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Australians are not equally protected from industrial air pollution

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2015 Environ. Res. Lett. 10 055001

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Environ. Res. Lett. 10 (2015) 055001 doi:10.1088/1748-9326/10/5/055001

LETTER

Australians are not equally protected from industrial air pollution

BDobbie1 andDGreen2

1 Climate Change ResearchCentre, University ofNew SouthWales, SydneyNSW2052, Australia2 ARCCentre of Excellence forClimate SystemScience, University ofNew SouthWales, SydneyNSW2052, Australia

E-mail: donna.green@unsw.edu.au

Keywords: air toxics, Australian regulation, industrial pollution, environmental justice

AbstractAustralian air pollution standards are set at national and state levels for a number of chemicalsharmful to humanhealth. However, these standards do not need to bemetwhen ad hoc pollutionlicences are issued by state environment agencies. This situation results in a highly unequaldistribution of air pollution between towns and cities, and across the country. This paper examinesthese pollution regulations through two case studies, specifically considering the ability of theregulatory regime to protect human health from lead and sulphur dioxide pollution in thecommunities located around smelters. It also considers how the proposedNational CleanAirAgreement, once enacted,might serve to reduce this pollution equity problem. Through the casestudies we show that there are at least three discrete concerns relating to the current licencing system.They are: non-onerous emission thresholds for polluting industry; temporal averaging thresholdsmasking emission spikes; and ineffective penalties for breaching licence agreements. In conclusion, wepropose a set of new, legally-binding nationalminimum standards for industrial air pollutantsmustbe developed and enforced, which can only bemodified bymore (not less) stringent state licencearrangements.

1. Introduction

It is very difficult for individuals to control the extent towhich they are exposed to air pollution, especially thoseliving close to polluting industrial facilities, such assmelters, which are a major source of air pollution inAustralia (NPI 2013). Therefore it is necessary thatcomprehensive, clear and enforceable air quality stan-dards are put in place to protect the health ofall Australians from point source emissions, regardlessof their place of residence. Unfortunately, unlikemany other countries, such standards do not currentlyexist in Australia. Indeed, the regulation of air pollutionin this country is complex and confusing, and tendsto be based on ambient air pollution levels andaverage pollutant concentrations over certain timeperiods. This approach (although perhaps appropriateto address diffuse source air pollution such as that fromtraffic) ignores the direct, and localized, impacts ofpoint source pollution and is largely ineffective in itsrole of protecting the health of people, especially thoseliving in proximity to highly polluting industrialfacilities.

1.1. Current Australian air pollution standardsIn Australia, each state and territory has its own lawsand policies governing the levels at which certainpollutants can be emitted. This remains the case,despite the fact that national standards for air pollu-tion exist, set by the National Environment ProtectionCouncil (NEPC)3. The NEPC was charged withmaking National Environment Protection Measures(NEPM), and has the goal of ensuring that allAustralians enjoy equal protection from environmen-tal pollution. It was also the goal of the NEPC that theNEPMs should become binding in each state andterritory. Whilst the states and territories have allenacted legislation indicating this intention4, there isno legal obligation to transform this intention intoreality.

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3It should be noted that on 13 December 2013, the body under

which the NEPC sat, the Standing Council on Environment andWater, was revoked by the Commonwealth Government. To date,no replacement body has been established and no clear indicationhas been given as to how the work of the NEPC will continue in thefuture.4See for example, section 7, National Environment Protection

Council (New SouthWales) Act 1995 (New SouthWales).

© 2015 IOPPublishing Ltd

The Ambient Air Quality National EnvironmentProtection Measure (AAQNEPM) sets standards forcarbon monoxide, nitrogen dioxide, photochemicaloxidants (such as ozone), sulphur dioxide, lead andcoarse particulates. It requiresmonitoring stations to beinstalled in areas with populations greater than 25 000.This population threshold is set at a level that is too highto requiremonitoring atmany significant point sourcesof air pollution, such as smelters and mining facilities.Consequently, state and territory governments retainsignificant discretion as to how, and to what extent, theAAQNEPMstandards are implemented.

1.2. State and territory regulationsDue to its non-binding nature, there has been no clearadoption of AAQNEPM standards. Rather, they havebeen incorporated to varying extents using a variety ofdifferent methods by state and territory authorities. Insome states, the AAQNEPM has been implementedthrough a combination of existing and new environ-mental laws, whereas others have created environmen-tal policies for this purpose5. The complexity ofthese arrangements and the uncertainty surroundingthe legal status of the instruments in which thestandards are contained (such as policy documents),means that the AAQNEPM standards are largelyunenforced (ANEDO 2013). In the absence of theAAQNEPM, there is no easily identifiable legal frame-work regarding the regulation of air pollution(ANEDO 2013). This is of significant concern, becauseit means that existing ill-defined and overlappingregulatory frameworks that relate to air quality and

public health provide incomplete and varying levels ofprotection to people living in different parts of thecountry.

In most states and territories, pollution is broadlyregulated through pieces of environmental legislationcontaining provisions that create a general duty not toharm the environment6. It is a general defence to thesetypes of offences if the environmental harm wascaused with lawful authority, for example, in accor-dance with the terms of a licence granted to carry out aparticular industrial activity. Only the most acute actsof air pollution are likely to be caught by these provi-sions though, with a chronic pollution burden unli-kely to trigger an environmental agency response. Theinfrequency of regulatory action in the state of NewSouthWales (NSW), the largest by population in Aus-tralia, in relation to air pollution incidents and brea-ches of pollution licences7 issued to industrial facilitiesto allow them to carry out polluting activities, providesa good example of this phenomenon. This can be seenthrough the comparison of tables 1 and 2(a) and (b)which identify, respectively, the small number of pro-secutions carried out by the NSWEnvironmental Pro-tection Agency (NSW EPA) since the commencementof the NSW Protection of the Environment OperationsAct 1997 (POEOAct) in relation to air pollution offen-ces and the quantum of the penalties issued; and thehigh number of breaches of pollution licence condi-tions for two major smelter operations in NSW

Table 1.Recorded prosecutions in relation to air pollution byNSWEPA.

Date Offender Details of offence

Section

of acta Fine

2August 2001 Port Kembla Copper

Pty Ltd

Emissions of sulphur dioxide to air in excess of limits set

by conditions of environmental licence authorizing

operation of copper smelter, resulting in harm to

environment.

64(1) Fines totaling

$116 000

17December 2004 S J Perry Negligent disposal of tires in such amanner as to poten-

tially cause air pollution through fire.

115 $30 000

30 June 2006 Caltex Refineries (NSW)

Pty Limited

Failure to operate plant in a proper and efficientmanner

so as to cause air pollution (odors).

124(b) $81 311

23October 2009 GeorgeGhossayn Operation of landfill facility without lawful authority;

dealingwithmaterials (landfill waste) in amanner

causing air pollution (through smoke and odors).

126 $50 000

31May 2010 Transpacific Industries Pty

Limited/Transpacific

Refiners Pty Limited

Emission of volatile organic compound to air in excess of

limits prescribed by environmental licence authorizing

chemical production.

64(1) $30 250

3August 2011 Unomedical Pty Limited Failure to prevent emission of air impurity (ethylene

oxide) whilst carrying out activity of sterilisingmedical

equipment, where no emission standards set under

legislation.

128(2) $90 000

a Protection of the Environment Operations Act 1997 (New SouthWales).

5See for example, the Environment Protection (Air Quality) Policy

1994 (SouthAustralia).

6See for example, section 155, Protection of the Environment

Operations Act 1997 (New South Wales); section 25, EnvironmentProtection Act 1993 (South Australia); section 50, EnvironmentalManagement Pollution Control Act 1994 (Tasmania).7Formore information on pollution licences see section 1.3 below.

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Environ. Res. Lett. 10 (2015) 055001 BDobbie andDGreen

Table 2.

(a) Licence breaches at BrokenHill, NSW.

Perilya BrokenHill Ltd,NorthOperations—EPL 2683

Year

(FY

end)

No. of breaches Types of breach Action

2000 2 (M2)Dustmonitoring Nodata.

2001 1 (M2)Dustmonitoring Nodata.

2002 1 (M2)Dustmonitoring Nodata.

2003 1 (M2.1) AirMonitoring Nodata.

2004 14 (M2.1) AirMonitoring; (L6.1) Blast pressure

exceeded.

EPAmonitored; investigated non-compliance;

2 prosecutions re blast pressure (total fines of

$10 800)

2005 3 (M2.1)Dustmonitoring Action by licensee.

2006 10 (M2)AirMonitoring Action by licensee.

2007 16 Sampling/monitoring Action by licensee.

2008 15 (M2)Dustmonitoring; (M7.2) Blastmonitoring;

(L.61) Blast pressure exceeded.

Action by licensee.

2009 10 (M2)AirMonitoring; (M7.2) Blastmonitoring. Action by licensee.

2010 7 (M2.1) AirMonitoring. Action by licensee.

2011 7 (M2.1) AirMonitoring. Action by licensee.

2012 1 (M2.2)Dust and lead airmonitoring. EPA investigated.

2013 1 (M2.2) AirMonitoring. Action by licensee.

Total 89 Breaches—5 actions by EPA

Perilya BrokenHill Ltd, SouthOperations—EPL 2688

Year

(FY

end)

No. of breaches Types of breach Action

2000 4 (M2.1) Air/watermonitoring; (L4.1) water discharge

limits exceeded; (G2.1) signage.

No data.

2001 18 (L6.1) Blast vibration exceeded; (M2.1)Dust, air,

water, vibrationmonitoring

Prosecution re blast vibration (fined $2000)

2002 15 (M2.1) airmonitoring; (M7.1) vibrations

monitoring.

No data.

2003 2 (M2.1,M6.1) air and dischargemonitoring. No data.

2004 7 (M2.1,M6.1) airmonitoring; vibrationmonitoring. EPAmonitored; investigated non-compliance.

2005 9 (M2.1) airmonitoring. Action by licensee.

2006 14 (M2) airmonitoring. Action by licensee.

2007 4 (M2) airmonitoring. Action by licensee.

2008 11 (M2)Dustmonitoring; (L3, L3.4) discharge limits

exceeded.

Action by licensee.

2009 14 (M2,M2.1,M7)Airmonitoring. Action by licensee.

2010 14 (M2.1) Airmonitoring; (L3.1)Discharge limits

exceeded.

Action by licensee.

2011 33 (M2.1) Airmonitoring; (L4.1, L3.1, L3.4) water dis-

charge limits exceeded.

EPA advised licensee of action required.

2012 15 (M2.2,M6.1) Air, watermonitoring; (L2.4) lead,

zinc, cadmiumwater discharge limits exceeded.

EPAmonitored. PollutionReduction Plan to

address non-compliance.

2013 31 (M2.2,M2.3)Monitoring; (L2.4, L2.5, L3.1)Water

discharge limits exceeded.

PollutionReduction Plan to address non-

compliance.

Total 191 breaches—5 actions by EPA.

CombinedTotal—BrokenHill Operations 280 breaches—10 EPA actions

(b) Licence breaches at Cockle Creek,NSW.

PasmincoCockle Creek Smelter—EPLNo. 5042a

Year

(FY

end)

No. of breaches Types of breach Action

2001 29 (M2.1,M3)Air, watermonitoring; (O1) fugitive

emissions,molten lead breakout; (W3.1) exceed

water discharge limits; (P2) fail to upgrade storm-

water plant; (L2.1) air/water limits exceeded;

(L3.7) effluent limit discharge; (L3.8)Non dilution

of effluent.

Prosecution remercury inwater discharge lim-

its (fined $33 000).

2002 15 Nodata.

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(Broken Hill and Cockle Creek8) and the infrequencyof theNSWEPA’s response.

Generally, there are no broad prohibitions in rela-tion to causing air pollution. However, certain lawsmaycreate specific offences in relation to carrying out pollut-ing activities without an appropriate licence or author-ity, breaching a condition of such a licence, or failing tomaintain, or operate, industrial equipment in a mannerto prevent air pollution. In addition, polluters may berequired to report pollution events to appropriateauthorities when certain thresholds aremet. Some statesmake it an offence to permit air pollution beyond max-imum limits set in the legislation, whereas others setthese limits out in policy documents, which may not beattached to any appropriate enforcementmechanisms9.

As previously noted, there is no uniformity inregard to the air pollution limits prescribed in the dif-ferent state and territory legislation or policies. Differ-ent maximum levels are prescribed for differentsubstances, measured over different time periods, andare applied differently to industrial facilities depend-ing onwhen they were established. Using the examplesof lead and sulphur dioxide10, table 3 demonstrates the

differences between air quality standards in each stateand territory jurisdiction, as compared to nationalAAQNEPMstandards.

1.3. Pollution licencesThemost important tool in regulating point source airpollution is the pollution licencing system. In all states,environmental and planning legislation specifies thatcertain industrial activities must be carried out with apollution licence, issued by the relevant environmentalauthority. These licences specify certain conditions inrelation to limits on the types, and amounts, ofpollution that can be discharged, as well as monitoringand reporting obligations with which the holder of thelicence must comply. It is generally an offence tobreach the conditions of a pollution licence. Whilstpollution licences ostensibly operate to prevent orreduce pollution, in reality they allow an industrial siteto lawfully emit pollution that may be higher than thestate or territory threshold limit. In this regard,environmental authorities have a fairly wide discretionin determining appropriate pollution limits, or otherconditions containedwithin a particular licence11.

