Biggest boost to NSW Environmental Regulation since 1991

The New South Wales Government has introduced the Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Bill 2024 to strengthen environmental legislation and enhance protections for the State's natural resources and public health. This significant Bill represents the most substantial overhaul of environment protection laws since the inception of the Environment Protection Authority (EPA) in 1991. The Bill seeks to expand the EPA's investigation and enforcement capabilities, strengthen penalties for environmental offending, and better protect the public from poor environmental practices.

Why penalties and the EPA's powers are being amended

According to the second reading speech, the Bill has largely been informed by the alarming discovery of asbestos-contaminated mulch in New South Wales, with the Minister for Climate Change and the Environment stating that "the events of the past two months have shown the urgent need to reform environment protection laws and increase penalties".

This incident prompted one of the largest investigations in decades, involving extensive testing across 340 sites and the deployment of 130 EPA staff, supported by agencies like Fire and Rescue.

Consequently, this Bill seeks to amend several pieces of environmental legislation to ensure the EPA has the right frameworks and powers to deter environmental crimes and respond to pollution incidents. This objective will be achieved by:

• Substantially increasing maximum penalties for environmental offences.
• Introducing product recall powers for materials that may have been contaminated with harmful substances.
• Establishing a 'name and shame' process to warn the public about poor environmental performers and substandard practices.
• Strengthening the EPA's investigation powers, introducing investigation notices, and improving and expanding clean-up notice controls.
• Empowering the Land and Environment Court to ban serial and serious offenders from applying for an environment protection licence.
• Providing a framework to establish a new waste accreditation scheme to ensure accurate assessment, classification and disposal of waste. 

Importantly, the Bill also clarifies that it is an objective of the EPA to reduce the risks to human health and prevent the degradation of the environment by taking action in relation to climate change, which in essence legislates the Court's findings in the Bushfire Survivors case.

Increased penalties

One of the central features of the Bill is the substantial increase in penalties for environmental offences that have remained unchanged since 2005. The proposed amendments include doubling the maximum penalties for Tier 1 offences to $10 million for corporations and $2 million for individuals. Furthermore, penalties for Tier 2 offences, particularly those involving asbestos, will see significant increases to ensure they reflect the severity of environmental crimes.

Individuals or corporations found guilty of polluting land, for example, could face severe penalties under the proposed legislation. For corporations, the maximum penalties range from $2 million to $4 million, depending on the nature of the offence, with additional daily penalties up to $240,000 for continuing violations. The following table provides a high-level summary of several key amendments to maximum penalties for certain offences (see the Bill for the full suite of proposed changes).

Investigation and recall powers

The Bill introduces provisions aimed at bolstering environmental protection efforts of the EPA, particularly through the introduction of environmental recall notices. These notices grant the EPA the necessary authority to promptly respond to substances posing risks to human health or the environment. By extending the EPA's power to issue recall notices to all supply chain participants, including businesses and individuals, the Bill aims to foster greater accountability and responsibility within the distribution and supply network to safeguard the public from exposure to contaminated or hazardous materials.

Moreover, the Bill enhances the EPA's investigative capabilities, particularly in light of recent incidents such as asbestos mulch contamination. To ensure that the EPA can quickly identify if there may be a pollution incident, the Bill amends the Protection of the Environment Operations Act (POEO Act) to introduce a new power to issue preliminary investigation notices. The Bill also introduces an offence under the POEO Act for failing to comply with a preliminary investigation notice. To streamline the EPA's response to incidents occurring at multiple premises, the Bill amends the POEO Act to make it clear that a pollution incident can relate to a single premises or multiple premises, including premises in more than one local government area.

Further strengthening the EPA's enforcement abilities, the Bill expands the authorised officer seizure power, enabling officers to seize any item reasonably suspected of posing a risk to human health or the environment. Additionally, by broadening the scope of clean-up measures to include testing and environmental monitoring, the Bill enhances the effectiveness of remediation efforts, facilitating a more thorough approach to environmental restoration.

To optimise the utilisation of existing clean-up notices, the Bill expands the definition of "clean-up action" to encompass testing and environmental monitoring, with results shared with the appropriate regulatory authorities. The Bill also empowers the EPA to prevent serial and serious offenders from obtaining environment protection licences, reinforcing environmental compliance and accountability. In instances where offenders exhibit poor compliance records, the Bill enables the New South Wales Land and Environment Court to prohibit them from engaging in licensed activities for a specified period.

New measures to tackle illegal dumping

The Bill takes significant steps to address illegal dumping by introducing new penalties and offences tailored to tackle small-scale dumping. It responds to demands from local councils and public land managers for comprehensive regulatory reform by expanding clean-up notice provisions to cover littering and illegal dumping.

Under the proposed legislation, new offences are created to target small-scale illegal dumping, with penalties set at $50,000 for corporations and $25,000 for individuals. On-the-spot fines can also be issued, with maximum penalties of $100,000 for corporations and $50,000 for individuals if waste is dumped in sensitive areas such as national parks or beaches.

The Bill empowers authorised officers and expands clean-up notice provisions to address littering and illegal dumping more effectively. This includes granting officers the authority to direct individuals responsible for waste deposition in public areas to remove the waste. Failure to comply with such directions incurs penalties of up to $5,000 for individuals and $10,000 for corporations for waste under 50kg or 50L. For larger amounts, the penalties increase to $10,000 for individuals and $20,000 for corporations.

Improved protections for the public

The Bill proposes significant enhancements to the EPA's authority to alert the public about potential environmental hazards and regulate dubious operators. Building on existing public warning powers in fair trading and food safety legislation, the Bill extends these provisions to environmental protection, ensuring comprehensive safeguards for the people of New South Wales.

For instance, the Bill empowers the EPA to issue public statements identifying substances or activities suspected of contributing to pollution incidents, environmentally unsatisfactory practices, or matters of environmental concern posing risks to human health or the environment. These warnings aim to inform the public about potential hazards, such as the illegal disposal of waste by certain waste removal companies, thereby promoting transparency and accountability in environmental practices.

Additionally, the amendments clarify the EPA's statutory duties and functions in addressing climate change threats, effectively codifying the judgment in the Bushfire Survivors case. The Bill also increases the jurisdictional limit for prosecutions in the Local Court and enhances the EPA's regulation-making powers to enable the establishment of specialised schemes, such as a waste classifier accreditation scheme. These measures aim to streamline regulatory processes, reduce administrative burdens, and close existing loopholes in environmental legislation.