The New Victorian Environment Protection Framework
On 1 July 2021, the Environment Protection Act 2017 (New Act) came into effect.
The new environment protection framework adopts a preventative, risk-based approach to preventing harm to human health and the environment. This is a shift away from the Former Act which adopted a prohibitive, reactionary approach whereby polluters were punished after committing an offence.
Some important features of the new framework are:
A positive duty on individuals and businesses engaging in certain activities to minimise the risk of harm to human health and the environment;
A duty to notify the EPA of certain incidents and to take action to respond to the harm caused;
A duty on persons with management or control of land to notify the EPA of land contamination, including contamination that occurred prior to the New Act commencing;
New criminal and civil penalties for breaches of duties;
A new environmental audit system;
A new waste system, which includes new duties and associated penalties; and
A new permissions framework for activities comprising of licenses, permits and registrations.
The New Act largely repeals the Environment Protection Act 1970 (Former Act) except for in certain circumstances.
The subordinate legislation and instruments supporting the New Act include:
The Environment Protection Regulations 2020 (EP Regulations);
The Environmental Reference Standard (ERS), a new tool made under the New Act, which comprises multiple reference standards to guide the assessment of environmental conditions, including ambient air and sound, land and water; and
Various guidelines and other publications which provide guidance on various aspects of the new regime.
This article provides a high-level overview of key aspects of the new framework.
ENVIRONMENT PROTECTION DUTIES
General Environmental Duty
A cornerstone of the new framework is the General Environmental Duty (GED). The GED imposes an overarching, positive duty on any individual or business engaging in an activity that may give rise to risks of harm to human health or the environment to take reasonably practicable steps to minimise those risks.
The GED applies to risks of harm associated with pollution and waste, including the storage, use and disposal of chemicals, the management and transport of wastes and the production of noise and odour. The scope and application of the GED will be tested and further defined through the application of the New Act.
Taking ‘reasonably practicable’ steps to minimise the risk of harm to human health or the environment requires steps to be taken that are proportionate to the risk of harm. This will include consideration of the likelihood of the risk of harm, the potential degree of harm, the knowledge of the potential harm and ways to reduce or eliminate the harm and risks. Depending on the circumstances on each activity, reasonably practicable steps may include:
risk identification, assessment and control processes;
appropriate handling, transport and use of harmful substances;
using and maintaining plant and equipment in a manner to minimise potential risks of harm; and
providing training and supervision of persons engaging in activity that may give rise to risks of harm.
A breach of the GED is enforceable with criminal and/or civil penalties. A breach of the GED by a business attracts a maximum fine of over $1.6 million. There are also provisions under which company directors and managers can be held personally liable attracting a fine of up to $660,000 and 5 years imprisonment.
Pollution Incidents
The New Act creates:
A duty to take action to respond to harm caused by a ‘pollution incident’; and
A duty to notify EPA of ‘notifiable incident’.
Further, if a pollution incident occurs as a result of an activity (whether by act or omission), and the pollution incident causes or is likely to cause harm to human health or the environment, ‘a person who is engaging in that activity’ must, ‘so far as reasonably practicable’, restore the affected area to the state it was in before the pollution incident occurred.
A pollution incident is defined to mean an incident or set of circumstances that causes a leak, spill or other unintended or unauthorised deposit or escape of a substance as a result of which pollution has occurred or is occurring.
A notifiable incident is a pollution incident that causes or threatens to cause material harm to human health or the environment or a prescribed notifiable incident.
EPA Publication 1991 contains guidance on responding to harm caused by pollution.
Contaminated Land
The New Act imposes duties to manage contaminated land and to notify the EPA of contaminated land on persons in ‘management or control’ of land. These duties apply to land that is contaminated before or after the commencement of the New Act.
What is contaminated land?
Land is ‘contaminated land’ if waste, a contaminated substance or a prescribed substance is present on or under the surface of the land, and that waste or substance is above the ‘background level’ and creates a risk of harm to human health or the environment.
‘Background level’ is either:
the level prescribed in or determined under the EP Regulations or the ERS; or
if there is no prescribed level, the natural occurring level of the contaminant(s).
Land is not contaminated merely because waste or a chemical or prescribed substance is present in a concentration above background level in water that is on or above the surface of the land, or if any prescribed circumstances apply to the land.
Management and control of land
The meaning of ‘management or control’ is not defined in the New Act. Therefore, the facts and circumstances will determine whether a person is in management or control of land. We consider that a person will likely be taken to be in “management or control” of land if they, among other things, own or are in exclusive possession of the land, or have a contractual right or practical ability to exercise control over and make decisions in relation to the land.
Duty to manage contaminated land
A person in management or control of contaminated land must minimise risks of harm to human health and the environment from the contaminated land “so far as reasonably practicable”.
To fulfil this duty, the New Act identifies an inclusive list of actions to minimise risk of harm to human health and the environment from contaminated land. These actions include identifying any contamination the person knows or suspects to be present, investigating and assessing the contamination and implementing reasonably practicable measures to minimise risks.
Section 39(3) of the New Act enables a person in management or control of land to recover in court reasonable costs incurred in complying with the duty to manage contaminated land against any persons responsible for causing or contributing to the contamination.
Failure to comply with the duty to manage contaminated land is not an offence under the New Act. However, such a failure may breach the GED, which is punishable criminally and/or civilly.
Duty to notify of contaminated land
A person in management or control of land is required to notify the EPA of ‘notifiable contamination’ ‘as soon as soon as practicable after the person becomes aware of, or reasonably should have become aware of, the notifiable contamination.
‘Notifiable contamination’ means contamination that is prescribed under the EP Regulations, or if not prescribed, contamination for which the reasonable cost of remediation is likely to exceed $50,000 or any other prescribed amount.
The duty arises when an individual or business has or should have knowledge that land is contaminated. As such, if historical contamination becomes known, the person in management of control of that land must notify the EPA. It is therefore important for persons and businesses to review historic records to identify whether there may be contamination above background levels.
The EP Regulations prescribe exceptions to this duty, including prior notification under the New Act and a previous environmental audit which states that there is no potentially contaminated land and there has been no material changes since its issue.
The privilege against self-incrimination does not apply to the notification duty. However, any information given by a person as part of a notification is not admissible in evidence against the person in a proceeding for an offence or for the imposition of a penalty, other than a proceeding that relates to false or misleading information that is provided by the person in relation to a notification.
Failure to give notice is enforceable criminally with a maximum penalty over $99,000 or under the civil penalty regime.
EPA Publication 1977: Assessing and controlling contaminated land risks: A guide to meeting the duty to manage for those in management or control of land and EPA Publication 2008: Notifiable contamination guideline: Duty to notify of contaminated land contain helpful guidance on how to meet the new duties.
New Environmental Audit System
The former section 53V and section 53X audits have been replaced with a two-stage process, comprising:
1. A preliminary risk screen assessment (PSRA) which assesses the likelihood of contaminated land, determines whether an environmental audit is required and if so, recommends a scope for the environmental audit.
Once a PRSA has been undertaken, the environmental auditor must prepare a PRSA statement and a PRSA report. Those documents are required to be sent to the EPA, relevant planning authority, and responsible authority.
2. An environmental audit which assesses the nature and extent of the risk of harm to human health or the environment from contaminated land, waste, pollution or any activity, recommends measures to manage the risk.
Part 8.3 of the New Act sets out the audit process and the functions, appointment and oversight of environmental auditors, and creates certain offences.
The EP Act contains transitional provisions for environmental audits that were commenced but not completed under the Former Act at the commencement of the New Act.
NEW WASTE FRAMEWORK
Waste classification system
The New Act creates a new classification system for waste. The number of duties that apply will depend on how the waste is classified.
Waste is classified into the following waste types based on level of risk:
‘Industrial waste’ covers all waste, including household waste once it is at a waste facility;
‘Priority waste’ is industrial waste which requires additional controls based on its hazard level and potential for mismanagement. Priority waste is further categorised under the EP Regulations; and
‘Reportable priority waste’ is the most hazardous type of waste and subject to the highest level of control.
