with voluminous annexes and exhibits and called a number of witnesses. This evidence is summarised below. Ms Anita Mitchell 23 Ms Anita Mitchell provided an affidavit on 27 November 2006. She has been the General Manager Sustainability and Assurance for WRAPC since February 2005. Prior to this she was the Director of Environment and Safety from August 2003 to February 2005. 24 Annexed to her affidavit is an incident report which was submitted to the prosecutor. It was prepared by Ms Jennifer Sage and reviewed and signed by Ms Mitchell on 17 January 2005. The report details the leachate spill. It states the primary cause of the incident was a failure in a section of the bund wall. It estimates leachate first escaped the bunded area sometime early on the morning of Monday, 10 January 2005 and the overflow occurred over a period of three to five hours. Mr Evans described in the report as the first person to witness the overflow at approximately 6:00 am Monday, 10 January 2005. Mr Venus, site manager of Cleary Bros, inspected the overflow soon after and arranged for its immediate containment. Mr Manolas, centre manager of WRAPC and officers of the prosecutor subsequently inspected the location of the overflow at approximately 9:00 am Monday, 10 January 2005. The report indicates that to prevent or mitigate against a recurrence of such an event: the bund wall was temporarily repaired and after obtaining engineering advice final repairs would be undertaken; and Cleary Bros would retrain the relevant employee on the leachate pumping procedure. 25 Also annexed to the affidavit are two progress reports for the cleanup of Mill Creek prepared by Ms Sage which were reviewed and signed by Ms Mitchell on 23 February 2005 and 1 April 2005. The first report indicates that WRAPC was remediating the site by containing and removing impacted water, flushing the impacted ponds with treated stormwater and natural attenuation. The second report shows a considerable reduction in ammonia concentrations at MC1 and MC3 with those at MC1 having fluctuated to below 5mg/L whilst those at MC3 were below the licence criteria level of 2.5mg/L. The report indicates that due to the improvement in water quality the bund at MC3 was removed on 31 March 2005 to allow the migration of fauna throughout the upper reaches of the creek. The reports also points out that WRAPC would continue to monitor the water quality in Mill Creek on a weekly basis and provide further progress reports. 26 A letter of 23 March 2005 signed by Ms Mitchell enclosing results from an analysis of leachate from the landfill carried out by Labmark Pty Limited is also annexed to the affidavit. The letter indicates that the results of the report are consistent with the characteristics of leachate collected routinely from the leachate collection dam. Dr Fleurdelis Pablo 27 Dr Fleurdelis Pablo provided two affidavits dated 23 January 2006 and 9 November 2006 and gave oral evidence on 6 December 2006. Dr Pablo is employed by the Department of Environment and Conservation as an ecotoxicologist at its Ecotoxicology and Environmental Contaminants Section. She has been employed in this capacity since September 1995. She holds a bachelor degree and a master degree in chemistry from the University of the Phillippines and a PhD in analytical/physical chemistry from the University of Western Sydney. In her first affidavit of 23 January 2006 she comments on the environmental effects of the spill of leachate from the landfill into the adjacent creek. 28 Dr Pablo firstly refers to observations made by the prosecutor's officer, Ms Jane Rachel Burgett, on her inspections of the leachate storage bunded area and the adjacent Mill Creek: (a) 10 January 2005 – visual evidence of spilt liquid directly below the section of earthen bund wall which had been disturbed. A line of wet earth travelled from the base of the bund the edge of Mill Creek. At various points along this line were small pools of dark odorous liquid. The immediate vicinity of the creek was dark in colour. (b) 12 January 2005 – approximately 15 dead crayfish and other invertebrates were found in the water and on the creek banks. The water in the creek was still discoloured. (c) 13 January 2005 – level of contamination significantly reduced but more dead crustaceans were observed on the creek bed. Further downstream where water could not be pumped out contamination was still present. (d) 1 February 2005 – visually the water quality of the main pond of Mill Creek had improved and there was no evidence of leachate in the creek but there was some leachate trapped in smaller pools in the creek. 29 Dr Pablo then refers to a number of water samples that were collected by the prosecutor on 10 January 2005 from 11 sites, one of the sites was the bunded area of the tank farm and the other ten sites were in Mill Creek above MC3. Dr Pablo comments on the results of chemical analysis of these samples. She also comments on the results of toxicity tests conducted by Ecotoxicology Section of the prosecutor on five selected samples collected on 10 January 2005. 30 Dr Pablo explains that when leachate is produced, the resulting liquid picks up dissolved materials from the decomposing waste. The leachate composition depends upon waste constituents and their solubilities, and the leachate quality can vary from relatively harmless to extremely toxic. 31 Dr Pablo deposes that toxicity tests were conducted by the Ecotoxicology Section on five selected samples collected on 10 January 2005. Dr Pablo notes that there were two sets of samples of the leachate material spilt into Mill Creek during the incident, one set collected by WRAPC from the leachate collection dam and another collected by the prosecutor from the bunded area of tank farm, both measuring high ammonia (NH3) concentration of approximately 1400 mg/L. High levels of ammonia contaminating the waterway is a concern because it has adverse effects on aquatic life. There is a discrepancy between the Biological Oxygen Demand (BOD) measured by WRAPC and the prosecutor in their respective samples. WRAPC measured a relatively high BOD of 4100 mg/L while the prosecutor measured 250 mg/L BOD and 2500 mg/L Chemical Oxygen Demand (COD). Dr Pablo deposes that this discrepancy may be due to the different sources and the handling of the samples before analysis. 32 Dr Pablo deposes that WRAPC measured relatively high concentrations of metals, namely, calcium (Ca), magnesium (Mg), sodium (Na) and potassium (K), all of which are mainly responsible for the high conductivity of leachate. Dr Pablo deposes that high conductivity directly affects the osmotic regulation by aquatic organisms by disrupting the salt balance across cell membranes. Invertebrates are among the most sensitive species to increased conductivity and thus she states that the high conductivity of the water at Mill Creek following the incident would have contributed to the death of crayfish and invertebrates in the main pond. 33 The prosecutor tested for the presence of heavy metals. Dr Pablo indicates that except for iron at 5.3 mg/L, these metals measured below one mg/L and so they might not be of concern. 34 Dr Pablo believes the high concentration of ammonia is the principal chemical-of-concern affecting aquatic life. The concentrations of ammonia exceed both environmental protection licence limits and the Australia and New Zealand Environment and Conservation Council (ANZECC) safe levels to aquatic life. She notes that the measured results for ammonia (820 to 17 mg/L) on 10 January 2005 in Mill Creek are approximately 328 to 7 times higher than the 2000 ANZECC guideline for ammonia. Similarly, the measured results for conductivity (12000 to 770 µg/L) are 8 to 0.5 times higher than the 1992 ANZECC guideline. She also deposes that the high oxygen demand (BOD) of the sample is a concern as the leachate components, even upon entering Mill Creek, would continue to decompose requiring dissolved oxygen from water meaning oxygen levels in Mill Creek could become depleted. 35 From the progress reports submitted to the prosecutor by WRAPC, Dr Pablo notes that after it commenced flushing the creek ammonia levels dropped and conductivity stabilised. For four weeks from 18 January 2005 ammonia levels dropped from 12.3 to 3.3 mg/L and conductivity at MC1 stabilised to background levels from 20 January 2005. She notes that at MC3, the ammonia and conductivity were at background levels following the incident on 10 January 2005 to 15 February 2005. 36 Dr Pablo visited the landfill on 11 July 2005, some six months after the incident. She describes the creek as generally consisting of a series of small to large ponds separated by shallow areas lined with bedrocks and occasionally with soft sediment. The bottom and sides of the creek is mainly soft silty sediment, a good habitat for macroinvertebrate fauna. She deposes that she heard the croaking of frogs along the length of the creek and observed numerous mosquito fish up to two centimetres long swimming only in the downstream portion of Mill Creek. She collected sediment samples during her visit and found they showed the presence of moderately sensitive insect species such as mayflies, dragonflies, caddisflies, damselflies, crane flies, midge fly larvae; crustacean species copepods and ostracods; and an introduced mollusc species snail. She also found a relatively huge number of tolerant worm species and chironomid non-biting midges, which can better withstand pollutants. She deposes that overall the species composition indicates that the creek is a typical urban creek perhaps leaning more towards a moderately disturbed system. 37 Dr Pablo addresses the environmental harm caused by ammonia, conductivity and decreased dissolved oxygen (DO) in water. She deposes that the ammonia measured in Mill Creek of 500-820 mg/L in the main pond for two to seven days following the incident on 10 January 2005 would have a severe impact on the aquatic life in the area. She believes such concentrations were sufficient to cause death of most invertebrates, including crustaceans like crayfish in the main pond and the organisms identified in the sediments she collected on her site visit. The dead crayfish and other invertebrates which were observed at the main pond of Mill Creek after the incident would have been due to the high ammonia concentration and Dr Pablo deposes further that if mosquito fish and tadpoles were present in the main pond during the incident they would have very likely died also. She deposes that the high ammonia concentration would thus have a serious impact on the ecosystem structure and function. She believes that adverse effects on organisms at the main pond would have continued for five weeks following the incident. 38 Indicating that low DO concentrations in water can result in adverse effects on many aquatic organisms, Dr Pablo believes that the significant reduction in DO levels at Mill Creek following the incident would have had a significant impact on the invertebrates in the creek. She deposes that it is very likely that low DO contributed to the deaths of crayfish and invertebrates; and, if tadpoles had been present, they would definitely have been affected. 39 In her second affidavit, Dr Pablo comments on Mr Paul Anink's statements of evidence of May 2006 and October 2006. She refers to Mr Anink's comment in his May 2006 report that there is unlikely to have been any further intermediate impacts and no long-term impacts from the incident. She points out that this statement is irrelevant as she believes no organisms that were present in at least 350 metres of Mill Creek would have survived the toxic effect of the ammonia therefore there would be no living organisms to be affected. 40 With respect to Mr Anink's October 2006 report, which was to provide his opinion on the recovery of Mill Creek, Dr Pablo agrees with his statement that the post-clean up water quality at the time of the report would be similar to pre-incident conditions. She further states, however, that visual assessment of the section of Mill Creek is not sufficient to make the statements Mr Anink made about the fauna in the pools and the aquatic biota of the creek. She contends that visual assessment is the first step to a proper evaluation of the site, but it does not alone constitute a valid assessment of the site's aquatic ecology. 41 Dr Pablo also discusses her site visit of 30 October 2006 when she carried out an Australian River Assessment System (AUSRIVAS) sampling for macroinvertebrate assessment. At approximately 150 metres north of the bunded leachate storage tanks there was low water volume. The water was turbid and it was not possible to see macroinvertebrates swimming there. She deposes that they did not see mosquito fish swimming there, nor did they hear frogs calling but she did observe a few water striders skimming the water surface. Dr Pablo states that the measured environmental parameters were typical of freshwaters. 42 At MC3 Dr Pablo observed a significantly lower volume of water than during her previous visit, and the water was more turbid. She deposes that she observed numerous mosquito fish up to two centimetres in length but did not see water striders or hear frogs calling. 43 In her oral evidence Dr Pablo confirmed that, in her opinion, the water quality insofar as chemical analysis is concerned has returned to its pre-spill quality towards the end of five weeks and after five weeks of the incident, but not earlier. 44 In cross-examination Dr Pablo agreed that when she sampled the creek some six months after the incident, that is, on 11 July 2005, the samples downstream were consistent with those upstream of the discharge point. She also agreed with Mr Anink's statement, that the post cleanup water quality in the creek, insofar as the presence of fauna was concerned, was by 8 November 2005 similar to the pre-incident condition. 45 Dr Pablo also agreed with the opinion of Mr Anink that within five weeks of the incident the water quality, insofar as its pH reading or chemical analysis was concerned, had returned to its pre-incident quality. Finally, Dr Pablo agreed that within eight days of the incident there were insects in the creek, although no crustaceans were represented, as was the case upstream of the discharge point. Dr Ian Joliffe 46 Dr Ian Joliffe swore an affidavit on 30 November 2006. He is employed by GHD Pty Limited as the principal engineer for Water Management in the Newcastle Office. He is the author of an expert report relied upon by WRAPC in the related proceedings on the bund wall failure. The report is exhibited to his affidavit. The report indicates that the capacity of the bunded area is inadequate. Mr Goodman of G.A. Goodman Surveys Pty Limited estimated the net volume of the bund to be 208 or 230 m³ and Mr McClenahan of Brunskill McClenahan & Associates Pty Limited (BMA) estimated it to be 188.6 m³ ± 10 m³. According to the Australian Standard AS 1940-1993, s 5.9.2 – net capacity of a bunded compound in a tank storage facility must be at least 100% of the capacity of the largest tank and interconnected tanks should be treated as a single tank of equivalent total volume for the purposes of the criteria. From this Dr Joliffe derives that the required capacity of the bund is approximately 452 m³. He concludes that the two estimates of the actual bund capacity are therefore significantly less than the required volume. 47 Further the report finds there are two possible causes of the failure of the bund wall resulting in the leachate discharge. Either the bund wall failed without the leachate overtopping it (based upon survey information from Mr Goodman) or the leachate overtopped the bund wall (based upon survey information from BMA). Dr Joliffe finds, however, there to be insufficient evidence to definitively determine whether the bund wall failed as a direct result of overtopping or as a result of initial seepage of leachate through the bund wall which then lead to the failure. Dr Grant Christopher Hose 48 Dr Grant Christopher Hose furnished an affidavit on 9 November 2006. He is currently employed as the Chancellor's postdoctoral research fellow in the Department of Environmental Sciences and Institute for Water and Environmental Resource Management at the University of Technology Sydney (UTS). Dr Hose was commissioned by the prosecutor to analyse and interpret environmental data and macroinvertebrate samples collected by Dr Pablo and Ms Tang on 20 October 2006. Dr Hose cross-checked the identifications of the macroinvertebrate samples he was given and agreed with the identifications made by Mr Theischinger. He then entered the macroinvertebrate data and also the environmental data provided into Microsoft Excel. Dr Hose deposes that he then performed AUSRIVAS analysis on the data using the NSW Spring edge model. From this analysis he deposes that both samples collected at MC3 indicate the site to be significantly impaired. With respect to the macroinvertebrates he believes the data suggests some considerable impact has occurred at the site. He further deposes, however, that the degree of impact at MC3 is consistent with the site being downstream of a large waste management facility. In his opinion, an analysis conducted prior to the pollution incident in January 2005 would yield similar results. Both samples from the site are categorised by AUSRIVAS as Band C, indicating it to be a moderately impacted site. With respect to MC1 Dr Hose deposes that both samples collected indicate it to be slightly impaired and some impact upon macroinvertebrates has occurred. Both samples from the site are categorised by AUSRIVAS as Band B, indicating it to be a mildly impacted site. 49 Dr Hose deposes that he found data on the database of river health data for Site GEOR528 named "Mill Creek" in a similar locality to MC1. The results he retrieved indicate that at the time the site was sampled in autumn and spring 1997 it was in a relatively undisturbed condition. 50 Dr Hose refers to the Mr Anink's supplementary statement of evidence. He deposes that the statement in that report regarding the biota observed in Mill Creek is consistent with the results of the sampling done by Dr Pablo and Ms Tang. He deposes the samples they collected contained macroinvertebrates that swim, macroinvertebrates that skim the water's surface and tadpoles. He believes that the presence of tadpoles indicates that frog calls would also be likely to be heard at times. Dr Hose deposes that Dr Pablo and Ms Tang did not collect any crayfish in their samples but their sampling method was not well suited for such a purpose. Dr Hose deposes that it is unclear how the age of the crayfish observed in Mr Anink's report was determined. 51 Dr Hose concludes that the health and condition of Mill Creek as at 30 October 2006 is likely to be similar to the condition prior to the incident in January 2005. Mr Spiros Ross Manolas 52 Mr Spiros Ross Manolas is, as noted above, WRAPC's centre manager at the landfill since November 2002. In his affidavit of 8 November 2006 he described his responsibilities as: administering the service contract between WRAPC and Cleary Bros and auditing Cleary Bros' activities to check they are operating and managing the site in accordance with its terms and complying with the SMP and the EPL 5065; monitoring contractor service levels; supervising maintenance and construction activities; establishment and management of customer, community and stakeholder relations; and providing management information reports. Mr Manolas says that he is generally present at the landfill almost on a daily basis, and at least three to four days per week. 53 Mr Manolas deposes that following the leachate spill between 9 January 2005 and 10 January 2005, he instructed a graduate engineer, Ms Angela Cheyne, to measure the flow rate of the leachate from the landfill into the holding tanks. There is a manual four-inch diesel pump adjacent to the main dam to pump leachate from the main dam to the leachate holding tanks in the bunded area. Mr Manolas deposes that on the week following the incident he measured the average flow rate for the leachate being pumped by the four-inch diesel pump into the holding tanks to be approximately 15 L/s. This pump is manually turned on and off and is part of the existing infrastructure. 54 Annexed to the affidavit of Mr Manolas is the LMS's work instruction implemented by Cleary Bros. The relevant clauses of the instruction are: 3.2.2 The dam will be monitored by Cleary Bros Site Foreman or delegate to ensure that it is maintained at the lowest possible level at all times. Leachate will regularly be pumped by Cleary Bros staff from the leachate dam to the leachate tanks in the lower area of the site… 3.2.3 The leachate tanks will also be monitored by the Site Foreman and be maintained at the lowest possible level by pumping directly into the sewer system or by reinjecting the waste. … 3.5.1 The Site Manager or delegate will ensure that leachate pipes and holding tanks are checked daily for leakage. The Site Manager or delegate will also ensure that the creek is checked daily for escape of leachate. … 55 Mr Manolas deposes that at the time of the incident there were five leachate storage tanks in the bunded area. One of those tanks contained approximately 16,000 litres of leachate being used for an experimental trial; this tank was not available to store leachate from the dams. He states that this tank was self-contained and did not contribute to the incident whilst the remaining four tanks were interconnected. 56 Mr Manolas indicates that leachate from the holding tanks is pumped off-site for treatment to a nearby leachate treatment plant via an automated transfer pump. There are two pumps available to pump leachate off-site. One of these automatically commences pumping leachate once the tanks are approximately 67 per cent full; the other is in case of emergency and only operates manually. 57 At the time of the incident Mr Manolas deposes that Cleary Bros was required to submit a daily checklist to him by email. The checklist for 9 January 2005 is annexed to his affidavit. The Cleary Bros staff member who performed the inspection has answered yes to all of the following relevant questions: … 3. Have spill control activities been performed in accordance with LEMP? … 6. Have flowmeter and hours run readings been recorded at LH1? 7. Is leachate pump at LH1 operational? 8. Has leachate been pumped to sewer? 9. Is there sufficient storage capacity in the leachate pond and leachate tanks? 58 Mr Manolas deposes that he does not recall Cleary Bros ever raising a concern about the use or operation of the four-inch pump in any meeting or verbally with him prior to the incident. He indicates that they did raise an issue with the automated transfer pumps to pump leachate from the holding tanks to LH1. In about July 2003, one such pump had burnt out as Cleary Bros had allowed the tanks to run dry. Until the automated pumps could be brought back online Cleary Bros were provided with an instruction for employees in respect of the leachate pumps. 