asbestos – how to investigate asbestos related...

ASBESTOS – HOW TO INVESTIGATE ASBESTOS RELATED COMPLAINTSBy Darren Riding aka Watchdog.Highly Published Investigation:

Dib Hanna (Environment Protection Authority v Hanna [2010] NSWLEC 98

Expert Witness – Asbestos:

• Supreme Court NSW - Galea v Farrugia and Cauchi [2012] NSWSC 77

• Court of Appeal NSW – Galea v Farrugia [2013] NSWCA164

WHAT IS ASBESTOS

Bonded Asbestos

• Asbestos fibres that are bonded in a base material. Typically this is a cement type material or a plastic membrane.

• White (Chrysotile)

• Brown (Amosite)

Friable asbestos

• Any material that contains Asbestos in the form of a powder or can be crumbled, pulverised or reduced to powder by hand pressure when dry.

• Blue (Crocidolite)

Bonded Asbestos Friable asbestos

WHEN DOES BONDED MATERIAL BECOME FRIABLE ?

• When bonded material becomes extensively damaged by fire it may become friable.

• Water blasting Asbestos cement will cause fibres to become liberated.

• Extensive hail damage may cause the sheeting to become friable.

• Where weathering has caused the substrate to break down and the bonded material can be crushed by hand.

• Mechanical damage has crushed the bonded matrix to powder.

Before or during a Fire After a fire

BONDED ASBESTOS IN SOIL

• Bonded Asbestos in soil to be treated as bonded material and can be cleaned by a bonded licenced operator.

• If bonded material has been reduced to powder, can be crumbled by hand or there are free fibre bundles detected in the soil then the soil is treated as having Friable Asbestos in the soil.

• Friable Asbestos in the soil has to be removed by a Friable Licensed Contractor.

WHAT OPTIONS ARE AVAILABLE IF THE WHOLE GROUND IS FULL OF ASBESTOS

When can you leave Asbestos Material in the soil

WHEN CAN YOU LEAVE ASBESTOS MATERIAL IN THE SOIL

• There is no legal requirement to remove insitu Asbestos

• Depending on the final use of a site, it may be feasible to leave the material in situ.

• On sensitive sites such as schools and Hospitals all Asbestos material should be removed.

• If Asbestos material is left in place after a redevelopment. Approval from the Appropriate Regulatory Authority needs to be obtained.

EXAMPLE

• Overseas Developer bought an old Pottery production site.

• Site was full of Asbestos throughout the ground from the old kilm

• Wanted to develop site for townhouses.

• Selling Points – Waterfrontage to smelly drainage easement, 24 hour views to Motorway with heavy traffic noise.

• The Winning option – Local Council has new reserve.

WHY IS ASBESTOS DANGEROUS ?

WHERE MIGHT ASBESTOS BE IDENTIFIED

AUDITSWaste or Compliance Audits

. Quarries

. Waste Facilities

CONSTRUCTIONS/ DEMOLITIONS

ILLEGAL DUMPING / LANDFILLING (legal or not)

JUST BEEN GIVEN A TASK/JOB/INVESTIGATION

INFORMATION OBTAINED –YOU’RE ON YOU WAY

Have you got every thing ????

WHAT IS REQUIRED TO TAKE WHEN ATTENDING

• Documentation – Consents etc…..

• Notebook and Pen

• Camera

• Digital Recorder (Optional)

• Authority Cards - ID

• Delegations

• General Induction Card (White Card)

• Asbestos Awareness/Removal Card

• Personal Protection Equipment

• Evidence Bags

• Evidence/Document Labels

• Warning Tape

• Pamphlets – Information –Educational Material

PERSONAL PROTECTION EQUIPMENT

PAMPHLETS – INFORMATION –EDUCATIONAL MATERIAL

OPTIONS DEALING WITH THESE MATTERS

LEGAL OPTIONS

• Warnings

• Fines

• Court Matters

REMEDIATION OPTIONS

• Clean Up Notices

• Prevention Notices

• Orders

AUDITS

Waste or Compliance Audits

. Quarries

. Waste Facilities

ORDER 15 TO COMPLY WITH DEVELOPMENT CONSENT

• Section 121B Environmental Planning & Assessment Act 1979

• ORDER 15

• Premises: Lot x DP xxxxxxx, xxxxxxxxxxxx

• Council has recently conducted an audit of the development consent conditions DA xx/xxxx relevant to the above premises. Council’s audit has revealed breaches of consent conditions of DA xx/xxxx.

• Therefore in accordance with the provisions of Section 121(b) of the Environmental Planning and Assessment Act, 1979, as amended, Council orders you to do such things as specified below at the abovementioned premises:

• TERMS OF ORDER 15


• Order 15: To comply with development consent. The development consent is not being complied with

• Terms of Order - 1.To comply with all conditions of consent to DA xx/xxxx

• Timeframe - Thirty (30) days from the date of the Order

• REASON FOR ORDER

• A. On date xxxx Council officers conducted an inspection of the premises Lot x DP xxxxxx, xxxxxxxxx. This inspection revealed that numerous conditions are not being complied with to development consent DA xx/xxxx.

• B. Council’s inspection on date xxxx, established breaches to follow conditions of Development Consent:

• • Condition 4:-


• FAILURE TO COMPLY WITH THE ORDER

• It is an offence pursuant to s 125 of the Environmental Planning & Assessment Act, 1979 (the Act) to fail to comply with this Order.

• Should the Order not be complied with, the Council may:

• 1) commence civil enforcement proceedings in the Land and Environment Court of NSW pursuant to s 123 of the Act seeking mandatory orders to compel compliance with the Order and any other order necessary and costs; and/ or

• 2) commence summary criminal proceedings in a Court of competent jurisdiction pursuant to s 127 of the Act seeking a conviction and pecuniary penalty; and/ or

• 3) issue a penalty notice pursuant to s 127A of the Act which carries a maximum penalty of $1,500 per penalty notice.

• Note: That in relation to (2) above the Act carries a maximum pecuniary penalty of $1,100,000 and a further daily maximum pecuniary penalty of $110,000.

• Council May Carry Out Work (s 121ZJ of the Act)

• In addition to the (1), (2) and (3) above the Council may choose to exercise its powers pursuant to s 121ZJ of the Act to do all such things that are necessary to give effect to the Order and recover all associated costs incurred in giving effect to the Order as a debt in a court of competent jurisdiction.

• Right of Appeal Against the Order (ss 121N and 121ZK of the Act)

• Pursuant to s 121ZK of the Act an individual or corporation affected by the Order may appeal to the Land and Environment Court of NSW against the Order within 28 days after the service of the Order.

CONSTRUCTIONS/ DEMOLITIONS

An Asbestos Survey prepared by a suitably qualified Occupational Hygienist shall be submitted prior to the commencement of demolition works which

is to incorporate appropriate removal and disposal methods in accordance with Council’s Asbestos Management Policy and the requirements of

WorkCover NSW, NSW Environmental Planning and Assessment Amendment (Asbestos) Regulation 2009 and NSW Department of Environment,

Climate Change and Water.

All asbestos removal shall be undertaken in accordance with the occupational hygienists report submitted with the development application and in

compliance with the requirements of WorkCover’s ‘How to Safely Remove Asbestos’ Code of Practice and Council’s Asbestos Policy.

A demolition or asbestos removal contractor licensed under the Work Health and Safety Regulations 2011 must undertake removal of more than 10m2

of bonded asbestos (or otherwise specified by WorkCover or relevant legislation).

Removal of friable asbestos material must only be undertaken by a contractor that holds a current AS1 Friable Asbestos Removal Licence.

ORDER 19 UNDER 121B OF THE ENVIRONMENTAL PLANNING AND

ASSESSMENT ACT 1979• Take notice that Council hereby orders xxxxxxxx, their agents, employees or

representatives to do what is specified below in respect of premises situated at Lot x DP xxx, No. xxxxxxxxxxxxxxxxx being an Order in terms of Order NO 19 in the table to Section 121B of the Environmental Planning and Assessment Act 1979.

• Order

• The terms of the Order are that xxxxxxxxx, their agents, employees or representatives must:

• (i) Cease carrying out all works on the site including and not limited to demolitions / excavations / removal of waste materials / building works / drainage works until such times as written approval is supplied by council to recommence works.

• The Order must be complied with by: Immediately

• NOTE: this Order does not exclude you from carrying out all works necessary to prevent the tracking of any materials from the site or for any materials from the site entering the storm water system thus causing a “pollution” incident.

• Reasons for the Order

• The reasons for giving this Order are:

• An inspection of the premises on XXXXXXXXX indicated that that the works carried out are not in compliance as permitted under development consent recorded in Councils records as DA xx/xxxx in that the approval granted under DA xx/xxxx was for Demolition of existing dwelling

• Reason

• Reason

• Reason

• Reason

• The works carried out are not Exempt Development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

• The works carried out are not Complying Development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

• This Order is given in circumstances that Council believes constitutes an Emergency.

