Are you protected from a charge of illegal dumping?

By Adam Johnson, MRA Consulting Group

On Monday the 7th of August, 4 Corners ran a show “Trashed” in which the former Gosford City Council was accused of involvement in an illegal dump. Whilst we don’t know whether the accusation is true or not, it does highlight a significant risk for Councils.

Like most other States, under the NSW Protection of the Environment Operations Act (POEO Act), waste generators have strict liability for illegal dumping. This means that, if waste from a Council’s operations goes to an illegal dump, Council is guilty of an offence. This includes waste under the control of contractors and subcontractors.

The penalty is up to $1m.

NSW has however developed a very useful instrument to reduce the risk of inadvertent dumping – the s.143 notice. This is a model other States should take up.

The s.143 notice is a signed notice issued by a landholder receiving waste. It confirms that the site is authorised to receive the waste being disposed. In practice, it gives a waste transporter a legal defence against a charge of illegal dumping. If the waste disposal is found to be illegal, but in accordance with the s.143 notice, then the landholder takes on all liability.

The issue

A key risk area for Council is engineering works delivered by private contractors. If they inadvertently or purposefully use an unapproved landfill for say, excavation spoil, then Council may be liable.

The resolution

Now is the time to make sure Council is compliant. Simply obtain copies of s.143 notices for all sites being used for waste or fill. If the sites don’t have a s.143 then we recommend you don’t use those sites.

Also, prepare clauses for Council’s general conditions of contract to make it explicit that subcontractors must use disposal sites with s.143 notices in place, whether they be licenced landfills or sites receiving Virgin Excavated Natural Material (VENM).

Contact MRA to find out how we can help with this work. We can do the investigations on Council’s behalf to ensure you are protected.