The Environment Protection Act 1993 (SA) is the main State legislation covering pollution and waste. The Act creates an Environment Protection Authority (EPA) - a statutory authority responsible for all aspects of pollution and waste. The EPA is run by a Board appointed by the State Government.
The Act sets out a framework for policy development as well as providing for a licensing regime for polluting or potentially polluting activities. Much of the detailed law setting out standards for pollution and waste are contained in Environment Protection Policies (EPPs) made under the Act. These EPPs have a similar status to regulations and set out maximum pollution levels as well as other environmental standards. There is also provision for National Environment Protection Measures (NEPMs) to be incorporated into South Australian law as EPPs.
The objects of the Environment Protection Act 1993 (SA) include promoting ecologically sustainable development and ensuring that all reasonable and practicable measures are taken to protect, restore and enhance the quality of the environment [see s 10]. Another objective is the integration of pollution and waste regulation with development control under the Development Act 1993 (SA). This is achieved through a system of referrals between development authorities (usually local councils) and the EPA. The Act also provides for a "one-stop-shop" where businesses can obtain most of the environmental approvals required for their operations.
The Environment Protection Act 1993 (SA) provides that a person must not undertake a prescribed activity of environmental significance without an environmental authorisation in the form of a licence under the Act [see s 36].
Prescribed activities of environmental significance are listed in schedule 1 of the Act and include many forms of manufacturing, primary production and waste generation. Under the Act, three kinds of environmental authorisations are created. These are works approval, licences and exemptions, however licences are by far the most common. A works approval is required for the construction or alteration of a building to be used for a "prescribed activity of environmental significance" or the installation or alteration of equipment for such an activity. Approval will usually also be required under the Development Act 1993 (SA).
An important regulatory mechanism under the Environment Protection Act 1993 (SA) is the creation of Environment Protection Policies (EPPs). These policies may be on any subject directed towards securing the objects of the Act. The current policies are set out below.
- Environment Protection (Air Quality) Policy 2016
- Environment Protection (Water Quality) Policy 2003
- Environment Protection (Motor Vehicle Fuel Quality) Policy 2002
- Environment Protection (Noise) Policy 2007
- Environment Protection (Used Packaging Materials) Policy 2012
- Environment Protection (National Pollutant Inventory) Policy 2008
- Environment Protection (Waste to Resources) Policy 2010
The particular forms of pollution and waste regulated by these policies are discussed in more detail in the following sections.
Under the Environment Protection Act 1993 (SA) the definition of "pollution" includes noise pollution. This means that a person producing excessive noise could be in breach of the general environment duty under section 25. This could result in the issue of an Environment Protection Order or civil enforcement proceedings against the person responsible for the noise emissions.
Noise pollution may also cause environmental harm in which case the criminal offence provisions could be applicable. The Environment Protection (Noise) Policy 2007 provides more detail as to types and levels of noise that are acceptable under the Act. For further information on noise relating to domestic premises see Noise.
Air quality standards are set by the Environment Protection (Air Quality) Policy 2016.
Air pollution from industrial (i.e. non-residential) sources is regulated under the policy through the setting of maximum pollution levels for various types of air pollutants including particulate matter, heavy metals, oxides of nitrogen and sulphur and carbon monoxide. Any occupier of non-domestic premises (eg. factories) emitting levels greater than those set out in the policy is guilty of an offence.
Air pollution from domestic premises is also covered by the policy, see NEIGHBOURS, Air Pollution.
Emissions from motor vehicles are a significant source of air pollution. New private motor vehicles have to comply with exhaust emissions standards established by the Transport and Infrastructure Council (formerly the Australian Transport Council). The Council brings together Commonwealth, State and New Zealand Ministers responsible for transport and infrastructure, as well as the Australian Local Government Association. The standards are called Australian Design Rules and are available through the website of the Commonwealth Department of Infrastrucutre and Transport. For South Australian purposes they are set out in part 3 of the Road Traffic (Light Vehicle Standards) Rules 2013 (SA).
Under the Environment Protection Act 1993 (SA), the sections relating to the protection of the environment (such as the General Environmental Duty [s 25] or the offence provisions) apply equally to air, water, noise or other types of pollution. The Act also makes special provision for protection of water quality in water protection areas. The Environment Protection (Water Quality) Policy 2003, made under the Act, aims to improve the quality of water and water usage through legislated standards, guidelines and practice codes.
