Why people and infrastructure matter: Managing negligence for environmental offences

The NSW Environmental Protection Agency (EPA) and Office of Environment and Heritage (OEH) (collectively, the Prosecutor) have secured their biggest fine for a prosecution in the Land & Environment Court. Justice Robson fined the Clarence Colliery Pty Ltd $1.05 million for two offences:

  1. $720,000 for breaching section 116(1)(a) of the Protection of the Environment Operations Act (NSW) for negligently causing the escape of coal fines slurry and coarse reject material which overtopped a storage location into an unnamed watercourse and the Wollangambe River within the Blue Mountains National Park; and
  2. $330,000 for breaching section 156A(1)(b) of the National Parks and Wildlife Act 1974 (NSW) by damaging reserved land in the Blue Mountains National Park.

The reason the fine was large is that the Court concluded that the offences caused both substantial actual harm and likely environmental harm in areas of high environmental and conservation value, which were specifically preserved and clearly intended to be relatively free of pollution.

What is interesting about this decision was Clarence Colliery’s response after committing the offence, and the extent to which Clarence Colliery assisted the Prosecutor.  Notably, Clarence Colliery:

  • undertook a thorough and diligent clean-up costing more than $2 million, cooperated and took guidance and advice from the EPA, co-ordinated labour-intensive hand-clearing of parts of the Wollangambe River and reported weekly to the EPA. The Prosecutor admitted that Clarence Colliery had undertaken the clean-up task with ‘gusto’ and had not adopted a ‘minimalist’ approach;
  • agreed to enter a plea of guilty before the Prosecutor had even laid charges;
  • agreed to the primary facts before the commencement of proceedings, which the Prosecutor admitted was unusual and enabled to the Prosecutor to suspend investigations and save considerable time, effort and resources; and
  • was remorseful and did not have any prior record of offences.

The maximum fine for the Protection of the Environment Operations Act (NSW) offence was $2 million. There is no doubt that Clarence Colliery’s response following the offence reduced the quantum of the fine.  However, the fine reflects that actively preventing pollution will save money and avoid the reputational impacts of a conviction.

Clarence Colliery admitted that it was negligent in allowing the escape of the coal fines slurry and coarse reject material, which meant that the risk of the escape was reasonably foreseeable.  The Court noted a number of things that Clarence Colliery ought to have done to prevent the escape.  They fell into two broad categories

  • Infrastructure: Clarence Colliery should have had better infrastructure that would have identified that the escape was occurring, such as level sensors, alarms, floodlights (so that employees could see the relevant area) and ensuring the perimeter walls were structurally adequate and drains were working properly.
  • People: Instructions from the managers should have been clearer and formal training should have been provided to contractors.

Lessons learnt

Whilst each site is different, companies need to plan and put resources into ensuring that infrastructure is appropriate and properly maintained, and properly managing and training people who make decisions and work at a site, to prevent environmental harm and ultimately costly and damaging prosecutions.

The Decision can be reviewed here: https://www.caselaw.nsw.gov.au/decision/596560f3e4b074a7c6e17101

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