12 New NSW Protection of the Environment Operations
As of 1 November 2014 the offence of land pollution will be
strengthened and made clearer through an amendment to the
definition of land pollution.
The amendment adds a list of prescribed wastes that will
automatically constitute land pollution under the offence of land
pollution in section 142A of the Act.
As of 1 November 2014 paragraph (b) of the definition in the
Act's Dictionary will prescribe the following matter:
restricted solid waste,
more than 10 tonnes of asbestos waste,
more than 5 tonnes of waste tyres or more than 500 waste
This amendment will reduce ambiguity and send a clear message to
polluters through the high penalties of up to $1,000,000 for a
corporation (plus continuing penalties of $120,000 a day for
continuing offences) and up to $250,000 for an individual (plus
continuing penalties of up to $60,000 a day for continuing
The definition takes a particularly strong approach to the
dumping of tyres. Originally, the draft regulations had proposed
the land pollution offence to cover 100 tonnes or more than 10,000
tyres. However, the Government responded to feedback that those
amounts were too high and did not reflect the risk posed by tyre
dumping, by greatly reducing the threshold.
DEFENCE FOR UNLICENSED LANDFILLS
The 2014 Regulations introduce a new defence to
the land pollution in conjunction with s142E of the Act and clarify
the required 'operating requirements' to fall under this
defence. All unlicensed landfills will need to meet the minimum
standards prescribed by the 2014 Regulations in order to rely on
the defence and avoid prosecution. The operating requirements
include taking all reasonable steps to:
Minimising odour or offensive noise beyond the boundaries of
the landfill site
avoiding discharges from the landfill site causing water
maintaining plant (used for moving, disposing, controlling
securing the site against uncontrolled public access
minimising the emission of dust beyond the boundaries of the
minimising the tracking of dust or mud from the site on to any
minimising the risk of fire at the landfill site.
Additionally, asbestos waste and clinical waste is to be managed
in a prescribed manner.
The introduction of the defence and minimum standards aims to
improve operational practices and reduce environmental risk of
unlicensed landfills. This more prescriptive regime under the 2014
Regulations creates potential for increased prosecutions of
unlicensed landfills due to the current varying standards across
the NSW industry. All unlicensed landfills will need to assess
their current practices to ensure compliance with the prescribed
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This legal update is an overview of existing eligible project activities and new project types proposed to be developed.
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