Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v CPB Contractors Pty Limited [2019] NSWLEC 134 Hearing dates: 24 September 2019 Date of orders: 25 September 2019 Decision date: 25 September 2019 Jurisdiction: Class 5 Before: Pain J Decision: See [91] of judgment Catchwords: SENTENCING – pleas of guilty to four charges of emission of offensive odour from WestConnex construction site at St Peters – odour from exposure of leachate as result of road project requirements following heavy rain – offensive odours lasting several hours throughout neighbouring residential areas – mitigating factors considered Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22 Criminal Procedure Act 1986s 257B Environmental Trust Act 1998 Protection of the Environment Operations Act 1997 ss 129, 132, 241, 244, 248, 250, Dictionary Protection of the Environment Operations Amendment Act 2005 Cases Cited: Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive of the Office of Environment and Heritage v Turnbull [2017] NSWLEC 141 Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466 Environment Protection Authority v Hunter Valley Energy Coal [2015] NSWLEC 120 Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131 Environment Protection Authority v Wambo Coal Pty Ltd [2016] NSWLEC 125 Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pearce v The Queen (1988) 194 CLR 610; [1988] HCA 57 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) CPB Contractors Pty Limited (Defendant) Representation: COUNSEL: E Muston SC and E Ball (Prosecutor) Craddock SC (Defendant) SOLICITORS: Environment Protection Authority (Prosecutor) K & L Gates (Defendant) File Number(s): 18/129664-667 Judgment 1. On 5 October 2018, the Defendant CPB Contractors Pty Ltd pleaded guilty to four offences against s 129(1) of the Protection of the Environment Operations Act 1997 (POEO Act). 2. The Defendant is (and at all relevant times was) the holder of Environment Protection Licence (EPL) 4627. The Licence permitted the Defendant to undertake road construction at the new M5 St Peters Interchange (part of the WestConnex motorway scheme) at St Peters in Sydney (the Premises). The Premises occupies an area which was formerly used for waste landfill. The offences occurred when the Defendant caused an offensive odour to be emitted from the Premises, which odour was associated with leachate resulting from water coming into contact with waste pre-existing at the Premises. The offences are strict liability offences and mens rea is not part of the elements of the offence. A plea of guilty means that a defendant accepts the essential elements of an offence. 3. When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281. Any contested matter relied on by a defendant must be established on the balance of probabilities: R v Olbrich at 281. As will be clear below there are no factual matters in dispute between the parties. 4. The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-73 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-91 (Deane J). The sentence should not exceed what is "justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances": Veen (No 2) at 472, 485-86, 490-91, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ). Protection of the Environment Operations Act 1997 1. The Dictionary to the POEO Act defines "harm to the environment" as: any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution. 1. The POEO Act defines "pollution" to include "air pollution", which is defined as: the emission into the air of any air impurity. 1. The Dictionary to the POEO Act relevantly defines "offensive odour" as: an odour: (a) that, by reason of its strength, nature, duration, character or quality, or the time at which it is emitted, or any other circumstances: (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, … 1. Section 129(1) provides: Part 5.4 Air pollution Division 1 General … 129 Emission of odours from premises licensed for scheduled activities (1) The occupier of any premises at which scheduled activities are carried on under the authority conferred by a licence must not cause or permit the emission of any offensive odour from the premises to which the licence applies. … (3) A person who contravenes this section is guilty of an offence. 1. Particulars of the offences are set out in the "Statement of Agreed Facts on Sentence" dated 20 August 2019 (SOAF). The parties have now also agreed on propositions derived from expert evidence exchanged between them (agreed expert propositions). Crimes (Sentencing Procedure) Act 1999 1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) provides: Part 1 Preliminary … 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (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. … 1. Under s 21A(1) of the CSP Act, aggravating factors in subs (2) and mitigating factors in subs (3) and any other objective or subjective factors that affect the relative seriousness of the offence are to be taken into account. Mitigating factors in subs (3) are considered below. Statement of agreed facts (SOAF) 1. The parties agreed a lengthy SOAF as follows: THE CHARGES 1 CPB Contractors Pty Ltd (ACN: 000 893 667) (CPB) is charged with four offences under section 129(1) of the Protection of the Environment Operations Act 1997 (POEO Act), with each offence arising on a separate date as follows: Table One: Summary of charges Charge Number LEC Proceedings Number Date of offence 1 18/129666 From about 12pm to about 8pm on 27 April 2017 2 18/129664 From about 10.57am to about 4.20pm on 23 May 2017 3 18/129665 From about 9.30am to about 7.00pm on 26 May 2017 4 18/129667 From about 8.45am to about 4.00pm on 9 June 2017 2 The maximum penalty for a contravention of section 129(1) for a corporation is $1,000,000 and $120,000 for each day an offence continues. SUMMARY OF THE OFFENCES 3 CPB was the holder of an environment protection licence in relation to premises at St Peters and the occupier of those premises. On four occasions, CPB caused an offensive odour to be emitted from the premises. The odour was associated with leachate, resulting from water coming into contact with waste pre-existing at the premises. The odour emitted caused actual harm to EPA officers, to persons at nearby businesses and to residents in the vicinity of the premises and the potential for harm. The odour harm arising was foreseeable to CPB and preventable. It was foreseeable that there would be leachate on the site that would likely give rise to odours by reason of the nature of the site. Failure to control leachate adequately resulted in the escape of odour which caused harm as defined in the POEO Act. THE DEFENDANT 4 CPB is an Australian company, formerly known as Leighton Contractors Pty Ltd. CPB often operates by entering joint ventures and/or subcontracting works to other entities. Attachment A is a copy of the company certificate for CPB. THE LICENCE 5 CPB is the holder of Environment Protection Licence 4627 (the Licence) and has held the Licence since 20 June 2016. Copies of the Licence and Notices of Licence Variations are at Attachment B. The copies attached and the offence that they are relevant to are listed in the table below: Table Two: Version of the Licence Charge Number Version of Licence Period in force 1 Notice of Licence Variation No. 1551203 13 April 2017 to 17 May 2017 2 Notice of Licence Variation No. 1552047 17 May 2017 to 26 May 2017 3 Notice of Licence Variation No. 1552047; and Notice of Licence Variation No. 1552538 17 May 2017 to 26 May 2017; 26 May 2017 to 14 June 2017 4 Notice of Licence Variation No. 1552538 26 May 2017 to 14 June 2017 6 At all relevant times the Licence permitted the scheduled activities of road construction at the new M5 St Peters Interchange as part of the WestConnex motorway scheme, at St Peters in Sydney (the Premises). CPB was the occupier of the Premises. 7 At all material times the Licence contained the following relevant conditions: • Condition 01.1, requiring activities be carried out in a competent manner. • Condition 02.1, requiring that plant and equipment be maintained in a proper and efficient manner. • Condition 06.2, to the effect that a "Waste Covering Management Plan" must be implemented in areas where waste is uncovered or exhumed, but that other conditions of the licence "overwrite" the plan where there is inconsistency. Prior to transfer of the Licence to CPB in 2016, the Licence included a condition requiring that all waste be covered by 150mm of gravel in order to manage litter, leachate and odour issues. The condition was considered by CDJSV to be potentially not commercially viable. In 2016, negotiations with the EPA resulted in removal of the condition in favour of a targeted approach. Under this approach, CPB drafted a waste covering management plan which was incorporated as a condition of the Licence (the WCMP) to target only those areas actually generating litter and odour. • Condition 06.7 requiring all reasonable and feasible measures to prevent leachate from pooling on the premises, and from 26 May 2017 requiring any pooled leachate to be covered or removed from the surface of the earthworks as soon as practicable. • Conditions 06.8, 06.13 and 06.14 regarding management of leachate on the Premises (noting that these conditions changed over time). • Conditions 06.10 and 06.11, requiring the progressive covering of the landfill and a floor liner and leachate collection system to be installed below the waste mound. • Condition L5.1, to the effect that no condition of the licence identifies a potentially offensive odour for the purposes of section 129 of the POEO Act. Licence Amendments 8 In summary, the newly imposed conditions on the Licence progressively required CPB to prevent leachate from pooling on the Premises, and to remove or cover it where it had pooled. The licence variations took effect: on 13 April 2017, requiring CPB to take reasonable and feasible measures to prevent leachate from pooling on the Premises; on 17 May 2017, requiring CPB to engage a suitably qualified and experienced consultant to identify any feasible and reasonable odour mitigation strategies not currently implemented on the Premises and to submit the study to the EPA by 16 June 2017 and then implement suggested strategies in consultation with the EPA; and on 26 May 2017, requiring pooled leachate to be covered or removed from the surface. THE PREMISES 9 Attachment C are two maps and one aerial image showing the Premises and the surrounding area. The Premises contains the former Alexandria landfill. The following features are visible on the maps: • The Premises (outlined in red). • Premises weather station ("W"). • IBIS hotel ("I"). • Fitness Empire, being a commercial gymnasium operation ("FE"). • St Peter's School ("SA"). • Sydney Park ("SP"). • The Alexandria Canal, to the south of the image. • The location of affected residences (A/RC, being Sarah Aubrey and Rebecca Campbell; CR, being Carol Anne Russell; TR being Tamara Regan; KH, being Kate Hafey, located to the south west of the area shown on Attachment C). • Location of roads. The History of the Premises 10 The WestConnex Delivery Authority (WDA) was constituted on 1 November 2013 as a public subsidiary corporation of Roads and Maritime Services (RMS) under the Transport Administration Act 1988. 11 It was established to enable the WDA to exercise certain functions of the RMS in relation to the delivery of the WestConnex package of works. 12 The WestConnex project is being delivered in 3 stages over 10 years: (a) Stage 1 comprises the widening of the M4 Motorway to four lanes and the extension of the M4 East by building two new tunnels, (b) Stage 2 comprises increasing the capacity of the MS corridor by building two new tunnels between Kingsgrove and St Peters, and (c) Stage 3 is to join the M4 and MS between Haberfield and St Peters with two tunnels and includes connections at Rozelle to Victoria Road, the Anzac Bridge, and to the proposed Western Harbour Tunnel. 13 The MS project includes the construction and operation of the WestConnex New MS project which comprises a new tolled, multi-lane road link between the MS East Motorway east of King Georges Road and St Peters. 14 The project also includes an interchange at St Peters (the SPI) and connection to the existing road network. 15 The design for the SPI includes roads, tunnel portals, overpasses and associated infrastructure. 16 The remainder of the site is planned to be redeveloped as public open space comprising a mixture of parkland and pathways. 17 The WDA compulsorily acquired the land at 10-16 Albert Street, St Peters (which will form the SPI) (the Site) on 19 December 2014. 