CASE TABLES Vol 2

2 Judicial Commission of NSW Transparent and consistent sentencing in the Land and Environment Court NSW: orders for costs as an aspect of punishment 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 not specified 14 1 EPA v Bulga Coal Management Pty Ltd [2014] NSWLEC 55 Low Low Corporation $65,000 As assessed N/A Not known Not known Defendant a company operating a coal mine. A small intermittent waterway was polluted with coal mine tailings when a broken pipe caused a collection dam to overflow [3](37)–(41). The total internal cost to the defendant of the clean-up of the incident was $94,550 and the total external cost of the clean-up was $193,440 [3] (66). This was one of the mitigating factors contributing to a 35% discount in penalty [45]. Corporate defendant fined $65,000 and ordered to pay the prosecutor’s costs as agreed or assessed. No s 250(1)(a) publication order made. 15 2 Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77 Low Low Corporation $25,000 As assessed N/A Not known Not known Defendant a company that manufactures resin products. Up to 50 litres of resin entered a stormwater drain after overflowing from a bulk container which was not attended to whilst being filled [18]. The stormwater system eventually leads to a creek and a larger saltwater estuary [20]. Immediate preventative and clean-up actions taken [19], [21]. Defendant ordered to pay the prosecutor’s costs of the proceedings as agreed or assessed. Investigation costs totalled over $5,800 [110]. No s 250(1)(a) publication order made. 16 3 Wollongong City Council v Belmorgan Property Development Pty Ltd [2008] NSWLEC 291 Low Serious Corporation $40,000 As assessed N/A Not known Not known Defendant a property development company. An automotive workshop, being demolished, housed an underground tank containing an unidentified amount of oil. Rainwater from a faulty gutter inundated the area and flooded the underground tank. The contaminated rainwater overflowed and entered a stormwater system that exited into a golf course’s waterways and local wetlands [1], [97]. The environmental impact was serious (even though short-term) [99]. The facts disclosed an “objectively low degree of criminality on the part of the defendant” [118]. The corporate defendant was fined $40,000 and ordered to pay the prosecutor’s costs as agreed or assessed. No s 250(1)(a) publication order made. Mean $43,333 Median $40,000 Single offence, Additional Order in lieu of fine, costs specified 17 1 EPA v Greater Taree City Council [2014] NSWLEC 88 Medium Low Corporation* N/A $57,492 $50,000 $107,492 53.5% Defendant a regional council operating a solid landfill waste facility. A pipe failed at the point of an earlier repair, pumping contaminated water (leachate) into an unnamed watercourse and then into a creek. Over 535,000 litres of contaminated water were pumped out of these waterways as part of the clean-up [19](9)–(12). The defendant was ordered, in lieu of a fine [52], to pay an amount of $37,500 towards the “Taree Urban Waterways Riparian Regeneration Project”, with the court noting the defendant’s voluntary undertaking to increase that contribution to $50,000 [53]. A s 250(1)(a) publication order was also issued. 18 2 EPA v Peak Gold Mines Pty Ltd [2013] NSWLEC 158 Low Low Corporation* N/A $56,568 $50,000 $106,568 53.1% Defendant a company operating a copper-gold processing plant. As a result of heavy rainfall, contaminated water (containing mine tailings) discharged from the tailings dam into a clean water drain, dispersing into surrounding bushland at the end of the drain. The discharge of the contaminated water into the drain constituted pollution of waters [1]–[4]. The defendant was ordered, pursuant to s 250(1)(e) of the POEO Act , to pay $50,000 to the Cobar Shire Council to contribute to the expansion of the council’s Effluent Reuse Project [35]. A s 250(1)(a) publication order was also issued. 19 3 EPA v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 Low Low Corporation* N/A $28,500 $50,000 $78,500 36.3% Defendant a company operating an open cut coal mining facility. Heavy rainfall caused sediment laden waters to flow through a pipe installed through sediment control structures along a gully and into a creek [1]. Court instructed that “before imposing sentence the parties should explore whether a suitable project for the making of an environmental services order under s 250(1)(e) is available” [76]. Defendant agreed to pay the prosecutor’s costs of $26,500 and investigation costs of $2,000. A s 250(1)(a) publication order was also issued. 20 4 EPA v Queanbeyan City Council (No 3) [2012] NSWLEC 220 Medium Low Corporation* N/A $344,189 $80,000 $424,189 81.1% Defendant a regional local council. Due to a pump failure at a council operated sewage pump station, sewerage overflowed and found its way into the Queanbeyan River [2], [70]. In lieu of a fine, defendant must pay the Murrumbidgee Catchment Management Authority the sum of $80,000 to be used for the Numeralla East Landscape Project [282]–[283]. A s 250(1)(a) publication order was also issued. 21 5 EPA v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 Medium Low Corporation* N/A $121,464 $77,000 $198,464 61.2% Defendant a small company running a coastal rural property. Discharge of sediment-laden water from dam under repair into the waters of the Port Stephens — Great Lakes Marine Park [2]. Pollution was deemed accidental [99]. Over $450,000 spent on remediating the site to a “permanently safe condition” [131]. Defendant ordered to pay Great Lakes Council the sum of $40,000 for stabilisation and remediation of tracks within a local nature reserve; plus $37,000 to the Marine Parks Authority for the installation of “seagrass friendly moorings” in place of “dump and chain” swing moorings within a local marine park [154].The defendant agreed to pay the prosecutor’s legal costs of $120,000 and also its investigation costs of $1,464 [134]. A s 250(1)(a) publication order was also issued. 