Legal responsibility stays with the licence holder
The Amendment Act makes it clear that environmental obligations under legislation or an environment protection licence cannot be delegated or transferred unless the relevant legislation expressly allows it. This means that waste operators and licence holders remain directly responsible for compliance, even if contractors or third parties carry out work on their behalf. The amendment follows from recent prosecutions brought by the EPA.
For operators, this closes off any assumption that compliance duties can be shifted contractually. While contractors can still perform tasks, the legal liability stays with the operator or licence holder. Businesses should review contracts, risk allocations, and compliance frameworks to ensure responsibilities are properly managed in light of this change.
Businesses operating on licensed sites that do not hold the licence should seek urgent legal advice to avoid regulatory action. Those operating corporate structures where the licence entity does not carry out the business activities should also seek urgent legal advice.
Repeat waste offences
The Amendment Act makes the rules around repeat waste offences much tougher. Under section 144AB of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), individuals who commit multiple waste offences within five years can face large fines or even imprisonment.
The changes now cover a wider range of waste-related breaches, including failing to hold a required environment protection licence. Importantly, these repeat offence rules apply retrospectively, so past convictions under the POEO Act or related waste laws may now count toward a repeat offence.
Penalties remain severe: up to $500,000 in fines, two years’ imprisonment, or both. Waste operators should review past compliance records, ensure all storage limits are met, and strengthen internal controls and record-keeping to ensure compliance and demonstrate good governance under the repeat offence provisions. Non-compliance not only exposes operators to significant fines or imprisonment but also increases scrutiny from the EPA, including potential public reporting of offences.
You may be responsible for EPA costs
The Amendment Act expands the EPA’s ability to recover costs from private operators under several Acts, including the Contaminated Land Management Act 1997, Pesticides Act 1999, Plastic Reduction and Circular Economy Act 2021, Protection from Harmful Radiation Act 1990, and the POEO Act. This includes costs associated with:
- Investigations into potential breaches of environmental legislation.
- Clean-up or remediation of contaminated or polluting sites.
- Recalls of products or materials that pose environmental risks.
- Enforcement and compliance actions, including issuing notices or directions.
If the EPA intervenes to address non-compliance or environmental harm, the operator may now be financially responsible for the associated costs.
Reporting, transparency, and Environmental Management Plans
The Amendment Act introduces updates to reporting obligations that affect industrial and waste industry operations:
- Environmental Management Plans (EMPs) must be provided to the EPA and can be made public to ensure ongoing compliance, particularly when sites are sold or transferred.
- The threshold for notifying the EPA of a pollution incident has increased from $10,000 to $50,000, and notifications to NSW Health are no longer required.
In addition, the Amendment Act expands the EPA’s authority to maintain and publish public registers, which may include licence information, compliance actions, EMPs, and other matters. For private operators, this increases both reputational and commercial risk if compliance records are poor or incomplete. Ensuring accurate, up-to-date reporting and transparent records is essential to mitigate regulatory, legal, and reputational exposure.
Directors and officers can be held personally responsible
The Amendment Act extends executive liability provisions across all environment protection legislation, meaning that directors and officers of private companies can be held personally accountable for certain offences committed by their corporation. This applies to:
- Failing to comply with environmental licence conditions.
- Providing false or misleading information to the EPA.
- Other serious offences under the POEO Act or related Acts, including Plastic Reduction and Circular Economy Act 2021 and Waste Avoidance and Resource Recovery Act 2001.
These reforms give the EPA and the courts clearer authority to hold senior decision-makers to account and reflect a consistent approach across NSW environmental law. Businesses should strengthen internal governance and compliance frameworks, ensuring that executives understand the risks and actively manage operational, legal, and regulatory obligations.
Waste storage and licensing
Recent court decisions highlighted ambiguities in how waste storage thresholds were applied, particularly whether limits applied to individual buildings or the site as a whole. The Amendment Act clarifies that thresholds (for example, storing 500 or more tyres) apply to the entire site, not separate areas or buildings. Operators are therefore encouraged to review storage practices across all areas of a site to ensure compliance.
Key steps for industry
To prepare for the changes introduced by the Amendment Act, operators should take proactive steps to strengthen compliance, governance, and risk management:
- Review contracts and operational responsibilities
Non-delegation rules mean operators remain legally responsible for environmental obligations, even when contractors or third parties perform work. Review all contracts, agreements, and risk allocations to ensure compliance duties are clearly assigned and managed internally. - Strengthen compliance records
Maintain robust records of all historical and ongoing compliance activities. Past breaches may now count toward repeat offence provisions, so accurate documentation of storage, disposal, reporting, and licence compliance is critical. - Plan for potential EPA cost recovery
Understand that costs incurred by the EPA in investigating, remediating, or enforcing compliance can now be recovered from operators. Review insurance, budgeting, and operational risk frameworks to anticipate potential financial exposure. - Maintain accurate and accessible EMPs
Ensure Environmental Management Plans are current, properly documented, and submitted to the EPA as required. Review whether any EMPs might be made public under the new reporting framework, and ensure they accurately reflect operational practices, risk controls, and compliance measures. - Assess executive liability exposure
Directors, officers, and other senior managers are advised to seek legal advice on potential personal liability for corporate offences and review governance structures, decision-making processes, and reporting lines to ensure executives are actively overseeing compliance and can demonstrate due diligence.
