New South Wales Consolidated Acts

PROTECTION OF THE ENVIRONMENT OPERATIONS ACT 1997 - SECT 143

143 Unlawful transporting or depositing of waste

(1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported--

(a) the person, and

(b) if the person is not the owner of the waste--the owner of the waste, and

(c) if the waste is transported in a vehicle and the person is not the owner of the vehicle--the owner of the vehicle,

are each guilty of an offence.

: Maximum penalty--

(a) for a corporation--

(i) if the offence involves asbestos waste--$4,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(ii) otherwise--$2,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b) for an individual--

(i) if the offence involves asbestos waste--$1,000,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(ii) otherwise--$500,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

Note : An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation--see section 169.

(2) Proof of lawfulness In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste.

(3) Defence--owner of waste It is a defence in any proceedings against an owner of waste for an offence under this section if the owner did not transport the waste and establishes--

(a) that the commission of the offence was due to causes over which the owner had no control, and

(b) that the owner took reasonable precautions and exercised due diligence to prevent the commission of the offence.

(3A) Defence--approved notice It is a defence in any proceedings for an offence under this section if the defendant establishes that--

(a) an approved notice was, at the time of the alleged offence, given to the defendant by the owner or occupier of the place to which the waste was transported or was displayed at the place, and

(b) the approved notice stated that the place could lawfully be used as a waste facility for the waste, and

(c) the defendant had no reason to believe that the place could not lawfully be used as a waste facility for the waste.

(3B) However, it is not a defence in such proceedings for the defendant to establish that the defendant relied on the advice (other than advice in the form of an approved notice) given by the owner or occupier concerned to the effect that the place could, at the time of the alleged offence, be lawfully used as such a waste facility.

(3C) Defence--waste not deposited It is a defence in any proceedings for an offence under this section if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported.

(4) Definitions In this section--

"approved notice" means a notice, in a form approved by the EPA--

(a) stating that the place to which the notice relates can lawfully be used as a waste facility for the waste specified in the notice, and

(b) that contains a certification by the owner or occupier of the place that the statement is correct.

"owner" of waste includes, in relation to waste that has been transported, the person who was the owner of the waste immediately before it was transported.