Devil in the detail: Draft Environment Protection Regulations
By Maria Marshall & Thy Nguyen• 16 September 2019 • 8 min read
Victoria’s new environment protection laws are intended to commence in July 2020 and affect councils, land owners, land managers and in some instances, enforcement officers.
On 1 July 2020, Victoria’s new environment protection laws are intended to commence. The Environment Protection Act 2017 and the Environmental Protection (Amendment) Act 2018 (new EP Act) provide the new framework for environmental management in Victoria. Changes include new environmental duties, changes to how certain activities are approved, better access to environmental information and more effective investigation, enforcement and compliance.
The Environment Protection Regulations (Exposure Draft) (Draft Regulations), a draft Environment Reference Standard (ERS) and associated supporting documents are on public exhibition until 31 October 2019.
These draft documents contain important changes and prescribe further detail on the new EP Act, including for councils as land owners, land managers and in some instances, enforcement officers. They also provide guidance on how to meet the new obligations to manage, and report on, contaminated land and to comply with the new General Environmental Duty, created under the new EP Act.
This update provides a high level summary of the Draft Regulations and ERS, including key areas of change from the current regulations.
The ERS will replace State Environment Protection Policies (SEPPs) and Waste Management Policies (WMOs) as the benchmark for environmental values in Victoria. The ERS is a single instrument, containing a consolidated set of standards that identify environmental values to be achieved and maintained.
The ERS contains environmental values, indicators and objectives for four ‘elements of the environment’: air, noise, land and water. The ERS generally adopts the environmental standards from the relevant SEPPs, with some language changes and the addition of some additional indicators, such as a qualitative objective for odour, and new noise indicators based on five land category uses.
The Draft Regulations
The Draft Regulations are broken into 10 chapters addressing topics, including contaminated land, the new framework for permissions, waste management and environmental management (including noise and air), as well as administrative matters relating to offences, fees and transitional arrangements. The following outlines key changes of importance.
Contaminated Land (Chapter 2)
Guidance on thresholds for notification of contaminated sites, as well as identifying sites that are exempt from notification. The Regulations propose a number of different triggers dependent on risk of human exposure, location and type of contamination. The Regulations also authorise the EPA to make determinations on background levels of waste or a chemical substance, with either specific or general application, with the effect of exempting land below the thresholds from being contaminated land.
The Regulations also:
- identify general exemptions to the contaminated land notification requirements, including (amongst others) sites that have already been served with a notice by the EPA or that have been subject to an audit under the current Act
- prescribe that a management response, or proposed management response, be included when reporting notifiable contamination
- impose requirements for clean up of non-aqueous phase liquids.
The Draft Regulations enable councils and other land owners and managers to start identifying sites that may need notification or further investigation under the new Act.
Permissions (Chapter 3)
Schedule 1 of the Draft Regulations sets out the types of activities which will require one or more of the new permissions established under Part 4.2 of the new Act, as follows:
- development licences: for all activities currently requiring works approval and large waste and resource recovery facilities (WWRs)
- operating licences: for all activities currently requiring a licence, plus certain WWRs
- permits: activities that currently require an EPA or council permission under various powers, as well as certain WRRs, municipal landfills and selected other activities that previously did not require a permission
- registrations: selected activities currently excluded from requiring permission, along with dry cleaning businesses, selected WWRs and other waste storage and processing facilities.
Councils will continue their current role of issuing permits for construction, installation or alternation of on-site wastewater management systems (whereas all other permit activities applications will go to the EPA). Relevant matters for consideration, timeframes and reporting obligations are set out for this function. Chapter 8 of the Draft Regulations also give councils enforcement powers in relation to on-site wastewater management systems.
Chapter 3 of the Regulations also identifies:
- circumstances in which certain permissions must be refused
- exemptions for various activities from licence/permit requirements
- transitional provisions for permission holders.
