In NSW, ‘a person who pollutes any waters is guilty of an offence’[1]. Water pollution is broadly defined under the Protection of the Environment Operations Act 1993 (NSW) (POEO Act). As a result, defendants who are charged with water pollution offences generally plead guilty. In these circumstances, the Court is only required to consider relevant sentencing matters. This was the case in the recent decision of Environmental Protection Authority v Bulga Coal Management Pty Ltd [2014] NSWLEC 65 (EPA v Bulga). This decision provides an illustrative example of relevant sentencing considerations for water pollution offences in NSW as well as other recent penalties that the NSW Land and Environment Court has imposed for similar water pollution offences.

The pollution incident

The defendant in EPA v Bulga, Bulga Coal Management Pty Ltd (Bulga) operates a coal mine at Broke, near Singleton in NSW. The pollution incident, the subject of the charge, was the discharge of approximately 240 kilolitres of coal tailings and supernatant into an intermittent waterway, known as Nine Mile Creek (Creek). The pollutant was estimated to have travelled approximately 280 metres along the Creek.

The incident was caused by a small hole in the mine’s tailing pipeline, which caused the coal tailing to divert to a containment dam, which subsequently overflowed. This resulted in a slow-flowing release of the coal tailings slurry, mixed with dam water, down a short drainage gully and into the Creek. The pollution incident occurred over three days.

Once the pollution incident was identified, Bulga undertook a clean-up operation over 10 days, which included pumping contaminated water from the Creek and removing coal tailings from the bed of the Creek.

Sentencing considerations

In NSW, Courts held that a sentence must reflect the relevant objective circumstances of the offence as well the subjective circumstances of the defendant. In relation to the objective seriousness of the case, the POEO Act sets out the following matters that the Court is required to take into consideration when imposing a penalty for an offence (s 241):

  1. the extent of the harm caused or likely to be caused to the environment by the commission of the offence
  2. the practical measures that may be taken to prevent, control, abate or mitigate that harm
  3. the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence
  4. the extent to which the person who committed the offence had control over the causes that gave rise to the offence
  5. whether, in committing the offence, the person was complying with orders from an employer or supervising employee.

Extent of harm

‘Harm to the environment’ is broadly defined under the POEO Act to include, any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

Case law has also held that when considering harmfulness, the “potential or risk of harm” should be taken into account, as well as any “actual harm”.[2]

In EPA v Bulga, a joint report was prepared by the ecologists retained by each party. There was substantial agreement on the extent of harm that resulted from the spill of tailings including:

  • the tailings in the Creek resulted in the smothering, alteration and degradation of the Creek habitat and the immediate smothering of invertebrate organisms within the extent of the affected reach
  • the incident caused a reduced diversity and abundance of macro invertebrate and micro invertebrates within the affected reach
  • the re-colonisation by macro invertebrates and other aquatic organisms would be expected to occur
  • in the context of the capacity of the broader Nine Mile Creek system as a whole, the extent of the harm was within the capacity of the ecosystem to recover within the annual hydrocycle.

Practical measures to prevent, control, abate or mitigate harm

Justice Pain, the judge in EPA v Bugla, accepted that the defendant had taken immediate measures to prevent further harm as soon as the pollution incident was identified. However, the defendant also accepted that there were practical measures that could have been implemented to prevent the incident, such as improved monitoring measures and alarm systems.

The defendant accepted that it had control of the site at the time the incident occurred and that the harm caused was reasonably foreseeable.

Maximum penalty

Another relevant consideration in sentencing matters is the maximum penalty. Justice Pain noted that “a maximum penalty is a public expression by Parliament (and, by extension, the general community) of the gravity of the offence”.[3]

In NSW, the maximum penalty of the pollution of water under the POEO Act is $1,000,000 for a corporation. Justice Pain concluded that the circumstances were at the lower end of the range of objective seriousness.

Subjective circumstances

Her Honour noted that the defendant had made an early plea of guilty, which is considered to be a mitigating circumstance, as it saves the prosecutor and the Court the expenditure of time and money in case preparation and management. It was accepted that the defendant should be awarded the maximum 25 percent discount for its early plea.

Justice Pain also noted that the defendant:

  • had at all times co-operated with the EPA’s investigation of the incident
  • had no prior convictions for any environmental offences in NSW
  • was unlikely to re-offend
  • had expressed remorse for the environmental harm that the pollution incident had caused.

All of these subjective circumstances were accepted as mitigating factors.

Deterrence

The EPA prosecutor submitted that the need for general deterrence was one of the main purposes of punishment. Justice Pain agreed that “a clear message needs to be sent to other companies engaging in similar operations that positive steps must be taken to ensure water pollution does not occur”.[4]

The defendant also accepted that some allowance for specific deterrence was warranted for the water pollution offence given that it continues to operate a coal mine at the premises.

Evenhandedness

Justice Pain stated that the principle of ‘evenhandedness’ requires the Court to consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. In doing so, her Honour considered cases with similar circumstances and resulting environmental harm. A summary of the cases considered by her Honour are as follows: