The Environment Protection Amendment Bill 2018

On 19 June 2018, the Victorian Government introduced the Environment Protection Amendment Bill 2018 (Bill) into Parliament. The Bill, if passed, will entirely repeal the Environment Protection Act 1970, and will be the most comprehensive environmental regulatory reform in Victoria for many years.

The Bill seeks to implement several key reforms arising from the Government’s response to the 2016 Independent Inquiry into the EPA (Inquiry) and follows the first tranche of reforms which established a new governance structure for the EPA in October 2017.

The Bill will establish a new regime for the regulation of the environment, management of contaminated land, pollution and waste with a key focus on prevention and minimisation of risk.

Some of the key reforms introduced by the Bill include:

• General environmental duty: a cornerstone recommendation arising from the Inquiry, this new enforceable duty would require all Victorians to ‘take reasonable steps to minimise risks of harm from pollution and waste’, similar to the preventative duties under workplace safety legislation.  Failure to comply with this general duty has the potential to attract both civil or criminal penalties. The maximum penalty for an aggravated breach of the general duty by a body corporate would be 20,000 penalty units (more than $3 million based on current penalty unit values).
• Duty to notify pollution incidents: where a pollution incident, such as a spill or leak, causes or threatens to cause harm to human health and the environment, there would be the duty to notify the EPA of the incident;
• Duty to take action: to restore an area affected by a pollution incident to a state which existed before the incident occurred, as far as reasonably practicable;
• Duties to manage and notify contaminated land: where land is contaminated, a person in management or control of that land would have the duty to minimise risks of harm to human health and the environment.  Where land becomes contaminated, a person in management or control would have the  duty to notify the EPA of that contamination; and
• Duties relating to industrial waste: to address unlawful depositing or disposal of industrial waste, there would be obligations on people who have management or control of industrial waste, including generators, producers, depositors, transporters and consignors.

New three-tiered permissions framework: which would apply to ‘activities’ rather than ‘prescribed premises’ and replaces Works Approvals and Licences with:

• ‘development licences’, ‘operating licences’, ‘pilot project licences’; and
• permits and registrations

which are intended to better manage risks of harm to human health and the environment.

• Expanded investigation and inquiry powers of the EPA including the use of modern surveillance devices under the Surveillance Devices Act 1999;
• Strengthening of penalties and sanctions: there would be higher maximum penalties (for example the current maximum penalty for polluting waters or land is 2400 penalty units or approximately $380,000 whereas under the new offence of engaging in conduct resulting in material harm to human health or the environment would attract a maximum penalty of 10,000 penalty units or approximately $1,585,000)), aggravated offences relating to material environmental harm and the general environmental duty, and the ability of Courts to take into account the economic benefits of non-compliance;
• Remedial notices: new categories of notices including improvement, prohibition and environmental action notices;
• Civil penalty regime: a new civil penalty scheme as an alternative to criminal prosecutions. Importantly, criminal proceedings would not be prevented by the commencement of civil penalty proceedings;
• Third party enforcement: in addition to the EPA, an ‘eligible person’ may seek civil orders to restrain or remedy a contravention of the Act, including contravention of the general environmental duty or non-compliance with a condition of a permission.  ‘Eligible persons’ are defined to be a person whose interests are affected by a contravention or non-compliance in relation to the application made or a person who has leave of the Court; and
• Better environment plans: the EPA may approve ‘better environment plans’, which would be voluntary agreements made with the EPA to achieve compliance with the Act.

• Environment reference standards: replacement of State Environment Protection Policies and Waste Management Policies with environment reference standards; and
• Compliance Codes and Position Statements would be introduced to provide practical guidance on duties and obligations under the Act and to assist in understanding the general environmental duty

• Contamination Assessment and Management: the current environmental audit process would be expanded to include a preliminary risk screen assessment to determine whether a full environmental audit is required, and if so, the scope of that audit.  The EPA would  also have the ability to issue Site Management Orders to deal with long-term management of contaminated (and closed landfill) sites; and
• Waste framework: the Bill provides for a tiered waste framework with new objects focused on waste reduction, resource recovery and resource efficiency underpinning the framework. 

The Bill was read for a second time on 20 June 2018, but still needs to be passed by both Houses before it comes into force. If passed, the Bill contains transitional provisions which will apply as the new regime comes into effect, with full implementation to occur by 1 December 2020.