The Draft Regulations (at Chapter 10) also set out transitional processes for some existing permissions and applications pending when the new Act commences. This part of the Draft Regulations also provides temporary exemptions for certain operating activities, permit activities and registration activities for a period of time following commencement of the new EP Act.
Waste Management (Chapter 4)
The Draft Regulations establish a tiered method for classification, transport and reporting of industrial and priority waste to replace the current prescribed industrial waste system. The new process includes establishing a pre-classified list (in Schedule 5 of the Draft Regulations) to cover most waste types, and introducing a Waste Classification Assessment Protocol (also on public exhibition).
The Draft Regulations also include:
- litter offences that were contained in the current Act but not incorporated into the new EP Act and provides that these offences will be enforceable by 'litter enforcement authorities', including councils
- controls in relation to recovery, re-use and recycling of used packaging materials (currently contained in the Waste Management Policy (Used Packaging Materials) 2012)
- requirements for councils to keep records of kerbside recycling collection services or other material recovery services and report to the EPA every year
- requirements for the EPA, when commenting on a draft regional waste and resource recovery implementation plan, to object if a proposed landfill site will extend into sensitive environmental areas specified in Schedule 8 of the Regulations.
Environmental Management (Chapter 5) and Environmental Audit Functions (Chapter 6)
Part 5 of the Draft Regulations addresses a variety of matters including:
- prohibited chemical substances (Part 5.1) – prohibits the processing, storing and use of specified chemical substances without prior notification and approval from EPA
- air (Part 5.2) – specifies obligations on manufacturers and suppliers in relation to air pollution, including in relation to the National Pollutant Inventory and specifies obligations in relation to Class 3 substances (which are listed in Schedule 4 of the Draft Regulations)
- noise (Part 5.3) – replaces SEPP N-1, SEPP N-2 and the Environmental Protection (Residential Noise) Regulations 2018 (in conjunction with the ERS) and establishes a Noise Protocol which sets out how to determine noise limits, background levels, effective noise levels and alternative assessment criteria for an alternative assessment location
- plastic shopping bag ban (Part 5.5) – prohibits the sale and provision of banned shopping bags and creates offences in relation to the ban
- emissions from motor vehicles (Part 5.6) – prescribes standards, limits, testing requirements and offences relating to vehicle noise or air emissions.
Part 6 of the Draft Regulations set out additional functions that may be undertaken by an environmental auditor, including calculation of financial assurance.
Enforcement (Chapter 10)
Part 8 of the Draft Regulations relates to enforcement and relevantly includes:
- proposed infringement offences and penalties (set out in Schedule 10)
- process for EPA to determine any estimates of monetary benefits in accordance with a protocol to be published on the EPA’s website
- offences relating to on-site wastewater management systems for enforcement by councils.
|Public consultation on Draft Regulations, ERS and associated documents||Until 31 October 2019|
|Development of new compliance and enforcement policy (C&E policy)||Late 2019|
|Finalisation of Draft Regulations||April 2020|
|Finalised C&E policy||April 2020|
|Development of requirements, processes and procedures for the new permissions framework (Permissions Framework)||April/May 2020|
|Education campaigns on implications of new framework||May 2020|
|Implementation of Draft Regulations and ERS||May 2020|
|Development of new or update of existing guidance materials||1 July 2020|
|Full transition of Permissions Framework||July 2021|
Maddocks is offering seminars to its clients to explain the implications of the Draft Regulations and other subordinate instruments in more detail. If you are interested in learning more about the reforms, please contact a member of our Environment Team.
Managing climate change-related risks in the financial system
By Patrick Ibbotson & Jessica Dorricott
Risks posed by climate change to the stability of the US financial system.
GDPR decision slaps down Privacy Shield and imposes strict conditions on Standard Contractual Clauses – implications for Australian organisations
Impacts for Australian entities who are either directly subject to the GDPR or receiving personal data from the EEA.
What is in a name? The disclosure of public servants’ names and contact details under FOI
The OAIC has issued a position paper on the disclosure of public servants’ names and contact details in documents.