59 In about August 2003, JPG installed float switches in the tanks to prevent them running dry and to automate the transfer pumps. Mr Manolas deposes that before this occurred he instructed Mr John Gray of JPG to train Messrs Crain Lehane, Mick Graham and Kevin Cossingham of Cleary Bros in the changes that had occurred and how that would affect the operation of the leachate system. 60 Mr Manolas deposes that Cleary Bros made a number of requests for standard operating procedures (SOPs) in Contract Review Meetings in 2004 and 2005. They wished the SOPs to explain how the new infrastructure works at LMS and what changes were needed to the operation of existing infrastructure. He indicates that on 10 March 2005, following the incident, he provided a site instruction and SOP for the leachate drainage dam diesel pump. 61 Mr Manolas states that if Cleary Bros is complying with the EPL and the SMP and no new infrastructure is being installed he does not usually make additional directions concerning leachate management as day to day operational decisions are the responsibility of Cleary Bros. Mr Manolas further indicates that he is interested in ensuring the leachate treatment plant at LH1 has an adequate supply, that the leachate dams at LH2WRC and LH1 have adequate capacity and that the leachate storage tanks are operated correctly but that it is for Cleary Bros to decide the measures to take to achieve these objectives. He deposes that it is also the responsibility of Cleary Bros to train its employees to operate the LMS. 62 According to Mr Manolas, since he commenced working for WRAPC he has observed Cleary Bros carrying out maintenance works on the bund around the leachate storage tanks where the incident occurred. 63 Mr Manolas gave oral evidence on 6 December 2006 and 7 December 2007. He confirms that there were several meetings between representatives of WRAPC and JPG which he had attended, in particular on 26 October 2004, 16 December 2004 and 7 April 2005, to review the overall status of leachate management strategies at the landfill, including leachate transfer and collection. 64 Mr Manolas said that in August 2003, in addition to the installation of the flood switches at the tank farm, JPG installed new lines between the tanks and at a height of about half a metre above the floor of the tanks: the previously existing pipes at the base of the tanks were subject to sediment blocks. 65 In cross-examination Mr Manolas said that JPG was subcontracted to WRAPC and not to Cleary Bros and all the equipment, including the pumps, was owned by WRAPC. The raising of the new lines between the tanks had the effect of reducing the total capacity of the tanks by about five per cent, or about 25,000 litres in total, and one tank had been taken off-line, so that only four tanks were in use. As I understand the evidence, each tank had a capacity when full of about 120,000 litres, so that the collective volume of the four tanks in use was about 480,000 litres and, if the fifth tank had been in use, if the collective holding capacity would have been about 600,000 litres. 66 In re-examination Mr Manolas said that Cleary Bros knew that the fifth tank was off-line, but that would not have effected the ability to monitor the levels in the tanks. Mr John Gray 67 Mr John Gray furnished two affidavits, the first on 8 November 2006 and the second on 6 December 2006. In his first affidavit, he states that he is the manager and principal engineer of JPG Pty Limited trading as JPG Engineering. His responsibilities include management and process engineering design. He deposes that in October 2002, WRAPC commissioned JPG to design and install a new leachate pumping station for the transfer of leachate to the leachate treatment plant from the existing leachate tanks at the landfill. As part of this he conducted transfer flow rate tests between tanks 1, 2 and 3 during which he confirmed that the leachate transfer pump flow rates were approximately 27 m³/hr. This was reported by facsimile to Mr Manolas on 24 August 2003. Mr Gray notes that the original design flow rate was specified at 7.1 L/s which is 25.56 m³/hr. He deposes that on 7 November 2006 he observed the same pumps discharging at 7.1 L/s and 7.6 L/s. Mr Gray further states that around October 2000, JPG were contracted by WRAPC to install electric power and control cables in a cable trench run through the middle of the tank farm. JPG did not reinstate the bund wall on the northern side of the tank farm, nor were they instructed to so do. 68 In his second affidavit, Mr Gray deposes that in 2003 the tank farm leachate pump system was upgraded. The upgrade included automation of the leachate transfer pumps using auto stop-start off float switches. He recalls that, on 19 August 2003, he met three Cleary Bros employees responsible for operating the tank farm – Mr Kevin Crossingham, Mr Craig Lehane and Mick (surname unknown) - and discussed the upgraded pumping system including the automation of the leachate transfer pumps. He ran them through the control philosophy. He also explained the proposed control modifications to allow the pumps to operate automatically. Mr Gray deposes that he asked if the men had any issues with what is proposed or any questions and they did not. After this meeting he found out about further concerns that Cleary Bros had. To resolve this, on 22 August 2003, he conducted tests at the tank farm and confirmed that the transfer rates were satisfactory, he also discussed with Mr Lehane how the tank farm should operate in the period prior to automation. Mr Gray deposes that thereafter he was not asked to provide any further training related to the upgraded leachate pumping system. Further, either himself or another JPG's representative was on site at the premises regularly and they were always available to answer questions or provide refresher training; however they never provided any refresher training and he does not recall being requested to. Mr Richard Lawrence McClenahan 69 Mr Richard Lawrence McClenahan, a principal and senior surveyor with the firm Brunskill, McClenahan & Associates Pty Limited, furnished two affidavits, the first on 9 February 2006 and the second on 6 November 2006. In his first affidavit he deposes that he has been employed as a surveyor from March 1978 to the present. On 20 January 2006 he, accompanied by employees of his firm Mr C Hill and Mr M Boylan, met with Ms D Playford, a prosecutor's officer, at the landfill. Mr McClenahan instructed his employees to take a detailed survey of the tank farm. He then prepared a plan and performed calculations to estimate that the total volume of liquid that could be stored in the bund, prior to the additional material being added after the breach of the bund wall was 188.6 m³ ± 10 m³. 70 In his second affidavit he deposes that he, accompanied by another employee of his firm Mr Sammy Sibug, made a further visit to the landfill on 30 October 2006. He took measurements to compare the height datums between his plan of 20 January 2006 and the plan prepared by Mr C Johnson of K F Williams & Associates Pty Limited for Cleary Bros. According to Mr McClenahan, the heights on Mr Johnson's plan were 57.11m higher than the heights shown on his plan. From these observations and measurements Mr McClenahan confirms the opinions expressed in his first affidavit. Defendant's evidence 71 Cleary Bros relied upon a number of affidavits and called a number of witnesses. Their evidence will be summarised below. Mr Paul John Anink 72 Mr Paul John Anink furnished an affidavit on 8 November 2006. He is employed by Marine Pollution Research Pty Limited as the Managing Director. He is an aquatic ecologist who specialises in the effects of pollution events on marine and freshwater aquatic ecosystems. Annexed to his affidavit are his statement of evidence prepared in May 2006 and his supplementary statement of evidence prepared in October 2006. 73 In his statement of evidence Mr Anink discusses his initial site inspection on 14 January 2005. He states that he inspected the creek pools downstream of the leachate entry point. The impacted pools had a dark brown-black colour with a distinct odour of ammonia. He further notes there was a lack of swimming macroinvertebrate fauna and there were dead or dying freshwater crayfish. Mr Anink undertook the first post-spill monitoring on 18 January 2005 and 19 January 2005. At this time, the pH at the impact pond about 200 metres downstream of the top impact pond at MC1 was averaged to be 6.8 and the pH at a combined leachate and pumping impact site about 10 metres upstream of the impact pond was measured as 7.4. 74 Mr Anink indicates that, following notification that the clean up had been achieved to the mutual satisfaction of WRAPC and the prosecutor, he undertook a macroinvertebrate survey on 12 May 2005. The results he achieved confirm that the electrical conductivity of the water was elevated by the spill. He also found DO to be very low in the impact pond. Mr Anink states that by May 2005 the impact pond had recovered sufficiently to support a diverse range of aquatic macroinvertebrates. He indicates that crayfish had not recolonised the impact section of the creek but this could be expected during the next summer. He found the ponds supported a community structure similar to that found at reference sites within Mill Creek and at a site in a reference creek. 75 From his analysis Mr Anink concludes that the spill of leachate between 9 January 2005 and 10 January 2005 caused a spike of toxic but non-persistent chemicals to be deposited in the waters of the creek, causing a pulse impact on the aquatic biota. He agrees with Dr Pablo's conclusion that ammonia was the principal chemical of concern and this was exacerbated by high BOD and low DO concentrations. Mr Anink also agrees with Dr Pablo's finding that the creek length directly impacted by the spill was around 800 metres downstream from the discharge point. He confirms Dr Pablo's opinion that the chemical impacts were probably most severe at the discharge pond with a gradual decrease downstream. He believes adverse impacts on aquatic biota within the 800 metres length of creek would have continued for up to five weeks following the incident. Mr Anink concludes that as the main constituents of the leachate spill were degradable there is unlikely to have been any further intermediate impacts and no long-term impacts of the spill on the aquatic ecology of Mill Creek. 76 In his supplementary statement of evidence Mr Anink discusses a site visit made on 6 October 2006 by his senior biologist. He indicates that he gave his employee instructions to inspect Mill Creek at and between sites MC1 and MC2 so as to provide a visual assessment of the aquatic fauna of the creek. Mr Anink states that this visit confirmed that there were crayfish residing in a number of pools throughout the section of creek visited. He believes these crayfish to have been 1 to 2 years old as they were around 10 cm in length. These pools also supported a variety of swimming and skimming macroinvertebrate fauna and also tadpoles. He further indicates that frogs were heard calling along the creek section visited and a long-necked turtle was identified in one pool. Mr Anink personally made a site inspection on 9 October 2006. Based upon his own observations and the report of his senior biologist Mr Anink concludes that the creek supports an aquatic biota similar to that which he would have expected to be in the creek prior to the incident in January 2005. 