On 24 October 2018, the New South Wales upper house introduced the Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018 (the Bill) with the stated aim of ‘[making] clearer the Government is serious about protecting the environment of New South Wales and the health of its citizen’, as well as ‘provide greater deterrence against illegal dumping of asbestos waste’.
The current laws on illegal dumping, transporting, and recycling of asbestos waste
The current version of the Protection of the Environment Operations Act 1997 (NSW) (the Act) provides for prohibitions against unauthorised dumping and receiving of waste in general [Ss 143 & 144, of the Act]. This general prohibition is complimented by asbestos-related provisions within the Protection of the Environment Operations (Waste) Regulations 2014 (NSW) (Waste Regulations), which detail the requirements for handling of asbestos waste. For example, the Waste Regulations requires the person delivering the asbestos waste to notify the owner of the landfill that will be receiving the asbestos waste [Clause 80(2), Waste Regulations], the occupier of the landfill site to cover up the disposed asbestos waste in certain manners [Clause 80(4), Ibid], the transportation of asbestos waste to follow certain regulatory requirements, including securing the asbestos materials securely during transport [Clause 78, Ibid] and wetting down the waste if the asbestos materials are contained soil [Clause 78(d), Ibid]. The Waste Regulations also expressly bans recycling and reusing asbestos materials [Clause 81, Ibid].
Under existing provisions of the Act, the maximum fine that can be imposed for pollution of land, illegal dumping or receiving of waste is $1 million for corporate offenders and $250,000 for individual offenders [Ss 143 (1) and 144(1), the Act]. Repeat offenders may even be imprisoned for up to two years under the Act [Section 144AB, Ibid]. By contrast to the hefty fines that can be imposed under the Act, however, the maximum fine that can be imposed for breaching the asbestos-related provisions of the Waste Regulations is currently limited to a relatively ‘modest’ sum of $44,000 for corporate offenders and $22,000 for individual offenders [Clause 78, 79, 80, and 81, Waste Regulations].
Although local councils have the authority to prosecute many offences under the Act, their authority to bring criminal proceedings against waste offences (including asbestos-specific waste offences) are limited [Section 218(1), the Act]. Nevertheless, councils are empowered to issue Penalty Notices against unlawful dumping of asbestos waste with fines up to $4,000 for individual offenders and $8,000 for corporate offenders. Council may also issue Penalty Notices against breaches of asbestos-related provisions under the Waste Regulations with fines up to a relatively small $750 for individual offenders and $1,500 for corporate offenders [Schedule 6, Protection of the Environment Operations (General) Regulations 2009 (NSW)].
What are the key changes?
Perhaps the most consequential change that the proposed Bill will bring about will be the increase of maximum for asbestos-related offences to $2 million for corporate offenders, and $500,000 for individual offenders [Clause 1-6, Schedule 1, the Bill]. This represents a doubling of maximum fine payable under existing provisions. In addition, the proposed Bill will transfer the penalty provisions concerning dumping of asbestos waste and recycling/reusing asbestos materials from the Waste Regulations to the Act [Clause 7, Schedule 1, the Bill]. The maximum fine payable by those breaching these transferred provisions will be in line with the breach of other asbestos-related provisions under the Act, being $2 million and $500,000 for corporate and individual offenders respectively.
Besides beefing up the maximum penalty applicable to asbestos-specific waste dumping offences, the proposed Bill will also have the effect of rendering certain corporate executives assuming criminal liabilities in the event that the offender is a corporation [Clause 9, Schedule 1, the Bill], as well as requiring the Court to take into account the presence of asbestos in sentencing of all offences charged under the Act [Clause 11, Schedule 1, the Bill].
However, for councils, the most important new changes will be the increase in the maximum fines that can be issued under Penalty Notices for the breach of asbestos disposal and handling requirements that were previously governed by the Waste Regulations. Under the proposed Bill, the maximum fine that can be issued under Penalty Notices will be increased from the existing $750 for individual offenders and $1,500 for corporate offenders to $4,000 and $8,000 for individual and corporate offenders respectively [Clause 1, Schedule 2, the Bill].