22 January 2021
What you need to know
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The new environmental laws to be introduced by the Environment Protection Act 2017 (Vic), as will be amended by the Environment Protection Amendment Act 2018 (Vic), are now scheduled to commence on 1 July 2021.
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The proposed final versions of the Environment Protection Regulations and Environment Reference Standard developed by the Victorian Environment Protection Authority and Department of Environment, Land, Water and Planning have been released, after public consultation, in order to allow business, industry and local government time to familiarise themselves with the detail.
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The most significant areas of change to the draft Regulations and draft ERS respond to submissions made in regards to waste, contamination duties, noise and discharges to water.
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Guidance materials to support industry and the community with the transition to the new legislation will also be available soon.
What you need to do
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Ensure that your organisation has updated its practices, policies and procedures to comply with the new law, before its anticipated commencement on 1 July 2021.
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Duty holders are required to continue operating under the Environment Protection Act 1970 (Vic) until July 2021.
Background to the Regulations and ERS
The draft Environment Protection Regulations (Regulations) and Environmental Reference Standard (ERS) for Victoria's new environmental laws to be introduced by the Environment Protection Act 2017 (Vic), as will be amended by the Environment Protection Amendment Act 2018 (Vic), (together, the New EP Act) were released for public consultation for 60 days, from 2 September 2019 to 31 October 2019. During this period, a total of 317 submissions were received.
Submissions most frequently sought change in respect of the standards for waste, contaminated land, noise, On-Site Water Management Systems (ie septic tanks), and also called for the ERS to better recognise Traditional Owners.
The remainder of this article focusses on the key areas of change arising from submissions, and the impact this may have on your organisation.
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.
Chapter 4 of the draft Regulations sets out how the waste duties in the New EP Act are to be met, and apply to businesses that generate, transport and receive waste. In the draft Regulations, a waste "designation" is equivalent to what is currently referred to as a waste "classification" under the existing laws.
The draft Regulations regarding waste received the most comment during the public consultation period. Generally, these submissions requested clarity, guidance or education to support compliance with the new waste framework. In particular, submissions identified issues with how waste was proposed to be classified and categorised, which would therefore impact on the ability to reuse or dispose of that waste.
For example, the submissions received in relation to the classification of PFAS soils, resulted in the contaminant thresholds contained within the subordinate legislation being removed. This change is consistent with EPA's policy on seeking to minimise PFAS in the environment where possible, but assessing cases individually and not against a rigid benchmark (especially given the science and understanding of PFAS contaminants continues to evolve).
Additionally, the draft Regulations prohibited mixing, blending or diluting priority wastes. This would have had the effect of limiting the ability to use waste in waste-to-energy projects or other reuse options. This would clearly have a detrimental impact as we transition to a net zero economy. Therefore the final Regulations now allow a duty holder to apply for a designation from the EPA to allow mixing etc of priority wastes. The EPA can impose conditions on the designation to ensure the appropriate management of the waste.
The draft Regulations did not require drivers to undertake training where transporting wastes that are dangerous goods. By comparison, the final Regulations require drivers to undertake training and to:
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undertake dangerous goods training;
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adhere to load restraint requirements; and
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keep records on board to inform emergency services in the event of an incident.
Organisations should make themselves familiar with these requirements and ensure their drivers are compliant with the Regulations.
Contaminated Land
As outlined in Edition 4 of our New Victorian Environment Protection Laws series New duties for the reporting and management of contaminated land (17 September 2018), the New EP Act and Regulations introduce two new duties on persons who are in management or control of contaminated land:
(a) a duty to manage contaminated land; and
(b) a duty to notify the EPA of "notifiable contamination".
The draft Regulations provided the detail regarding what is "notifiable contamination".
Overall, submitters found the draft regulations complex and sought clarity or guidance on how to comply. In particular, submissions expressed concern that the technical analysis required to determine if a person must notify EPA about contamination would lead to uncertainty on how to comply. While the technical detail remains (to reflect national and international standards and provide certainty and clarity across a broad range of contaminants), the EPA has stated it will provide greater clarity through future guidance materials.
In terms of the changes made, the final Regulations now limit notifiable contamination in relation to groundwater to where the impacted groundwater is used, or may be used, or discharges or is likely to discharge into surface waters. This change reflects concern that the thresholds for notifying groundwater and surface water contamination were very low and were disproportionate to the risk posed to human health.
