Australia: Land and Environment Court gives custodial sentence for dumping waste containing asbestos

Introduction

Environment Protection Authority v Hanna [2013] NSWLEC 41

Although the Land and Environment Court of NSW very regularly determines pollution related matters in its criminal jurisdiction, it is very rare for custodial sentences to be given by the Court. In a recent decision, Justice Pain found the operator of a waste transport business guilty of contempt and sentenced him to 3 months in prison. The sentence was suspended for 3 months on condition that he enter into, and comply with, a good behaviour bond. He was also ordered to pay the EPA's costs.

This case demonstrates the increasing scrutiny that the EPA is placing on waste, and waste transportation, and the seriousness that the Court places on such offences, particularly where asbestos is involved.

The earlier proceedings and court orders

Dib Abdulla Hanna, the respondent, conducted a waste transportation business.

In 2010, the EPA brought civil enforcement proceedings against Mr Hanna for alleged breaches of section 143 of the Protection of the Environment Operations Act 1997 (POEO Act). Section 143 of the POEO Act states that it is an offence to transport waste to a place that cannot lawfully be used as a waste facility for that waste.

There were a number of interlocutory proceedings. In essence, the EPA alleged that Mr Hanna had breached the POEO Act by transporting and dumping waste at places which are neither approved nor licensed for the receipt of the dumped waste, and sought an order restraining him from further transporting waste to a place that could not lawfully be used as a waste facility for that waste.

Throughout the course of those proceedings, the Court made a number of orders restraining Mr Hanna from transporting building and excavation waste to a place for which there is no development consent or environment protection licence, allowing it to be used as a waste facility, and the latest set of such orders were made by Justice Craig on 21 March 2011.

Mr Hanna's breach of the Court's orders

On 5 April 2012, Mr Hanna transported and deposited 8 loads of construction and demolition waste, containing asbestos fragments, to a property in Picnic Point, NSW. The property had no environment protection licence allowing it to be used for the receipt of such waste. Further Mr Hanna apparently gained entry and deposited the waste without the property owner's knowledge or approval.

In July 2012, Bankstown City Council issued a clean up order to Mr Hanna. Mr Hanna did not comply. Subsequently, the Council issued a clean up order to the property owner, who engaged licensed asbestos removalists to arrange for the removal and disposal of the waste, at a cost of $13,200.

Mr Hanna pleaded guilty to the charge of contempt of court, for breaching the order made by Justice Craig on 21 March 2011. Therefore, having admitted guilt, the only issue to determine was the appropriate sentence.

Justice Pain's finding on the breach

Justice Pain found that in this case, Mr Hanna's contempt of court was 'contumacious' – i.e., particularly recalcitrant, in a legal sense. There were a number of reasons for this.

As the waste contained asbestos, Justice Pain found that there was a potential to seriously affect human health. Her Honour referred to material issued by WorkCover NSW and the Department of Health, and also noted that the removal of waste can be especially dangerous if the waste is unknown, and may contain quantities of asbestos. This was exacerbated by the fact that for waste such as construction and demolition waste, the waste is necessarily broken/damaged, so asbestos fibres can be released into the air.

Mr Hanna had a poor record of environmental compliance. He had previously been found guilty of a number of offences relating to the unlawful transportation of waste (8 in total). Additionally, he had received a number of penalty notices from various Councils between 2007 and 2013, relating to waste and other environmental offences (22 in total). This poor record was one of the factors that led to imposition of the custodial sentence.

Mr Hanna expressed only limited remorse. The Court considered his failure to clean up the property, or even to seek to learn the identity of the owner, as a demonstration of his lack of sincerity. Additionally, the Court held that the activity was carried out for profit, given that he could have disposed of the waste lawfully, for a fee.

Given these, and other factors, Justice Pain held that a custodial sentence of 3 months was appropriate. However, noting some factors in Mr Hanna's favour, such as his lack of ability to read or properly understand English, and to comprehend the previous regulatory action taken against him, Justice Pain suspended the sentence for 3 months, on condition of his compliance with a good behaviour bond.

Lessons learned

This case serves as an important reminder that breaching environmental laws, particularly as they relate to waste, waste transportation and disposal, is a criminal offence, and can be punished as such.

It also demonstrates the importance of carefully considering the nature of the waste, including whether it might contain asbestos and ensuring the appropriate and lawful disposal of that waste.

Penalty infringement notices and other regulatory actions are not matters to be taken lightly. They can be used against a person in subsequent legal proceedings, and should serve as a catalyst to address any environmental compliance problems.

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