Taranaki Regional Council v Total Control Drilling Limited DC New Plymouth CRI-2011-043-3194 [2011] NZDC 2106 (16 December 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT NEW PLYMOUTH

CRI-2011-043-003194

TARANAKI REGIONAL COUNCIL
Informant

TOTAL CONTROL DRILLING LIMITED
Defendant

Hearing: 16 December 2011

Appearances: K de Silva for the Informant

T S Richardson for the Defendant

Judgment: 16 December 2011

NOTES OF JUDGE B P DWYER ON SENTENCING

[1] Total Control Drilling Limited (TCD) appears for sentence on one charge of
breach of s15(1)(b), Resource Management Act 1991. It has pleaded guilty to the charge and is hereby convicted accordingly.
[1] TCD is a drilling contractor, In January 2011 it was carrying out drilling
work on a site at Hawera. The drilling work is a permitted activity under the Regional Plan, provided that the material discharged to water complies with standards contained in the Plan, Those standards include controls on the volume of suspended solids in any discharge water.
[1] On 26 January 2011, the site owner contacted the Council to advise that TCD
had lost control of the bore and that sediment had flowed to a tributary of the Tawhiti

stream. The Council inspected the site the next day and formed the view that TCD did not have adequate control of the drilling, that best management practices were not being followed and that more settling ponds for sediment were required. Apparently a digger• arrived to do this work while Council staff were on the site.

[4] On 28 January, the site owner contacted the Council again and said that there
was discolouration of the tributary from the drilling operation. The site owner had required TCD to stop drilling as soon as that was discovered, but when a Council inspector arrived there were still significant volumes of water and silt discharging from the bore. The sediment controls, including the settling ponds, had been overwhelmed by the volume of discharge from the bore, and the tributary and the Tawhiti stream were both significantly discoloured. That is the offending which forms the basis of this prosecution.
[4] The environment affected was the unnamed tributary of the Tawhiti Stream
and the Stream itself. These water bodies were discoloured for a distance of about 200 metres. They are tributaries of the Tangahoe river, a river catchment with high natural ecological and amenity values.
[4] Samples of water taken established a high level of suspended solids in the
water bodies. A report by a Council scientist states that the level of sediment would have had significant adverse effects on ecological conditions and water quality. I note that the summary of facts states that when the Council inspected the bore again on 31 January, the bore had been brought under control and there was no run off of sediment to the tributary.
[4] The Council scientist's report identifies a range of standards and guidelines
which the discharge had breached. By way of examples:

• The level of suspended solids in the discharge was 11 times higher than the highest concentration of suspended solids found by the Council in any non-complying dairy effluent discharge prosecutions;

• The concentration of suspended solids in the tributary was 1000 times higher than the guidelines suggested for New Zealand;
• The turbidity was 21 times higher than the contents of farm and municipal sewage ponds in New Zealand.

The list goes on.

[8] Unquestionably, a substantial amount of suspended solids was discharged
into the tributary. TCD contends that this spike of sediment prevailed for a relatively short time and in due course would have been absorbed in the river system hi the same way as occurs during natural floods. The Council says that the discharge was due to carelessness and that TCD as an experienced drilling operator should have had adequate sediment controls in place from the outset.
[8] The Council acknowledges that the defendant had taken all available steps on
28 January to avoid further discharge. There was nothing that could be done to remedy effects on the tributary and stream. TCD co-operated with the Council and entered an early guilty plea. It has no previous convictions.
[9] Not unnaturally, TCD points to all of those things. It advises that when it commenced drilling it estimated a relatively low flow rate of underground water based on its experience in the area and established its sediment pond and traps accordingly. Its calculations were blown apart by the unanticipated flow rate of the aquifer which was encountered. I am told that the flow rate in the aquifer is such that there are now negotiations under way for the municipal water supply of Hawera to be connected to this water source.
[9] Mr Richardson described in considerable detail the company's responsible practices and its good past record, He produced a number of testimonials as to its previous good work. He identified a contribution to remediation costs made by TCD of $78,000. I do not detail those matters further here, not because they are unimportant, but because I do not understand them to be challenged by the Council. They are important mitigating factors and I will have regard to them.

[12] In fixing the appropriate penalty I must have regard to the provisions of ss7, 8 and 9, Sentencing Act 2002. Again I do not detail those matters, as Counsel are largely in agreement as to their application in this case. The difference between them primarily revolves around the appropriate starting point for penalty considerations. Ms de Silva contends it ought be $30,000 and Mr Richardson $20,000.
[12] In fixing that amount I am conscious of the maximum penalty of $600,000 in respect of offending by a company and note that is a recent increase in the maximum penalty level, indicating an intention on the part of Parliament that increases in

penalty for environmental offending are appropriate. Clearly however, this
offending does not fall into the worst case scenario. A significant factor here is the short-lived, albeit intense, nature of the discharge. When the site was re-visited three days after the offending the problem had been remedied.

[12] I think that the Council's description of the offending as careless is harsh on the defendant, which I am satisfied is a responsible contractor overwhelmed by an unexpected flow of water. The risk in these matters, of course, lies with the contractor and it has accepted that risk by its guilty plea.
[12] I consider that the appropriate starting point figure is the sum of $20,000 suggested by Mr Richardson as this, in my view, adequately marks the Court's concerns about this discharge, but recognises the short-term environmental damage. The sum of $20,000 warns the defendant and others about the need to take care in drilling operations.
[12] I consider that the 25 percent reduction from starting point to recognise remorse, appropriate response, systemic improvements and previous good record, suggested by Mr Richardson, is appropriate. That reduces the penalty figure to $15,000. Finally, TCD is entitled to a further reduction in the order of 25 percent to recognise its prompt guilty plea.

[17] Accordingly, I determine as follows:

The defendant, Total Control Drilling Limited, is hereby fined the sum of $10,500. It will pay solicitor costs as per the Costs in Criminal Cases Regulations, fixed by the Registrar if need be, and Court costs $132.89.

The fine, less 10 percent Crown deduction, shall be paid to Taranaki Regional