Environmentally Mine – Part 4
Let’s look at State and Territory laws that can impact on our mining activities. This is the main environmental legislation we have to comply with.
State and territory legislation
The most important state and territory environmental legislation is their respective environmental protection Acts, or those Acts of similar title. In general this legislation has the most impact on mining activities on a day to day basis.
Early environmental Acts concentrated on end-of-pipe solutions to pollution i.e. levying license fees on the pollutants after they have been emitted rather than looking to reduce or modify their actual production. This was seen as a way to compensate the community for the impact that the pollutants caused. This is sometimes called a “License to Pollute” philosophy.
The Acts have evolved in their philosophical approach over the last three decades. Today’s environmental Acts deliver a system which reflects the commitment to reduce the amounts of pollutants discharged to the environment. The aim is to achieve a holistic management of the environment and sustainable use of resources by integrating air, noise and water pollution issues.
These state and territory Acts seek to encourage the community and industry to become stewards of the environment by introducing the concept of an “Environmental Duty of Care”. The Environmental Duty of Care states that:
“A person must not carry out any activity that causes, or is likely to cause, environmental harm unless that person takes all reasonable and practicable measures to prevent or minimise the harm.”
This Duty is imposed on all citizens – not just industry or mining. This is a major broadening of the previous laws.
This demonstrates the “carrot and stick” approach:
The carrot is less regulation and, in general, less cost to comply for routine reporting.
The stick is a substantial increase in penalties. Previously all penalties were levied on companies and were financial penalties. This type of penalty is often called a civil penalty. Individuals can now be prosecuted for environmental offences and penalties include gaol sentences as well as fines. These are criminal penalties. In addition the level of financial penalties has increased significantly.
The main features of the Acts include:
- an environmental duty of care;
- civil and criminal law enforcement;
- personal responsibility of directors of corporations and their employees for environmental offences;
- larger penalties for environmental offences;
Regulations and policies
Regulations and policies are the two most common forms of subordinate legislation within government legislation. Regulations provide a lot of the detail within the statutory structure or framework that has been created by the Act. They provide details of how to comply with their related Act. Information within regulations includes definitions, equipment or activities named as likely to cause a nuisance, details of methods of measurement, and fees and penalty units.
Regulations also tell you whether your operation will require an environmental license. Mining activities usually require an environmental license.
Policies give a more user-friendly interpretation of the relevant Act and regulations. They are often used to give more up-to-date information from the regulatory authority as to the type of targeted environmental values and guidelines for accurately measuring the emissions from your site .
Petroleum, mining and other specific industries have, in some states, developed specific environmental protection policies for their own industrial needs, with some policies being administered by the state ministerial departments with relevant portfolio responsibilities.
The environmental licence application process requires public notification which avoids or minimises public conflict if done well. Calling for submissions allows neighbours and the general public to be consulted on their support or opposition to the licence. It may be expected that applicants for significant licences will have already consulted with the community on their proposal, so as to minimise conflict and facilitate the authorisation process, which has similar provisions to the town planning approval and appeal system.
Another license requirement relates to emission controls or ongoing operational controls, which typically set standards for pollutant levels discharged by mining operations. In some states this is formalised through licensing or permit systems, which are regulated and administered by the state governments under their environmental protection Acts and/or regulations.
Penalties for non-compliance
The NSW legislation below presents maximum financial penalties and gaol terms for offences leading to serious material harm:
New South Wales, Protection of the Environment Operations Act 1997 and Protection of the Environment Operations Amendment Act 2005
- Companies: up to $5 million
- Individuals: up to $1 million and 7 years imprisonment
In practice the maximum penalties have never been applied. The maximum individual penalty is shown in the Universal Abrasives case in the case study below.
Some of the alternatives to prosecution include penalty notices, stop work orders, interim protection orders, warning letters, providing financial support for local environment group projects, public apologies in newspapers or any combination of these tools. The goal is to encourage the offending party to avoid repeating an environmental offence.
The following case studies illustrate that severe penalties are actually applied for blatant cases of environmental harm. The penalties applied to the NSW heating oil case were relatively low due to the mitigation of the environmental damage by the company.