18 The WDA was dissolved on 1 October 2015 pursuant to the Transport Administration (General) Amendment (WestConnex Delivery Authority) Regulation 2015 and ownership of the premises was transferred to the RMS. 19 Historically, the site had the following uses over the following periods: (a) Prior to 1908: Land use unknown, but likely agricultural land use. (b) 1908 to 1962: Brick works quarry operated by Austral. (c) 1962 to 1988: Abandoned brick works quarry and potential small scale non­licensed landfilling activities. (d) 1988 to 2002: Inert solid waste landfill operated by City of Sydney Council. (e) 2002 to December 2014: Non-putrescible landfill and waste recycling and storage operated by Dial A Dump Industries Pty Ltd; (f) December 2014 to June 2016: non-operational landfill and waste and recycling storage facility occupied and managed by WDA and the Sydney Motorway Corporation (SMC) on behalf of the RMS. 20 Approximately 350,000 bank cubic metres of landfill waste was to be excavated during construction and used to make the final landform. 21 In November 2015 an unincorporated joint venture including CPB was engaged by WCX MS AT Pty Ltd as trustee for the WCX MS Asset Trust to design and construct aspects of the WestConnex project that included the SPI. 22 The RMS' Environment Protection Licence pertaining to the SPI site was transferred to CPB effective 20 June 2016. 23 The Licence permitted CPB to undertake road construction activities at that site. Leachate System 24 The construction of the road interchange required the excavation and landforming of the existing landfill materials, including waste, to accommodate the interchange and tunnel design. 25 In its "Technical Reporl: St Peters Interchange - Landfill Closure Management Plan (LCMP)" dated 11 April 2016, Golder & Associates identified that the leachate system comprised a subsurface herringbone drainage network which drained to the main leachate riser located at the south-western portion of the site. 26 Leachate is pumped automatically from the main leachate sump to the Leachate Treatment Plant (LTP) located at the northern boundary of the landfill. 27 An intermediate leachate riser is located north east of the main leachate riser. Leachate from both locations is pumped into the main leachate sump. 28 As at April 2016, the leachate management system comprised: a. a shallow leachate collection system incorporated in the capping system; b. a deep leachate collection system (including a main riser and leachate sump); c. an intermediate riser; d. a leachate collection system at the base of the waste mound; e. a system to store and transfer collected leachate to the LTP; f. a LTP; and g. a major stormwater and leachate pump station structure. 29 As at April 2016, the LTP comprised a sequential biological reactor (SBR) system. The primary function of the treatment system is to remove ammonia from incoming leachate. It took approximately 24 hours for the removal of ammonia from each batch of leachate. 30 The treated leachate is discharged to sewer under a Trade Waste Agreement (TWA) with Sydney Water Corporation (SWC). The TWA does not permit the discharge of trade waste water into sewer where concentrations of ammonia, suspended solids, total dissolved solids, barium and iron exceed specified concentrations. The maximum permissible discharge of treated trade waste water was 1000 kilolitres and the permitted average is 500 kilolitres. 31 Inflow of groundwater from the Botany Sands aquifer into the landfill was, as was reported in 2015, contributing to the large volumes of leachate being generated. The Project 32 At all relevant times, at the Premises, works were being carried out to construct the St Peters Interchange component of the WestConnex motorway scheme. The works (the Project Works) required to be completed included: (1) cut and filling 350,000 cubic metres of general solid waste; (2) creation of a raised and revegetated engineered waste mound located in the south-western corner of the site (T2); and (3) installation and operation of a new leachate treatment collection and groundwater management system. 33 The Project Works were approved under the Environmental Planning and Assessment Act 1979 as state significant infrastructure development. Entities Involved in the Project Works 34 CPB formed an unincorporated joint venture with Dragados Australia Pty Ltd (ACN 151 632 665) and Samsung C&T Corporation (ACN 160 079 470) (the CDSJV). 35 The Roads and Maritime Services is the owner of the former Alexandria landfill which is located at the Premises. 36 WCX MS AT Pty Ltd is the Asset Trustee as Trustee of the WCX MS Asset Trust (ABN 23 365 031 283) (Asset Trustee). WCX MS Pt Pty Ltd is the Trustee of the MS Project Trust (the Project Trustee). 37 The RMS, the Asset Trustee and the Project Trustee entered into a project deed named the "Westconnex MS Project Deed" executed November 2015 (the Project Deed) 38. The Asset Trustee and CDJSV entered into a related deed (the D&C Deed), being a design and construct deed dated November 2015 for the completion of the Project Works. 39 The CDSJV subcontracted to CM Jewell and Associates to provide Site Auditor Services (CMJ). The CDSJV also contracted with Golder Associates Pty Ltd (ACN 006 107 857) (Golder) to supply Geotechnical Design and Geotechnical Site Investigation Services as well as with other entities. The Contract to the Work Pack 40 The CDSJV also entered into a deed (the CDSJV-EPS Deed) for services with Enviropacific Services Pty Ltd (ACN 111 372 064) (EPS) on 13 October 2016 (the Contract). A copy of the Contract is Attachment D. 41 Under the Contract EPS was required to carry out the Project Works. Also under the Contract, CPB could require EPS: • to attend meetings • to intervene in the works to remedy any failure to perform an obligation under the CDSJV-EPS Deed where urgent action was necessary to minimise risk of harm to the health and safety of persons and the environment; • direct EPS to change its method of working if it posed as risk of injury to people; and • exercise rights of access to the areas on which EPS was working. Scope of Works 42 EPS was contracted to establish all necessary controls in order to complete the remediation work in a safe and environmentally acceptable manner. This included: (1) Supply, use, fuelling and maintenance of all earthworks equipment (excavators, dozers, trucks, compactors). (2) Removal and disposal (but not processing or remediation) of hazardous wastes that cannot be re-used on site. This includes the obtaining of the relevant disposal permits, material tracking and reporting requirements as required by NSW EPA and other legislation. (3) Importation of all proprietary products and materials required to complete the capping works such as pipelines, pits, geotextiles and fill materials as required by the design drawings. (4) Importation of clay and drainage aggregates (as noted on the drawings) to be used in the capping layers or gas collection trenches. (5) Installation of drainage lines, capping layers and gas collection pipework as noted on the design drawings. (6) Construction and maintenance of haul roads for the Contractor operations. (7) Decontamination and demobilisation of all plant, materials and equipment offsite when no longer required by the project. 43 EPS was also contractually required to cut to fill in the order of 350,000 bank cubic metres (BCM) of general solid waste (GSW) material to form the final landform, and place other materials as required, including site won sandstone or tunnel spoil as bearing, capping and working platforms for itself and others. All earthworks involving waste were to be performed in accordance with the M5N-GOL-TER-900-200-GT- 945-9435 SPI Earthworks Design Report. 44 Additionally, EPS was contracted to operate and maintain the existing leachate treatment plant, collection system, main riser, intermediate riser, leachate sump and associated transfer network to the LTP throughout the landfill remediation activities. EPS was required to maintain standing leachate levels across the site in order to ensure the bulk excavation and cutting activities were not impacted by leachate outbreaks. 45 On 7 April 2016, the CDSJV issued Work Pack M5N-CN-WPK-SPR-0005 (the Work Pack) to EPS, a copy of which is Attachment D. The Work Pack set out the process to achieve the final landform of the Premises and included stipulations as to EPS's obligations in relation to managing leachate and asbestos. 46 Achieving the final landform of the Premises involved moving waste materials from various cuts to fill a location known as "T2", as well as forming platforms upon which a rig could be placed to drive steel pilings into the ground surface to ensure that the ground could support the roads of the St Peters Interchange. The location of "T2" is marked on Attachment C with the letters "T2". 47 The Work Pack also attached a detailed scope of works titled St Peters Interchange Landfill Closure Detailed Scope of Works August 2016 a copy of which is Attachment E. The scope of works required compliance with the Contract, the· schedules to the Contract and all documentation referred to in the scope of works in that order of precedence, where the higher standard was to prevail in the event of discrepancy. 48 Under the Work Pack, EPS was required to provide project documentation to satisfy WHS and environmental obligations. EPS generated "Management Plan C Bulk Earthworks" (the Plan), a copy of which is Attachment F, to govern the earthworks required to remediate the landfill and to provide the final landform. 49 Part of the Plan included the creation of temporary "blue zones", being zones identified as "asbestos work zones". Within the blue zones work was to be managed by EPS with no unauthorised access permitted to the area. EPS was the only entity onsite holding the appropriate statutory approvals to handle remediation of asbestos­ contaminated waste. Stage 2 created a blue zone around the area known as "Cut 2". During this stage, waste was excavated from Cut 2 and deposited in T2. 50 However, CPB had ultimate control of the Premises. The locations of the blue zone in practice varied according to instruction from CPB. 51 All bulk earthworks undertaken onsite were conducted under asbestos conditions, as required by Management Plan C - Bulk Earthworks. The "blue zones" - asbestos work zones - were managed by EPS, including who could access the 'blue zones. CPB staff were authorised to enter the "blue zones" in order to undertake inspections to ensure CPB's compliance with its environmental obligations. 52 Attachment G contains images showing the staging of works, including an image showing an overall view of the site with reference to planned cut and fill areas. 53 After June 2017, EPS and the CDSJV ended the Contract via a settled agreement. Other Entities Involved at the Premises 54 A number of other entities were involved in the works at the Premises. They included Stephenson Environmental Management Pty Ltd ACN 167 153 728, (SEMA) as a consultant to CPB with expertise in odour detection and management. There were various other subcontractors engaged by the CDSJV, CPB and by EPS, including Antquip and JCM. 55 The following persons were involved in the following capacities at the Premises: Table Three: Persons working at Premises Name Position Employer Hierarchy Howard Chemney Environment Sustainability Manager (based at Mascot, off the Premises) CPB Environment Team Charles Scarf Environment Manager CPB Reported to Mr Chemney Roisin Batch Environment Manager CPB Reported to Mr Scarf Jay Eastley Superintendent of Earthworks Samsung Reported to Mr O'Leary Mick Easman Senior Foreman CPB Reported to Mr Eastley William Binstead Senior Project Engineer CPB Reported to Mr O'Leary Sean Guenther Project Engineer CPB Reported to Mr Binstead Brett O'Leary Project Manager CPB Managed contract with EPS Brett Paul Nash Senior Project Manager EPS Senior Project Engineer Angelo Silvio Site Manager EPS Reported to Mr Nash Peter Stephenson Environmental Biochemist SEMA Consultant expert in odour Deborah Sauchella CPB Corporate Legal Team, Manager Legal, Corporate and Disputes and nominated Corporate Representative CPB Corporate Representative Leachate Management at the Premises 56 Leachate generated by waste coming into contact with water was managed on the site by: (1) Installing a vertical wall to isolate the former landfill from underground aquifers. (2) Directing clean water onsite away from the waste mass. (3) Collecting leachate within the waste mass at a low point and in risers and pumping it to a Leachate Treatment Plant (LTP) for treatment before discharging to sewer under a consent from Sydney Water. CDSJV was permitted to discharge 1 megalitre of trade waste water per day, subject to certain limits. 57 Rainwater falling on, or passing over the land surface, and coming into contact with the waste mass was a primary source of leachate. 58 The LTP was a biological treatment plant with three main tanks: a storage tank; a treatment tank; and a discharge tank. For leachate that required treatment before discharge to sewer (where levels of certain nutrients were too high and could not be blended with lower level leachate in the discharge tank), a holding time in the treatment tank was required prior to discharge. Holding time was a limiting factor which could significantly affect the efficiency of the performance of the LTP. Leachate collection system 59 Historically, leachate generated by the Alexandria landfill was managed by a herringbone configuration of piping that drained to a location known as the Main Riser, being an 18-metre concrete pipe embedded 10 metres vertically into the ground at the western end of the Premises, with associated pumps and telemetry (the Main Riser). 