In this article, we have briefly outlined some of the cases from the NSW Local Court and NSW Land and Environment Court (LEC) related to criminal proceedings brought against operators for: 

• Failing to comply with a request for information and records issued by the EPA. 

• Failing to comply with clean up notice directions and a prohibition notice. 

• Failing to carry out activities in a competent manner.  

• Causing emissions of air impurities above standard concentrations.  

We have also highlighted some of the enforceable undertakings that have been offered by industry operators and accepted by the EPA, one of which was worth $18 million. 

Finally, PFAS continues to be a headline issue with both the NSW and Federal Government handing down reports this year. We highlight how industry operators can expect increased PFAS regulation, some of which have already been published in draft for comment by the EPA and implemented into conditions of environment protection licenses.  

The EPA successfully prosecuted a construction company, He Co Pty Ltd, and its director in the Parramatta Local Court for providing false information during an EPA investigation into the illegal dumping of asbestos. The case warrants mention because the company and its director were each fined $100,000 which was reported to be one of the largest fines secured for providing false or misleading information to the EPA.  Given the significant penalties associated with non-compliance, any person issued with statutory notices, such as requests to provide information or records, should take care to ensure their response is accurate, complete and appropriate, including that all relevant documentation is properly collated and provided. Where there is any doubt, legal advice should be sought. 

The decision of Environment Protection Authority v Pullinger (No 3) [2025] NSWLEC 59 has served as a reminder to directors that their ability to pay a fine is “relevant, but not a decisive matter” when determining what penalty should be imposed. The LEC imposed a significant penalty of $200,000 to Mr Robert Lenard Pullinger, the director of a deregistered waste oil processing facility, for not complying with directions of a clean-up notice and not complying with a prohibition notice. That penalty was imposed despite evidence before the Court that, at the time of the penalty hearing, showed Mr Pullinger was 75 years of age, bankrupt and reliant solely on a pension as his only source of income and that he had little, if any, capacity to work again.   

Industry operators, including councils, are often faced with making difficult and time sensitive decisions about whether and when to spend money on maintenance and improvement projects. Holders of environment protection licences would be familiar with a condition that requires: 

“All plant and equipment installed at the premises or used in connection with the licensed activity:  

a) must be maintained in a proper and efficient condition; and  

b) must be operated in a proper and efficient manner.” 

Failure to comply with conditions of an environment protection licence can attract a significant fine. 

A further example of this occurred earlier this year when the EPA investigated WCX M5 PT Pty Limited for polluting waters and ultimately found that it was a result of failing to maintain equipment. Two penalty notices totalling $60,000 were issued by the EPA.  

In a similar vein, holders of environment protection licences can also be bound by a condition requiring that: 

"Licensed activities must be carried out in a competent manner.” 

In Environment Protection Authority v Maules Creek Coal Pty Ltd (No 4) [2025] NSWLEC 92, Maules Creek Coal Pty Ltd was fined $200,000 after the LEC found it guilty of four charges, three of which related to whether it carried out activities in a competent manner.  

To avoid enforcement action, industry operators should regularly consider whether plant and equipment is maintained in a proper and efficient condition and whether there is appropriate training in place so that plant and equipment is operated in a “proper and efficient” manner and activities are “carried out in a competent manner”.   

The EPA successfully prosecuted Cadia Holdings Pty Ltd in Environment Protection Authority v Cadia Holdings Pty Limited [2025] NSWLEC 27,  A large gold mine operator for three separate offences relating to the operation of plant in a manner that caused the emission of solid particles in excess of the standard concentration of 100 milligrams per cubic metre. Following guilty pleas, the LEC imposed a fine of $350,000. 

A number of companies have made use of the enforceable undertaking provisions this year.  We have seen first hand how useful these can be in averting costly and damaging of reputation criminal prosecutions or enforcement action. Whilst at the same time providing a tangible contribution to the environment through the undertaking made. Significant offers have been made and accepted by the NSW Environment Protection Authority including the following. 

• A $18 million undertaking given by Port Kembla Copper Pty Ltd and PKC Properties Pty Ltd for the investigation and remediation of properties potentially impacted from its historic activities. This is the largest amount agreed to in an enforceable undertaking by the EPA to date.   

• Following a serious phosphoric acid spill, Australian Pet Brands offered to enter into an enforceable undertaking worth $1,375,000 directed to safety and equipment upgrades. The EPA also agreed for $75,000 to be paid to a local community environmental education centre.  

• An enforceable undertaking worth more than $740,000 was entered into between the EPA and BOC Limited following a spill of 2,000 litres of turbine oil. The amount was to be spent on a council project directed to improving water quality, improving the site’s infrastructure and the costs of the clean-up.  

• $120,000 was given to a local environmental rehabilitation project by Warkworth Mining Ltd following a number of instances where the EPA observed, including by drone surveillance, dust emissions from haul trucks on haul roads and unloading and loading of trucks.  

Our experience with enforceable undertakings is that they must be prepared in accordance with the regulator’s guidelines. Often significant time is spent making the case for one and then settling the drafting of its terms. Despite this, enforceable undertakings can provide benefits to industry and regulators alike, as well as freeing up the criminal jurisdictions of the Local Court and the LEC.  

While not a Court or regulatory decision, the Select Committee on PFAS Contamination in Waterways and Drinking Water Supplies throughout New South Wales handed down its report on ‘PFAS contamination in waterways and drinking water supplies throughout New South Wales’ in September 2025. Recommendation 10 was that the “NSW Government include load limits within environmental protection licences issued under the Protection of the Environment Operations Act 1997 as to the amount of PFAS chemicals industry and treatment plants can discharge into waterways in New South Wales, with the aim of meeting ecological guidelines”. The EPA has also released Draft Environmental Guidelines for Solid Waste Landfills, which references PFAS monitoring and a proposed PFAS Monitoring Chemical Control Order for feedback. 

In the coming years, industry operators, in particular landfill and sewage treatment plant operators can expect further PFAS regulation from government as it tries to reign in future contamination.  

For further information or assistance, please contact the PGIE team.