18 September, 2019
Environment Protection Amendment Act 2018 (Vic)
What you need to know
- The new environmental laws introduced by the Environment Protection Amendment Act 2018 (Vic) (New EP Act) are scheduled to commence on 1 July 2020.
- In order to support the New EP Act, the Victorian EPA and Department of Environment Land Water and Planning (DELWP) have developed proposed Environment Protection Regulations (Regulations) and an Environment Reference Standard (Standard). The Regulations and Standard are open for public comment via the Engage Victoria website until 31 October 2019.
- The Regulations and Standard provide much of the additional detail and guidance on how the New EP Act will operate and fundamentally change the environment protection landscape in Victoria.
What you need to do
- Consider whether your organisation wishes to comment on the exposure draft Regulations and Standard.
- Consider attending our upcoming seminar, which will discuss the new regime.
- Ensure that your organisation has updated its practices, policies and procedures to comply with the new laws, before its anticipated commencement on 1 July 2020.
Background to the Environment Protection Amendment Act 2018 (Vic)
From 1 July 2020, the New EP Act is anticipated to commence in Victoria. The New EP Act and supporting streamlined regulatory framework represent a complete overhaul of the environmental protection regime in Victoria.
In the previous editions of this alert series we have discussed some of the key changes resulting from the New EP Act. A link to our previous publications is below.
Although the New EP Act received Royal Assent on 28 August 2018, much of the detail and guidance around its operation is contained in new subordinate instruments, including the Regulations and Standard, which as of this week, have been made available to the public for review and comment.
Importantly, the Regulations and Standard will replace all existing subordinate instruments, including six sets of regulations, seven State Environment Protection Policies (SEPPs), nine Waste Management Policies (WMPs) and four Notifiable Chemical Orders (NCOs). However, proposed transitional arrangements will retain parts of the SEPP (Waters) for a further two year period.
In addition to the Regulations and Standard, additional new subordinate instruments will be introduced by the EPA including Environmentally Hazardous Substance Orders (EHSOs), Obligations on Managers of Land and Infrastructure (OMLIs), discussed in more detail below, as well as compliance codes. These additional subordinate instruments are not yet available for public comment.
Purpose of the new Regulations and Standard
The EPA and DELWP have designed the Regulations to support the delivery of the new environment protection framework, implemented under the New EP Act. In particular, the Regulations seek to:
- enable elements of and obligations under the New EP Act to function by setting out the relevant prescriptions;
- prevent significant consequences from specific types of pollution or waste by adding additional regulatory control;
- prevent significant risk of mismanagement in relation to activities where there is a known risk of mismanagement by duty holders; and
- provide certainty to duty holders in order to ensure consistent compliance with the duties and obligations under the New EP Act.
The New EP Act introduces the concept of the Standard, a new subordinate instrument. The Standard seek to articulate community and environmental expectations and values about the way the environment is maintained and protected in Victoria. By setting out objectives for supporting different uses of the environment and performance indicators, it provides a foundation for environmental monitoring and reporting.
Although the Standard is a non-mandatory reference standard, decision makers will be required to consider the Standard when making decisions, such as when the EPA is assessing a development or operating licence application.
Upcoming Ashurst publications on new Regulations and Standard
Over the coming weeks, we will be providing more detailed updates in relation to some of key items contained in the Regulations and Standard. Our coming publications will focus on the following topics:
Penalties, enforcement, notices and orders
Once in force, the New EP Act will provide for infringement notices to be issued in relation to a number of offences under both the New EP Act and Regulations.
Schedule 10 of the Regulations sets out 72 offences for which infringement notices can be issued, including offences:
- under the New EP Act, such as unlawful dumping of waste, failure to comply with a waste abatement notice, non-compliance with a notice to investigate and non-compliance with a site management order; and
- under the Regulations, such as offences relating to permissions, waste, air quality and noise.
