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.

Owner-Builder Winds Up In Hot Water For Carrying Out Unauthorised Building Works

The owner/builder of a house in Croydon Park has been fined nearly $10,000 and ordered to pay the Council's prosecution costs for failing to comply with the requirements of a development consent issued by Burwood Council. The judgment of Chief Justice Preston of the Land and Environment Court imposing sentence, Burwood Council v Pratelli (2014) NSWLEC 28, can be found at the following link:

http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=170522

The charges against the defendant alleged that she had not complied with two conditions of the development consent that had been granted to her by the Council, namely that she build the house in accordance with the plans that had been approved by the Council, and that she had failed to arrange for the building works to be inspected by an accredited private certifier at critical stages of the construction works.

The Council's main concern was that the defendant had carried out unapproved works to the "subfloor area". The Council's inspections revealed numerous aspects of non-compliance, including that the subfloor area had been excavated to a greater depth than allowed, thereby increasing the ceiling height of this part of the house; that windows had been installed to the subfloor space; that partitions had been constructed in the subfloor area, creating two rooms; and that access to the subfloor space had been created by the relocation of an internal staircase and by increasing the height of a door on an external wall of the house. 

Following the Council's discovery of the breaches of the development consent, the defendant undertook remedial measures, which included bricking up the windows that had been installed in the wall of the subfloor area and removing doors that provided access to the area. 

The factors taken into account by the Chief Justice in imposing sentence included the need to publicly denounce the defendant's conduct, to hold her accountable for her actions and to deter others from carrying out building works otherwise than in accordance with the requirements of a consent. In mitigation of the penalty, the Court found that the defendant was contrite and remorseful and thus unlikely to re-offend, that she had taken steps to rectify the unlawful works, and that she had agreed to pay the prosecutor's costs.

In passing judgment on the matter, Chief Justice Preston found that the circumstances of the case warranted a penalty of $13,000, which was reduced by 25%, to $9,750, to take account of the defendant's plea of guilty.

It is worthy of note that the judgment on sentence does not include any discussion concerning how the failure of the defendant to arrange for critical stage inspections was accounted for in the penalty, if at all. 

The decision offers a cautionary tale to owner/builders, namely that seemingly small-scale breaches of the provisions of a development approval can attract substantial fines and requirements to pay Council's legal costs, even in instances where the owner/builder has accepted responsibility for the offence and has undertaken remedial actions.

Amendments to POEO Require Internet Publication of Monitoring Results

Under section 66 of the Protection of the Environment Operations Act, the NSW EPA has been empowered to include conditions in licenses that require environmental monitoring. This monitoring can include sampling and testing of discharges to the air and to receiving waters, ambient conditions either at or outside a licensed premises, and operating and maintenance practices.

The recently adopted Protection of the Environment Legislation Amendment Act 2011 included additions to section 66 which will require licensees to publish any monitoring data that "relates to pollution" on their Websites.  Those licensees that do not maintain Websites that relate to the business or activity that is the subject of the Website will be required to provide copies of this monitoring data to any person who asks for it, and to do so at no charge. 

The monitoring data will have to be published within 14 days of the time that the monitoring data is obtained by the licensee.

The requirement to publish the data (or to provide it on request in cases where the licensee does not have a Website) will come into force for existing licensees on 1 July 2012. Monitoring data that is collected prior to 31 March 2012 will not be subject to the publication requirement.

The EPA has indicated that it intends to provide final guidelines with respect to the publication of environmental monitoring data by 30 March 2012. 

The amendments to section 66 of the POEO make it an offence either to fail to publish the monitoring data, or to provide data to the public that is false or misleading in a material respect.
The penalties for a breach are $4,400 for companies and $2,200 for individuals; it is a separate offence, and one that is subject to substantially more severe penalties ($1 million in the case of a corporation) to provide false or misleading monitoring data to the EPA.

