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Principles of Compliance and Enforcement
This policy explains how EPA will use enforcement to achieve compliance and create credible deterrents against breaking the law.
EPA is guided by eight principles when undertaking its compliance and enforcement role, exercising its regulatory responsibility and administering the EP Act and Regulations. The principles are:
Targeted: The Agency will undertake compliance and enforcement activities to prevent the most serious risk or harm.
Proportionate: Regulatory measures and responses will be proportional to the problem they seek to address and how culpable or responsible the offender is for the problem.
Transparent: Regulations and standards will be developed and enforced transparently. Information and any other lessons learned will be shared and promoted. Enforcement actions will be public, to build the credibility of, and confidence in, EPA’s regulatory approach and processes.
Consistent: Outcomes from enforcement activities should be consistent and predictable. EPA aims to ensure that similar circumstances, non-compliance and incidents lead to similar enforcement outcomes.
Accountable: To ensure full accountability, the compliance of permit holders, enforcement decisions and the conduct of Authorised Officers will be explained and open to public scrutiny.
Inclusive: EPA will engage the community, business and government to promote environmental laws, set standards and provide opportunities to participate in compliance and enforcement.
Authoritative: EPA is prepared to be judged on whether individuals and business understand the law and their obligations. EPA will set clear standards, clarify and interpret the law and provide authoritative guidance and support on what permit-holders need to do to comply. EPA will also be an authoritative source of information on the state of environment, the level of compliance with the laws it regulates, and what the key risks and new and emerging issues are.
Effective: Enforcement activity will seek to prevent environmental harm, impacts to health, and improve the environment. Enforcement action will be timely to minimize environmental impacts and maximize the effectiveness of any deterrence.
EPA defines risk as combination of two elements: consequence (the risk or harm to health and environment) and likelihood (the chance that non-compliance will occur).
EPA’s Regulatory Model
The EPA Act, 1996, establishes the EPA and provides a framework for preventing and controlling air, land, water and noise pollution, increasing resource efficiency, reducing waste and improving environmental performance. EPA coordinates activities to address the discharge of wastes into the environment; the generation, storage, treatment, transport and disposal of industrial waste; and the generation and release of noise.
The EP Act gives the Agency discretion to exercise its functions and to address the harms and impacts it was established to prevent and control. This discretion includes how to prioritise and allocate resources and enforcement decisions are made and what actions are taken. EPA’s regulatory model and this Manual explain how the legislation will be enforced administered, and will prioritise compliance and enforcement activity. It outlines the strategies will be applied when dealing with activities that are we regulated.
A risk-based and responsive regulatory model
EPA will allocate resources where the biggest difference can be made, or where the biggest risks to environment, health, safety or well being can be managed.
We have adopted a risk-based model in which targeting of enforcement and responses to incidents, compliance requirements, level of non-compliance and pollution reports will change depending on the risk or harm to health and the environment.
EPA will prioritise its compliance monitoring and inspection efforts towards the biggest risks of harm to the environment and to those people and businesses that are less likely to comply.
2.1 EPA’s Regulatory Approach
Encourage higher performance: The EPA will develop and work with leaders and partners to encourage higher performance and leadership, which will build the case for improving practices and influencing future standards.
Monitor compliance: The EPA will determine the level of compliance with current standards and laws, and maintain a credible risk of detecting non-compliant activities.
‘Compliance’ means following the law. It means obtaining the right approvals or permissions. It means conducting authorized activities in accordance with any conditions or regulatory requirements.
Compliance is the responsibility of all businesses, organizations, governments and individuals. Everyone has obligations under the law. All parties have a social duty of care to the environment to reduce their environmental impact and ensure that future generations experience a clean and improved environment. All duty-holders are accountable to the regulator and the public to prevent and minimize environmental harm.
The EPA undertakes a range of activities on behalf of the public to achieve compliance with the EP Act and Regulations. EPA uses a balanced regulatory approach with a mix of compulsory and voluntary methods. The approach to regulation involves a number of key steps:
a) Inform and educate:
In order to raise awareness of environmental impacts, obligations, and EPA’s role and social duty of care for the environment and human health, a key role for EPA is to raise awareness of environmental laws and requirements; environmental quality; the environmental and health impacts of activities and individual duty of care; and, EPA’s role and jurisdiction.
EPA will promote its aspirations for an improved environment. This will be done by stating what is the responsibility for environmental impacts from the activities of permit holder- business, industry, local and state agencies, and individuals. We all share a social duty of care to protect the environment and to not cause harm.
EPA will broadly promote its purpose, jurisdiction and role in protecting the environment. We will clearly communicate our regulatory approach and how we work with co-regulators, community, business, government and non-governmental organizations to protect, care for and improve the environment.
EPA emphasizes education and raising awareness as an effective way of encouraging people to comply. Broad knowledge of what the environmental obligations are under the law will increase compliance and provide a common understanding for EPA to enforce the law.
