Criminal Action finally underway
In May 2022, the NSW Environment Protection Authority began criminal proceedings against Bingo Industries’ subsidiary Dial-a-Dump Pty Ltd that operates a huge landfill at Eastern Creek.
The Land and Environment Court proceedings finally got under on September 16. The official name of the case is 2022/00135414 Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd.
The EPA is alleging that between March and June 2021, Dial-A-Dump committed an offence under section 129 of the Protection of the Environment Operations Act 1997, causing the emission of offensive odour – a rotten egg gas smell – from its premises. It claims that Bingo failed to have adequate controls in place to collect landfill gas and treat it to remove odours. Rotten egg gas is hydrogen sulphide produced by the breakdown of organic material.
In all, 800 complaints were lodged by residents living in Minchinbury and other suburbs around what is now euphemistically called the Bingo Ecology Park, which includes both landfill and recycling facilities.
It has taken many months for EPA investigators and lawyers to prepare the case which includes evidence from 58 witnesses including 14 EPA officers and more than 10 residents who will be called to give evidence. The charges were only laid after the EPA had used other regulatory instruments including ‘clean-up notices’ and licence changes to try to bring the odours under control before charging the company.
The purpose of the hearing before Justice Tim Moore was for Bingo Industries to indicate whether it would plead guilty or not guilty and to settle matters relating to the management and timing of the case.
At 7 pm on September 15 -that is the evening before the hearing- Bingo’s lawyers informed the EPA that the company would be pleading ‘not guilty’. This means that the EPA and the community could be facing a very long court hearing.
In court, Bingo was represented by Patrick Larkin, a senior counsel and the EPA, by prosecuting barrister Peter English.
There are lots of decisions that both the EPA and Bingo will make that will impact on how long a hearing might take. For example, Bingo may decide that it will accept the evidence of some witnesses and not cross-examine them.
The NSW Criminal Procedure Act provides for courts to make orders for parties to a case to provide information and evidence to the other side so that decisions can be made in the ‘interests of justice’. The EPA, which has already supplied a ‘statement of facts’, applied for court orders to be made for Bingo to provide information about how it will approach the case . This would enable the parties to narrow down the issues that will be contested in a trial and save court time and costs.
It appeared early in the hearing that the judge would grant the orders applied for by the EPA. Larkin however argued that the defendant should not have to provide more information about its case until the prosecution had provided the court with detailed reasons for why the information outlined in each part of Section 247K apply to Bingo.
Legal submissions of the sort Larkin demanded will take time and slow down proceedings.
Prosecutor Peter English told the court that Larkin appeared to be interpreting ‘the interests of justice’ as the interests of his client instead of the interest of the court and the interests of the community including those residents who will be witnesses.
Larkin continued to insist that detailed legal submissions should be filed and legal arguments heard before orders are made.
By the end of the hearing, Justice Moore agreed that the EPA should provide submissions and the defendant should then respond. After that the judge will decide what orders should be made. He remarked that in six and half years in his position, he had never previously come across a defendant who resisted a prosecutor’s application for an order of this kind as Bingo was doing.
No hearing date decided.
The case has been adjourned to October 28. This means that there is still no hearing date for a trial. If Bingo insists on all 58 witnesses being called, the case could take as long as 10 weeks. Currently, a hearing that long could not be scheduled until the second half of 2023. By the time, all the legal arguments about what evidence each party should provide to the other, the case may well be pushed out to 2024.
Comment
Why has Bingo pleaded not guilty and why is it trying to slow down the case?
Without Bingo providing information about its defence, it’s hard to answer these questions.
Bingo is owned by the Macquarie Group that has more than $700 billion worth of assets under its management. The maximum fine of $1,000,000 is not a large sum for the company to pay. But as a company that promotes its sustainable and environmental record, Macquarie and its Bingo subsidiaries may be more concerned about brand damage.
The EPA has a huge amount of evidence that Bingo allowed odours to escape from the site, affecting hundreds of residents over several months. This provides the essential element of the case it must prove. There have been more complaints in 2022 that the EPA is now investigating. The Bingo landfill is only licensed to accept non- putrescible waste (non-organic) that should not produce hydrogen sulphide odours. Poor management of water on the site may have contributed to the odours after heavy rains came in 2021. The company was slow to accept responsibility for the odours. The EPA ordered Bingo to install a temporary gas system to burn gases to reduce odours but this did not work. Now permanent flares have been approved but are not yet fully installed. The odours returned with a vengeance in 2022 and have continued to occur intermittently.
Currently Bingo is pressing ahead with a proposal to NSW Planning and Environment for a massive expansion of its recycling centres that is likely to result in more waste going to landfill. It recently received a scathing review of its EIS from a different section of the EPA that deals with planning assessments. The odours have already been raised by the EPA and others in their responses to the expansion proposal and a conviction won’t help its case.
Surprisingly, Bingo issued a media release on the same day as the court hearing. It states that the company has decided to plead ‘not-guilty’ because “BINGO is of the view that there are issues with the EPA’s charge and allegations and that the company should not plead guilty based on the documentation as it currently stands”. If this is the case, why doesn’t Bingo specify what the issues are? Hopefully, its argument will become clearer as the case develops.
The media release continues: “BINGO is willing to work with the EPA in relation to the matter. BINGO has proposed an enforceable undertaking to the EPA, which includes significant community investment. Bingo will raise this further with the EPA.”
Any enforceable undertaking would be made in return for the proceedings being dropped. So while the court case moves slowly, Bingo is trying to get the EPA to back off and agree to spend some funds locally. This was not mentioned in court last week. Any such proposed agreement would not impress residents, some of whom have developed lasting impacts on their health and quality of life. Odours continued to be reported in September 2022.
The release continues, “BINGO has invested over $5 million in odour mitigation activities and infrastructure, including the fast-tracked installation of a temporary advanced gas collection and management system. The installation of a permanent gas collection and management system is well advanced and is expected to be completed in November. BINGO continues to keep the community informed of its activities at its Eastern Creek premises.”
The media release does not explain that the temporary gas collection system did not stop the odours in 2021 and that it’s nearly a year since the company announced its permanent gas flare system. Bingo’s media release is unlikely to impress the residents that have been calling for years for the company to be held accountable. Instead, it’s more likely to add to the company’s poor reputation in Western Sydney.
Most court cases involve the state prosecuting individuals. In this case, the EPA is prosecuting a giant company. The company is putting the EPA’s scarce resources under huge pressure and hoping that an offer of spending some money in the area will cause it to back off. If the company genuinely wanted to improve relations with the community, it would not be stalling on providing information about how it intends to defend itself in the criminal proceedings.
CEM will continue to report on this and other cases that impact on residents living around the Eastern Creek facility.
You can find more articles about Bingo’s waste facilities at Eastern Creek here.