MONOGRAPH 40 volume 1

109 Research monograph 40 2. Findings transported waste materials. 604 The statutory context required the consideration of whether the owner of material at the time transportation commenced had a continuing use for the material, not the other parties: not the hauler (who was paid to transport the waste building materials); and, not the landowner of the property to which the substance was transported (who needed the building waste as road base for an internal thoroughfare): In ordinary parlance, waste refers to unwanted by-products of a process and to an object (or substance) which the owner had, but no longer has, a use for and discards or abandons. In respect of the first category, being unwanted by-products of a process, the question is not whether they are “capable” of being used for some other purpose, nor whether there is a “market” for such material. Similarly, in relation to items for which the owner had, but no longer has, a use, the question is not whether some other person might conceivably want the item. 605 It would make a mockery of the statutory provisions of s 143 of the POEO Act if a waste transport business (or other carrier) licensed to remove “waste” materials could consider the materials it collected and was transporting as “non-waste” simply because the substance had some value or use to another party, including the transporter or the receiver of the waste. As the CCA declared at [28] in Terrace Earthmoving : “[i]f that was correct, there would be virtually no case in which an offence would be committed under s 143(1)”. 606 The community views land pollution and the illegal dumping of waste, particularly if contaminated by hazardous substances such as asbestos, as extremely serious. As stated in EPA v Hanna : the legislature has prescribed a highly regulated scheme for the disposal of waste. This is undoubtedly due to the harm to the environment, including risk to human health, which is, or may potentially be caused by the improper disposal of waste. By reference to the definitions of both “pollution” and “harm” found in the POEO Act , disposal of waste other than at a licensed facility is taken, for the purposes of the POEO Act , to have caused environmental harm. 607 The maximum penalty is Parliament’s expression of the seriousness of the offence 608 (see Table 13 for details of waste offences and maximum penalties under current and previous legislation). The current maximum penalty for each waste offence is: Where the offender is a corporation : • s 143 offence – $1,000,000 • s 144 offence – $1,000,000 plus $120,000 per day • s 144AA(1) offence – $250,000 • s 144AA(2) offence – $500,000. Where the offender is an individual : • s 143 offence – $250,000 • s 144 offence – $250,000 plus $60,000 per day • s 144AA(1) offence – $120,000 • s 144AA(2) offence – $240,000 or 18 months’ imprisonment or both. 604 EPA v Terrace Earthmoving Pty Ltd [2012] NSWLEC 216 per Craig J at [12]. 605 ibid per Basten ACJ at [26]. 606 The statutory definition of waste was considered by the LEC in two cases. In Director-General, Dept of Planning and Infrastructure v Glass Recovery Services Pty Ltd [2015] NSWLEC 49, Pain J found at [62] that: the defendant paid for the transport and/or supply of the glass material from a number of [material recovery facilities (MRF)] … [which] weighs against the proposition that the material was waste at the time the Defendant received it. Rather, it suggests that the Defendant received a resource that had been processed from waste by a MRF … to bring [it] to the point where [it] become[s] a finished product. In EPA v Foxman Environmental Development Services [2015] NSWLEC 105, the defendants transported recycled building and construction materials between two sites it owned — a recycling plant and a rural property on which a residential home was being built with development consent. While the defendants claimed (at [6]) that the material was “fit for [the defendants’] purpose(s), namely use as fill and road base”, Sheahan J found (at [192]) that “the material did not have the benefit of any of the [EPA’s] exemptions [detailed at [102]–[104]] … it was ‘waste’, and should have been disposed of at licensed landfill”. The transported waste was also contaminated with lead, asbestos and other pollutants: at [149]–[150]. 607 [2010] NSWLEC 98 per Craig J at [38]. 608 ibid per Craig J at [40] citing Camilleri’s Stock Feeds Pty Ltd v EPA [1993] 32 NSWLR 683 at 698.