• You or any other person affected by this Order may appeal to the Land and Environment Court against this Order or a specified part of this Order within 28 days after the service of this Order upon you.

• It is an Offence under Section 125 of the Environmental Planning and Assessment Act, 1979 not to comply with this Order. The maximum penalty for such an offence is $1,100,000.00 and a further daily penalty not exceeding $11,000.

• Also, if this Order is not complied with the Council may do all such things as are necessary or convenient to give effect to the terms of the Order and recover the costs of so doing from the person required to comply with the Order.

• For further information or to make an appointment, please contact xxxxxx of Council’s xxxxxxx on xxxxx or email xxxxxxxxx

CLEAN UP NOTICE PART 1

• REQUIREMENTS OF CLEAN UP/PREVENTION NOTICE:

• As an Authorised Officer of-------------, I direct you to take the following clean-up / prevention actions:

• Install and Maintain Soil and Sedimentation Erosion Control Devices (in accordance to the Blue Book Forth Edition Published by LANDCOM) around the entire development site which has not been undertaken.

• Install a suitable Stabilised Site Access (in accordance to the Blue Book Forth Edition Published by LANDCOM).

• Ensure the site is fully enclosed with a 1.8m high security fence around the entire development site which has not been undertaken including approved dust control netting.

• Additionally to the above, with the removal of all demolition material from-----------------------,

• Engage the services of a Suitable Qualified Company or persons to undertake and submit full reports of the material within the premise.

• These reports are to include but not limited to:

• Hygienist Report (HR) (AS 1199.2-2003, ISO 2859-2:1985) prior and after removal this to include the entire ground surface and possible underlining surfaces.

• Asbestos Removal Control Plan

• Asbestos Classification and Risk Assessment

• Asbestos Air Monitoring and Clearance Inspection

• Buried Asbestos Materials (Unexpected Finds Protocols)

• Environment Impact Study (EIS)Environment Management Plan (EMP)

• Waste Management Plan (WMP) including locations and method of disposal.

• Waste Data File (WDF) including all receipts and vehicle movement from the premise.

• These reports have to be submitted to ------------Council in which approval of these reports have to be obtained from -------------Council prior to any material being removed from the premise. Once approved copies are to be left at the premise during the removal of all material.

• All work on or around------------------, are to be undertaken during approved working hours approved by --------------------------Council.

• If you have not complied with the requirements of this Notice by the required date, you still have a continuing obligation to comply with this Notice after that date (subject to revocation or variation of this Notice by-------------------------------------)

• This notice is issued under Section 91 of the Protection of the Environment Operations Act 1997. It is an offence against the Act not to comply with this notice, unless you have a reasonable excuse for not complying.


• XXXXXXXXXX, as the appropriate regulatory authority, directs, XXXXXXXXXto take the following Clean-up Action on the premises Lot XX, DP XXXXX, Address

• 1. Engage the services of a suitably qualified Friable Licenced Asbestos Removalist Company/Person to complete the work.

• 2. To ensure the suitably qualified Company/ Person complies with all directories of the report submitted by XXXXXX, number XXXX dated XXXXXXXX.

• 3. Air Monitoring to be undertaken with results to be submitted within seven (7) Days of test to be submitted to Council.

• 4. All waste is to be conveyed to an approved and authorised waste facility able to accept Friable Asbestos.

• 5. A Data File to be established and record all movement of waste from the property to the approved and authorised waste facility in which copies of receipts of all deliveries to the authorised waste facility are to be kept.

• 6. Within seven (7) days of the completion of the demolition and conveying of all of the waste to an approved and authorised waste facility, certified true copies of the receipts are to be forwarded to Council.

• 7. Within seven (7) days of the completion of the demolition and conveying of all of the waste to an approved and authorised waste facility, engage the services of an appropriately qualified Occupational Hygienist to undertake an assessment of the premises and prepare a report to ensure the premises is contaminant free.

• 8. The assessment is to include core sampling in and around the building envelope.

• 9. Provide Council with a copy of the report within 7 days of the date of the inspection.

• 10. Ensure the road, gutter, drains, storm water network and creeks/streams within and surrounding the premise are clean and free of waste/sedimentation/ fuel and or liquid substances.

• 11. All work on or around the premises are to be undertaken during approved working hours approved by Council.


ORDER 15 TO COMPLY WITH DEVELOPMENT CONSENT


• ORDER 15

• Premises: Lot x DP xxxxxxx, xxxxxxxxxxxx

• Council has recently conducted an audit of the development consent conditions DA xx/xxxx relevant to the above premises. Council’s audit has revealed breaches of consent conditions of DA xx/xxxx.

• Therefore in accordance with the provisions of Section 121(b) of the Environmental Planning and Assessment Act, 1979, as amended, Council orders you to do such things as specified below at the abovementioned premises:

• TERMS OF ORDER 15


• Order 15: To comply with development consent. The development consent is not being complied with

• Terms of Order - 1.To comply with all conditions of consent to DA xx/xxxx

• Timeframe - Thirty (30) days from the date of the Order


• A. On date xxxx Council officers conducted an inspection of the premises Lot x DP xxxxxx, xxxxxxxxx. This inspection revealed that numerous conditions are not being complied with to development consent DA xx/xxxx.

• B. Council’s inspection on date xxxx, established breaches to follow conditions of Development Consent:







• 2) commence summary criminal proceedings in a Court of competent jurisdiction pursuant to s 127 of the Act seeking a conviction and pecuniary penalty; and/ or







WARNING AND LIMITING AREA

ILLEGAL DUMPING / LANDFILLING (LEGAL OR NOT)

CONTRACTORS TRY TO COVER UP ILLEGAL DUMPS

Bury or mix Asbestos in Landfill Burn Asbestos WasteBreak Asbestos and

hide in Garbage Bins

EXAMPLE OF CONTRACTOR• Location Road, Wallacia

• ******************************

• POI: N K @ N T

• D.O.B: 20/09/1969

• ADD 1: , Bass Hill

• ADD 2: , Constitution Hill

• CHARGES: PCA, Steal Motor Vehicle, Cargo theft, Assault, Traffic

• INTELL: People smuggling, Firearms, Cargo theft x 7, B,E&S x 8,

• *******************************

• Occupants: L Family

• Firearm Holder: B P L

• D.O.B: 01/01/1956

• Firearms: 1 x Single barrel shotgun and 1 x .22 Rifle.

• Safe audit conducted and passed on 13th March 2013.

• *******************************

• Police have recently received information about the mentioned POI dumping asbestos at the above location. The information obtained shows the POI is charging $1,000 per load of asbestos taken and dumped at the above location.

• In September 2013, the POI was involved in an GBH assault on two persons at the above mentioned location.

• This information has been passed onto Mr Darren RIDING who are aware of the POI and the location

APPROPRIATE ARA

If Investigating a matter, ensure

the Appropriate Authority is

investigating the matter

TWO TELEPHONE NUMBERS TO REMEMBER

131555 131050


ASSESSMENT ACT 1979• TERMS OF ORDER 1


• Order 1(b): To cease using premises for a purpose specified in the order. Premises are being used for a purpose for which development consent is required but has not been obtained.

• Terms of Order

• 1. Cease the use of the premises for the purpose of land filling forthwith


• 1. At the time of the inspection, Officers established that large quantity of land fill material had been deposited on the premises without any approvals for the works.

• 2. Development consent is required for the filling of land in accordance with Sydney Regional Environmental Plan No 20 Hawkesbury-Nepean River (SREP 20). In accordance with SREP 20

“Filling” is defined as:

• Filling of land, including submerged aquatic land, by raising the ground level through disposal of soil from any landfill method (such as mining, dredging or refuse dumping), whether or not to enable the construction of a road or the erection of

buildings or pylons or any other structure, where filling exceeds 1 metre in depth, or an area of 100 square metres.

• 3. The “filling” works undertaken on the premises is consistent with works requiring development consent within this zone in the development controls table under SREP 20. 4.This unauthorised fill material has the ability to impact on the property, surrounding properties and the environment by the way of altered drainage patterns (flooding), possible land contamination and water pollution from unestablished soil.





• 2) commence summary criminal proceedings in a Court of competent jurisdiction pursuant to

s 127 of the Act seeking a conviction and pecuniary penalty; and/ or








• REQUIREMENTS OF CLEAN UP/PREVENTION NOTICE:

• As an Authorised Officer of-------------, I direct you to take the following clean-up / prevention actions:

• Install and Maintain Soil and Sedimentation Erosion Control Devices (in accordance to the Blue Book Forth Edition Published by LANDCOM) around the entire development site which has not been undertaken.

• Install a suitable Stabilised Site Access (in accordance to the Blue Book Forth Edition Published by LANDCOM).

• Ensure the site is fully enclosed with a 1.8m high security fence around the entire development site which has not been undertaken including approved dust control netting.

• Additionally to the above, with the removal of all demolition material from-----------------------,

• Engage the services of a Suitable Qualified Company or persons to undertake and submit full reports of the material within the premise.

• These reports are to include but not limited to:

• Hygienist Report (HR) (AS 1199.2-2003, ISO 2859-2:1985) prior and after removal this to include the entire ground surface and possible underlining surfaces.

• Asbestos Removal Control Plan

• Asbestos Classification and Risk Assessment

• Asbestos Air Monitoring and Clearance Inspection

• Buried Asbestos Materials (Unexpected Finds Protocols)

• Environment Impact Study (EIS)Environment Management Plan (EMP)

• Waste Management Plan (WMP) including locations and method of disposal.

• Waste Data File (WDF) including all receipts and vehicle movement from the premise.

• These reports have to be submitted to ------------Council in which approval of these reports have to be obtained from -------------Council prior to any material being removed from the premise. Once approved copies are to be left at the premise during the removal of all material.

• All work on or around------------------, are to be undertaken during approved working hours approved by --------------------------Council.

• If you have not complied with the requirements of this Notice by the required date, you still have a continuing obligation to comply with this Notice after that date (subject to revocation or variation of this Notice by-------------------------------------)



• XXXXXXXXXX, as the appropriate regulatory authority, directs, XXXXXXXXXto take the following Clean-up Action on the premises Lot XX, DP XXXXX, Address

• 1. Engage the services of a suitably qualified Friable Licenced Asbestos Removalist Company/Person to complete the work.

• 2. To ensure the suitably qualified Company/ Person complies with all directories of the report submitted by XXXXXX, number XXXX dated XXXXXXXX.

• 3. Air Monitoring to be undertaken with results to be submitted within seven (7) Days of test to be submitted to Council.

• 4. All waste is to be conveyed to an approved and authorised waste facility able to accept Friable Asbestos.

• 5. A Data File to be established and record all movement of waste from the property to the approved and authorised waste facility in which copies of receipts of all deliveries to the authorised waste facility are to be kept.

• 6. Within seven (7) days of the completion of the demolition and conveying of all of the waste to an approved and authorised waste facility, certified true copies of the receipts are to be forwarded to Council.

• 7. Within seven (7) days of the completion of the demolition and conveying of all of the waste to an approved and authorised waste facility, engage the services of an appropriately qualified Occupational Hygienist to undertake an assessment of the premises and prepare a report to ensure the premises is contaminant free.

• 8. The assessment is to include core sampling in and around the building envelope.

• 9. Provide Council with a copy of the report within 7 days of the date of the inspection.

• 10. Ensure the road, gutter, drains, storm water network and creeks/streams within and surrounding the premise are clean and free of waste/sedimentation/ fuel and or liquid substances.

• 11. All work on or around the premises are to be undertaken during approved working hours approved by Council.



ASSESSMENT ACT 1979• TERMS OF ORDER 12


• Order 12 (b): To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out. Work has been unlawfully carried out.

• Terms of Order

• Submit a report from a suitably qualified person detailing the extent of filling on the site. This report is to detail the previous and current ground levels.

• Timeframe

• Thirty (30) days from the date of the Order

• Submit a report from a suitably qualified person or company attesting to the type of material contained within the unauthorised landfill throughout the whole of the premises including the identification of any contaminants found.

The report must meet the AS 1199.2-2003 and ISO2859-2:1985 Standards.

The report must also stipulate how the site is to be remediated including the entire ground surface and possible underlining surfaces as well as Unexpected Finds Protocols.

• Timeframe

• Thirty (30) days from the date of the Order


• The unauthorised fill material has the ability to impact on the property, surrounding properties and the environment by the way of altered drainage patterns (flooding), possible land contamination and water pollution from unestablished soil.

• The report is required in compliance pursuant to Work, Health and safety Standards and Environmental Standards to ensure safety and possible environment concerns not just for yourself but your family, contractors and the surrounding neighbours.

• From the report it will establish the manner in which the unauthorised land fill is to be removed and where the appropriate location or facility of that material can be properly disposed of.

•

•

EVIDENCE IN DUMPING

CONTINUITY OF EVIDENCE

• 1. The unbroken and consistent existence or operation of something over time.

• 2 . The maintenance of continuous action and self-consistent detail .

PROCEDURAL FAIRNESS

• The Land and Environment Court has confirmed that ARAs have a duty to afford procedural fairness when issuing clean-up notices (Liverpool City Council v L Cauchi & Ors [2005] NSWLEC 675).

• ARAs should seek legal advice on the extent of their procedural fairness obligations when issuing clean-up notices.