It can be anticipated that the monitoring data that is published as a result of the amendments to section 66 will be carefully scrutinised by members of the public who live in close proximity to industrial premises, as well as by environmental advocacy organisations. Further, data that is made public due to these new requirements may be relied on as the basis for citizen lawsuits under section 219 of the POEO. Such lawsuits may be brought either to seek the imposition of monetary penalties, or to restrain or require the clean up of pollution.  Consequently, the introduction of the publication requirement should prompt licensees to exercise particularly strong vigilance to avoid committing a breach of the POEO. 

New Requirement for Pollution Incident Response Plans

Holders of environment protection licenses in New South Wales will be required to prepare and implement "Pollution Incident Response Management Plans" as a result of recent amendments to the Protection of the Environment Operations Act. Plans must be prepared for every licensed facility in the State by 1 September 2012. Licensees who fail to prepare these contingency plans, and those that fail to implement them may be subject to severe monetary penalties.

The requirement that licensees adopt Pollution Incident Response Management Plans was introduced to the POEO through the Protection of the Environment Legislation Amendment 2011. This amendment added several new sections to the POEO (153A - 153F). These sections specify the information that must be included in the Plans (153C), require that copies of the Plans be kept at the facilities to which they relate (153D), mandate that the Plans be tested for effectiveness annually (153E) and direct that the remedial measures that are detailed in the Plans be carried out when incidents occur that cause or threaten material harm to the environment (153E).

Similar types of emergency preparedness, management and response plans have been required by laws in the United States for many years. It is simply good environmental practice for facilities to have these plans. The process of preparing a plan can prompt the operator of an industrial premises to identify possible causes of spills and accidental releases of pollutants, and to take measures to prevent these incidents from occurring in the first place. Advance planning for environmental emergencies can also enable plant operators to minimise the extent of harm that is caused by an incident (and thus possibly to reduce the likelihood that a penalty action will be brought by regulators).

Section 153C of the POEO requires that Pollution Incident Response Management Plans must contain details concerning the steps that the facility will take to provide notice about an incident to regulators and to the owners and occupiers of properties in the area; regarding measures that will be taken to contain and remedy any pollution that occurs; and procedures for coordinating clean-up and response actions with the relevant governmental authorities. In addition, the EPA has adopted new regulations, through an amendment to the Protection of the Environment Operations (General) Regulation 2009, which describe with particularity the type of information that must be included in a Plan. A link to these new regulations is provided below: 
http://www.legislation.nsw.gov.au/sessionalview/sessional/sr/2012-54.pdf

Additionally, the EPA has adopted a set of guidelines that licensees can refer to as a resource when they prepare their Pollution Incident Response Management Plans. These guidelines are available at the following link: http://www.environment.nsw.gov.au/resources/legislation/201200227egpreppirmp.pdf

Licensees will need to act scrupulously to comply with their obligations in regard to Pollution Incident Response Management Plans.  While the courts of NSW have always considered whether a person responsible for a pollution incident has taken practical measures to prevent, control or mitigate environmental harm when determining the amount of a penalty (under section 241 of the POEO), licensees can now be fined directly for failing to have a Plan in place, or for failing to implement a Plan. The penalties for such breaches are severe - up to $1 million for not having a Plan and up to $2 million for not implementing a Plan. 

It can be anticipated that in future pollution prosecutions the EPA will pursue charges both for the underlying pollution incident and for any additional offences relating to the requirements pertaining to Pollution Incident Response Management Plans. There are therefore powerful incentives for companies that wish to avoid substantial penalties to comply strictly with their obligations with respect to these Plans.

Amendments to POEO Strengthen Requirement to Notify Pollution Incidents

Significant changes have been made to the Protection of the Environment Operations Act ("POEO")concerning the duty to notify the government about pollution incidents. These changes relate to when notification must be given; to who must be notified; and to the penalties that may be imposed for failure to comply with the duty to notify. 

The amendments to the notification requirements came into force on 6 February 2012, as a result of the enactment of the Protection of the Environment Legislation Amendment 2011. The adoption of the legislation was prompted by public outcry and a storm of media criticism concerning delays in notifying an incident involving a leak of hexavalent chromium into the air from a chemical plant near Newcastle that occurred in August 2011.

