Legal Insights

The Environment Protection Amendment Bill 2018 – the nuts and bolts

Thy Nguyen

• 20 August 2018 • 8 min read

Since our last update on the Government’s proposed reforms to the Environment Protection Act 1970, the Environment Protection Amendment Bill 2018 (the Bill) was passed by Parliament on 9 August 2018. This Bill represents the second phase of the Government’s substantial reforms to Victoria’s environment protection legislative framework.

The Bill represents a fundamental reform of the law relating to environment protection in Victoria and will form an amendment to the Environment Protection Act 2017, passed in 2017 to create the governance structure for the reformed EPA (new Act).

The key changes contained in the Bill are expected to commence operation no later than 1 December 2020, if not proclaimed earlier. This period allows time for the EPA to prepare a broad range of new statutory instruments and policies to replace those currently in force.

This update provides a high level summary of the key reforms that land managers should be mindful of.

Summary of key reforms relevant to Duty Holders

Topic	Key relevant changes	Why are the changes important?
Approvals	Development licences replace waste discharge licences and works approvals, and will apply to high risk and complex proposals. Permits will be used for activities which have a more standardised approval regime (med-high risk). Registrations can be automatically granted subject to standard approval conditions. Introduces ‘Environment Reference Standards’ (ERSs) that will identify ‘environmental values’ that specify the environmental condition and uses of the environment to be achieved or maintained. Introduces ‘Compliance Codes’ and position statements.	Councils and other duty holders will need to ensure compliance with ERSs. planning policy will need to be updated to reflect change from SEPPs to ERSs. local laws that reference existing EPA instruments will need to be revised during the transitional period before the new Act commences.
Environmental auditing	No longer multiple types of environmental audit. Changes to the current audit system by introducing a rapid and low cost ‘Preliminary Risk Screen Assessment’ (PRSA) prepared by an environmental auditor. EPA to endorse the PRSA. EPA may query the scope of the environmental audit. Scope of environmental audit will be contestable. Environmental audits may include recommendations, rather than conditions.	Increased use of Phase I assessments in planning, as a risk screening tool, which can be used as an alternative to complete environmental audit. Planning authorities are to receive preliminary risk screening assessments and will need to decide whether these warrant a particular response. VCAT review of decisions regarding the scope of environmental audits.
New duties	Introduces new duties to report on and manage contaminated land. Introduces a new ‘general environmental duty’ (GED).	Councils that own or manage contaminated land, will have positive duties to notify the EPA. EPA to develop central register of contaminated land. Land managers will need to update due diligence frameworks in light of the GED.
Compliance and Regulatory tools	Introduces ‘Better Environment Plans’ as 'voluntary pathway' to compliance. Introduces the concept of ‘Compliance Codes’ to identify, assess and manage risks for particular industries or activities. Introduces three-tiered 'Permissions' framework to replace current licensing and works approvals framework. Licences will be subject to five year reviews and will be given an expiry date (i.e. licences will no longer be granted indefinitely). Clean Up Notices and Pollution Abatement Notices are replaced by Improvement Notices, Prohibition Notices, Environmental Action Notices and Site Management Orders. EPA may transfer liability to comply with certain notices to a related body corporate.	New concepts will encourage more active, regular and consistent engagement between the EPA and councils to clean up sites managed by councils. Expanded rights to review statutory notices before VCAT. Soft regulation of premises which are not scheduled (e.g. service stations) will be proactive, rather than reactive. EPA’s powers to trace liability to related entities becomes stronger, and more in line with powers in other States. Councils, in the capacity as public land managers may be directed to take specified actions through site management orders and Gazetted Orders.
Environmental offences	Introduces new ‘community rights’ to empower community members affected by alleged breaches of new duties to seek direct action through a court and without the EPA’s involvement. Stronger penalties will be imposed to align with Victoria's Occupational Health and Safety laws and NSW's environment protection laws (waste dumping and littering). Reckless or intentional breaches of the GED attract a penalty of up to $634,000 and imprisonment of up to five years for an individual. For a body corporate a fine of up to $3.2 million will apply. Repeat dumping of waste may attract a term of imprisonment. Introduces a transitional ‘material harm’ offence to support the GED.	Stronger penalties will be imposed for reckless or intentional breaches of the GED including imprisonment. Increased focus on ‘suitably qualified person’ test. Criminal records may assume greater weight in licensing decisions.
Waste management	'Landfill levies' renamed as 'waste levies' which will be subject to annual indexation. Introduces ‘priority waste’ concept to replace ‘prescribed industrial waste’ (PIW).	'Priority wastes' subject to higher landfill levies, are expected to have greater potential for re-use. This may reduce the costs of landfilling difficult contaminants which cannot viably be recovered or re-used.

New duties and obligations

General Environmental Duty

The GED imposes a positive obligation on entities conducting activities that pose risks of harm to human health or the environment from pollution or waste. This means duty holders need to understand those risks and take reasonably practicable steps to minimise those risks.

The EPA will need to publish guidance on how it will exercise its prosecutorial discretion over the GED, given the significant penalties flowing from a contravention of it. However, the Bill identifies a range of measures that need to be considered, in deciding whether a contravention of the GED has occurred. These consideration are based on the tests applicable to the existing due diligence defence which is currently available only to corporate officers.

Aggravated or intentional contraventions of the GED will expose an individual to a maximum penalty of $634,000 and up to five years imprisonment. For a corporation the maximum penalty is $3.2 million.

Duties relating to pollution incidents

These duties will place a positive obligation on duty holders to proactively engage with EPA to deal with any pollution incidents. This includes duties to:

take action to respond to harm caused by a pollution incident
manage contaminated land
notify of contaminated land.

A ‘pollution incident’ is defined broadly, relative to definitions in some other Australian jurisdictions, but excludes noise. A ‘notifiable incident’ is defined to include a pollution incident that causes or threatens to cause material harm to human health or the environment or a prescribed notifiable incident.

The new Act also introduces a new duty to 'investigate alternatives to waste disposal'. This will require a duty holder who has the management and control of ‘priority waste’ to take reasonable steps to identify and assess alternatives to waste disposal. We anticipate that EPA will provide guidance on the criteria that must be met in order to meet this obligation.

Obligations relating to public infrastructure

The new Act gives the EPA the ability to direct councils to take particular actions on land or infrastructure it manages, to minimise risks of harm to human health or the environment from pollution or waste. This compulsion can be done by government gazette notice. Such actions can extend to:

taking specified action on the relevant land or infrastructure managed
taking into account a specified matter when managing land, managing or operating infrastructure or planning the management of land or infrastructure
complying with a specified document, code, standard or rule, subject to any modification specified in the order, when managing land, managing or operating infrastructure or planning the management of land or infrastructure.

Where to from here?

The Government’s intention is to adopt a new approach to environmental issues with a focus on preventing waste and pollution impacts as opposed to the current 'reactive' approach to managing those impacts after they have occurred. However, it is unclear at this stage how certain new concepts will be implemented. In time, EPA will provide guidance on several new concepts including on how: