Diploma of Environmental Monitoring & Technology
Study module 4
Environmental protection compliance
Environmental
management systems
Completion Record
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INTRODUCTION
2
Different pollution control approaches
2
COMMONWEALTH ENVIRONMENTAL PROTECTION
3
The National Environmental Protection Council
National Environmental Protection Measures (NEPM)
Assessment & management of chemicals
3
4
5
STATE LEVEL PROTECTION
5
The Office of Environment & Heritage
The Department of Primary Industries
The Environmental Protection Authority
6
6
7
EPA FUNCTIONS
8
State of the Environment Report
Community Reporting
Legislation associated with the EPA
8
9
9
PROTECTION OF ENVIRONMENT OPERATIONS ACT 1997
10
Objectives of the POEO Act 1997
Appropriate Regulatory Authority
Who requires a license?
Examples of licenced activities (from POEO Act Schedule 1)
11
12
12
13
THE POEO GENERAL REGULATION
14
How long do licenses last?
What is in a license?
Load-based licensing
How is the amount of pollution measured?
Enforcement aspects
14
15
15
16
17
THE CONTAMINATED LAND MANAGEMENT ACT 1997
18
What is it?
The actual management
18
19
LOCAL GOVERNMENT LEVEL OF PROTECTION
19
Local Government Act 1993
19
THE LAND AND ENVIRONMENT COURT
20
What can the Court do?
Decisions by the Court
Example of a judgement
20
20
20
ASSESSMENT TASK
22
Questions
Assessment & submission rules
References & Resources
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Introduction
The previous study module dealt with planning an activity of some sort, especially in relation
to activities that have the potential to pollute or otherwise cause harm to the environment.
Environmental protection compliance deals with protecting the environment from activities
and processes that are active, that is, currently in operation, or currently being built for
operation, or in closedown or remediation. To this end, there are three levels of protection
in Australia;
◗ The commonwealth level
◗ The State level
◗ Local Councils
Watch out for change…
It is really important to be aware of the annoying fact (but necessary!) that government
departments constantly change their name, structure and job description. Always check the
latest incarnation by viewing the departments on the web!
Different pollution control approaches
The current framework for pollution protection is more than just punishing people or
businesses for polluting the environment. These days, we have legal and non-legal
approaches to regulating pollution control;
◗ Educative approaches (public and private)
◗ Legislative (laws and regulations)
◗ Applied ESD principles (implementing new technologies)
◗ Market based (carbon credits, taxes etc)
◗ Load based approaches (polluter pays)
◗ Risk based approaches (to be implemented June 2015 by the EPA)
◗ Enterprise agreements (Trade Waste)
◗ Punitive approaches (fines, clean up notices and court)
The evolution of this multilayered approach allows for much greater integration of pollution
awareness which leads to far greater understanding and transparency in both business and
public. There is also greater regulatory understanding between the various levels of
government and between the departments in the State level. For example, the planning
process regulators understand the roles of the EPA and vice versa, and both State level
groups understand the Local Government role better.
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Commonwealth environmental protection
At the Commonwealth level of protection, there is a crossover between the international
agreements and the State controlled implementation of Commonwealth objectives.
Internationally, there are over one hundred environmental agreements active worldwide
[source]. You can view the Department of Foreign Affairs list of Australia’s agreements from
http://www.dfat.gov.au/environment/treaties.html
Some of the key international conventions, protocols and agreements that the nation has
signed include;
◗ The Kyoto protocol (Greenhouse gas emissions)
◗ The Montreal protocol (Ozone depleting substances)
◗ The Nagoya protocol (Biodiversity and conservation)
◗ The London Convention (anti sea dumping)
◗ The MARPOL Convention (Protection of the Sea Act)
And the list goes on and on, but not all of them are based around environmental protection.
For most of these there is corresponding legislation or statutory instruments to aid the
implantation in the real world.
A lot of this is being ‘rolled back’ at the Commonwealth level when corresponding State
legislation meets the criteria, which appears to be in accordance with the goals and
objectives of the IGAE 1992.
The National Environmental Protection Council
Australia’s federal environmental protection is governed by the National Environmental
Protection Council (NEPC). The National Environmental protection Council Act 1994 allowed
for complementary legislation for each State and Territory (so, NSW has the NEPC (NSW) Act
1995).
The Council itself is just representatives from each State plus the federal minister of the
environment, and it is this Council that creates the true protection tools which are called
National Environmental Protection Measures (NEPM’s).
Changes…
At the time of writing, Australia’s twenty-two Standing Councils are being changed as part of
the great ‘red-tape’ reduction. The Council in charge of the environment was the SCEW,
Standing Council on Environment and Water. Ultimately, this will change back to the NEPC.
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National Environmental Protection Measures (NEPM)
As mentioned, the Commonwealth National Environment Protection Council Act 1994, and
complementary State and Territory legislation allow the National Environment Protection
Council to make National Environment Protection Measures (NEPMs).
NEPMs are a special set of national objectives designed to assist in protecting or managing
particular aspects of the environment.
The concept of NEPMs is unique and is provided for under the National Environment
Protection Acts (NEPC Acts). NEPMs can be made about a variety of environmental matters
as prescribed by the NEPC Acts:
◗ ambient air quality
◗ ambient marine, estuarine and fresh water quality
◗ the protection of amenity in relation to noise
◗ general guidelines for the assessment of site contamination
◗ environmental impacts associated with hazardous wastes
◗ the re-use and recycling of used materials
NEPMs may also relate to motor vehicle noise and emissions. NEPMs are made by NEPC
Ministers and are implemented in each jurisdiction. Decisions about the way in which
NEPMs are implemented are made by each jurisdiction individually.
When protection doesn’t really mean protection…
When a NEPM is made, it becomes the responsibility of each State and Territory (as well as
the Commonwealth) to enforce them. Sadly though, there is currently no sanctions or
penalties for non-compliance.
As such the only requirement is for the States and Territories to report the effectiveness of
the measures, which are tabled in parliament each year.
Currently there are seven NEPM’s in place;
◗ Air Toxics
◗ Ambient Air Quality
◗ Assessment of contaminated sites
◗ Diesel Vehicle Emissions
◗ Movement of Controlled Waste (between States & Territories)
◗ National Pollutant Inventory (NPI)
◗ Used packaging materials
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How to view these…
All the NEPM’s are available from www.commlaw.gov.au. You will need to search under
legislative instruments.
Assessment & management of chemicals
Another area where the Commonwealth is helping with the protection of the environment
is by determining the damage that chemicals can do under a process called Chemical
Assessment Schemes. Currently, the Commonwealth is using several difference schemes to
assess chemicals, including;
◗ Agricultural and veterinary chemicals
◗ Medicines
◗ Food additives
◗ Industrial chemicals
The first three of these are governed by either cooperation with States (agricultural and
veterinarian chemicals) or has separate legislation (medicines and foods), which means that
it is mainly industrial chemicals that the assessment scheme is concerned with.
Why assess chemicals?
The general school of thought is that if the government can understand the chemicals, it can
implement the required levels of pollution control in a worst case scenario, or aid the States
and Territories in achieving the same aims.
Ultimately, the Commonwealth lacks the teeth to do too much protection, but this is by
design in a way. The IGAE allows for the major environmental control to be given to the
States, so it makes a certain amount of sense that the Commonwealth has fewer teeth with
regards to environmental protection than might be expected. It is the State systems of
environmental protection that is discussed next.
State level protection
Currently, in NSW, the administration of environmental protection is managed by the NSW
Office of Environment and Heritage (OEH, www.environment.nsw.gov.au, which is currently
administered under the Department of Planning and Environment) and the Environmental
Protection Authority (EPA, www.epa.nsw.gov.au), which, as of 2012, operates as a distinctly
separate ‘Authority’.
Australia’s environmental statutory framework is very complex, and as such there will
always be an overlap between the various government levels (i.e. between Federal and
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State) as well as between Departments (i.e. Department of Planning and Infrastructure) and
even between EPI’s and legislation (i.e. between the EP&A Act and the POEO Act). To this
end, mention must be made of the role of the Office of Environment and Heritage.
The Office of Environment & Heritage
The Office of Environment and Heritage (OEH) has environmental protection responsibilities
that mainly cover the areas of conservation and heritage protection. Protection against
‘pollution’ generally falls under the EPA (see next section).
The OEH has responsibilities for and protects NSW’s environment and heritage, which
includes the natural environment, Aboriginal country, culture and heritage, and built
heritage.
OEH supports the community, business and government in protecting, strengthening and
making the most of a healthy environment and economy in NSW as well administration of
the following;
◗ Royal Botanic Gardens and Domain Trust
◗ NSW Environmental Trust
◗ Western Sydney Parkland Trust
◗ Parramatta Park Trust
◗ Centennial Park and Moore Park Trust
◗ Historic Houses Trust
◗ Taronga Conservation Society Australia
◗ Jenolan Caves Reserve Trust
◗ Environment Protection Authority (our focus)
The role of the environmental technician has had less and less to do with the OEH, unless
the EPA falls under the care of the OEH as it has done on the past. This area involves work
by Park Rangers and other conservation specialists that play roles in ‘policing’ the
environment from a loss of amenity and ensuring that conservation of the remaining natural
habitat is conserved in accordance with the current conservation legislation.
The Department of Primary Industries
Another Department that plays a somewhat understated role in environmental protection is
the Department of Primary Industries (DPI). The DPI considers the following aspects of
primary industrial activity;
◗ Agriculture NSW
◗ Fisheries NSW
◗ NSW Food Authority
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◗ Biosecurity NSW
◗ The NSW Office of Water
Although each of these sections all contribute in their own way to the protection of the
environment, the avoidance of contamination entering our waterways is principally
achieved by the NSW Office of Water (OoW).
The OoW plays an important part of environmental protection through its management and
policing of liquid trade waste. But what is ‘liquid trade waste’? You would be familiar with
the concept of solid waste, or ‘rubbish’ that households and industry create on a daily basis.
Liquid Trade Waste is wastewater that results from legally defined ‘premises’, which include
houses, businesses and ships amongst others.
The OoW (or authorities of, such as Sydney Water and Hunter Water and Local Water
Utilities such as local councils) issue Trade Waste Agreements (TWA’s). These TWA work as
an environmental protection tool because they define the types and levels of pollutants that
sewerage treatment works accept from premises that produce a complex array of liquid
waste types, which prevents environmental harm through illegal discharge to waters. The
figure below shows a part of such an agreement.
Figure 4.1 – A snippet from the TWA between Hunter Water and Hunter TAFE.
The Environmental Protection Authority
The history of the Environmental Protection Authority (EPA) in NSW has been somewhat
turbulent, with roles as a stand-alone authority and a subsumed authority within various
incarnations of environmental departments, but currently (as of 2012) stands alone as an
Authority, albeit administered by the current Department of Planning and Environment. The
EPA was conceived under the Protection of Environment Administration Act 1997, with the
most recent changes applied after the gazetting of the Protection of Environment
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Administration Regulation 2012. The EPA states that the following are its priority outcomes:
Air Quality
◗ air quality that protects public and ecosystem health
◗ ozone-depleting gases and greenhouse gases, which may have global impacts
Water Quality
◗ water quality of coastal marine, estuarine, inland and groundwater’s that protects
and recognises the value of our waterways to:
o aquatic and riparian ecosystems and habitats
o public health and public amenity
o economic development
Land
◗ land rehabilitated and restored to a level capable of maintaining appropriate land
use and healthy ecosystems
◗ land protected from further degradation
Waste
◗ materials and products re-used, recycled and recovered so that less waste is
generated
◗ wastes, including solid, liquid and hazardous wastes, generated in less quantity and
with less toxicity
◗ waste storage, recycling and disposal facilities operated environmentally
Hazardous Materials
◗ protection of the public and the environment from exposure to hazardous materials
Noise
◗ protection of people from the adverse effects of noise
EPA functions
State of the Environment Report
Section 10 of the Protection of the Environment Administration Act 1991 requires the EPA to
publish a report on the state of the NSW environment. These reports provide an assessment
of the condition of the environment, the pressures on the environment and the responses
of the environment to those pressures. The reports also analyses trends, evaluate the
effectiveness of policies and establish a benchmark from which future environmental
changes can be assessed.
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Community Reporting
The EPA operates a 24 hour hotline which provides a facility for the general public to report
pollution problems as they occur. These problems might be illegal dumping, smoky vehicles
and industrial air or water pollution incidents.
Legislation associated with the EPA
At the time of writing, the NSW Environment Protection Authority (EPA) has responsibilities
and functions under the following NSW environmental legislation.
◗ Contaminated Land Management Act 1997
◗ Dangerous Goods (Road and Rail Transport) Act 2008
◗ Environmentally Hazardous Chemicals Act 1985
◗ Forestry Act 2012 (Parts 5a,b only)
◗ National Environment Protection Council (New South Wales) Act 1995
◗ Ozone Protection Act 1989
◗ Pesticides Act 1999
◗ Protection of the Environment Administration Act 1991
◗ Protection of the Environment Operations Act 1997
◗ Radiation Control Act 1990
◗ Recreation Vehicles Act 1983
◗ Waste Avoidance and Resource Recovery Act 2001
Of all the legislation listed, environmental technicians receive ‘work’ through three main
pieces of legislation;
◗ Protection of Environment Operations Act 1997 (POEO Act)
◗ Contaminated Land Management Act 1997 (CLM Act)
◗ National Environment Protection Council (New South Wales) Act 1995 (NEPM’s)
You may remember a comment about the complexity and overlap of all this legislation. The
National Environmental Protection Council (NSW) Act is a prime example of this
complexity, as this NSW legislation allows the implementation of the National version of the
Act.
The national council created statutory instruments called National Environmental
protection measures (NEPM’s), and the NSW Government implements NEPM’s in NSW in a
variety of ways, including via legislation. The EPA is one agency that will administer the
implementation of NEPMs in NSW. NEPMs implemented using EPA legislation including
those relating to:
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◗ monitoring of ambient air quality
◗ assessment of site contamination
◗ used packaging materials
◗ movement of controlled waste
◗ national pollutant inventory
Relevance to the technician…
There is a lot of sampling and analysis work created from these NEPM’s. Organisations are
required to submit pollution data to the National Pollution Inventory (NPI), and to do this
they require raw pollution data that needs to be gathered from the field, as well as using
modelled estimations of outputs from the data collected. Contaminated land is again
addressed here, as well as ambient air monitoring and analysis.
