NSW gets tough on asbestos waste dumping with new offences, penalties, and a draft Asbestos Waste Strategy

The management of asbestos waste is a key concern and priority because of the potential harmful impacts of exposure to asbestos on both public health and the environment. Not only that, but illegally dumped asbestos waste can contaminate otherwise easily recyclable sources, and lead to very costly clean-up.

In October 2018 the NSW Government introduced a new bill, the Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018, to amend current waste legislation to create a number of offences relating to specifically to asbestos waste and to increase the penalties for those offences, which has now been passed.

In addition, the NSW Government and the NSW Environment Protection Authority has recently exhibited the draft "NSW Asbestos Waste Strategy 2018-22" which proposes ways to promote lawful disposal of asbestos while addressing ways to reduce illegal dumping and improper disposal.

Both of these documents represents an important step taken by the NSW Government to promote good waste management behaviours from those responsible for identifying, transporting or disposing of asbestos waste.

The legislative changes to asbestos waste at a glance

Asbestos waste storage, transport and disposal are currently regulated under the Protection of the Environment Operations Act 1997 and the Protection of the Environment Operations (Waste) Regulation 2014.  The Waste Regulation sets out reporting and disposal requirements for asbestos waste and prohibits the reuse and recycling of asbestos waste.

The key objects of the Bill are to:

• transfer certain waste offences from the Protection of the Environment Operations (Waste) Regulation 2014 to the principal act the Protection of the Environment Operations Act 1997 (POEO Act) and increase the penalties for those offences;
• increase the penalties for other waste offences, including land pollution, that involve asbestos waste; and
• make the presence of asbestos a sentencing consideration.

Higher penalties and new offences for asbestos waste

The Bill doubles the penalty for the following offences to $2 million in the case of a corporation and $500,000 in the case of an individual, if the offence involves asbestos waste:

• Section 142 – pollution of land;
• Section 143 – unlawful transposition or depositing of waste;
• Section 144 – use of place as a waste facility without lawful authority.

Disposal, re-use and recycling of asbestos waste

The Bill also creates new offences:

• Section 144AAA – unlawful disposal of asbestos waste;
• Section 144AAB – re-use and recycling of asbestos waste.

"Disposal of asbestos waste" will include "dump, abandon, deposit, discard, reject, discharge or emit anything that constitutes asbestos waste" and will also pick up those corporations or persons who "cause or permit the disposal of asbestos waste".

Both of these new offences will have the same maximum penalty to those above: $2 million for a corporation and $500,000 for an individual.   The new offence of "re-use and recycling of asbestos waste" will also have a further penalty for a continuing offence: $120,000 for corporations and $60,000 for individuals for each day the offence continues.  These two new offences will also attract the special executive liability provisions already existing in section 169 of the POEO Act, meaning that directors or any other person involved in the management of the corporation can be personally liable.

"The presence of asbestos in the environment"

The Bill also proposes to amend the sentencing provisions under section 241 of the POEO Act to include "the presence of asbestos in the environment".  This is in addition to the current sentencing considerations of:

• The extent of harm caused or likely to be caused to the environment by the commission of the offence;
• Practical measures that may be taken to prevent, control, abate or mitigate the harm;
• The extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence;
• The extent to which the person who committed the offence had control over the causes that gave rise to the offence;
• Whether in committing the offence the person was complying with orders of an employer or supervising employee.

Penalty notices

The Bill will also provide that the two new offences are capable of being dealt with by a penalty notice, with the penalty being:

• In the case of an individual – $4000 if the penalty notice is served by a class 1 enforcement officer or $15,000 in any other case; and
• In the case of a corporation – $8000 if the penalty notice is served by a class 1 enforcement officer of $15,000 in any other case.

A class 1 enforcement officer includes a member of staff of a local authority, the EPA or the Office of Environment and Heritage in relation to an offence in the Kosciusko National Park.

