A recent judgement by Justice Pepper of the Land and Environment Court has again re-enforced how strongly the concept of strictly liability will be applied in pollution prosecutions in New South Wales. The case, Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80, illustrates that the operator of a manufacturing plant may be convicted of a criminal offence and required to pay substantial penalties even where the ultimate causes of a pollution incident can be traced to the deliberate actions of a rogue employee.
The proceedings in Big River involved a spill of an estimated 6000 litres of a resin from the company's plywood manufacturing plant in Wagga Wagga. The resin was kept in large storage tanks in a bunded room at the plant premises, and was used to glue layers of wood veneer together to produce structural plywood.
The spill that led to the prosecution occurred when an employee gained access to the plant premises during the middle of the night and activated a pump that was used to transfer the resin to a mixing tank. The pump ran unattended for about an hour, causing the resin to overflow from the mixing tank. It then flowed under a gap between the floor and the wall of the room where the mixing tank was located and entered the plant's internal stormwater system. Ultimately, the resin entered into external stormwater pipes and ran into a freshwater wetland.
A few months before the spill that occasioned the prosecution, there had been another incident in which resin had been found in the stormwater system outside the plant. Following this earlier event, the Department of Environment Conservation and Climate Changed had warned that it would take regulatory action if resin were to be found again in the stormwater system. Thus, following the major spill of resin into the wetland, the DECC prosecuted Big River for a water pollution offence under section 120(1) of the Protection of the Environment Operations Act.
Justice Pepper determined that it was appropriate to impose fines on the plant operator, despite the fact that the chain of events that led to the spell was caused by the deliberate misconduct of an employee. Her Honour found that as a result of the previous incident, it should have been forseeable that resin could flow into the external stormwater system if the contents of the mixing tank overflowed. Justice Pepper also determined that practical measures could have been taken to prevent the spill, including enclosing the internal stormwater system at the plant.
Although the company had spent nearly $130,000 cleaning up the spill and another $45,000 to implement measures to prevent a recurrence of the incident, the Court nonetheless concluded that the offence warranted penalties of $100,000, which was discounted to 67,000 to take account of various mitigating factors. An order was also made requiring to pay the prosecutor's professional costs of $35,000 and investigative costs of nearly $25,000.
The result in this case teaches important lessons for manufacturers and other businesses that are involved in handling potentially polluting substances, namely:
* Penalties may be imposed even where a spill is completely accidental or is caused by the intentional misconduct of an employee if the business operator has not taken adequate measures to contain any possible spillage and to prevent a water pollution incident.
* Thorough environmental audits must be conducted - especially in the case of older facilities, or when existing plants are purchased by new operators - to ensure that areas where polluting substances are handled have sufficient bunding and other containment measures and that stormwater drains are protected against the accidental inflow of pollutants.
No comments:
Post a Comment