Protection of Environment Operations Act 1997
Environmental law plays an important role in managing the environmental and health
impacts of pollution on human communities and natural ecosystems. The main piece of
legislation governing pollution in NSW is the Protection of the Environment Operations Act
1997 (POEO Act).
Reviewed legislation…
This act was reviewed in 2005 and the Protection of Environmental Operations Amendment
Act 2005 commenced in May 2006. The review resulted in changes to twelve parts of the
legislation (mainly concerned with financial recovery, changes in waste regulation and
definitions). It is a requirement to view both acts when a holistic understanding of the law is
required.
Other important legislation includes Environmental Planning and Assessment Act 1979 (EPA
Act), Contaminated Land Management Act 1997 (CLM Act), Environmentally Hazardous
Chemicals Act 1985 (EHC Act) and the Pesticides Act 1999. The POEO Act regulates water, air
and noise pollution in NSW. The POEO Act enables the following protection functions;
◗ the issuing of pollution licences and pollution notices
◗ creates a range of pollution offences and penalties
◗ legal action to enforce the law
◗ empowers members of the public to take legal action to enforce the law
Under the POEO Act, responsibility for implementation of pollution laws in NSW is shared by
both local councils and the Environment Protection Authority (EPA).
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Available instruments and strategies…
The following list contains all of the statutory instruments that can be used to regulate
pollution in NSW;
*
Protection of Environment policies (not currently used)
*
Environmental protection licences
*
Environmental protection notices (there are a few types)
*
Environmental audits
*
Economic measures
*
Criminal proceedings
Objectives of the POEO Act 1997
The objects of this Act are as follows:
◗ to protect, restore and enhance the quality of the environment in New South Wales,
having regard to the need to maintain ecologically sustainable development
◗ to provide increased opportunities for public involvement and participation in
environment protection
◗ to ensure that the community has access to relevant and meaningful information
about pollution
◗ to reduce risks to human health and prevent the degradation of the environment by
the use of mechanisms that promote the following:
o pollution prevention and cleaner production,
o the reduction to harmless levels of the discharge of substances likely to cause
harm to the environment,
o the elimination of harmful wastes,
o the reduction in the use of materials and the re-use, recovery or recycling of
materials,
o the making of progressive environmental improvements, including the
reduction of pollution at source,
o the monitoring and reporting of environmental quality on a regular basis,
◗ to rationalise, simplify and strengthen the regulatory framework for environment
protection,
◗ to improve the efficiency of administration of the environment protection
legislation,
◗ to assist in the achievement of the objectives of the Waste Avoidance and Resource
Recovery Act 2001
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Appropriate Regulatory Authority
The POEO Act clearly delineates responsibility between the EPA and local councils (and
other bodies, not covered in this course). The EPA is responsible for regulating state and
local government premises and activities as well as any industry listed on Schedule 1 of the
Act. Local councils are responsible for regulating everyone else – for example, small
businesses. Local councils can regulate by using notices, fines and by prosecuting. The EPA
can use the same tools but is also able to issue licences. Licences are issued by the EPA for
premises and activities listed in Schedule 1 of the Act.
Who requires a license?
The EPA is responsible for licensing the following:
◗ activities on the POEO Act Schedule 1 (see below)
◗ activities outside the Schedule that cause water pollution (note that water licences
for un-scheduled premises water licences are seldom approved)
Schedule 1 of the POEO Act (see Table 4.1) lists 27 industry sectors which require licenses,
termed Scheduled Activities. These can be premise or non-premise based activities. An
example of a non-premises based activity is a waste transporter.
Agricultural producers
Contaminated soil treatment Logging operations on
works
Crown land
Aircraft facilities
Crushing/grinding
operations
Mineral and metals
processing industries
Aquaculture
Dredging operations
Other mines
Bitumen producers
Drum reconditioning works
Petroleum works
Cement and concrete works
Electricity generators
Railway systems
Ceramics works (eg bricks)
Freeway/tollway
construction
Sewage treatment works
Chemical industries
Irrigated agriculture
Waste activities and facilities
Chemical storage facilities
Livestock intensive
industries
Timber mills
Coal mines
Livestock processing
industries
Wood preservation
operations
Table 4.1 - POEO Act Schedule 1: Activities requiring EPA licensing
Not all companies in a particular industry sector require a license. There are restrictions on
particular facilities (examples below), most commonly production capacity, which may
exclude them from the EPA license system. These are known as non-scheduled activities,
and will be under the less stringent control of the local council.
