14 Aug 2014

Tough new environmental enforcement measures under NSW Bill

A range of new and much higher penalties, and a new power for the EPA to require bank guarantees for remediation, are the key features of the Protection of the Environment Legislation Amendment Bill 2014, introduced into the New South Wales Parliament on Tuesday.

If passed, the Bill will amend

  • the Contaminated Land Management Act 1997;
  • the Protection of the Environment Operations Act 1997; and
  • the Radiation Control Act 1990.

Bank guarantees for remediation work

The EPA will be able to require financial assurances, such as a bank guarantee or bond, as part of a management order under the Contaminated Land Management Act. The EPA can set the amount, but it cannot exceed the EPA's reasonable estimate of the total cost of carrying out the relevant action (including EPA supervision costs).

If the person fails to carry out the required action, the EPA can then do the action itself or contract someone else to do it, and then make a claim on the financial assurance to cover its costs.

The Court can also use this mechanism in proceedings under the Contaminated Land Management Act if it orders an offender to carry out a specified work or program for the restoration or enhancement of the environment.

Increases in penalty notice amounts

The Minister for the Environment, Rob Stokes, announced in his second reading speech for the Bill that the Government will be amending the Protection of the Environment Operations Regulations to increase penalty notice amounts "for the 10 most serious environmental offences" from $1,500 or $5,000 to $15,000, and also to increase some other penalty notice amounts to keep pace with CPI, with effect from September.

Increased penalties for contaminated land offences

Breaching the Contaminated Land Management Act will be much more costly, with maximum penalties rising to $1 million for corporations, and $250,000 for individuals, for the following offences:

  • failing to comply with a management order (up from $137,000 and $66,000 respectively);
  • failing to report contamination (up from $165,000 and $77,000 respectively); and
  • giving false or misleading information (up from $137,000 and $66,000 respectively).

Maximum penalties for other offences will be increased significantly as well.

New penalties, including restorative justice

For some offences under the Contaminated Land Management Act and Radiation Control Act, the Land & Environment Court will be able to order new penalties, including ordering the offender:

  • to publicise the offence and its environmental and other consequences;
  • to notify specified persons, such as shareholders of the offence, via the annual report or other methods;
  • to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit; or
  • to carry out any social or community activity for the benefit of the community or persons that are adversely affected by the offence (a restorative justice activity) that the offender has agreed to carry out.

In addition, the EPA will be able to accept enforceable undertakings from a person

Similar powers already exist under the Protection of the Environment Operations Act, except for the power to order restorative justice, and the Bill will introduce that into the Protection of the Environment Operations Act as well.

Monetary benefits from the offence to be paid out as part of the penalty

In addition to any penalty for breaching the Contaminated Land Management Act, the Court can also assess the monetary, financial and economic benefits to the offender from the offence, and impose them as an additional penalty. This additional penalty is not capped under the Act.

Again, a similar power already exists under the Protection of the Environment Operations Act.

Repeat offenders

Penalties for repeat offenders under the Contaminated Land Management Act or Radiation Control Act can be raised based on the number of times that an offender has been convicted of, or paid a penalty notice for, the same offence within a five-year period.

Waste tracking

It will now be an offence not to fit GPS tracking to waste transportation vehicles.

Licences under the POEO Act to be suspended without prior notice of an intention

The appropriate regulatory authority will not be required to give the holder of a licence notice of its intention to suspend or revoke the licence before actually sending the notice.

Owners now liable under the POEO Act for clean-ups, not just occupiers

The appropriate regulatory authority will now be able to give the owner of premises (as well as, or instead of, the occupier of premises) a clean-up notice under section 91 of the Protection of the Environment Operations Act where it reasonably suspects a pollution incident has occurred or is occurring.

Pollution mitigation obligations for point source and non-point source emissions

The Bill also seeks to clarify the operation of section 128 of the POEO Act (Standards of air impurities

not to be exceeded) following the decision of the Land and Environment Court in Environment Protection Authority v Ravensworth Operations Pty Ltd [2013] NSWLEC 92.

In that case, the Land and Environment Court held that concentration standards prescribed under section 128 could extend to non-point source emissions (such as emissions of dust from mining) as well as to point source emissions (such as emissions from chimneys, pipes and vents). However, concentrations of non-point source emissions cannot be measured by currently available methodologies. Consequently the amendments clarify that:

  • concentration standards and emission rates prescribed under section 128 apply only to point source emissions, and
  • the occupier of premises emitting non-point source emissions must carry on any activity, or operate any plant, in or on the premises by such practicable means as may be necessary to prevent or minimise air pollution from such emissions.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.