25 June, 2018
Victorian Government introduces transformational Environment Protection Amendment Bill 2018 (Vic)
What you need to know
The Victorian Government introduced the Environment Protection Amendment Bill 2018 (Vic) into Parliament on 18 June 2018.
The Bill seeks to fundamentally change Victoria's environmental laws and will repeal the Environment Protection Act 1970 (Vic).
Some of the key changes introduced in the Bill include:
- the introduction of a general environmental duty to eliminate or minimise the risk of harm to human health or the environment;
- rights for members of the public to apply directly to the Court to enforce permissions under the Bill or restrain behaviours in breach of the Bill;
- a tiered risk-based approach to approvals to ensure ongoing regulatory controls are proportionate (to replace discharge licences); and
- the introduction of new duties in relation to contaminated land and pollution incidents, including notification obligations.
What you need to do
It is imperative that organisations operating in Victoria:
- understand the impact of the Bill on their operations; and
- consider what changes will need to be made to their practices and procedures to comply with this fundamentally changed regime.
What does this Bill do?
The Victorian Government introduced the Environment Protection Amendment Bill 2018 (Vic) into Parliament on 18 June 2018. It was read for a second time on 20 June, and is to be debated in late July 2018.
The Bill is the second tranche of major reforms to environmental laws in Victoria stemming from the Independent Inquiry into the Environment Protection Authority (EPA) completed in 2016. The Bill seeks to build on the amendments to the EPA's objectives and structure to be implemented by the Environment Protection Act 2017 (Vic) (commencing on 1 July 2018).
A detailed background about these reforms is contained in our suite of Environment Alerts about EPA reform: Public Inquiry into Victorian EPA—Opportunity for Major Reforms (21 May 2015); Recommendations of Public Inquiry into Victorian EPA (17 May 2016); Victorian Government releases its response to the independent inquiry into Victoria's EPA (20 January 2017); and Government introduces first Bill for overhaul of Victoria's EPA (16 June 2017).
The Bill proposes to repeal the Environment Protection Act 1970 (Vic) (EP Act) and therefore proposes a complete transformation of Victoria's existing environmental laws.
If passed, it is proposed that the changes contained in the Bill would take effect from 1 July 2020 (to give adequate transition time and to enable the development of required Regulations and Environmental Reference Standards (which will replace State Environment Protection Policies and Waste Management Policies)).
Introduction of a new general environmental duty
A cornerstone of the Bill is the introduction of a new preventative approach to environmental regulation (rather than managing pollution and its consequences after it has occurred, as is currently the case). Central to this is the introduction of a general environmental duty, which will replace the current absolute liability offences for pollution contained in the EP Act.
The general environmental duty requires that a person engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste eliminate or minimise those risks so far as reasonably practicable.
To determine what is reasonably practicable, regard must be had to:
- the likelihood of risks eventuating;
- the degree of harm that would result;
- actual and reasonable knowledge; and
- the availability, suitability and costs of methods to eliminate or reduce the risks.
In contrast to other Australian jurisdictions, both civil and criminal sanctions will apply to a breach of the general environmental duty. Increased penalties are also included in the Bill (for example, aggravated breach of the general environmental duty by a corporation has a maximum fine of A$3.2 million).
Community rights – third party right to apply to the court for orders to enforce and restrain
Members of the community will be able to apply to Court for an order:
- restraining a person from engaging in conduct that is in breach of a permission (see below) or contravention of a requirement or duty imposed by the Bill (for example, the general environmental duty); or
- requiring a person to take specific action (for example, to prevent, minimise or remedy the contravention or non-compliance).
This civil remedy will be directly available to persons whose interests are affected by the contravention or non-compliance.
Other persons will need leave of the Court. Leave will be granted if the application is in the public interest and the EPA has been asked to enforce and fails to do so within a reasonable time.
This is a fundamental change to environmental laws in Victoria. It will be the first time that members of the community will have a direct enforcement right against others. Minister for Energy, Environment and Climate Change Lily D'Ambrosio considers that this will increase environmental justice for all Victorians and bring Victoria into line with other Australian jurisdictions.
Permissions
Instead of current discharge licences, the Bill introduces a tiered risk-based approach to approvals to ensure ongoing regulatory controls are proportionate:
- Registrations – to be automatically granted with standard conditions for operations posing significant risks but where simpler and standardised controls exist;
- Permits – will follow a standardised assessment process for medium-high risk activities with low complexity; and
- Licences – to enable the development of customised conditions to manage complex operations posing significant risks. Licences will be reviewed regularly (at least every 5 years) rather than being granted indefinitely.
Current works approval requirements for the construction of certain plant and equipment will remain, but will be renamed "development licences".
Contaminated Land
The Bill introduces two new duties in relation to contaminated 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 so far as reasonably practicable. This duty will include: identification of contamination that the person knows or ought reasonably to know of; investigation and assessment; provision and maintenance of reasonably practicable measures to minimise risk of harm (including clean up); and provision of information to those who may be affected by the contamination.
- Duty to notify – a person in management or control of land must notify the EPA if the land has been contaminated with "notifiable contamination" as soon as practicable after the person becomes aware of, or reasonably should have become aware of, the notifiable contamination. Unless further definition is provided in Regulations (not yet drafted), notifiable contamination will be contamination for which the reasonable cost of action to remediate is likely to exceed A$50,000 (or any other prescribed amount). The threshold for notification has therefore been set very low.
If the EPA considers that long-term management of a site is necessary due to contamination, or there is harm or risk of harm to human health or the environment from pollution or waste, it may issue a site management order to the current owner or occupier of the site. The order is a statutory charge on the land and binds subsequent owners, occupiers or persons with management or control of the land for the time being.
Importantly, the "polluter pays" principle is still enshrined in the Bill, as the costs incurred by a person in complying with these new duties, or a site management order, can be recovered against the person responsible for causing or contributing to the contamination.
Pollution incidents
New duties are also introduced in relation to pollution incidents:
- Duty to take action to respond to harm – a person engaging in an activity which results in a pollution incident must, so far as reasonably practicable, restore the affected area to the state it was in before the incident occurred; and
- Duty to notify – a person engaging in an activity which results in a pollution incident that causes or threatens to cause material harm to human health or the environment must notify the EPA as soon as practical of the incident.
Numerous other changes
Given the Bill is 473 pages long, there are numerous other changes introduced! These include a 2-stage audit system, Better Environmental Plans (to support innovative and voluntary actions to protect the environment or remedy existing pollution), new waste and litter provisions, and new powers for the EPA in relation to its investigation, enforcement and compliance activities.
For further information, please contact:
Jane Hall, Ashurst
jane.hall@ashurst.com
