COVID-19: The Victorian Government’s decision to postpone the implementation of the Environment Protection Amendment Act 2018 means more time for industry and businesses to adjust

24 April 2020

The Victorian Government has passed emergency legislation in response to the COVID-19 pandemic.1 As a part of its reforms, the Government have sought to delay the implementation of the Environment Protection Amendment Act 2018 (the Act) until 1 July 2021, allowing business and industry to adjust to the impacts of the COVID-19 pandemic. The Act will see significant changes for environmental regulation in Victoria and it is integral for businesses to ensure that they are well prepared for the new scheme.

Environment Protection Amendment Act 2018

The Act marks a historic and significant departure from the scheme under the Environment Protection Act 1970 and sees the Environment Protection Authority (EPA) strengthened with a robust selection of regulatory powers.

Importantly, the Act introduces a General Environmental Duty (GED) which requires that all Victorians (both industry and individuals) must take reasonably practicable steps to prevent and minimise the risk of harm to human health and the environment. Unlike the previous legislation, the GED shifts the onus onto landowners and the community to identify risks and control them proactively. The practical effect of this is that the EPA will now be able to intervene, not only when an incident has occurred, but when there is an uncontrolled risk, and pursue action accordingly.

General environmental duty

The GED is broadly modelled on the general duties under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and lies at the centre of the Act. The GED creates a positive obligation on landowners and community members to manage risks to human health and the environment.

The Act provides some guidance on activities that will trigger a breach of the GED:

  • Failure to use and maintain plant, equipment, processes and systems in a manner that minimises risks of harm to human health and the environment from pollution and waste;
  • Failure to use and maintain systems for identification, assessment and control of risks of harm to human health and the environment from pollution and waste;
  • Failure to use and maintain adequate systems to minimise the harmful effects to human health or the environment from pollution or waste if a risk eventuates;
  • Failure to ensure that all substances are handled, stored, used or transported in a manner that minimises risks of harm to human health and environment; and
  • Failure to provide information, instruction, supervision and training to any person engaging in the activity to enable those persons to comply with the GED.

Additionally, the Act provides some guidance on factors the EPA will consider when determining what is ‘reasonably practicable’ in the circumstances to prevent and minimise the risk of environmental harm:

  • The likelihood of the risks eventuating;
  • The degree of harm that would result if those risks eventuated;
  • What the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks;
  • The availability and suitability of ways to eliminate or reduce those risks; and
  • The cost of eliminating or reducing those risks.

Breach of the GED will attract heightened penalties under the Act, with the EPA open to pursue both criminal penalties and, notably, now civil penalties too. Civil penalties offer the EPA an alternative route to seeking criminal conviction, with a lower evidentiary burden and standard of proof. Breach of the GED could lead to civil penalties of up to $1.6 million and up to $3.3 million for an intentional or reckless breach. Alternatively, criminal conviction for intentional or reckless breach of the GED could attract a penalty of up to five years’ imprisonment.

Organisations which are already aware of and work under their obligations under the OHS Act and Regulations should develop and pursue a similar strategy to meet their GED.

New duties for contamination, pollution incidents and industrial waste

In addition to the GED, the Act introduces a new scheme for the regulation of contamination, pollution incidents and waste management. Specific duties under the Act include:

  • Duty to manage contaminated land: creates obligations on a person who manages or controls land to identify, manage risks and notify affected parties with respect to contaminated land;
  • Duty to notify of contaminated land: creates an obligation on a person who manages or controls land to notify the EPA of contaminated land as soon as practicable after discovery if there is a risk it will be harmful to human health or the environment;
  • Duty to take action & respond to pollution incidents: if a pollution incident has occurred by result of an activity (act or omission) and it is likely to cause harm to human health or the environment, a person must take reasonably practicable steps to restore the affected area to the state it was in before the pollution incident occurred; and
  • Duty to notify the EPA if the pollution incident is a ‘notifiable incident’: a notifiable pollution incident is one which causes or threatens material harm to human health or the environment.