Penalties for infringement notices are typically 10-20% of the maximum penalty for that offence. If this penalty is paid, no further prosecution action can be taken in relation to that offence.
In addition, the Regulations provide that infringement notices can be issued in relation to certain classes of permission conditions, eg conditions requiring data to be provided to the EPA and making and retaining records for inspection. The Regulations also enable the EPA to specify within the permission itself what conditions are infringement notice conditions.
The New EP Act provides that if a monetary benefit is acquired due to the commission of an offence or contravention of an order, the EPA can submit to the court a reasonable estimate of the amount of benefit as determined in accordance with a prescribed guideline, method or protocol, for the purpose of recovering that amount from the person who obtained the monetary benefit. The Regulations provide that the prescribed protocol for the EPA to estimate these monetary benefits is the "Protocol for calculating monetary benefits" (Protocol).
The draft Protocol has also been released for public comment. The draft Protocol states that it is based on the NSW EPA's Protocol, with minor amendments to adapt it to Victoria. The introduction of the Protocol in NSW has not had much success. The NSW EPA has been actively seeking orders to recover amounts calculated using the Protocol since it was introduced at the start of the year, but has yet to be successful.
The New EP Act allows the Governor to make certain orders to clarify duties and obligations. There are two types of orders the Governor can make:
- OMLI: This is an order that requires a council, public sector body, or infrastructure manager to take a specified action, take into account a specified matter, or comply with a specified document, code, standard or rule. Infrastructure in this context includes roads and traffic facilities, water supply systems, electricity and gas distribution networks, and telecommunications networks.
- EHSO: This order declares a substance to be an "environmentally hazardous substance" and prohibits, controls and regulates that substance. This order may also specify that it applies to a specified area, class, person or body.
Permissions
As expected, the Regulations identify the types of activities which need to hold one of the new types of "permissions" under the New EP Act (being development licences, operating licences, permits or registrations).
Schedule 1 of the Regulations specifies the type of permission required for 78 different types of activities. One of our future editions will undertake a detailed analysis contrasting these activities with "scheduled premises" that currently require a licence.
Some newly regulated activities requiring a registration include temporary storage of small amounts of asbestos and biomedical waste (generated offsite). For other activities that currently require a licence such as waste processing, the volumes and types of activities requiring a licence are changing.
The Regulations identify the authority responsible for granting a permission. In most cases this will be the EPA, but some types of development licence applications must be referred to other agencies for consideration. The Regulations also prescribe circumstances when permissions must be refused.
For existing licence holders or operations benefiting from an approved exemption, the Regulations set out how some of the old categories of permissions and exemptions translate under the new regime.
Contaminated Land
As discussed in Edition 4, the New EP Act imposes two new duties on persons who are in management or control of contaminated land. Broadly, these duties are to:
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take steps to manage contaminated land (including investigating and assessing the contamination, and minimising the risk of harm from the contamination); and
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notify the EPA of "notifiable contamination".
Under the New EP Act, land is contaminated if waste, a chemical substance or a prescribed substance is present on, or under the surface of the land:
- in a concentration above "background levels"; and
- creates a risk of harm to human health or the environment.
The Standard defines "background levels" to mean the levels of an "indicator" such as pH, sulfates and heavy metal contaminants, measured in geologically similar land containing a measurable level of that indicator (outside the influence of any contaminant). The Regulations also enable the EPA to make a determination setting out the background level of waste or a chemical substance in relation to land.
As anticipated, the Regulations also set out in detail what constitutes "notifiable contamination". Notifiable contamination is contamination in relation to certain soil, asbestos, vapour intrusion and ground water and surface water contaminants, as well as the containment of certain contaminated soils on-site.
