CASE TABLES Vol 2

Research monograph 40 CASES TABLE 1 1 CASES TABLE 1: POLLUTE WATERS OFFENCES IN THE NSW LAND AND ENVIRONMENT COURT: 2000–2015 PROTECTION OF THE ENVIRONMENT OPERATIONS ACT (from May 2006; current regime as at date of publication): s 120 Maximum penalty: Corporations: $1,000,000 plus $120,000 per day for a continuing offence   Individuals: $250,000 plus $60,000 per day for a continuing offence N Category count Citation Objective seriousness Environmental harm Class of offender Fine amount Prosecutor’s costs Environmental payment (Epay) Fine (and/ or Epay) plus costs (“Total”) Prosecutor’s costs as % of “Total” cost Case details Single offence, fine only, costs specified 1 1 EPA v KBL Mining Ltd [2014] NSWLEC 178 Medium Medium Corporation* $52,000 $61,390 N/A $113,390 54.1% Defendant a polymetal mining company. A split coupling allowed liquid tailings to escape and enter an unnamed ephemeral stream [1]. Clean-up and remediation costs of $80,000 viewed a mitigating factor [90]. Fined $52,000 plus ordered to pay prosecutor’s costs totalling $61,390. A s 250(1)(a) publication order was also issued. 2 2 EPA v Coal and Allied Operations Pty Ltd [2013] NSWLEC 134 Low Low Corporation* $45,000 $51,000 N/A $96,000 53.1% Defendant a large open cut coal mining company. Sediment laden waters built up and overflowed following heavy rainfalls and discharged into local waterways [2]. Inadequate sediment and erosion control measures were being rectified at the time at a cost of $517,000 [75]. This was viewed as an aspect of the defendant’s remorse, which was considered a mitigating factor [113]. Fined $45,000 plus ordered to pay prosecutor’s costs of $51,000. A s 250(1)(a) publication order was also issued. 3 3 EPA v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 Medium Medium Corporation* $112,500 $63,314 N/A $175,814 36.0% Defendant a mining company. Sediment laden waters resulting from heavy rainfall [34] entered ephemeral creek and then a major inland river [2]. Additional sediment and erosion control measures undertaken (cost unspecified) [18]–[26]. Defendant considerd remorseful [113]. However, “the business of the defendant does not appear to have been arranged with sufficient expedition to ensure that pollution would not occur” and the measures undertaken to date were not considered a mitigating factor [113]–[114]. Prior conviction 6 months earlier [87] [see Case No 4]. Fined $112,500 plus ordered to pay prosecutor’s costs totalling $63,314. A s 250(1)(a) publication order was also issued. 4 4 EPA v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Medium Low Corporation* $105,000 $61,632 N/A $166,632 37.0% Defendant a mining company. One offence involving four separate discharges of sediment laden waters which entered ephemeral creek and then major inland river [17]. Result of undertaking extensive earthworks without sediment and erosion control structures being in place [60]; rainfall was “unexceptional” [62]. Potential existed for serious environmental harm [58]. No evidence of any action having been taken by the defendant to remove sediment from the creek or river or otherwise address the consequence of these discharges [86]. Fined $105,000 plus ordered to pay prosecutor’s costs totalling $61,632. A s 250(1)(a) publication order was also made. 5 5 EPA v Big River Group Pty Ltd [2011] NSWLEC 80 Medium Medium Corporation $67,000 $59,645 N/A $126,645 47.1% Defendant a plywood manufacturing company. Resin overflow entered stormwater drain and eventually an extensive wetland system [3], [20]. Malicious and deliberate act of one of its employees on the premises that night [37]. Upgrades and conversions to mechanisms/systems to prevent further incidents [50]–[52]. Environmental harm was in the low to moderate range [75]. Limited weight placed on two prior convictions over 20 years old [100]–[101]. Fined $67,000 plus ordered to pay prosecutor’s costs totalling $59,645. No s 250(1)(a) publication order made. 6 6 EPA v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114 Medium Low Corporation $50,000 $24,000 N/A $74,000 32.4% Defendant a mining company. Between 1,000 to 3,000 tonnes of toxic slimes material spilled from the defendant’s gold and antimony mining plant, escaped over a lowered section of an earthen bund and then travelled along the dry bed of an unnamed creek [4]. The defendant knew that the reduced height of the bund posed a risk to the environment but took no steps to raise the lowered part of the bund to contain the slime and to stop processing until the danger was overcome [67]. Clean-up and post-incident measures undertaken (no indication of cost) [44]–[46]. Defendant fined $50,000 plus legal costs of $11,000 and investigation costs of $13,000. No s 250(1)(a) publication order made. 7 7 EPA v Albury City Council [2009] NSWLEC 169 Low None Corporation $45,500 $18,044 N/A $63,544 28.4% Defendant a regional local council. A pump failure caused raw sewage to overflow into the Murray River via a stormwater drain and gully [2]. The overflow occurred because of the simultaneous malfunction of two pumps: low foreseeability [66]. A composite discount of 35% was applied resulting in a fine of $45,500 [96]. Defendant also to pay the EPA’s professional costs of $15,500 and its investigation costs of $2,544. No s 250(1)(a) publication order made. 8 8 EPA v Ross [2009] NSWLEC 36 Low Serious Small business owner** $18,000 $35,000 N/A $53,000 66.0% Defendant a small pest control business — prosecuted as an individual. Pesticide sprayed on foliage adjacent to the waters of a creek and fell or was washed or blown into the waters [1]. Hundreds of dead crayfish and hundreds of ill crayfish observed in the creek over the next two days [8]. “Serious environmental harm resulted from the spraying” [18]. No suggestion on the approved label or in the Material Safety Data Sheet or in the training that the defendant attended which suggested that the chemical could not be sprayed next to water or that a minimum buffer zone around a water body was necessary [46]. The defendant’s efforts to clean up contaminated sediment in the creek was a factor that led to a “smaller fine” [106]. Fined $18,000 and to pay prosecutor’s costs of $23,000 and investigation costs of $12,000. Also issued an order under s 250(1)(b) to lodge an Adverse Experience Reporting Form with Australian Pesticides and Veterinary Medicines Authority that includes the court’s judgment and orders [107, Addendum to Orders]. 9 9 EPA v Boral Australian Gypsum Ltd [2009] NSWLEC 26 Medium Medium Corporation $58,500 $23,000 N/A $81,500 28.2% Defendant a large corporation, in this case operating a plasterboard and cornice production plant. During batching, a sensor probe failed causing a liquid chemical to overflow into and then over a bunded area and enter an unnamed waterway running into the Parramatta River via onsite and offsite stormwater grates [1], [8]. Not particularly foreseeable that this offence could occur [35]. Rigorous environmental management systems in place with the defendant also taking “active steps to prevent a recurrence at the premises and at other plants it owns around Australia” [42]. Allowed a substantial (35%) reduction in penalty recognising the numerous mitigating circumstances [53]. Fined $58,500 plus costs totalling $23,000. No s 250(1)(a) publication order made. 10 10 EPA v Hanson Precast Pty Ltd [2008] NSWLEC 285 Low Medium Corporation $50,000 $22,000 N/A $72,000 30.6% Defendant owns and operates a pre-stressed concrete batching plant business. Between 200 and 300 litres of heat transfer oil escaped from its premises via the stormwater drainage system affecting about 200 metres of an unnamed watercourse [2]. The clean-up was efficiently handled and cost the defendant over $63,000 [73]. The defendant was fined $50,000 after a one-third discount for all mitigating factors including a 25% discount for the early guilty plea. Prosecutor’s costs added another $22,000 to the penalty. No s 250(1)(a) publication order made. 11 11 EPA v Fulton Hogan Pty Ltd [2008] NSWLEC 268 Medium Low Corporation $100,000 $86,187 N/A $186,187 46.3% Co-defendants: Snowy Hydro, as principal, entered into a construction contract with a civil construction company for dam upgrade works on the Snowy River. Sediment laden waters (containing soil, earth, etc) in plunge pool released into river. Court said it was obvious that the measures in place (eg silt curtain) were not working to prevent downstream pollution [163]. Nature of the harm was short-term: degradation of water quality and spoiling the aesthetic quality of the Snowy River [151]. Contractual liability costs claimed by Snowy Hydro against contractor not established nor taken into consideration in the sentencing decision [196]. Given “same sentence” as co-defendant [202]: fined $100,000 and ordered to pay $86,187 in prosecutor’s costs and investigation costs. No s 250(1)(a) publication order was made. 12 12 EPA v Snowy Hydro Ltd [2008] NSWLEC 264 Medium Low Corporation $100,000 $86,187 N/A $186,187 46.3% See Case No 11 above. The considerable costs and significant time and energy expended by Sydney Hydro in addressing the pollution incident, while not characterised as a “hardship” given its’s size and resources, was taken into account by court [205]. Not clear whether contracted company could successfully dispute any claim by Snowy Hydro under contracted indemnities: not taken into account [212]. Given “same sentence” as co-defendant [219]: fined $100,000 and ordered to pay $86,187 in prosecutor’s costs and investigation costs. No s 250(1)(a) publication order was made. 13 13 EPA v CSR Building Products Ltd [2008] NSWLEC 224 Medium Medium Corporation $280,000 $158,407 N/A $438,407 36.1% Defendant a large corporation in this case operating a building products manufacturing plant. A chemical spill resulting from a liquid transfer overflow affected around 1km of the Parramatta River [21]. The clean-up operation, including a claim by Sydney Ferries, cost over $83,000 [27]. The prosecutor accepted that the spill was accidental caused by a “fundamental system failure” compounded by human error [36]. Nonetheless, tile coating production should have been suspended [49]. Prior convictions were deemed old, and hardly comparable, and concerned industrial activities no longer performed by the defendant’s companies [50]. To the defendant’s “credit”, it agreed to pay the clean-up and other incidental costs incurred by various public agencies as a result of the spill [51]. The clean-up costs were considered in the final sentence [60]. Defendant fined $280,000 in the absence of any s 250 order acceptable to the court, plus legal costs of $75,000 and investigation expenses of $83,407. No s 250(1)(a) publication order made. Mean $83,346 $57,677 $141,023 40.9% Median $58,500 $59,645 $113,390 CASES TABLE 1