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Tougher penalties for asbestos waste offences

27 November 2018

#Planning, Environment & Sustainability

Breellen Warry

Published by Breellen Warry, Georgia Appleby, Clara Edwards

Tougher penalties for asbestos waste offences

Managing asbestos waste safely is high on the agenda for the New South Wales government. In the wake of a series of highly publicised waste and asbestos dumping offences, the NSW Parliament recently voted to amend the Protection of Environment Operations Act 1997 (POEO Act) to address asbestos-related and direct asbestos waste dumping in New South Wales. 

The Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018 (Bill) passed both houses of Parliament on 21 November 2018 and is now awaiting assent. The amendments introduce stricter sanctions for asbestos waste offences and a new separate offence for illegal asbestos waste disposal as well as re-use and recycling of asbestos waste under proposed new sections 144AAA and 144AAB of the POEO Act. Importantly, the Bill moves asbestos related offences to the POEO Act from the Protection of the Environment Operations (Waste) Regulation 2014, giving more clarity and strength to the provisions.

Specific measures aimed at strengthening the legislative force of the asbestos waste offence provisions include:

  • increasing the penalties for other waste offences that involve asbestos waste (to $2M for corporations and $500,000 for individuals), including pollution of land,[1] unlawful transporting or depositing of waste[2] and the use of land as a waste facility without authority[3]
  • making directors liable for penalties for offences commissioned by their companies, with offences involving the disposal and reuse of asbestos waste also attracting special executive liability under the POEO Act
  • making the presence of asbestos in the environment in waste offence matters a mandatory sentencing consideration.

New South Wales Asbestos Waste Strategy 2018-22

In addition, the NSW Environment Protection Authority (EPA) recently published its consultation draft for its policy the NSW Asbestos Waste Strategy 2018-22. This is to complement its general waste strategy on illegal dumping, the NSW Illegal Dumping Strategy 2017-2021, highlighting the clear importance of addressing asbestos waste management and disposal as a distinct area where regulation and policy is necessary.

The aims of this draft strategy include to:

  • make it easier and cheaper to dispose of asbestos waste legally 
  • educate people on the risks of poor asbestos waste management and the benefits of doing it well 
  • create better systems for tracking asbestos waste from generation through disposal 
  • strengthen the regulatory framework.

The draft strategy notes that the community considers illegal asbestos waste dumping to be the most unacceptable form of illegal dumping behaviour.[4] This again demonstrates the heightened motivation from government and policymakers to act on this issue.

The need for reform

The reforms have been introduced following evidence of high volume asbestos-related waste dumping by unscrupulous operators and community concern over illness triggered by exposure to asbestos. By way of example, the EPA investigated and prosecuted a case involving a record 600 truckloads of asbestos waste material removed as part of the Green Square Town Centre development in Sydney.[5] 

In addition, impetus for reforms follow recommendations by the Independent Commission Against Corruption in a June 2017 report entitled Corruption Investigation in to the Conduct of a Regional Illegal Dumping Squad Officer and Others (ICAC Report). The ICAC Report found that the regulatory response to illegal dumping through incentives, such as reducing the cost of legal dumping for proper asbestos waste disposal, could be an effective tool and also recommended that the NSW Government consider creating a single coordinating authority for overseeing asbestos waste matters in NSW (this recommendation was not implemented in the Bill). 

Contemporaneously, the NSW Ombudsman released a report in April 2017 outlining the issues and regulatory gaps in dealing with asbestos related waste in NSW (Ombudsman Report).[6] In particular, the Ombudsman Report found a concerning lack of effective regulation for handling and disposal of asbestos waste, in the context of an “ad hoc” and “confusing” system with no single coordinating body. 

Further, and as outlined in the Ombudsman Report, the fragmented nature of the pre-amendment framework made it difficult for asbestos related offences to be appropriately dealt with by authorities.

What this means

Increased penalties and the higher status given to asbestos related waste offences are intended to act as stronger deterrents for illegal waste operators. If implemented effectively, this will provide more powerful legislative tools to deal with cases such as repeat offender Mr Dib Hanna, who was charged and convicted under the pre-amendment POEO Act numerous times before finally being sentenced to three years imprisonment for illegal transport of waste and illegal dumping of waste, which included asbestos, by the Land and Environment Court in May this year.[7] 

It remains to be seen whether the Bill’s strengthening of asbestos waste offences will have the intended effect. Given the serious impact of asbestos waste on the environment and public health, the changes are welcomed as a step in the right direction. Implementation of Schedule 1 of the Bill, which contains the majority of the amendments, has been delayed for 12 months, so there is sufficient time to review and implement relevant changes. 

Anyone who is involved in the transport and disposal of asbestos should be aware of the new provisions and increased penalties. Furthermore, if you are accepting any waste that has the potential to contain asbestos, such as fill or building and demolition waste, you should make sure that you have appropriate risk management strategies in place to ensure the waste streams do not contain asbestos. 

If you have any queries in relation to this matter, please contact Breellen Warry. 

Authors: Breellen Warry, Georgia Appleby & Clara Edwards

[1] Section 142A, POEO Act.

[2] Section 142, POEO Act.

[3] Section 144, POEO Act.

[4] EPA NSW, NSW Asbestos Waste Strategy 2018-22, Draft for consultation, p9.

[5] See: ABC News.

[6] NSW Ombudsman (April 2017) Asbestos: How NSW government agencies deal with the problem.

[7] Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80.

Contacts
Sydney 

Breellen Warry, Partner 
T: +61 2 8083 0420 
E: breellen.warry@holdingredlich.com

Melbourne
Joseph Monaghan, Partner 
T: +61 3 9321 9857 
Ejoseph.monaghan@holdingredlich.com

Brisbane
Gerard Timbs, Partner
T: +61 7 3135 0644
E: gerard.timbs@holdingredlich.com

Jenny Humphris, Partner
T: +61 7 3135 0690
E: jenny.humphris@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future. 

Breellen Warry

Published by Breellen Warry, Georgia Appleby, Clara Edwards

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