60 The Main Riser is labelled on Attachment G as the "Main Leachate Riser". Historic drainage diagrams for the premises are Attachment H. The Main Riser was used to collect leachate and pump it to the LTP. 61 The Work Pack identified the Main Riser as critical infrastructure to the project. EPS was required to either extend the existing riser or decommission it and install a new one; see paragraph 14 on page 12 of the Work Pack. 62 Hydraulically, there were two waste cells in the landfill at the Premises. The first waste cell drained to the Main Riser. The second waste cell drained to a second intermediate riser. This riser was located at the northern portion of the Premises, being a 15-metre pipe embedded 12 metres into the ground with associated pumps and electrics (the Intermediate Riser). The general location of the Intermediate Riser is labelled on Attachment Gas the "Intermediate Leachate Riser". 63 From February 2017, leachate collecting at the Intermediate Riser could not be pumped directly to the LTP as the pump had been removed. Instead, it had to be pumped to the Main Riser first. The location of the Main Riser, the Intermediate Riser and the herringbone piping is also marked on the images at Attachment H. 64 When the Intermediate Riser was not functioning, leachate would build up in the area around the Intermediate Riser. Prior to being pumped to the Main Riser, leachate was flocked and sampled. Leachate was generally flocked and sampled at a location (which moved throughout the construction) known as the leachate pooling point (the "Leachate Pooling Point"). The approximate location of the Leachate Pooling Point is marked by a pink circle on an aerial image at Attachment C. 65 A document titled "St Peters Interchange - Leachate Design (Water Balance)" (the Water Balance) drafted by Golder indicates that, based on mean rainfall from 1929 to 2016, the capacity of the LTP to treat and discharge waste appeared to be adequate to deal with leachate issues arising onsite during the construction phase. The Water Balance also predicted "perched leachate", being leachate collected above groundwater height in perched areas where the waste was impermeable to liquid. 66 Golder's analysis utilises data from the Bureau of Meteorology (BOM) weather station, Sydney Kingsford Smith Airport (BOM Station 066037). It simulated rainfall based upon 50th and 90th percentile annual rainfall years. 67 A copy of the WCMP referred to at paragraph 7 dot point 3 of these facts is Attachment I. 68 The WCMP set out options for addressing leachate and odour management. Among other matters, the WCMP contemplated in relation to odour that: (1) Exposed waste was to be progressively covered by the final capping once final surface levels were reached. (2) The source of any odour was to be controlled by any of the following: - Misting sprays. - Handheld lance. - Covering the source with mulch. - Odour supressing foam. - In smaller applications, application of tarps. - where practical, earth cover of 150mm. 69 In the period March to June 2017 inclusive, the LTP was not able to process all of the leachate onsite, noting that the ground surface constantly changed so that waste was removed from certain areas (effectively reducing the distance between the surface and the groundwater in cut locations) and added to other areas (effectively increasing the distance between the surface and the groundwater in fill locations), most significantly at T2. 70 The "ground surface constantly changed" as EPS was required to excavate 350,000 bank cubic metres of waste to build the final landform. Timeline of Waste Removed 71 Waste required to be cut from the Premises extended to a depth of 15 metres in extensive locations. The following cumulative volumes of material had been cut and filled by the following dates: (1) 17 April 2017: 133,262 m3. (2) 24 April 2017: 143,838 m3. (3) 22 May 2017: 219,532 m3. (4) 29 May 2017: 245,020 m3. (5) 5 June 2017: 267,824 m3. 72 By the end of their association with the Premises, EPS had moved 298,076 m3 of material. 73 The materials initially removed were the topsoils and surface cover above the landfill. Excavations first broke into the Alexandria landfill itself in November 2016. Material within the Alexandria landfill was comprised of mixed waste including waste timber, brick, organics, plastics and unsegregated mixtures of material. Residents 74 The following residents lived at locations around the Premises: (1) Ms Sarah Aubrey and Ms Rebecca Clarke, at 23 Silver Street, St Peters. (2) Ms Tamara Regan, 12 Brown Street, St Peters. (3) Ms Carol Anne Russell of 10 Campbell Road, Alexandria. (4) Ms Kate Hafey, of 3 Quarry Street, Tempe. Odour Detection Surveys 75 Odour detection at the boundary of the Premises was carried out by employees of CPB and EPS, as well as expert odour consultant SEMA, using a device known as a nasal ranger. Odour detection was carried out by EPA officers without the aid of a nasal ranger. 76 The nasal ranger dilutes odour using a descending scale of 60, 30, 15, 7, 4, 2, <2 where 60 is the greatest dilution (that is, 60 parts non-odorous air to 1 part odorous air). Odour that is detectable at a dilution of 60 is rated as 60 units. The operator places the nasal ranger face shield over their nose and mouth and determines whether, at different settings, an odour is detectable. The setting at which the odour first becomes detectable is recorded as the strength of the odour, and further testing at lower settings is carried out for confirmation and for detection of any further odours. 77 When the EPA received complaints about odour from members of the community, they sometimes asked complainants to rank the odour on a 6-point scale, where 6 is the most offensive. Weather 78 CPB maintains a weather station at the Premises near Albert Street. The location of the weather station is marked "W" on the map at Attachment C. The nearest alternative weather station is at Sydney Airport. Records indicate that rainfall in March was unexpectedly heavy (breaking records for the previous 28 years). 79 Mean rainfall records for Sydney Airport from 1926 to 2016 indicate that the average rainfall for: February was 112mm (in fact 158mm fell); for March was about 117mm (in fact 229mm fell); for April was about 109mm (in fact 94mm fell); for May was 97 (in fact 32mm fell) and for June was about 124mm (in fact 114mm fell). 80 Between 7 February 2017 and 9 June 2017, 595.4mm of rain was recorded at the St Peters Interchange Weather Station. Rainfall during March 2017 alone was recorded by the Bureau of Meteorology as being the highest in 42 years. A table showing rainfall readings collected where both onsite and at the Sydney Airport from November 2016 to June 2017 appears below: Rainfall (mm) per month St Peters Airport November 2016 24.0 26.8 December 2016 56.8 58.4 January 2017 55.4 48.4 February 2017 192.0 158.0 March 2017 276.0 229.2 April 2017 57.0 94.4 May 2017 25.6 32.4 June 2017 62.4 113.6 81 There were falls prior to all of the relevant offences of: (1) 27 April 2017: 57mm fell between 1 April 2017 and 27 April 2017. (2) 23 May 2017: 21.6mm fell between 28 April 2017 and 23 May 2017. (3) 26 May 2017: 25.6mm fell between 28 April 2017 and 26 May 2017. (4) 9 June 2017: 40.8mm fell between 4 June 2017 and 9 June 2017. 82 For the Leachate Treatment Plant to operate at maximum treatment and discharge capacity, all treated leachate must meet ammonia requirements under the TWA so it can be discharged to sewer. CONTEXT OF OFFENCES History of complaints to the Environment Protection Authority 83 There were 33 complaints to the EPA about odour from the Premises between about 2012 and March 2017. These complaints all related to periods of time before CPB held the License in relation to the Premises. The premise, given the historical use, was always capable of giving rise to odours, some of which could be reasonably characterised as offensive within the meaning of the POEO Act. The EPA records indicate that there were 8 complaints on 27 April 2017, 5complaints on 23 May 2017, 18 complaints on 26 May 2017 and 13 complaints on 9 June 2017. In the period 27 April 2017 to 9 June 2017 there were 141 complaints from 90 different individuals. Odours Not Always Offensive 84 When undertaking an investigation of odour events, EPA Officer Alex McGuirk objectively distinguished between odours considered to be unpleasant and those that could objectively be characterised as offensive. 85 For example, on the 23 May 2017, on two occasions, Ms McGuirk identified leachate odours that did not satisfy the offensive threshold: (1) At 10:49am: "I smelled a leachate egg odour that I scored 2-3/6 ... unpleasant but not offensive to me"; and (2) Between 11:15 and 11:17: "I smelled ... leachate egg odours that I scored 3/6 ... I considered that the leachate odour I was smelling here was unpleasant but not offensive to me." 86 Ms McGuirk undertook to objectively demonstrate why a particular odour event satisfied the requisite threshold. For example: (1) "I considered the odour was offensive to me because it was making me feel physically ill and I could not have carried out normal activities, like having lunch, with an odour of that nature and strength present. I noted I felt sick in the stomach because of the odour. I recall that the odour upset my eyes and my breathing. I recall my skin, hair and clothing felt dirty due to the odour. I wanted to get away from the odour quickly;" (2) "I recorded that I was scrunching up my face and blowing out my cheeks to try to prevent breathing the odour in ... I felt a slight stinging in the back of my throat due to the odour;" (3) "The odour was offensive to me because I felt physically unwell and I would not have wanted to sit, eat, study, work or play with an odour of that nature and strength present;" and (4) "The leachate odour was offensive to me because it prevented me from carrying out my normal lock-up routine. I wanted to get away from the leachate odour as quickly as possible." 21 April 2017 odour issue 87 At about 1pm on 21 April 2017, an EPA officer, Ms Alex McGuirk called Mr Scarf and had a conversation in relation to complaints from members of the public about a rotten egg odour affecting people's health, and a concern that the smell might continue over the Anzac Day long weekend. 88 At about 4:15pm, Mr Scarf called Ms McGuirk and said words to the following effect: "There's odour leaving the boundary. It's a 4-70U. There's been a leachate breakout, it's coming out of the batters. We're excavating trenches so we can collect it in a pit and pump it. We'll cover it with gravel and tarp. We think the underlying cause is a waste cell that's not hydraulically connected, or that the connection's blocked, so there's been a build-up of water in that cell. The water level in the sump and the main riser is low. There's a nor east wind. We re-oriented the odour cannon. There'll be a full crew onsite Saturday, Sunday and Monday with trucks and pumps and tickets. I'll be onsite myself and we'll try to keep the leachate underground or covered. The project director is signing off on the report today so it's accurate as of 9am today." 89 By about 6.30pm no odour was detected as corrective actions and remedial odour controls had addressed the odour emissions. 90 CPB subsequently reported to the EPA in accordance with the License that the cause of the event was odours from leachate exposed to air (Attachment J). THE OFFENCES Charge 1: 27 April 2017 91 At about 12pm, at her house at 12 Brown Street, St Peters, Ms Tamara Regan smelled a rotten egg, sulphur, pungent smell. The smell was a strong offensive odour rated 6 on a scale of 0 to 6 (with 6 being the worst rating) by her and almost made her vomit. The smell was still strong and offensive at Ms Regan's home at 4:47pm when she made a call to the EPA to complain about the smell. 92 At about 3:20 to 3:25pm, while picking her children up from St Peters Public School, Ms Kate Hafey smelled a "rotten egg, farty smelf' that gave her a tight chest feeling, like her throat was closing up. The smell made Ms Hafey feel unwell and short of breath. Ms Hafey had an asthma attack. Ms Hafey observed her youngest child have an asthma attack as well. Her other child was also wheezy. 93 During the day, Ms Carol Anne Russell of 10 Campbell Avenue, Alexandria detected an odour entering her house, being a sulphuric, rotten egg smell. Later in the afternoon the smell became very strong, very obnoxious (making one person at her residence think their colostomy bag had broken. and causing that person considerable embarrassment). Around 6pm the smell was again very strong, very noxious. 