Edit: The EPA Victoria issued a note stating that “Following a sitting of Parliament on Thursday 23 April, the legislation has been postponed and is intended to commence on 1 July 2021”.

 

These changes respond to the Independent Inquiry into the EPA. The Victorian Government proposes two phases of legislative reform to overhaul the Environment Protection Act 1970.

 

The first change occurred in October 2017 with the approval of the Environment Protection Act 2017 (the 2017 Act). The 2017 Act does not supersede the EPA Act 1970, rather forms part of it. There are two  major highlights in the 2017 Act:

• It clarifies the objective of the Authority to: “protect human health and the environment by reducing the harmful effects of pollution and waste”.
• It modernises the EPA’s corporate governance and strengthens its status as a science-based regulator.

 

The second phase passed Parliament in August 2018 and will be valid from 1 July 2020: the Environment Protection Amendment Act 2018 (the Amendment Act).

What can we expect from the Amendment Act?

• The introduction of a General Environmental Duty (GED)
• Implementation of three Permission tiers
• A Waste Management framework
• A more flexible approach towards Environmental Audit
• Implementation of the Site Management Orders Tool
• More effective investigation, enforcement and compliance
• Increasing penalties and strengthening sanctions.

Introduction of a General Environmental Duty (GED)

“A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.”

 

• The GED is focused on preventing harm and closely resembles the duty under the Queensland Environmental Protection Act 1994, which states at Section 319: “A person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm (the general environmental duty).”
• Introduces the concept of “reasonably practicable”.
• Requires duty holders to take reasonably practicable measures with the aim of mitigating risks to human health and the environment originating from pollution and waste.
• The GED is fairly similar to the Risk Management framework that assesses a likelihood of a risk and its impacts while being centred around minimising the risk of harm.
• Compliance Codes will provide guidance on how to comply with the GED requirements.
• The overarching goal is that Victorians will be less likely to be impacted by environmental disasters, pollution and waste.
• A breach of the GED could lead to criminal or civil penalties.

How can one comply with the GED?

 

The Victoria EPA Website states that it’s a simple three-step process:

Implementation of three permission tiers

The Amendment Act introduces a new three-tiered permissions framework allowing proportionate controls to be applied based on the nature of the risks.

Registrations: granted automatically to companies whose activities do pose risks but existing controls within the sector are available.

Permits: applicable to medium-high risk activities with low complexity requiring more rigorous assessment processes.

Licenses: aimed at complex activities needing the highest level of regulatory control to manage significant risks to human health and the environment. Licenses will no longer be granted indefinitely.

Waste management reforms

Waste Management: The GED will require waste producers to identify and implement reasonably practicable means to minimise the risks associated with the management of wastes.

Priority Waste Duties: introduction of tailored controls for hazardous industrial waste.

Industrial Waste Duties: aiming at ensuring the waste is not illegally dumped. This involves having a lawful place for dumping, authorised receivers and reasonable steps for waste transporting.

Litter: increased penalties for littering that are easier to enforce.

Contaminated Environments: provision of appropriate measures for managing contaminated land.

The Act also establishes a new duty to notify of contaminated land.

A more flexible approach towards Environmental Audit

Preliminary risk screen (PRS) assessment: a straightforward and standardised assessment of significant contamination risks rapidly and at lower costs for the companies.

Scaled audit: a more focused audit resulting in remedial action being taken to manage risks to human health and the environment posed by a site or industrial activity.

This approach aims at ensuring that locations that do not have major pollution risks can be more easily assessed.

 

More effective investigation, enforcement and compliance

 

 

Increasing penalties and strengthening sanctions

The Environment Protection Amendment Act 2018 will increase penalties for environmental offences from those in place now. This will bring the penalties into line with comparable laws.

The Environment Protection Amendment Act 2018 will take into consideration the significance that harmful impacts can have on human health and the environment. Fines are increased in comparison with those in place now and imprisonment may apply.

Some of the penalties will be related to:

• Breaching of the GED
• Intentional or reckless breach of the GED that results in material harm
• Illegal dumping of industrial waste (deemed to increase)
• Repeat illegal dumping offenders that are not deterred by financial penalties will also be able to be imprisoned.

In addition to criminal penalties, the Act also provides a civil penalty scheme which will allow EPA to take more timely and proportionate compliance action for moderate breaches.

References

Acts administered by EPA. (2018, August 29). Retrieved March 25, 2020, from epa.vic.gov.au/about-epa/laws/acts

Environment. (2019, December 17). Environment Protection Amendment Act 2018. Retrieved March 25, 2020, from https://www.environment.vic.gov.au/sustainability/environment-protection-reform/ep-bill-2018

Environment. (2019, December 17). Prevention. Retrieved March 25, 2020, from https://www.environment.vic.gov.au/sustainability/environment-protection-reform/ep-bill-2018/prevention

Environment Protection Amendment Act 2018 – Fact Sheet. Retrieved March 25, 2020, from https://www.environment.vic.gov.au/__data/assets/pdf_file/0019/334450/Factsheet_Environment-Protection-Amendment-Act-2018.pdf

General environmental duty. (2019, May 17). Retrieved March 25, 2020, from https://ref.epa.vic.gov.au/about-us/response-to-epa-inquiry/general-environmental-duty

Queensland Legislation (1994). Environmental Protection Act 1994. Retrieved April 19, 2020 from https://www.legislation.qld.gov.au/view/html/inforce/current/act-1994-062#sec.319