Arie van der Ley
under the supervision of
As of 1 November 2014 the offence of land pollution will be strengthened and made clearer through an amendment to the definition of land pollution.
The amendment adds a list of prescribed wastes that will automatically constitute land pollution under the offence of land pollution in section 142A of the Act.
As of 1 November 2014 paragraph (b) of the definition in the Act's Dictionary will prescribe the following matter:
- hazardous waste,
- restricted solid waste,
- more than 10 tonnes of asbestos waste,
- more than 5 tonnes of waste tyres or more than 500 waste tyres.
This amendment will reduce ambiguity and send a clear message to polluters through the high penalties of up to $1,000,000 for a corporation (plus continuing penalties of $120,000 a day for continuing offences) and up to $250,000 for an individual (plus continuing penalties of up to $60,000 a day for continuing offences).
The definition takes a particularly strong approach to the dumping of tyres. Originally, the draft regulations had proposed the land pollution offence to cover 100 tonnes or more than 10,000 tyres. However, the Government responded to feedback that those amounts were too high and did not reflect the risk posed by tyre dumping, by greatly reducing the threshold.
DEFENCE FOR UNLICENSED LANDFILLS
The 2014 Regulations introduce a new defence to the land pollution in conjunction with s142E of the Act and clarify the required 'operating requirements' to fall under this defence. All unlicensed landfills will need to meet the minimum standards prescribed by the 2014 Regulations in order to rely on the defence and avoid prosecution.
The operating requirements include taking all reasonable steps to:
- Minimising odour or offensive noise beyond the boundaries of the landfill site
- avoiding discharges from the landfill site causing water pollution
- maintaining plant (used for moving, disposing, controlling pollution)
- securing the site against uncontrolled public access
- minimising the emission of dust beyond the boundaries of the landfill site
- minimising the tracking of dust or mud from the site on to any public road
- minimising the risk of fire at the landfill site.
Additionally, asbestos waste and clinical waste is to be managed in a prescribed manner.
The introduction of the defence and minimum standards aims to improve operational practices and reduce environmental risk of unlicensed landfills. This more prescriptive regime under the 2014 Regulations creates potential for increased prosecutions of unlicensed landfills due to the current varying standards across the NSW industry. All unlicensed landfills will need to assess their current practices to ensure compliance with the prescribed minimum standards.
Further reading about the 12 areas of staged change to the NSW protection of the Environment Operations Waste Regulations: Click here
Disclaimer: The information contained in this e-alert/update is not advice and should not be relied upon as legal advice. Hunt & Hunt recommends that if you have a matter that is legal, or has legal implications, you consult with your legal adviser.