94 Throughout the day, the winds were recorded as being from the south or from the south to south-west and from the south-west at about 6:00pm. Ms Regan's premises and the school are located to the north of the Premises. Ms Russell's is located to the north-east. 95 At 5:26pm Mr Scarf sent an email to persons including Mr O'Leary stating that "odour is strong today and it is likely we will have to self report again...". 96 From 5:50pm to 7:15pm SEMA conducted an odour survey. At a location on Campbell Road, Alexandria downwind of the Premises, odour was detected at 4 to 7 units with a nasal ranger. The odour smelled of black water, compost and sulphides through to leachate tones towards Euston Road, Alexandria. The wind was south to south-west at the time. 97 A foreman's report notes that in the shift 5:15am to 6:00pm on 27 April 2017, 6 EPS staff were onsite, with one from subcontractor JCM. The report notes "fought with the odour until 8pm and finally got it under controf". 98 According to the Foreman's Diary, Easman (Supervisor/Foreman), Guenther (Engineer) and Lehman (Leading Hand 2) were on site. Charles Scarf was conducting odour monitoring around the perimeter of the site and in the suburb on 27 April 2017. He cannot recall if he went on site to observe the odour. 99 At about 11:00am on 28 April 2017, Mr Scarf called the Pollution Line number and reported an odour greater than 2 odour units on Campbell Road at St Peters, starting at 6:15pm on 27 April 2017. 100 On 28 April 2017, Mr O'Leary sent an email to various persons, copying in Mr Scarf. The email stated in relation to the previous day's odour: "The contributing factors are: 1. Some of the leachate that is perched in the intermediate riser found its way to the surface after lunch yesterday. 2. The issue was compounded by our odour cannon being broken down at the same time. 4. The odour became a problem around 3pm yesterday afternoon as identified by the site team but we were not fully aware of the external goings on. 5. We fixed the breach with the intermediate riser and applied chemical dosing to the exposed leachate. 6. The de-oderising spray system along Canal road boundary were [sic] still in operation. 7. The odour persisted as a problem to about 8:00pm .. ." 101 On 28 April 2017, CPB provided a written report under the Licence (Attachment J). 102 The CDSJV stated "... as we excavate areas on this very large site, we will find pockets of unexpected leachate. We act on this immediately but odour may already have been released; the odour can be pervasive and linger after our controls are in place. We expect that other areas of leachate may be encountered on which we will act immediately to mitigate." 103 The CDSJV later prepared a power point presentation which states "date: 27 April; odour readings: 15 and missing; cause: leachate outbreak from near intermediate riser; comments: outbreak was capped and backup odour cannon sourced from Melbourne." 104 At a planning meeting on 27 April 2017 between CDSJV and EPS, the planned works from 27 April 2017 were the placing of waste on T2 from Cut 2, among other works. No works are identified at the Intermediate Riser. During interview, Mr Scarf stated that the location of the leak was not subject of active works. Charge 2: 23 May 2017 105 On the morning of 23 May 2017, EPA officers attended the boundary of the Premises and observed two large pools of water at the Leachate Pooling Point of the waste cut. 106 The EPA officers carried out an odour survey between 10:30am and 11:45am. During the survey the officers almost circumnavigated the Premises. Between 10:57am and 11:06am while on Canal Road, EPA officer Ms Alex McGuirk detected an offensive odour (rated 4 on the 6-point scale) that made her feel sick in the stomach and that would preclude ordinary activities like eating lunch at the location. It irritated her eyes and breathing as well as her appetite. Mr Mark Jansons of the EPA also detected an offensive odour at about 11:06am, persisting for the time he was at the location (that is, one minute). At the time the wind was relatively still, with gusts from the north­west. 107 The EPA officers entered the Premises at about 12:10pm to 1:15pm and smelled a an odour similar to and of the same nature as the odour detected on Canal Road. The smell on the Premises was emitted from pooled leachate in the vicinity of the Leachate Pooling Point, there scoring it 4 to 5 then 5 to 6 on the 6-point scale. The odour was much stronger, more offensive and more consistent than it was on Canal Road. The pooled leachate on the Premises was the source of the offensive odour on Canal Road. The wind was recorded as being from the west to south-west at this time. Photographs of the source of the odour, being leachate pooled near the Leachate Pooling Point on 23 May 2017 are at Attachment K. 108 At 11:20am, Mr Jack Murray of EPS conducted odour surveys on the Premises. Mr Murray detected an odour at 2 units using a nasal ranger at the "cut and cover" (being a location adjacent to T2) that was very strong but intermittent. 109 At about 12:00pm a meeting was organised by Mr Scarf by email. The email states that "one of the areas of concern was the leachate sump with no free water on top but rather sludge. In the base of Cut 2 groundwater was visible. Jay Eastley called EPS and had the area filled with waste." 110 At about 12:10pm, EPA officers had a discussion with CPB employees including Mr Scarf while onsite. Mr Scarf said words to the following effect: "the waste has only a very faint odour. Leachate management is the issue." 111 At 4:20pm an employee of CPB, Mr Paris Spellson, who had been trained by SEMA in odour detection, recorded a leachate odour at 2 to 4 units using a nasal ranger. At that time the wind was from an east north-east, to north-east direction. 112 A shift report from 5:15am to 6:00pm recorded that "Water now prevalent in all cuts". Mr Easman was listed as the supervisor/foreman. Three employees of EPS, 8 employees of Antquip and 1 employee of Hibbs are recorded as onsite. 113 In interview, Mr Scarf recalled that perched leachate had been encountered throughout April and May that was not collected by the leachate collection system. On 23 May 2017, he observed leachate in the base of Cut 2 but only sludge on top of the Leachate Pooling Point. 114 On 30 May 2017, CPB provided a report to the EPA under the Licence (Attachment L). 115 The CDSJV stated ".. .as we excavate areas on this very large site, we will find pockets of unexpected leachate. We act on this immediately but odour may already have been released; the odour can be pervasive and linger after out [sic] controls are in place. We expect that other areas of leachate may be encountered on which we will act immediately to mitigate." Charge 3: 26 May 2017 116 At about 9:30am on 26 May 2017, Ms Regan went to Sydney Park. She was in charge of taking children from a local school to participate in a school zone cross-country carnival. Early on during the day, Ms Regan experienced a heavy, dense, rotten egg smell that got stronger throughout the morning. The odour made Ms Regan feel nauseous and like she wanted to leave the park. 117 According to her, the children complained about a rotten egg smell. At about 11:05am Ms Regan made a complaint to the EPA stating her children, who were attending the Sydney Park School Zone Cross-Country race had complained about a rotten egg smell, and that there were lots of children attending the carnival. Ms Reagan went on to describe the odour as overpowering rotten eggs/ faeces and in her view had a strength of 6/6. Ms Regan left the park at about 12:30pm. 118 At 12:52pm, Ms Aubrey of Silver Street, St Peters sent an email to the EPA complaining of the "filthy smell emanating from St Peters WestConnex site". 119 During the day, Ms Hafey detected an overpowering smell in her home at Tempe and at her children's school, St Peters Public School. Ms Hafey also detected a smell at around 2:30pm, which entered her car whilst waiting at the Canal Road and Princes Highway intersection, despite the windows being wound up. The smell was a rotten egg/burnt toast smell. She was affected, having a feeling of revulsion, a tight chest and some nausea. It made her feel unwell and queasy. A roofer who was due to do some work at Ms Hafey's home had left without completing the work because of the smell. 120 The wind was recorded as being from the west to south-west up to 10:30am, then changed direction to be from the south, south-east after that (noting that the Leachate Pooling Point at the Premises was located to the east of Sydney Park). 121 At 2:41pm the CDSJV sent an email to members of the community stating "over the past week there has been intermittent release of odour from the landfill. We're continuing to implement measures such as the leachate capture systems and misting/odour suppressant to minimise impacts to the local community. Once again, we apologise for the discomfort the odour is causing and thank you for your patience while we remediate the landfill and build St Peters interchange." 122 Between 3:18pm and 4:30pm, EPA officers conducted an odour survey. The officers circumnavigated the Premises. The EPA officers did not go onto the Premises. The EPA officers detected an offensive odour on the boundary of the premises at Church Street/Campbell Street (scored at 5 on the 6 point scale) and along the Princes Highway from Campbell Road to the carparks (being 4 to 5 on the 6-point scale). Ms McGuirk described the odour as the most offensive odour she has experienced and identified the source as a low point within the waste cut on the Premises. Ms McGuirk marked a photograph of the Premises (previously taken by Ms McGuirk on 23 May 2017): two 'pools' of surface liquid in the waste cut in pink as the low point she identified as the source of the odour. The marked photograph is Attachment M. 123 The odour detected at the Fitness Empire, downwind, was scored a 3 out of 6 on the 6-point scale by the EPA officers, but not above the offensive odour-threshold. 124 At 4:40pm the wind was southerly according to the Sydney Airport weather station and the onsite weather station, but still locally variable with gusts. 125 At 4:40pm to 6pm SEMA carried out odour surveys and did not detect odours associated with the Premises, other than at two locations which were downwind of the Campbell Road/Princes Highway corner of the Premises. At those locations, odour was detected at 4 units and at 4 to 7 units on a nasal ranger. The wind was from the south at the time. These odours were characterised as "PAH, tar, mercaptan and grey water characteristics; and as sewer/black water and grey water, sulphides and occasional odorant." 126 The foreman's report for the night shift (5:15 am to 6pm) on 26 May 2017 records that "the dam in cut 4 overflowed, pumps turned off, spray systems moved around, leachate covered in sand, Anotec deployed onto roads and Rusmar sprayed on all of the standing leachate that we could reach." Labour onsite was recorded as 3 persons from EPS and 5 from Antquip. 127 Easman (Supervisor/Foreman) and Guenther (Engineer) were on site on 26 May 2017. 128 At 8:01pm, Mr O'Leary sent an email stating "the pooled leachate the EPA is asking us to cover is our pumping sump. We were moving the location of the sump today. We were doing nothing today that was significantly different to what we explained in the phone hook up... there was an odour on Canal Road today but at a low level (maybe a 4 on the scale)." 129 According to Mr Binstead, CPB's Senior Project Engineer, it was the CDSJV team that moved the sump on 26 May 2017. 130 At 8:36pm on 26 May 2017, Mr Victor Sanflieu sent an email to Mr O'Leary stating: "If we cover all leachate ponds, there is two consequences 1. We can't excavate in cut 2. On the contrary we will have to fill. This means a 4-6 week delay minimum in starting the driven piles....we are currently pumping from the leachate pond to cut 4, and there are symptoms we are saturating the area too. lf we stop pumping, leachate water will arise anyway in the C&C area, and that delays the whole of WestConnex stage 2 program. Until we drop the current underground water levels (and that is months away) it is difficult to have zero leachate ponds." In referring to "leachate ponds" Mr Sanflieu was referring to pooled leachate. 131 In interview, Mr Scarf stated that leachate was flowing from waste in Cut 2 and Cut 3. Waste was placed in low areas of the cuts to displace the leachate towards the drainage channel and sump. 132 On 1 June 2017 CPS provided a report to the EPA under the Licence (Attachment N). 133 The CDSJV stated "we are currently excavating the landfill and unfortunately continue to expect to encounter leachate which emits odour." 134 CDSJV later prepared a power point presentation which states "26 May, odour readings: 4 and 7, cause: relocating leachate sump to improve capture; comments: works to improve leachate capture and reduce future odour risk." Charge 4: 9 June 2017 135 On 9 June 2017, at about 8:45am, Ms Hafey smelled a foul smell during school drop off at the school at St Peters. Ms Hafey described it as a rotten egg smell with air freshener over the top and burnt toast as well. The odour was very strong almost to the point of nauseating. Ms Hafey called the EPA at 9:27am to make a complaint. She rated the odour at 3 out of 6. 