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Local councils will be responsible for all activities in their area not regulated by the EPA, but
under a less well-defined system without the aid of the license. Council-regulated activities
have to demonstrate that they aren’t polluting, but do not have to pay the license fee which
allows some certainty.
Examples of licenced activities (from POEO Act Schedule 1)
Breweries or distilleries that produce alcohol or alcoholic products and that have an
intended production capacity of more than 30 tonnes per day or 10,000 tonnes per year.
Coal mines (that mine, process or handle coal) and are;
◗ underground mines, or
◗ open cut mines that:
a) have an intended production or processing capacity of more than 500 tonnes per day of
coal or carbonaceous material, or
b) disturb or will disturb a total surface area of more than 4 hectares of land by clearing or
excavating, or:
i)
constructing dams, ponds, drains, roads, railways or conveyors, or
ii)
storing or depositing overburden, coal or carbonaceous material or tailings
Chemical storage facilities that store or package chemical substances in containers, bulk
storage facilities, stockpiles or dumps with a total storage capacity exceeding:
◗ 20 tonnes of pressurised gas, or
◗ 200 tonnes of liquefied gases, or
◗ 2,000 tonnes of any chemical substances.
Petroleum works that;
◗ produce, other than in the course of exploratory activities, crude petroleum or shale
oil, or
◗ produce more than 5 petajoules per year of natural gas or methane, or
◗ refine crude petroleum, shale oil or natural gas, or
◗ manufacture more than 100 tonnes per year of petroleum products (including
aviation fuel, petrol, kerosene, mineral turpentine, fuel oils, lubricants, wax, asphalt,
liquefied gas and the precursors to petrochemicals, such as acetylene, ethylene,
toluene and xylene), or
◗ store petroleum and natural gas products with an intended storage capacity in
excess of:
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a)
200 tonnes of liquefied gases, or
b)
2,000 tonnes of any petroleum products, or
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◗ dispose of oil or petroleum waste or process or recover more than 20 tonnes of
waste per year
Can the public view the licences?
Yes! There are well over 200 licensed premises in the Hunter region alone. Each licence is
viewable through the Public Register at www.environment.nsw.gov.au.
Water pollution licenses
Section 120 of the POEO Act states:
◗ a person must not pollute any waters.
◗ a person must not cause any waters to be polluted.
◗ a person must not permit any waters to be polluted.
◗ a person who contravenes this section is guilty of an offence.
This is unless a license is held and the conditions of that license are obeyed. Activities
creating water pollution also fall under the EPA licensing system. However, if the activity is
not included in the POEO Schedule, it is not compulsory to apply for a license.
The POEO General Regulation
The General Regulation (which is one of a few other regulations associated with the POEO
Act itself) lists matter that causes water pollution and this is also viewable online through
www.legislation.nsw.gov.au. The regulation;
◗ prescribes methodology to be used when complying with requirements in or under
the environment protection legislation to test for the presence or concentration of
matter in waters
◗ exempts certain activities from the pollution of waters offence (see below) and
◗ gives the EPA a `reserve' power to prohibit or regulate activities that threaten the
public water supply
The following activities are exempted from needing licenses for water pollution:
◗ discharge into a sewer, if authorised by the operator of sewerage system
◗ boat engines unless they are not properly maintained or if the vessel is a dredge
How long do licenses last?
Licenses under previous Acts were fixed terms (typically 1-3 years). Under the POEO Act,
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licences remain in force until suspended, revoked or surrendered, but the EPA must review
the licence at least once every three years, and give public notice of its intention to do so.
What is in a license?
Licences usually are issued with conditions. Examples of conditions that can be attached to a
licence are in the POEO Act and include:
◗ administrative
◗ discharge limits
◗ operational
◗ monitoring and recording
◗ reporting
Load-based licensing
The Load Based Licensing (LBL) Scheme was a major overhaul of the State's environment
protection licensing system that controls emissions from NSW's 3,500 largest potentially
polluting activities. The new system introduced emission load limits into licences and linking
of licence fees to the total amount of emissions (loads) from each licensed premises: the
smaller the load, the lower the fee.
This system prescribes a maximum load and covers the entire site. It still may include
maximum concentrations and/or percentage breakdowns of how much. The fee will be
affected by the actual amount of pollutant entering the waterway rather than a blanket
amount regardless of pollutant level.