• The extent of the obligations imposed by that duty will vary depending on the particular circumstances of the case. The duty to afford procedural fairness may

require an ARA to consult with the proposed recipient of a notice for example, by providing them with a copy of the draft notice to give that recipient the right to be heard before the decision to issue the notice is made. Note that the need for urgent action is likely to minimise rather than entirely exclude the need for procedural fairness. If the notice is directed to a person other than the polluter, consider whether consultation should take place with the polluter before the decision to issue the notice is made.

UNLAWFUL CLEAN UP NOTICES AND PROCEDURAL FAIRNESS

• State and Local Government authorities across the State have power to issue a variety of orders that are often used in the context of planning and environmental issues. Orders can involve requiring someone to refrain from doing something (e.g. cease use of a premises), as well as compelling someone to do something (e.g. repair a building). These orders can be issued in a variety of circumstances (e.g. where public health and safety is at risk, or there is a threat of environmental harm) and can be served to various categories of people (e.g. owners, occupiers, managers, or people engaged in a particular activity). Various statutes empower authorities to issue orders, and these statutes provide such authorities with an extensive set of powers to compel people to do or not do something.

• Legislation varies as to the steps that must be undertaken before an order is issued. In this regard, some legislation prescribes a set of preconditions to the issue of orders, whereas other legislation is less prescriptive. This is interwoven with common law requirements when issuing orders, including the requirement for natural justice.

• The case

• The Lismore City Council v Ihalainen case provides a number of salient lessons in the way orders are issued and drafted, in particular:

• Keep them clean – if an order is being issued under one Act, then the order should not blur its content with matters under another Act.

• Harmonise actions with the significance of the issue at hand – an authority’s actions should be consistent with what is being alleged – if there is an immediate threat of environmental harm, then deal with this threat proportionately.

• Give people a chance – if possible, issue a notice of intention to issue an order, rather than serving the Order without notice.

• One size does not fit all – the dictates of procedural fairness vary from situation to situation.

• The nub of it

• The case involved a developer appealing to the Court to dismiss a number of charges brought by Lismore City Council for the failure to comply with a clean-up notice under the Protection of the Environment Operations Act 1997 (POEO Act). The developer claimed the Council had failed to provide procedural fairness, as Council had not given notice of the proposed clean-up before it was issued. The developer said the Council had failed to provide procedural fairness as no notice of the second clean-up was given and such notice should have been given in the circumstances. The developer ‘s position was that there was no imminent risk of a pollution incident that would justify the issue of such an extensive clean-up notice (requiring a large amount of fill to be removed which was very expensive to undertake) without any consultation about its contents. Further, the developer said that the discussions with Council officers at an on-site meeting indicated the Council did not perceive the works to be an incident which posed any serious or immediate threat of environment harm.

• Notices under the POEO Act

• Clean-up notices are intended for urgent and/or prompt measures necessary to avoid pollution occurring or the imminent likelihood of pollution occurring. No appeal mechanisms exist against a notice under the POEO Act and there is no statutory right to be consulted before one is issued. The notice is administrative in nature and affects the rights of the recipient. A failure

to comply can give rise to an offence under the POEO Act.

• The decision

• Justice Pain held that the Council had failed to provide procedural fairness, and notice of the second clean-up notice should have been provided.

• Key factors leading to Justice Pain’s decision were:

• The fact that the Council had not taken immediate action following a rainfall event. This suggested that the Council officers perceived no immediate threat of material environmental harm which would have supported issuing the second clean-up notice without notice.

• Whilst the Council had detailed discussions about the clean-up actions required on the site with the developer and his consultants, the works required by the clean-up notice were more extensive than those discussed.

• The work required by the second clean-up notice was substantial. These works would require the developer to engage at least one expert and would require the application of a number of lengthy policy documents.

• Some of the actions required by the clean-up notice related to compliance with the development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), and therefore were not appropriate matters to be included in a clean-up notice under the POEO Act. The Court did acknowledge that a blurred notice (covering matters under multiple Acts) might be valid if the measures under the other Act were “inextricably bound up with achieving that outcome – preventing actual or imminent pollution”.

• Interestingly, Justice Pain commented that had the notice been confined to sediment and erosion control measures only, it may have been reasonable to have served the clean-up notice without notice. This was because of the possibility of water pollution occurring from sediment runoff, if a further rainfall event occurred.

• The wash up

• Natural justice, also known as procedural fairness, is a fundamental principle for discharging regulatory duties. Government authorities should carry out their investigative and enforcement functions having regard to the principles of natural justice which include:

• Providing a fair hearing – allowing a person whose interests may be adversely affected by a decision to present their case. This includes giving a person on whom a notice is served the opportunity to respond to the notice.