136 The wind was recorded as from the south south-east at the time and was recorded predominantly from the south to east all that day. 137 During the day, Ms Rebecca Louise Clarke at 26 Silver Street, St Peters, detected a continuous stink that gave her a headache. Ms Clarke worked from home as a music tutor. She complained by email at 11.37pm on 9 June 2017 that "[t]here has been a horrible stench coming and going from the Westconnex sight [sic] at Canal Rd. This week it is close to unbearable. I have developed a cough and have been getting headaches. I believe it's due to the stench, as I never get headaches and rarely get sick. Lot's of my neighbours are having similar symptoms and also can't stand the smell... How Jong will this foul stench be emanating and what can be done about it?" 138 Ms Aubrey, at the same location, also detected an odour that filled her home with a stench, giving her headaches, watery eyes and a sinus infection. 139 At 10:35 am Mr Jack Murray of EPS detected a leachate odour less than 2 units on a nasal ranger at McDonalds, affected by the wind conditions which were swirling at the time. 140 EPA conducted an odour survey during the afternoon. The EPA officers circumnavigated the Premises. At about 2:42 pm, EPA officers observed a strong offensive odour at 187 Princes Highway near the Anglican Church, as well as at 178 Princes Highway at the IBIS Hotel and at Fitness Empire. The odour was an offensive leachate/rotten egg odour that made the EPA officers feel uncomfortable and want to leave the area. The odour was persistent over about 15 minutes. The EPA officers considered it would be very unpleasant to have lunch with the odour present. According to the EPA officers, the wind was gusty and from an easterly direction at the time. There was no odour detectable at the corner of Canal Road and the Princes Highway. 141 At 3:25pm EPA officers observed water pooling on several locations at the Premises and leachate flowing from the "old waste cell" towards the Leachate Pooling Point. Attachment O is a photograph of the leachate flowing to the Leachate Pooling Point area, accompanied by a second aerial image in which the Leachate Pooling Point is circled. The odour was emitted from leachate flowing to and collecting at the Leachate Pooling Point. The odour cannon was functional. There was no cover on the Leachate Pooling Point. At 3:40pm the EPA contacted CPB to inform it of the pooled leachate and offensive odour. 142 At 3:50pm to 5:00pm, SEMA carried out an odour survey. At the time the whole of the Premises seemed to be inundated with water due to rainfall. The survey detected no odours at all sites, other than an odour below 2 units at one site. The wind was south south-east at the time. 143 In interview, Mr Scarf stated that the cause of the event on 9 June 2017 was high rainfall on 7 and 8 June 2017. According to Ms Batch, both the CDSJV and EPS carried out works in the period 6 to 9 June 2017. According to CPB's onsite weather station, about 36mm of rain fell on 7 and 8 June 2017. 144 CDSJV stated on 9 June 2016 that "due to heavy rain in the last few days a significant amount of rain has fallen into the Alexandria landfill which may create the potential for odorous leachate". CDSJV also stated that "as we excavate the landfill we encounter pockets of leachate which emits odour". 145 On 23 June 2017, CPB provided a report under the Licence (Attachment P). HARM 146 The offences caused actual harm as summarised in the table below and referred to in the identified paragraphs of these facts, and detailed in the accounts of community members below: Table Four: Harm Offence Date Impact Type Paragraph Reference 27 April 2017 Community members: Almost vomiting, tight chest, asthma attacks, short of breath, feeling unwell, wheezy, very strong and obnoxious smell in home, embarrassment, [91]-[93] Odour at 4 to 7 units according to SEMA off the Premises. [96] 23 May 2017 EPA: Feeling sick in the stomach, affected eyes, breathing and appetite. Rated 4 off the Premises and up to 6 on the Premises on the 6-point scale. [106]-[107] Odour at 2 to 4 units according to CPB employee. [111] 26 May 2017 Community members: Nausea, feeling of revulsion, tight chest, overpowering smell in home and at local school, smell inside car with windows wound up, athletics carnival involving lots of children impacted. [116]-[119] Most offensive odour experienced. Comfort and repose impact. Rated up to 6 on the 6-point scale off the Premises. [122] Odour at 4 to 7 units according to SEMA off the Premises. [125] 9 June 2017 Near nausea, at home, almost to the point of nauseating at local school. [135], [137]- [138] Comfort and repose impact. [140] OTHER MATTERS 147 CPB committed the offences in the course of carrying out a commercial activity. 148 CPB was required by the Project Deed to both close and remediate the former Alexandria Landfill site, and, construct out of the existing landfill waste material, an interchange consisting of roads, tunnels and overpasses. The WestConnex Delivery Authority had acquired the former Alexandria Landfill in order to accommodate the development of the St Peters Interchange, as part of the New M5 project. EPA INVESTIGATION 149 The EPA has attended the Premises for inspections on a number of occasions, issued a large number of statutory notices, conducted interviews with each of the persons listed in Table 2 and conducted interviews with members of the public. 150 The EPA has obtained affidavits from the following community members as to their experiences of odour: Mr Andrew Robert Russell, Ms Carol Ann Russell (affected on 27 April 2017), Ms Kate Hafey (affected 27 April 2017, 26 May 2017 and 9 June 2017), Ms Rebecca Clarke (affected 9 June 2017), Ms Sarah Aubrey (affected 26 May 2017 and 9 June 2017) and Ms Tamara Regan (affected 27 April 2017 and 26 May 2017). CAUSES OF THE INCIDENTS 151 Waste beneath the surface of the old Alexandria landfill was exposed to the air by earthworks carried out by CPB and its contractors and subcontractors (themselves carrying out the specified Project Works) since November 2016. 152 Rainfall infiltrated through the exposed waste, eventually resulting in the pooling of leachate on the Premises in the vicinity of Cut 2, on each of the following dates: 27 April 2017, 23 May 2017, 26 May 2017 and 9 June 2017. 153 The odour was caused by the volatilisation of pooled leachate on contact with the air, resulting in the emission of odours. 154 In respect of the 27 April 2017 offence, leachate was observed in the morning seeping into Location 2 from another unidentified leak associated with the Intermediate Riser; that the leak was sealed by 3pm; and the odour contained by 8pm. The issue was compounded by an odour cannon breaking down at about 3pm. The leachate was pumped back into the waste mass whereupon the odour ceased. 155 In respect of the 23 May 2017 offence, rain reduced the capacity for landfill waste to absorb and infiltrate water into the groundwater cell, resulting in leachate leaking out of waste onto the site surface. Odorous leachate accumulated in an area adjacent to the Leachate Pooling Point in Cut 2. 156 In respect of the 26 May 2017 offence, odour was caused by the volatilisation of odorous compounds from captured leachate exposed to air. CPB and its agents were conducting works in the area of the Leachate Pooling Point, at or near Cut 2/Fill 1A, including relocation of the sump in order to manage leachate occurring within the area. The leachate within the sump arose from rain infiltrating into the landfill groundwater cell. 157 In respect of the 9 June 2017 offence, leachate flowed to a sump in Cut 2 and overtopped gravel within the sump. STEPS TAKEN BY CPB TO AVOID OR MITIGATE LEACHATE OUTBREAKS 158 Steps taken by CPB included: (1) Using odour masking/suppression foam daily from 3 March 2017 to 13 June 2017 and as required thereafter; (2) Pumping leachate underground to avoid contact with air when LTP unable to deal with the quantity of leachate generated by the weather event in the context of the nature of the required works; (3) Earthworks undertaken to reduce pooling of leachate from 26 May 2017 to 3 August 2017; (4) New receiving point constructed in cut 4 to increase distance from potential pooling points of leachate and the excavation area, completed 23 May 2017; (5) Toolbox directions to all staff that excavation is to cease and managers are to be notified when groundwater encountered, completed 23 May 2017; (6) Expansion of leachate rumble drain and pump sump, completed 24 May 2017; (7) New drains dug in cut 2 to the rumble drain to drain cut 2 below subgrade level, completed 24 May 2017; (8) Covering exposed leachate in cut 2 on 24 May 2017; and (9) Design, fabrication and installation of a new leachate treatment plant, commissioned on 23 June 2017. PRIOR CONVICTIONS 159 CPB does not have any prior convictions for environmental offences. ASSISTANCE TO AUTHORITIES 160 CPB made a number of self-reports in relation to odour issues at the premises and written reports to the EPA upon request. 161 CPB cooperated with the EPA by making its staff available for interviews throughout the investigation. 162 CPB has also assisted the authorities by pleading guilty to each of the offences and by agreeing to this Statement of Agreed Facts. 163 CPB was in regular contact by phone and personally with officers of the EPA discussing their operations and efforts to deal with the leachate issues as evidenced in EPA interviews. INVESTIGATION COSTS 164 CPB has agreed to pay the Prosecutor's investigation costs in the amount of $10,000. COSTS 165 CPB has agreed to pay the EPA's professional costs in the amount of $140,000. Additional agreed expert matters statement 1. The agreed expert propositions tendered by the Prosecutor and marked Ex C provide: 1. Golder Associates Pty Ltd was engaged by the Defendant to provide expert design reports for works necessary to manage leachate on the SPI site and to finally cover the site and provide ongoing leachate post-construction management. 2. Golder's Report 2 Leachate Design (Water Balance) purported to follow guidance from the EPA's Environmental Guidelines Solid Waste Landfills, 2nd ed 2016, including as to 'conservative' rainfall inputs to model leachate production and thus the measures necessary to manage leachate. 3. The Golder Water Balance inputs were not 'conservative' but based upon long term average rainfall for the location and accordingly leachate design measures were not calculated to deal with leachate generated in outlier rainfall events upon a site with uncapped excavated waste. Peak daily leachate flows can exceed by at least 5 times the average daily flows predicted by the HELP model of water balance used by Golder, (Hydrologic Evaluation of Landfill Performance). 4. In particular, the Leachate Treatment Plant was incapable of treating the leachate generated on the site in periods of heavy rainfall in circumstances in which, by reason of the project works, large bodies of mixed waste and soil remained uncapped. 5. The Defendant did not engage an expert with practical landfill management experience to advise on leachate, (and thus odour), and management of the site during the construction phase. Had it done so, such an expert would likely have: a. identified that the leachate management measures planned for and implemented at the onset of the bulk earthworks would be unlikely to significantly mitigate the risk for odour harm; and b. conducted a water balance with relevant inputs and advised that a planned new Leachate Treatment Plant be commissioned prior to excavation works rather than being commissioned for the final capping stage. 6. Based upon the Golder Leachate Reports, the Defendant had in place by March 2017 a vertical barrier wall to prevent ingress to the site of the Botany Sands Aquifer, a refurbished Leachate Treatment Plant, a trade waste agreement with Sydney Water permitting treated leachate to be discharged to sewer, daily management controls such as inspections and odour monitoring and odour mitigation strategies such as suppressing sprays and odour suppressing foams. 7. The measures set out in paragraph 6 above were inadequate to deal with the level of leachate that was foreseeable in the event of heavy and sustained rainfall. 8. The measures set out in paragraph 5 above were reasonable and feasible for CPB to implement, and if they had been then the offences would not have occurred. 9. There were additional measures that an expert with landfill management experience would likely have recommended and that could have been utilised by the Defendant during the periods of heavy rain, such as a floating cover over leachate and a separate enclosed temporary leachate storage facility such as a leachate bladder. 