Environment Protection Amendment Bill 2018 update

Since our previous legal update, the Victorian Environment Protection Amendment Bill 2018 (Bill) has passed both houses of Parliament with a single amendment, and is now awaiting assent from the Governor. The Government has declared that it aims to fully implement the Bill by July 2020¹.The Bill itself provides for a final implementation date of 1 December 2020².

Our previous update focused on the headline provisions introducing new environmental duties, an overhaul of the permissions regime, significant increases in criminal penalties and the introduction of civil penalties, including third party rights to commence civil proceedings.

In this update, we describe the new amendment and delve deeper into other aspects of the Bill, including:

• New compliance powers for the Environment Protection Authority (EPA) and authorised officers;
• EPA notices and site management orders; and
• Company officer liabilities.

The Victorian Greens sought to make two amendments to the Bill, only one of which succeeded.

The successful amendment changed section 140 of the new Act, which describes the duty for a person in management or control of priority waste to investigate alternatives to waste disposal. Priority waste is any industrial or municipal waste that is prescribed by the Regulations in order to eliminate or minimise the risks of harm to human health or the environment; to ensure that particular waste is managed in accordance with the Act; and to facilitate waste resource recovery³.

The amended provision now requires a person in management or control of priority waste to take all reasonable steps to identify and assess alternatives to waste disposal for the priority waste, including reuse or recycling, and, if the person in management or control is also the person generating the priority waste, to avoid the generation in the first place. This amendment was sought in order to ensure that the ‘alternative’ to waste disposal was not necessarily incineration⁴.

The Greens’ other amendment was in relation to the expenditure of the Sustainability Fund⁵. However, this proposed amendment was dropped after the Government provided commitments to ensure that the Fund would be utilised, and expenditure would be reported to Parliament.

The new Act will provide the EPA with a range of regulatory powers, from public notifications such as compliance codes, guidelines and position statements, to investigative powers such as serving an information gathering notice, and to more prohibitive powers such as issuing a range of notices and site management orders.

Authorised EPA officers will also have new powers, including the power to:

• apply to a Magistrate for a search warrant to enter premises, including residential premises, without consent;⁶
• compel the production of documents, or obtain responses to questions, during a search;⁷
• give directions to a person to do, or refrain from doing, any act the officer reasonably believes is required to address an immediate risk of harm to human health or the environment;⁸
• to use surveillance devices, such as drones, in its investigations.⁹

As in the current Act, obstruction of an authorised officer, including hindering, delaying or concealing a place or person, will attract criminal penalties.¹⁰

The current remedial EPA notices of pollution abatement and clean-up notices will be expanded to provide the EPA with a broader range of tools to manage risks of harm before, during and after pollution and contamination incidents occur. Notices will include:

• information gathering notices, requiring a person to provide information or documents, or to appear before the EPA;¹¹
• improvement or prohibition notices, requiring a person to do, or refrain from doing, an act in circumstances where the EPA reasonably believes there is a contravention or non-compliance with the Act, or a permission, or there is a risk of harm;¹²
• notices to investigate and environment action notices, where the EPA reasonably believes that a contamination or pollution incident has occurred, or industrial waste has been unlawfully deposited. These notices will require the person issued with the notice to investigate whether an incident has occurred¹³, and, if so, to take up clean up measures or mitigation steps;
• site management orders, which allow the EPA to take control over a site for a term it considers necessary, including indefinitely, in order to manage long-term contamination or pollution incidents.¹⁴ Management measures could include developing plans, installing infrastructure and regular monitoring and reporting requirements. A site management order applies to the affected land and remains on the title as a statutory charge;¹⁵
• non-disturbance orders, which the EPA can issue to the occupier of land to prevent disturbance or interference with infrastructure or land to facilitate enforcement of the Act.¹⁶

Non-compliance with an EPA notice can lead to both criminal and civil penalties.

There are two categories of breaches where a company officer will be deemed liable for a breach caused by their company.

In the first suite of breaches¹⁷, company officers will be deemed to have committed a breach where their company:

• causes a breach or aggravated breach, of the general environmental duty;
• breaches its duty to notify the EPA of a pollution incident;
• breaches its duty in relation to the deposit or receipt of industrial waste;
• provides false or misleading information to the EPA, either generally, or specifically in relation to industrial waste;
• fails to comply with prohibition, improvement or environmental action notices or site management orders; or
• fails to obtain a permission, or to comply with a permission condition.

For these more serious types of breaches, the onus will be on the officer to prove that they had exercised due diligence to prevent the company from committing a breach¹⁸.

In the second suite of breaches, the EPA must prove that the company officer failed to exercise due diligence in order for the officer to be liable for the breaches of the company¹⁹. These breaches include the failure to notify the EPA of contaminated land, the failure to manage priority waste, and the failure to comply with a notice to investigate.

These deeming provisions bring Victoria into line with similar provisions in other States and Territories, including South Australia²⁰, Queensland²¹, New South Wales²²; Western Australia²³;Tasmania²⁴; and the ACT²⁵.

The new Act will provide the EPA and its authorised officers with a range of enforcement tools that may involve significant compliance costs and liabilities for a range of companies. Combined with the introduction of environmental duties and the possibility of third party civil proceedings, the new regime will require companies and their officers to take proactive steps to identify and manage the risk of environmental impacts arising from their actions.

Please contact a member of our environment team if you would like further information on the implications of the new legislation for your business or would like a tailored briefing session on the Act.

We would like to acknowledge the contribution of Ming Kalanon in preparing this update.