This guide sets out how members of the public can participate in the licensing and policy-making functions of the Environment Protection Authority under the SA Environment Protection Act (1993). Throughout this guide the “Act” means the Environment Protection Act 1993 and the “EPA” refers to the Environment Protection Authority.
What is the Environment Protection Authority?
The EPA is a six-person Authority created under the Environment Protection Act It is responsible for setting environment protection standards and licensing “activities of environmental significance”. The EPA sets standards through “Environment Protection Policies” and issues licences in the form of “environmental authorisations” and “exemptions”. The title of the Environment Protection Act suggests a very wide brief, but in reality, the EPA is mainly concerned with issues of pollution and waste. Whilst issues such as biological diversity and native vegetation protection are certainly relevant issues for the EPA, there are other Acts which more specifically regulate behaviour in these areas.
What types of activities are regulated by the EPA?
The objects of the Act are to promote and practice the principles of ecologically sustainable development, ie. to use and protect resources in such a way that ensures continued economic and social well-being for future generations. Under the Act, the EPA endeavours to protect the environment from harm and to reduce or alleviate environmental damage when it has already occurred.
The EPA treats various types of pollution and waste issues differently. In same cases, a polluter may be required to have an EPA licence that relates specifically to their activities, whilst in other cases the obligation might be merely to comply with environmental standards that apply to the whole community. In some other areas, there are no binding standards and the only obligation is to comply with a general duty not to harm the environment. Education programs are often used instead of direct regulation to promote good environmental behaviour.
Why are Environment Protection Policies necessary?
Because the aims of the Act are expressed in general terms, there is a need for more specific policies to protect different aspects of the environment. Environment Protection Policies set out detailed provisions in relation to noise, air and water quality. Sometimes these provisions include legally binding standards (such as maximum noise levels) and in other cases the policies set out desirable environmental outcomes and suggest ways of achieving them.
As the community’s expectations and standards change, Environment Protection Policies need to be reviewed and new Policies devised, (several are in preparation). Current Policies include:
- Marine: The maintenance of water quality, aquatic ecosystems, protection of shellfish growing areas.
- Burning: Domestic incineration, design of chimneys, fuel-burning equipment.
- Air Quality: Fuel-burning equipment, industrial plants.
- Waste Management: Medical and hospital waste, transport of waste, duties of councils, pharmacies, transport businesses.
- Machine Noise: Noise levels, hours of operation of domestic machinery.
- Industrial Noise: Noise levels from non-domestic premises like factories, warehouses, car parks, rubbish tips.
- Milking Shed Effluent: waste from cows
These policies aim to address the interests and practices of business and community. They also reflect our current level of awareness and commitment to different possibilities for environmental protection and sustainable development. The issue of public participation in policy formulation is very important.
Why is Licensing necessary?
The Act provides that certain activities require licensing before they can be carried out. Generally these “activities of environmental significance” represent the most damaging or potentially damaging activities towards the environment. These include large industrial operations as well as some smaller activities involving a high risk of pollution.
Direct licensing of large scale polluters is one of the best ways of regulating these activities. Licences can include conditions setting maximum levels of pollution or require on-going monitoring to determine that releases of pollutants into the environment are at acceptable levels. In addition, licensed operations are more easily subject to ongoing inspection by EPA officers. If appropriate standards are not met, the EPA can cancel the licence.
Why should you be involved?
Many people are happy to have their interests looked after by government agencies and have no desire to become personally involved in matters such as environment protection unless it affects them personally. Other people have a more expansive attitude towards democracy and government and seek to get personally involved in all sorts of public policy issues. In some cases, people don’t trust governments to properly look after their environment or their health and in other cases people may believe that they possess a level of local or general expertise that could help lead to a better outcome if they choose to get involved.
The EDO believes that as many people as possible who care about the future of the environment should seek to have their views taken into account. If environmentally-aware citizens do not get involved, then the only representations may be from those who have a vested interest in maintaining a right to pollute or to keep environmental standards as low as possible. It will often be too late to complain about pollution or waste issues once Policies have been created and pollution licences issued. In any event, the Act does provide for the public to comment on Policies and licences, so all citizens have a right to participate in the process, regardless of their motivation.
Public involvement in EPA Policy
Under the Act there is a “normal” procedure for making Environment Protection Policies as well as a number of “fast-track” procedures.
