A number of changes have been implemented recently, giving environmental regulators and courts more enforcement options and increasing the amounts of penalties for certain environmental offences. The penalties payable in NSW under penalty notices for more serious environmental offences have been significantly increased, making them the highest penalty notice fines in Australia. The powers of the NSW Environment Protection Authority (EPA) have also been expanded and further and additional orders may also be made by the Courts.
Increase in penalty notice fines
From 29 August 2014, penalties have been significantly increased for certain environmental offences that can be dealt with by way of a penalty notice (on-the-spot fine) under the Protection of the Environment Operations Act 1997 (POEO Act). Amounts payable under penalty notices now range up to $7,500 (up from $750) for an individual and $15,000 (up from $1,500) for a corporation for the most serious environmental offences including:
- pollution of waters;
- exceeding standards of air impurities (pollution of air);
- pollution of land;
- unlawful transportation or disposal of asbestos or hazardous waste;
- failure to hold an environment protection license (EPL) for scheduled activities (both premises-based and not premises based);
- failure to comply with a condition of an EPL;
- failure to comply with a clean-up notice; and
- failure to comply with a prevention notice.
Penalty notice amounts for other serious environmental offences have increased to $4,000 for an individual, and $8,000 for a corporation. Offences attracting these penalty notice amounts include:
- providing false or misleading information;
- failing to notify the EPA of pollution incidents; and
- failure of the EPL holder to prepare a pollution incident response management plan.
The amounts payable under many of the penalty notice offences will be lower for a notice issued by a local council officer, rather than an EPA officer. This reflects the split of regulatory responsibilities of each, with the local council responsible for smaller scale activities and activities of individuals, whilst the EPA regulates higher risk activities conducted on a larger scale. Penalty notice amounts under other POEO Regulations have also been increased.
Further changes – increased penalties and expansion of EPA powers
On 12 August 2014, the Protection of the Environment Legislation Amendment Act 2014 (the Act) was introduced to NSW Parliament. According to Minister Rob Stokes’ second reading speech the Act is the “next instalment in this Government’s plan to reinforce the Environment Protection Authority as a strong environmental regulator”. The Act came into force on 1 January 2015, amending the Contaminated Land Management Act 1997, the Radiation Control Act 1990, the POEO Act, the Protection of the Environment Administration Act 1991, the Land and Environment Court Act 1979 and the POEO (General) Regulation 2009. Some of the key amendments are outlined below: Contaminated Land Management Act 1997:
- an increase of maximum penalties under the Contaminated Land Management Act 1997 – $250,000 for individuals and $1 million for corporations for certain offences, such as failing to report contamination, failing to comply with a management order, or giving false or misleading information in relation to certain statutory requirements;
- provisions enabling the Land and Environment Court: to make orders in relation to ‘restorative justice activities’; to impose additional penalties where an offender has derived a monetary benefit; and make a wider range of additional orders;
- the EPA being provided with additional powers such as accepting and enforcing undertakings and requiring financial assurance to be given for actions required by management orders;
- provisions for liability for continuing offences, including penalties of $33,000 for each day the continuing offence continues;
- enabling the regulations to prescribe different amounts payable under a penalty notice for repeat offenders;
- clean-up notices to be given to owners as well as occupiers;
- provisions clarifying requirements for point source and non-point source emissions;
- certain pollution incidents involving only odour emission(s) are now required to be reported or notified;
- provisions enabling the Land and Environment Court to make orders, and the EPA having the power to accept and enforce undertakings, in relation to ‘restorative justice activities’; and
Radiation Control Act 1990:
- provisions enabling the Land and Environment Court to impose additional penalties where an offender has derived a monetary benefit and to make a wider range of additional orders;
- provisions enabling the Land and Environment Court: to make orders, and the EPA having the power to accept and enforce undertakings, in relation to ‘restorative justice activities’;
- enabling any person to bring proceedings in the Supreme Court for remedy or restraint of breaches of this Act or its regulations.
NSW now has an environmental regulatory regime that is one of the toughest in Australia. As a result, there is now an even stronger incentive for EPL holders to improve their environmental compliance to avoid increased on-the-spot penalties. By Jennifer Hughes and Martijn Wilder AM (Baker & McKenzie Sydney).