Whilst pollution laws are designed to protect thecommunity and the environment, the interminglingof planning and environmental law through the pollu-tion licencing system generally means that greaterweight is given to economic considerations than

Table 2. (Continued.)

(M2.1,M3.1)monitoring; (L3.7, L3.8) Exceed efflu-

ent limits; (PRP02) fail to comply with Pollution

Reduction Program.

2003 31 (M2.5)Monitoring; (L3.7) Emission/discharge lim-

its; (PRP) fail to complywith PollutionReduction

Program.

Prosecution re failure to comply with PRP

(remediate slag dumps). Court ordered slag

piles be covered (nofine issued).

2004 29 (M2.1)Monitoring; (L3.8)Discharge limits; (PRP)

fail to complywith PollutionReduction Program.

Nodata.

2005 15 (M2.1,M2) Sampling failures. Action by licensee.

2006 9 (M2.1) Sampling. Action by licensee.

2007 2 (M2.1) Sampling. Action by licensee.

2008 22 (M2.1) Sampling. Action by licensee.

2009 69 (M2)Dischargemonitoring; (L2, L3) Faulty sam-

pling, discharge limits exceed.

EPA tomonitor future compliance; Licence

under review (9Actions).

2010 6 (M2.1) Airmonitoring. EPA tomonitor future compliance.

2011 5 (M2) Inadequate sampling; (L3)Cadmium limit

exceeded.

EPA tomonitor future compliance.

2012 39 (M2.1) PM10monitoring; (L3, L3.4, L4.1)Mercury

andArsenic total load values exceeded.

EPA tomonitor future compliance; Licence

under review (4Actions).

2013 17 (M2.2,M2.3)Monitoring; (L1.1, L3)Discharge lim-

its; untreated discharge.

EPA tomonitor future compliance (3Actions)

Total 288 Breaches—20 EPA actions.

a Following the decommissioning of the smelter, EPL No. 5042 was issued in 2007 as a variation to the smelter’s previous licence, which

applied to the operation of the smelter. The variation changed the scheduled activity to ‘Waste Activities’ and ‘Waste Facilities—HIGAB

processing’. The licence was subsequently revised and re-issued in 2009 and 2010, when the scheduled activity was changed to ‘Waste

storage;Waste disposal (application to land)’.

8These two facilities are highlighted in this example because they

are similar operations (and produce similar pollutant loads) to thetwo facilities examined in the case studies in section 3 below.9See section 128, Protection of the Environment Operations Act 1997

(New South Wales); cf Environmental Protection (Air) Policy 2008(Queensland).10

Sulphur dioxide and lead are highlighted in table 3 because theseare the two pollutants examined in detail in relation to thecommunity health impacts of point source air pollution in the casestudies located in section 3 below.

11See for example, section 45, Protection of the Environment

Operations Act 1997 (NSW); section 47, Environment Protection Act1993 (SouthAustralia).

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Table 3.A comparison of lead and sulphur dioxide air pollution standards by jurisdiction.

Australian Standards for Air Pollutant (μg m−3 unless stated)

New SouthWales (NSW) Queensland (QLD) SouthAustralia (SA) Tasmania (TAS)(Western Australia)WAb

Reg.c Lic.f Reg.j Lic.k

Federal NEPM a Time Conc. Lic.d Reg.e Time Conc. Reg.g Lic.h Reg.g Lic.i Time Conc.

Sulphur dioxide

0.20 ppm hr — — 0.20 ppm

(570)/hr

Pre-2011l 1300/3 hr — 0.20 ppm hr 0. 20 ppm hr — 2003 0.35 ppm/yr As per

365/hr 0.08 ppm/dy (boundary) 2004 0.30 ppm/yr regs.

0.08 ppm/dy 0.08 ppm

(230)/dy

80/yr 0.02 ppm/yr 2005 0.25 ppm/yr

0.02 ppm/yr 0.02 ppm (57)/yr 2,500/hr 2006 0.25 ppm/yr

2012-2017 230/dy 2007 0.25ppm/yr

57/yr Post-2007 0.25ppm/yr

Lead

0.5 /yr Pre-1986 20 — 0.5/yr Pre-2011 1.5/3mths 10 0.5/yrm 0.0015/ 90 day 0.0015/

90 day

— 10

1986–1997 10 1.1/yr (in stack)

1997–2005 5 Post-2011 0.5/yr 1.6/yr

Post-2005 1 (based on rolling daily

measurements)

a National Environment Protection (ambient air quality)measure 1998 (Schedule 2).b There are no state-wide air quality standards in force inWestern Australia. The values listed in the table refer only to those regions specified in the Environmental Protection (Goldfields Residential Areas) (sulphur dioxide) Policy 2003,

namelyKalgoorlie-Boulder, Kambalda, Coolgardie andKurrawongAboriginal Reserve.c Protection of the EnvironmentOperations (clean air) Regulation 2010 (Schedule 4).d Perilya BrokenHill LtdOperations—Environment Protection LicenceNo. 2688 and 2683, granted by theNSWEPAon 20April 2000.e Environmental Protection (air) Policy 2008 (Schedule 1).f Mount IsaMines LtdOperations—Environmental AuthorityNo.MIN102700011, granted by theQueenslandDepartment of Environment andHeritage Protection andMount IsaMines Limited Agreement Act 1985, ScheduleH.g Environmental Protection (Air) Policy 1994 (Schedule 1).h Nyrstar Port Pirie Pty LtdOperations—Licence EPA 775, granted by the SAEPAon 1 July 2008.i MMGRoseberryMine—PermitNo. 1904, granted by EPATasmania on 21 September 1995 (as amended).j Environmental Protection (Goldfields Residential Areas) (sulphur dioxide) Policy 2003.k KalgoorlieNickel Smelter—LicenceNo. L8653/2012/2, granted by theWADepartment of Environment andConservation on 11 June 2012.m The licence imposes different standards at differentmonitoring sites.

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055001BDobbie

andDGreen

public safety (ANEDO 2013). Moreover, in certaincases, completely new laws have been created in rela-tion to specific sites that override the conditions con-tained within pollution licences, or operate to limit thepower of the relevant environmental authority to varya pollution licence12.

1.4. Comparisonwith international standardsIn the US, the regulation of air pollution is far morecomprehensive. Under the provisions of the UnitedStates Clean Air Act (CAA), for example, the UnitedStates Environmental Protection Authority (US EPA)is required to publish a list of air pollutants and set airquality standards in relation to those pollutants,averaged over certain time periods according to thespecific pollutant (USEPA2013b). TheUSEPA, underthe CAA, has set National Ambient Air QualityStandards (NAAQS) in relation to a number ofhazardous substances, referred to as criteria airpollutants because their permissible emission levelsare set in accordance with human-health and/orenvironmentally based criteria. Lead and sulphurdioxide are criteria pollutants and their limits are0.15 μg m−3 (rolling 3 month average) and 75 ppb(hourly average) respectively. Each of the US states isrequired to adopt enforceable plans to ensure that theCAA’s standards are met, as well as to controlemissions that drift across state boundaries (USEPA 2013b). Unlike in the US, binding national airpollution standards and the concept of criteria airpollutants are conspicuously absent in Australia. Inaddition, whilst pollution licences (known as operat-ing permits) are issued to US industrial facilities topermit the emission of air pollutants, unlike inAustralia, such operating permits must not allowemissions in excess of air pollution limits mandated ingeneral pollution laws (such as the CAA orNAAQS)13.Moreover, operating permits are required to beregularly reviewed, including in the event that theCAAorNAAQS is amended (US EPA2013a).

TheWorldHealthOrganisation (WHO)publishesair quality guidelines designed to enable the establish-ment of national standards for air quality (WHO

2006). A separate guideline prepared specifically forEurope also contains recommended standards forlead-in-air concentrations (WHO 2000). A compar-ison of theWHOguidelines, andUS standards for leadand sulphur dioxide, is shown in table 4.

1.5. Environmental justice and air pollution inAustraliaOutside of Australia, the observed inequity in thegeographic distribution of environmental pollutionhas resulted in both academic, and community-based,environmental justice analyses. These analyses haverecognized the fact that the law sometimes providesunequal protection from environmental pollution todifferent groups in society, including, for example,racial or ethnic minorities, isolated communities andpeople of lower socio-economic standing (Higginbo-tham et al 2010). In Australia, only a limited amount ofenvironmental justice research has been conducted(Strangio 2001, Lloyd-Smith and Bell 2003, Arcioniand Mitchell 2005, ). However, this lack of research isnot an indication that environmental injustices do notexist. Indeed, the only national scale quantitative studyconducted in Australia to date echoed internationalfindings by showing that communities hosting indus-trial pollution sources contained significantly higherproportions of Indigenous populations and relativelygreater socio-economic disadvantage, when comparedto communities without industrial pollution sites(Chakraborty andGreen 2014).

2.Methods

2.1.Document analysisRelevant Australian and international legislation, poli-cies and guidelines, and data from Australian environ-mental regulators (in particular the NSW EPA) havebeen reviewed alongside recent literature on environ-mental justice, air pollution regulation and the healthimpacts of air pollution from industrial facilities, toidentify general shortcomings in the current designand enforcement of air pollution regulation in Aus-tralia (as set out above and discussed in section 4below).

2.2. Case-study assessmentIn addition, two case studies, Mount Isa in Queens-land, and Port Pirie, in South Australia, are discussedin section 3 below to provide specific illustration of thegaps that currently exist in the regulation of airpollution in Australia. Both towns host large scalemining and/or smelting operations, although neitherhave a large enough population to trigger compulsorymonitoring under the AAQNEPM. Concerns havebeen raised in both places about the impact ofemissions from industrial sites on public health(Mackay et al 2013).

Table 4. International air pollution standards for lead and sulphurdioxide.

Air pollutant (μg m−3

unless stated) International standard

WHO USEPANAAQS

Sulphur dioxide 500/10 min 20/d 75 ppb h−1

Lead 0.50 yr−1 0.15/3months

12See for example, Port Pirie Smelting Facility (Lead-in-Air

Concentrations) Act 2013 (SA);Mount Isa Mines Limited AgreementAct 1985 (QLD).13

This requirement applies to new or modified industrial facilities,and some exceptions do occur—seeUSAEPA (2013a).

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The results of the document analysis and case-study assessment are discussed in sections 4 and 5below to support a call for the implementation of anew and improved regulatory system in Australia toprovide all Australians with equal and adequate pro-tection from air pollution, particularly those living inclose proximity to polluting industrial facilities.

3. Results

3.1.Mount IsaMount Isa is remotely located in North-West Queens-land and is one of the largest mining communities inAustralia, with a population of around 21 000(ABS 2013a). There has been significant mining andsmelting activity in the area since the early 1930s, andcurrently a number of mines and smelters are operat-ing, owned by Glencore Xstrata Mount Isa Mines(Mackay et al 2013, Taylor et al 2014). As an isolatedrural community it is characterized, amongst otherthings, by socio-economic disadvantage (Higginbo-tham et al 2010). It is also home to proportionallysignificantly higher numbers of Indigenous Austra-lians (ABS 2013a).

These mines constitute the largest copper–lead–zinc mining operation in Australia, employing 5000people and contributing approximately AU$1 billionto the economy annually. The site is a major emitter ofair pollutants including lead, sulphur dioxide, arsenicand cadmium, with historical and current emissionsleading to significant environmental lead pollution inthe region (Mackay et al 2013).

The facility operates under an environmentalauthority issued by the Queensland Government, inconjunction with a Transitional Environmental Pro-gram (TEP), provided for under the provisions of theEnvironmental Protection Act 1994 (Qld). Air pollutioncontaining sulphur dioxide, is permitted to be releasedfrom the facility at higher levels than those specified inthe Environmental Protection (Air) Policy 2008 (Qld),which is generally in line with the AAQNEPM (seetable 3). The purpose of the TEP is to guide the facil-ity’s transition from current emission levels to thestandards set out in the 2008 Policy by 2017. However,whilst lead emissions are currently capped at nationaland Queensland standards under the TEP, sulphurdioxide one hour values are permitted to remain sig-nificantly higher than these standards until 2016 (Tay-lor et al 2014). This is significant because the facilityoperators have indicated that they will decommissionthe copper smelter (but not the lead smelter) by 2016to complywith this directive (Taylor et al 2014).

The TEP is not the first instance where specialarrangements have been made between the facility’soperators and the Queensland government to allowmining and smelting operations to pollute local com-munities at levels above standards applying to thewider population. Previously, the Mount Isa Mines

Limited Agreement Act 1985 (Qld) operated to ratify anagreement between the Queensland government andthe facility owners. In 1997, one year before the imple-mentation of the AAQNEPM, the Queensland gov-ernment amended the Act to include permissible airpollution limits for the Mount Isa mining facility, inrelation to lead and sulphur dioxide, significantly inexcess of those set out in the AAQNEPM (Tayloret al 2014). The amendments also stated that the airquality standards included in the Act were the onlystandards applying to the Mount Isa facility, despiteany environmental legislation or other law to the con-trary. These standards were repealed with the intro-duction of the TEP in 2012 (Taylor et al 2014).

