Increased environmental penalties and enforcement powers in NSW

In brief - Bill increases maximum penalties in Contaminated Land Management Act

A new Bill in NSW will strengthen environmental penalties, give greater powers to the Environment Protection Authority (EPA) and make other significant changes, particularly for environment protection licence (EPL) holders, those who cause contamination and the waste industry.

Higher contaminated land penalties

While NSW already has some of the highest penalties for environmental crime nationally, the state government is incrementally reforming environmental regulation in NSW to "give the Environment Protection Authority back its bite". Parliament assented to the Protection of the Environment Legislation Amendment Bill 2014 on 28 October 2014.

The Bill increases the maximum penalties in the Contaminated Land Management Act 1997 (NSW) ("CLM Act") to be the same as penalties for similar environmental offences in other legislation and makes the following additional changes:

• There are significant increases in penalties for offences relating to the duty to report contamination and other offences. For example, the penalties have increased significantly for a person or corporation that does not comply with a Management Order (by over $800,000 for corporations).
• Where a deadline is missed for a notice issued under the CLM Act, parties are still obliged to comply.
• The EPA is now permitted to require financial assurance to secure funding for the carrying out of a Management Order.

Reform of penalties for environmental offences

The Bill introduces further sweeping reforms in relation to the CLM Act, the Protection of the Environment Operations Act 1997 (NSW) ("POEO Act") and the Radiation Control Act 1990 (NSW), such as:

• The EPA can now require waste transporters to be fitted with approved GPS devices.
• A range of alternative sentencing options for the court, including monetary benefit orders (allowing recovery of monetary benefits gained from an offence), publication orders, orders to provide financial assurance, to attend training courses and to restore or enhance the environment.
• Undertakings are now enforceable by the EPA and the courts.
• Greater powers afforded to the EPA to remedy or restrain statutory breaches of legislation and to revoke or suspend EPLs. Statutory notices of intention to suspend or revoke EPLs are no longer required.
• In addition to occupiers and contaminators, owners and landlords may now be issued with clean up notices under the POEO Act.
• Previously, pollution incidents involving the emission of odour were not required to be notified. Pollution incidents involving material harm must now be reported, even though odour may be the only indication that an offence has occurred.
• Penalty notice amounts are now increased for repeat offenders. The NSW government has also recently increased penalty notice amounts for individuals and corporations, as outlined in our earlier article Tenfold increase in scale of penalties for environmental offences in NSW.

EPA likely to pursue offenders vigorously and issue larger penalties

The bill is yet to commence, but we expect that as a result of the reforms, we will see greater activity by the EPA in the detection and prosecution of environmental incidents, particularly the issuing of larger penalties.

The changes are also complementary to the reforms made in relation to higher penalties for planning offences in NSW. (Please see our article New powers and tougher penalties for breaches of NSW planning laws.) If you have any queries in relation to the above, please do not hesitate to contact us.