12 July, 2018
Introduced into Parliament on 18 June 2018, the Environment Protection Amendment Bill 2018 (Vic) (the Bill) is slated to repeal the current Environment Protection Act 1970 (Vic) and radically transform Victoria's current environment protection laws.
Underpinning the reformation is a fundamental shift in focus from reactive damage control to proactive prevention of pollution. Once passed, affected individuals and entities will be required to take reasonable steps to mitigate poor pollution and waste management practices so as to better manage risk to the environment and to human health.
The Bill will continue to be debated in Parliament over the month of July. If passed, it is intended to take effect from 1 July 2020, with transitional provisions to be introduced in the meantime.
Key Changes
Alongside increased maximum penalties and sanctions of more than $3 million for companies and up to five years imprisonment for individuals, the Bill contains a number of core changes which are anticipated to significantly impact current business practice. The new laws reflect the EPA's expanded objective to protect both the environment and human health, and bring Victoria's environmental duties and penalties in line with its stronger health and safety laws and environmental laws in other Australian states such as NSW.
1. General environment duty
A new general environment duty (GED) forms the cornerstone of the Bill, and will require individuals and entities to:
a. take reasonably practicable steps to eliminate; or
b. if elimination is not reasonably practicable, to take reasonably practicable steps to minimise, risks of harm to human health or the environment from pollution or waste.
Importantly, the GED will be criminally enforceable.
2. Contaminated land duties
The duty to manage contaminated land will place an obligation on individuals or entities in management or control of freehold or Crown land to minimise risk of harm to human health and the environment. This duty will include obligations to identify, assess, manage (including clean up where reasonably practicable) and notify affected persons of contamination. Costs of complying with contaminated land duties will be recoverable from the polluter.
The Bill also introduces an obligation to notify the EPA of contaminated land, bringing Victoria into line with similar duties in other states.
3. Waste management and waste duties
The new framework around reducing hazards from waste and supporting waste reuse, recovery and resource efficiency will include controls in regards to certain types of hazardous industrial waste and other "priority" waste. The Bill clarifies the responsibilities of those depositing, receiving and transporting waste.
Central to this framework will be the requirement to take all reasonable steps to identify and consider alternatives to waste disposal including reuse, recycling and resource efficiency.
In line with the EPA's current focus on controlling illegal dumping, penalties for repeat waste offences have been increased allowing courts to order individuals to serve up to two years' imprisonment in addition to initial fines.
4. Pollution incident duties
New pollution incident duties will include obligations to both:
a. take action in response to harm caused by pollution; and
b. notify relevant authorities of pollution incidents.
5. Three-tiered permissions framework
A new three-tiered permissions framework will introduce different controls for different levels of risk. These controls will comprise:
a. automatic registrations for entities posing significant risks, but for which simple, standardised controls are available;
b. permits for medium-high risk activities with low complexity; and
c. licences for custom and complex activities (including for research, development and demonstration activities) which require the highest level of regulatory control, due to potentially significant risks to human health and the environment.
Notably, unlike the licences available under the current law, the licences proposed by the Bill will not be indefinite and will be reviewed at least every five years.
The Bill also proposes to introduce a new tool for managing long-term risks on sites such as closed landfills and contaminated land to be known as "Site Management Orders".
6. Tiered audit system
The Bill will maintain the role of environmental auditors but introduce a more flexible and proportionate two-tiered audit system:
a. a quick, limited assessment involving a desk top study and site inspection to be known as a preliminary risk screen (PSR) assessment (similar to a "Phase 1" assessment); and
b. a more detailed environmental audit, proportionate to the risks involved. The outcome of an audit is an environmental audit statement and report, similar to the current regime.
Audits will continue to be required where there is a change to a more sensitive use of land.
7. Third party community rights
Members of the community will be able to apply directly to the courts (without any EPA involvement required) for orders to either:
a. restrain persons from engaging in breaching conduct; or
b. require persons to take specific mitigation or remedial action.
This new right will apply where a person has an interest in the matter or where the proceeding is in the public interest and the EPA has not acted.
8. Penalties and liability for offences
As noted above, the Bill will increase maximum penalties and sanctions to more than $3 million for companies and up to five years imprisonment for individuals.
Current liability of officers and related entities for offences committed by a company has been retained, and extended to related companies and persons with control over a company being wound up or that has been wound up in the last two years. A new "monetary benefit order" will also allow courts to require those who have benefitted financially from breaches of the Act to pay a fine equal to that benefit.
How this will affect you?
The proposed introduction of new duties and significantly higher penalties, together with a strengthened EPA, mean that greater attention will need to be given to environmental compliance than in the past.
Although the Bill has not yet been passed, business should nonetheless begin reviewing their environmental compliance and waste management plans and practices in preparation for the new laws.
For further information, please contact:
Meredith Gibbs, Baker & McKenzie
meredith.gibbs@bakermckenzie.com