CCA pollution in Queensland
A sawmill and timber treatment plant was using copper chrome arsenate (CCA), a toxic compound, to treat timber until about 2000. Two years later the plant manager buried 78 drums of CCA waste in a pit on site.
The EPA charged the plant and its manager with contravening a condition of the plant’s environmental authority. The manager was further charged with one count of stating something to an authorised person that he knew was false or misleading.
In August 2008, the company pleaded guilty and was fined $100,000. The plant manager pleaded guilty to both charges and was ordered to pay $20,000; convictions were recorded in relation to both offences (Freehills 2008).
Water pollution in New South Wales
A concrete batching plant holding an environment protection licence, which does not authorise any discharge of pollution from the premises, was tried in the NSW Land and Environment Court in October 2008. Some 300 litres of heat transfer oil escaped through an off-site stormwater drain, the result of inadequate procedures and inspections. As soon as the site manager became aware of the leak, he had a contractor clean and complete routine maintenance of the stormwater system at a cost of approximately $65,000.
The defendant pleaded guilty to a charge of polluting waters, was convicted of the offence and fined $50,000. He was also required to pay the prosecutor’s legal and investigation costs of approximately $22,000 (NSWLEC 285, 2008).
A Brisbane company director was sentenced to 18 months’ gaol on 15 June 2001, marking the first time a gaol sentence was to be served for an environmental offence in Queensland and, according to Queensland EPA, the most severe penalty ever imposed in Australia for an environmental offence.
Leslie Phillip Moore, a director of Universal Abrasives, was found guilty in the District Court in Brisbane on eight charges involving the contamination of Brisbane waterways by liquids containing heavy metals.
Donald Hobson, another director of Universal Abrasives, was also found guilty of causing environmental harm and sentenced to nine months’ gaol, suspended for three years. Moore was also fined $100,000 and Hobson was fined $50,000, while the company was fined a total of $325,000. The Court heard Universal Abrasives, a waste reprocessing company, and its directors had allowed water contaminated with heavy metals to enter stormwater drains that flow to the Brisbane River. The Court also heard that in vacating its Bulimba premises, the company and Moore took abrasive blasting waste to a Thornlands property where it was buried and stored in a manner that allowed heavy metals and biocides to seep into Eprapah Creek.
EPA investigations identified excessively high concentrations of tributyltin, zinc, copper, lead and arsenic in water and sediment samples relating to both sites. In some samples, heavy metals concentrations were more than one million times the standard. (EPA QLD 2001)
How to avoid prosecution?
The best defence for any environmental prosecution is to run your mining operation well so that the risk of an environmental incident is low.
Not only do your need to run a “tight ship” but you have to be able to demonstrate/prove that you do. This proof is called Demonstrating Due Diligence. Most of the Due Diligence evidence you will already have – such as:- Environmental Inductions; Pre-start meetings; Pre-start checks for plant; Environmental awareness and spill response training; maintenance for all environmental emission monitoring equipment; maintenance records for fuel tanks and process vessels; prompt reporting of all parameters required by your environmental license.
This information shows that you are taking all reasonable and practicable measures as required by your environmental duty of care.
After an environmental incident you need to do two things:
- Report the incident to the EPA as soon as possible ( immediately!).
- Mitigate the impact of the incident by taking remedial action – do not wait to be asked.
These actions help demonstrate that you are not trying to hide the incident and that you are committed to reducing the impact of the incident on the environment.
In some cases this will avoid prosecution altogether. This is because the Department of Public Prosecutions has to decide if prosecuting your mine is in the Public Interest. If you can show that you have taken all Reasonable and Practicable Measures to prevent the incident in the first place, and that you took prompt action to minimise the harm then the incident may not be worthy of a prosecution. This is the type of mining operation we should all try and achieve.
More importantly mines that are run as a tight ship usually are more profitable in any case.
The next edition of Environmentally Mine will cover how to deal with the community and neighbours. Apparently it is not the kangaroos and koalas that ring up EPA and complain. Who would have thought it!