Victoria will have a new environmental regime following the passage of the Environment Protection Amendment Act 2018 (Vic), which will repeal the current Environment Protection Act 1970 (Vic) (1970 Act). It was originally expected that the new regime would come into effect on 1 July 2020, although the Act itself provides that it will come into operation on 1 December 2020 at the latest.
The Act introduces a markedly different environment protection regime to that contained in the 1970 Act. It is the most significant reform to Victoria's environmental protection regime since the introduction of environmental protection legislation in the 1970s. While there are a raft of notable changes, some of the more significant relate to the introduction of:
- a general environmental duty requiring people engaging in activities that may give rise to risks of harm to human health or the environment from pollution or waste to understand those risks and take reasonably practicable steps to minimise them; and
- a new duty to notify the Environment Protection Authority (EPA) when pollution incidents occur, and a duty to respond to harm caused by a pollution incident when it occurs.
A substantial amount of the operative detail sitting behind the new regime is yet to be finalised – including the classes of permissions required for activities and a range of documents setting out the practical steps that will need to be taken to comply with the new duties.
Business and industry has some time to prepare for the transition to the new framework. However, the extent of changes and the impact on day-to-day activities will be significant, particularly given the new licensing framework, the introduction of mandatory reporting obligations (including in relation to environmental incidents and contaminated sites) and the need to ensure that contracts and environmental management systems capture these new obligations. It is also important for business and industry to clearly understand what the general environmental duty means for them, and what they need to have in place to ensure that it is complied with.
In this article, we'll give you a general summary of the most significant changes. This will be followed over coming weeks with a series of articles in which we dive into the detail of the key reforms, highlighting what we know so far, and what steps should be taken to prepare for the new regime.
General environmental duty
A key reform in the Act is the establishment of a general environmental duty, which requires those undertaking activities that may result in harm to human health or the environment to take reasonably practicable steps to minimise risks. Any business breaching this duty will face substantial penalties of up to 2,000 penalty units for a natural person ($322,380.00 in 2018 dollars), or 10,000 penalty units ($1,611,900.00 in 2018 dollars) for a body corporate. Penalties of up to 2,000 penalty units ($322,380.00) would also apply to persons breaching the duty in the course of a business or undertaking.
Additional duties are imposed under the Act, including an obligation to notify the EPA when pollution incidents occur, and a duty to respond to harm caused by a pollution incident when it occurs.
The introduction of a general environmental duty is similar to the position under workplace health and safety legislation, and the concept borrows heavily from that regime. Businesses will need to ensure that their environmental compliance and management systems are updated to reflect the broad duty that will be imposed on them by the general duty.
Civil remedies for breaches of the Act
The introduction of a civil remedy provision provides third parties, such as community members and interest groups, with the ability to seek civil remedies for specific breaches of the Act. Before such parties can seek remedies, they must demonstrate that:
- their interests have been affected by the breach;
- they have previously requested the EPA to take action in relation to the breach and
- the EPA has failed to take action within a reasonable time of the request being made.
Enabling third parties to pursue civil remedies will add a layer of complexity and risk to companies and individuals undertaking activities that allegedly breach the Act. It increases the significance of having adequate and well-defined risk management measures in place, such as compliance systems and sound stakeholder identification and management practices.
Regulatory notices and orders
The Act provides for a range of regulatory notices, including improvement, prohibition, investigation, and environmental action notices, as well as site management orders.
Of particular significance, notices to investigate, environmental action notices and site management orders (which are similar in effect to clean-up notices currently issued under section 62A of the 1970 Act) may be served on non-occupying owners of a premises.
This addresses a point of some uncertainty arising from the current regime, as there is considerable doubt over whether non-occupying landowners can be lawfully issued with clean-up notices under the 1970 Act.
Approvals and licensing regime
The Act will significantly change the current regulatory framework governing EPA approvals and licences. It provides for a range of permissions (licences, registrations and permits) which apply to prescribed "activities" (as opposed to "premises" under the current regime).
Different permissions apply to activities with different risk profiles. This is aimed at ensuring that the application process is commensurate to the risk associated with a specific activity. The particular type of permission required for a specific activity is yet to be prescribed, and work is currently being done in addressing these more detailed elements of the new regulatory framework.
Changes to the environmental audit system will also be introduced. While there will be substantial changes to the terminology used, the new framework is ultimately aimed at achieving similar outcomes to the current regime, being a regulatory response that is proportional to risk.
Waste disposal regime
The Act introduces changes to the regulation of waste disposal, including a range of duties that apply to those who generate, produce, deposit, receive or transport industrial waste.
As with the general duty, these duties are both civil penalty and offence provisions. More stringent duties and controls will also apply to prescribed classes of "priority waste".
The introduction of the Act will significantly change the current environmental regime in Victoria. Work is now being done on preparing the next layer of regulatory instruments, including regulations, policies and guidelines. While the Act contains significant changes to the broad regulatory framework, much of the detail will be contained in the documents currently being developed.
Given the changing regulatory landscape, it is important for business and industry to actively take steps to understand what the new Act will mean for them. This includes understanding both its day-to-day impact, and also its broader strategic impact on environmental management systems and processes. For example, we expect that the introduction of the general environmental duty, along with a range of specific reporting obligations, will trigger a need for environmental management systems, process documents, procedures and manuals to be updated, if not overhauled. It will also require extensive staff training to be rolled out in due course.
Having systems and processes in place to ensure compliance with the new regime as soon as it commences will be critical, and work needs to begin now on identifying the key changes and understanding what they mean for you. We expect there to be little tolerance on the part of the EPA for failing to have proper compliance arrangements in place by the time the new regime begins in around two years' time, particularly given the relatively long lead-time between now and its commencement.
Future Insights articles will delve into more detail of the new Act, and we'll also keep you updated as the more detailed aspects of the regulatory framework are released.
All of this will help prepare you for the 2020 commencement of the new Act.
Stay tuned for more information.