Council Penalised for Accidental Spill of Landfill Leachate

The Land and Environment Court has ordered the Greater Taree Council to pay a contribution of $37,500 (in lieu of penalties) towards a bushland regeneration project as punishment for a pollution incident that occurred at the Council's solid waste landfill in April 2012.  The sentence, which was imposed by Justice Sheehan, also required the Council to publish notice of the offence in the newspaper that circulates in the Council's local government area, and directed the Council to pay the EPA's investigative and legal costs associated with the prosecution of nearly $60,000. 

The Court's judgment is reported at Environment Protection Authority v Greater Taree City Council [2014] NSWLEC 88 and can be found at the following link: 

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172420

The proceedings against the Council were brought in response to a spill from a pipeline that carried leachate from collection ponds at the landfill to a local sewage treatment plant.  Even though the landfill itself was operated by a private contractor, the Council was named as the sole defendant in the prosecution because under the terms of the contract the Council remained responsible for management of the pipeline.

The decision in this case is of particular interest because the Council received limited mitigation of the amount of the monetary contribution it was required to make in lieu of penalties even though it had conducted itself in virtually all respects as a "model defendant". Justice Sheehan's judgment recites that the only factor for which a discount on penalty was given was the Council's early plea of guilty. Ordinarily, the Court takes into account matters such as the defendant's prior record of environmental compliance,  the measures taken to limit the environmental harm associated with a pollution spill and to prevent a recurrence, as well as the defendant's cooperation with the prosecutor and expression of contrition and remorse. However, it appears from Justice Sheehan's judgment that these factors were not given any particular weight in the determination of the ultimate punishment.

The judgment in the case certainly suggests that the Council conducted itself in an unusual and exemplary manner following the discovery of the pollution incident.  Approximately 45 tanker truck loads of contaminated water, amounting to more than half a million litres, was pumped from the receiving streams and transported back to leachate collection ponds at the landfill. The Council also implemented a number of measures to prevent a similar breach from happening in the future, including planning for the design and construction of a new leachate pipeline to be located away from any watercourses and implementing comprehensive measures to monitor the existing pipeline to enable early detection and response to any possible future pipeline leaks. Furthermore, the Court's judgment indicates that the Council arranged for several senior officers to attend the hearing on sentence that was held by the Court to confirm the Council's contrition with respect to the incident, and an affidavit was also prepared by the Council's general manager which attested to the Council's sincere and genuine regret and apology. Additionally, Justice Sheehan stated that he accepted that the Council was a defendant that had an "excellent corporate character".

It has been the Court's normal practice to give weight to such mitigating factors, to balance them against objective sentencing factors including the level of environmental harm caused by an incident as well as the degree to which the incident could have been foreseen, and then to arrive at a conclusion concerning the appropriate penalty through a process of "instinctive synthesis" (in other words, giving consideration to all relevant matters and then reaching a conclusion concerning the just and fair disposition of the case).  

It is not apparent from Justice Sheehan's judgment why the Court did not see fit to give greater importance to the mitigating factors which were present in this case, especially in view of the fact that the level of environmental harm occasioned by the spill also appeared to be relatively low. 

Nonetheless, it is our view that the approach adopted by the Council in this case, both in its response to the pollution incident and in dealing with the proceedings before the Court is one that should commend itself and which offers an example of a course of conduct that may lead to more lenient treatment by the Court when it comes to fines.