Regulating water pollution from light industry: Lessons from the Swan-Canning

Environmental and Planning Law Journal

Volumn 22, Issue 5, 2005, Pages 328-349

  Gunningham, Neil ^a   Sinclair, Darren ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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EID: 84883616103     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (53)

1. These include various sources of nutrients, hydrocarbons, solvents and organic and inorganic chemicals, and heavy metals.
2. In the United Kingdom, eg over 99% of all businesses are SMEs (defined for present purposes as those with fewer than 200 people), the large majority of which would be classified as light industry (Hillary R (ed), Small and Medium Sized Enterprises and the Environment: Business Imperatives (Greenleaf Publishing, Sheffield, 2000).
3. Bickerdyke I and Lattimore R, Reducing the Regulatory Burden: Does Firm Size Matter? (Industry Commission, Melbourne, 1997).
4. Groundwork Foundation, Small Firms and the Environment: A Groundwork Status Report (Groundwork Foundation National Office, Birmingham, 1998); KPMG, The Environmental Challenge and Small and Medium Sized Enterprises in Europe (KPMG Consulting, The Hague, 1997).
5. Swan River Trust, Swan-Canning Cleanup Program, Draft Action Plan, An Action Plan to clean up the Swan-Canning Rivers and Estuary (Swan River Trust, Perth, 1998) p 38.
6. Swan River Trust, n 5, p 38.
7. Swan River Trust, n 5, p 39.
8. Swan River Trust, Swan-Canning Cleanup Program: Swan-Canning Industry Survey Final Report: Pilot Survey Findings (Swan River Trust, Perth, 2000).
9. Gunningham N and Sinclair D, Leaders and Laggards: Next Generation Environmental Regulation (Greenleaf Publishing, 2002).
10. Registrations are issued to premises that are managed through industry-generic codes of practice, however these are not binding. Registration in itself does not imply any substantive duties to mitigate pollution beyond those which apply to industry generally.
11. Prescribed standards currently relate to issues such as noise, removal of asbestos and disposal of waste tyres, and do not extent to the large majority of conventional pollution issues.
12. Tier three consists of minor technical offences including those in regulations; tier two consists of statutory offences, such as breach of licence conditions; and tier one primarily consists of offences committed intentionally, or with criminal negligence.
13. These include: (a) warnings; (b) notices (including pollution abatement notices and stop orders); (c) directions; (d) notices that daily penalties may apply; (e) infringement notices or modified penalty notices (tiers two and three); (f) amendment to licence conditions (g) suspension or revocation of works approval or licences; and (h) prosecution.
14. Department of the Environment, Key reforms of the Environmental Protection Act 1986: Environmental Protection Amendment Bill 2002 (Department of Environment, Western Australia, Perth, 2003).
15. Welker Environmental Consulting, Western Australian Licence Conditions: Independent Strategic Review (prepared for the Department of Environmental Protection, Western Australia, Perth, February, 2003).
16. See generally, Bates G, Environmental Law in Australia (5th ed, Butterworths, 2002) pp 425-426.
17. Department of the Environment, Codes of Practice (Department of Environment, Western Australia, Perth, 2003), copy on file with the authors.
18. It is possible that in the act of investigating a demonstrable breach of the Act an inspector may consider observance or not of a code in applying their discretionary powers. Given, however, that automotive premises are all non-licensed SMEs, and that the Department of Environment therefore pays scant regulatory attention to them, this situation is likely to be uncommon.
19. The new regulation did not require legislative passage through parliament, and is instead based on delegated authority under Environmental Protection Act 1986 (WA), s 88. This simply required approval by a parliamentary committee and subsequent gazetting.
20. These are to: develop a framework to facilitate local government management of light industry; to develop and implement a communication strategy; promote best practice in pollution prevention; to establish environmental systems to prevent pollution; and increase industry adoption of simplified environmental management systems (EMSs). Each of these recommendations contains a number of subsidiary actions with a designated lead agency "seen as having a responsibility or role in working on the various issues". For example, the report calls for the provision of "appropriate statutory powers to local government to manage local pollution issues", and lists the Swan River Trust and Local Government as lead institutions.
21. May P, "Regulatory Compliance: Perspectives of Farmers, Homebuilders and Marine Facilities" (forthcoming 2004) Law and Policy.
22. See generally Schwartz RD and Orleans S, "On Legal Sanctions" (1967) 35 U Chi L Rev at 283 for the classic article.
23. Scholz JT and Pinney N, "Duty, Fear and Tax Compliance: The Heuristic Basis of Citizenship Behaviour" (1995) 39 AJPS at 490; and on the importance of context, May P, n 21.
24. Chagnati R and Phatak A, "Evolution and role of corporate environmental affairs function" (1983) 5 Research in Corporate Social Performance and Policy 183 at 183-203.
25. Parker C, The Open Corporation (Cambridge University Press, Cambridge, 2002).
26. Parker, n 23, p 58.