77 Further, Mr Anink considers rainfall and water quality in between 2004 and 2006 and concludes that post-clean up water quality is similar to pre-spill water quality and, consequently, there were no significant water quality impacts within the area of impact after clean up works were completed. Mr Peter Donnelley 78 Mr Peter Donnelley furnished an affidavit on 27 October 2006. He is a director of Niven Donnelley & Partners Pty Ltd which provides consulting services in hydraulics, civil engineering and fire protection. Mr Donnelley deposes that he has over 39 years experience as a hydraulic services consultant. Annexed to his affidavit is a report relating to the leachate spill prepared by him. In that report he states a number of opinions relating to the leachate spill. These will be summarised below. 79 Mr Donnelley details the flow rates of a number of pumps installed at the temporary leachate dam. The Robin DY30D PTG305RD has a flow rate of 4.8 L/s, the Honda DP4 Super Flextool Trash Pump P212 has a flow rate of 3.6 L/s and the four-inch diesel pump which was used when the incident occurred has a flow rate of 14.0 L/s. Mr Donnelley states that he believes the discharge flow rate of the 4 inch diesel pump could be varied and further it could have been reduced to 7.8 L/s or lower to balance with the flow rate of the leachate transfer pump. He then calculates the time it would take the bunded area to overflow in a number of different scenarios: (1) Scenario 1: – the volume of all five tanks having all tanks empty at commencement of pumping; assuming a bund designed to hold 110% of the volume of the tanks (about 660,000 litres); using the four-inch pump and one transfer pump transferring leachate from the storage tanks – the time taken for the leachate to overtop the bunded area would be 56.45 hours. (2) Scenario 2 – the actual volume of the bund as built (about 207,515 litres); the capacity of all five tanks (about 338,625 litres) considering installation of float switches, quantity of leachate in tanks prior to commencement of pumping and installation of float switches; using the four-inch pump and one transfer pump transferring leachate from the storage tanks – the time taken for the leachate to overtop the bunded area would be 21.34 hours. (3) In Scenario 2 - if the fifth tank was taken off line (bund capacity of about 207,515 litres, the capacity of all four tanks of about 270,900 litres) the time taken for the leachate to overtop the bunded area would be 18.93 hours. (4) In Scenario 3 - if both transfer pumps were transferring leachate from the storage tanks the time taken for the leachate to overtop the bunded area would be 152.05 hours. (5) In Scenario 3 - if the four-inch diesel pump were replaced with the Robin DY30D PTG305RD or the Honda DP4 Super Flextool Trash Pump P212 the bund would never have overtopped, as the outflow to the sewer would have been greater than the inflow to the tanks. 80 Finally Mr Donnelley indicates that he calculates the volume of leachate that would have overflowed to the bunded area at 168,127.6 litres based upon an estimate of the actual scenario when the incident occurred. Mr Greg Venus 81 Mr Greg Venus furnished an affidavit on 4 December 2006 and gave oral evidence on 7 December 2006. He has been employed by Cleary Bros since 1987, most recently as the site manager of the landfill. According to Mr Venus, in or about August 2002, a four-inch diesel fuelled pump was introduced at the LMS for use at the leachate dams to pump leachate from the dams to the storage tanks at the tank farm. The four-inch pump had to be manually turned on or off and, once switched on, it would continue to pump until the pump is switched off, or the pump's diesel fuel supply was exhausted or the leachate dam was pumped dry. Mr Venus deposes that to the best of his knowledge, WRAPC never provided him, or anyone else at Cleary Bros, with information setting out the flow rate at which the pump operated. 82 In or around 2000, Mr Venus became aware that WRAPC engaged JPG to construct the WTP, and observed some of the construction work being undertaken during the course of his site inspections as the site manager at the landfill. Mr Venus deposes that in 2000, he observed a section of the bund wall surrounding the storage tanks being dug through and he noticed later that this section had been re-instated. He is not aware who re-instated the bund wall, but he believes that Cleary Bros was not involved in any such work. 83 In cross-examination, when asked whether, as at 9 January 2005, Cleary Bros had a system for operating the four-inch diesel pump, Mr Venus answered "No." He also gave the following evidence: Q. And once the pump had been started was there a procedure for what happened next? A. Yes, you go and check the lines, make sure there was no leaks in the line, make sure that everything was right in the tanks, check the creek at MC1 and then we'd come back on an hourly basis to make sure everything was operating properly. Q. And what would be done to ensure that? A. We'd come back each hour. If the level of the tanks was high we'd go and turn the pump off but it usually took up to three to four hours to get the tanks to a level where they needed to be turned off. Q. And was that a procedure from the beginning to the end which was followed on an almost daily basis? A. Yes. 84 When asked whether he knew, before the incident, that if the pump was switched on then the storage tanks would overflow, Mr Venus said that there was a possibility of it. He further said that there was no system for ensuring that information observed by his employees about the operation of the LMS was conveyed to him and that he had no information from anyone as to how the critical part of the LMS in fact worked, although he believed that Messrs Crossingham and Lehane of Cleary Bros, who operated the system and were trained to operate it, may well have known. 85 In fairness to Mr Venus, I note that shortly after giving his oral evidence on 7 December 2006, he was admitted to hospital with a suspected heart attack and was unable to conclude his evidence. Subsequent to that, Mr Venus had been under the care of both a psychologist and a number of medical practitioners who have expertise in cardiology. Cleary Bros has taken the view that it has duties of care to Mr Venus and withdrew Mr Venus' affidavit of 4 December 2006 insofar as it does not refer to in his oral evidence. Mr Venus' evidence before me is, therefore, limited to his oral evidence and his affidavit evidence remains on the record on a limited basis. Mr Craig Johnson 86 Mr Craig Johnson swore an affidavit on 9 November 2006. He is a registered surveyor employed by K F Williams & Associates Pty Ltd as their manager, surveying. He has over 30 years experience as a surveyor. Annexed to his affidavit is his report relating to the leachate tank incident dated 4 October 2006. In that report he provides a number of opinions based upon his survey and site visits on 14 January 2005, 19 January 2005, 9 November 2005, 14 February 2006 and 21 February 2006, 16 March 2006, 18 August 2006, 21 August 2006, 15 September 2006, and 28 September 2006. 87 In his report, Mr Johnson calculates the available capacity of the leachate tank farm bunded area to be 207,515 litres. This value takes into account the lowest point at the top of the bund wall, the topography of the floor of the bunded area, and it excluded the volume occupied by the leachate storage tanks. He determines the combined volume of the five storage tanks to be 570,600 litres. The overflow pipes on the leachate storage tanks have the effect of reducing this volume to 503,940 litres. The tanks' combined volume less tank no. 5 is 403,150 litres. Mr Graeme Granger 88 Mr Graeme Granger furnished two affidavits, dated 4 December 2006 and 6 December 2006 and gave oral evidence before the court on 17 April 2007 and 18 April 2007. 89 Mr Granger has worked in the engineering and construction field since the age of 19 and is qualified as an engineer. Mr Granger commenced his employment with Cleary Bros in 1992 as a divisional manager for a period of six months and subsequently was promoted to a position of technical manager. His role includes technical oversight, general project management, contract administration duties and engineering activities. His role also includes responsibility for Integrated Quality Management System of Cleary Bros, which in turn involves environmental management. 90 Mr Granger says that in or about 1998 he had personally been involved in negotiating the terms of a service contract for the operation and management of the landfill on behalf of Cleary Bros. He is familiar with the terms of contract and associated landfill documents. He is the project manager for Cleary Bros' activities at the landfill arising under the contract with WRAPC. He deposes that prior to the incident in January 2005, he believed that Cleary Bros had been provided with a leachate storage system that had approximately 600,000 litres of available storage capacity in the five storage tanks. He also believed that the bunded area around the five storage tanks had a capacity of around 627,000 litres, which should have been enough to contain any overflow from the leachate storage tanks if the dam pump was inadvertently left on at least until the beginning of the next day shift when such oversight would have been discovered as part of routine site inspections. He refers to a document entitled "Design of Leachate Dam for Lucas Heights II WMC [Waste Management Centre]", dated September 1996, which was provided to Cleary Bros by WRAPC. The document states, inter alia: EPA's [Environment Protection Authority's] Guidelines recommend that the concrete leachate storage tanks on the site should be surrounded by a bund with a capacity at least 627 m3 (i.e 110% of that of the all five tanks together. Personal communication with Garry Leggette (5 September 1996) has confirmed that this is already in-place at the site. 91 The design document provided by WRAPC to Cleary Bros also recommends that: The leachate storage dam should be equipped with level monitoring devises (ex: calibrated pole, etc) and daily recording of leachate levels in the dam should be observed. A logbook of date, time and leachate level in the dam, should be maintained. 92 Mr Granger visited the landfill on a couple of occasions each week and there was no reason for him, even from a visual inspection of the storage tanks, to doubt the figures provided by WRAPC that the volume of the bunded area was not 110 per cent of the volume of the leachate storage tanks. 