EPA focus on construction activities: new EPA guidance on managing waste; and EPA prosecution for air pollution
The NSW Environment Protection Authority (EPA) has recently updated its Construction and Demolition waste portal to include new guidance to industry, targeted at assisting compliance with the complex requirements for lawfully transporting and disposing of construction wastes. The new 'Construction and Demolition waste: a management toolkit' document provides a checklist of considerations for the industry in how it disposes of construction waste, including:
Construction companies should ensure that they are including these considerations into how they tender and manage waste contractors, and that employees responsible for assessing and coordinating waste disposal are familiar with this toolkit and the legal requirements.
The EPA recently prosecuted CPB Contractors Pty Ltd (CPB) in the NSW Land and Environment Court for four breaches of the Protection of the Environment Operations Act 1997 (POEO Act) in Environment Protection Authority v CPB Contractors Pty Limited  NSWLEC 134. The proceedings involved four odour offences resulting from works undertaken at the new M5 St Peters Interchange as part of the WestConnex project. The site had functioned as a waste landfill up until 2014. CPB's Environment Protection Licence for the site allowed it to carry out a number of earth-moving activities for construction purposes, including removing 350,000 cubic meters of landfill waste. While CPB had implemented steps to avoid or mitigate leachate outbreaks, unfortunately following heavy rainfall, leachate from the site escaped from the site, causing offensive odour to neighbouring properties and businesses. CPB pleaded guilty to the offences. The Court convicted CPB of the offences and ordered CPB to pay AUD295,000 to the Environmental Trust established under the Environmental Trusts Act 1998 (instead of a fine, as agreed between EPA and CPB) plus EPA legal and investigation costs of AUD150,000. The Court also made publication orders (including for Facebook and the next Annual Report).
The Court's judgement provides useful guidance to industry in complying with licencing obligations and managing waste during construction projects. This includes:
Construction companies should continue to be aware of the EPA's strong focus on waste issues, as well as the usual interest in compliance with licensing conditions and other approvals. This continues to be an area where surveillance operations take place, such as taskforces with Councils and the Department of Planning, and the use of drones for remote surveillance. As construction companies may be considered as the owner of waste under waste laws, it is important that they are familiar with their obligations, and appropriately equip staff to comply, including engage appropriate consultants where required.
Please do not hesitate to contact us if you have questions or require legal advice.