Environmental Management Tools under the EMPCA
A major component of EMPCA is a variety of management tools for the prevention and/or reduction of environmental harm. Other than environmental impact assessment, there are a number of management and enforcement options available to regulate activities that cause environmental harm, including:
- Environmental Infringement Notices;
- Environment Protection Notices;
- Environmental Agreements;
- Environmental Improvement Programmes;
- Civil Enforcement
Environmental Infringement Notices (EINs)
If DPIPWE or a local council is satisfied that environmental harm has occurred, an authorised officer may serve the offender with an environmental infringement notice in respect of the offence (s67). An EIN imposes a penalty (usually less than $1,000) for the offence. However, an EIN does not impose any obligations to remedy the environmental harm.
If the person disregards the EIN, they can be liable for prosecution for the offence.
Environment Protection Notices (EPNs)
EPNs may be issued by the Director of the EPA or a local council. An EPN requires an offender to implement measures to prevent, control, reduce or remedy environmental harm. An EPN can also be used to vary permit conditions where it becomes necessary to address unexpected environmental harm. The EPN will override a development permit to the extent that they are inconsistent.
The EPN will state what the environmental harm is, how the environmental harm is to be managed and may impose conditions on the polluting activity. For example, an EPN may require the offender to:
- remediate damage resulting from the pollution;
- cease the use of particular types of chemicals;
- carry out detailed water quality monitoring; or
- limit operating hours at the premises.
The Board can enter into Environmental Agreements with developers, with the approval of the Minister. These agreements set out management, investment, monitoring and reporting functions that require the developer to perform to higher environmental standards than those required by law. In return, developers are given exemption from certain taxes and charges.
Environmental Agreements may be made in respect of individual operations, premises, areas or regions and may apply to industry or activity groups. Environmental Agreements are legally binding documents and a party can be prosecuted if the agreement is breached.
Environmental Improvement Programmes (EIPs)
An environmental improvement programme is a specific programme to assist a person to achieve compliance with EMPCA by reducing environmental harm or transitioning to a new environmental standard. For example, if new noise regulations are introduced, the Board can require a developer to prepare a draft EIP to show how it will change its operations to achieve compliance with the new requirements.
EIP must specify the objectives to be achieved, set out a timetable for achieving the objectives and indicate how monitoring and reporting will be carried out. Once approved, the developer cannot be prosecuted for failing to comply with legislative requirements, provided the developer is complying with the EIP.
Civil Enforcement of environmental laws
Civil enforcement proceedings may be brought under section 48 of EMPCA to address breaches of the environmental legislation. For example, civil enforcement proceedings may relate to:
- unreasonable noise emissions from a small industry in a residential area, such as a tannery or workshop;
- discharge of chemicals into a stream used for domestic consumption or stock watering; or
- leaching of chemical waste from a refuse site into the water table.
Civil enforcement proceedings may be brought by:
- a local council;
- the Director of the EPA; or
- any person who has a ‘proper interest in the subject matter’
The Tribunal will determine whether a person has a ‘proper interest’. This generally infers that the applicant will be personally, professionally or financially affected by a certain activity.
Civil enforcement proceedings involve making an application to the Tribunal for an enforcement order. The Tribunal has broad powers to make orders, including orders requiring the respondent to:
- temporarily or permanently refrain from the relevant activity (for example, to stop industrial activities until a new smoke stack is installed);
- comply with an EIP or EPN;
- make good any damage resulting from the breach (for example, cleaning up a contaminated site);
- pay costs and expenses incurred by the Board in taking action to prevent or mitigate the environmental harm; or
- pay an amount into the Environment Protection Fund as a penalty.
Civil enforcement proceedings must be brought within 3 years of the alleged offence.