The Natural Resources Management Act 2004 (SA) aims to promote sustainable and integrated management of the State's natural resources and to make provision for the protection of the State's natural resources. It provides for the protection and management of catchments and the sustainable use of water resources and seeks to try and restore degraded water resources. It is now one of the key pieces of legislation with regard to water pollution, setting out general rights in relation to water and the control of activities affecting water. It also provides for enforcement, such that any person guilty of a breach of the Act can be charged and face penalties of up to $70 000 for a body corporate or $35 000 for a natural person [s 127].
The Public and Environmental Health Act 1987 (SA) has been repealed by the South Australian Public Health Act 2011 (SA). Whilst the Public and Environmental Health Act 1987 (SA) contained measures aimed at preventing the pollution of water supplies such that they are unfit for human consumption, the South Australian Public Health Act 2011 (SA) does not contain this particular measure.
The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) covers the global environmental problem of the thinning of the ozone layer caused by the use of various human-made chemicals such as chlorofluorocarbons. This Commonwealth law gives effect to Australia's international treaty obligations under the Vienna Convention and the Montreal Protocol.
Under the Act, the Commonwealth has provided for a system of licences and tradeable quotas for import and export of scheduled substances and controls their manufacture, use and disposal so as to limit their emission.
Scheduled substances include CFCs and halons as set out in schedule 1 of the Act.
The Environment Protection Act 1993 (SA) requires EPA licencing for waste depots, rubbish tips, recycling operations and waste transporters. As well as those actively engaged in the waste management business, EPA licences are also required by those operations which generate certain types of waste - (i.e. listed waste).
A list of the types of waste the generation of which require a licence is found in part B of schedule 1 of the Act and includes most chemicals and compounds likely to cause harm to the environment if not disposed of correctly. Listed waste produced from domestic premises and certain types of business (mainly small business) are not covered by these licensing requirements, however all waste must be disposed of so as not to cause environmental harm.
Domestic rubbish collection is the responsibility of local councils (in urban areas) or individual householders (in country areas). Any rubbish put out on the street for collection (including hard rubbish) becomes the property of the council under the Local Government Act 1999 (SA).
The Environment Protection Act 1993 (SA) also contains the laws relating to South Australia's beverage container deposit system. This is the system whereby deposits of five, ten or twenty cents are payable (and redeemable) on certain types of drink containers. Under the Act, it is an offence to sell a beverage in a container that is not marked in a manner approved by the Minister. It must clearly show the refund amount applicable. A retailer who sells beverages in glass containers of a particular description (that is, with a brand name or other product identification) is required to accept delivery of any containers of that particular description and pay the appropriate refund to the person delivering the container, unless the container is unclean.
Under the Environment Protection Act 1993 (SA), penalties for breaches of pollution and waste laws are severe. Undertaking a prescribed activity of environmental significance without a valid EPA licence or breaching a condition of a licence carries a maximum fine of $60 000 for a person or $120 000 for a body corporate [ss 35 and 36].
Where a person pollutes the environment (noise, air, water, waste) the penalty will depend on a variety of factors. A person who intentionally or recklessly causes (knowing that it will or may cause) serious environmental harm, may be fined up to $500 000 or jailed for four years (or both). A body corporate may be fined up to $2 000 000. Where there is no intention or recklessness, the maximum fine for a person is $250 000 and for a body corporate, $500 000 [see Environment Protection Act 1993 (SA) s 79]. Serious environmental harm occurs if:
- the actual or potential harm to health and safety of people is, or is potentially, of a high impact or on a wide scale;
- environmental harm is, or is potentially, of a high impact or on a wide scale;
- actual or potential damage exceeds $50 000.
A person who intentionally or recklessly causes (knowing that it will or may cause) material environmental harm may be fined up to $250 000 or be jailed for two years (or both) while a body corporate may be fined up to $500 000. If material damage is caused and there was no intention, a person may be fined up to $150 000 and a body corporate $250 000 [see Environment Protection Act 1993 (SA) s 80]. Material environmental harm occurs if:
- actual or potential harm is caused to the health and safety of people;
- environmental nuisance is, or is potentially, of a high impact or on a wide scale;
- environmental harm (that is not trivial) is, or is potentially, caused;
- actual or potential damage exceeds $5 000.
