New laws seeking to address the illegal disposal of asbestos waste have commenced in New South Wales, earlier than the anticipated commencement of the end of 2019. The Protection of the Environment Operations Amendment (Asbestos Waste) Act 2018 has doubled penalties and created new offences for the unlawful disposal and use of asbestos waste under the Protection of the Environment Operations Act 1997 (NSW).

The majority of the provisions of the Protection of the Environment Operations Amendment (Asbestos Waste) Act 2018 (Amending Act) commenced on 25 January 2019, much earlier than the commencement timeframe previously flagged by the NSW Government.

Individuals and companies who manage, transport and/or dispose of asbestos waste need to be aware of the changes. Anyone who receives fill or other materials to site should also be aware of the changes in order to avoid the inadvertent acceptance, use and disposal of material that may contain asbestos waste.

The key changes

The Amending Act contains three key changes to the Protection of the Environment Operations Act 1997 (NSW)(POEO Act):

  • Increased penalties for:
    • Pollution of land;
    • Unlawful transposition or depositing of waste; and
    • Use of place as a waste facility without lawful authority.
  • New offences including:
    • Unlawful disposal of asbestos waste; and
    • Re-use and recycling of asbestos waste.
  • New sentencing considerations.

Increased penalties

Some maximum penalties have been doubled where they involve asbestos waste:

 

Previous penalty

New penalty

Pollution of land – section 142

Unlawful transposition or depositing of waste – section 143

Use of a place as a waste facility without lawful authority – section 144

New offences

Two asbestos offences have been moved from the Protection of the Environment Operations (Waste) Regulation 2014 (Waste Regulations) to the POEO Act:

  • the unlawful disposal of asbestos waste off the site at which it is generated (section 144AAA); and
  • causing or permitting the re-use and recycling of asbestos waste in any form (section 144AAB).

Disposal of asbestos waste under s 144AAA includes to dump, abandon, deposit, discard, reject, discharge or emit anything that constitutes asbestos waste, and also causing or permitting the disposal of asbestos waste.

These two offences are now 'special executive liability offences', which means a director or any other person concerned in the management of the offending corporation can be held personally liable for the offences.

Under the Waste Regulations these offences carried modest penalties. Under the POEO Act, the penalties have increased significantly:

 

Previous penalty

New penalty

Unlawful disposal of asbestos waste – section 144AAA

Re-use and recycling of asbestos waste – section 144AAB

$500,000 for individuals and, in the case of an ongoing offence, $60,000 for each day the offence continues

$2 million for a corporation and, in the case of an ongoing offence, $120,000 for each day the offence continues

The maximum fine that can be imposed under Penalty Notices for the two offences has increased to $4,000 for individual offenders and $8,000 for corporate offenders where the fine is imposed by a class 1 enforcement officer (i.e. the local authority, the EPA or the Office of Environment and Heritage).

Where the fine is imposed by someone other than a class 1 enforcement officer, the maximum fine is now $7,500 for individuals and $15,000 for corporations.

New sentencing consideration

The Amending Act will also amend section 241 of the POEO Act to include as an additional sentencing consideration 'the presence of asbestos in the environment'. This amendment has not yet commenced, but is anticipated before the end of 2019.