State Pollution Control Commission v Rockdale Municipal Council [1989] NSWLEC 109 (8 October 1989)

IN THE LAND AND No. 50145 of 1989

ENVIRONMENT COURT Coram: Stein J.

OF NEW SOUTH WALES 8 October 1989

STATE POLLUTION CONTROL COMMISSION

v.

ROCKDALE MUNICIPAL COUNCIL

EXTEMPORARY JUDGMENT

HIS HONOUR: The defendant, the Council of the Municipality of Rockdale, pleads guilty to an offence that it did, on or about 10 April 1989, being the occupier of premises at Rye Avenue, Bexley, pollute certain waters, namely Bardwell Creek, contrary to section 16(1) of the Clean Waters Act, 1970.

At the address at Rye Avenue, the defendant Council has a depot which is a fairly old-fashioned style of industrial building, erected quite some years ago. The depot is used as a mechanical workshop and also for Council stores and similar type activities. Within the depot there are containers and oil tanks. What apparently happened during the afternoon of 10 April 1989 is that an employee turned on the valve or cock of an engine-oil tank and then, somehow or other, was interrupted or diverted whilst he was filling a container of oil from that storage tank. He walked away and, it appears, totally forgot to return and turn it off. Because it was late in the work afternoon, around about 3.30 p.m., nobody detected the fact that the gate valve in the oil storage tank was left in the open position and overflowing and no doubt also the container which was being filled. It was of course grossly negligent of the employee of the Council to leave it running and, as it appears, not only to leave the area but knock off for the day, with the result that it was not until the following morning, 11 April, that another employee noticed that oil was escaping.

The oil ran from the premises into the yard, that is, underneath a roller shutter door in the vicinity of the oil storage tank area, into the depot yard and down towards an open stormwater grate connected to the Council stormwater drainage system which, through a series of channels, runs into Bardwell Creek. Bardwell Creek is part of the Cooks River drainage basin and all of the creeks in the area which form part of the basin are classified as Class R Restricted Waters under the Clean Waters Act, see the Government Gazette of 18 July 1975.

One of the specific creeks named in the Government Gazette is Wolli Creek and my understanding is that Bardwell Creek runs into Wolli Creek at some stage. It seems that something in the vicinity of 800 litres - it may have been marginally less - of the engine oil escaped from the depot premises and found its way into Bardwell Creek. To the Council's credit, as soon as it became aware of the escape on the morning of 11 April, it took immediate steps, not only to notify the State Pollution Control Commission (SPCC) but to obtain immediate advice from it and the Maritime Services Board, in order to minimise any environmental effects of the escape. It did so by the erection of two booms across Bardwell Creek and other measures to dissipate the oil spill. The booms appear, from the evidence, to have been pretty effective.

Photographs tendered in evidence show oil on the surface of the Creek and on the banks prior to the location of the boom positions, and whilst there was the potential for environmental damage such as set out in the Statement of Environment Effects of Oil, (tendered as Exhibit C), there is no evidence of extensive damage, and this seems to be because of the fairly prompt placing of the booms across the Creek in two different positions.

The spill was a direct result, as I have said, of the employee negligently leaving the gate valve in the open position and leaving the area. It is apparent that if there had been a spring-loaded valve instead of a gate valve, this particular occurrence would not have allowed the escape of oil. So it seems that a fairly simple and cheap alternative would have prevented the accident. The Council replaced the gate valve immediately and I am assuming that it did so in respect of any other storage tank fitted with a similar valve.

There was no bunding around the oil storage area and the Council immediately put into place the necessary works to construct bunding. It received a notice from the SPCC, dated 3 May 1989, to erect bunding and to complete it by 24 May 1989. It is not clear when the bunding was effective although it is clear that the Council did not wait for the notice. Council had been told, indeed by an SPCC officer, that a notice would be served and they had better put in the bunding. The Council promptly put that in hand, and photographed the bunding which is now in place. If the bunding had been in place, even accepting the gate valve, it would likely have contained most if not all of the oil spillage.

The premises, as I have said, are a reasonably old industrial type building with a fairly traditional method of disposing of waste products, that is diverting them to the stormwater. All of the drainage of the premises was connected to the creek system, and this is not unusual for the time when the building was probably erected. Council has, as a result of this incident, determined to disconnect the drainage system from the Creek and internalise drainage within the premises. This involved the installation of an oil separator and certain other associated works with a cost totalling around $60,000.

These works were commenced in July 1989 and completed early this year. Apparently they would have been completed earlier, according to the Council, but for delays in obtaining Water Board approval or because of the attitude of the Water Board to certain aspects of the works.

Mr. Davison submits on behalf of the Council that the defendant regarded the matter seriously and put into place a programme, not only to see that similar accidents such as this would never happen again, but that any other type of breakdown in the system would contain a spill within the premises and, by the works which I have just mentioned, there is no possibility of an escape of oil into Bardwell Creek being repeated.

Mr. Davison therefore submits that the penalty to be imposed should not be a severe one, and indeed I accept this submission. However, he submits that the facts of this matter would be appropriate for the Court to consider applying section 556A of the Crimes Act and not record any conviction bearing in mind the particular facts and circumstances which I have summarised.

I have given consideration to the submission, but it seems to me that not proceeding to conviction under section 556A is inappropriate to the circumstances of the case. In my opinion the Council should, particularly bearing in mind its own responsibilities under the Clean Waters Act, have taken reasonable steps and care to see that its own plant, premises and operations were properly and reasonably maintained. In particular that the most minor of accidents would not cause an oil spill such as this. As I have said, this spill would not have occurred if, instead of a gate valve, there was a spring-loaded valve. A fairly simple matter.

The bunds themselves, as Mr. Bean, the Council's engineer, has said in evidence, were not a matter of great expense or difficulty of construction. I accept that sometimes it takes an incident such as this to bring home the necessity to take fairly minor steps to avoid the implications of accidents, whether due to employees' negligence or some breakdown in a system caused by mechanical failure.

However, it seems to me in all the circumstances, that the use of section 556A is inappropriate. Nonetheless, I take account of all the circumstances that go to mitigation of penalty, some of which I have described briefly. The maximum penalty which may be imposed for a breach of section 16 of the Clean Waters Act by a corporation, as is the defendant, is $40,000 and I have to assess what is an appropriate penalty.

I also take account of the fact that the Council has spent monies, which have not been disclosed to me, on the clean-up operation, and in excess of $60,000 on works, to ensure that an incident such as this is not repeated, nor will any other breakdown at the depot lead to a breach of the Act. It will also have to pay court costs of $3,320.

Taking into account all of the factors, including the Council's contrition shown by the entering of the plea of guilty and its co-operation with the SPCC in a number of respects which I have related, it is my opinion that an appropriate penalty to impose for this breach is a fine of $5,000.

The defendant, the Council of the Municipality of Rockdale will therefore be convicted of a breach of section 16(1) of the Clean Waters Act, and ordered to pay a penalty of $5,000 to the Registrar of the Court within one month of to-day. The defendant is further ordered to pay the costs of the Prosecutor, agreed in the sum of $3,320, to be paid to the Registrar of the Court for payment out to the Prosecutor's attorney, the Crown Solicitor, within one month of to-day. The exhibits may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE PAUL L. STEIN.

Associate