Reference no: EM134034442

Question

Moving Up Chemical Productions Pty Ltd ('the company') holds an environment protection licence ('EPL') under the Protection of the Environment Operations Act 1997 (NSW) ('the POEO Act') in relation a paint production factory that it operates on land that it owns in the Hunter Region of NSW (you can assume that a licence is required under the POEO Act). The factory is located on land that directly adjoins Bluebell Creek. The company has a chemical waste storage tank ('the CWS tank') on its factory premises that stores chemical waste products from the paint production process. The CWS tank is located in a bunded area.1 The waste in the CWS tank is emptied each week by a waste contractor and disposed of lawfully offsite. The company's EPL provides that: 14. All chemical waste products must be stored in a purpose-built chemical waste storage tank that is located within a bunded area. 15. All chemical waste must be lawfully disposed of offsite. 16. No discharges to waters are permitted. At 10am on Friday 29 September 2023 a pipe that transferred chemical waste from the factory paint production process to the CWS tank became blocked, such that chemical waste could not flow into the CWS tank. In order to allow for maintenance to be carried out to unblock the pipe, the company's production supervisor ordered the chemical waste from the factory paint production process to be diverted through an above ground makeshift pipe to an old disused empty metal rainwater tank located in a grassed area behind the factory building ('the rainwater tank'). During the maintenance process, 2,000 litres of chemical waste was pumped into the rainwater tank, which is not located in a bunded area. The maintenance process was completed by 4.30pm on Friday 29 September 2023. The use of the rainwater tank to store chemical waste was meant to be a temporary measure while the pipe maintenance was being completed. It was intended that the chemical waste in the rainwater tank would be pumped into the CWS tank once the maintenance process was complete. As the long weekend was fast approaching, the company's production supervisor told staff that they could wait until Tuesday 3 October 2023 to pump the chemical waste in the rainwater tank into the CWS tank. 1 'A bund is designed to contain spills and leaks from liquids used, stored or processed above ground... They are made from an impervious embankment of earth, or a wall of brick, stone, concrete or other suitable material, which may form part or all of the perimeter of a compound that provides a barrier to retain liquid.' (NSW EPA, 'The Drain is Just for Rain' https://www.epa.nsw.gov.au/your-environment/water/the-drain-is-just-for-rain) 5 At 5pm on Sunday 1 October 2023 the rainwater tank failed and chemical waste began leaking out of the tank. The tank was old and rusty and the chemical waste had corroded through the metal, causing large holes to form in the side of the rainwater tank near its base. The chemical waste leaked from the rainwater tank, flowed across the grass at the factory premises for 20 metres and then into the adjoining Bluebell Creek. Approximately 1,200 litres of chemical waste reached the creek, with the rest dispersed across the grassed area at the factory premises where it seeped into the soil beneath the grass. At about 8.30am on Monday 2 October 2023 a member of the public telephoned the NSW Environment Protection Authority ('EPA') and reported that the water within Bluebell Creek just downstream of the factory premises had turned orange. Furthermore, hundreds of dead fish were observed in the creek along with eight dead ducks. An EPA officer attended the incident to try to determine its cause. The EPA officer quickly spotted the failed rainwater tank and chemical waste that had leaked from the tank, flowed across the grass at the factory premises and then into Bluebell Creek. The officer observed the discolouration of the creek started at the area where the chemical waste was leaking from the factory premises and continued 700 metres downstream. Testing by the EPA's laboratory of samples taken by the EPA officer determined that the chemical waste that leaked from the rainwater tank contained hazardous substances that are highly poisonous to aquatic and bird life, contaminate soil and which are toxic to humans if ingested. The EPA officer has contacted you for legal advice in relation to the following:

1. Who is the appropriate regulatory authority under the POEO Act in relation to the factory premises?

2. Which environment protection notice/s could potentially be issued under the POEO Act in relation to the incident and by whom? Make sure you explain the circumstances in which any such environment protection notice/s can be issued.

3. What offences the company may have committed under the POEO Act. Note: for the purposes of this question, you can assume that any acts undertaken by an officer or employee of the company, or the state of mind of the officers and employees of the company, are attributable to the company.