The National Pollutant Inventory (NPI), Aus-tralia’s pollution release transfer register, identified theMount Isa Mines facility as the nation’s largest emitterof arsenic, cadmium, copper, lead, sulphur dioxideand zinc compounds to air, land and water systemsfrom the period between July 1999 and June 2008(Mackay et al 2013, NPI 2013). Pollution sourcesinclude direct emissions from the copper and leadsmelter stacks, and fugitive emissions from mining,ore transport, ore preparation, waste disposal, andsintering and smelting operations (QueenslandEPA 2008). Despite upgrades to emission capturetechnology and oremanagement techniques, the com-bined effects of historic and contemporary emissionscontribute to significant environmental lead con-tamination in and around the Mount Isa urban area(Taylor et al 2010, 2011).

3.2. Port PiriePort Pirie is situated at the top of the Spencer Gulf inSouth Australia. The town and surrounding districtshave a population of approximately 175 00 people(ABS 2013b). Port Pirie has one of the highestincidences of socio-economic disadvantage in SouthAustralia (ABS 2011) and a proportionally higherpopulation of Indigenous people than the Australianaverage (ABS 2013b). Port Pirie is also home to amajorlead smelter, which is currently operated by Nyrstarunder a pollution licence granted by the SouthAustralian Environmental Protection Authority (SAEPA). The town has a long history of lead smelting,with the first smelter opening in 1889, processing orebrought in by train from Broken Hill. From that timeonwards, Port Pirie has been a single industry town,meaning that a substantial proportion of the localpopulation is employed at the smelter, even thoughtoday, ore processed there is brought in by ship fromoverseas. The smelter currently provides around 2500jobs, and employs approximately 15% of Port Pirie’sworkforce (Taylor et al 2014). These employmentfigures belie the relatively large scale of the currentsmelter operations, which in 2013, produced 179 000tonnes of lead (Nyrstar 2014).

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Knowledge of the issues concerning lead con-tamination from the smelter has been longstanding. In1925, the South Australian government held a RoyalCommission into the issue, which concluded that leaddust from the smelter was the principle cause of theelevated levels of lead poisoning in the region (Tayloret al 2014). In the 1980s, there was renewed concernfrom researchers in regard to the potential healtheffects of environmental lead exposure, in particularon the mental development of young children (Hey-worth et al 2009).More recent studies have shown thathigh concentrations of atmospheric lead dust from thesmelter were the dominant source of elevated bloodlead levels in local children (Esterman and May-nard 1998), and provided confirmation that atmo-spheric lead concentrations were related to surfacedepositionwithin the township (Taylor et al 2013).

Despite the long association of the smelter withlead contamination in the surrounding township, thecommunity has historically been divided over the risksposed by the elevated levels of lead in their town (Hey-worth et al 2009). Indeed, many residents have dis-counted the potential health issues associated withlead poisoning. Their reasons are varied, but includeconcerns regarding the potential stigma associatedwith Port Pirie being labeled as a ‘polluted’ town, andthe fact that many in the community have had a longassociation with the lead smelter as a source ofemployment, and therefore any moves to limit itsoperation would threaten their financial security(Heyworth et al 2009)—even though this also meansthat many of the same people who work at the leadsmelter are also subject to the impacts of its pollutionin their homes. This historical lack of local concernregarding the smelter operations echoes patterns else-where (Sullivan 2014), and may provide an explana-tion for the reticence of the SA EPA and the stategovernment to take steps to address the lead pollutionafflicting the town. Indeed, despitemounting evidenceto the contrary, until recently the government main-tained that the source of lead in Port Pirie’s soils, andtherefore the cause of elevated blood lead levels in chil-dren, was historical smelter emissions—not emissionsfrommodern day operations (Taylor et al 2014).

Action to address the high levels of lead pollutionfrom the smelter was not taken until 2012, when theSA EPA varied the terms of the smelter’s pollutionlicence. Following this, Nyrstar and the state govern-ment committed to a process of transformation andreplacement of the smelter, and allocated funds toundertake lead abatement measures (Tayloret al 2014). However, whilst implementing a morestringent daily air quality monitoring condition, therevision of the smelter’s pollution licence merelybrought the limits set for the maximum annual lead-in-air emissions from the smelter in line with the limitspecified in the AAQNEPM of 0.5 μg m−3 (Tayloret al 2014). In addition, the pollution licence specifi-cally permits annual lead emissions to occur at higher

levels at two of the four monitoring sites. Indeed, atone of the sites, lead emissions are permitted to be ashigh as 1.6 μg m−3

—more than three times thenational standard.

The lack of regulatory action to address lead pollu-tion in Port Pirie is particularly significant given thatNyrstar has recently committed to a AU$350 millionredevelopment of its operations (AAP 2014). Theredevelopment project has been substantially sup-ported by the state government, which has committedto underwrite the funding of the project and has alsoindicated that it will provide an indemnity of up to AU$115 million for any potential environmental, healthor property liabilities arising from the smelter upgrade(Taylor et al 2014). The redevelopment includes theintroduction of new technology, which both Nyrstarand the government claim will increase plant effi-ciency and reduce emissions (AAP 2014). However,echoing the parliamentary intervention described intheMount Isa case study, the SouthAustralian govern-ment has introduced new legislation14 which limits thepowers of the SA EPA to reduce maximum limits forpermissible lead-in-air emissions under the smelter’spollution licence for a period of 10 years following thecommencement of the legislation. In addition, thislegislation purports to supersede any other South Aus-tralian law or policy that would have the effect of redu-cing thesemaximum limits.

Around 23% of children in Port Pirie under theage of four have blood lead levels higher than10 μg dL−1 (SA Health 2014), the current NHMRCguideline for lead in blood levels (which is in line withWHO recommendations (WHO 1995), and the targetlevel around which programs for Port Pirie have beendeveloped). However, the new draft NHMRC guide-lines have dramatically revised its position, concludingthat blood levels above 5 μg dL−1 should be investi-gated and reduced, especially for young children andpregnant women (NHMRC2014).

4.Discussion

4.1. Protection of humanhealthThe current regulatory and pollution licensing systemis allowing lead and sulphur dioxide emissions at levelslikely to be dangerous to human health in Mount Isaand Port Pirie. Studies have shown that the atmo-spheric deposition of mine and smelter pollutantsform a significant pathway of lead exposure in theMount Isa community (Mackay et al 2013). Otherstudies have shown that 11.3% of 400 local childrenaged between 1 and 5 years of age, sampled between2006 and 2007, had lead levels above 10 μg dL−1

(Queensland Health 2008). Further, asthma mortalityrates are 322% higher inMount Isa than the rest of the

14Port Pirie Smelting Facility (Lead-in-Air Concentrations) Act

2013 (SA).

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state (Queensland Health 2009). These figures maydisclose the negative health impacts of the high levelsof lead and sulphur dioxide pollution in the area.Linkages between industrial pollution and negativehealth impacts are also suggested in research concern-ing the Port Pirie community. For example, in 2012,24.9% of children in Port Pirie aged 0 to 4 years had ablood lead level above 10 μg dL−1 (excluding surrogatematernal blood lead values) (Simon et al 2013, Tayloret al 2014). In addition,more than 3000 children in thePort Pirie region had elevated, i.e. above 10 μg dL−1,blood lead levels in the last decade (SAHealth 2014).

In light of the above, and in the absence of any evi-dence indicating that the industrial facilities at MountIsa and Port Pirie are operating in contravention of thepollution limits set in their operating licences, itappears that the current legal standards at which thesefacilities operate are not adequate to prevent pollutionat levels harmful to human health.

4.2. Adequacy of regulation andmonitoringA significant problem with the various air pollutionstandards relates to the fact that they set regionalthresholds for ambient air pollution. This approachtends to ignore the direct, and localized, impacts ofpollution on communities in close proximity topolluting sites15. As discussed above, the AAQNEPMseeks only to obtain a representative measure of airquality within any given region, andmonitoring underthe AAQNEPM is not required at all in smallercommunities—despite the fact that many industrialsites are located within these smaller, regional towns.Further, the standards set often refer only to averagepollutant concentrations over defined time periods.For example, in Mount Isa the relevant standard forlead emissions is 0.5 μg m−3 averaged over a year.Whereas in Port Pirie, the average yearly limit of0.5 μg m−3 is based on daily measurements (Tayloret al 2014). The problem with temporal averaging isthat it will tend to mask short term, high intensityexposure episodes, and these can be very damaging tohumanhealth (EJA 2014).

This approach to pollutionmonitoring also fails totake into account the impacts of cumulative deposi-tion of pollution from industrial sites over longer peri-ods of time, so called ‘legacy’ pollution. It is wellestablished that pollutants from industrial facilities arepervasive and persistent, and remain in the environ-ment for long periods of time. In these circumstances,air pollution standards that are based on averagingtotal emissions over specific time frames are notappropriate. If a community suffers a pollution spike,the deposited pollution continues to be a source of sig-nificant potential exposure, even though monitoring

records may show that average levels of pollution arewithin acceptable standards. As such, the NationalClean Air Agreement (NCAA) should ensure that airpollution standards are implemented which specifi-cally acknowledge the deleterious health impacts ofshort term pollutant exposure. In addition, the cumu-lative effects of air pollution deposition (including anacknowledgment of existing sources of pollutionwithin the environment) should be taken into accountwhen determining appropriate air pollution limits toapply to industrial sites.

4.3.Why does regulation fail?The regulation of air pollution fails, not only becauseof the patchwork of legislation governing the issue, butalso because there appears to be a lack of focus on airpollution offences by government regulators. Unfor-tunately, there is limited publicly available data inrespect to the relationship between the industrialfacilities, as seen in the two case studies above, and therelevant state regulators. The SA EPA provides a publicregister of major prosecutions, but there is noinformation regarding the Port Pirie smelter’s com-pliance with its licence conditions. By contrast, theQueenslandGovernment does notmake any such datapublically available about theMount IsaMines facility.

In relation to the Port Pirie smelter, a review of theSA EPA’s public register indicates that it has been sub-ject to only one major prosecution (SA EPA 2014). In2001, Pasminco was fined $400 00 in relation to theaccidental release of a zinc-eloctrolyte solution into anearby watercourse, resulting in the death of 50 fish.Despite the NPI documenting ongoing and consistenthigh levels of air pollution, the only significant prose-cution undertaken relates to this incident of water pol-lution. Indeed, of all the prosecutions listed on the SAEPA’s register (which covers the period from 1998 to2012), only one has involved air pollution. In thatinstance, occurring in 1999, Mobil was fined $240 00for causing material environmental harm through thedischarge of gaseous ethyl mercaptan. Overall, 25 ofthe 64 prosecutions listed on the SA EPA’s registerrelate to the pollution of waters (SA EPA 2014), eventhough air pollution is often far more damaging tohuman health and consequently, it would be reason-able to expect that a greater regulatory focus should beplaced on it.

In contrast to the environmental compliancerecords made publicly available in South Australia andQueensland, the NSW EPA maintains a detailed pub-lic register of environmental prosecutions, as well ascompliance records with environmental protectionlicences (NSW EPA 2014). Accordingly, the NSWEPA’s register provides a good opportunity to reviewthe frequency of prosecutions in relation to air pollu-tion offences, the magnitude of penalties issued, andthe response of regulators to non-compliance withlicence conditions. As the environmental regulators in

15Similar problems would occur with other pollution reduction

mechanisms that seek to reduce the total level of pollutants in asystem, but ignore more localized impacts of pollution, such asemissions trading schemes.

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other jurisdictions operate in a similar fashion to theNSW EPA, the results of this review can be applied, byextension, to the likely regulatory scenarios in otherstates and territories, including those in Queenslandand South Australia, which respectively govern theMount Isa and Port Pirie facilities discussed in the casestudies in section 3.

In this regard, the NSW EPA’s register indicatesthat there have been very few prosecutions in relationto air pollution offences, and when prosecutions havebeen undertaken, the penalties issued by the Courtshave been moderate. Since the commencement of thePOEO Act, there have been only six significant prose-cutions in relation to air pollution offences (seetable 1). The situation is similar in the neighboringstate of Victoria, where the Victorian EPA prosecutedair pollution offences only five times in the last fiveyears (EJA 2014).

In the absence of regulatory will to prosecute gen-eral air pollution offences, an effective pollution licen-sing system is essential to ensure that air pollutionfrom industrial sites is limited to approved levels.However, in order to work effectively, this systemrequires proper monitoring of point source air pollu-tion, and vigilant enforcement of breaches of licenceconditions. Unfortunately, this is often lacking andcan be illustrated by examining the prosecution ratesof breaches of pollution licences (offences undersection 64(1) of the POEO Act) in relation to twoindustrial sites in NSW that are similar to the opera-tions in Mount Isa and Port Pirie. Tables 2(a) and (b)show the number of licence breaches in relation tomining and smelting operations undertaken at BrokenHill (under EPL 2683 and EPL 2688) and smelting/waste disposal operations at Cockle Creek Smelter.