1. The SOAF is extremely detailed. The additional agreed expert propositions resolves significant issues of causation and it is unnecessary to delve into most parts of the SOAF as a result. Additional evidence 1. The Prosecutor tendered a letter dated 19 September 2019 from the Defendant's solicitor (Ex A) and attachments to the SOAF (Ex B). 2. The Prosecutor read pars 1, 3-5 of the affidavit of Ms McGuirk operations officer employed by the Prosecutor dated 20 April 2018. Ms McGuirk has worked at the Environment Protection Authority (EPA) since 27 March 2017. In her role as operations officer she is responsible for the administration of the POEO Act including environment protection licenses issued under the Act. Ms McGuirk holds a combined degree in civil and environmental engineering and arts from the University of Technology Sydney. 3. Her experience prior to the EPA included short-term environmental officer roles at a closed landfill at Alexandria (Sydney Park), a closed landfill at Belrose and an operational landfill at Eastern Creek. Throughout these roles she came to understand leachate to be a liquid that comes into contact with waste. She has smelled landfill odours including waste odours, landfill gas odours and leachate odours. 4. Ms McGuirk has carried out environmental management tasks such as: 1. water quality testing – checking surface liquid for leachate contamination using an ammonia field test known as a "Palintest"; 2. leachate treatment plant monitoring – checking input, processing and output display screens and reporting anomalies; 3. trade waste reporting – reviewing leachate sampling results and reporting results to Sydney Water. 1. The letter dated 19 September 2019 from the Defendant's solicitors (Ex A) states that the Defendant "decided to adopt the Lightbody report and to reflect its key findings in its policies and procedures". 2. Tab J of the attachments to the SOAF (Ex B) contains "Written Report to EPA (R3): Landfill Remediation Odour" dated 28 April 2017 which was written in response to the EPA's request for a report to comply with condition R3 of EPL 4627 issued to the Defendant for the scheduled activities of road construction and crushing, grinding or separating at the "New M5 St Peters Interchange Premise". This states that from 7 February to 31 March 2017, 472 mm of rain was recorded at the St Peters Interchange weather station. The Bureau of Meteorology reported this as the wettest March in Sydney for 42 years. Tab K contains two photographs of what the Prosecutor informed the Court was pools of leachate on the site. Defendant's evidence 1. The Defendant read the following affidavits: Ms Pittaway dated 16 September 2019, Mr Silvester dated 16 and 19 September 2019 and Mr Scarf dated 18 September 2019. The Defendant tendered exhibit KP-1 to the affidavit of Ms Pittaway dated 16 September 2019 (Ex 1) and exhibit CMS-1 to the affidavit of Mr Scarf dated 18 September 2019 (Ex 2) which comprised two volumes (Ex 2). Affidavit of Ms Pittaway 1. Ms Pittaway group environment manager employed by the Defendant affirmed an affidavit dated 16 September 2019. The Defendant currently employs approximately 5,400 employees and contractors and has more than 100 current projects across Australia, New Zealand and Papua New Guinea. It is currently delivering some of Australia's most significant projects across the road, rail, ports, tunnelling, defence, building, health and oil and gas sectors both in its own capacity and as a participant in various joint ventures. 2. Ms Pittaway believes the Defendant has a genuine commitment to meeting its environmental obligations because inter alia the Defendant and its predecessor Leighton Contractors have no prior environmental convictions despite conducting very complex and difficult projects. 3. The Defendant has an extensive, longstanding and ongoing commitment to good corporate citizenship: 1. it was the first company to sign up to the "10x10 Program" with CareerTrackers which is a 10 year commitment to providing meaningful internships for indigenous students around Australia. In 2017 the Defendant received CareerTrackers "Most Valuable Partner" award for its outstanding commitment, participation and leadership; 2. the Defendant is a founding member of the non-profit organisation "Supply Nation" through which the Defendant connects with indigenous businesses. In 2017 that partnership resulted in approximately $30 million of project-based contracts being issued to Aboriginal and Torres Strait Islander businesses; 3. the Defendant is a founding partner of CareerSeekers "New Australian Internship Program" which helps refugees and asylum seekers find professional employment. 4. in 2018 the Defendant hosted its first NSW "Indigenous and Social Inclusion Forum" in Sydney to create stronger partnerships with local suppliers and subcontractors; and 5. additional community support includes active participation in initiatives such as White Ribbon Day, International Women's Day, "R U OK" Day and Mates in Construction. Affidavit of Mr Scarf 1. Mr Scarf environment and sustainability manager for the Rozelle Interchange (WestConnex Stage 3B) employed by the Defendant swore an affidavit dated 18 September 2019. The Defendant's environment management system is underpinned by a set of quality standards known as "The Way We Operate" which outlines the core aspirational principles, priorities and culture expected to be demonstrated by all employees in all aspects of business. A copy of "The Way We Operate" is in exhibit CMS-1 to the affidavit of Mr Scarf (Ex 2). 2. Mr Scarf stated that the Defendant should have had on site before excavation commenced a specialist in landfill waste management to advise on the type of conditions that may have been encountered rather than relying on technical reports identifying average conditions. Such a specialist could have advised on the methodology that should have been employed taking into account possible scenarios in the management of the landfill during construction. The Defendant might have been advised to upgrade the existing leachate treatment plant to a greater capacity due to the unique nature of the project (building a road interchange in a landfill) which required exposure of waste for longer periods than would be required for a typical landfill operation. Affidavits of Mr Silvester 1. Mr Silvester general manager of safety, health, environment, quality and sustainability employed by the Defendant swore an affidavit dated 16 September 2019. The board at a meeting on 16 August 2017 discussed ongoing offensive odours beyond the boundary of the St Peters Interchange premises. A copy of the environmental report submitted for the purposes of that board meeting was annexed to Mr Silvester's affidavit. 2. Mr Santamaria managing director of the Defendant emphasised to Mr Silvester that the "New M5 Project" was to be supplied with any resources and assistance that it required to properly manage odour-related issues. Accordingly Mr Silvester instructed Ms Pittaway to assist the project to develop and implement any measures required to effectively manage the emergence of leachate and any related odour. 3. Mr Silvester was authorised by the Defendant to say: 9. … how genuinely and sincerely sorry we are to the community and its residents for the offensive odours that were emitted from the project site. 10. As a result of not effectively managing the offensive odours, we adversely affected the lives of the residents who live nearby and have caused them deep distress. We cannot apologise enough for the impact our lack of effective actions have had on the people of the community. 1. Mr Silvester acknowledged that the Defendant had breached the POEO Act. He had read the report of Mr Lightbody (the Prosecutor's expert) dated 26 August 2019 and agreed that the Defendant should have engaged people with specialist knowledge and skills in the management of landfill at the start of the M5 project to advise on the most effective methods of avoiding the emission of offensive odour from the landfill on the project site. 2. Mr Lightbody's recommendations have resulted in a review of the Defendant's environmental management system and in the development of new processes for the management of landfill risks on the Defendant's projects. Those processes will require a landfill specialist to be engaged for any project where landfill is identified as a risk. They will also require the project to develop and implement processes and procedures to effectively manage the potential for offensive odours. 3. In Mr Silvester's second affidavit sworn on 19 September 2019 he stated that the Defendant has an integrated corporate management system which has been developed taking into account the principles of a number of Australian and international standards including "AS/NZS ISO 14001:2004 Environment Management". In response to Mr Lightbody's report, Mr Silvester developed a procedure for the management of the risks associated with landfill to be implemented at the planning stage of projects dealing with landfill. This procedure titled "Manage the Risks Associated with Landfill" (Landfill Procedure) is annexed to his affidavit. The Landfill Procedure engages and makes accountable the project manager and construction manager (the two most senior management members on a project) to identify, assess and manage the risks associated with landfill. Objective circumstances 1. The objective seriousness of an offence is determined by considering the following factors: the nature of the offence; the maximum penalty for the offence; the environmental harm caused by the offence; the defendant's state of mind; the defendant's reasons for committing the offence; the foreseeability of the risk of harm to the environment; the practical measures available to the defendant to avoid harm to the environment; and the defendant's control over the causes of the harm: Chief Executive of the Office of Environment and Heritage v Turnbull [2017] NSWLEC 141 at [16]. Nature of offences 1. The Court may take into account the statutory context in which the offence was committed in determining the objective seriousness of the offence: Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 (Bentley) at [51]-[71] and [168]-[172]. 2. The objects of the POEO Act are set out in s 3 and are as follows: 3 Objects of Act The objects of this Act are as follows: (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, (b) to provide increased opportunities for public involvement and participation in environment protection, (c) to ensure that the community has access to relevant and meaningful information about pollution, (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001. … 1. Objects (a) and (d) are most relevant in these proceedings. Maximum penalty 1. The maximum penalty for an offence under s 129(1) is $1,000,000 pursuant to s 132(a) of the POEO Act. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, Kirby P stated at 698: While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the "public expression" by Parliament of the seriousness of the offence: R v H (1980) 3 A Crim R 53 at 65. 1. The maximum penalty was increased from $250,000 in May 2006 by the Protection of the Environment Operations Amendment Act 2005. Reasons for committing the offence 1. The offences were committed in the course of carrying out a commercial activity. No allegation of intention, recklessness or negligence is made by the Prosecutor. No financial gain is alleged as a motive for the offences. Sentencing considerations under s 241 POEO Act 1. Section 241 of the POEO Act sets out the matters to be considered in imposing a penalty for an offence under that Act (that is, including an offence under s 129(1)). Extent of the harm caused or likely to be caused to the environment by the commission of the offence (s 241(1)(a)) 1. It is an agreed fact that the Defendant caused an offensive odour to be emitted from the Premises, and that the offensive odour caused actual harm to EPA officers, to persons at nearby businesses, and to residents in the vicinity of the Premises (SOAF at par 3). It is also agreed that the offensive odour caused the potential for harm (SOAF at par 3). Further, and as the offence involved the emission into the air of impurities, the offences involved actual environmental harm: Environment Protection Authority v Hunter Valley Energy Coal [2015] NSWLEC 120 (Hunter Valley Energy Coal) at [17]. 2. The Prosecutor submitted and I accept that the extent of the harm caused by the offending behaviours is an important consideration and operates to significantly increase the objective seriousness of each of the offences to which the Defendant has entered its pleas. It is an aggravating factor under s 21A(2)(g) of the CSP Act. 3. I repeat the Prosecutor's submissions on the extent of harm as these reflect the evidence and are not in dispute. The offensive odour has been variously described in the SOAF as smelling of: 1. rotten egg (SOAF at pars 91, 92, 93, 117, 119 and 135); 2. sulphur (SOAF at pars 91, 93, 96 and 125); 3. faeces (SOAF at pars 93 and 117); 4. sewer water (SOAF at pars 96 and 125); and 5. compost (SOAF at par 96). 