Australia: Director and companies found guilty of waste offences in NSW

A recent decision of the NSW Land and Environment Court (Court) in Environment Protection Authority (Prosecutor); Foxman Environmental Development Services, Botany Building Recyclers Pty Ltd and Phillip Foxman (Defendant) [2015] NSWLEC 105 has once again highlighted the importance of understanding the waste regime in NSW, including whether material is waste for the purposes of the Protection of the Environment Operations Act 1997 (POEO Act) and whether or not any waste exemptions apply.

Having a thorough understanding of waste regulation in NSW is more important than ever, with most of the reforms introduced under the Protection of the Environment Operations (Waste) Regulation 2014 (Waste Regulation 2014) having now commenced.

Facts

The subject proceedings have a long history, having been commenced in 2011. Related Class 4 proceedings had also been successfully brought by Wollondilly Shire Council (Council).

Phillip Foxman (Foxman) was the sole director of Foxman Environmental Development Services Pty Ltd (FEDS) and Botany Building Recyclers Pty Ltd (BBR). BBR held an environmental protection licence (EPL) allowing the operation of a waste processing facility on a site it owned in Banksmeadow (Banksmeadow Site).

Following investigations by Council, it was discovered that approximately 16,000 tonnes of material was transported from the Banksmeadow Site to a site owned by FEDS in Wollondilly (Wollondilly Site). Neither Foxman nor FEDS held an EPL for the Wollondilly Site.
The prosecutor argued that the transported material was contaminated waste. The defendant argued that the material was fit for use as fill and road base and therefore did not fall within the definition of "waste". Alternatively, the defendant argued that if the material was waste, it fell within one of the "resource recovery" exemptions granted by the EPA.

The charges included:

  • FEDS breached s144(1) of the POEO Act by using the Wollondilly Site as a "waste facility" without lawful authority (Dumping Offences);
  • BBR breached s143(1) of the POEO Act in two instances by transporting waste to a place (being the Wollondilly Site) that could not be lawfully used as a "waste facility" (Transportation Offences); and
  • Foxman breached s169(1) of the POEO Act due to his capacity as the director of FEDS and BRR and therefore was attributed responsibility for the Dumping Offences and Transportation Offences.

Definition of Waste

The key question posed to the Court was whether the transported material disposed of at the Wollondilly Site was "waste".

The defendant sought to rely on the definition of waste found in English dictionaries that "waste is material with no further use". Unsurprisingly however, the Court relied on the definition of "waste" found in the POEO Act (as it applied at the time of the offences) in finding that the material was waste because:

  • the material was deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, as shown by 2 stockpiles of material on the land;
  • the material was discarded, rejected and unwanted by and surplus to the needs of BBR, even though Foxman had found a use for the material; and
  • the material was processed, recycled, re-used or recovered substance produced wholly or partly from waste that was applied to land.

The Court rejected the defendant's submissions that because he had a further use for the material, it was not waste. The fact that the material may have been further processed, recycled or recovered from waste did not change its character as "waste" and an intention to use the material is not sufficient. Furthermore, evidence obtained from geotechnical engineers highlighted that a private road could have been constructed with less material than the amount imported, indicating surplus material was imported to the Wollondilly Site.

The Court also found that there were no general or specific exemptions under the POEO Act which would entitle the defendant to lawfully deposit the material on the Wollondilly Site without FEDS possessing an EPL.

Other offences

The Court also found FEDS and Foxman guilty of the Dumping Offences as the following elements were satisfied:

  • FEDS was the registered proprietor of the Wollondilly Site;
  • FEDS used the Wollondilly Site as a "waste facility" given the premises were used for the storage, treatment, processing, sorting or disposing of waste as defined in the POEO Act;
  • FEDS did not hold an EPL and therefore could not lawfully operate a waste facility; and
  • Foxman was the "directing mind and will" of FEDS and the actions of FEDS are directly attributable to him.

The Court also found BBR and Foxman guilty of the Transportation Offences. The "causing" of the transportation of the material was attributed to Foxman as he had given the orders for the material to be transported from the Banksmeadow Site to the Wollondilly Site and had been invoiced accordingly.

The sentencing hearing is due to take place on 31 July 2015.

Conclusion

This case demonstrates the importance of understanding and complying with the statutory requirements for the storing, transporting and disposal of waste materials.

When dealing with possible waste materials, even if those materials are intended to be reused, it is vital to understand, for example, whether the material is waste for the purposes of the POEO Act and the Waste Regulation 2014 and if so, whether an EPL will be required for the storage, disposal or transportation of that waste.

In addition, if seeking to rely on any of the resource recovery exemptions granted by the EPA, it is important to ensure that the material does in fact meet the requirements of that exemption before the material is applied to land. In addition, all conditions which apply to the exemption must be met. Careful records should also be kept which demonstrate compliance.

With most of the provisions of the Waste Regulation 2014 now in force, it is now more important than ever to understand and comply with the waste regime with heavy fines, lower licensing exemption thresholds and a broader definition of "waste" having been introduced. Of note, from 1 August 2015 the waste levy exemption that applied to storage, treatment and transfer stations will be removed from the Waste Regulation 2014, when the Protection of the Environment Operations (Waste) Amendment (Contributions) Regulation 2014 commences.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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