environmental protection compliance

Diploma of Environmental Monitoring & Technology

Study module 4 Environmental protection compliance

Environmental

management systems

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EMS Study module 4 Environmental protection compliance

Chemical, Forensic, Food & Environmental Technology [cffet.net] Page | 1

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INTRODUCTION 2

Different pollution control approaches 2

COMMONWEALTH ENVIRONMENTAL PROTECTION 3

The National Environmental Protection Council 3 National Environmental Protection Measures (NEPM) 4 Assessment & management of chemicals 5

STATE LEVEL PROTECTION 5

The Office of Environment & Heritage 6 The Department of Primary Industries 6 The Environmental Protection Authority 7

EPA FUNCTIONS 8

State of the Environment Report 8 Community Reporting 9 Legislation associated with the EPA 9

PROTECTION OF ENVIRONMENT OPERATIONS ACT 1997 10

Objectives of the POEO Act 1997 11 Appropriate Regulatory Authority 12 Who requires a license? 12 Examples of licenced activities (from POEO Act Schedule 1) 13

THE POEO GENERAL REGULATION 14

How long do licenses last? 14 What is in a license? 15 Load-based licensing 15 How is the amount of pollution measured? 16 Enforcement aspects 17

THE CONTAMINATED LAND MANAGEMENT ACT 1997 18

What is it? 18 The actual management 19

LOCAL GOVERNMENT LEVEL OF PROTECTION 19

Local Government Act 1993 19

THE LAND AND ENVIRONMENT COURT 20

What can the Court do? 20 Decisions by the Court 20 Example of a judgement 20

ASSESSMENT TASK 22

Questions 22 Assessment & submission rules 27 References & Resources 28



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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 Australias 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

Australias 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 (NEPMs).

Changes

At the time of writing, Australias 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 doesnt 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 NEPMs 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 NEPMs 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.

Australias 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 EPIs 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 NSWs 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 (TWAs). 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 groundwaters 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 (NEPMs)

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 (NEPMs), and the NSW Government implements NEPMs 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 NEPMs. 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 works

Logging operations on 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 arent 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

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.


It is the organisations 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 companys

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.


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.


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,

councils 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 Councils 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]


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]


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]


Assessor feedback

5. List the seven NEPMs regulated by the States. [1mk]


Assessor feedback

6. Explain in your own words how the assessment of chemicals helps provide

environmental protection? [3mk]


Assessor feedback

7. Which two state level government departments are currently providing the most

environmental protection regulation in NSW? [1mk]


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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Assessor feedback

9. List the key priorities of the EPA [1mk]


Assessor feedback

10. List three key pieces of legislation associated with the EPA? [1mk]


Assessor feedback

11. Identify the four key environmental protection functions that the POEO Act enables.

[2mk]


Assessor feedback

12. What is meant by the term Appropriate Regulatory Authority? [1mk]


Assessor feedback

13. How is the requirement for an EPA licence determined? [1mk]



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Assessor feedback

14. What is load based licencing? How does it differ from concentration based licencing?

[2mk]


Assessor feedback

15. What are the five key criteria used to calculate pollutant fee loads? [1mk]


Assessor feedback

16. Describe how the amount of pollution is measured for load is based licencing? [2mk]


Assessor feedback

17. Identify the three major types of enforcement category? [1mk]


Assessor feedback



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18. What is the purpose of an environmental audit? [1mk]


Assessor feedback

19. What role does the Contaminated Land Management Act 1997 play in environmental

protection? How do technicians benefit from this Act? [4mk]


Assessor feedback

20. Local Councils are the ARA under some circumstances. What can a Local Council do to

protect the environment? [2mk]


Assessor feedback

21. What is the role of the Land and Environment Court in relation to protecting the

environment? [1mk]


Assessor feedback



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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.

environmental protection compliance

Documents

pollution protection

levels of protection

state level protection

food environmental technology

environment court

environment report

local government act

load based approaches