In brief - Tougher penalties designed to deter businesses from illegal waste disposal
With the rising costs of disposing of waste by legal means, many businesses could be tempted to cut corners and dispose of the waste generated by their enterprise illegally. Businesses in NSW need to be aware of the increased penalties for illegal waste dumping.
Previous penalties seen as insufficient to discourage illegal dumping of waste
In NSW, the new Illegal Waste Disposal Act 2013, which commenced on 1 October 2013, outlines the amendments made by the Protection of the Environment Operations Amendment (Illegal Waste Disposal) Act 2013 No. 60 (Act). The Act amended the Protection of the Environment Operations Act 1997 (POEO Act), with the purpose of preventing illegal waste disposal by increasing penalties.
The introduction of tougher penalties stems from the perception that the previous penalties imposed on individuals and corporations who illegally dump waste did not outweigh the profits that could be made from such dumping.
The NSW Environmental Protection Authority (EPA) aims to achieve a 70% household and municipal recycling target by 2021 as part of its draft Waste Avoidance Strategy 2013-2021.
Penalties for supplying false or misleading information
Whilst it is a strict liability offence under section 144AA of the POEO Act for providing false or misleading information, the new Act creates an offence for "knowingly" supplying false or misleading information about waste.
This new offence carries significant fines of up to $500,000 for a corporation and $240,000 for an individual. Additionally, these fines may be coupled with a maximum period of imprisonment of 18 months, or the offender may be sentenced to imprisonment instead of the payment of a fine.
Currently, section 169A of the POEO Act imposes executive liability upon directors for offences of a corporation. Whilst these new offences do not explicitly apply to directors and managers, it is likely that they will be exposed to penalties if they commit an offence under the new regime. Recent case law indicates that liability and penalties, will extend to directors, especially in circumstances where the director obstructs an environmental investigation. (See Environment Protection Authority v MA Roche Group Pty Ltd  NSWLEC 191).
Repeat offenders who illegally dump waste
The new section 144AB of the POEO Act now imposes further penalties for offences within the scope of sections 120, 142A, 143 and 144 of the POEO Act. These offences include polluting waters with waste, polluting land, illegally dumping waste or using land as an illegal waste facility.
If an individual is previously convicted of an offence under section 144AB, and that offence has been repeated within a period of five years, the offence is punishable by a maximum period of imprisonment of two years, as an alternative or in addition to a fine.
New powers to seize and impound motor vehicles and vessels
Under the new Part 7.6A of the POEO Act, the EPA has increased powers to seize a motor vehicle or vessel if it has reason to believe that it has been used to commit a repeat waste offence.
Additionally, the Land and Environment Court can order the forfeiture of a motor vehicle or vessel to the state if it convicts the person of a repeat waste offence.
Unlawful waste facilities
The Act broadens the offence under section 144 of the POEO Act of using land as a waste facility without lawful authority, to using any "place" as a waste facility without lawful authority.
This now covers the illegal use of a body of water as a waste facility and the change from "land" to "place" now covers most areas.
Additional financial penalties equal to monetary benefit gained by polluter
Section 249 of the POEO Act has been amended by the Act whereby an offender may be ordered by the court to pay an additional financial penalty, equal to the monetary benefit they gained from committing the crime, as an additional penalty for the offence.
Changes to the waste levy and EPA licensing designed to expose illegal operators
Amendments to section 88 of the POEO Act change the waste levy regime so that all waste received at any licensed waste facility, not just landfills, will be liable to pay the levy.
Importantly, the payment of the levy will not be triggered until the waste is sent off-site for disposal, stockpiled on-site for more than 12 months or stockpiled above any legal stockpile limits. The liability will be extinguished on waste that is transported off-site for further processing or reuse.
The payment of the levy will commence with the new provisions under the draft NSW Protection of the Environment Operations (Waste) Regulation 2005.
Additionally, weighbridges will be required to be installed at all licensed waste facilities to ensure that data collected is accurate for the purposes of calculating the waste levy.
Further, in determining site-specific environmental risks at a licensed waste facility, the EPA will make use of its "risk assessment tool". Each licence will be allocated to one of three risk levels, with three being the highest risk. The risk based system will be used to impose certain fees related to the risk level, with the possibility of a site's fees being reduced over time if there is a level of certainty that the site will not harm the environment.
It is intended that the new amendments to the POEO Act will provide an even regulatory and financial playing field for the lawful operators and expose the illegal operators, at all levels.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.