REGULATING THE WASTE INDUSTRY
NSW has stringent waste laws and regulations that guide the classification, transport, and handling of the state’s waste industry.
The two (2) main legislations dealing with waste in NSW are the Protection of the Environment Operations Act 1997 (NSW) (“the Act”) and the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) (“the Regulations”).
The main authority responsible for enforcing these legislations is the NSW Environmental Protection Authority (“EPA”).
What is ‘Waste’?
Waste is defined in the Act to include:
- any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or
- any discarded, rejected, unwanted, surplus or abandoned substance, or
- any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or
- any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or
- any substance prescribed by the regulations to be waste.
The EPA has introduced ‘waste classification guidelines’ to assist businesses in classifying their waste as the following:
- Special waste;
- Liquid waste;
- Hazardous waste;
- Restricted solid waste;
- General solid waste (putrescible); and
- General solid waste (non-putrescible)
Do you need a license?
If you want to carry out a business for a waste-related activity, it is up to you to determine whether or not you need a license.
Section 43 of the Act requires you to hold a license should you be undergoing works mentioned in sections 47- 49, as well as the activities listed under section 122 of the Act. These include:
- Any place where scheduled development work is being carried out;
- Any premise and non-premised based activities listed in schedule 1 of the Act, such as:
- Agricultural processing;
- Brewing and distilling;
- Cement or lime works;
- Ceramic works;
- Chemical production;
- Chemical storage;
- Coal works;
- Coke production;
For a full list of activities that require a license, see Schedule 1 of the Act.
Part 5.6, Division 3 of the Act sets out the different types of waste offences in NSW, its maximum penalty, as well as any defences you may raise. To summarise, it is an offence to:
- Illegally transport waste that cannot lawfully be managed by a waste facility;
- Use a place as a waste facility without lawful authority;
- Unlawfully dispose of asbestos at a facility that cannot deal with asbestos waste;
- Re-use or recycle asbestos waste;
- Supply false information about waste to another person in the course of dealing with the waste; and
- Pollute land or water systems.
The aforementioned offences are referred to as ‘Tier 2’ penalties. The maximum penalties for each offence are:
- Corporations – fines up to $2,000,000 and, for each day the offence continues, a fine of $20,000 per day;
- Individuals – fines up to $500,000 and, for the day the offence continues, a fine of up to $60,000 per day.
Tier 1 Offences
Tier 1 offences are found in Part 5.2 of the Act (sections 115 – 117) and relates to any offence whereby a person disposes of waste that causes or is likely to cause harm to the environment, such as:
- Improper disposal of waste;
- Any leak, spill or other escape of waste; and
- Causing a controlled substance within the meaning of the Ozone Protection Act 1989 to be emitted into the atmosphere.
You can be charged for a Tier 1 Offence regardless of whether the offence was done wilfully or negligently. Depending on whether the offence was carried out wilfully or negligently, different penalties may apply.
Generally, the maximum penalties for a Tier 1 offence is:
- If committed wilfully, fines up to $5,000,000
- If committed negligently, fines up to $2,000,000
- If committed wilfully, fines up to $1,000,00 or seven (7) years imprisonment
- If committed negligently, fines up to $400,000 or four (4) years imprisonment
Generally, you may be able to rely on the following defences for an offence under the Act:
- The offence occurred from circumstances out of your control;
- You took reasonable precautions and exercised due diligence to prevent the commission of the offence;
- The waste was disposed of with lawful authority;
- You were given an approved notice by the owner of the waste facility to transport the waste to that place, and the notice stated that the waste facility could lawfully be used as a waste facility for the waste.
How can we help?
At JB Solicitors, we are able to assist you in defending any offence you may be charged for under the Act. We can provide you with detailed advice about your right and obligations under your waste license, and represent you in Court to defend or negotiate offences you may be charged with. Contact us today!