Chapter 6

The Environmental Management and Pollution Control Act 1994 (EMPCA) is the central piece of legislation that deals with pollution. Its aim is to prevent, reduce and undo harm to the environment.

• causing or knowingly permitting pollution or environmental harm.

• operating in breach of licence conditions

Officers have wide-ranging powers under the Act to enter properties, ask questions, take samples and so forth. Anyone who breaches the Act or who breaches licence conditions may be prosecuted and fined.

Environmental harm is defined in the Act as ‘any adverse effect on the environment’ – of whatever degree or duration.

• involves an actual adverse effect on the health or safety of human beings that is of a high impact or on a wide scale; or

• involves an actual adverse effect on the environment that is of a high impact or on a wide scale; or

• results in actual “loss” or property damage of an amount, or amounts in aggregate, exceeding ten times the threshold amount (presently $50,000).

• consists of an environmental nuisance of a high impact or on a wide scale; or

• involves an actual adverse effect on the health or safety of human beings that is not negligible; or

• involves an actual adverse effect on the environment that is not negligible; or

• results in actual “loss” or property damage of an amount, or amounts in aggregate, exceeding the threshold amount (presently $5,000).

Note: “loss” includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent or mitigate the environmental harm and to make good the resulting environmental damage.

• The emission of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person’s enjoyment of the environment.

EMPCA includes a concept of General Environmental Duty – whereby a person must show that they have taken reasonable steps to prevent environmental harm and have complied with permit conditions, State Policies and relevant codes-of-practice (see sections 23A and 55A).

You cannot be prosecuted for not complying with your general environmental duty. However, if you have been charged for causing environmental harm it can be a defence if you can show that you have complied with this duty and taken all reasonable and practicable measures to:-

• prevent the environmental harm, or

• prevent or remedy the circumstances that led to the causing of the environmental harm.

For criminal charges, this is also known as the ‘due diligence’ defence (see section 55 of EMPCA).

☞ Go to Chapter 5 for an outline of management tools that can be used by business operators to demonstrate due diligence.

The environment can be harmed in many different ways.

• a gas, liquid or solid

• an odour

• an organism (whether dead or alive) including a virus

• energy including noise, radioactivity & electromagnetic radiation

• a combination of pollutants that may cause environmental harm.

• discharge, emit, deposit or disturb pollutants which cause environmental harm, and / or

• fail to prevent the discharge, emission, deposit, disturbance or escape of pollutants which cause environmental harm.

The Environment Division uses these benchmarks when assessing what emission levels are permissible

The Environmental Management and Pollution Control (Miscellaneous Noise) Regulations 2004 commenced on 21 July 2004. These Regulations set out acceptable noise limits and hours of operation for a number of common ‘neighbourhood’ noise sources, including lawnmowers, off-road vehicles, heat pumps and power tools.

Click HERE to download.

For other noise nuisance in residential areas, the police or Council will consider whether the noise is, or is likely to be, audible in a habitable room in any other residential premises.

The Environmental Management and Pollution Control (Distributed Atmospheric Emissions) Regulations 2007 set new rules for emission of smoke from wood heaters, fireplaces and barbecues. Under the regulations, smoke must not be visible for more than 10 minutes and for more than 30 seconds within 10m of the point of emission.

Click HERE to download.

For other smoke emissions in residential areas, the police or Council will consider whether smoke is unreasonable.

Although blanket pollution limits apply in some circumstances, for individual companies they are gradually being phased out and replaced with site-specific discharge limits. These are usually set in the company's permit conditions. So, if you have a concern about pollution it is important to look at the operator’s permit (you can ask to see this at the local council office, or contact the Environment Division).

A number of State Policies (such as the NEPM for Ambient Air Quality) are directly enforceable in relation to emission limits (see Chapter 4 for further explanation).

Environment Protection Policies (EPPs) (see section 96 of EMPCA) provide guidelines for State and Local Government regulation.

The only EPP to be finalised so far is the Environment Protection Policy (Air Quality) 2004. The EPP (Air Quality) provides a framework for the management and regulation of point and diffuse sources of emissions to air.

EPPs are not directly enforceable. The EPP (Air Quality), and the Air Quality Strategy developed under the Policy, will be implemented by State and Local governments when they develop legislation, policies and planning schemes or undertake environmental assessments relevant to air quality.

This is in contrast to the NEPM for Ambient Air Quality, which has the status of a State Policy and is directly enforceable.

Click HERE to download the EPP and strategy.