Submitters also asked for clarity to be provided in relation to whether off-site contamination which is migrating onto a site is "notifiable contamination". The final Regulations have been amended from referring to a "contaminant in groundwater" to a "contaminant into groundwater", which could suggest that the initial act of contamination is what is notifiable, rather than the migration of already contaminated groundwater onto land under a person's management or control.
Permissions
The draft Regulations set out much of the detail about the permissions regime in the New EP Act . The activities requiring the three types of permissions – licences, permits and registrations – are prescribed under the Regulations. The draft Regulations set out further detail around the application and assessment processes for permissions, including:
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which type of permission will be required for particular activities;
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new activities that will now require a permission; and
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the application and assessment process for permissions.
Further detail regarding how activities will be regulated under the new permissions regime is explained in Edition 7 of our New Victorian Environment Law Protection Laws series How will activities be regulated under the new permissions regime? (17 October 2019).
Submissions received largely sought clarity on the new permissions regime and the process for the transition of existing approvals into the new scheme.
In terms of amendments which were made, the definition of 'project site' has been broadened in the final Regulations. This will enable the EPA, where appropriate, to issue a permit for lower-level contaminated soils to be contained or reused and appropriately managed across large scale infrastructure projects.
This change reflects concern that the previous definition would not allow the safe reuse and containment of lower-level contaminated soils within a major project extending across multiple sites.
The final Regulations include minor changes to align with the policy intent to generally retain existing exemptions. This includes a new regulation to exempt discharges or emissions to the atmosphere from specified modification activities from a development licence requirement. In addition the EPA will create a determination under section 48 of the New EP Act to exempt activities with discharges or emissions that are in accordance with certain requirements from the need for permissions.
This change reflects concerns that existing general exemptions were not translated to the draft Regulations which would have required many existing exempted activities to be licensed.
Noise
Changes have been made to the noise provisions of the draft Regulations in order to offer a more proportionate approach to risks to human health as a result of noise pollution from entertainment venues and events. In particular, exclusions are now included for some sources of noise in the assessment of unreasonable or aggravated noise in order to better support compliance for industry and other duty holders in emergency situations that require noisy equipment or infrastructure.
Additionally, the proposed final Regulations now apply noise limits for the new noise sensitive areas, including childcare centres, kindergartens, primary and secondary schools, only during their normal hours of operation. This will make it easier for entertainment venues and events to comply with the Regulations, with the effect that noise restrictions are more practical and proportionate.
Water
Submissions made in response to the draft Regulations also expressed concerns that the inclusion of "cooling waters" and "wash down" water in the definition of wastewater would place unreasonable limits on normal boating activities, and that the broad definition of "aquatic pest" could hamper agriculture and infrastructure unnecessarily by capturing species local to the area and which are not harmful. In response, changes have been made to the final Regulations to expressly:
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allow the discharge of wash down waters and cooling water from normal boating activities, providing that any risk is managed as far as reasonably practicable;
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exempt discharges of cooling waters from industrial processes if they are the subject of a permission under the new EP Act or Regulations and the permission holder complies with the permissions; and
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clarify that native and local species are not considered aquatic pests and are not required to be captured.
These changes clarify the obligations of vessel operators, and will make it easier for many vessel operators to comply without compromising the objects of the Regulations.
ERS
Changes made to the ERS reflect greater recognition of Traditional Owners. Submissions regarding the draft ERS commented that land standards should include an environmental value for Traditional Owner cultural values in order to match the Traditional Owner environmental value for water that was already included in the draft ERS.
Amendments to the draft ERS did not implement this change. Instead, the final ERS has been amended to add recognition of Traditional Owners to the ERS through the inclusion of a statement in the preamble. This preamble provides that, where relevant, the ERS should be considered and understood in the context of the Traditional Owners' unique status as descendants of Australia's first peoples and their spiritual, social, cultural and economic relationship with traditional lands in Victoria. This change is more significant than it may appear at first glance, as it has the potential to inform the interpretation and application of all parts of the ERS.
The Government has also indicated that it will consult with Traditional Owner groups and other stakeholders to develop an appropriate environmental value, indicators and objectives in a future update of the ERS.
For further information, please contact:
Jane Hall, Ashurst
jane.hall@ashurst.com