Table 2(a) shows that between 2000 and 2013,there were 280 recorded breaches of the conditionsattaching to the pollution licences for the mining andsmelting operations in Broken Hill, which are cur-rently undertaken by Perilya Broken Hill (and pre-viously by Pasminco Broken Hill Mine). According tothe NSW EPA’s public register, the NSW EPA tookaction in relation to these breaches on only ten occa-sions. Furthermore, on only three occasions, did thisaction result in prosecutions (a rate of only 1.1%)16.Similarly, table 2(b) shows that at the Cockle CreekSmelter, there were 288 breaches of licence conditionsbetween 2001 and 2013, with only 20 interventions bythe NSW EPA in response, and again only two prose-cutions (a rate of 0.7%)17.

It should be noted that the Broken Hill and CockleCreek pollution licences did not impose any specific

limits in regard to air pollution, although ambient airquality monitoring was required. Therefore, the facil-ity operators were bound to operate in accordancewith the relevant NSW standards for air pollution setin the general environmental legislation. It wouldappear then that where specific limits are not set inpollution licences, the regulatory authorities maintaintheir reluctance to take action against industrial pollu-ters. For example, the pollution licence for the CockleCreek Smelter required ambient air quality to bemon-itored and reported in an annual return. The 2013–14annual return reported that at one particular monitor-ing point, the annual mean lead in air concentrationwas 41.6 μg m−3. This reading is 83 times higher thanthe standards set by the AAQNEPM. In addition, thehighest individual lead in air reading was254 μg m−3

—508 times higher than the existing AAQ-NEPM. This indicates that along with the high back-ground levels of lead emissions, the facility alsoreleased significant lead emissions spikes. Despitereceiving this data indicating that emissions of air pol-lutants from the Cockle Creek Smelter were far inexcess of any applicable standards, the NSW EPA doesnot appear to have taken any action under the relevantlegislation to limit this pollution.

4.4. Private legal action for damage caused byindustrial air pollutionIn order to side-step this lack of regulatory will,members of the publicmay seek to remedy breaches ofenvironmental law through the use of specific civilenforcement provisions which are included in envir-onmental legislation in some jurisdictions18. How-ever, procedural hurdles and potential exposure tocosts orders often discourage public interest litigants.In other circumstances, where a person has beendirectly affected by air pollution from an industrialsite, he or shemay be able to bring a private legal actionin order to recover compensation for the damagesuffered. A legal suit in negligence is usually the mostappropriate form of action in these cases19. Where alarge class of people has been affected by pollution, thismay give rise to the possibility of a class action suit, andmajor damages payouts, potentially in much higherquantities than any fine that would be issued by thecourts for a breach of the environmental legislation.Accordingly, the risk of large class action negligencesuits is a potential concern for industrial polluters,

16Environment Protection Authority v Pasminco Broken Hill Mine

Pty Ltd (2002) NSWLEC 70 (two separate charges heard together);Environment Protection Authority v Perilya Broken Hill Ltd (Unre-ported, BrokenHill Local Court 26 June 2005).17

Environment Protection Authority v Pasminco Cockle Creek SmelterPty Limited (2001) NSWLEC 270; Environment Protection Authorityv Pasminco Cockle Creek Smelter Pty Limited (2003)NSWLEC439.

18See for example, Protection of the Environment Operations Act

1997 (NSW), sections 252 and 253.19

Negligence means a failure to exercise care and skill. In an actionfor negligence, the plaintiff must first prove that the defendant owedhim or her a duty to take reasonable care. In general, a duty of care isowed only if the defendant ought reasonably to have foreseen thathis or her conduct may be likely to cause loss or damage to theplaintiff. The plaintiff must then prove that the defendant breachedthat duty by failing to take reasonable care and that the breach ofduty caused the injury or damage suffered by the plaintiff. Finally,the plaintiff must demonstrate that the injury or damage sufferedwas not too remote a consequence of the breach of duty.

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which may encourage them to self-regulate theiremissions of toxic air pollutants to safe levels.

However, in any such negligence suit, the elementof causationmay prove difficult to establish in the con-text of damage allegedly caused by air pollution froman industrial site. In order for a plaintiff to establishcausation in these cases, it is necessary to prove that itis more likely than not (on the balance of prob-abilities) that the negligence of the defendant causedor materially contributed to the injury or damage suf-fered. In general, causation would be established if itappears that the plaintiff would not have sustainedinjuries had the defendant not been negligent. Thismay be difficult to demonstrate where there may bemore than one possible cause of the plaintiff’s injuries,for example, where the pollutants emitted to the air bythe defendant’s industrial site are also present in theenvironment generally. In such circumstances, thedefendant may have trouble establishing a clear causalpathway between the polluting actions of the defen-dant, and the damage or injury suffered by the plaintiffas a result of coming into contact with the relevant pol-lutant. Such hurdles to successfully mounting classaction negligence suits in respect of damage caused bypollution are present both in Australia and other jur-isdictions that may have stronger air pollution regula-tions, such as theUS (Johnson 2010).

This was the case in the only reported negligenceclaim againstMount IsaMines for alleged lead poison-ing20. In that case, it was alleged that airborne leademissions from the facility had caused brain damageand dysfunction to a young resident. However, due totechnical defects in the plaintiffs’ arguments relatingto the issue of causation, the case was dismissed at avery early stage.

There is also only one reported negligence claim inrelation to the operation of the Port Pirie Smelter. Inthis case, the plaintiffs sought to simultaneously bringclass action suits against Pasminco in respect of allegedcontamination of property and personal injury causedby exposure to harmful emissions (containing lead,sulphur dioxide and other pollutants) from both thePort Pirie and Cockle Creek Smelters21. However, thischallenge also failed at the outset on technical groundsas the claimants had inappropriately attempted to joinunconnected claims and failed to separate issues andparties in their class action suit.

A further challenge that plaintiffs face in thesekinds of proceedings is that the industrial facilitiesusually operate under the terms of a pollution licence.In these circumstances, whilst not the general rule(Bates 2013), a defence is likely to be available wherethe activities authorized under the licence are donewithout negligence, and there was no reasonable wayto conduct those activities without causing the allegeddamage. Accordingly, a plaintiff complaining of

damage caused by pollution from an industrial plantlicensed to carry out a polluting activity would gen-erally need to show that the plant had acted negligentlyin conducting the activities authorized under thelicence, and that this negligence was the source of thedamage suffered by the plaintiff.