Normally, the EPA must publicly advertise in a newspaper its intention to prepare a new Policy or to change an existing Policy. This enables people to comment on the scope of the policy and to suggest what should or should not be included. Once a draft Policy has been prepared, it must be advertised again in order to give people an opportunity to inspect or purchase a copy and to make submissions on the draft. A period of at least two months must be allowed for the public to make submissions. Once a submission has been made, the EPA will usually hold a public hearing to enable interested people to make further submissions in person. You do not have to have made a written submission to be able to attend and speak at the public hearing. All submissions must be taken into account by the EPA before a draft Policy is finalised and forwarded to the Environment Minister for his or her approval.
It is worth noting that additional opportunities for consultation are provided to certain recognised environment and community groups. The EDO is one such group and may be able to assist you with your submission or put you in touch with other relevant groups in the community.
The “fast-track” method for approving Environment Protection Policies applies where National Standards are adopted at the State level or where a new Policy is substantially the same as a policy that is already in existence under some other Act or arrangement.
Public Involvement in EPA Licensing
The Act requires that applications to the Authority for a licence or exemption in relation to an “activity of environmental significance” must be publicly advertised. After the advertisement has appeared in a newspaper, the public has 14 days in which to make a submission.
Where a licence already exists and a renewal is applied for, this does not need to be advertised, unless it is proposed to weaken or lower any environmental standard contained in the licence, in which case the licence renewal application must be advertised and 14 days allowed for submissions.
The types of people most likely to make a submission in relation to a specific licence application are those who may be directly affected by the activity concerned. This could include neighbours or other people “downwind” or “down-stream” of a polluting factory.
What to include in a submission?
It is a good idea to keep your submission as concise and succinct as possible. Short submissions have a greater chance of being read thoroughly than long rambling submissions. It also a good idea provide evidence or examples that highlight any particular fears or concerns you might have about the type of pollution or waste concerned. If you feel particularly strongly about a particular licence or Policy, you might want to try to encourage others to make submissions also. The number of submissions that the EPA receives could influence the final outcome, particularly if they draw attention to potential adverse environmental impacts that might flow from the issue of the licence or the adoption of the Policy. Make sure you keep copies of any submissions you make.
What happens to your submission
Submissions made in relation to proposed Environment Protection Policies are public documents able to be inspected or copied by any person. This means that you should be careful in what you say in your submission and avoid anything that could be regarded as defamatory. You may find it useful to examine the submissions made by other parties as this could give you some insight into issues that are likely to be controversial. Viewing other submissions may also help to clarify your own position.
Any submissions made in relation to the grant or renewal of an EPA licence are not stated to be public documents, however they may be available on separate application to the EPA under the Freedom of Information Act, (see EDO fact sheet no.7). At the conclusion of the period for submissions to proposed new Environment Protection Policies, the EPA is required to produce a report for the Environment Minister that summarises the submissions it has received, and the changes it has made to the Policy that resulted from the submissions.
Policies are eventually approved or rejected by the Minister and there is no right of appeal against the EPA or the Minister for refusing to accept points or suggestions made in your submission. If you feel that the issues you have raised are important enough, you could consider expressing your views directly to the Minister.
Other avenues such as letters to the newspaper, rallies or public meetings are always available to press your point of view if your submissions to the EPA are unsuccessful.
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The EPA office is at Level 8, 250 Victoria Square, Adelaide, Phone 8204 2000, Fax 8204 2020. EPA staff are available to assist with general or specific enquiries about the operation of the Act and the activities of the EPA.
Copies of the Environment Protection Act 1993 and Environment Protection Policies are available for purchase from Service SA which is located at 108 North Tce, Adelaide, Phone 13 2324 or go to www.shop.service.sa.gov.au
You can also obtain a wide range of environmental information at the Conservation Centre library, Phone 8223 5155.
The Environmental Defenders Office (SA) inc, (EDO) is a non-profit community legal centre offering free advice to individuals and groups on all matters of environmental law. The EDO operates an advisory on Thursday evenings between 6-8PM at: 408 King William St Adelaide SA 5000 Fax +61 (08) 8410 3855. Appointments are necessary and must be made by ringing 8410 3833 or freecall 1800 337 566. It is not a substitute for proper legal advice. Important legal details have been omitted to provide a brief overview of this law. Contact the EDO or your solicitor for more detailed legal advice about your specific problem. This guide was funded by a grant from the Law Foundation of South Australia.