EPA permissions & notices

Under the Environment Protection Act 1970, only specific activities are regulated under an EPA Licence. The Act will see a broadening of EPA Permissions and the introduction of ‘Registrations’ and ‘Permits’ for activities of different risk levels. These permissions will be subject to regular review and unlike the previous scheme, will not operate indefinitely.

Current licence and permit holders should note that their permissions will transition to the new terminology:

1970 Act 2018 Amendment Act
Section 19B Works Approval Development Licence
Section 19D Research, Development or Demonstration Approval Pilot Project Licence
Section 20 Licence Prescribed new permission
Section 30A Emergency waste authorisation Section 157 authorisation
Section 53F Permit to transport prescribed waste or prescribed industrial waste Prescribed new permission

The Act also sees the creation of a suite of additional notices the EPA may issue, including improvement notices, prohibition notices, investigation notices, management orders and non-disturbance notices. Most notably, the EPA may now issue an Environmental Action Notice (previously under a Clean Up Notice) against not only a polluter or occupier of the polluted land, but against current or past owners of the land. This sees a broadening of the EPA’s discretion in finding the appropriate party to pursue and expedite the remediation of the pollution.

Planning – Audits and environmental audit overlay

Section 53X and Section 53V Audits have been replaced under the new regime. The Act sees the introduction of a Preliminary Risk Screen (PRS), which will be an initial assessment used to determine whether a site is suitable for proposed use. The PRS is intended to provide an economical approach to determine apparent contamination issues. If the site is not suitable, a further and more extensive audit will be recommended (more akin to the audits under the previous regime).

This change is expected to assist land owners, tenants and developers, by using an assessment methodology commensurate with the nature and magnitude of the risk. A number of VCAT cases have indicated that a full audit is not necessary where some preliminary assessment and targeted clean up or management is suitable. It will also assist  in circumstances where an audit is triggered for use and/or development on strata titled land, as was the case in Almia Pty Ltd v Port Phillip CC (Red Dot) [2020] VCAT 163 as discussed in our previous article.

Separate to the Act, Ministerial Direction 19 under the Planning and Environment Act 1987 (which came into effect in October 2018) requires planning authorities to seek early advice from the EPA on strategic planning and planning scheme amendments. Additionally, due to the changes under the Act, Ministerial Direction 1, which outlines the requirements surrounding environmental audits, will likely be revised.

Other notable changes:

  • Increased Investigative Powers: EPA Authorised Officers have strengthened powers to enter premises for investigation. Authorised Officers now have the capability to access search warrants, modern information gathering notices and the Surveillance Devices Act;
  • New Rights for Community Members: Community members directly affected by breaches of the Act will be able to seek compensation for injury, loss or damage that has occurred as a result of the non-compliance;
  • New Rights for Interested Parties: Interested parties that are not directly affected by a breach of the Act are allowed, in specific circumstances, to seek enforcement of the Act;
  • Third Party Right to Review: Third parties, including community members, whose interests are affected by a decision regarding the issue of a development licence and the removal of the suspension of an operating licence now have a right to apply for review of these decisions; and
  • Corporate liabilities: The EPA will also now be able to navigate complex corporate arrangements and attribute liability to parent or related entities. Additionally, the Act allows the EPA to pursue company directors who fail to exercise proper due diligence to prevent the commission of an offence under the Act.

Commercial considerations

Are your internal policies up to date?

Organisations should evaluate their reporting procedures and their delineation of roles and responsibilities to guarantee that their processes ensure compliance with the Act. You should also review your current permits and licences, to ensure that you are aware of your obligations under the new scheme.

Are your employees aware of the greater burden posed by additional duties under the Act and the GED under the Act?

Education sessions are integral to informing all employees and contractors of the heightened burden and penalties under the Act. It is also important to revaluate how your organisation distributes its risk for environmental incidents.

Is your organisation ready to respond to an environmental incident in a compliant way?

Establishing a comprehensive policy for responding to critical incidents will ensure that your organisation minimises its environmental impact and complies with the Act.

James Lofting, Partner, Mark Bartley, Partner, David Vorchheimer, Partner, Karmen Markis, Associate, Shantanu Joshi, Graduate and Rebecca Richards, Graduate.

  1. COVID-19 Omnibus (Emergency Measures) Bill 2020

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