November 1, 2019

EPA focus on construction activities: managing waste and air pollution

EPA focus on construction activities: new EPA guidance on managing waste; and EPA prosecution for air pollution

New EPA guidance for industry on managing waste

The NSW Environment Protection Authority (EPA) has recently updated its Construction and Demolition waste portal[1] 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[2] provides a checklist of considerations for the industry in how it disposes of construction waste, including:

  • Considerations for how construction companies tender for waste disposal contractors, including considerations to include in preparing Waste Management Plans, contractual obligations put on contractors, due diligence of contractors, and record keeping.
  • Tips for assessing waste streams, collating documentation, and ensuring that disposal is lawful for that waste stream.

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.

EPA prosecution for air pollution arising from activities at construction site

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 [2019] NSWLEC 134.[3] 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:

  • Engaging appropriately qualified and diligent consultants. The Court considered that engaging an expert with landfill management experience in particular, may have prevented the incident taking place, as the design of the leachate management system was not adequate in particular circumstances.
  • Appropriately accounting for heavy rainfall and stormwater management in designing plans. The Court was critical of a report prepared by one of the consultants as not anticipating heavy and sustained rainfall in how leachate management systems were designed.
  • Interestingly, the Court did not give much weight to submissions made by the prosecutor that CPB ought to have stopped works, and took into consideration CPB's submissions that it was in the community's interest for the project to be finalised.

Conclusion

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.

Footnotes
1. https://www.epa.nsw.gov.au/your-environment/waste/industrial-waste/construction-demolition
2. https://www.epa.nsw.gov.au/-/media/epa/corporate-site/resources/waste/19p1760-construction-and-demolition-waste-a-management-toolkit.pdf?la=en&hash=6EE76D2E031F5D57F6ACEB552E0817156BA049F2
3. https://www.caselaw.nsw.gov.au/decision/5d8ac186e4b0ab0bf607257e