1. It is agreed that the odour was "strong" and "very strong", (SOAF at pars 91, 93, 95, 107, 108, 135, 140) "overpowering", (SOAF at pars 117 and 119) "very obnoxious", (SOAF at par 93) "filthy", (SOAF at par 118) "heavy" (SOAF at 116), "dense", (SOAF at par 116) and "a horrible stench … close to unbearable" (SOAF at par 137). 2. As detailed below in respect of each of the four offences, the impact which the offensive odour had upon local residents and others within the area included physical pain, illness and difficulties breathing (including asthma attacks). On the occasion of each of the offences the odour persisted for a prolonged period and interfered unreasonably with the comfort and repose of a number people. The areas affected by the odour included suburbs near and around the Premises (Alexandria, Tempe, and St Peters), in which local residents' homes, parks, schools, churches, and businesses (such as tradespeople, eateries, hotels, and fitness centres) were located. 3. Further particulars of what is accepted by the Defendant to have been the harm caused by the offensive odour on the occasion of the four separate offences are set out below. These particulars, together with the matters set out above demonstrate that the harm caused by the offensive odour was substantial and extensive. 4. On the occasion of Charge 1 (27 April 2017), it is agreed that the offensive odour: 1. was present from about noon to about 8:00pm (eight hours) (SOAF at 1); 2. was present at the Premises and the surrounding suburbs of St Peter's and Alexandria, including in residents' homes and at St Peters Public School (SOAF at pars 91-99); 3. almost made a local resident vomit (SOAF at par 91); 4. caused another resident to feel chest tightness, unwell, short of breath, and then that resident experienced an asthma attack (SOAF at par 92); 5. preceded a child having an asthma attack and another child becoming wheezy (SOAF at par 92); and 6. caused a person in Alexandria to think their colostomy bag had broken, causing that person considerable embarrassment (SOAF at par 93). 1. On the occasion of Charge 2 (23 May 2017), it is agreed that the offensive odour: 1. was present from about 10:57am to 4:20pm (over five hours) (SOAF at par 1); and 2. irritated the eyes of EPA officer, Ms McGuirk, outside the Premises, made her feel sick in the stomach, and precluded her from doing ordinary activities like eating lunch (SOAF at par 106). 1. On the occasion of Charge 3 (26 May 2017), it is agreed that the offensive odour: 1. was present from about 9:30am to 7:00pm (ten and a half hours) (SOAF at par 1); 2. was present during a school cross-country carnival in Sydney Park attended by children from a number of schools, and caused children at the carnival to complain about the odour (SOAF at pars 116-117); 3. was also present in Tempe and at St Peters Public School, was so strong it could be smelt in a car with the windows wound up, and caused a local resident to feel revulsion, a tight chest, and some nausea, as well as unwell and queasy (SOAF at 119); 4. caused a tradesperson carrying out roofing work on a local house to abandon his work (SOAF at par 119); and 5. was described by EPA Officer, Ms McGuirk, as "the most offensive odour she has experienced" (SOAF at par 122). Ms McGuirk has previous experience working at a number of landfill sites, and has previously encountered leachate and other landfill odours in the course of work, but on those occasions did not find the smell of leachate offensive (Aff McGuirk at [17] above). 1. On the occasion of Charge 4 (9 June 2017), it is agreed that the offensive odour: 1. was present from about 8:45am to about 4:00pm (over 7 hours) (SOAF at par 1); 2. was "very strong to the point of nauseating" (SOAF at par 135); 3. caused a St Peter's resident to develop a cough and headaches (and her neighbours similar symptoms) (SOAF at par 137); 4. caused another resident in St Peter's to suffer headaches, watery eyes, and sinus issues (SOAF at par 138); and 5. was considered by EPA officers to make it "very unpleasant to have lunch" (SOAF at par 140). 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 (s 241(1)(c)) 1. It is an agreed fact that the odour harm arising was foreseeable to the Defendant (SOAF at par 3) It was also agreed that the Premises was always capable of giving rise to odours, some of which could be reasonably characterised as offensive within the meaning of the POEO Act (SOAF at par 83). 2. The Defendant accepted that if it had engaged a suitably qualified expert with practical landfill management experience to advise on leachate (and thus odour) management at the Premises during construction, then that expert would likely have identified that the leachate management measures the Defendant had otherwise planned for and implemented were inadequate in the sense that they would be unlikely to significantly mitigate the risk of odour harm occurring (agreed expert propositions at par 5(a)) 3. It is an agreed fact that the Defendant had ultimate control of the Premises from which the offensive odour emanated. It was also agreed that the odour was caused by waste beneath the Premises being exposed to air by works carried out by the Defendant (including its contractors and subcontractors). Practical measures that may be taken to prevent, control, abate or mitigate that harm (s 241(1)(b)) 1. As the Prosecutor submitted, it is an agreed fact that the odour harm was preventable (SOAF at par 3). It was also agreed that the measures the Defendant had in place to prevent the odour harm were inadequate to deal with the level of leachate that was foreseeable in the event of heavy and sustained rainfall (agreed expert propositions at par 7). 2. It is also agreed that, if the Defendant had engaged a suitably qualified expert (as described in paragraph [52] above) then that expert would have not only identified the inadequacy of the leachate management measures the Defendant had otherwise planned for and implemented, but would have also advised that a planned new leachate treatment plant be commissioned prior to excavation works, and not later during the final capping stage (agreed expert propositions at par 5(b)). If such an expert had been engaged by the Defendant, and his or her findings and recommendations acted upon, the odour harm would not have occurred. 3. There were also additional measures available to the Defendant that such an expert would likely have recommended and that could have been utilised by it during periods of heavy rain, such as a floating cover over leachate and a separate enclosed temporary leachate storage facility (such as a leachate bladder) (agreed expert propositions at par 9). 4. The Defendant's own evidence is to the effect that it did not effectively manage the offensive odours (Aff Mr Silvester 16 September 2019 above at [30]). The Defendant has agreed with findings and recommendations made by the Prosecutor's expert, Mr Lightbody, and has "decided to adopt [his] report and to reflect its key findings in its policies and procedures" (letter from Defendant's solicitor to Prosecutor dated 19 September 2019, see further Mr Silvester Affs at [31]-[32] above Mr Scarf Aff at [26] above). 5. The Prosecutor also submitted that the Defendant could have avoided the harm by ceasing excavation at the Premises. It is an agreed fact that, shortly after the commission of Charge 3 on 26 May 2017, Mr Brett O'Leary (Defendant's project manager responsible for managing EPS contract) was informed that covering all pooled leachate (that is, covering the source of the offensive odour (SOAF at par 153) would mean excavation would not be possible until underground water levels dropped, and that this would lead to "delays [for] the whole of the WestConnex stage 2 program" (SOAF at par 130). Subsequently, the Defendant reported that it was continuing to excavate and that it "unfortunately continue[d] to expect to encounter leachate which emits odour" (SOAF at par 133). 6. Apart from commercial imperatives to keep working, that it was reasonable in a practical sense for the Defendant to stop work given the state significant project status of WestConnex is not demonstrated by the Prosecutor and I do not give this submission of the Prosecutor much weight. As the Defendant submitted it was also in the community's interests for the project to be completed so that the inconveniences and impacts of a large construction project ended as soon as possible. Extent to which the person who committed the offence had control over the causes that gave rise to the offence (s 241(1)(d)) 1. It is an agreed fact that the Defendant had ultimate control of the Premises from which the offensive odour emanated (SOAF at par 50). It is also agreed that the odour was caused by waste beneath the premises being exposed to air by works carried out by the Defendant (including its contractors and subcontractors) (SOAF at par 151). The Defendant did submit that the offences arose because its contracted expert did not use the appropriate rainfall figures resulting in a leachate system which lacked the necessary capacity for the unique site where it did not have in-house or other expertise in landfill management. A matter within the Defendant's control was ensuring that it had the appropriate expertise on such a large and complex project on a challenging site. The Defendant did have control over the causes of the offence. Conclusion on objective seriousness 1. Both parties accept that the matter is in the mid-range of objective seriousness but differ as to where in that range. I agree that in light of the matters referred to above the offences fall within the mid-range. I agree with the Prosecutor that the environmental harm caused including to human health was serious and the offences can be considered at the upper end of the mid-tier range. Charge 3 in particular was described by the experienced EPA officer Ms McGuirk as the worst odour she had experienced and it was prolonged over many hours. None of the offences were transient and all affected people living nearby, several severely in terms of health impacts, including within their homes. Subjective circumstances 1. Section 21A(3) of the CSP Act sets out mitigating factors to be taken into account where relevant in determining the appropriate sentence. Early pleas of guilty (ss 21A(3)(k), 22) 1. Under s 22(1) of the CSP Act, the Court must take into account the fact that an offender has pleaded guilty. The Court of Criminal Appeal has stated that the appropriate range for such a discount is 10 to 25 percent: R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152]. 2. The Prosecutor submitted that the Defendant entered pleas of guilty on 5 October 2018 approximately five and a half months after the date of the summons (24 April 2018). The proceedings were first mentioned on 8 June 2018 by which time the Prosecutor's evidence had been served and then went over to 6 July 2018. While the pleas were not entered at the earliest possible opportunity, they were entered at a relatively early stage of the proceedings. 3. The Defendant submitted that it pleaded early in the proceedings. The Defendant agreed with the Prosecutor that rather than awaiting completion of the service of a brief, the Defendant would determine its pleas on limited material without the Prosecutor serving all of its evidence. In similar circumstances in Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd [2007] NSWLEC 466, the defendant entered a guilty plea on the third mention date which the Court considered an early plea at [146]. 4. I accept that the Defendant entered an early guilty plea albeit not at the earliest opportunity and is entitled to a substantial discount on penalty to reflect this. No prior convictions (s 21A(3)(e)) 1. The Defendant has no prior convictions for environmental offences. Good character (s 21A(3)(f)) 1. The Defendant submitted that it is a good corporate citizen relying on Ms Pittaway's affidavit. Ms Pittaway described at [24] above various examples of the Defendant's commitment to "good corporate citizenship" including the provision of internships for indigenous students, connecting with indigenous businesses and helping refugees and asylum seekers find professional employment inter alia. 2. I accept the Defendant is of good character. Unlikely to reoffend (s 21A(3)(g)) 1. As described by Ms Pittaway in her affidavit above at [22], the Defendant is a very large commercial entity responsible for major construction projects. These are the first environmental offences it has been charged with. Considerable resources have been made available to deal with the substantial operational challenges which resulted in the offences as identified in the SOAF at par 158 and in the affidavits of Mr Silvester dated 16 and 19 September 2019 at [31]-[32] above. I consider the Defendant is unlikely to reoffend. Remorse (s 21A(3)(i)) 1. Under s 21A(3)(i) remorse shown by the offender for an offence can be relevant, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) … 1. Mr Silvester apologised on behalf of the Defendant in his affidavit above at [29] and extensive measures have been taken since the offences (including the earlier commissioning of a new leachate treatment plant on 23 June 2017) and at the time of the offences (see par 158 of the SOAF and Mr Silvester affs above at [31]-[32]). I accept that the Defendant is remorseful for the offences. Assistance by offender to law enforcement authorities (s 21A(3)(m)) 1. The Defendant fully cooperated with the EPA in the investigation (see SOAF at pars 160-163). The Defendant has also cooperated by agreeing to a statement of facts and the agreed expert position statement for the purposes of sentencing. Deterrence 1. General deterrence is an important factor in sentencing for environmental offences. As held by Preston CJ in Bentley at [139]-[140]: The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597 to 598. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at paras 85 and 93 per Lloyd J. 1. Specific deterrence is a principle of sentencing pursuant to s 3A(b) of the CSP Act. No specific deterrence is warranted for this Defendant. Totality 1. The sentencing principle of totality is relevant where more than one similar offence is committed to ensure that the sum of any fines imposed is not disproportionate to the total criminality of a defendant: Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [98] citing Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; and Pearce v The Queen (1988) 194 CLR 610; [1988] HCA 57. As there are several offences arising essentially from the same circumstances relatively close together in time I will apply the totality principle in setting penalties. Even-handedness 1. The sentencing principle of even-handedness provides that like offences should generally receive like penalties subject always to recognition of the individual circumstances of a case. Cases concerning similar offences were summarised in Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131 at [143]-[147]. All cases were determined before the increase in penalty in 2006. 2. In Hunter Valley Energy Coal, the company prepared a number of shots at its coal mine. Detonation of the blast was required to be delayed until the final day of the recommended "sleep time" due to an extended period of wet weather and unsuitable winds. Whilst the company detonated a number of blasts during the morning of the final day of the "sleep" period without incident, the final blast detonated in the afternoon generated fumes. The fumes were attributed to a change in the wind direction shortly after the blast which proceeded to blow fumes across a neighbouring industrial estate and impacted on the health of seven workers. The Court found that the offence against s 129 of the POEO Act was towards the low end of the mid-range of objective seriousness because: 1. the environmental harm was transitory and to amenity rather than human health. Those affected experienced relatively minor symptoms which resolved quickly; 2. the company had practical measures in place for controlling the impacts of blasting at the site and additional measures were implemented to ensure that a similar incident did not occur; 3. the change in wind direction was not entirely predictable; and 4. the company had partial but not total control over the causes of the offence given the difficulties of wind prediction. 1. Relevant subjective factors included the company's early plea of guilty, lack of prior convictions, assistance to investigating authorities, genuine remorse and good character. After a discount of 35 percent was applied to the original penalty of $90,000, the company was required to pay $58,500 to the local council in addition to $30,000 in prosecution costs. 2. Environment Protection Authority v Wambo Coal Pty Ltd (Wambo Coal) [2016] NSWLEC 125 is the most recent case concerning a breach of s 129 of the POEO Act to consider odour. It involved the emission of offensive odours associated with fumes generated by mine blasting. The offence fell into the low-end of the middle range of objective seriousness because: 1. there was actual harm to the health of six neighbouring residents who were exposed to the fume and experienced itchy, stinging eyes; sore throat; headache; difficulty breathing and a dry mouth, and had their comfort and/or repose interfered with. Such harm was of limited duration and seriousness due to the generally short exposure times; 2. there were two practical measures that the company could have taken to prevent, control or mitigate the harm arising from the offence, using more proximate weather stations and notifying persons likely to be affected by the fumes by text message; 3. the harm was entirely foreseeable since the company was aware that mine blasts could produce fumes and associated odour, and had knowledge of wind conditions and the location of the affected residents; and 4. the company did have general control over the blasting procedure despite the difficulties associated with wind prediction. 1. Relevant subjective factors included the company's early plea of guilty, good character, its assistance to the prosecutor, its attempts to improve its practices and its remorse. The company had a prior conviction for a breach of s 129 of the POEO Act which was considered an aggravating factor because of its "striking similarity" to the offending behaviour in this case. The company was fined $60,000 (after a one-third discount was applied to the original penalty of $90,000) and it agreed to pay the prosecutor's costs. 2. I have found that the offences are in the upper range of the mid-tier range of objective seriousness. These offences are more serious than those in Hunter Valley Energy Coal and Wambo Coal. Additional orders (s 250 POEO Act) 1. Section 250(1)(a) of the POEO Act provides that the Court may "order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person". Such an order is appropriate. The parties have agreed the text of a publication order in relation to local and national newspapers, on-line and in the parent company's next annual report. 2. Section 250(1)(e) provides the Court can make an order that a specified amount be paid to the Environmental Trust. The parties have proposed that such an order be made in lieu of a fine and I will adopt this course. Section 244(3) of the POEO Act enables such as course without the imposition of a penalty. Prosecutor's legal and investigation costs 1. The Defendant has agreed to pay the Prosecutor's costs in the amount of $140,000. Investigation costs of $10,000 will also be ordered to be paid by the Defendant. Appropriate penalty 1. When sentencing, the Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a "value judgment as to what is the appropriate sentence given all the factors of the case": Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J). 2. Taking into account the objective and subjective matters identified above I consider that had I been minded to impose a penalty the appropriate amount for Charge 3 (no 18/129665) would be $250,000 which I would reduce by 30 percent in light of the mitigating factors to $175,000. 3. Taking into account the objective and subjective matters identified above I consider that had I been minded to impose a penalty the appropriate penalty for Charge 1 (no 18/129666) would be $80,000. 4. Taking into account the objective and subjective matters identified above I consider that had I been minded to impose a penalty the appropriate penalty for Charge 2 (no 18/129664) would be $20,000. 5. Taking into account the objective and subjective matters identified above I consider that had I been minded to impose a penalty the appropriate penalty for Charge 4 (no 18/129667) would be $20,000. Orders 1. The Court orders: 1. In proceedings No 18/129664 the Defendant is convicted of the offence against s 129(1) of the Protection of the Environment Operations Act 1997) (POEO Act) in that on or about 23 May 2017 it was the occupier of premises at which scheduled activities were carried on under the authority conferred by a licence and it caused the emission of an offensive odour from the premises to which the licence applied. 2. In proceedings No 18/129665 the Defendant is convicted of the offence against s 129(1) of the POEO Act in that on or about 26 May 2017 it was the occupier of premises at which scheduled activities were carried on under the authority conferred by a licence and it caused the emission of an offensive odour from the premises to which the licence applied. 3. In proceedings No 18/129666 the Defendant is convicted of the offence against s 129(1) of the POEO Act in that on or about 27 April 2017 it was the occupier of premises at which scheduled activities were carried on under the authority conferred by a licence and it caused the emission of an offensive odour from the premises to which the licence applied. 4. In proceedings No 18/129667 the Defendant is convicted of the offence against s 129(1) of the POEO Act in that on or about 9 June 2017 it was the occupier of premises at which scheduled activities were carried on under the authority conferred by a licence and it caused the emission of an offensive odour from the premises to which the licence applied. 5. Pursuant to s 248(1) of the POEO Act the Defendant is to pay the Prosecutor's costs and expenses reasonably incurred during the investigation of the offences in the amount of $10,000. 6. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the Defendant is to pay the Prosecutor's costs in the agreed amount of $140,000. 7. Pursuant to s 250(1)(e) of the POEO Act the Defendant is ordered to pay within 28 days of this order $295,000 to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes. 8. Pursuant to s 250(1)(a) of the POEO Act the Defendant is, at its own expense and within 28 days of the date of this order, to cause a notice in the form of Annexure A to this order to be placed within the first 11 pages of the following publications, at a minimum size of 14 cm x 13 cm: 1. The Australian Financial Review, 2. The Sydney Morning Herald; and 3. Inner West Courier. 1. Pursuant to s 250(1)(a) of the POEO Act, the Defendant is, within 14 days of the date of this order, to cause a notice in the form of Annexure A to this order to be placed on the website https://www.cpbcon.com.au/. 2. Pursuant to s 250(1)(a) of the POEO Act, the Defendant is to: 1. within 14 days of the date of this order, publicise the offences and the orders made against it by posting the text of Annexure A to this order on its Facebook homepage, https://www.facebook.com/CPBContractors/, together with a hyperlink to the Court's judgment as published on the New South Wales Caselaw website and tagging the EPA's Facebook profile https://www.facebook.com/pages/category/Public--Government­ Service/NSW-Environment-Protection-Authority-348147535752448/, and "pinning" the post to its Facebook homepage for 7 days and retaining the post for a minimum of 30 days from publication; 2. within 14 days of the date of this order, publicise the offences and the orders made against it by tweeting a photo of the WestConnex MS St Peters Interchange and the following text from its Twitter account, https://twitter.com/cpbcontractors, as a "pinned tweet" for seven (7) days and retaining the post for a minimum of 30 days from publication: @CPBContractors prosecuted by@NSW_EPA & convicted of four offences of causing offensive odour at the WestConnex MS St Peters Interchange in 2017. Ordered to pay $295,000 #westconnex #m5 #environment #stpetersinterchange #sydney [insert hyperlink to judgment as published on NSW Caselaw website] 1. Within 35 days of the date of this order, the Defendant must provide to the Prosecutor a complete copy of the pages of the publications and website in which the notices have appeared pursuant to Orders 8, 9 and 10. 2. Pursuant to s 250(1)(b) of the POEO Act, the Defendant is to cause CIMIC Group Limited (ACN 004 482 982) to include a statement consistent with Annexure C to this order to be included in the next Annual Report of CIMIC Group in a manner that is consistent with its legal obligations and ASX reporting requirements. 3. Pursuant to s 250(1)(b) of the POEO Act, the Defendant is to cause a notice in the form of Annexure B to this order to be delivered to all street addresses: 1. In the area with postcode 2044 in NSW; 2. On Darley St and Lord St in Newtown, NSW 2042; 3. On Bedwin Rd, Edgeware Rd, John St and King St in Newtown, NSW 2042, south of their intersections with Darley St; 4. On Sydney Park Rd in Erskineville, NSW 2043; 5. On Sydney Park Rd, Barwon Park Rd, Campbell Rd and Burrows Rd in Alexandria, NSW 2015; and 6. On Euston Rd in Alexandria, NSW 2015, south of its intersection with Sydney Park Rd. 1. The exhibits are returned ANNEXURE A - Annexure A (7.50 KB, pdf) Annexure A (7.50 KB, pdf) Annexure A (7.50 KB, pdf) ANNEXURE B - Annexure B (5.04 KB, pdf) ANNEXURE C - Annexure C (6.46 KB, pdf) ********** 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. Decision last updated: 27 September 2019