The duty to notify applies to all persons who have carried out activities that have either caused or threatened "material harm to the environment" - defined under section 147 of the POEO to mean actual or potential harm to the health or safety of human beings or ecosystems that is not trivial, or that results in actual or potential property loss or property damage greater than $10,000.  Consequently, the duty to give notification of pollution incidents extends not only to the holders of environment protection licenses issued under the POEO, but to any person who has caused a spill or release of pollutants involving material harm.

Under the amendments, section 148 of the POEO has been changed to require that notification  be given immediately after the reponsible person becomes aware of the pollution incident. Previously, section 148 required only that notification be provided "as soon as practicable". This prior wording of the legislation created substantial ambiguity concerning the time frame within which notice is required. The intent of the amendment is to make clear that the notice must be given promptly and without delay.

The amendments also expand the list of agencies that must be notified about a pollution incident. The former legislation specified only that the "appropriate regulatory authority" - usually either the EPA or the local council - be informed. Therefore, it was previously sufficient to notify only one branch of government. The amendments now specify that notice be given for every incident to each of five "relevant authorities", defined under the new section 148 to include the EPA, the appropriate council, the Ministry of Health, the WorkCover Authority and Fire and Rescue NSW.

The potential penalties that may be imposed for a breach of the notification requirement have been made substantially more severe. The maximum penalty is now $2 million in the case of a corporation, and $500,000 in the case of an individual, double the previous maximums.

In addition to these changes, the amendments introduce a new section to the POEO, section 151A, which empowers the EPA to require the occupier of premises where a pollution incident has occurred to notify other persons - such as commercial, industrial and residential neighbours or the general public - about the event. The EPA can give such a direction orally. 

It is indeed noteworthy, in light of the intensity of complaints from the public that they were not appropriately told about the hexavalent chromium leak, that the NSW Parliament did not see fit to require in the amendments that either occupants of neighbouring properties, or the public at large, be notified about every incident involving actual or threatened material harm to the environment.  Therefore, as the law now stands, it will remain within the discretion of the EPA to determine whether, and in what circumstances, a person responsible for a spill or leak must provide notice to members of the public who may be impacted by an incident.

Defendant Avoids Jail In Prosecution For Killing Cormorants

It is extremely rare that a prosecution for an environmental offence in New South Wales results in a custodial sentence. In fact, there have only been two occasions where an environmental offender has been incarcerated: 1) In Environmental Protection Authority v Charles Anthony Leslie Gardner (1997) NSWLEC 169, the defendant was imprisoned for 12 months for pumping hundreds of thousands of litres of untreated sewage from a concealed system of pipes into the Karuah River; 2) In Environment Protection Authority v Keogh (2000) NSWLEC 273, the defendant was sent to jail for 2 months on a charge of contempt after he failed to comply with Court orders that required him to clean up a site where he had dumped thousands of used tyres.

A recent prosecution brought by the NSW Office of Environment and Heritage under the National Parks and Wildlife Act nearly became the third case to be concluded with a jail term for the defendant. In that case, Lee v Office of Environment and Heritage (2012) NSWLEC 9, the defendant was actually sentenced to a prison term of 6 months in the Maclean Local Court. The prison sentence was set aside, and a monetary penalty was substituted, only following an appeal to the Land and Environment Court. The Land and Environment Court's decision was handed down on 3 February 2012: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=156713.

The offence that was committed by the defendant was surely a serious one. The defendant had been employed as the manager of a commercial tiger prawn farm that was situated on the banks of the Clarence River. A flock of 250 - 300 Little Black Cormorants (a protected species under the Act) roosted in a large tree on a neighbouring property and fed on the prawns, resulting in large financial losses to the owner of the breeding operation. In a misguided attempt to protect the shrimp, the defendant, on two separate occasions in November 2009, fired a shotgun into the roosting tree. Each incident caused the deaths of 6 of the cormorants.

