Summary

If passed, proposed amendments to the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) will impose more severe penalties, including jail time, on those that are convicted of more than one waste offence within five years.

The amendments also propose to expand the powers of the EPA to allow the seizure of vehicles and vessels, and introduce a new penalty of knowingly supplying false or misleading information about waste. Recent court decisions show the EPA's willingness to prosecute offenders and seek the most severe penalties available.

Waste reform has recently been on the agenda at national, state and local levels. We considered reform to waste legislation in our March eBulletin and we revisit this important area in this month's eBulletin.

The proposed amendments to the POEO Act continue this trend of recent reforms regarding waste and recent prosecutions by the EPA have sent a clear message that the EPA is cracking down on repeat waste dumping offenders and those who knowingly supply false information relating to waste.

If passed, the amendments will impose more severe penalties and will expand the powers of the EPA. Recent case law also indicates the EPA's increasing focus on the activities of waste transporters and those disposing of waste, and demonstrates the EPA's willingness to prosecute and to seek more severe penalties, including custodial sentences, for waste offences.

In this eBulletin we summarise the proposed amendments to the POEO Act, look at two recent waste related decisions involving the EPA and explain what implications these cases and legislative changes are likely to have on waste operators.

Protection of the Environment Operations Amendment (Illegal Waste Disposal) Bill 2013

The Protection of the Environment Operations Amendment (Illegal Waste Disposal) Bill 2013 (Illegal Waste Disposal Bill) was introduced to the NSW Legislative Assembly on 30 May 2013 to target repeat illegal dumping, impose more severe penalties and expand the powers of the EPA.

If passed, the Illegal Waste Disposal Bill will amend the POEO Act to: 

  • Create an offence for knowingly supplying false or misleading information about waste, which will be punishable by a maximum period of 18 months imprisonment in addition to a maximum fine of $240,000 for individuals, and a maximum fine of $500,000 for corporations.

Currently, the maximum penalties under the POEO Act for supplying false or misleading information about waste are $120,000 for individuals and $250,000 for corporations. This offence will remain in the POEO Act, in addition to the more serious offence of knowingly supplying false information.

Directors will be exposed to special executive liability for the offence of knowingly supplying false information. For more on the distinction between executive liability and special executive liability under the POEO Act, click here

  • Include a new offence targeting repeat waste offenders. A person who is convicted of a waste offence and commits a further waste offence within five years of that conviction will be liable for the maximum monetary penalty ($5,000,000 for corporations and $1,000,000 for individuals) and/or imprisonment for two years (Repeat Waste Offence).

This too will be a special executive liability offence under the POEO Act. 

  • Authorise the EPA to seize a motor vehicle or vessel that the EPA reasonably believes was used to commit a Repeat Waste Offence. The Land and Environment Court (LEC) may also order the forfeiture of a motor vehicle or vessel if it convicts the person of the Repeat Waste Offence. The forfeiture can be ordered by the LEC in addition to the monetary penalties and possible imprisonment for Repeat Waste Offences. 
  • Amend the POEO Act to refer to "place" rather than "land", making it an offence to use any place as a waste facility (ie not just limiting it to the use of land). This will capture the illegal use of a body of water as a waste facility.

The amendments introduced by the Illegal Waste Disposal Bill are illustrative of the EPA's intention to broaden the range of offences and to increase the penalties to discourage ongoing illegal waste dumping. This trend is also evident in recent prosecutions in which the EPA have sought imprisonment and higher penalties against those who commit waste offences. We summarise two recent decisions below.

What the Court has said - recent EPA prosecutions

Environment Protection Authority v Hanna [2013] NSWLEC 41

  • In 2010, the EPA commenced civil enforcement proceedings in the LEC against the operator of a waste transportation business when waste was transported and dumped at unlicensed premises. 
  • The LEC made orders prohibiting the operator from continuing to dump waste on unlicensed premises and preventing him from transporting waste without a licence. 
  • In 2012, the operator transported and dumped further construction waste containing asbestos on an unlicenced property without the property owner's knowledge or approval. The operator also failed to comply with a clean up order issued by Bankstown City Council. 
  • The operator was again prosecuted by the EPA, pleading guilty to the charge of contempt of court as a result of breaching the orders prohibiting him from dumping material illegally. 
  • The LEC sentenced the operator to three months in prison, however, the sentence was suspended on the condition that the operator enter into and comply with a good behaviour bond. 
  • In imposing the custodial sentence, Justice Pain considered the operator's history of eight offences relating to the transportation of waste, the number of penalty notices issued by various councils, the operator's lack of remorse and that the operator's offences were carried out for profit, as he could have disposed of the waste lawfully for a fee. 
  • If the Illegal Waste Disposal Bill is passed, in cases such as this, the EPA may seek more severe monetary penalties and jail time under the Repeat Waste Offence provisions.

Environmental Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19

  • The EPA prosecuted Aargus Pty Ltd (Aargus) and two of its employees for failing to disclose the presence of asbestos in material which was subsequently used for landscaping. 
  • One of the employees, an environmental manager, removed two large pieces of fibre cement, which he suspected contained asbestos, prior to sending a sample for soil analysis. He subsequently signed a report and certificate stating that no asbestos materials were observed. Asbestos material was later discovered by council officers. A clean-up notice was issued and all material was removed from the property. 
  • The EPA prosecuted Aargus and its employees individually under s144AA of the POEO Act for supplying information that was false or misleading. 
  • The LEC considered the supply of false information created the real possibility of environmental harm. 
  • The employees, a project manager and the environmental manager, were fined individually. The environmental manager was given a larger penalty of $9,000 as he issued the false information, however, the project manager was also fined $6,000 as he exercised primary control over issuing the report and certificate. 
  • As a corporation, Aargus received the largest penalty of $30,000, because the activities of its employees were not outside the scope of the functions required to be performed, and because the company purported to control staff and the issuing of policies and procedures. 
  • Under the Illegal Waste Disposal Bill, for knowingly providing false information relating to waste, the environmental manager would be exposed to possible imprisonment of up to 18 months and/or a maximum fine of $240,000. As a corporation, Aargus would be exposed to a maximum penalty of $500,000.

Bottom line for your business

  • The Illegal Waste Disposal Bill introduces new offences and heavier penalties to deter people from dumping illegally. 
  • Recently, the EPA has focussed on the activities of waste transporters, waste disposal and other waste activities, and has demonstrated its willingness to intervene and commence proceedings for waste offences. 
  • Organisations should conduct a regular review of procedures relating to waste transport and disposal to ensure they are appropriately licensed and operating within the regulatory scheme. 
  • As well as ensuring their own procedures are compliant and licences are in place, organisations should ensure that other waste disposal companies that they deal with, are also appropriately licenced. Failure to do this can result in an organisation, its directors and its employees being exposed to prosecutions with heavy fines, EPA legal costs, remediation costs and potentially jail time for employees. 
  • When supplying information which relates to waste, including during the course of conducting testing or preparing environmental reports, organisations should be vigilant in ensuring that all information supplied is accurate and not misleading or false. Directors and managers should also ensure that appropriate procedures are in place to manage their exposure. 
  • Organisations and employees who conduct environmental testing and produce environmental reports should put appropriate policies and procedures in place to ensure that reports and certificates comply with environmental laws, particularly with the POEO Act and the proposed offence of knowingly providing false information relating to waste. 
  • The amendments also broaden the reach of the offence of unlawfully using land as a waste facility, so that the unlawful use of all places as a waste facility will be caught. This amendment means that those who unlawfully dispose of waste in rivers and other bodies of water will now be liable under section 144, possibly in addition to other provisions of the POEO Act.