NSW EPA to consider health impacts in prosecutions

The NSW EPA has updated its Prosecution Guidelines, which identify the factors the EPA takes into account when deciding whether to launch legal proceedings, including prosecutions, under the EPA’s environment protection legislation.

The changes include the introduction of several new factors to be considered when determining whether or not to prosecute, including the protection of human health.

Another new factor relates to environmental justice, including the impact on disadvantaged communities or other vulnerable people.

EPA Chief Executive Officer Tracy Mackey said the updates will ensure the NSW EPA continues to be at the forefront of protecting the environment and the community.

“The Prosecution Guidelines help the public, entities subject to environmental regulation and other organisations understand how the EPA will exercise its prosecutorial powers and the circumstances in which it will start related legal proceedings,” she said.

“The harm or potential harm to human health is an important new factor that has been included, reflecting the EPA’s statutory objective to reduce human health risks, in addition to its role of protecting, restoring and enhancing the quality of the environment in NSW.”

Changes have also been made to guide inter-agency collaboration when enforcing environment protection legislation.

“The changes include how the EPA works with other authorities, for instance councils and government agencies, who have the power to prosecute under environmental protection legislation,” Mackey said.

“Another change includes additional detail around the liability of directors for particular environmental offences, to clarify when directors can be held accountable for offences committed by corporations.”

Recently, a NSW council entered into an Enforceable Undertaking with the EPA to improve its environmental performance after a storage tank at Wallerawang Sewage Treatment Plant failed, allowing 13,000 litres of highly corrosive caustic soda to discharge into a local watercourse and onto adjoining land.

The Enforceable Undertaking requires Lithgow City Council to spend $417,000 to drive improvements in council’s environmental performance including additional training and staff.

Council will also contribute a further $100,000 to deliver benefits to the local environment and community.

Enforceable undertakings are one of a number of tools the EPA can use to achieve environmental compliance.

Through an Enforceable Undertaking, the EPA may secure outcomes such as environmental restoration measures or contributions to environmental projects. The undertaking is enforceable by the Land and Environment Court.

In a spotlight of regulatory actions undertaken in recent months, the EPA highlighted another council, which was fined more than $37,000 for an asbestos breach.

“The Local Court of NSW has fined Narrabri Shire Council following an EPA investigation into an incident at Narrabri Landfill which exposed members of the public to the risk of inhaling asbestos,” the spotlight reads.

The council was convicted of failing to notify the EPA immediately after it became aware of an asbestos pollution incident at Narrabri Landfill in November 2018.

According to the spotlight, council took 12 days to notify the notify the EPA, during which time the landfill was open to the public and staff, exposing members of the public and several council staff to potential inhalation of asbestos fibers.

The NSW EPA has also fined Cleanaway Daniels Waste Services $30,000 over two alleged breaches of licence conditions at their Unanderra clinical waste treatment plant.

Breaches identified were failing to properly maintain waste processing equipment, and failing to process waste in a competent manner.

Cleanaway Daniels was also issued an Official Caution for storing liquid waste greater than levels permitted.

EPA Director Regulatory Operations Giselle Howard said the premises had previously been the subject of seven recorded odour complaints in the 12 months to July 2019.

“The community can be assured that the EPA will take action to protect the environment and the community when breaches of operating conditions occur,” Giselle said.

The EPA has added new conditions to the Cleanaway Daniels licence aimed at improving environmental performance.

From when the EPA was re-established in February 2012 to date, it has completed more than 600 prosecutions, resulting in the courts imposing more than $10.5 million in financial penalties.

In 2019, the EPA took prosecution action in relation to a range of issues including water pollution, offensive odour, radiation control, waste, asbestos dumping and publicly reported littering.