• Impartiality in the decision-making process –officers are to be unbiased and not hold a vested interest in the outcome of a process.

• Decisions based on evidence – decisions must be based on the evidence provided, not on irrelevant issues, and there must be a rational basis upon which the decision maker has decided to accept the evidence as credible.

• Acting in good faith.

• This case centred in on the first dot point. Her honour clearly stated that there is a duty to afford procedural fairness, meaning a right to be heard, when a clean-up notice under the POEO Act is contemplated by a regulatory authority. Referring to a number of earlier seminal decisions on procedural fairness, Her

Honour stated:

• …statutory authority exercising a power which affects the rights of a person is bound to hear that person before exercising the power is fundamental.

• Her Honour went on to conclude that “whether procedural fairness has been afforded to the Defendant depends on the particular circumstances before the Court”. In this regard, her Honour referred to previous judgments of the Court where procedural fairness had or had not been accorded in the context of clean up notices, and concluded: “This case, not surprisingly, is different again”.

• The factors mentioned earlier, provide guidance on tailoring procedural fairness to the circumstances at hand. But if procedural fairness is not properly tailored to the circumstances at hand, then there is a risk that an order could be challenged and declared not to have been issued legally.

• February 25, 2015 in Government, Home, Planning. Tags: Cecilia Rose, clean-up notices, EP&A Act, justice pain, Maddocks, natural justice, procedural fairness, toddneal

HYGIENIST REPORT

• Independent NATA Certified/Qualified Person of Company

• Sampling Undertaken

• Not by Company Undertaking Work to remove waste

• Not just visual site Inspection when necessary

WARNING AND LIMITING AREA

WORK HEALTH AND SAFETY REGULATION 2011 - REG 468

Person with management or control of workplace must inform persons about asbestos removal work

468 Person with management or control of workplace must inform persons about asbestos removal work

(1) This clause applies if the person with management or control of a workplace is informed that asbestos removal work is to be carried out at the workplace.

(2) The person must ensure that the following persons are informed that asbestos removal work is to be carried out at the workplace and when the work is to commence, before the work commences:

(a) the person’s workers and any other persons at the workplace,

(b) the person who commissioned the asbestos removal work.

Maximum penalty:

(a) in the case of an individual-$6,000, or

(b) in the case of a body corporate-$30,000.

(3) The person must take all reasonable steps to ensure that the following persons are informed that asbestos removal work is to be carried out at the workplace and when the work is to commence, before the work commences:

(a) anyone conducting a business or undertaking at, or in the immediate vicinity of, the workplace,

(b) anyone occupying premises in the immediate vicinity of the workplace.

Maximum penalty:




Signage and barricades for asbestos removal work

469 Signage and barricades for asbestos removal work

An asbestos removalist must ensure that:

(a) signs alerting persons to the presence of asbestos are placed to indicate where the asbestos removal work is being carried out, and

(b) barricades are erected to delineate the asbestos removal area.

Maximum penalty:



OTHER LEGAL REQUIREMENTS

Asbestos removal control plan


Asbestos removal control plan

464 Asbestos removal control plan

(1) A licensed asbestos removalist must prepare an asbestos removal control plan for any licensed asbestos removal work the removalist is commissioned to undertake.

Maximum penalty:



(2) An asbestos removal control plan must include:

(a) details of how the

asbestos removal will be carried out, including the method to be used and the tools, equipment and personal protective equipment to be used, and

(b) details of the asbestos to be removed, including the location, type and condition of the asbestos.

(3) The licensed asbestos removalist must give a copy of the asbestos removal control plan to the person who commissioned the licensed asbestos removal work.

Maximum penalty:



Clearance inspection


Clearance inspection

473 Clearance inspection

(1) This clause applies if a person commissions licensed asbestos removal work at a workplace.

(2) The person or, if the workplace is residential premises, the licensed asbestos removalist must ensure that, when the licensed asbestos removal work is completed, a clearance inspection of the asbestos removal area at the workplace is carried out by:

(a) if the asbestos removal work must be carried out by the holder of a Class A asbestos removal licence-an independent licensed asbestos assessor, or

(b) in any other case-an independent competent

person.

Maximum penalty:



(3) In this clause, a clearance inspection is an inspection of an asbestos removal area after asbestos removal work has been completed to verify that the area is safe for normal use, that:

(a) includes a visual inspection, and

(b) may include air monitoring.

Clearance certificates


Clearance certificates

474 Clearance certificates

(1) This clause applies if a clearance inspection has been made in accordance with clause 473.