While we will cover what is notifiable contamination in detail in our future contaminated land publication, it is important to note at this stage that the Regulations provide for certain exempt notifiable contamination, including:
- stockpiles of industrial waste at a place or premises authorised to receive industrial waste (other than containment of certain contaminated soils on-site);
- contaminated land for which a Pollution Abatement Notice, Minor Pollution Abatement Notice or a Clean-up Notice under the Environment Protection Act 1970 (Vic) had been issued in certain circumstances; and
- contamination of land for which a statement of certificate of environmental audit had been issued by an auditor under the Environment Protection Act 1970 (Vic) in certain circumstances.
The Regulations also place an obligation on a person in management or control of land where non-aqueous phase liquid is present to, so far as reasonably practicable:
- clean up the non-aqueous phase liquid; and
- if the source is located on the land, remove or control the source.
Waste
The New EP Act introduces a risk-based waste management framework that is designed to manage risks to human health and the environment, and support and encourage waste resource recovery and reuse.
Persons involved in the management of industrial waste (including soils from contaminated land) must classify waste into one of three tiers:
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industrial waste – waste arising from commercial, industrial, trade activities or laboratories. The Regulations also prescribe the following as industrial waste:
- priority waste – being industrial waste classified as priority waste by the Regulations (unless not a priority waste in an applicable designation issued by the EPA); and
- reportable priority waste – as classified by the Regulations.
Schedule 5 of the Regulations sets out a table which describes various types of waste, sets out the relevant waste code for the waste, states whether the waste is pre-classified or a mirror code (mirror codes reflect that some waste are potentially hazardous in some circumstances but not in others, and therefore require further classification in accordance with a Waste Classification Assessment Protocol), and specifies whether the waste is a priority waste and a reportable priority waste.
The duties and controls associated with the three tiers is cumulative. This means, for example, that reportable priority waste must be managed in accordance with all duties and controls under industrial waste, priority waste, and reportable priority waste.
To support the duties that require that industrial wastes be taken to a place "authorised to receive industrial waste", the Regulations add to the definition of that term contained in the New EP Act, including by reference to specific types of wastes.
It will also be possible for a place to be authorised to receive industrial waste if there is a declaration of use in effect for that type of waste (this cannot be used if a permission is required to undertake an activity). This is a proposed to support safe storage, reuse and recovery of material derived from different types of lower risk wastes, and involves a self-assessment for the duty holder to complete which will identify legitimate use. The Regulations set out when a declaration of use will be able to be used.
The Regulations also require that priority wastes consigned for disposal be classified (as is currently the case). The Regulations do however create a new category D soil, which allows for alternative uses, including containment at the site where the soil was unearthed (subject to a 5 year permit and site management order).
In relation to reportable priority waste, the Regulations state that the following transactions must be notified to the EPA: consignment for transport; transport; and receipt at a place or premises. The Regulations then set out in detail the transaction documentation required to be recorded, provided and retained in relation to these transactions.
Timeline
The public has been invited to make comment on the new Regulations and Standard until 31 October 2019.
Public submissions will be reviewed in late 2019, with a view to the final Regulations and Standard being made in early to mid-2020. The EPA/DELWP's response to public comments will also be released around this time.
It is intended that the new regime will come into force from 1 July 2020.
How to make a public submission
Feedback on the Regulations and Standard can be provided in the online form on the Engage Victoria website, or uploaded via the online form or sent by email or post.
There is an option to identify submissions as confidential, in which case DELWP/EPA will not publish the submission.
Other articles in our New Victorian Environment Protection Laws series
For more information about the new environmental protection laws, see the other articles in our series:
Environment Alert: The end of Victoria's environmental law as we know it? (22 June 2018)
New Victorian Environment Protection Laws – A new environmental duty in Victoria – all you need is a risk of harm – Edition 1 (9 July 2018)
New Victorian Environment Protection Laws – A three-tiered approach to environmental approvals: licences, permits and registrations – Edition 3 (7 August 2018)
New Victorian Environment Protection Laws: New duties for the reporting and management of contaminated land – Edition 4 (17 September 2018)
For further information, please contact:
Robert Jamieson, Partner, Ashurst
robert.jamieson@ashurst.com