The following factors associated with a particular activity affect its license fee:
◗ type of activity
◗ production capacity
◗ type of pollutants
◗ amount of pollutants
◗ location of facility
As mentioned above, Schedule 1 of the POEO Act sets out which activities need an EPA
licence. The General Regulation associated with it sets out the details of the load-based
license. Load-based fees are calculated using a formula that incorporates incentives for
ongoing pollution reduction. These incentives are proportional to the harmfulness of each
pollutant. The factors used in calculating pollutant load fees are:
Assessable load
The pollutants for which load fees are payable for each type of licensed activity are called
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assessable pollutants; the fee is proportional to the assessable load (amount) of these
pollutants
Pollutant weighting
Each assessable pollutant is given a pollutant weighting (PW), ranging from 0.5 to 930,000,
to reflect its potential to inflict environmental damage; for water pollutants, weights vary
depending on the type of receiving water (open coastal, estuarine or enclosed)
Critical zone
A weighting of between 1 and 7 applies for each assessable pollutant where there are
excesses of pollutants in sensitive or overloaded environments
Pollutant fee unit
The dollar value components of the load fee calculation formula
Fee rate threshold
Any portion of an assessable pollutant's load in excess of its fee rate threshold (FRT) is
charged at double the rate.
Relevance to the technician…
It is the organisation’s responsibility to monitor their emissions of the assessable pollutants
and to calculate the actual amount - the assessable load – of that pollutant entering the
environment over the fee period (one year). The LBL fee is then calculated on that basis. The
EPA has an on-line license calculator on their licencing pages.
How is the amount of pollution measured?
Licenses state the pollution load in terms of mass, rather than concentration, but in reality,
this means measuring the concentration of each species and the volume of effluent and
multiplying them together. Measuring the concentration can be done in two ways:
Source monitoring
The obvious (real) way; there are some quite specific rules that the EPA applies as part of
the license conditions, such as number of sampling points, frequency of sampling, what to
do when a sample is missed, how to measure the flow rate etc
Emission factors
Use of estimated emission rates on the basis of typical emission rates for certain activity
types with particular pollution control equipment, or predictive systems based on past
monitoring where the amount of pollutant can be accurately predicted from certain
operational measures that are easier to measure (eg rate of fuel consumption, raw material
usage rates); use of these methods require specific permission in the license. An example of
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an EPA Licence with load limits can be seen in the figure below;
Figure 4.2 – Snippet of an EPA Licence from a chemical company
Enforcement aspects
The “environment police” are known as Authorised Officers under the POEO Act, and it is
their responsibility to detect and investigate breaches of the Act, and then to take
appropriate action, which could be:
◗ a fine
◗ a notice requiring action
◗ a charge which is prosecuted in the Land and Environment Court
What notices can be issued?
◗ clean-up notices
◗ prevention notices
◗ penalty notices
◗ notices to provide information and/or records
◗ noise abatement notices
Duty to notify pollution incidents (POEO Act Part 5.7)
There is a duty to notify the Appropriate Regulatory Authority (ARA, broadly, the EPA or the
local council) of pollution incidents where material harm to the environment is caused or
threatened. Material harm includes actual or potential harm to the health or safety of
human beings or to ecosystems that is not trivial or that result in actual or potential loss or
property damage of an amount over $10,000. Failure to do so is an offence.
Environmental audits (POEO Act Chapter 6)
The POEO Act provides that mandatory audits may be required as a condition of a licence if
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the EPA reasonably suspects that the holder of the licence has on one or more occasions
contravened the POEO Act, the regulations or the conditions of the licence, and the
contravention has caused or is likely to cause harm to the environment.
An environmental audit, whether required by the EPA or done voluntarily by the company
as part of ISO14000 accreditation consists of a thorough examination of the company’s
activities from management down to operation of equipment. The audit gathers data about
the how the activity is meeting pollution and waste limits set down by
licenses/regulations/laws/codes of practice.
Relevance to the technician…
As environmental audits are potentially statutory, a basic understanding of planning and
conducting audits is considered and important skill. There are several auditing units
available in the course. You should check with your teacher if these units are relevant to
your training and consider undertaking them as part of your study.
POEO (General) Regulation 1997
◗ sets out the load-based licensing conditions
◗ provides a definition of water pollution and of existing exemptions relating to the
offence of polluting waters,
◗ outlines matters of a general nature, including provisions relating to forms for police
warrants of entry concerning noise, the appeal period for certain animal noise
control notices, fees relating to environment protection notices and restrictions on
requirements for financial assurances by licensees
The Contaminated land management Act 1997
What is it?
The CLM Act enables the EPA to respond to contamination that it has reason to believe is
significant enough to warrant regulation. The Act gives the EPA power to:
◗ declare land to be significantly contaminated land
◗ order a person to undertake a preliminary investigation of land that the EPA
suspects to be contaminated
◗ order a person to take management action in relation to contaminated land
◗ approve a voluntary proposal to manage significantly contaminated land
The EPA may also direct a public authority to carry out management action in relation to
contaminated land. Those ordered to take management action may appeal against the
order. They can also recover costs from the person/s responsible for the contamination in
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some circumstances.
The Act requires landowners and persons who carry on contaminating activities to notify the
EPA of the contamination of land in certain circumstances, and allows the EPA to accredit
people as site auditors. Site auditors must issue a Site Audit Statement indicating the land
uses that any site is suitable for.