The Draft Asbestos Waste Strategy

Illegal dumping of asbestos occurs mainly on vacant lots and roadsides as well as bushland areas; the EPA estimates that asbestos comprises approximately 8% of illegally dumped wastes, which presents a significant clean-up cost. In fact, the cost of disposal has been identified as a key reason that prompts illegal dumping, along with convenience and lack of awareness.

The Draft Strategy seeks to overcome such hindrances and the approaches have been considered as a result of in-depth social research, pilot programs and evaluation of existing processes. Key stakeholders such as the local government, other government agencies, planning authorities, Heads of Asbestos Coordination Authorities ("HACA") and SafeWork NSW have been consulted.

The Draft Strategy focuses on six key approaches that are intended to operate together to improve asbestos waste management in NSW:

• making asbestos waste disposal easier;
• making asbestos waste disposal cheaper;
• increasing awareness and changing behavior;
• closing loopholes and increasing transparency;
• disrupting unlawful business models; and
• monitoring and evaluating.

Making asbestos waste disposal easier and cheaper are two key strategic focuses of the EPA, given that  one of the key drivers of unlawful disposal is its convenience. To combat this issue, the Draft Strategy flags including more collection methods and expand disposal locations. This involves initiatives such as working with councils to consider providing asbestos disposal bags with skip bins, offering door-to-door pickup services, and working with developers to promote good waste management. The Draft Strategy also aims to reduce costs of waste disposal and advocates removal of the waste levy on any asbestos material delivered to a lawful landfill, provided the asbestos is separated and wrapped. This encourages disposal of asbestos separated from other wastes and prevents contamination of other items with asbestos.  The levy will remain for asbestos mixed with other materials such as soils or construction and demolition waste.

The EPA has identified a strong need for closing loopholes on unlawful behaviour by increasing transparency in the removal, transport and disposal of asbestos waste. The Draft Strategy suggests that this is to be achieved through the use of databases such as RIDonline, which is an illegal dumping database and reporting tool used by councils and government agencies across NSW with over 40,000 incidents being reported since its release in 2015.

The EPA has also developed an online tool called WasteLocate to monitor asbestos transport and disposal. Waste transporters in NSW are required to use this tool to report if they are moving more than 100kg of asbestos waste or more than 10 square metres of asbestos sheeting. Furthermore, the Draft Strategy proposes working closely with local government and NSW Department of Planning and Environment to strengthen development consent requirements to ensure that developments do not proceed without confirming how they will identify, remove, manage and dispose of asbestos.  

The EPA also states that it will be targeting unlawful business models through toughening regulations and "removing the financial gains from their unlawful activities and increasing their risk of getting caught".  The EPA proposes to use a combination of RID squads who investigate illegal dumping reports and targeted campaigns to crack down on unlawful operators together with strengthening penalties and sentencing considerations  as well as broad court orders that can be made under the POEO Act.  For example, the court may order the offender to pay, as part of the penalty for committing the offence, an additional penalty of an amount the court is satisfied, on the balance of probabilities, represents the amount of any monetary benefits acquired by the offender, or accrued or accruing to the offender, as a result of the commission of the offence.

Getting ready for the tougher asbestos regime

The Draft Strategy includes short-term, mid-term and long-term strategies and is a crucial step towards ensuring that asbestos waste in NSW is managed effectively and in a way that minimises damage to both people and the environment. The success of the strategy will be measured through a reduction in complaints, increased awareness, and more lawful disposal.

The new Bill demonstrates that NSW Government will be taking a much tougher stance on offences involving asbestos waste with the objective of ultimately reducing the unlawful disposal of asbestos waste.

If you have any involvement with asbestos waste or in streams of waste such as construction and demolition material that could contain asbestos waste you need to understand these changes, the risks and your obligations under law

If you would like to discuss these proposed changes, which are expected to commence in 12 months' time, and how they are likely to impact on you, please contact Claire Smith or Emma Whitney.