Environment Protection Act 1993

Industries conducting prescribed activities: Any operator of a prescribed activity of environmental significance listed in Schedule 1 (petroleum and chemical operations, manufacturing, mining, waste facilities, food production, etc.) requires a works approval and/or licence. They are subject to licence conditions, annual fees, monitoring, and EPA oversight.

All persons undertaking pollution-risk activities: The general environmental duty in s 25 applies to any person whose activities may pollute the environment. This is a universal obligation with no exemption for licence holders (though compliance with licence conditions may be a defence).

Property owners and occupiers near contaminated sites: Part 10A creates extensive obligations on appropriate persons to assess and remediate contamination, including companies that have caused contamination, their successors, and in some cases land owners.

Retailers, beverage manufacturers, and container depot operators: Part 8 Division 2 imposes obligations to participate in the container deposit scheme, to accept and pay refunds on returned containers, and to comply with the Authority's approvals for beverage containers.

Site contamination auditors: Part 10A Division 4 requires auditors to be accredited and imposes conduct and reporting obligations. Unaccredited persons may not hold out as site contamination auditors (s 103W).

Voluntary environmental auditors: Part 7 protects information produced in voluntary environmental audits from legal proceedings, encouraging self-assessment.

General environmental duty (s 25): All persons conducting activities that may pollute must take all reasonable and practicable measures to prevent or minimise environmental harm.

Works approval (s 35): Before constructing, altering, or extending a prescribed facility, the operator must obtain a works approval from the EPA.

Licence (s 36): A person must not conduct a prescribed activity of environmental significance without a licence from the EPA, unless exempt.

Conditions of environmental authorisation (s 45): Conditions may require: financial assurance (s 51); monitoring, testing, or audits (s 52); closure and post-closure plans (s 52A); emergency plans (s 53); environment improvement programmes (s 54); training (s 54A); compliance certificates (s 54B); and approval of specified works or processes (s 54C).

Notification of serious or material environmental harm (s 83): A person must notify the EPA as soon as reasonably practicable after becoming aware that serious or material environmental harm has been caused or threatened in the course of their activity. The notification cannot be used in evidence against the person (except for false or misleading statements).

Notification of site contamination of underground water (s 83A): An owner, occupier, site contamination auditor, or consultant must notify the EPA on becoming aware of contamination affecting or threatening underground water.

Container deposit obligations (Part 8 Division 2): Retailers must accept and pay refunds on empty Category A containers (s 70). Collection depot operators must accept and pay refunds on Category B containers for which they are approved (s 71).

Annual fees and returns: Licensed operators must pay annual fees and lodge annual returns (s 48). Collection depots and super collectors in the beverage container scheme have their own annual fees and returns obligations (s 69A).

EPA grant of environmental authorisations (s 40): The EPA may grant or refuse works approvals and licences. It must consider the criteria in s 47, which include the impact on the environment and human health, the nature of the activity, the applicant's capacity to comply, and the principles of ecologically sustainable development.

EPA conditions (s 45-54C): The EPA has wide discretion to impose conditions on environmental authorisations, including the special conditions in Division 5. Financial assurance conditions (s 51) can require bonds or other security.

Suspension and cancellation (s 55): The EPA may suspend or cancel an environmental authorisation on various grounds, including serious or persistent breach of conditions, material false information in the application, and public interest considerations.

Environment protection orders (EPOs) (s 93): Authorised officers may issue EPOs requiring persons to cease or take action to prevent, minimise, or remediate environmental harm. EPOs may be registered on the title of land (s 94). Failure to comply allows the EPA to take action and recover costs (s 95).

Clean-up orders and authorisations (ss 99-103): The EPA may issue clean-up orders requiring persons to carry out clean-up activities at their own cost. The EPA may issue a clean-up authorisation to an authorised person to enter land and carry out clean-up, with costs recoverable from the responsible person (s 103).

Site contamination orders (Part 10A): The EPA may issue site contamination assessment orders and site remediation orders to appropriate persons. If not complied with, the EPA may take action and recover costs (s 103Q).

Authorised officers' powers (s 87): Authorised officers may enter premises, inspect, take samples, require production of documents, seize items, and take other enforcement action. Senior authorised officers have additional powers to investigate illegal dumping (s 88A).

Civil penalty recovery (s 104A): The EPA may apply to the Environment, Resources and Development Court for a civil penalty for contraventions of the Act.

Serious environmental harm (s 79):

• Intentional or reckless with knowledge: up to $2,000,000 (body corporate); up to $500,000 or 4 years imprisonment (natural person).
• Otherwise (strict liability): up to $500,000 (body corporate); up to $250,000 (natural person).

Material environmental harm (s 80):

• Intentional or reckless with knowledge: up to $500,000 (body corporate); up to $250,000 or 2 years imprisonment (natural person).
• Otherwise: up to $250,000 (body corporate); up to $150,000 (natural person).

Environmental nuisance (s 82):

• Intentional or reckless with knowledge: up to $60,000 (body corporate); up to $30,000 (natural person).
• Otherwise: up to $15,000 (body corporate); up to $4,000 (natural person). Expiation fee: $300.

Notification failures (ss 83, 83A):

• Failure to notify of serious or material harm: up to $250,000/$150,000.
• Failure to notify of underground water contamination: up to $120,000/$60,000.

Corporate officers: Section 129 makes officers of a body corporate personally liable for offences committed by the corporation where the officer authorised, permitted, or participated in the offence.

Continuing offences (s 123): Offences that continue after they are first committed are treated as fresh offences on each subsequent day.

Alternative findings (ss 81, 80(3)): A court may find a defendant guilty of a lesser offence if not satisfied of the charged offence.

Civil remedies (Part 11): The Environment, Resources and Development Court may grant injunctions, order clean-up, and award damages. Civil penalties are also recoverable by the EPA.

Environmental authorisation process:

1. Application to the EPA with supporting information (s 38).
2. Notice and public submissions process (s 39) for certain applications.
3. EPA decision within prescribed timeframe (s 42).
4. Authorisation granted with or without conditions.
5. Annual fees and returns (s 48).
6. Renewal applications (s 43).

Enforcement process:

1. Authorised officers investigate potential non-compliance.
2. Environment protection order issued if required (s 93).
3. Failure to comply: EPA may take action and recover costs (s 95).
4. Criminal prosecution in the Environment, Resources and Development Court (s 132) or via civil penalty action (s 104A).

Site contamination process (Part 10A):

1. EPA identifies potentially contaminated site.
2. Site contamination assessment order issued to appropriate person (s 103H).
3. Accredited site contamination auditor engaged.
4. Assessment report lodged (s 103ZA).
5. If contamination found: site remediation order issued (s 103J).
6. Remediation carried out and reported.
7. EPA may require notation of audit reports on land title (s 103P).

Container deposit scheme:

• Beverage manufacturers must have beverage container approvals (s 68).
• Retailers must participate in returns scheme.
• Collection depots and super collectors require approval and pay annual fees (ss 69, 69A).
• Appeals to the Environment, Resources and Development Court.

Development Act 1993 (SA) (now superseded by the Planning, Development and Infrastructure Act 2016 (SA)): The EPA has a statutory role in assessing development applications for environmentally significant activities. Section 50A addresses the avoidance of duplication between the EPA's authorisation process and the development approval process.

Environment, Resources and Development Court Act 1993 (SA): The Environment, Resources and Development Court (ERD Court) is the tribunal for appeals under s 106 and for criminal prosecutions for major offences (s 132). Section 110 of the Act deals with the constitution of the ERD Court.

Water Industry Act 2012 (SA) and water legislation: Section 61A allows proclamation of water protection areas. The Act interacts with water resource legislation for pollution affecting water resources.

Mutual Recognition Act 1992 (Cth): The beverage container scheme's requirements may interact with mutual recognition principles, as illustrated by the Coca-Cola Amatil v Northern Territory [2013] FCA 154 case (dealing with the NT container deposit scheme).

