ENVIRONMENTAL LAW REFORM IN SOUTH AUSTRALIA

1
Working?Links Tuesday 8th April, 2003
ENVIRONMENTAL LAW REFORMIN SOUTH AUSTRALIA
2

Summary of Presentations

• Introductory comments
• Reform of the pollution licensing system
• Penalties and enforcement
• Increased role of local government

3

Introductory comments

• Environment Protection Act 1993 (SA)
• commenced operation in May 1995
• By 1999, substantial concerns/criticisms
• re its operation
• Review processes undertaken both within
• and outside the EPA26

4

Review of the E.P. Act

• Internal review by the Environment
• Protection Agency commenced in 1998
• Parliamentary review by E,RD Cee
• commenced in July 1999
• DEHAA Discussion Paper on Offences
• and Penalties (December 1999)
• E,RD Cee Report (May 2000)
• DEH Discussion Paper on the Powers
• Responsibility of the EPA (June 2000)

5
Labour Government Initiatives since mid 2002

• pre-election policy to strengthen EPA and
• improve enforcement
• licensing system reforms announced
• (August 2002)
• Statutes Amendment (Environment
• Protection) Act (December 2002)
• Public Consultation Paper on Reforms to
• the Licensing System (January 2003)
• Explanatory Paper for the Environment
• Protection (Miscellaneous) Amendments
• Bill 2003 (January 2003)

6

Reform of the Licensing System

• Major reforms include
• - substantial increases in licence fees
• new incentives for improved environmental
• performance by licensees
• - new licence conditions

7

Licence reforms increased fees

• Base fee to increase by 100 over 4
• years from Sept. 2002 (to average of
• 2900)
• Additional increases proposed through
• introduction of load-based licensing (to
• include zone weightings)
• Specific discharge limits as licence
• conditions

8
Incentives for Improved Environmental Performance
by Licensees

• a) Environmental Performance Agreements
• - to require specific reductions in discharges
  
• within 4 year time-frame
• - rewarded by reduced licence fees
• b) Accredited licences
• - criteria for issue include ISO
  14001certification
• - benefits include reduced fees, 5 year licence
  and
• less prescriptive conditions
• - subject to annual environmental performance
• reports

9

Comments re Incentives Proposals

• Are the incentives offered likely to induce
• licensees to seek an EMA or accredited
• licence?
• Financial considerations for licensees
• Uptake of ISO 14001 certification in SA
• Q? need for legislative changes to implement
• accredited licence scheme

10

Reforms re Licence Conditions

• NPI reporting to be required
• Conditions to be able to be varied annually
• Post closure conditions on new (and possibly)
• existing operators (e.g., re landfill sites)
• Training of employees and agents

11

Conditions re Training

• Condition may be directed at employees, agents
• and any other persons involved in the activity
  
• licensed
• Purpose is to ensure parties concerned
  understand
• and are able to comply with any requirements
• imposed by or under the E.P.Act (including
• conditions of an authorisation)
• E.P.A. can require certificates of compliance
• E.P.A UniSA joint initiative re environmental
• training

12

Case Study Transgrid Training

• EPA v Transgrid, NSW, 13/2/02, Justice Lloyd
• it is all very well to have in place written
  standards, policies and procedures. But they are
  no use at all if they are then ignored by those
  persons who are directing operations on the
  ground. Similarly, it is all very well to have
  appropriate training programs in place but they
  are of no use at all if those who attend do not
  put what they have learned into practice

13

Penalties and Enforcement

• introductory comments
• E.P.A. administrative initiatives re
• enforcement
• legislative reforms re penalties and
• offences
• civil penalties proposal

14
Penalties and Enforcement Introductory Comments

• Enforcement has three elements administrative,
• civil and criminal
• Significant criticism of EPAs enforcement
  effort
• EPAs enforcement philosophy 1995-99
• prosecution is the last and least preferred
• option
• ERD Cee recommendation (May 2000)
• The EPA should be more prepared to insist on
  compliance and to prosecute offenders

15
EPA Administrative Initiative re Enforcement

• Establishment of Investigations Unit in 1999
• Increased use of licence conditions re
• monitoring and reporting
• Undertaking of industry environmental
• audits (eg., wine industry) and audits for
• specific areas

16
Legislative Reforms Proposed re Penalties and
Offences

• Administrative sanctions (EPOs and CUOs)
• can require plans, monitoring, etc.
• Civil enforcement proceedings by third parties
• subject to more flexible rules re legal costs
• Criminal enforcement
• - higher maximum penalties (already instituted,
  
• but problem re ERD Court jurisdiction still
  to
• be resolved)
• - removal of privilege against self-
  incrimination
• for corporations
• - duty to notify (section 84) broadened
• - changes to definitions/offence provisions

17

Proposals for Civil Penalties

• May be imposed on offenders by negotiation
• with the EPA or by order of the ERD Court
• upon application by the EPA
• Cannot be imposed in relation to intentional
• offences (but Q? why not?)
• Only one penalty for the relevant conduct,
• even if several offences involved and must
• not exceed the relevant criminal penalty
• Intended to operate as an alternative to
• prosecution where an offence has been
• committed

18

Court-Imposed Civil Penalties

• Proof of the offence only required to the
• civil standard (balance of probabilities)
• Criteria for assessment of penalty
• include any financial savings or benefit
• Civil proceedings to be stayed if criminal
• prosecution instituted BUT Q?
• permanently or temporarily?
• Q? should third parties be able to apply
• also?

19

Negotiated Civil Penalties

• if negotiation fails, EPA may pursue either
• criminal prosecution or civil penalty by court
  
• order
• no criteria re how EPA is to assess/
• negotiate the amount of a civil penalty
• EPA benefits indirectly since of civil
• penalty to go to the Environment Protection
• Fund
• Q? conflicting roles and interest for EPA re
• negotiated civil penalties

20

Conclusions

• Significant fee increases for licensees
• New and additional licence requirements re
• monitoring, reporting and training likely
• More rigorous enforcement effort by EPA
• and risk of larger penalties for offences
• New and significant risk presented by civil
• penalties
• ISO 14001 certification increasingly
• necessary for licensees