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Sentencing Principles for Water Pollution Offences

BACKGROUND

On 7 and 8 March 2018, judgment was delivered in Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 (Ardent) to impose a fine totalling $157,950 on Ardent Leisure Ltd (AL) for polluting Sydney Harbour after approximately 6000L of diesel fuel escaped into the waters from a fuel storage system at Rushcutters Bay marina.

AL was convicted with the following offences and penalty imposed:

  1. Section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) for the pollution of waters in Rushcutters Bay (Water Pollution Offence) – Penalty $135,000.00;
  2. Clause 19(2) of the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014 (NSW) (UPSS Regulation) in relation to Ardent’s failure to include current ‘as-built’ drawing for the fuel storage system (UPSS Regulation Offence) – Penalty $22,950.00

A publication order for a notice of the offences was also made for the purposes of improving the effectiveness of general deterrence.
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EPA Fines Company $30,000 for Breaching Licence and Polluting Waters

The NSW Environment Protection Authority (EPA) has recently fined South Coast Plant Hire Pty Ltd (South Coast), a resource recovery facility in Bomaderry, $30,000 for allegedly breaching its licence conditions and discharging waste water from the site.

It is alleged that South Coast Plant Hire failed in its responsibilities when its operations led to polluted water flowing off-site.

In December 2017, the EPA carried out a site inspection and found a containment system holding polluted water had overflowed. The water was used to suppress dust and contained waste water from stockpiles.

The EPA issued a clean-up notice directing South Coast to clean-up the area where the discharge occurred and put measures in place to prevent further pollution. Two penalty notices were subsequently issued to South Coast totalling $30,000.

Clean up notices, prevention notices and penalty notices are some of the tools the EPA can use to achieve environmental compliance.

Clean-up notices

Pursuant to s 92 of the Protection of the Environment Operations Act 1997 (POEO Act), the EPA is able to issue a clean-up notice when it reasonably suspects that a pollution incident has occurred or is occurring or when the release of a pollutant is likely or imminent. The notices may direct that action is taken to prevent, minimise, remove, disperse, destroy or mitigate pollution resulting from or likely to occur from an incident. The notice details the specific clean-up action required and a time frame for completion.
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