From pulp to the papers: Visy fined $175,000 for wastewater discharges at paper and pulp facility

Environment Protection Authority v Visy Pulp and Paper Pty Ltd [2024] NSWLEC 55

Visy Pulp and Paper Pty Ltd (Visy) has been fined $175,000 by the NSW Land and Environment Court after pleading guilty to offences relating to an incident in October 2022 where treated and untreated wastewater was discharged from its Tumut facility into Sandy Creek, resulting in actual (albeit temporary) harm to the surrounding aquatic environment.

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Background

Visy owns and operates a paper and pulp facility in south-east NSW where it produces pulp by processing wood and recyclable paper, to make paper. As part of this process, wastewater is produced which Visy treats onsite and reuses for a variety of purposes.

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Two key conditions of the EPL were relevant for the proceedings:

• ?Condition O4.8 required Visy to seek the NSW Environment Protection Authority’s (EPA) written approval prior to any discharge of wastewater at least two weeks before the proposed discharge date.
• Condition M8.1 required Visy to continuously monitor the volume of liquids discharged for each discharge point or utilisation area.

As part of its compliance with Condition M8.1, a flow meter was installed at the discharge point.

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Incident

On the evening of 27 October 2022, following a transfer of volumes in the treatment plant, an unknown amount of untreated wastewater was discharged into Sandy Creek over a period of roughly six hours (Unintentional Discharge). This was found to be as a result of two key errors:

• the operator’s failure to check whether a valve was closed after a wastewater transfer was completed; and
• the malfunction of a different butterfly valve, which isolated the transfer system from the discharge point, such that it was partially open and allowed for some of the wastewater being transferred to be discharged into Sandy Creek.

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Following the discovery and cessation of the Unintentional Discharge, in order to mitigate impacts on the aquatic environment, Visy cleared any untreated wastewater remaining in Sandy Creek by briefly flushing clean treated wastewater from the discharge point (Intentional Discharge).

The EPA issued a Notice to Provide Reasonable Assistance under section 200 of the POEO Act which required Visy to retain and refrain from interfering with the relevant pipe, butterfly valve and flow meter. The EPA later seized the valve and meter in situ as part of its investigation.?

Offences

The EPA brought four charges against Visy in relation to the incident, with each offence attracting maximum penalties of $1 million:

• one count of polluting waters by the Unintentional Discharge (POEO Act s 120(1)) (Pollution Offence);
• one count of non-compliance with a condition of its EPL by failing to obtain the EPA’s prior approval for the Intentional Discharge (POEO Act s 64(1)) (Approval Offence); and
• two counts of non-compliance with a condition of its EPL by failing to continuously monitor the volume of liquids discharged into Sandy Creek, for each discharge event (POEO Act s 64(1)) (together, the Monitoring Offences).

Visy conceded that it did not routinely inspect the butterfly valve, and that routine maintenance was difficult as Visy thought that the valve could not be isolated. During its investigations of the incident, however, Visy did identify a valve within the transfer system that could be used to isolate and then carry out maintenance work on the butterfly valve.?

At the time of the offences, the flow meter was broken and Visy was aware that it had been so since 2016 as it thought it could not be isolated and routinely maintained.

Sentencing

It was an agreed fact that actual harm had been caused to the environment, however the Court found that that harm was of a ‘minor and transitory nature’. The Court ultimately determined that the objective seriousness of the offences was low to moderate.

The Court rejected Visy’s argument that its failure to monitor did not result in environmental harm and found that Visy’s obligation under Condition M8.1 was not merely to record the volumes discharged, but to continuously monitor as well. It also found that Visy’s standard operating procedures for the treatment of wastewater did not include a standard checklist for transfer operators to use in ensuring that valves were correctly positioned for each wastewater transfer that was taking place.

The Court applied a 25% discount on the basis of a number of mitigating factors:

• Visy’s contrition and remorse;
• Visy’s good corporate character and low risk of reoffending;
• lack of prior convictions; and
• guilty pleas at the earliest opportunity.

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Penalties

The Court made the following orders:

1.???? Conviction and fine of $75,000 for the Pollution Offence;

2.???? Conviction and fine of $20,000 for the Approval Offence;

3.???? Convictions and fines of $50,000 and $30,000 for the Monitoring Offences;

4.???? Pay the legal and investigation costs of the EPA; and

5.???? Publication order in the Sydney Morning Herald, Daily Telegraph, Tumut and Adelong Times, and Daily Adviser.

In making a publication order, Visy proposed to post the notice on its website in lieu of the Sydney Morning Herald, on the basis that being required to publish the notice in three other publications was sufficient. It also objected to the inclusion of a photo taken at the time of the incident depicting black foam in Sandy Creek as it was ‘apt to mislead insofar as it did not accurately reflect the overall environmental harm’.

While the Court agreed to the exclusion of the photo, it ultimately rejected Visy’s proposal as it found that the traffic of its website was not comparable to the daily circulation of the Sydney Morning Herald.

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