A recent decision of the Land and Environment Court
(Court) in Environmental Protection Authority
v Environmental Treatment Solutions  NSWLEC 160
highlights the importance and necessity of staff adherence to both
environmental and workplace safety policies, particularly when
dealing with dangerous goods.
Environmental Treatment Solutions (ETS) is a
waste storage and processing business that processes liquid and
solid wastes from commercial and industrial sources across NSW and
interstate. In February 2014, 2 ETS employees were undertaking a
licensed activity under the Protection of the Environment
Operation Act 1997 (NSW) (POEO Act), an acid
alkali neutralization. At the time ETS had a number of workplace
procedures for undertaking the licensed activity, and a week prior
to the incident ETS had started a waste identification system. The
creation of this system was prompted by an environmental audit by
the Environmental Protection Authority (EPA).
However, the system had not been fully implemented at the time
of the incident, and the 2 employees unwittingly mixed together
hydrosulphide with acid. A chemical reaction caused the release of
42 kilograms of toxic hydrogen sulphide gas. Seven employees were
effected, with symptoms including loss of consciousness, memory and
tightness of the chest. ETS was charged with the offence of failing
to comply with a condition of their environmental protection
licence, in breach of section 64(1) of the POEO Act, by failing to
carry out the licensed activity in a competent manner (as was
required by the licence).
Pepper J noted that objectively environmental harm at the higher
end of the spectrum occurred. The Court took into account that the
potential harm could have been very higher had the incident
occurred in a confined space as the toxic gas could have been
lethal. The commission of the offence was also clearly foreseeable:
ETS had been previously warned by an audit carried out at the
direction of the EPA about its failure to label dangerous chemicals
appropriately. No written instructions or job running sheet were
provided to the employees prior to commencing the licensed
activity, and the onsite chemist was not actually there at the time
of the activity.
Fortunately, ETS responded immediately to the incident, which
the Court took into consideration as one factor in assessing the
objective gravity of the offence. A director of ETS immediately
visited the site, and started ETS' "Pollution Incident
Response Management Plan." The director visited neighbouring
properties and a nearby school, to see if the incident had caused
any adverse impact. ETS also held a community meeting to discuss
the incident with concerned community members.
In the assessing subjective sentencing circumstances, Pepper J
noted that ETS displayed remorse after the offence, and noted
ETS' early guilty plea attracted a discount to the penalty of
Further, ETS made efforts to mitigate the damage caused,
discipline staff members, and cooperate with the EPA, they had
their original $100,000 penalty discounted by a total of 33% to
$67,000. ETS also agreed to pay the EPA's substantial court
Minimising your environmental and safety risk
Although no separate prosecution has been commenced against ETS
under the Work Health & Safety Act 2012 (NSW)
(WHS Act), both the POEO Act and WHS Act expose
directors and managers to liability for failing to take reasonable
steps to ensure their organisation does not breach those laws. As
such, all managers should ensure that appropriate policies are in
place for managing environmental and safety risks, that staff are
provided with training with respect to these policies and that the
policies are implemented in the event of an incident. While
incidents can and do occur, having appropriate policies in place is
not only fundamental in minimising the risk of harm to employees
and the environment; but regulators and courts will also take into
account the existence of measures in place to manage risk when
assessing the amount or type of penalties to be imposed.
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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