Insights / November 15th, 2016

Waste Not Want Not - Part 4

In the final of our series on the Waste Reform Bill we look at unlawful disposal and what it means for you.

EPA powers to access sites significantly expanded:

The media has been rife with stories of unlawful disposal of waste. Most recently an individual was found guilty of unlawful disposal of waste under the Environment Protection (Waste to Resources) Policy 2010 (W2R Policy) and fined $18,000 for disposing of 200 tonnes of waste soil from a swimming pool excavation in the Black Hill Conservation Park.

In order to manage what the EPA sees as an ever growing threat in this area, the Waste Reform Bill proposes to significantly broaden the EPA’s ability to identify and prosecute the unlawful disposal of waste.

Some of the changes include:

  • Vehicle owner liability: making vehicle owners liable for activities carried on in, at or from a vehicle or in connection with the use of a vehicle where the activities result in offences which includes offences relating to causing serious or material environmental harm, environmental nuisance or offences prescribed by regulations. This obviously has implications for businesses with employees doing the wrong thing. However, there will be scope for a vehicle owner to sign a statutory declaration stating that someone else was responsible for the offence, the provision of which will operate as a defence.

There is also a defence available for an owner where it can be proved that the vehicle was not in his or her possession or control through some unlawful act at the time of the offence (e.g. the vehicle was stolen). We presume that for this defence to be made out a police report in relation to the stolen vehicle would have to have been made;

  • Use of surveillance equipment: providing for regulation-making powers to allow for the use of surveillance equipment for identifying and tracking the movement of waste;
  • Tracking warrants: providing authorised officers with the ability to obtain a warrant to enter premises to use tracking devices to identify and track the storage and movement of waste; and
  • EPA powers of entry: expanding the types of premises authorised officers can enter to include a site where construction (which includes, by definition, alterations or refurbishments), demolition, excavation or other earthworks (or any activity carried out in preparation for such works) are being carried out, and where those works or activities may have disturbed, uncovered or produced a prescribed waste or where the site is one at which a prescribed potentially contaminating activity has previously been undertaken.

The full scope of the increased powers of entry will not be known until the regulations have been drafted. However, the changes represent a significant expansion of powers, in effect permitting the EPA access to domestic construction sites in circumstances where its powers were previously restricted to suspected imminent contraventions or assessing known or suspected site contamination. The flow on effect for breaches is not yet known but it could result in investigations which may delay a project impacting on completion dates and the potential imposition of liquidated damages.

Cowell Clarke has significant experience in the waste field and is currently involved in making submissions in relation to the Waste Reform Bill. If you would like assistance with preparing a submission or would like one of our team to conduct an information session on the proposed changes please contact us.