The primary considerations that led the Land and Environment Court (per Justice Craig) to allow the defendant's appeal against the severity of the sentence appeared to be twofold.  First, Justice Craig concluded that the defendant did not derive any direct financial advantage from his actions. On this issue, His Honour departed from the findings of the magistrate in the Local Court, who had determined that the defendant's sole motivation for committing the offence had been to achieve monetary gain. Justice Craig reached his determination on the basis that the defendant had not obtained nay monetary reward from his employer for killing the birds. 

The second principal ground which prompted Justice Craig to vacate the sentence of imprisonment was that the defendant had recently served a prison term for an offence against the Commonwealth Quarantine Act that he had committed in 2006, before the defendant had killed the cormorants (again the killing of the cormorants occurred in November 2009).

The offence against the Quarantine Act involved the illegal importation into Australia of shrimp feed. The defendant served a prison sentence of 6 months for that offence and was released before the prosecution for killing the cormorants was commenced. Justice Craig held that the magistrate in the Local Court proceedings had not accorded sufficient weight to the "rehabilitative effect" that the prison sentence for the Quarantine Act offence would have occasioned.

Additional factors which led Justice Craig to substitute a monetary penalty (of $7,200) for a term of imprisonment in this case included the defendant's subjective circumstances, particularly the fact that he had left the employ of the shrimp farm and taken up employment as an accountant and was thus unlikely to re-offend; that he was a married man with two young children; and that he had entered a plea of guilty at an early opportunity and had expressed remorse for the commission of the offence. Principles of parity were also taken into account in the determination of sentence, as the Court's review of prior prosecutions indicated that the pattern of sentencing for offences involving harm to protected wildlife had generally resulted in fines rather than imprisonment (see e.g. Garrett on behalf of the Director General of the Department of Conservation and Environment v House (2006) NSWLEC 492 (27 Wellcome Swallows fatally poisoned, fine of $9,000).

The defendant was indeed fortunate to escape a prison sentence, as it is difficult to imagine a more wanton and deliberate act than firing a shotgun at a large flock of protected birds. As Justice Craig observed in his judgement, it was clearly foreseeable that the defendant's conduct would result in injury or death to a number of birds. If the defendant had killed a larger number of birds - which was certainly a possible outcome of his conduct of firing a shotgun at the tree where the flock of cormorants was roosting - and surely, if he had committed this offence after serving the prison sentence for the Quarantine Act offence - he would almost certainly have received a more severe sentence from the Court.

Concordia Pacific Introduces The Daily Planet!!!!

Concordia Pacific is very pleased to introduce our new environmental law blog, the Daily Planet. We began to publish the blog in early June 2011.

The blog will cover issues of interest to professionals working in the fields of environmental protection and local government.

We will be focusing particularly on noteworthy decisions of the Land and Environment Court, as well as on other news items that may inform and guide the activities of environmental managers, consultants, lawyers, town planners and others who may be involved with compliance issues.

Our initial posts discuss:

* A contempt proceeding brought by Sydney Council against an owners' corporation for failure to comply with consent orders requiring fire safety upgrades.

* A Land and Environment Court prosecution against a chemical company where orders were made requiring the company to fund the costs of an environmental improvement project.

* A prosecution against the NSW Forestry Commission for destroying habitat of a threatened species, the Smoky Mouse.

* A Trees Act case where costs were awarded against an applicant who did not have "reasonable prospects of success".

* A pollution case where fines were imposed on a plant operator even though the spill was caused by the deliberate misconduct of an employee.

* A judgement of the District Court of New South Wales that found a council negligent for failing to issue a dangerous dog declaration.

 

* Two judgements of the Land and Environment Court stating "general principles" that are likely to be applied in future Trees Act litigation.

* Another Trees Act  case where the Land and Environment Court declared its expectations concerning the content of arborists' report.

We look forward to your comments and suggestions concerning the blog, and hope that you will find it to be helpful, informative and engaging!

We would also like you to know that we are running a companion blog on planning law issues here in NSW, which can be accessed at concordiapacificdailyplanner.blogspot.com.

You can also follow us on Twitter at @Concordialaw!