93 Mr Granger says that in around 2000 he became aware there was a separate commercial arrangement between WRAPC and JPG to construct a new water treatment plant (WTP). Cleary Bros was not contractually responsible for JPG or its works or its modifications or improvements to the LMS but undertook some earth works to prepare the base pad of the WTP and extended an existing access road at the landfill to provide access to WTP prior to construction of the WTP by JPG. 94 Mr Granger became aware in around 2003 that WRAPC was replacing the tank farm pumps after one of the transfer pumps had burnt out. WRAPC had contracted with JPG to undertake the replacement of the pumps. He maintains that he repeatedly asked WRAPC on behalf of Cleary Bros for technical information and documentation of the works undertaken by JPG on the LMS from 2002 and up to the time of the incident, including flow rates to and from the leachate storage tanks, fuel capacity of the pump, volume of the bund and the leachate storage tanks and impact of float switch installation. He says he requested information to ensure that Cleary Bros' leachate management procedures could be changed if necessary and its staff could be made aware of any new infrastructure and any changed operating requirements. Mr Granger believes that if the information he requested had been provided prior to the incident, he would have been alerted to the risk of overflowing by leaving the dam pump on. 95 Mr Granger says that he participated in a number of contract review meetings. Attached to his affidavit are copies of contract review meetings minutes indicating occasions when he asked Mr Manolas for detailed information on WRAPC's works on the LMS, namely, 17 December 2004, 26 November 2004, 1 November 2004, 24 September 2004, 9 September 2004, 30 July 2004, 5 July 2004, 20 May 2004, 9 March 2004, 28 January 2004 and 9 December 2003. He states that: The understanding I received from discussions with WRAPC at Contract Review Meetings was that the LMS was a hands-off and safe system and there was no real risk of overflowing either the tanks of the bund. At contract Review Meetings [sic] on 9 December 2003, Ross Manolas told me words to the effect " JPG will be upgrading LMS. By the time we're finished it will be an automated system and all your guys will have to do is flick a switch ". I relied with words to the effect of " we need details of the system and what's being changed to make sure we can properly train our staff and to prepare a new work instruction if needed. We need to know the system is safe ". Ross Manolas replied with words to the effect that " I will need to chase up the information and Cleary Bros will get the documentation you need at the formal handover after the upgrade is finished ". 96 Mr Granger also participated in joint risk analyses with WRAPC prior to the incident in January 2005 during which he had a number of discussions with WRAPC representatives. 97 Mr Granger states that Cleary Bros has operated the landfill under the service contract to WRAPC during the period of twenty years and this was the first incident that has been the subject of a criminal prosecution in relation Cleary bros' activities at the landfill. Cleary Bros has been convicted of other environmental offences. On 8 April 1981 it was convicted in Wollongong Local Court of 4 counts of failure to maintain and control equipment and fined $250 for each count. On 16 February 1983 it was convicted of polluting a watercourse connected to Chris Creek at Sussex Inlet and fined $5,000. On 14 August 1998 Cleary Bros was convicted of breach of a licence condition for failure to supply a certificate of compliance at the appropriate time and fined $5,000. On 17 December 1999 it was fined $300 in the local court for having a smoky vehicle. 98 Once Cleary Bros and WRAPC became aware of the incident, they took prompt steps to prevent further discharges and to minimise the impact of the discharge. Once Cleary Bros staff became aware of the incident they notified the WRAPC who notified the prosecutor. Cleary Bros has co-operated with the prosecutor during the investigation of the incident. Cleary Bros has entered a plea to the charge on 28 April 2006. Pursuant to s 248(1) POEO Act, the prosecutor seeks and the defendant agrees to pay the amount of $7,240 in terms of the prosecutor's investigative costs and expenses. Sentencing considerations 99 Any sentencing exercise requires consideration of the purposes of sentencing. These purposes are set out in the Crimes (Sentencing Procedure) Act 1999, s 3A: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. These purposes overlap. Objective gravity of the offence 100 The primary consideration in sentencing is the objective gravity or seriousness of the offence: Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-87, Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474-475. 101 A number of factors under the Crimes (Sentencing Procedure) Act 1999 are to be considered in determining the objective gravity or seriousness of the offence. The primary indicator of the objective gravity or seriousness of the offence is the maximum penalty prescribed by the legislature. Maximum penalty 102 At the time of the offence, the maximum penalty fixed by Parliament for an offence against s 120(1) of the POEO Act committed by a corporation was $250,000. This penalty has increased on 1 May 2006 to $1,000,000. Objective harmfulness of the offence 103 In imposing penalty, the Court is to take into consideration the extent of the harm caused or likely to be caused to the environment by the commission of the offence (s 241(1)(a) of the POEO Act). 104 The principal considerations relating to harm are relevantly set out in the associated case of Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 at 325-326 [145]-[149], per Preston J, which I respectfully adopt. 105 In relation to environmental harm, the prosecutor relies upon the evidence as to volume of leachate leaving the leachate tank bunded area and the evidence of Dr Pablo. The prosecutor submits that the estimated quantity which escaped the bunded area would be in the vicinity of 120,000 litres. In Waste Recycling and Processing Corporation case, Preston J made a finding that the volume of leachate which escaped into the creek was between 116,000 and 124,000 litres. Mr P Donnelly, a consultant in the fields of hydraulics, civil engineering and fire protection, in his affidavit of 27 October 2006 estimated that the volume that would have overflowed to the bunded area at 168,127.6 litres, but it would seem that not all of this volume escaped into the creek. It is an agreed fact, however, that the quantity of leachate which entered the creek was in the order of 100,000 to 115,000 litres (as noted in par [19] above) although the defendant later admitted that the quantity was in the order of 116,000 –124,000 litres (par [109] below). I am thus prepared to accept the prosecutor's estimate of about 120,000 litres. 106 For the reasons set out below, the prosecutor submits that the environmental harm caused by the offence in this case was substantial: (a) landfill leachate is by definition a toxic substance; (b) the leachate entered a relatively pristine environment of Mill Creek in a considerable volume and over a considerable time frame, extending approximately 800 metres down the creek from the point of entry; (c) actual harm to the environment resulted including: - the death of crayfish and other invertebrates; - serious adverse effects on organisms for 2-7 days following the incident; - an increase in biochemical oxygen demand, ammonia concentration and conductivity in the creek; - continuing adverse affects on organisms for 5 weeks after the incident; and, - crayfish had not re-colonised the section of Mill Creek adversely impacted by the overflow by May 2005 and did not do so until some time later in 2005/06. 107 The prosecutor submits that the pollution incident caused both immediate and long-term harm to the environment. The prosecutor pointed to evidence of elevated levels of pollutants and the actual and likely impacts on the environment. Reference is also made to the findings of Preston J in Waste Recycling and Processing Corporation case that the environmental harm caused by the leachate discharge was substantial and an aggravating circumstance of the crime. 108 Cleary Bros accepts that the leachate that entered the waters had the capacity, by its very nature, to change the chemical composition of the waters and to have an environmental consequence. 109 Cleary Bros tendered written admissions as to the extent of harm. The defendant makes the following admissions: 1. Leachate escaped from the land and entered Mill Creek; 2. The quantity of leachate that entered Mill Creek is estimated to be in the order of 116,000 – 124,000 litres. 3. The leachate that entered Mill Creek affected the creek for a maximum distance (from the point of entry) of 800 metres; 4. The impact on Mill Creek was contained by the Defendant's actions undertaken upon the spill being detected; 5. By virtue of the leachate being contained in the creek the impacts on Mill Creek were limited to the maximum distance of 800 metres; 6. The leachate in the Creek caused the death of many (but not all) aquatic organisms including but not limited to crayfish. The impacts of the leachate were variable depending upon the proximity to the point of entry of the leachate into the creek (i.e. the impacts reduced with distance from the point of entry); 7. The water quality impacts in the affected portion of Mill Creek improved generally until the water quality returned to pre-impact quality within five weeks of the leachate entry; 8. As at the date of the sentence hearing, the organisms have recolonised the affected part of the creek and there is no continuing harm; 9. The present condition of the affected part of Mill Creek is the same as its pre-impact condition. 110 Cleary Bros rejects several of the prosecutor's submissions relating to the state of the environment prior to the pollution incident, the continuing adverse impacts of the incident, the length of time that the creek and the crayfish were affected. 111 Cleary Bros submits that the harm should be adjudged as short term (i.e. maximum of five weeks for a limited distance (800 metres maximum)) with the effects contained. Cleary Bros accepts that the harm comprised actual environmental harm and whilst that harm is substantial, it is moderate in the circumstances. It is submitted that the harm can be so characterised largely due to the actions taken by the defendant to contain the pollution. 112 I find that the environmental harm was substantial but short-term, due to the prompt action taken by Mr Venus to contain the spill and to have the effected part of the creek pumped out. I note that in one sampling point the water had recovered to its background quality within five days, and any adverse impact over the 800 metre length of effected creek lasted for five weeks. I accept the fact that thereafter there was no continuing harm. Practical measures to prevent risk of harm 113 The practical measures that may be taken to prevent, control, abate or mitigate the harm caused or likely to be caused to the environment by the commission of the offence is another relevant consideration that must be considered (s 241(1)(b) of the POEO Act). 114 The prosecutor submits that Cleary Bros could have taken obvious steps to prevent the harm occurring in the first place, which include: setting up an environmentally safe system of operation of the leachate dam pump; and complying with the daily checklist system provided for it by WRAPC. 