In brief

Given the recent media attention focusing on the discovery of asbestos contaminated mulch at multiple sites, this article provides a reminder of some of the NSW Environment Protection Authority’s (EPA) powers in these types of situations.
In response to the discovery of contaminated mulch across multiple sites in NSW on 15 February 2024, the EPA set up a task force to coordinate government agencies and to prioritise securing and remediating sites considered to be a high risk to the community. There will also be a criminal investigation to determine whether there have been any breaches of the law, which could lead to prosecutions.
Landowners and occupiers of sites that are potentially affected need to take steps to ensure that mulch that has been applied to land is free of contamination.

EPA's powers

 The EPA generally operates under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) and has a broad range of regulatory powers which includes issuing clean-up notices.
Section 91 of the POEO Act permits an appropriate regulatory authority, which includes the EPA, to direct certain people to take clean-up action specified in a clean-up notice. The direction can be issued to:

  • owners or occupiers of land at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring

  • a person who is reasonably suspected by the authority of causing or having caused a pollution incident, and

  • a person who is reasonably suspected by the authority of contributing, to any extent, to a pollution incident.

Although in recent days there have been announcements that fines will be significantly increased, the current maximum penalty is $1,000,000 for a corporation and $250,000 for an individual for the offence of failing to comply with a clean-up notice (without reasonable excuse): see section 91B of the POEO Act. It is a continuing offence, and further penalties could be imposed for each day the clean-up notice is not complied with.
Another type of regulatory notice that can be issued in certain circumstances is a prevention notice. A prevention notice can be issued under section 96 of the POEO Act when the EPA believes that an activity has been carried out in an "environmentally unsatisfactory manner". Examples of actions that the EPA could direct to be taken include:

  • monitoring, sampling or analysing any pollution or otherwise ascertaining the nature and extent of pollution or the risk of pollution, and

  • preparing and carrying out a plan of action to control, prevent or minimise pollution or waste.

Before exercising the above powers, the EPA will likely exercise its powers under the POEO Act to carry out an investigation, where it may do any or all of the following:

  • Enter land. The EPA has various powers under Part 7.4 of the POEO Act to enter premises. However, there are different limitations on the exercise of power depending on the how the premises is being used and whether an authorised officer reasonably suspects pollution has been, is being or is likely to be caused. For example, entry to a premises used for residential purposes can only occur with the permission of the occupier or with the authority of a search warrant.

  • Take samples, photographs and copy records. Where an authorised officer lawfully enters a premises, they can do anything they deem necessary for the purposes of Chapter 7 - Investigation of the POEO Act. This includes:

    • taking and removing samples

    • taking photographs or videos

    • requiring records to be produced for inspection and copying those records.

  • Issue notices to provide information and records. Under section 191 of the POEO Act, the EPA may require a person to provide information and records in connection with any matters relating to its responsibilities or functions under the Act.

Obligations to notify relevant authorities of pollution incidents

 Under section 148 of the POEO Act, certain people and organisations have a duty to immediately notify the appropriate regulatory authority (including but not limited to, EPA and local council) of a pollution incident.

"Pollution incident" is defined in the Dictionary of the POEO Act as:

"…an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise".

The application of mulch contaminated with asbestos to land would be a pollution incident for the purpose of the POEO Act.

However, whether or not a duty to notify is triggered depends on the facts of each situation and whether each of the triggers for notification have been met. For example, there needs to be a pollution incident occurring during an activity so that material harm to the environment is caused or threatened.
Care is needed to ensure that the manner and form of notification is met. The source of the requirement is in section 149 of the POEO Act which in turn raises section 137 of the Protection of the Environment Operations (General) Regulation 2022 (NSW).

Take home message

The EPA has broad powers under the POEO Act to investigate and take regulatory action in response to pollution. In light of the contaminated mulch investigations and community concern, those who are affected are likely to need to deal with the EPA (or other regulatory authority such as a local council).

Cleaning up contaminated land can be a costly exercise. It may also have commercial implications for an ongoing business, which may be restricted from operating, or impacted in other ways such as from obtaining a subdivision or occupation certificate until the contamination is lawfully removed and disposed of.

To ensure these matters are dealt with safely, efficiently and lawfully, it may be necessary for owners and occupiers of land to seek legal advice about their obligations and any directions that are issued by regulatory authorities as well as advice from a person who is suitably qualified in cleaning up and remediating contaminated land.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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