Environment Protection Authority v Orica Australia Pty Ltd (the Botany Mercury Incident) [2014] NSWLEC 110

Environment Protection Authority v Orica Australia Pty Ltd (the Botany Mercury Incident) [2014] NSWLEC 110

Orica breached condition O2.1(b) of Licence 2148 by failing to operate the TECE in a proper and efficient manner, causing mercury vapour to escape into the atmosphere. Although no actual or likely environmental harm was agreed, the offence had a remote potential to cause environmental harm because mercury is hazardous and toxic. The risk of harm was foreseeable, Orica had control over the causes of the offence, and practical measures such as verifying closure of louvres, sealing Louvre 25 and covering roof ducts were available and not costly or difficult. Orica's conduct was negligent, but the offence was of low objective gravity. Taking into account Orica's prior environmental...

Jurisdiction
Australia
Judgment Date
28 July 2014
Procedural Posture
Class 5 Environmental Offence Prosecution for Breach of Licence Condition Contrary to S 64(1) of the Protection of the Environment Operations Act 1997 / Sentence After Guilty Plea
Outcome
The defendant was convicted of the offence as charged and ordered to direct a $35,000 penalty to an environmental project, publicise the offence and orders, and pay the prosecutor's legal and investigation costs.
Legal Topics
['breach of Environment Protection Licence Condition' 'release of Mercury Vapour' 'operation of Plant and Equipment in a Proper and Efficient Manner' 'objective Gravity' 'environmental Harm' 'specific and General Deterrence' 'early Guilty Plea' 'environmental Restoration Order' 'publication Order']
['environmental Law' 'criminal Sentencing'] ['breach of Environment Protection Licence Condition' 'release of Mercury Vapour' 'operation of Plant and Equipment in a Proper and Efficient Manner' 'objective Gravity' 'environmental Harm' 'specific and General Deterrence' 'early Guilty Plea' 'environmental Restoration Order' 'publication Order']

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Procedural Posture

Class 5 Environmental Offence Prosecution for Breach of Licence Condition Contrary to S 64(1) of the Protection of the Environment Operations Act 1997 / Sentence After Guilty Plea

Legal Issues

  1. 1 ["What sentence should be imposed for Orica's breach of condition O2.1(b) of Environment Protection Licence Number 2148 contrary to s 64(1) of the Protection of the Environment Operations Act 1997." 'Whether the offence caused or had the potential to cause environmental harm.' "Whether Orica's state of mind, including negligence, could be taken into account consistently with R v De Simoni." 'Whether practical measures were available to Orica to avoid or mitigate the escape of mercury vapour.' 'Whether the totality principle applied across the seven pollution incidents heard concurrently.']

Ratio Decidendi

Orica breached condition O2.1(b) of Licence 2148 by failing to operate the TECE in a proper and efficient manner, causing mercury vapour to escape into the atmosphere. Although no actual or likely environmental harm was agreed, the offence had a remote potential to cause environmental harm because mercury is hazardous and toxic. The risk of harm was foreseeable, Orica had control over the causes of the offence, and practical measures such as verifying closure of louvres, sealing Louvre 25 and covering roof ducts were available and not costly or difficult. Orica's conduct was negligent, but the offence was of low objective gravity. Taking into account Orica's prior environmental...

Court Disposition

The defendant was convicted of the offence as charged and ordered to direct a $35,000 penalty to an environmental project, publicise the offence and orders, and pay the prosecutor's legal and investigation costs.

Orders

  • ['The defendant is convicted of the offence as charged.' 'Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, the defendant is directed to pay to the City of Botany Bay Council, within 28 days of this order, the amount of $35,000 to contribute to the Bush Regeneration of Sir Joseph...