Trade Practices Act 1974 (Cth) / Competition and Consumer Act 2010 (Cth): Conduct in connection with the container deposit scheme (refusing to accept containers, directing collection depots) may engage competition law, as illustrated in Le Ro Char Enterprises [1999] FCA 711.

Criminal Law Consolidation Act 1935 (SA) and General criminal law: The Act provides that the Criminal Law Consolidation Act applies to offences under the Act (Schedule 1 to that Act).

General environmental duty is not a standalone criminal offence: The general duty in s 25 creates a civil obligation enforceable by environment protection orders and clean-up orders, but breach is not itself an offence. However, failure to comply triggers the EPA's cost recovery powers under s 135, and non-compliance can also be used to establish the mental element for other offences.

Licence does not protect against the general duty: Having a valid licence and complying with its conditions may provide a defence to the general duty in certain circumstances (s 25(3)), but only if the licence specifically prescribes maximum pollution levels that were not exceeded, or if it specifies that compliance with its conditions satisfies the duty.

Site contamination liability is broad: The appropriate person regime in Part 10A can reach companies that have caused contamination in the past, their successors, and in some circumstances directors of bodies corporate (s 103G). Orders can be registered on land titles, affecting innocent purchasers.

Mandatory notification and self-incrimination: Section 83(3) protects notifications made under s 83 from being used in criminal proceedings against the notifier. However, this protection is limited to notifications (not other information); a false or misleading notification can still be prosecuted. The general self-incrimination rule does not apply to authorised officer requests (s 91).

Container deposit: cross-border bottles: The scope of the obligation on collection depots to accept Category B containers (s 71) is not entirely clear where containers were purchased in another State. The Le Ro Char case [1999] FCA 711 raised this question without definitively resolving it, noting at [9] that "the precise scope of the obligation that s 71 imposes... is not at all clear."

Continuing offences: Many environmental offences under the Act are continuing offences under s 123. A single environmental harm event that persists may generate multiple daily offence counts, substantially increasing maximum penalties.

Alternative finding provision: Courts may find a defendant guilty of a lesser environmental harm offence than the one charged (ss 80(3), 81). This affects plea strategy and prosecution charging decisions.

Example 1: Industrial spillage triggering multiple obligations A chemical plant in SA accidentally releases a solvent that enters a stormwater drain and reaches a local creek. The spill constitutes serious environmental harm (actual harm to water of high impact on a wide scale; likely exceeds $50,000 in remediation costs). The operator must:

• Immediately notify the EPA under s 83.
• Take all reasonable and practicable measures under the general duty (s 25). The operator faces potential criminal prosecution under s 79 (causing serious environmental harm). The EPA may issue an environment protection order and/or a clean-up order. If the solvent contaminated the soil below the plant, site contamination obligations under Part 10A may also be triggered.

Example 2: Container deposit scheme refusal A can recycling business (like the applicant in Le Ro Char [1999] FCA 711) collects empty Category B containers and delivers them to a collection depot in SA. The collection depot refuses to accept the containers. Under s 71, the collection depot operator must accept and pay refunds on approved Category B containers. The refusal is a breach of s 71. The collector may have remedies against the depot operator for breach of statutory obligation, though the precise scope of s 71 in relation to interstate containers requires careful analysis.

Example 3: Site contamination liability A former dry-cleaning site in Adelaide is sold. The new owner discovers groundwater contamination caused by perchloroethylene (PCE) from the former dry-cleaning business. The EPA issues a site contamination assessment order to the appropriate person (the former owner or current owner, depending on the liability analysis in ss 103C-103G). The order requires an accredited site contamination auditor to assess the extent and nature of the contamination and recommend remediation. If remediable contamination is confirmed, the EPA may issue a site remediation order.

Example 4: Licence condition for financial assurance A waste management company applies for a licence to operate a landfill. The EPA grants the licence with conditions including a financial assurance condition under s 51 requiring the company to maintain a $5 million bond to cover potential remediation costs. The bond is payable on demand if the company defaults on its licence conditions or the landfill causes environmental harm requiring remediation.