EPA Publication 1827.2: Waste classification assessment protocol provides guidance on classifying waste types.
Waste duties
In addition to the GED, the New Act creates various positive duties that regulate the entire waste supply chain. The duties include:
Duties in relation to industrial waste, comprising:
Duties of persons involved in transporting industrial waste (including person relinquishing control of industrial waste);
Duties of persons receiving industrial waste;
Duties of persons depositing industrial waste;
Duties of persons managing priority waste (including a duty to investigate alternatives to waste disposal).
Duties in relation to reportable priority waste, comprising:
Duty to notify of a reportable priority waste transaction; and
Duty of persons transporting reportable priority waste.
The New Act creates indictable offences and civil penalties for various breaches of the waste duties and allows for more severe penalties for repeat offences.
NEW PERMISSIONS FRAMEWORK
Chapter 4 of the New Act establishes a three- tiered permissions framework which is based on the level of risk the proposed activity poses to human health and the environment. In summary, the new permissions are:
Licences for complex, high-risk activities. Licences are required for activities that need a customised assessment and specific conditions.
Permits for medium-risk activities and activities that are high risk but low complexity. A small number of new permissible activities have been included in the new framework.
Registrations for low-risk activities.
The EP Regulations prescribe the types of permissions required for particular activities and set out the application and assessment process.
Transition to the new permissions
A person that holds a permission under the Former Act is deemed to hold an equivalent permission under the New Act from the commencement of the New Act. The permission will be subject to the same conditions. However, the EPA has 12 months from the commencement of the New Act (i.e. 1 July 2022) to amend, revoke or alter conditions on a permission that has been transitioned from the Former Act.
The table below summarises the new permissions equivalent to the permissions under the Former Act:
|
OLD PERMISSION |
NEW PERMISSION |
|
Works approval |
Development licence |
|
Licence |
Operating licence |
|
Waste approvals, noise approvals, Environment Improvement Plans |
Permits |
|
Research, development or demonstration approval |
Pilot project licence |
|
Section 30A emergency waste authorisation |
Section 157 authorisation for discharge or disposal |
|
Permit to transport prescribed waste or prescribed industrial waste |
Prescribed authorisations |
The EP Act also contains transitional provisions for applications that were not determined at the commencement of the New Act.
EPA Publication No. 1799: Permissions Scheme Policy sets out the EPA’s approach to implementing the new permissions scheme from 1 July 2021.
WHAT STEPS SHOULD YOU TAKE?
We recommend that individuals and businesses:
Familiarise yourself with EPA publications and guidance material relevant to your particular sectors.
Consider whether you require a new permission to cover an activity or land not previously regulated. If a new permission is required, ensure that you familiarise yourself with the application requirements, process and timeframes.
If you hold an existing permission, be aware that up until 1 July 2022, the EPA may amend, revoke or impose new conditions on an existing permission to bring it into compliance with the EP Act.
In relation to potentially contaminated land, consider whether you need to make a notification or actively implement measures to manage contaminated land. Familiarise yourself with the specific circumstances, thresholds and substances which are notifiable.
Prepare and/or update environmental management plans, process and systems, having particular regard to the positive nature of the duties under the EP Act.
Carefully document any changes implemented, and investigations carried out, to demonstrate steps taken to comply with the relevant duties under the New Act.
We recommend that municipal councils:
Review standard permit conditions in light of the changes to the environmental framework, including the discontinuation of most SEPPs.
Be aware that the Governor in Council may order councils (and other public sector bodies and infrastructure managers) to take a specified steps when managing land and infrastructure to minimise risks of harm to human health or the environment.
Familiarise yourself with EPA publications and guidance material relevant to council.
In relation to potentially contaminated land, consider whether you need to make a notification or actively implement measures to manage contaminated land in the management or control of council.
If you have any questions on the interpretation or application of the New Act, please contact the Planning & Environment team.
Allison Tansley
Associate
T 03 9611 0197
E atansley@ha.legal
Amara Coleman
Associate
T 03 9611 0156
E acoleman@ha.legal
Greg Tobin
Principal
M 0412 845 035 | T 03 5225 5252
E gtobin@ha.legal