(2) The licensed asbestos assessor or competent person who carried out the clearance inspection must issue a clearance certificate, in accordance with this clause, before the asbestos removal area at the workplace is re-occupied.

Maximum penalty:



(3) The licensed asbestos assessor or competent person must ensure that the asbestos removal area does not pose a risk to health and safety from exposure to asbestos.

Maximum penalty:



(4) The licensed asbestos assessor or competent person must not issue a clearance certificate unless satisfied that:

(a) the asbestos removal area, and the area immediately surrounding it, are free from visible asbestos contamination, and

(b) if the assessor or competent person undertook air monitoring as part of the clearance inspection-the monitoring shows asbestos below 0.01 fibres/ml.

Maximum penalty:



(5) The clearance certificate must be in writing and must state that:

(a) the assessor or competent person found no visible asbestos residue from asbestos removal work in the area, or in the vicinity of the area, where the work was carried out, and

(b) if air monitoring was carried out by the assessor or competent person as part of the clearance inspection-the airborne asbestos fibre level was less than 0.01 asbestos fibres/mL.

For Private and Government Agencies

OTHER CONSIDERATIONSStatute of LimitationsPROTECTION OF THE ENVIRONMENT OPERATIONS ACT 1997 - SECT 216

Time within which summary proceedings may be commenced

216 Time within which summary proceedings may be commenced

(1) Proceedings for an offence under this Act or the regulations may be commenced:

(a) in the case of a prescribed offence-within but not later than 3 years after the date on which the offence is alleged to have been committed, or

(b) in any other case-within but not later than 12 months after that date.

(2) Proceedings for an offence under this Act or the regulations may also be commenced:

(a) in the case of a prescribed offence-within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer, or

(b) in any other case-within but not later than 12 months after that date.

(3) If subsection (2) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice or application must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any relevant

authorised officer is the date specified in the court attendance notice or application, unless the contrary is established.

(4) This section applies only to proceedings that are to be dealt with summarily.

(5) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.

(6) In this section:

"authorised officer" means any person who is an authorised officer for the purposes of this Act, whether or not the person has the functions of an authorised officer in connection with the offence concerned.

"evidence" of an offence means evidence of any act or omission constituting the offence.

"prescribed offence" means:

(a) an offence arising under Part 5.2, or

(b) an offence arising under Part 3.2, or

(c) an offence arising under section 143 (Unlawful transporting of waste) or 144 (Use of place as waste facility without lawful authority), or

(c1) an offence under section 142A (Pollution of land) or 144AA (False or misleading information about waste)

OTHER CONSIDERATIONS

Recovery Costs

• PROTECTION OF THE ENVIRONMENT OPERATIONS ACT 1997 - SECT 104

• Compliance cost notices

• 104 Compliance cost notices

• (1) Clean-up notice-monitoring or compliance costs The appropriate regulatory authority that gives a clean-up notice under section 91 to a person may, by notice in writing, require the person to pay all or any reasonable costs and expenses incurred by the authority in connection with:

• (a) monitoring action under the notice, and

• (b) ensuring that the notice is complied with, and

• (c) any other associated matters.

• (2) Clean-up by public authority A public authority that takes clean-up action under section 92 may, by notice in writing, require:

• (a) the occupier of the premises at or from which the authority reasonably suspects that the pollution incident occurred, or

• (b) the person who is reasonably suspected by the authority of having caused the pollution incident,

• or both, to pay all or any reasonable costs and expenses incurred by it in connection with the clean-up action.

• (3) Prevention notice-monitoring or compliance costs The appropriate regulatory authority that gives a prevention notice to a person may, by notice in writing, require the person to pay all or any reasonable costs and expenses incurred by the authority in connection with:

• (a) monitoring action under the notice, and

• (b) ensuring that the notice is complied with, and

• (c) any other associated matters.

• (4) Prevention notice or prohibition notice-non-compliance A regulatory authority that takes action under section 98 because a prevention notice is not complied with or takes action under section 103 because a prohibition notice is not complied with may, by notice in writing, require the person to whom the notice was given to pay all or any reasonable costs and expenses incurred by it in taking the action.

• PROTECTION OF THE ENVIRONMENT OPERATIONS ACT 1997 - SECT 105

• Recovery of amounts

• 105 Recovery of amounts

• (1) Recovery of unpaid amounts A regulatory authority or public authority may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction.

• (2) Recovery by person given notice If the person given a compliance cost notice complies with the notice but was not the person who caused the pollution or pollution incident, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused the pollution or pollution incident.

Joint Inspections

• 1. Joint Inspection with EPA.

• 2. Joint Inspection with SafeWork.

QUESTIONS

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