• the occupier: or

• a person in charge: …of a place or vehicle at or from which a pollutant occurs.

If it is clear who caused the pollution, that person will be charged, even if they are not the occupier or person in charge.

Yes, directors can be personally liable for the same offences as the company – even if the director was unaware of the offence. Maximum penalties for an individual director are $325,000 plus up to four years imprisonment for promotion of or acquiescence to an offence.

Wilful blindness is no defence.

You (or your company) are legally obliged to report any pollution incidents as soon as practicable, but not later that 24 hours after becoming aware of the incident (see section 32 of EMPCA).

Environmental protection laws can be enforced in a number of ways.

They can be enforced by government agencies, including local councils. They can also be enforced by members of the public.

Environmental harm is mainly enforced using two key Acts of Parliament:

This law is used to prosecute breaches of environmental controls

An Enforcement Policy sets out the principles, criteria and measures that the state’s Environment Division uses to enforce the provisions of this Act. ☞ Click HERE to download the Enforcement Policy.

This law is used to prosecute breaches of planning laws.

Under LUPAA an operator can be prosecuted for:

• operating without a permit

• operating in breach of permit conditions

Councils have explicit duties and powers to stop a person polluting. In fact, they have a statutory obligation to issue an abatement notice (under section 200 of the Local Government Act) if a nuisance exists.

In addition, Councils must use their best endeavours to prevent or control acts or omissions which cause or are capable of causing pollution (see section 20(a) of EMPCA).

Councils are also responsible for regulating 'Level 1' activities under EMPCA and LUPAA (☞ Go to Chapter 5 for details).

• keeping a register of Level 1 activities and regularly checking that Level 1 activities have not become level 2 activities (e.g. because of increases in production)

• conducting environmental audits

• conducting, or requiring industries to conduct, background monitoring of air, land or water

• having (and enforcing) a trade waste policy

• effectively investigating and addressing complaints (☞ Go to Chapter 5 for details).

• Issue a direction requiring the polluter to take particular action

• Issue an environmental infringement notice

• Serve an Environment Protection Notice on the person causing (or likely to cause) the pollution, The notice must state what the pollution is, how to stop that pollution and the time limit for stopping it.

• Take ‘Civil Enforcement’ action in the Tribunal (section 48 of EMPCA - see below for more details)

• Commence criminal prosecution proceedings

The Department of Primary Industries, Parks, Water and Environment (DPIPWE) is the principal agency charged with ensuring that the state's pollution control laws are upheld. Within this Department, the Environment Division is specifically responsible for 'Level 2' activities.

☞ Go to Chapter 5 for details about how these activities are regulated.

• serve the offender with a Direction

• serve the offender with an Environmental Infringement Notice

• serve the offender with an Environment Protection Notice (☞ Click HERE for information about these)

• bring civil enforcement proceedings (section 48 of EMPCA - see below for details)

• bring criminal proceedings

It is an offence not to comply with any notice issued by council or the Environment Division.

The local Council maintains a record of all permits issued to companies in its municipal area. You can inspect these permits at the Council office.

Environment Protection Notices are compiled in a register which is kept by the Environment Division (see end of this chapter) and is also available for inspection by the public.

You may need to search broadly to identify the source of particular emissions. For example, if you are concerned about the health of a particular river system, you may need to check through the permits and EPNs relating to all premises that discharge into that watercourse.

You can also stop someone from causing environmental harm or from doing something that is likely to cause environmental harm. (This includes all forms of pollution including dust, noise, smells, smoke, radiation or chemicals).

You should immediately contact the local council if you believe someone is polluting, or likely to pollute, the environment.

Apart from reporting the incident, you can also ask the council to initiate a prosecution or 'civil enforcement proceedings'
(☞ Click HERE to find out about this.)

You should contact the Environment Division if the pollution is significant, or if the local council can not be contacted or fails to act on your complaint. (Ph: 1800 005 171 – freecall)

If a council is causing the pollution (eg from its sewage works or quarry) then it is appropriate to contact the Environment Division directly.

When dealing with the council or the department, make sure that you provide sufficient information to support your complaint (☞ Go to Chapter 13 for tips on how to make a complaint).

Note: You should request that the Department or Council inform you of any action taken in relation to your complaint.

If you consider that pollution could have an impact on human health, you should also contact the Director of Public Health. (Ph: 1800 671 738 – freecall).

It does not cost you anything if the council or department takes legal action.