The actual management
The EPA is required to keep a record of current and former sites it regulates or regulated.
Certain information about current sites is referred to councils, who must record and make
such information available using planning certificates. This information is available from
their website under a public register.
Relevance to the technician
There is often a significant amount of work performed by environmental technicians in
assessing contaminated sites as the determination of the degree of contamination requires
sampling and analysis of the sites soils and groundwater. As such, an ET is often involved in
digging trenches to collect soil samples, as well as sampling groundwater bores and may
even be involved in certain aspects of remediation.
Local Government level of protection
To the environmental technician, the Local Council is somewhat invisible. Sometimes,
council’s run activities (such as solid waste landfill facilities) that run under an EPA licence,
and as such the technician will perform routine sampling and testing for these sites, but
other than that, the Council themselves perform environmental assessments, usually in the
planning stage.
Issuing of notices
As a Council can be considered the Appropriate Regulatory Authority, a Council can issue a
variety of notices in order to protect the environment, including;
◗ Clean-up notices
◗ Prevention notices
◗ Noise control notices
Other types of notices exist but are either cost related or issued by the Minister for the
Environment only (such as prohibition notices). Penalty notices are used by Council’s to
avoid the costly and lengthy prosecution processes.
Local Government Act 1993
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Councils also have powers under the Local Government Act 1993 (LGA 1993). Firstly, under
this Act, any money generated by notices and fines goes to the Council, so there is a fiscal
incentive to use these protection enforcement tools. The LGA Act also includes the following
environmental obligations;
◗ Providing a legal framework for environmentally responsible system of government
◗ Requiring Councils to have regard for the principles of ESD
Council are also required to facilitate environmental protection through their management
plans, and report environmental quality through Sate of Environment reporting.
The Land and Environment Court
This State Court was set up by the Land and Environment Court Act 1979 to deal with cases
relating to environmental law. The Land and Environment Court have the power to hear
cases involving land anywhere in New South Wales. The most common things the Court
deals with are building, development and environmental matters.
What can the Court do?
The Land and Environment Court can:
◗ hear appeals about development application decisions by your Local Council
◗ hear appeals about building application decisions by your Local Council
◗ hear appeals about Orders and Notices issued by your Local Council,
◗ hear appeals against land valuations by the Office of the Valuer General
◗ award compensation if your land is acquired by the government
◗ deal with environmental crimes, such as pollution
◗ hear appeals from people found guilty of an environmental offence in the Local
Court
Decisions by the Court
Rulings by the Land & Environment Court are published on the AUSTLII website, with some
specific EPA related aspects available on the EPA website. The information available from
AUSTLI is not the entire proceedings, but the reasons for the decision of the court (so,
aspects such as supporting evidence are not available).
An example of a court decision is seen below. In this case, the chemical giant Orica was
fined for contaminating the urban area of Stockton (in Newcastle, NSW) with the potentially
toxic and carcinogenic compound of hexavalent Chromium (Cr6+).
Example of a judgement
Orica Pleads Guilty to Two Environmental Offences Involving the Release of Hexavalent
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Chromium into the Atmosphere
The defendant, Orica Australia Pty Ltd ("Orica"), pleaded guilty to nine charges under the
Protection of the Environment Operations Act 1997 ("the POEOA") which were addressed in
concurrent sentence proceedings held over 5, 6, 10 and 12 December 2012 and 20 May
2013. Those charges related to seven separate incidents occurring on different dates
between October 2010 and December 2011. The prosecutor, the Environment Protection
Authority ("EPA"), dealt with all nine charges together in the interests of the efficient use of
the parties and the Court's time. Although the proceedings were heard concurrently, it is
appropriate that seven separate judgments are produced, that is, one for each discrete
incident.
The principal sentencing judgment with respect to these proceedings dealt with the Nitric
Acid Air Lift Incident, which occurred on 19 October 2010 (Environment Protection Authority
v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103, "the principal
judgment"). That judgment summarises all of the charges, outlines in greater detail the
conduct of the proceedings, and gives a fuller articulation of the relevant sentencing
principles than the six subsequent judgments and should be referred to for further detail on
the relevant principles and conduct of the proceedings. Those principles are applied in this
judgment, but are expressed here only in summary form.
This judgment concerns the determination of the appropriate sentence for a pollution
incident that occurred on 8 August 2011, involving the release into the atmosphere of
sodium chromate containing hexavalent chromium, during start-up procedures at the
Ammonia Plant at Orica's Kooragang Island Licensed Premises ("the KI premises") ("the
Hexavalent Chromium Incident"). It resulted in two separate charges:
(a)
breach of a licence condition O2.1(b) under Orica's Environment Protection Licence
Number 828 ("Licence 828") contrary to s 64(1) of the POEOA, by failing to operate the
Ammonia Plant in a proper and efficient manner (matter number 51019 of 2011); and
(b)
breach of s 148(2) of the POEOA by failing to report a pollution incident as soon as
practicable to the appropriate regulatory authority, namely, the Environment Protection
Authority ("the EPA") (matter number 51020 of 2011).
