Failure to notify a pollution incident "as soon as practicable": Environment Protection Authority v Bulga Coal Management

Recently, the NSW Land and Environment Court handed down its decision in Environment Protection Authority v Bulga Coal Management Pty Limited [2014] NSWLEC 5 (Bulga). While over the years there have been prosecutions for failure to notify a pollution incident "as soon as practicable" under section 148 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), this was the first occasion that an alleged offender has pleaded not guilty to the offence. Consequently, Bulga provides useful guidance on the interpretation of the elements of the offence and the phrase "as soon as practicable".

FACTS

At approximately 11.30am on Sunday, 9 October 2011, an employee of Bulga Coal Management Pty Ltd (BCM), became aware that thickened tailings escaped into Nine Mile Creek as a result of a failure in a steel T-piece in its tailings pipeline (Incident). The tailings slurry was deposited on the bed of the creek for a section of the creek which was about 250-280