However, in the event that no action is taken, you have power to take action yourself to stop environmental harm from occurring.

You can do so by applying for ‘civil enforcement’ directly to the Resource Management and Planning Appeal Tribunal. The Tribunal can impose a range of orders on an offender. But note that you may be exposed to costs if you take this action (☞ see Chapter 14, for more information).

Click HERE to find out how you can go about this.

Apart from EMPCA and LUPAA, pollution offences can also be prosecuted under a number of other pieces of legislation. Some examples include:

• Can be used to prosecute littering offences, including littering from motor vehicles. To report a littering offence, go to the Environment Division's Look Who's Littering website.

• Pollution that is a public health nuisance may be prosecuted as a statutory nuisance under Section 199 of this Act. This covers, for example, emissions of waste, noise and dust and unclean or unsafe premises. In these instances, a local authority can serve an abatement notice specifying what steps must be taken to remove the nuisance.

• Local council by-laws also cover some potential nuisances such as dog droppings, smoke from fireplaces and BBQs, abandoned car bodies and trade waste.

• Pollution may also be controlled under these Acts
  (☞ Click HERE for more information about water pollution).

• This act is used to prosecute discharges of oil into coastal waters.

In most cases, where any of these pollution incidents occur, the Environment Division should be informed and enforcement left to that department.

• may also be relevant where there are significant effects on the health or safety of people.

• The Director of Public Health has significant powers to conduct inquiries, prosecute offenders and to “take any action to reduce, remove or destroy any threat to public health”.

Outside the jurisdiction of Tasmania (generally three nautical miles from the coast) the Commonwealth has responsibility for controlling pollution. Under new regulations, dumping of wastes in sea water is the responsibility of the federal government, except within bays and estuaries (from low water mark).

☞ Go to Chapter 9 for information about marine laws

☞ Go to Chapter 10 for information about these issues.

Although most pollution law today is controlled via legislation, on occasion common law actions can also be useful.

☞ Go to Chapter 2 for information about common law

These actions are available through either the Magistrates Court or the Supreme Court

☞ Go to Chapter 14

Common law actions are complicated and much depends upon the facts of each case. As a general guide, people suffering from pollution should first seek to establish whether or not they have any rights or remedies under EMPCA, LUPAA or the Public Health Act before pursuing common law remedies.

However, if pollution interferes with your personal rights, you can bring proceedings to protect those rights under common law. The types of proceedings which may be available include:

These proceedings can be brought for pollution interfering with your private property. You can seek damages (compensation for any loss you suffer), or an injunction (a court order stopping the unlawful pollution).

Only the owner or occupier of the property affected by the pollution can bring proceedings for private nuisance. To succeed, you must prove that the interference with your property is substantial and unreasonable.

You can bring public nuisance proceedings where you suffer injury in public. Again, you can get damages or an injunction. However, to succeed you have to prove that the damage which you suffered was greater than that of the public in general. In the case of pollution, this can be hard to prove.

Sometimes a person will owe you a duty of care to look after you. When they breach this duty and the breach causes you damage, you may have an action in negligence. If a polluter breaches a duty of care to you, you can recover damages for any loss that you suffer, so long as that loss was foreseeable.

Examples of such events include escape of sewerage or dammed waters or release of toxic gases as a result of a malfunction when machinery is not properly maintained.

The law of trespass may be used where the pollution is caused directly as a result of intrusion, for example, where waste is dumped on your land.

It can be very expensive to bring these sorts of actions. It can also be hard to prove that the pollution caused your loss. If you lose, you may end up having to pay not only your own legal costs, but those of your opponent as well.

For these reasons it is advisable to obtain good advice from a lawyer before commencing any proceeding using common law.

☞ Go to Chapter 14 for information about using the courts and obtaining legal advice

An Environment Protection Notice (EPN) is issued by the Director of Environmental Management or a local council officer. It orders an offender to take measures to prevent, control, reduce or remedy environmental harm (see Section 44 of EMPCA).

It is, in effect, a warning system which enables a polluter to remedy a damaging activity or face being prosecuted.

• discontinue or not commence a specified activity

• limit the times or conditions under which the activity is carried on, or

• take specified action (such as installing new biofilters at a plant or relocating a discharge pipe).

• serious or material environmental harm or environmental nuisance has occurred, is being or is likely to be caused.

• action is necessary to give effect to a state policy, or an Environment Protection Policy.
  (ie where a previously accepted practice needs to be stopped because it is now contrary to a State Policy)

• it is desirable to vary the conditions of a permit.
  (ie where the permit conditions need to be updated to assist in the ongoing environmental management of the activity. This could be due to a threat of environmental harm.)

