Environmental offences - general environmental defence – Dolan v Ashton Valley Fresh Pty Ltd (ACN 129 405 410) [2020] SAERDC 15

In prosecution proceedings brought by an authorised officer of the Environment Protection Authority, the Environment Resources and Development Court has recently considered the general environmental defence in section 124 of the Environment Protection Act, 1993.

The general defence is available where a person is proved to have taken all reasonable and practicable measures to prevent the contravention or contraventions of the same or a similar nature.

Facts

• Ashton Valley Fresh Pty Ltd (Company) operated a fruit processing plant in the Adelaide Hills.
• Wastewater generated from processing activities was piped into an on-site wastewater treatment plant (WWTP) for treatment.
• A tap was located on the pipeline connecting the processing plant to the WWTP. The tap was outside the WWTP, and was not shown on the schematic plans of the WWTP.
• The tap was not referenced in the written Standard Operating Procedure for the WWTP.
• The tap could be easily opened by manual turning, and was not locked, boxed, tagger or alarmed. There was no signage warning that the pipe contained raw wastewater, or that it shouldn’t be opened without authorisation.
• For reasons unknown, an employee of the Company turned on the tap allowing raw wastewater to flow into the stormwater drainage system and then into a creek.
• EPA officers happened to be in the area, and took samples of creek water which established elevated levels of turbidity, sediment levels and breach of various water quality criteria prescribed in the Environment Protection (Water Quality) Policy.
• The employee responsible for managing the WWTP had no specific training on the use of the tap.
• The Company asserted that it could rely on the general defence in section 124 of the EP Act.

General defence

• The general defence applies where it is proved (by the defendant on the balance of probabilities) that the alleged contravention did not result from any failure on the defendant’s part to take all reasonable and practicable measures to prevent the contravention or contravention of the same or a similar nature.
• Where an employer relies on the defence, it must establish that proper workplace systems and procedures were in place designed to prevent a contravention, including proof that proper systems whereby any contravention or risk of contravention that came to the knowledge of any employee was required to be reported promptly to the employer or governing body of the employer (or someone with a right to report to the employer or governing body of the employer), and proof that the employer actively and effectively promoted and enforced compliance with the Act and with all such systems and procedures.
• The Company argued it had established proper systems and procedures designed to prevent contraventions.

Held

• The EPA is not required to identify any particular measure which could have been taken to prevent the contravention. Rather, the Company must prove that the contraventions did not result from its failure to take all reasonable and practicable measures.
• Whether a measure is reasonable and practicable will depend on whether the time, trouble and expense of the measure is proportionate to the risk involved. This requires some consideration to the question of forseeability.
• In this case:
  • the contravention was failing to prevent the escape of wastewater from the tap into the Creek;
  • the risk of discharge of wastewater from the tap into the creek was obvious and forseeable;
  • practical measures to avoid that risk included relocating the tap inside the WWTP; the tap could have been locked or alarmed; signage could have been erected; and so on.
• No evidence was led by the Company of any risk assessment being undertaken in respect of the design and placement of the tap, or any training of the employee in relation to use of the tap.
• The training program, supervision and instruction of employee were deficient. The only instruction to employee was to the effect that: if there is a problem call the boss.
• Therefore, the Company failed to prove that it had taken all reasonable and practical measures to prevent the contravention.

Learnings

• The case is a reminder of the importance that where an activity has the potential to pollute the environment, an environmental risk assessment the activity, and any plant or equipment used in the course of the activity, is undertaken.
• The risk assessment process should identify all foreseeable risks, and consider and identify reasonable and practicable measures to prevent the risk of contravention.
• In some cases, a value judgement will be required as to whether the time, trouble and expense of the measure is proportionate to the risk involved. Where the exercise of judgement results in a particular measure not being pursued or implemented, this should be clearly documented in a risk management system for future reference, if required.
• Furthermore, for employer organisations, proper workplace systems and procedures must be established and documented. Those systems and procedures must include:
  • induction and training on the relevant legal obligations and potential contraventions;
  • a requirement for prompt reporting of any contraventions or risk of such contraventions to the employer or governing body;
  • active and effective promotion and enforced compliance with the Act and relevant systems and procedures.

Failure to prove any one of these things may result in the general defence being unavailable.

For more specific information on any of the material contained in this article please contact Peter Psaltis on +61 8 8210 1297 or ppsaltis@normans.com.au.