AN attempt to water down criminal charges against Truegain site owner Robert Pullinger over PFAS pollution has fallen over.
Pullinger, who has been ordered to repay $1.24 million to the NSW Environment Protection Agency (EPA), filed a notice of motion in the Land and Environment Court in March last year, seeking to have the charges against him withdrawn on various grounds.
He argued that the EPA had not given a specific, relevant time frame, among other technical issues, which were resolved. Justice Rachel Pepper agreed to hearing him on his remaining application, a "duplicity challenge".
That centred around whether or not the offence was correctly prosecuted as an ongoing offence, rather a series of individual offences relation to the 43 instances of pollution particularised in the charges.
In her judgement handed down late last year, Justice Pepper said that while the offence was not a continuing offence, the charge was allowed as an exception to that rule because it constituted a single criminal enterprise.
An investigation by the Newcastle Herald, which began in 2018, revealed that Truegain - also known as Australian Waste Oil Refineries - secretly dumped millions of litres of toxic waste into nearby creeks and onto the ground over a span of decades. Dozens of former employees told of the company's appalling environmental practices.
Civil proceedings to allow the EPA to recoup costs were launched in October 2021 to cover the costs of clean up operations which the environmental watch dog was forced to undertake following 43 instances of pollution at the site between August 2018 and November 2020.
The $1.24 million included more than $63,000 in interest which he was ordered to pay.
During a five-day hearing in the Land and Environment Court in September, 2021, where the former Truegain director represented himself, Pullinger said his company was regularly collecting oil and waste water from Williamtown RAAF Base.
Pullinger claimed he was unaware that toxic fire fighting foam presented a danger and the Environment Protection Authority should have informed him.
Mr Pullinger has since declared himself bankrupt.
Criminal proceedings are still afoot. The maximum penalty for an individual who fails to comply with a clean-up notice is $250,000. There is a further penalty of $60,000 for each day the offence continues.
Justice Rachel Pepper has raised concerns that the successful civil proceedings were heard before the criminal matter.
Justice Pepper said as Pullinger represented himself, she needed to ensure he would not be disadvantaged in the criminal case. "I am concerned because if you are found guilty then you will be convicted of criminal offences, you will also be subject to significant cost liability."