Both are offences of strict liability.
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Assessment task
This section provides formative assessment of the theory. Answer all questions by typing
the answer in the boxes provided. Speak to your teacher if you are having technical
problems with this document.
◗ Type brief answers to each of the questions posed below.
◗ All answers should come from the theory found in this document only unless the
question specifies other.
◗ Marks shown next to the question should act as a guide as to the relative length or
complexity of your answer.
Questions
1. List four different approaches to regulating pollution control used by government. [1mk]
Click here to enter text.
Assessor feedback
2. Briefly explain the benefits to using such a wide variety of approaches. [2mk]
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Assessor feedback
3. Provide three examples of international protocols or agreements that help Australia
regulate environmental pollution and state what each one protects against. [3mk]
Click here to enter text.
Assessor feedback
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4. What role does the NEPC play in environmental protection at the Commonwealth level?
In your answer, explain why the Commonwealth level is less involved than the States in
direct protection measures. [3mk]
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Assessor feedback
5. List the seven NEPM’s regulated by the States. [1mk]
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6. Explain in your own words how the assessment of chemicals helps provide
environmental protection? [3mk]
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Assessor feedback
7. Which two state level government departments are currently providing the most
environmental protection regulation in NSW? [1mk]
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Assessor feedback
8. What is a Liquid Trade Waste Agreement? Who issues them and how do they protect
our waterways from pollution? [3mk]
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Click here to enter text.
Assessor feedback
9. List the key priorities of the EPA [1mk]
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10. List three key pieces of legislation associated with the EPA? [1mk]
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11. Identify the four key environmental protection functions that the POEO Act enables.
[2mk]
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12. What is meant by the term Appropriate Regulatory Authority? [1mk]
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13. How is the requirement for an EPA licence determined? [1mk]
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Click here to enter text.
Assessor feedback
14. What is ‘load based licencing’? How does it differ from concentration based licencing?
[2mk]
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15. What are the five key criteria used to calculate pollutant fee loads? [1mk]
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16. Describe how the amount of pollution is measured for load is based licencing? [2mk]
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17. Identify the three major types of enforcement category? [1mk]
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18. What is the purpose of an environmental audit? [1mk]
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19. What role does the Contaminated Land Management Act 1997 play in environmental
protection? How do technicians ‘benefit’ from this Act? [4mk]
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20. Local Councils are the ARA under some circumstances. What can a Local Council do to
protect the environment? [2mk]
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21. What is the role of the Land and Environment Court in relation to protecting the
environment? [1mk]
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Assessment & submission rules
Answers
◗ Attempt all questions and tasks
◗ Write answers in the text-fields provided
Submission
◗ Use the documents ‘Save As…’ function to save the document to your computer
using the file name format of;
Yourname-EMS-SM4
◗ email the document back to your teacher
Penalties
◗ If this assessment task is received greater than seven (7) days after the due date, it
may not be considered for marking without justification.
Results
◗ Your submitted work will be returned to you within 3 weeks of submission by email
fully graded with feedback.
◗ You have the right to appeal your results within 3 weeks of receipt of the marked
work.
Problems?
If you are having study related or technical problems with this document, make sure you
contact your assessor at the earliest convenience to get the problem resolved. The contact
details can be found at;
◗ www.cffet.net/env/contacts
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References & Resources
References
You are not required to read these references unless the question you are answering
requires it. Note that some of these resources might be available from the links provided in
the resources (below), your teacher or the library.
Bates, G. (2010). Environmental Law in Australia. Australia: LexisNexis-Butterworths.
EDO, NSW. (2005). Environmental law Toolkit - NSW. 5th Ed. Sydney, Australia: The
Federation Press.
Farrier, D. (. (2011). The Environmental Law Handbook. Sydney: Thomson Reuters.
Fisher, D. (2010). Australian Environmental law: norms, Principles and Rules. Australia:
Lawbook Company.
Lipman, Z. E. (2009). Environmental and Planning Law in New South Wales. Sydney,
Australia: The Federation press.
StandardsAustralia. (2004). AS/NZS ISO 14001:2004 Environmental Management Systems:
Requirements with guidance for use. Australia: Standards Australia.
Resources

Information on environmental law can be found at the EDO here.

Current Commonwealth legislation can be found here.

Current State legislation can be found here.

NSW environmental planning materials can be found here.

NSW environmental protection information (EPA) can be found here.

Commonwealth EPBC Act website is here.

Local Government information can be found here.
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