The difficulties that members of the public mayexperience in protecting their rights through privatelegal action in relation to damage caused by air pollu-tion highlights Australia’s pressing need for the intro-duction of rigorous air pollution standards that applyuniformly across all regions of the country, and whichprevent the emission of air pollution at levels that maybe harmful to human health. Such standards should beaddressed in the proposedNCAA.

4.5. ProposedNCAACurrently, plans to work towards the development ofthe NCAA have been delayed at least until July 2016.Accordingly, it is now a good time to put forwardproposals in relation to the format and content of theNCAA, considering the limitations of the currentregulatory framework. The key component of anyNCAA developed is the provision of mandatory anduniform air quality standards applicable to all regionsin Australia, regardless of size or locality. This is theonly way to ensure that meaningful protection fromair pollution is provided to all Australians.

It is the current intention of the Commonwealthand state governments to develop an agreement cul-minating in the NCAA, in which roles and responsi-bilities are appropriately delineated between thedifferent levels of government (O’Sullivan 2014). Thisprocess would be carried out in a manner similar tothe way the NEPC and the NEPMs were developed. Asan alternative, there have been recent calls for the Fed-eral government to exercise its powers to implement anational scheme for air pollution, which would be leg-ally binding upon the states and territories, but wouldnot require their agreement to its implementation(EJA 2014). Such a scheme would be similar to theCAA in the US, in that a single piece of Federal legisla-tion would establish national air pollution standardsthat would apply to every community across Australia,regardless of their size or location. Whilst the nationalstandards would be binding on the states and terri-tories, as with the CAA, they would have flexibility inregard to how they choose to implement them in theirown laws.

It has been proposed that the scheme shouldappoint a Commonwealth regulator (EJA 2014). Thisregulator would act in a similar way to the US EPA inthe administration of the CAA. That is, it would beresponsible for ensuring that the states and territoriestake action to implement the national standards, andundertake necessary enforcement actions in cases ofnon-compliance. On the other hand, state and terri-tory environmental agencies would be responsible for

20Body vMount IsaMines Limited&Ors (2013)QSC 188.

21Cook v Pasminco Ltd (2000)VSC534 (15December 2000).

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implementing the national standards in their own reg-ulatory frameworks for air pollution, and monitoringand enforcing local breaches of the national standards(EJA 2014). In addition, the states would retainresponsibility for managing their own pollution licen-sing schemes, however, they could not set maximumair pollutant limits higher than those prescribed by theFederal scheme.

Although plans to harmonize pollution regulationwere mooted in 2011, they are still not finalized. In2014, Federal and state Environment Ministers sig-nalled their intention to work towards finalizing aNCAAby 2016, and their plans to vary the AAQNEPMin relation to ultrafine particulate pollution (Hunt2014). Accordingly, it is a good time to expose theinconsistencies and failings of the current regulationof air pollution, especially in regard to health impacts,to ensure that this new agreement is in line with inter-national standards.

5. Conclusion

5.1. Current regulatory landscapeWhilst NAAQS are set by the AAQNEPM, which areroughly in line with international standards, these arenot binding on the states and territories. Instead, thestates and territories implement their own standardsthrough a mix of legislation and policy documents—and these standards are not always enforceable byregulatory authorities. Moreover, the standards areoften set by reference to average pollutant output overcertain periods of time. This has the effect of maskingemissions spikes, and ignoring the potential humanhealth impacts of short-term acute exposure. Thishodgepodge of ill-defined and overlapping air pollu-tion standards results in a regulatory frameworkwhichprovides incomplete levels of protection toAustralians.

Complicating matters further is the use of pollu-tion licences to authorize the operation of industrialfacilities, such as smelters and mines, which are oftenthe largest emitters of point-source air pollution.These licencesmay be used to circumvent air pollutionstandards mandated by legislation. The relevantauthority granting the licence is given discretion to setemissions thresholds that may be higher than Federalor state/territory standards, based on various con-siderations including the economic costs associatedwith requiring industrial facilities to lower their pollu-tant output. It appears that these economic concernsare often given precedence over the potential healthimpacts of the pollution on people living in neighbor-ing communities, often in remote places already char-acterized by social and economic disadvantage. Ineffect, this provides the industrial facilities with aneconomic subsidy, as they are not required to invest inequipment or processes that lower their emissionslevels, or account for the damage their pollution may

cause to surrounding communities (Taylor et al 2014).The impacts that these kinds of economic policy deci-sions are having on the health of communities is evi-dent in industrial towns like Mount Isa and Port Pirie,where residents are routinely exposed to high levels ofair toxics that are absorbed by their bodies at levels farin excess of that recommended by Australian, andinternational, health authorities.

Notwithstanding that air pollution standards seemto be often set with the interests of polluting industriesfirmly in mind, there remain further problems withthe willingness or capacity of regulatory authorities toenforce breaches of standards set in the legislation orindividual pollution licences. In the apparently rareevent that disciplinary action is taken against anoffending industrial facility, the penalties issued forthe relevant breaches of the air pollution laws or stan-dards are usually insufficient to deter recidivism.Compounding this problem, individuals who havesuffered damage from exposure to air toxics are oftendeterred from mounting private legal challenges seek-ing compensation by significant evidentiary and costburdens.

5.2. Required improvementsThe failings of the Australian regulatory system for airpollution appear to have a disproportionate impact onpeople living in communities in close proximity toindustrial sites such as smelters. Such communities arelikely to have higher proportions of Indigenouspopulations and relatively greater socio-economicdisadvantage, when compared to communities with-out industrial pollution sites (Chakraborty andGreen 2014). Given that these people often alreadysuffer from social and economic disadvantage, theinconsistencies in the regulation of air pollution in thiscountry amount to a significant issue of environmentaljustice. It is important that this issue is specificallyrecognized in the development of the NCAA, so thatnew mandatory air quality standards are introducedthat genuinely protect everyone from the impacts ofair toxics.

Where science has identified health issues linkedto a particular pollutant, the regulatory system mustoperate in a strong and responsive manner, requiringfacility upgrades where standards are not being met,and vigilantly enforcing breaches of standards. In nocircumstances should regulators be given discretion tolower air quality standards applying to particularindustrial facilities for the sole purpose of economicand political expedience (Taylor et al 2014).

The NCAAmust operate to protect all Australiansequally from damaging air pollution. This wouldrequire the prescription of legally binding air qualitystandards that cover a wide range of substances, arebased on scientific evidence, and at the very least con-form to international standards set by the WHO.These standards should specifically take into account

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point-source air pollution, the impacts of short term,high-intensity pollution events on local populations,and the cumulative effects of pollutants deposited viaair borne emissions, and should be subject to a reviewprocess to ensure continual improvement in air qual-ity in Australia.

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