EPA will regularly communicate compliance levels and broadly promote its enforcement strategy, and compliance plan, and conduct compliance campaigns to provide clear information about areas or issues we are focusing on.
b) Set Standards:
Providing clear and authoritative standards based on science and community aspirations, The EPA sets environmental standards and expectations for all activities through regulation, policy and permits. These standards are based on good science and consideration of community aspirations. The EPA promotes compliance by setting clear standards and raising awareness of risks and controls to protect the environment. The EPA will be clear about what the law requires and will support permit and non permit holders to achieve compliance by setting clear standards and providing guidance on how they can be met. Standards focus on key causes of environmental harm, seek to protect our sensitive environments and drive environmental improvement. Standards are based on rigorous science, evidence, an understanding of the state of environment and current and future risks. Standards will evolve over time with changing environmental conditions, national and international standards and individual aspirations.
The EPA will work with industry associations, businesses, community organizations, ministries and governmental organizations in developing standards and promoting good practice. In order to ensure laws and standards evolve and that standards of protection continuously rise to meet those standards, EPA supports Permit holders to perform beyond current standards.
c) Supporting Compliance:
Providing practical, constructive and authoritative advice on how to comply with the law. The EPA promotes compliance by providing advice on how to comply with the law, and, where non-compliance is found, how to remedy it. The EPA uses advice, guidance and partnerships to ensure Permit and non Permit holders to understand what compliance is and how to identify and manage the risks of their activities. One of EPA’s key functions is to provide advice to any person who has a duty or obligation under the EP Act, regulations or policy about hot to comply with that duty or obligation. EPA and its officers will provide practical and constructive advice on how to comply with the law, interpret standards and where necessary, provide support on how to remedy any non-compliance. This compliance advice may include referring people to applicable codes of practice, best practice management guidelines, protocols for environmental management, international standards or other relevant information.
Compliance advice does not extend to providing legal advice; the onus for compliance will always rest with the party who has a duty or obligation under the law. The advice EPA provides will not give any additional legal rights or defenses for any alleged non-compliance with the law. The degree to which a party takes into account advice provided by the EPA will be taken into consideration when deciding whether to prosecute.
d) Monitoring Compliance:
Monitoring compliance with the law and maintaining a credible risk of detection. A core function of the EPA is to determine levels of compliance with current standards and laws, and maintain a credible risk of detection of non-compliance. The EPA’s primary focus is on prevention; wherever possible, we want to ensure that incidents of non-compliance and their impacts are avoided. The EPA constantly improves its capacity to detect and respond to non-compliance. When the EPA identifies or becomes aware of a problem or a risk, it seeks to resolve the problem before it leads to an impact on the environment. Monitoring compliance and investigating non-compliance is therefore a key role for EPA.
e) Enforce the Law:
Requiring parties to make good any (or ‘the’) harm caused and deterring non-compliance, The EPA addresses non-compliance with the law and standards by objectively and assertively requiring remedy and, where appropriate, applying sanctions. ‘Enforcement’ means the use of influence, authority and statutory methods to compel compliance with the law.
Enforcement of environmental requirements should be undertaken for the purpose of:
- Better protecting the environment and its economic and social uses;
- Ensuring that no commercial advantage is obtained by an person who fails to comply with environmental requirements; and
- Influencing the attitude and behavior of persons whose actions may have adverse environmental impacts or who develop, invest in, purchase or use goods and services which may have adverse environmental impact.
Enforcement is just one way of achieving compliance. The EPA can take enforcement action when legal requirements are contravened or not complied with. Requiring parties to meet their legal obligations or remedy their non-compliance is a key part of enforcing the law.
Enforcement has two key elements:
- Remedy: Fixing the problem or “making good”; and
- Sanction: Applying a penalty or punishment for breaking the law.
The EPA will use enforcement to address non-compliance, fix the problem and restore and ‘make good’ the harm caused by breaking the law. It may not always be possible to restore the environment to its previous state, so the EPA will require offenders to ‘make good’ by minimizing the extent of the damage or risks and taking all reasonable steps to remediate the impacts.
Remedy and punishment can be used in combination, but all contraventions of the law will be met with a requirement to fix the problem.
( i ) Remedy: Fix the problem or make good
The first goal of enforcement is to stop non-compliance with the law and prevent further harm. Stopping non-compliance with the law or preventing or limiting harm may be done, for example, through an Authorised Officer, a pollution abatement notice, or giving direction.
EPA will bring into effect the principles of the EP Act that the polluter should pay the cost of cleaning up pollution they have caused and restoring the environment.
( ii ) Sanction: Apply a penalty or punishment for breaking the law
Sometimes remedying a breach is insufficient to deter lawbreakers. In some cases, enforcement can include punishment, such as when people are prosecuted for serious breaches of the law. Punishing law breakers is an important and effective way of deterring people from breaching their environmental obligations.
Sanctioning generally deters those offenders who might evade their obligations or seek profit from breaking the law. In some circumstances, it will be necessary to specifically deter them from offending in the future. It also levels the playing field financially for those who do the right thing and invest in prevention and environmental improvement.
f) Encouraging higher performance:
Building the case for improving practices and influencing future standards, The EPA will develop and work with leaders and partners to encourage higher performance and leadership, building the case for improving practices and influencing future standards. The EPA will work in partnership to promote higher performance and improvement that is aligned with EPA’s priorities, is focused and will develop future standards. We will drive performance, improvements and leadership that may apply to specific sites, sectors, geographic areas and business and industry groups. This may involve establishing and supporting networks, holding seminars, publicizing case studies, organising field visits, and providing grants, in-kind support and incentives for people comply and go beyond minimum standards.