• it is necessary to get a person or operator to comply with the ‘General Environmental Duty’
  (see sections 23A & 55A of EMPCA).

Yes, if you are served with a Notice and you believe it to be unreasonable, you can appeal to the Tribunal. You must lodge your appeal within 14 days.

A person who made a representation to the EPA in relation to the activity, or a person with a proper interest in the activity and a good reason for not making a representation, can apply to join the appeal.

• seek orders from the Tribunal to enforce the EPN

• prosecute the polluter, or

• do the work itself and bill the polluter for the cost of the work.

The company is supplied with a certificate of compliance and a copy of this certificate is placed on the EPN Register.

The State Government IRIS website provides a general overview of the environment and planning assessment process Click HERE to see.

• 24 hour Pollution Incidents & Complaints Hotline: 1800 005 171 (freecall)

• 24 hour Health Incidents Hotline: 1800 671 738 (freecall)

• Local Councils: (check the phone directory white pages under ‘councils’) Contacts)

• Environment Division
  PO Box 44A, Hobart 7001. 134 Macquarie Street, Hobart 7000 Ph: 6233 8011
  1 Civic Square, Launceston 7250 Ph: 6336 2266
  14 Short Street, Ulverstone 7315 Ph: 6429 8776
  

• Director of Public Health (Department of Health & Human Services)
  GPO Box 125B Hobart 7001 Ph: 6233 3762

• Resource Management & Planning Appeal Tribunal
  144 -148 Macquarie Street (2nd floor), Hobart 7000 Ph: 6233 6464 Fax: 6224 0825

• Legal Aid Commission of Tasmania
  Telephone advice only: 1300 366 611 (local call toll)

• Environmental Defenders Office: Website
  131 Macquarie Street, Hobart Ph: 6223 2770 Fax: 6223 2074
  Email: edotas@edo.org.au

• Community Legal Services:
  166 Macquarie Street, Hobart 7000 Ph: 6223 2500 Fax: 6223 2510
  17/97A York Street, Launceston 7250 Ph: 6334 1577 Fax: 6331 5237
  62 Stewart Street, Devonport 7310 Ph: 6424 8720 Fax: 6424 4604 Email: nwclc@bigpond.net.au
  

• Tasmanian Conservation Trust:
  2nd Floor, 191-193 Liverpool St Hobart TAS 7000 Ph: 6234 3552 Fax: 6231 2491
  Email: tct6@bigpond.com

• Environmental Management & Pollution Control Act 1994
• Land Use Planning and Approvals Act 1993
• Mineral Resources Development Act 1995
• Workplace Health and Safety Act 1995
• Dangerous Goods Act 1998
• Public Health Act 1997
• Poisons Act 1971
• Local Government Act 1993
• Criminal Code Act 1924
• Sewers & Drains Act 1954
• Litter Act 2007
• Fire Service Act 1979
• Dog Control Act 2000

You can download the above Acts from HERE.

• State Coastal Policy
• State Water Quality Management Policy

• Dog Control Regulations 2001
• Environmental Management and Pollution Control (Distributed Atmospheric Emissions) Regulations 2007
• Environmental Management and Pollution Control (Environmental Improvement Programme Fees) Regulations 1994
• Environmental Management and Pollution Control (Environmental Infringement Notices) Regulations 2006
• Environmental Management and Pollution Control (General Fees) Regulations 1995
• Environmental Management and Pollution Control (Miscellaneous Noise) Regulations 2004
  (NB planned amendments in 2007 to include security alarms and amplified music)
• Environmental Management and Pollution Control (Waste Management) Regulations 2000
• Dangerous Goods (General) Regulations 1998 (S.R. 1998, No. 163)
• Dangerous Goods (Road and Rail Transport) Regulations 1998 (S.R. 1998, No. 162)
• Local Government (General) Regulations 2005
• Plumbing Regulations 2004
• Radiation Protection Regulations 2006
• Vehicle & Traffic (Vehicle Standards) Regulations 2001
• Workplace Health & Safety Regulations 1998

You can download the above Regulations from HERE

Commonwealth regulations on aircraft noise:

• Air Navigation (Aircraft Noise) Regulations 1984
• Airports (Environment Protection) Regulations 1997
• Civil Aviation Safety Regulations 1998

You can download the above Regulations from HERE