In this article, we have briefly outlined some of the key legislative changes directed at increasing environmental protection that impact waste operators. One significant change is the increase in penalty amounts. Offences for corporations that previously attracted a $15,000 penalty notice now attract a $30,000 penalty for the first offence and a $45,000 penalty for a second offence.

We have also reviewed some of the key cases involving the NSW Environment Protection Authority (EPA) relating to:

• an air pollution prosecution with wide ranging orders;

• waste tyres;

• special executive liability offences; and

• a prosecution of an employee.

Finally, we have briefly outlined some of the EPA's targeted compliance areas that operators should be aware of moving into the new year. 

Earlier in the year, the NSW Legislative Assembly passed the Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024. 

Notable changes to the Protection of the Environment Operations Act 2014 (NSW) (POEO Act) include:

• The doubling of penalties for common penalty notice offences as well as identifying an amount for a first offence, and a higher amount for a second offence. 

• The doubling of the maximum penalties across the POEO Act. For example, the maximum offence for a corporation who may pollute waters was $1,000,000, and is now $2,000,000.

• The introduction of preliminary investigation notices. Such notices can require certain people to carry out an investigation if the EPA reasonably suspects that there are circumstances that may pose a potential risk of harm to human health or the environment or if a pollution incident, may exist, or has existed. 

• Empowering the Land and Environment Court to make an order prohibiting an offender from being involved in scheduled activities (such as waste storage, resource recovery, landfilling, etc) or applying for, or holding an environment protection licence. 

As a result of these legislative changes, the Land and Environment Court will likely determine that higher penalties are appropriate for offences under the POEO Act given that judges need to consider maximum penalties when sentencing. The EPA will also no doubt issue penalty notices in the higher amounts in an attempt to deter some operators from considering that penalty notices are a "cost of doing business". 

In Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd [2024] NSWLEC 21, the defendant pleaded guilty to the offence of causing or permitting an emission of an offensive odour from a premises to which an environment protection licence (EPL) applies. It was alleged that over the course of more than two months, landfill gas was emitted from the defendant's landfill facility. The defendant was ordered to pay $280,000 with $140,000 of that to be paid to Blacktown City Council for the purpose of a sustainability initiative. Other orders by the Land and Environment Court included that the defendant was to publicise the offence and the orders in The Sydney Morning Herald, Inside Waste, Blacktown News, its Facebook page, and its LinkedIn page. In addition, the defendant was ordered to send notices to a number of affected residences, and pay the EPA's legal and investigation costs. 

In 2023, one of the EPA's priority areas was addressing the apparent growing trend of stockpiling waste tyres which creates safety and environmental concerns. Some of the cases relating to waste tyres are mentioned below.  

In Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd [2024] NSWLEC 63 (BSV Tyre case) the EPA charged the defendant with ten offences associated with improper storage of waste tyres in contravention of its EPL. The contravened conditions related to the maximum amount of waste tyres that could be stored at its premises, the maximum height of any tyre stockpiles, storage in accordance with the NSW Fire Brigades Guidelines for Bulk Storage of Rubber Tyres and the storage locations within the premises. The defendant was ordered to pay a total of $161,200 for the ten offences and $45,000 of the EPA's legal costs. 

In Environment Protection Authority v Bald Hill Quarry Pty Ltd [2024] NSWLEC 114, the defendant was charged with and pleaded guilty to five offences. Four of the offences related to the company using shredded tyres as a daily cover at its landfill in circumstances where that material was not approved. The EPA had also advised the company that the use of shredded tyres was not appropriate. The defendant was ordered to pay $341,000 as well as $236,250 in the EPA's legal costs.

The EPA has continued its previous trend of prosecuting directors and those involved in the management of a corporation under the special executive liability provisions. 

It is first relevant to mention the decision of Environment Protection Authority v Elmustapha [2023] NSWLEC 143 which was handed down late in 2023 and saw the sole director and shareholder of a waste disposal company ordered to pay $263,000. The defendant pleaded guilty to six offences for supplying false or misleading information about waste. Prior to commencing proceedings, the EPA undertook covert surveillance of the landfill site, executed a search warrant of the business premises, and conducted two interviews with the defendant, showcasing the broad powers afforded to the EPA to deal with this kind of conduct.

The circumstances that gave rise to the BSV Tyre case mentioned above also led to the prosecution of its director in Environment Protection Authority v Nath [2024] NSWLEC 10 (Nath). One of the directors was charged with and pleaded guilty to four offences for improperly storing waste tyres in contravention of the company's EPL. The director was ordered to pay $65,000 plus the EPA's legal costs. 

In Environment Protection Authority v Calleija; Environment Protection Authority v Budget Waste Recycling Pty Ltd [2024] NSWLEC 119, the company pleaded guilty to one offence, and its director plead guilty to two offences for failing to comply with a prevention notice. The company was ordered to pay $234,000 and its director was ordered to pay $100,000 as well as the EPA's legal and investigation costs. 

Importantly for councils, the Court of Criminal Appeal delivered judgment in Environment Protection Authority v McMurray [2024] NSWCCA 160, and determined that general managers and chief executive officers of a council can be charged with special executive liability offences. In this case, EPA commenced a local court prosecution against the general manager of Cootamundra-Gundagai Regional Council for causing a place to be used as a waste facility without lawful authority. 

While persons responsible for the management of corporations and councils need to be vigilant of the special executive liability provisions, employees and contractors also need to be aware that they too can be subject to prosecution for events arising while they work.

On 3 June 2022, a fuel tanker driver caused a diesel spill of approximately 11,500 litres that discharged into Mittagong Creek. This gave rise to two prosecutions by the EPA this year - one against the employer and one against the fuel tanker driver. 

The first case dealt with a fuel tank driver, Mr Routledge, in Environment Protection Authority v Routledge [2024] NSWLEC 8. Mr Routledge was charged with two offences for polluting water and the land. Mr Routledge was ordered to pay $19,867 as well as the EPA's legal and investigative costs. 

In the second case, the EPA brought proceedings against Mr Routledge's employer, Park Pty Ltd as it was vicariously liable. In Environment Protection Authority v Park Pty Ltd [2024] NSWLEC 120, the company was charged with the same two offences that its employee, Mr Routledge, had been charged with. The company was ordered to pay $135,000 as well as the EPA's legal costs and investigation costs. 

The 2024/2025 Targeted Compliance Program Projects mentioned on the EPA's website provides an indication as to where resources are likely to be directed in 2025. Some of the projects will focus on:

1. Asbestos waste generation and transport. It appears the EPA will be focusing on ensuring that those dealing with asbestos are complying with the relevant requirements. 

2. Organics and construction and demolition waste processing sectors. The EPA will focus on assessing inputs, processes and output for facilities producing mulch, pasteurised garden organics, compost and recovered fines. This is not surprising given the contaminated mulch issue that arose earlier this year where dozens of sites were found to have mulch that was contaminated with asbestos which involved a large scale investigation and clean up operation. We covered this issue in more detail here. The assessment may lead to further changes to how industry recycles and or tests recovered materials. 

3. Water quality: erosion and sediment control. The EPA's website mentions that there will be an audit and inspection of sediment basins at licensed premises. Those with sediment basins may want to be on the front foot and identify any issues prior to the EPA's audit.