The Protection of the Environment Legislation Amendment Act 2014 (NSW) (Amendment Act) forms part of the State Government's broader package of measures to strengthen environmental laws in NSW, and equip the Land and Environment Court and the NSW Environment Protection Authority (EPA) with wider powers. The Amendment Act has passed both Houses of Parliament and is awaiting proclamation.
The Amendment Act amends the Contaminated Land Management Act 1997 (CLM Act), the Protection of the Environment Operations Act 1997 (POEO Act)and the Radiation Control Act 1990 (RC Act).
HIGHER PENALTIES FOR CONTAMINATION OFFENCES
Under the CLM Act, penalties for contamination offences have substantially increased. For some offences, corporations now face a maximum of $1 million in penalties, and individuals $250,000. In summary:
- Failing to comply with a direction or requirement of a management order (section 14 of the CLM Act):
- Corporations - $1 million if responsible for the contamination, or $137,500 (in any other case), and a further $66,000 for each day of a continuing offence.
- Individuals - $250,000 if responsible for the contamination, or $66,000 (in any other case), and a further $33,000 for each day of a continuing offence.
- Failing to report contamination (section 60 of the CLM Act):
- Corporations - $1 million, and a further $77,000 for each day of a continuing offence.
- Individuals - $250,000, and a further $33,000 for each day of a continuing offence.
- Providing false or misleading information (section 103 of the CLM Act):
- Corporations - $1 million for offences relating to preliminary investigation orders, management orders, ongoing maintenance orders, or site audits; or $137,500 in relation to any other requirements.
- Individuals - $250,000 for offences relating to preliminary investigation orders, management orders, ongoing maintenance orders, or site audits; or $66,000 in relation to any other requirements.
- Offences against authorised officers, including non-compliance with their requirements, providing them with false or misleading information, wilfully delaying or obstructing them, or impersonating them (section 89 of the CLM Act):
- Corporations - $1 million, and a further $66,000 for each day of a continuing offence.
- Individuals - $250,000, and a further $33,000 for each day of a continuing offence
- Offences relating to site audits under Part 4, including persons carrying out a site audit if the individual is not accredited (section 48 of the CLM Act):
- Corporations - $250,000.
- Individuals - $120,000.
INCREASED SENTENCING OPTIONS FOR COURTS
Courts are now equipped with a broader array of sentencing options under the CLM Act and the RC Act. The options are similar to those already available under Part 8.3 of the POEO Act. Courts may now order offenders to:
- pay, as part of a penalty, an additional amount representing the monetary benefits acquired as a result of the commission of the offence. This power is not subject to a maximum penalty;
- publicise the offence and its environmental and other consequences, and any other orders made against the offender. For example, publicising the breach in an annual report or any other notice to shareholders of a company. If the offender fails to comply with any order to publicise or provide notification of the offence, the prosecutor may take action to carry out this order;
- carry out environmental restoration or enhancement projects in public places or for the public benefit;
- if the EPA is a party to the proceedings, order the offender to provide a financial assurance to the EPA; and
- order the offender to carry out any social or community activity for the benefit of the community or persons adversely affected by the offence (called a ‘restorative justice activity’). This sentencing option will also be introduced to the POEO Act.
EPA TO ACCEPT UNDERTAKINGS
The EPA may also accept enforceable written undertakings under the CLM Act and the POEO Act. These may relate to any restorative justice activity ordered by the Courts. If the EPA considers that the undertaking has been breached, the EPA may apply to the Land and Environment Court seeking the following orders (section 96A(5) of the CLM Act):
- an order directing the person to comply with the breached term of the undertaking;
- an order directing the person to pay to the State an amount not exceeding the amount of any financial benefit that the person obtained directly or indirectly and that is reasonably attributable to the breach;
- any order that the Court thinks appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
- an order suspending or revoking any environment protection licence under the POEO Act held by the person;
- an order requiring the person to prevent, control, abate or mitigate any actual or likely harm to the environment caused by the breach; and
- any other order the Court considers appropriate.
HISTORY OF OFFENCES RELEVANT TO PENALTIES
Under the CLM Act and RC Act, authorised officers may now prescribe different penalty amounts based on the number of times an offender has been convicted, or paid a penalty notice, for the same offence within a five year period.
The CLM Act now clarifies that notices, orders and conditions have continuing effect until complied with or revoked, even if the specified time period has passed. Similarly, directions or requirements made under the CLM Act have effect until complied with, and (where applicable under the Act) make offenders liable of a continuing offence for each day of non-compliance.
FINANCIAL ASSURANCES PAYABLE TO THE EPA
Under the CLM Act, the EPA is now able to request financial assurance for actions required by management orders. The EPA will have discretion to determine the amount, so long as it does not exceed the total amount that the EPA considers necessary for the carrying out of the management order. This includes the costs of the EPA's direction and supervision. The assurance may be provided as a bank guarantee, bond, or any other form the EPA considers appropriate.
Where an assurer fails to execute action required by a management order, the EPA may claim on or realise that assurance to carry out the action itself, or it may contract third parties to carry out the action. The Land and Environment Court has jurisdiction to determine disputes about claiming on or realising financial assurances.
OWNERS AS WELL AS OCCUPIERS RESPONSIBLE FOR CLEAN-UP
The EPA may now issue clean-up notices under the POEO Act to owners of premises (as an alternative to its existing ability to issue clean-up notices to occupiers of premises) where the EPA reasonably suspects that a pollution incident has occurred or is occurring.
AIR IMPURITY STANDARDS
The Amendment Act clarifies standards regarding air impurities under section 128 of the POEO Act, in response to the Land and Environment Court’s decision in EPA v Ravensworth Operations Pty Ltd  NSWLEC 92. In that case, the Land and Environment Court held that air impurity standards under section 128 applied to both point source emissions and non-point source emissions (such as dust from coal mines and quarries). The Amendment Act clarifies that:
- air impurity standards under section 128 only apply to point source emissions released from an opening or release point; and
- the occupier of any premises emitting non-point source emissions must carry out activity in the premises using means that prevents or minimises the air pollution from the emissions.
GPS WASTE TRACKERS
Under the POEO Act, the EPA may now require waste transporters to install EPA-approved GPS tracking devices on waste transport vehicles.
SUSPENSION OR REVOCATION OF LICENCES
The EPA is now able to suspend or revoke environment protection licences without giving a notice of the EPA’s intention to do so.