27. This is a view that was consistently expressed by local government and departmental inspectors, and is consistent with our SME research in other jurisdictions. For example a substantial number of vehicle body shops in Victoria showed little concern for the environmental consequences of their activities, such as parts degreasing and washing and the disposal of waste oil in stormwater drains.
28. We are grateful to Meg Howe for her insights on this issue.
29. For a more detailed analysis see Gunningham and Sinclair, n 9, Ch 2.
30. However, only industry associations that are concerned to improve their industry image amongst the broader community, and/or to preempt the introduction of more onerous and potentially costly government regulation, are likely take on such a role. In these circumstances at least, such partnerships can have great value.
31. Harrison K, "Voluntarism and Environmental Governance", in Parson EA (ed), Governing the Environment: Persistent Challenges, Uncertain Innovations (University of Toronto Press, Toronto, 2001).
32. GEMI (Global Environmental Management Initiative), Total Quality Environmental Management (GEMI, Washington DC, 1999).
33. Gunningham and Sinclair, n 9, Ch 2.
34. Peel-Harvey Expert Review Committee, Peel Inlet and Harvey Estuary System Management Strategy: Progress and Compliance by the Proponents with the Environmental Conditions set by the Minister for the Environment in 1990 (Environment Protection Authority, Perth, 2002).
35. For a more detailed account see Gunningham and Sinclair, n 9, p 19.
36. See Environment.gov Transforming Environmental Protection for the 21st Century (National Academy of Public Administration, 2000) p 34.
37. Since light industry itself has very little knowledge of the extent of inspection, even the belief that they may be inspected will be sufficient to influence the behaviour of some.
38. Gallop, Hon Geoff (Premier (WA)), Media Statement, 2 May 2003.
39. EPA Victoria, Neighbourhood Environment Improvement Plans - Developing a voluntary proposal (Publication 846, EPA Victoria, 2002).
40. See Jayne M, "Managing Environmental Risk in Existing Light Industrial Estates" (2001) 10 Business Strategy and Environment at 366 (Jayne, describing the UK experience, points out that "the professionally managed, tenanted, modern industrial estate will usually have a steering group comprising of tenants and the landlord's agent" who provide a key point of leverage).
41. Gunningham and Sinclair, n 9, Ch 8.
42. The new regulation does not require legislative passage through parliament, as existing legislation provides the necessary authority. Instead, it simply requires approval by a parliamentary committee and subsequent gazetting. It is anticipated that such approval will be forthcoming before the end of the year.
43. Arguably, South Australia also provides greater policy oversight and support through their EPA coordinator. For example, EPA Victoria provides gives partial (but direct) funding to the local government based Stormwater Action Plan, however, there is no coordinating role. It is similar to NHT funding in that each participating local government is left to its own devices to develop and implement the program - there is no sharing of resources and expertise across councils. The New South Wales EPA fully funds an equivalent program with its local governments, and does provide a coordinating role, however the emphasis of their program is on training local government officials in pollution prevention - it does not directly target business.
44. If an industry association discovers that a member is not performing at a satisfactory level, what can it do to address this? There is a potential sequence of more onerous consequences. In the first instance it might employ its powers of persuasion to convince the enterprise in question to improve its environmental outcomes. If that fails, it could threaten to revoke an enterprises membership. Finally, as the ultimate sanction, it could invite the relevant government regulator to conduct an inspection. This scenario is not completely foreign to the Western Australian experience, where the industry association of the refrigeration and air-conditioning industry, the Refrigeration and Air Conditioning Registration Board, employed just such a regime in support of industry co-regulation to phase out the use of ozone depleting gases.
45. Gunningham and Sinclair, n 9, Ch 3.
46. Gunningham and Sinclair, n 9, p 53.
47. For example, one information brochure addresses the different types of commercial car washes in this regard.
48. SMEs are usually much less vulnerable to reputation damage than their larger counterparts who are much more visible to the public and often have brand names to protect. Nevertheless, even SMEs can be made reputation-sensitive in some circumstances. For example, small Danish farmers are more affected by the potential loss of reputation by having the names of violators published in the newspaper (May, n 21).
49. Gunningham N, Kagan RA and Thornton D, Shades of Green: Business, Regulation and Environment (Stanford University Press, 2003).
50. While the literature suggests that specific deterrence (brought about by targeting individual entities for inspection, and sanctions for violations) is effective (eg Gray WB and Scholz JT, "Does Regulatory Enforcement Work? A Panel Analysis of OHSA Enforcement" (1993) 27 Law & Soc'y Rev at 177), it is rare, and likely to be even more so in an under-resourced jurisdiction such as Western Australia. On the "signalling" effect of general deterrence, see Gunningham et al, n 48.
51. Hopkins A, Making Safety Work: Getting Management Commitment to Occupational Health and Safety (Allen & Unwin, 1995).
52. Gray and Scholtz, n 48, at 127.
53. Gunningham and Sinclair, n 9, Ch 2.