Parliamentary Inquiry into EPA after serious air and water pollution incidents
By Outreach Solicitor Emily Ryan
15 August 2014
The NSW Environment Protection Authority (EPA) is currently under scrutiny following a number of serious environmental incidents ranging from air and water pollution to the destruction of habitat for threatened species.
As the independent environmental watchdog in NSW, it is vital that the EPA is a strong and effective regulator. The role of the EPA should not only be to ensure that compliance with environmental laws is monitored and enforced and environmental harm remediated, but also to deter future environmental harm by ensuring that appropriate, timely action is taken, and adequate fines are imposed. However, recent events have called the EPA’s performance and effectiveness into question.
CSG operations in the Pilliga
The NSW Parliament has requested a Legislative Council Standing Committee to measure the EPA’s recent performance against its objectives under the Protection of the Environment Administration Act 1991 (POEA Act), which are to:
- protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, and
- reduce the risks to human health and prevent the degradation of the environment.
The inquiry focuses on the EPA’s response to several recent matters, including land contamination issues at Botany and Hillsdale, the effects of coal dust pollution in the Hunter Valley, groundwater contamination in the Pilliga due to coal seam gas (CSG) exploration, and forestry practices in Royal Camp State Forest.
Prior to the Inquiry, the NSW Auditor-General released a report to the NSW Parliament on the EPA’s management of contaminated land. The report found that the EPA’s prioritisation and assessment of contaminated sites are inadequate, and that its management controls and monitoring of significantly contaminated sites are deficient.
Pollution and land contamination
In recent years, community groups have questioned the EPA’s willingness to use its powers to regulate polluting industries, and have expressed frustration at a lack of transparency and effective action to prevent or redress pollution and land contamination. A May 2012 report prepared by environment groups highlighted a number of breaches of petroleum exploration licence conditions following unauthorised discharges of CSG water and treated water in the Pilliga. The NSW Government had conducted eight audits into the CSG operation, but none had led to any action against the companies involved. As a result of these breaches, Santos, on taking over the Pilliga CSG operation, halted operations in February 2012 and agreed to commit $20 million to rehabilitate the area. However, controversy and allegations of non-compliance have since dogged the project.
In its May 2012 report, the NSW Inquiry into the impacts of CSG concluded:
It is inexcusable that this pollution went undetected by NSW Government authorities, despite community complaints, until Santos admitted many months later that a breach had occurred. … This incident demonstrates the weakness in Government monitoring and enforcement activities…. Given this example… the Committee must be sceptical of the claim by the industry that all coal seam gas companies are meeting their licence conditions…
In 2013, the Forestry Corporation of NSW was issued three fines of $300 for unlawfully logging koala habitat in Royal Camp State Forest near Casino in the Northern Rivers region. Environment groups criticised this amount as inadequate, arguing that such small fines would not deter any future unlawful forestry activities. Forestry laws, unlike most environmental and planning laws, do not allow the community to bring civil enforcement proceedings if there is a breach of the law. It is up to the EPA, as the regulatory authority, to police breaches. The barriers to third party enforcement must be removed in the context of systemic breaches of forestry regulations and the failure of the relevant agencies to adequately enforce breaches of forestry regulations.
EDO NSW has highlighted the need for reform
EDO NSW has raised a number of regulatory issues relevant to EPA enforcement and governance, including in two reports for the Nature Conservation Council of NSW (NCC).
In 2011 EDO NSW prepared ‘If a tree falls: Compliance failures in the public forests of New South Wales’. The paper addresses the state of NSW’s public-owned native forests and the flora and fauna species that inhabit them, the regulatory framework for managing those forests, and numerous breaches of forestry regulations. It makes a number of recommendations to address the inadequacies of the current regulatory system, including:
- Strengthening maximum penalties for forestry offences;
- Reviewing procedures for policing the Forestry Corporation’s compliance;
- Allowing third parties to bring proceedings to remedy breaches of forestry laws and other environmental legislation resulting from unlawful forestry activities; and
- Increasing enforcement actions to redress systemic breaches of threatened species and pollution licence requirements.
In 2012, EDO NSW prepared the report ‘Clearing the Air: Opportunities for improved regulation of pollution in New South Wales’. The report describes the regulatory framework for the management of pollution in NSW, and outlines significant shortcomings of the current system in protecting human health and the environment. It proposes an enhanced approach to managing pollution in NSW, and makes a number of recommendations for pollution management. These include:
- Placing duties on the EPA and polluters to minimise and, where possible, eliminate pollutants from entering our environment;
- Setting pollution management on an objective, scientifically based foundation;
- Strengthening the pollution licensing system;
- Strengthening community engagement in pollution management decisions; and
- Reviewing the EPA’s compliance and enforcement policies and legal offence provisions.
The EPA has responded positively to community pressure in recent years. In 2012, EDO NSW filed civil enforcement proceedings in the Land and Environment Court on behalf of a community group to stop pollution of the George’s River in the Illawarra region. Just ten days after the case was filed, the EPA advised that it was looking to place limits on the pollution, and after nine months of consultations and negotiations with the polluter and the community, the EPA set these limits. The EPA’s decision to involve the community in this licensing process serves as a valuable precedent for other licensing decisions, particularly where there are real concerns about actual or potential environmental harm. This case demonstrates the community’s ability to constructively contribute to licensing processes, and should encourage the EPA to open up its doors to the community when major decisions are being made about how to deal with pollution. Since this case, EDO NSW has worked with the EPA and the community to try to improve licence and monitoring transparency and community participation by engaging in licence review processes.
Georges River: Woolwash by Ken Hall - Australian Photography Tours copyright
The EPA recently prosecuted Orica Australia Pty Ltd for nine breaches of NSW pollution law following seven separate pollution incidents at different locations in 2010 and 2011. Six of the seven incidents occurred at Orica's Kooragang Island site in Newcastle, and the seventh at its Botany operations site in Sydney. Orica pleaded guilty to the offences, and the Land and Environment Court issued a fine of $768,250. While this amount is less than 10 percent of the maximum penalty available for these offences, it is the highest penalty that has been handed down by the Court for a matter prosecuted by the EPA. There was a great deal of community concern about the incidents and the NSW Government’s handling of them. At the time of the incidents, the EPA was part of the Office of Environment and Heritage (OEH). Following the Parliamentary Inquiry into the incidents, the EPA was established as an independent statutory authority. Reporting and incident response requirements were strengthened for situations where there is a threat to the environment, and the EPA’s powers relating to environmental protection licensing were expanded. The establishment of an independent EPA that has the power to prosecute serious pollution offences and seek tough penalties is a positive step for the environment and communities. The EPA now needs to fully use these powers to respond to breaches of environmental law.
Submissions to the Parliamentary Inquiry into the EPA are open until Friday 29 August 2014. This Inquiry presents an opportunity to examine the EPA’s strengths and weaknesses, its regulatory scope and powers, and its relationships with industry and communities, and is a chance to highlight ways that the EPA can be strengthened to ensure protection of the environment and communities. Public hearings will be held in October and November, and the Committee will invite people to give evidence at these hearings. Visit our Have Your Say website and the NSW Parliament’s website for more information about drafting effective submissions and tips on giving evidence before a Parliamentary Inquiry. Read ‘Clearing the Air’ and ‘If a tree falls’ for our assessment of the EPA’s current role and our recommendations for more effective regulation of the environment in NSW.