115 The prosecutor made further submissions that Cleary Bros could have taken any of the following particular measures to prevent the storage tanks overflowing and/or to have prevented and mitigated the harm resulting from such an incident: (a) the installation of a timer cut-off switch on the leachate dam pump; (b) reducing the rate at which the leachate dam pump operated; (c) providing for two people to sign off after the leachate dam pump had been activated; (d) installation of a smaller fuel tank so that the pump could not operate for more than four hours – or at least proposing such a measure to WRAPC; (e) testing the integrity of the bund wall after it was reinstated following works that took place on the bund wall in 2000; (f) conducting a survey on the capacity of the bund; (g) issuing work instructions to its employees in relation to the operation of the manual pump; (h) enforcing its work instructions to its employees in relation to the completion of WRAPC's daily checklist; (i) placing only a limited amount of fuel in the fuel tank. 116 Cleary Bros acknowledges that on 9 January 2005 it had no system in place to ensure that the pump had been turned off. It submits that the practical measures to prevent the foreseeable risk of harm fell in the hands of WRAPC. It is said that if WRAPC had ensured that the modifications to the LMS had not compromised its capacity then the risk would have been ameliorated or significantly reduced. 117 Cleary Bros also makes submissions that it is not relevant what "could have" been done (with hindsight) but rather the question is what "should have" been done having regard to the circumstances at the time of the event. Furthermore, in relation to the prosecutor's list of particular measures that Cleary Bros could have taken, it submits that: - Cleary Bros was unable to alter the WRAPC system; - Cleary Bros could have tested the integrity of the bund and surveyed its capacity or limited the fuel in the pump, however there was no reason at the date of the event to reasonably consider this necessary; and - Cleary Bros did issue work instructions to its employees as to the operation of the pump through formal and regular training and work instruction. 118 This head of consideration overlaps to some extent the consideration of control over the causes, which I discuss below. Foreseeability of risk of harm 119 The extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence is another relevant consideration (s 241(1)(c) of the POEO Act). 120 The prosecutor submits that the harm to the environment by an overflowing of the leachate storage tanks should the leachate dam pump not be switched off was clearly foreseeable, despite the fact that Cleary Bros was not supplied with WRAPC's risk analysis. It is submitted that Cleary Bros had responsibilities for operation of the pump and for monitoring of the tanks. 121 The prosecutor points out that Cleary Bros itself assessed the potential risk of leachate causing environmental harm as "high" in its 2004 assessment of Environmental Aspect/Potential Impacts but seemingly thought the risk was due to "inadequate leachate infrastructure", namely the dam. It is submitted that the risk of harm that was found to be foreseeable to WRAPC in Waste Recycling and Processing Corporation case was just as foreseeable to Cleary Bros. The prosecutor submits that the evidence of Mr Venus, regarding his lack of knowledge that the storage tanks would overflow before the incident in January 2005 when they did and his lack of information about how the system worked at the time, does not sit well with the evidence of Mr Evans and Mr Granger. The prosecutor submits that it was plain Cleary Bros' system for operation of the dam pump was premised on the assumption that harm could follow if the dam pump was not turned off overnight. The prosecutor also points to admissions made by Mr Venus that prior to the incident he understood that if the diesel pump was left running it could possibly cause the leachate to overflow the tanks. 122 Cleary Bros acknowledges that it was reasonably foreseeable that leachate entering the waters in any volume may have the capacity to harm the environment. It submits for various reasons that it was not reasonably foreseeable that the risk of that event occurring in the circumstances of this case. Cleary Bros acknowledges that the failure to turn the pump off on 9 January 2005 was a result of human fallibility which was not an unforeseeable occurrence. Cleary Bros says that the LMS that WRAPC had designed was at the time of the incident was insufficient to prevent the pump being left on. 123 Cleary Bros submits that absent its knowledge as to the compromise to the LMS, it could not reasonably be considered to have been able to foresee the harm. 124 I accept the fact that an overflow into the creek from the leachate storage tanks would have given rise to a foreseeable risk of harm. However, I accept Cleary Bros' submission that such an overflow was not foreseeable by Cleary Bros having regard to its understanding the LMS infrastructure put in place by WRAPS, as noted in pars [90] to [95] above. Control over causes 125 A further consideration is the extent to which the person who committed the offence had control over the causes that gave rise to the offence (s 241(1)(d) of the POEO Act). 126 The prosecutor submits that Cleary Bros had control over its employees. The prosecutor points to Cleary Bros' obligations under the contract with WRAPC to illustrate that it had complete control over the operation of the leachate dam pump and there was nothing from preventing Cleary Bros from putting in place environmentally safe work procedures for operation of the pump. 127 In relation to the contribution to the harm caused to the environment made by the LMS infrastructure, the prosecutor makes the following submissions: - Cleary Bros at all times had the capacity to determine precisely at what rate any of the pumps operated; - Cleary Bros did nothing to ascertain the rate at which the new pump installed in August 2002 was operating and likewise it did nothing to ascertain the flow rate of the transfer pumps when they were replaced in 2003; - Cleary Bros must be regarded as culpable for failing to be proactive in obtaining information regarding the rate at which the various pumps were operating; - it was within Cleary Bros' power to reduce the rate of flow from the leachate dam pump if it wanted to; - the function of the tanks was not to store leachate but to provide head to the leachate transfer pump; - if the reduction in the number of storage tanks available to receive leachate being pumped from the dams was, to the knowledge of Cleary Bros, material to the risk of pollution of the creek, then Cleary Bros did nothing to address that risk and had inadequate systems for internal communication for such knowledge; - the Court should reject the evidence given by Mr Granger and Mr Venus which goes to Cleary's Bros' lack of knowledge regarding the raising of the height of the flow lines between the tanks and the installation of float switches; - in relation to the bund - it could not be considered to be appropriate environmental management practice to fail to put in place an environmentally safe system of operation of the leachate dam pump premised upon untested assumptions made about the capacity of a fail safe, and there is no escaping the fact that, had the leachate dam pump not been left operating overnight, the harm to the environment would not have occurred. 128 Cleary Bros submits that it has always maintained that its employee's action in failing to turn off the pump was a direct cause of the pollution incident. It submits that its role, as operator of the LMS was to operate the LMS provided to them under the contract. The respective roles of Cleary Bros and WRAPC were set out in the defendant's submissions: - WRAPC designed the LMS to perform the functions intended by it; - WRAPC provided the infrastructure which comprised the LMS and the LMS was the property of WRAPC; - WRAPC retained the entitlement to alter/modify the LMS and/or make direction in respect of the LMS; - WRAPC was entitled to employ contractors other than Cleary Bros to undertake works on the LMS which contractors were directly responsible to WRAPC; - Cleary Bros was to use the system as provided to ensure that leachate in the leachate storage dam was kept to a low level; - Cleary Bros was to use the system in a manner that was consistent with its design and intention to perform as an environmentally safe system; - Cleary Bros was to perform its functions in a manner that did not compromise that environmentally safe design; - Cleary Bros had no contractual obligation to repair the bund. 129 Cleary Bros submits that the combined effect of the LMS was that the system was designed to be "fail safe" in the event of an overflow of leachate at the storage tanks. Cleary Bros made an assessment of the adequacy of the LMS based upon "known" features of the pumps, tanks and bund. Prior to the commission of the offence, a number of modifications were undertaken to the LMS by WRAPC, including modifications to the bund wall, the pump flow rate, the fifth storage tank, flow lines and float switches. The modifications were at least in part not known to Cleary Bros. Cleary Bros submits that the lack of knowledge rendered it unable to accurately assess the consequence of the changes and determine the additional risks that arose. 130 Cleary Bros submits that the system was, at the time of the incident in January 2005, insufficient to prevent the pump being left on. The direct cause of the offence was either: - But for the modifications to the LMS undertaken by WRAPC, the failure to turn the pump off would not, of itself, have caused leachate to enter the waters. Rather, it was a matter of fact if the system was operating as it had been designed and as Cleary Bros had been advised it had been designed the system would have "fail safe" and contained the leachate which flowed as a consequence of the pump remaining on; or - The quantity of the leachate entering the waters would have been considerably less. 131 In resolving the question of the extent to which Cleary Bros had control over the causes that gave rise to the offence, I have come to the view that, although it was a Cleary Bros' employee who forgot to turn off the pump at the leachate dam, it was WRAPC that was responsible for the provision of the infrastructure and the LMS which was itself defective. 132 Mr Granger was led to believe that the bunded area around the leachate storage tanks was to hold around 627,000 litres; that is, 110 per cent of the combined capacity of the five storage tanks. Instead, the actual capacity was less than half of that. WRAPC had provided a bund which, had it been constructed to its design capacity, would have been sufficient to contain the overflow from the storage tanks. I accept the statement of Mr Granger that there was no reason for him to doubt, from a visual inspection, the figures provided to him by WRAPC as to the capacity of the bund. 133 Moreover, it was a contractor employed by WRAPC, JPG Engineering, which breached the bund with its electrical conduit and which did not properly reinstated the breach. Again, the provision of an effective bund was the responsibility of WRAPC and Cleary Bros cannot be blamed for the failure of the bund at the site of the breach. In other words, if WRAPC had provided the infrastructure that it told Cleary Bros it had provided, then the act of the Cleary Bros' employee in leaving the leachate dam pump on would not have resulted in the escape of leachate into the creek. I refer in particular, to the evidence of Mr Granger at pars [90] to [95]. Complying with orders 134 Whether, in committing the offence, Cleary Bros was complying with orders from an employer or supervising employee is a factor relevant to the imposition of penalty (s 241(1)(e) of the POEO Act). This consideration is not relevant to Cleary Bros. Subjective circumstances of offender 135 The court may take into account favourable and unfavourable factors personal to the offender: Veen v The Queen (No.2) (1988) 164 CLR 465 at 491. Prior criminality 136 Existence or lack of prior criminality is a factor in sentencing: s 21A(2)(d) (where the offender has a record of previous convictions it is an aggravating factor) and s 21A(3)(e) (where the offender does not have any record (or any significant record) of previous convictions it is a mitigating factor) of the Crimes (Sentencing Procedure) Act 1999. 