People who intentionally pollute the environment or recklessly cause an environmental nuisance may be fined up to $30 000 [Environment Protection Act 1993 (SA) s 82]. An environmental nuisance includes:
- any adverse effect on an amenity value of an area that is caused by smoke, noise, dust, fumes or odour that unreasonably interferes with the enjoyment of the area by other people;
- any unsightly or offensive condition caused by waste.
This may include many common problems experienced by people in residential areas. Where a body corporate commits an offence, any officer of the body corporate who did not take all reasonable and practical prevention measures will be guilty of an offence and may receive the same fine as would be received by a person committing the offence, although they will not face imprisonment. The officer may be prosecuted even if the body corporate is not [see Environment Protection Act 1993 (SA) s 129].
Site contamination can occur as a result of the introduction of chemical substances that are above background concentrations to a site. If site contamination exists then it must be determined who is the appropriate person. The appropriate person has responsibility for implementing and funding the assessment and remediation of site contamination and, if necessary, independent auditing by a site contamination auditor. In certain circumstances the site owner rather than the actual person who caused the site contamination may be deemed to be the appropriate person.
A person selling their property has an obligation to inform prospective purchasers of any knowledge of site contamination and activities that may cause site contamination [see Land and Business (Sale and Conveyancing) Act 1994 (SA)].
The EPA has the power to issue an Environment Protection Order [EPO] where it considers it necessary to ensure compliance with the Act. The order will specify what actions need to be taken (or that need to be stopped) and a person who fails to comply with an order may be fined [see Environment Protection Act 1993 (SA) s 93]. In addition, the EPA may take whatever action is required in the order and recover the cost, from the person.
Where someone causes environmental harm, in addition to any other penalty that may be imposed, the EPA may be able to issue a Clean Up Order specifying what action needs to be taken. If the order is not complied with a person may be fined up to $60 000 while a body corporate may be fined up to $120 000. The EPA may also carry out the action specified on the order and recover the cost from the person [see Environment Protection Act 1993 (SA) ss 99-103].
A person served with an Environment Protection Order or a Clean Up Order has fourteen days to appeal to the Environment Resources and Development Court against the order.
Either the EPA, a person affected by the actions of another or any other person (with the permission of the court) may apply to the Environment Resources and Development Court for orders. The court may order a person who has breached the Act or caused environmental damage to:
- stop, or to take certain action (such as to make good any damage caused);
- pay compensation to anyone who has suffered damages or incurred costs as a consequence of a breach of the Act;
- in special circumstances, pay damages as punishment.
In addition to the EPA’s power to issue an environmental protection order, officers from a local council, the EPA, or the police, may when urgent action is required to protect the environment, issue an emergency environmental protection order. Orders can be given orally or in writing and lapse after 72 hours, unless the EPA issues an environmental protection order in writing [see s 93(3)-(6)]. These emergency orders are most commonly used by the police to shut down noisy parties.
Civil penalties are a further regulatory tool for the EPA. They enable the EPA to respond to less serious contraventions of the Act and are imposed as an alternative to criminal prosecution for strict liability offences. The EPA is able to negotiate a civil penalty directly with a person who has committed an offence. Alternatively, the EPA can apply to the Environment Resources and Development Court for an order that the offender pay to the EPA an amount as a civil penalty [see Environment Protection Act 1993 (SA) s 104A].
It is important to note that this is a voluntary system. A person may choose not to negotiate a civil penalty with the EPA. If the EPA wishes to apply to the Court for a civil penalty a person may also elect to the prosecuted under the higher criminal burden of proof rather than be heard in the civil jurisdiction of the court.
The maximum amount which can be negotiated is the amount specified in the Act for the offence or $120 000 whichever is the lesser. The maximum amount which the court may impose as a civil penalty is the criminal penalty specified in the Act for the offence.
Importantly there is no criminal conviction of guilt where this system is used. The EPA has developed a policy for the calculation of civil penalties to guide negotiations in this area. The policy was last updated in 2013.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.