Watch out for new environmental enforcement laws

The Protection of the Environment Legislation Amendment Bill 2014, introduced to the Legislative Assembly on 12 August, proposes to strengthen NSW environmental enforcement laws, and introduces the concept of ‘restorative justice’ into environmental enforcement.

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‘Restorative justice’ is described in the second reading speech for the Bill as a process that: “brings together both an offender and a victim to address the actions that should be undertaken by the offender to repair the harm that has been caused.” In practical terms, the concept of ‘restorative justice’ will allow the court to require environmental offenders to undertake actions that go beyond restoration or enhancement of the environment, to also include social or community actions that benefit the community or persons adversely affected by the offence.

The main changes are:

Amendments concerning the Contaminated Land Management Act 1997 (CLM Act):

  • A management order issued under the CLM Act may require a person to provide financial assurance to secure or guarantee funding for the carrying out of the action required under the order. The amount of financial assurance must not exceed the total cost of carrying out the relevant action, including the EPA’s likely costs and expenses.
  • An increase in maximum penalties, including for a person who fails to comply with a management order:
    • For a corporation – $1 million (if responsible for the contamination) or $137,500 (in any other case). Currently, the maximum penalty for a corporation is $137,500 in all cases.
    • For an individual – $250,000 (if responsible for the contamination) or $66,000 (in any other case). Currently, the maximum penalty for an individual is $66,000 in all cases.
  • A court can order an offender under the CLM Act to pay an additional penalty representing the amount of any monetary benefits acquired by the offender by committing the offence. This is the environmental law equivalent of proceeds of crime legislation, and reflects the restorative justice philosophy underlying the amendments.
  • The Land and Environment Court can order a range of new penalties under the CLM Act, including publicising the offence, carrying out a restoration project, or carrying out an activity for the benefit of the community or persons affected by the offence. The example offered for ‘publicising the offence’ is by a notice to shareholders or in an annual report. It will be interesting to see whether the publicising of offences moves beyond simply the print media, to social media or other relevant forums.

Amendments concerning the Protection of the Environment Operations Act 1997 (POEO Act):

  • An authority is not required to give a holder of an environment protection licence under the POEO Act notice of its intention to suspend or revoke the licence. This may provide fertile ground for proceedings claiming a breach of procedural fairness.
  • Owners, in addition to occupiers, of premises can be given a clean-up notice under s91 of the POEO Act. An ‘occupier’ of premises under the POEO Act currently includes the person who has the management or control of the premises. An owner may therefore receive a clean-up notice despite a lessee having management and control of the site. However, the second reading speech states that this power will not be used to prosecute innocent owners who are victims of illegal dumping.
  • Concentration standards and emission rates prescribed under s128 of the POEO Act apply only to ‘point source emissions’. This clarifies the operation of s128 following the decision of the Land and Environment Court in Environment Protection Authority v Ravensworth Operations Pty Ltd [2013] NSWLEC 92, which held that s128 could extend to non-point source emissions such as mining dust, which cannot be measured by currently available methodologies.
  • The EPA may require a person to use a GPS in a transport waste vehicle. Whilst this represents an incursion on privacy, arguably this will enable more vigilant monitoring of high risk waste operations which will prevent pollution incidents from occurring, as well as providing evidence where pollution incidents occur.
  • The Land and Environment Court can order an offender under the POEO Act to carry out an activity for the benefit of the community or persons affected by the offence. This is the environmental law equivalent of community service.

These changes follow last month’s release of the Auditor-General’s report on the management of contaminated sites by the EPA and DTRIS. You can view the report here.

Author: Elizabeth Sivell, Lawyer – Maddocks

 

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