Environment Protection Authority v Orica Australia Pty Ltd (the Ammonium Nitrate Solution Spill Incident) [2014] NSWLEC 109

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Orica Australia Pty Ltd (the Ammonium Nitrate Solution Spill Incident) [2014] NSWLEC 109 Hearing dates: 5, 6, 10 and 12 December 2012 and 20 May 2013 Decision date: 28 July 2014 Jurisdiction: Class 5 Before: Pepper J Decision: See orders at [131]. Catchwords: ENVIRONMENTAL OFFENCES: breach of licence condition - failure to carry out licenced activities in a competent manner - guilty plea - sentencing principles - whether De Simoni principle applicable - whether totality principle applicable - determination of appropriate penalty. Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22, 23

Protection of the Environment Operations Act 1997, ss 3, 64, 241, 250(1) Cases Cited: Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103

Environment Protection Authority v Orica Australia Pty Ltd (the Jackhammer Incident) [2014] NSWLEC 105

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Orica Australia Pty Ltd (Defendant) Representation: Mr S Rushton SC and Mr D A Hughes (Prosecutor) Mr T A Game SC, Mr D Jordan SC and Ms K Edwards (Defendant) Office of Environment and Heritage (Prosecutor) Ashurst Lawyers (Defendant) File Number(s): 51164 of 2012

Judgment

Orica Pleads Guilty to a Breach of Licence Offence Resulting in the Overflow of Ammonium Nitrate Solution 1The defendant, Orica Australia Pty Ltd ("Orica"), pleaded guilty to nine charges under the Protection of the Environment Operations Act 1997 ("the POEOA") which were dealt with in seven concurrent sentence proceedings, relating to seven separate pollution incidents occurring between October 2010 and December 2011. Although the proceedings were heard concurrently, it is appropriate that seven separate judgments are produced, that is, one for each discrete incident. 2The principal sentencing judgment with respect to these seven proceedings summarises all of the charges, outlines in greater detail the conduct of the proceedings, and sets out in full the relevant sentencing principles applicable in this, and the remaining five judgments (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103, "the principal judgment"). Those principles are applied, where relevant, in this judgment, but are expressed only in summary form. It is therefore necessary to read this judgment together with the principal judgment. 3This judgment concerns the appropriate sentence for an offence that occurred on 7 December 2011 involving the overflow beyond containment systems of a weak ammonium nitrate solution ("WANS") at Orica's Kooragang Island Licensed Premises ("the KI premises") ("the Ammonium Nitrate Solution Spill Incident"). As a result of the offence, about 17.4m3 of WANS overflowed beyond the bunds around the Weak Ammonia Nitrate Solution Mixing Tank ("the WANS Mixing Tank") and soaked into the ground surrounding the Weak Ammonia Nitrate Solution Filtration Plant ("the WANS Filtration Plant"). 4This Incident resulted in one breach of licence condition offence under Orica's Environment Protection Licence Number 828 ("Licence 828") contrary to s 64(1) of the POEOA, by failing to carry out licensed activities in a competent manner. 5The failure to comply with a licence condition in contravention of s 64(1) of the POEOA is an offence of strict liability. 6Section 64(1) states: (1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence. Maximum penalty: (a) in the case of a corporation-$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues... 7By pleading guilty to the offence, Orica concedes that it failed to comply with licence condition O1.1 in that it failed to carry out licensed activities in a competent manner.