137 The prosecutor referred to the previous convictions of Cleary Bros in relation to environmental offences in Woodward (for and on behalf of the State Pollution Control Commission of New South Wales) v Cleary Bros (Bombo) Pty Limited (1984) 54 LGRA 409 and Environment Protection Authority v Cleary Bros (Bombo) Pty Limited (NSWLEC, 14 August 1998, Bignold J, unreported). 138 The prosecutor acknowledges that the prior convictions of Cleary Bros for failing to maintain control equipment, noted in par [97] above, and polluting waters (Woodward v Cleary Bros, noted in pars [97] to [137] above) are not recent, namely 1981 and 1983 respectively, although the prosecutor submits that that they are offences of the same nature as the offence in the present case. Cleary Bros submits that those prior convictions indicate that it is appropriate to give more weight in sentencing for this offence to considerations such as retribution, deterrence and community protection. 139 Cleary Bros submits that the one comparable offence is the offence of polluting waters in 1983, that its record is to be viewed in light of its length of operation as a business and the nature of its business; and its record is not to be viewed as an aggravating feature. 140 In my view the prior criminality of Cleary Bros, bearing in mind the kind of industry in which it operates, cannot be described as poor. The 1998 offence can, in my view be disregarded since it was a failure to comply with a condition of a licence that it provide a certificate of compliance within 30 days of the end of a nominated period, but Cleary Bros instead provided the certificate too early! Prior good character 141 Where the offender was a person of good character that is a mitigating factor to be taken into account in determining the appropriate sentence (s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999). 142 Cleary Bros submits it is otherwise of good character and that it has consistently demonstrated a concern to ensure that its operations are environmentally responsible. Apart of the matters considered in pars [97] and [137] above, I accept the submission that Cleary Bros is otherwise of good character. Plea of guilty 143 The defendant has pleaded guilty: s 21A(3)(k) and s 22(1) Crimes (Sentencing Procedure) Act 1999. When the offender pleads guilty or indicates an intention to plead guilty, this becomes is a factor which must be taken into account by the Court. The utilitarian value of a plea of guilty merits a discount in the penalty in the range of 10 to 25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 [160], the amount of discount depending to a large extent on the timing of the plea. 144 In this case, the prosecutor submits that Cleary Bros did not plead guilty at the earliest opportunity. A guilty plea was entered on 28 April 2006, which was on the third occasion that the charge had been mentioned and after the prosecutor had served all the evidence upon which it intended to rely as to liability. 145 Cleary Bros submits that it pleaded guilty at the earliest possible occasion upon which it was required to enter a plea and therefore it should be entitled to the full utilitarian value of its early pleas assessed as a 25 per cent discount. 146 A defendant is not required to enter a plea until after the prosecutor has served all the evidence upon which it is intended to rely. In the present case Cleary Bros entered a guilty plea on the third mention before the list judge and as soon as the prosecutor's evidence was filed. I regard this as an early plea and thus Cleary Bros should have the full benefit of the utilitarian value of the plea. Contrition and remorse 147 Evidence of remorse for the offence by making reparation for any injury, loss or damage or in any other manner is a mitigating factor to be taken into account when fixing penalties: s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. 148 The prosecutor acknowledges that under the direction of WRAPC, Cleary Bros provided equipment and labour to prevent further pollution, repair the bund wall, dam Mill Creek and pump the leachate in the creek back out. On 10 January 2005 Cleary Bros immediately reported the event to WRAPC which promptly reported it to the prosecutor. The prosecutor notes that Cleary Bros has not obstructed attempts by WRAPC to ensure the offence does not recur. 149 The prosecutor submits that on 19 September 2005, Cleary Bros had still not responded to a work instruction proposed by WRAPC in March 2005 and it was still following the procedures it followed prior to the incident in January 2005. The prosecutor also raises issues about the lack of additional staff training since the incident. The prosecutor submits that the above matters indicate that while Cleary Bros might have been remorseful about the offence, it: - demonstrated no insight as to its offending; - was not remorseful in that it: did not promptly conduct any sort of organisation-wide review of either the incident itself or of relevant work systems; did not immediately address its deficient work systems in relation to pumping to the leachate storage tanks; did not immediately re-train Mr Evans; did not give anxious consideration to a proposal from WRAPC as to how it might avoid such an offence in the future. 150 Furthermore, the prosecutor submits that Cleary Bros' case is that it made something approaching but not quite amounting to an honest and reasonable mistake of fact. The prosecutor submits that Cleary Bros does not recognise any failing on its own part or any failing in its environmental management and quality management systems. In relation to Mr Granger's second affidavit deposing as to the defendant's contrition, the prosecutor suggests that it was prepared very much as an afterthought. 151 The prosecutor submits that Cleary Bros' concentration of its energies on pointing the finger of blame at others whilst overlooking its own responsibility for its offence means that it is difficult to describe its contrition or remorse as either genuine or, if genuine, properly directed to entitle it to be taken into account as a mitigating factor. The prosecutor goes further to submit that Cleary Bros' lack of insight into its responsibility for its offence means that there is a greater than usual need for specific deterrence. 152 Cleary Bros submits that through its actions and words it has demonstrated genuine directed contrition and remorse. The defendant points to the fact that: - it entered a plea of guilty to the offence and has at no time disputed its responsibility in the commission of the offence; - it acted with speed and efficiency to rectify the harm caused or likely to continue to be caused by the commission of the offence; - it immediately and voluntarily reported the commission of the offence and environmental harm; - it immediately took steps to identify the system deficiencies which permitted the leachate to enter the creek; - it has taken action to address the causes of the offence; - the corporate executive of Cleary Bros has appeared in court and has given personal evidence outlining its genuine regret; and - it has agreed to facts and made admissions as to the role of its employees in the events which led to the pollution incident. 153 In my opinion, a defendant can show both contrition and remorse and at the same time point out the culpability of others in the commission of an offence. It is not unlike a motorist saying "yes, I failed to stop but the brakes failed because they were not serviced properly". I can thus accept the defendant's expression of contrition and remorse and have no reason to doubt its sincerity. Assistance to authorities 154 Where the offender has provided assistance to law enforcement authorities the Court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence: s 21A(3)(m) and s 23(1) of the Crimes (Sentencing Procedure) Act 1999. 155 In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the Court must consider the significance and usefulness of the offender's assistance to the authorities concerned; the truthfulness, completeness and reliability of any information or evidence provided by an offender; the nature and extent of the offender's assistance or promised assistance; the timeliness of the assistance or undertaking to assist; and, whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence: s 23(2)(b), (c), (d), (e) and (i) of the Crimes (Sentencing Procedure) Act 1999. 156 It is an agreed fact that Cleary Bros has provided assistance to the authorities in this case. It has cooperated with the prosecutor. Immediately upon becoming aware of the pollution of the waters Cleary Bros notified WRAPC, who in turn notified the prosecutor, and it undertook actions at its own expense to contain the impact of the pollution. Cleary Bros also participated in the preparation of an agreed statement of facts. Reviewing the appropriate sentence 157 The principle of even-handedness requires the court to have regard to the pattern of sentences currently being imposed in like case: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) NSWLR 683 at 701-702. 158 The Court has been referred to relevant authorities including: Environment Protection Authority v Bellingen Shire Council [2003] NSWLEC 42; Environment Protection Authority v Byron Shire Council [2001] NSWLEC 54; Environment Protection Authority v Lake Macquarie City Council [1999] NSWLEC 4; Environment Protection Authority v Bega Valley Shire Council, NSWLEC, Sheahan J, 14 August 1998, unreported; State Pollution Control Commission v Tiger Nominees Pty Limited (1991) 72 LGRA 337; and State Pollution Control Commission v Hunt (1990) 72 LGRA 316. 