22 6 EPA v Austar Coal Mine Pty Ltd [2011] NSWLEC 252 Low Low Corporation* N/A $42,269 $75,000 $117,269 36.0% Defendant a coal mining company. Polluted water containing detergent and effluent from a work bathhouse escaped a mining site into a piped section of a creek [2]–[8]. Defendant agreed to pay the prosecutor’s professional legal costs of $25,000 and investigation costs of over $17,000 [45]. The defendant ordered to pay to the Hunter-Central Rivers Catchment Management Authority the amount of $75,000 to be used for the Mount View Corridor Threatened Species Habitat Rehabilitation Project [66]. A s 250(1)(a) publication order was also issued. 23 7 EPA v Sibelco Australia Ltd [2011] NSWLEC 160 Medium Medium Corporation* N/A $35,000 $78,000 $113,000 31.0% Defendant a company that operates a small open cut mine. Unintentional discharge of sediment laden water into creek by small open cut mine caused by a dam wall unexpectedly collapsing [1]. Affected waterway is “the primary source of drinking water for several residents in the area. It is also a primary source of stock watering” [52]. Clean-up costs totalled $640,000 [46] but deemed “not relevant to determination of the penalty” [101]. Defendant to “pay to Hunter Central Rivers Catchment Management Authority ... the amount of $78,000 to be used for general environmental purposes” for local projects [105]. Prosecutor’s costs added another $35,000 to the defendant’s monetary impost. A s 250(1)(a) publication order was also issued. 24 8 EPA v Chillana Pty Ltd [2010] NSWLEC 255 High Serious Corporation* N/A $58,071 $60,000 $118,071 49.2% Defendant a privately-owned abattoir. A large quantity of untreated abattoir effluent escaped from a fractured pipe and found its way to a tributary and then a major inland river [11]–[16]. “‘Actual’, and temporarily quite serious, environmental harm was clearly caused” [69]. An environmental consultant previously recommended that the defendant install flow metres in order to quickly detect breaks in the pipes [25]. Clean-up costs were “$7,400 and at least 200 hours of employee labour” [20], plus $3,500 and 237 hours of employee time to prevent a recurrence [81]; these costs were considered in sentencing [85]. However, there was no reduction in penalty simply because the effluent was discharged into degraded waters [70]. Defendant was ordered to pay to the Land and Property Management Authority the sum of $60,000 for a restoration and enhancement project on the banks of the Castlereagh River [119]. Investigation expenses and estimated legal costs totalled over $58,000 [100]. A s 250(1)(a) publication order was also issued. 25 9 EPA v Centennial Newstan Pty Ltd [2010] NSWLEC 211 Medium Low Corporation* N/A $38,500 $105,000 $143,500 26.8% Defendant a company operating an underground coal mine. Between 1.4 megalitres and 1.8 megalitres of water carrying between 6 and 14.6 tonnes of coal dust sediment discharged from a coalmine’s pipeline into a creek and a wetland [29]–[31]. Defendant spent $250,000 in undertaking clean-up and rehabilitation operations: this was viewed as a mitigating factor [102]–[103]. In lieu of a fine, defendant ordered to pay $105,000 to Lake Macquarie City Council for its Ecosystem Enhancement Operations Program [126]. Prosecutor’s costs and expenses totalled $38,500. A s 250(1)(a) publication order was also issued. 26 10 EPA v George Weston Foods Ltd [2010] NSWLEC 120 Medium Medium Corporation* N/A $30,000 $67,000 $97,000 30.9% Defendant an animal nutrition supplies business operating a stock feed manufacturing plant. A fault in a steam pipe within a collection tank allowed vegetable oil/ tallow blend to escape via a drainage pipe, into a stormwater drainage system and ultimately into a large inland river [21]. Defendant ensured that it met the full costs of that clean-up of over $30,000, plus donated $8,000 to the Tamworth branch of the State Emergency Service for its assistance in the clean-up [66]. These were amongst the factors “recognised favourably” by the court [68]. In lieu of a fine, defendant ordered to pay Tamworth Regional Council $67,000 to fund the Peel River Riparian Project Stage 2 [89]. A s 250(1)(a) publication order was also issued. 27 11 EPA v Baiada Poultry Pty Ltd [2008] NSWLEC 280 Low Low Corporation* N/A $34,872 $120,000 $154,872 22.5% Defendant a company operating a poultry rendering plant. One million litres of effluent escaped from a defective weld in an underground pipeline that conveys effluent from the plant to a council owned sewer line. The effluent ran within an unnamed drought-affected (dry) watercourse for over one kilometre [2]. Clean-up and rectification costs in excess of $44,700 [18] — a mitigating factor [54] taken into consideration. Four prior convictions for environmental offences but current offence not viewed as part of a continuing disobedience of the law [42], [50]. Defendant ordered to pay Tamworth Regional Council $120,000 to fund the North Bolton’s Creek — Extension of the Grassy Box Woodland Conservation Project [63]. Also ordered to pay almost $35,000 in prosecutor’s costs and expenses [63]. A s 250(1)(a) publication order was also made. 28 12 EPA v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187 Low Serious Corporation* N/A $28,000 $100,000 $128,000 21.9% Defendant a small chemical manufacture business. Around 1,700 litres of diluted sulphuric acid stored in an unsuitable container escaped and flowed into a stormwater channel and into an ephemeral watercourse [2], [6], [9]. A potential for greater harm to a nature reserve would have occurred but for prevailing dry conditions and the thorough clean-up which alleviated the risks [10]. The capacity of the company to respond effectively to acid spills was less than optimum [17]. “The spill was objectively serious in every way. Actual harm is admitted, and very serious harm could easily have been caused” [17]. In lieu of a fine, $100,000 to be administered to the Shoalhaven Riverwatch Landcare Group and/or other similar group for the purposes of restoration and erosion control works on the Shoalhaven River [23]. Prosecutor’s costs at $28,000. A s 250(1)(a) publication order was also made.