Ready… Set… Go! Victoria’s environmental reforms are commencing in JulyMay 2021 | Planning & Environment
On 1 July 2021, the new Victorian environmental laws will come into effect under the amended Environmental Protection Act 2017 (Vic) (EP Act), completely reforming and expanding the powers of the Environmental Protection Authority (EPA). The reforms aim to minimise the harm caused to both people and the environment from pollution and waste. The new regime will be centred on prevention with a focus on risk identification and management.
Five years ago, the Victorian Government initiated an independent enquiry into the EPA and environmental regulation in Victoria. The Inquiry’s Report (Report), released 31 March 2016, contained a total of 48 recommendations. The full Report can be accessed here.
The Victorian Government responded to the Report on 17 January 2017 (Response), supporting 40 of the 48 recommendations. The Response committed the Government to transform and modernise the EPA and associated environmental laws to coincide and keep pace with the everchanging legal, political and social landscape of environmental law in Australia.
As written in one of our initial articles in 2017 (see here), ‘[s]ignificant revisions of the Environmental Protection Act 1970 (Vic) [were] anticipated over the next two years’. As we predicted, this eventuated.
The New Environmental Protection Act
In September 2018, the Environmental Protection Amendment Act 2018 (Vic) (Amendment Act) was passed by the Victorian Parliament. This marked the most monumental change to the Victorian environmental law since the inception of the legislation in 1970. After its implementation was delayed twice by COVID-19, it is now going to commence on 1 July 2021.
Some of the most impactful changes to the environmental regime are:
- A new General Environmental Duty (GED). The cornerstone of the reforms creates an obligation on a company or an individual to minimise risks so far as reasonably practicable for activities that may cause harm to human health or the environment from waste and pollution.1 The GED is modelled on Victoria’s Occupational Health and Safety (OHS) law,2 meaning that if you already have a management system for OHS risks in place, you may be able to use this framework and process to create a management system for the GED.
At a minimum, the GED requires specific Business Policies, likely under an Environmental Management System (EMS), which:
- contemplates and minimises ‘harm’ to human health and the environment from operations;
- considers the handling and storage of waste; and
- provides a management strategy for pollution and waste incidents.
The definition of ‘harm’ in the reforms is broad, meaning that a wide range of operations and activities will require consideration.
- Pollution Duties. The EP Act creates two new duties on individuals and businesses for ‘pollution incidents’:
- a positive duty to take action to respond to harm (or potential harm) to human health or the environment caused by a pollution incident;3 and
- a duty to notify the EPA of ‘notifiable incidents’ as soon as practicable after becoming aware of the notifiable incident.4 The penalty for this provision is just over $32,000 for an individual and just over $160,000 for corporations.
- Contamination Duty. There will also be a new duty to manage contaminated land and minimise risks of harm to human health and the environment from contamination.5 This duty will require you to be aware of any potential contamination incidents and to obtain independent advice from a contaminated land expert about whether this contamination poses a risk of harm to human health or the environment. If there has been notifiable contamination (defined in Regulations 8-12), you must report it to the EPA.6
- Waste Management. The new regime for waste management will be a risk-based, tiered framework introducing ‘priority waste’ and ‘reportable priority waste’ (previously only industrial waste). The industrial waste provisions will provide a clearer supply chain focus from classification to transport and finally to receipt (location). The EPA is currently developing a waste tracking system to facilitate this new approach. There is also a new ‘category D’ for contaminated soils.
- Public Rights of Review. The EP Act will introduce statutory third-party enforcement rights by giving ‘Eligible Persons’ the ability to bring an enforcement action for contravention of the EP Act.
- Permissions Scheme Policy. The new legislation will introduce two new types of permissions (permits and registrations) in addition to the existing licencing regime, creating a tiered approach in favour of the existing ‘one size fits all’ approach.
- Sanctions and Penalties. Across the board, sanctions and penalties have been increased with an aim to hold environmental polluters accountable.
There are two key pieces of proposed subordinate legislation intended to support the amended EP Act when it comes into effect: Regulations and the Environmental Reference Standard (ERS). Final drafts of these documents have been released:
There are also expected to be Compliance Codes and Guidance and Educational Campaigns.
The ERS is a new tool detailing community expectations. It identifies community values to be achieved and maintained and provides a way to assess these values in different locations across Victoria. There are four groups of ‘reference standards’ in the ERS:
- ambient air;
- ambient sound;
- land; and
- water (surface water and groundwater).
Each reference standard will include environmental values, indicators and objectives. Importantly, the ERS does not impose obligations and exists only as a benchmark, however it may inform decision-making.
The amended EP Act strengthens the EPA’s investigative powers and increases the penalties for wrongdoers. It is the biggest change to Victoria’s environmental laws in 50 years and it is important to be aware of how it could affect you. Businesses and individuals should be forthcoming in reporting potential non-compliance and contamination incidents and act now to proactively manage any potential risks.
Now is the time to consider your company’s EMS and if you do not already have one, develop one tailored to your specific potential risks that pose a threat of harm to human health or the environment.
If you require any assistance regarding your existing permits, licences or any policies that affect your business in Victoria, please contact our Planning and Environment team.
1 See the new Environmental Protection Act 2017 (Vic) s 25 (‘new EP Act’). This new section is intended to complement the transitional form of the GED from s 28. The sections work in tandem such that a person will not be charged with breaching both sections for the same conduct.
2 See Occupational Health and Safety Act 2004 (Vic) s 20.
3 See new EP Act (n 1) s 31.
4 Ibid s 32.
5 Ibid s 40.
6 Ibid s 39.
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.