159 The difficulty in considering the pattern of sentencing in other cases is that the mitigating factors vary noticeably in each case. The mitigating factors in the present case are considerable and distinguish it from that against the defendant's co-offender in Waste Recycling and Procession Corporation case. As the Court of Criminal Appeal observed in Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312, even discriminating reference to other cases is of little utility and should be discouraged because the facts in cases such as the present will almost always be peculiar to the individual case. The appropriate penalty 160 On fixing the appropriate penalty I note, in particular, that actual environmental harm was caused, but due to the prompt actions of Cleary Bros the harm was contained to some 800 metres of the length of the creek; that the principal concern was the high concentration of ammonia which was sufficient to cause the death of most invertebrates, including crayfish, but the concentration of ammonia had dropped back to background levels within five days at one sampling point; that the creek returned to its pre-impact quality within five weeks; that at the date of the hearing the aquatic organisms had recolonised the affected part of the creek and there is no continuing environmental harm. 161 The mitigating factors to which I have regard are; the fact that WRAPC was responsible for the provision of the infrastructure; the infrastructure included the bund at the leachate tanks; the capacity of the bund was less than half its design capacity of 649,000 litres; Cleary Bros' technical manager, Mr Granger, believed that the bunded area had a capacity of around 627,000 litres; the quantity of leachate which escaped into the creek was about 120,000 litres, if the bund had been constructed to hold 627,000 litres the overflow would have been contained within it; a contractor to WRAPC, namely JPG, removed part of the bund wall in order to install electrical conduits and did not properly restore it, again unknown to Cleary Bros - that is, if the bund had not been weakened at the point of the breach and if the bund had been constructed to its design capacity, the system was unlikely to have failed and, even though the pump at the leachate dam had not been turned off, it is unlikely that the spill would have occurred. The construction of the bund and the failure to properly repair it following the work of JPG were, it seems to me, the responsibility of WRAPC. Even though the employee of Clearly Bros failed to turn the pump off, I accept the fact that Mr Granger of Cleary Bros believed that the infrastructure comprising the whole of the LMS and, in particular, the bunded area would have contained any spill. That is, the spill would have been contained if the bund had been constructed to its design capacity and had not otherwise failed. 162 I also note, however, the evidence of Mr Donnelly that the total volume of leachate which overflowed was 168,127.6 litres. Even accepting this estimate, the design capacity of the bund would have contained the spill. Cleary Bros was given to understand that there was a "fail safe" system in place, WRAPC was wholly responsible for the provision of the infrastructure, and Cleary Bros was under no obligation to supervise or check the works of other contractors to WRAPC such as JPG. 163 I take into consideration the fact that this incident has already proved costly to Cleary Bros. Cleary Bros has incurred clean up costs of $82,292.40. It has agreed to pay the prosecutor's investigation costs of $7,240 and the prosecutor legal costs of $104,000. The total costs thus incurred are $193,532.47. Clearly Bros must also pay its own legal costs, as well as the penalty. 164 Moreover, WRAPC has withheld payments due to Clearly Bros under the contract amounting to $423,428.97 to cover its own costs and expenses arising from the incident, including the fine which it was ordered to pay ($75,000) and the prosecutor's costs which it also was ordered to pay ($39,000) in the associated prosecution of Waste Recycling and Processing Corporation case. 165 It remains to be seen whether Cleary Bros is able to successfully dispute the entitlement of WRAPC to withhold this sum – see par [20] above. Nevertheless, the incident has cost Cleary Bros a total of $616,960 to date, which does not include the fine and the prosecutor's costs which is now to be ordered nor its own costs of these proceedings. 166 The special mitigating circumstances in this case mean that the penalty which is now to be imposed is somewhat lighter than would be called for in a pollution incident of this kind. The appropriate penalty in my view is, in all the circumstances a fine of $25,000 which I discount by 35 per cent to $16,000, to encompass the early plea of guilty, assistance to the prosecutor and the prompt steps taken in limiting and cleaning up the spill. Publication order 167 The prosecutor seeks a publication order, which is opposed by Cleary Bros. 168 In Waste Recycling and Processing Corporation case, Preston J ordered, pursuant to s 250(1)(a) of the POEO Act that the defendant in that case cause an advertisement to be placed in the Sydney Morning Herald and also within its annual report applying to the year 2005-2006. In that matter the terms of the publication order were agreed to between the parties and I set them out below (emphasis added). PUBLICATION ORDER Under Part 8.3 of the Protection of the Environment Operations Act 1997 247CONVICTION FOR WATER POLLUTION OFFENCE [WSN logo] On 10 July 2006, the Waste Recycling and Processing Corporation (WRAPC), trading as WSN Environmental Solutions, was convicted by the Land and Environment Court for an offence of water pollution. WRAPC had pleaded guilty to the offence. WRAPC owns a landfill located at New Illawarra Road, Lucas Heights. The landfill generated leachate that was transferred using a manually operated pump from a leachate dam to leachate storage tanks. WRAPC sub-contracted the day-to-day operation of the landfill to Cleary Bros (Bombo) Pty Ltd ACN 000 157 808 ( Cleary Bros ). On 9 January 2005, an employee of Cleary Bros accidentally left the pump on overnight. The practice at the time was to run the pump for approximately 4 hours only. At some time between 9 and 10 January 2005, the storage tanks overflowed into a bund and the bund was either overtopped or failed, releasing leachate into nearby Mill Creek. As a result: 1.approximately 116 -124 kilolitres of leachate escaped into Mill Creek; 2.there was an impact on 800 metres of Mill Creek downstream of the discharge point for up to five weeks; and 3.macro-invertebrates, including crayfish, were killed by the discharge. WRAPC and Cleary Bros took prompt and effective action to contain and clean up the spill. WRAPC immediately notified the Environment Protection Authority of the incident and liaised closely with it in relation to the clean up operation. The assessable environmental harm to Mill Creek extended over a 5 week period. By May 2005 the impacted section of Mill Creek had recovered sufficiently to support a diverse range of aquatic macro-invertebrates. The escape resulted from a Cleary Bros ' employee leaving the pump on overnight and because: 1.WRAPC's hazardous operations risk assessment identifying the risk of leaving the pump on, the outcome of overflowing of leachate and the recommended action of installing a cut off timer switch on the pump, was not provided to Cleary Bros and was not implemented by WRAPC or Cleary Bros ; and 2.there was no mechanical or electrical devices to limit the operation of the pump in the event that it was left on. WRAPC was fined $75,000, ordered to place this notification at its expense and to pay the EPA's investigative costs of $7,240 and its legal costs of $39,500. (DEC logo) The Environment Protection Authority is now part of the Department of Environment and Conservation 169 I find the making of a publication order in this case to be inappropriate as the publication order, as set out above and published on 13 July 2006, clearly asserts Cleary Bros' culpability for the offence. I agree that a further publication order may give rise to a perception that Cleary Bros has been convicted twice for the same offence. I decline to make a publication order in this case. Payment of costs and expenses 170 As noted in par [163] above, the prosecutor and defendant have agreed that the defendant should pay both the prosecutor's legal costs, agreed at $104,000, and the prosecutor's investigative costs and expenses, pursuant to s 248(1) of the POEO Act, agreed at $7,240. Concluding observations 171 The principle of even-handedness – or parity in sentencing – applies when imposing a penalty, having regard the general pattern of sentencing in like cases: Camilleri's Stock Feeds at 701-702. 172 The need for parity in sentencing has led the Court of Criminal Appeal to publish guideline judgments for particular offences, as allowed by s 37A of the Crimes (Sentencing Procedure) Act 1999 – see, for example, R v Thomson (2000) 49 NSWLR 383, R v Whyte (2002) 55 NSWLR 252. But even in cases affected by guideline judgments, it is accepted that such guidelines are intended to be indicative only; they are not intended to be applied to every case as if they were rules binding on sentencing judges: R v Whyte at 264 [72] per Spigelman CJ. In Whyte, Spigelman CJ noted at 266 [90] the observations of Callinan J in Wong v The Queen (2001) 207 CLR 584 at 644 [168] that such guidelines under the statutory legislative regimes "are guidelines only, that is, at most, merely indicative starting points, not to be rigidly or mechanistically applied, and that the trial judge still have a real, judicial sentencing discretion to exercise of the kind discussed by this Court in House v The King [(1936) 55 CLR 499]". 173 Spigelman CJ also noted at 266 [92] the statement of Winneke P in R v Ngui and Tiong (2000) 1 VR 579 at 583 [12] that "the exercise of the judge's discretion, within established principles, to fix a just sentence according to the individual circumstances of the case before him or her is fundamental to out system of criminal justice." 174 Finally, I note the further reference by Spigelman CJ in R v Whyte at 276 [150] to the joint judgment of Gaudron, Gummow and Hayne JJ in R v Wong, which their Honours said at 613 [78] that the application of numerical guidelines "cannot avoid outcomes which fail to reflect the circumstances of the offence and the offender (with absurd and unforeseen results) … whose offending behaviour is every bit as diverse as is their personal history and circumstances." 175 In the associated case of Waste Recycling and Processing Corporation, Preston J imposed a penalty of $75,000, ordered the defendant to pay the prosecutor's costs of $39,000 and the prosecutor's investigative costs and expenses of $7,240, and ordered the defendant to comply with a publication order. This may be contrasted with the present case involving precisely the same offence with precisely the same environmental impact, in which I impose a penalty of $16,000, an order that the defendant pay the prosecutor's costs of $104,000 and the prosecutor's investigative costs and expenses of $7,240, and in which I decline to make a publication order. This may at first sight be seen to be somewhat surprising, but it demonstrates that for precisely the same offence there can be vastly different degrees of culpability and vastly different mitigating circumstances. It also demonstrates the truth of the observations made in the Court of Criminal Appeal in Cabonne Shire Council v Environment Protection Authority at [35] that "because the penalty will turn on the facts of the individual case comparison with other decisions will be of limited utility"; and the further observations, as noted in par [159] above, that "indiscriminate reference to other cases is of little utility and should be discouraged. Even discriminating reference is likely to be of no utility because the facts in cases such as the present will almost always be peculiar to the individual case." Final orders 176 The final orders of the Court are: 1. The defendant is convicted of the offence charged. 2. The defendant is fined $16,000. 3. The defendant is to pay the prosecutor's legal costs of the proceedings, agreed at $104,000. 4. The defendant, pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 is to pay the prosecutor's investigative costs and expenses, agreed at $7,240. 5. The exhibits may be returned. I hereby certify that the preceding 176 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 1 August 2007 ********** 01/08/2007 - Deletion of words "and, in the case of a continuing offence." - Paragraph(s) Par [102] 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.