The Environment Protection Act 2017 (Vic) incorporating amendments from the Environment Protection Amendment Act 2018 (Vic) (New Act) will introduce a new permissions framework. There are also important transitional provisions to assist in the transition to the New Act. In this legal update we examine the new types of permissions and activities not previously regulated as well as how the legal “transition” will occur in moving from the Environment Protection Act 1970 (Old Act) to “switching on” the New Act.
What are the new permissions?
The New Act creates a new tiered and risk-based permissions framework which correlates the risk of the activity regulated to the type of permission required. The new permissions are:
- Licences (highest risk activities)
- Permits (medium-risk activities)
- Registrations (lowest risk activities)
The types of permission required for a particular activity are listed in Schedule 1 to the Environment Protection Regulations 2021 (New Regulations) and the relevant application and assessment processes are also contained in the New Regulations.
How are existing permissions transitioned under the New Act?
The New Act provides a regime to ensure that existing permission holders will be “taken” to hold an equivalent new permission from 1 July 2021 which (for the time being) will be subject to the same conditions as the old permissions.
The table below sets out the old and new permissions:
|Research, development or demonstration approval
||Pilot project licence
|Section 30A emergency waste authorisation
||Section 157 authorisation for discharge or disposal
|Permit to transport prescribed waste or prescribed industrial waste
The EPA has 12 months from the commencement of the New Act (i.e. until 1 July 2022) to amend, revoke or alter the conditions on a “transitioned” permission to ensure that it is consistent with the requirements of the New Act. The permission holder will be able to request six months to comply with the amended or new conditions but it will not have review rights to challenge the changes to the conditions at the Victorian Civil and Administrative Tribunal.
What currently unregulated activities will require permissions under the new regime?
Under the Old Act certain scheduled activities require a permission to enable an entity to undertake that activity. The number of activities regulated will increase from close to 50 activities to approximately 78 under the New Act. As such, there are 28 activities that were not previously regulated which will require a permission.
The most significant activities not previously captured by the licensing regime are waste and resource recovery facilities. The kind of permission required for waste and resource recovery facilities will depend on the hazard level and the processing/production level.1 The table below sets out the new activities requiring a permission:
|Development Licence and Operating Licence
|| Development licence and permit
- E-waste treatment >500tpa
- Manufacturing of glass works
- Reprocessing of glass works more than 10,000 tpa
- Large volume Waste and resource recovery
- Municipal landfill servicing <5,000 people
- Medium Waste and resource recovery (both excluding and including combustible recyclable and waste material)
- Operating an animal industry, livestock saleyards or holding pen that deposits waste solely to land
- Conducting more than 6 outdoor concerts or entertainment events
- Containment of category D waste soil on project site
- Discharge of waste to aquifer
- Transporting reportable priority waste
- Supply or use of reclaimed wastewater, biosolids or reportable priority waste
- Temporary onsite waste treatment
- Onsite wastewater management systems
- Operating outdoor entertainment venue or event outside prescribed hours
- Small-scale waste and resource recovery facility including specified combustible recyclable waste material
- E-waste processing 500tpa or less
- Low volume organic waste processing
- Low-volume waste tyre storage
- Reportable priority waste other than where requires a permit
- Temporary storage of biomedical waste, asbestos, designated waste in certain circumstances
- Conducting commercial dry-cleaning
- Receipt of actual or potential acid sulfate soil for treatment or remediation
Applications for the activities above can be made through the EPA’s online portal which is expected to open for applications on 1 July 2021.
How are currently operating unregulated activities permitted to continue operating where they don’t have a permission on 1 July 2021?
If one of the activities above is currently being undertaken prior to 1 July 2021, the New Act and New Regulations allow a “grace period” for an application for the relevant permissions to be obtained as follows:
- For prescribed activities requiring a registration, you must apply by (and an exemption from the need to have a registration applies until) 1 January 2022.
- Where one of the activities above or any of the activities covered by the New Regulations requires a permission and the activity is not currently being undertaken, the permission should be sought from 1 July 2021 and before the activity commences.
What happens to existing remedial notices, undetermined applications or uncompleted environmental audits?
Where applications for old permissions are on foot, notices or directions are in force or an environmental audit is underway under the Old Act, the New Act provides transitional provisions for how those applications, notices or audits are to be treated once the New Act commences.
The table below sets out how applications, notices, exemptions and audits on foot will “transition” under the New Act:
|Old Act activity
||Effect of New Act
|Application for old permission where there is equivalent new permission not determined by EPA on 1 July
- works approval
- Section 30A authorisation
Application will be determined under the New Act
Will need to provide EPA with further information to decide the new application
|Application for old permission not yet determined by VCAT or still within timeframe to apply for application for review
||Application will be determined under the Old Act
|Application related to a licence not yet determined by EPA or VCAT
- amend a licence
- transfer a works approval or licence
- surrender a licence
- renew, amend, transfer or surrender a permit to transport prescribed industrial waste
|Application will be determined under the New Act
|Notices or directions
- clean up notice
- pollution abatement notice (PAN)
- post closure PAN
- minor works PAN
|Continue to operate under Old Act until 30 June 2023 (will then be replaced with a New Act notice)
- works approval exemption
- exemption from transporting prescribed waste if authorised under another state or territory law
- licence exemptions for certain premises
|Exemption for a period of 5 years although you should check to ensure there is an equivalent exemption applicable under the New Act
|Section 53X and 53V Environmental audits commenced but not completed
Can be conducted under Old Act or New Act and subject to certain conditions, the audit report will be taken to satisfy the New Act
The right to compensation where not provided with a statement under section 53ZE of the Old Act continues for 12 months
|Financial assurances required under section 67B of Old Act
||Financial assurance taken to be a financial assurance under Part 8.4 of New Act
|Waste classification issued under Regulation 11 of the Environment Protection (Industrial Waste Resource) Regulations 2009 in force on 1 July 2021
||Classification continues in force as a designation under the New Regulations until the earlier of: the date when it expires, is revoked by the EPA or on 30 June 2023
How can you prepare for the introduction of the new permissions regime and the transition to the New Act?
Before the New Act and New Regulations commence you can prepare by:
- Familiarising yourself with the new permissions and activities requiring a permission – as discussed above, there are approximately 28 activities which are not currently regulated by the EPA permissions regime. Do you currently undertake one of those activities or are you considering undertaking one of those activities? If so, ensure you understand the requirements of the permissions triggers and any exemptions which apply and apply to the EPA for a permission within the prescribed timeframes, if required.
- Familiarise yourself with the EPA’s guidance material - if you already hold a licence or are planning to undertake an activity, make sure you have read and applied where relevant the EPA’s guidance material such as the Permissions scheme – draft policy Publication 1799.1, the EPA’s Guidance on Operating licences Publication 1850.1 and the Changes to permissions in the waste and resource recovery sector Publication 1984 as well as the other publications which are being progressively released by the EPA.
- Consider whether engagement with EPA is required – existing licence holders should already have been contacted by the EPA about notices of amendment to licences. Have you considered whether the proposed notice of amendment accurately reflects your current and proposed activities? Do you need to seek clarification on any of the amendments proposed?
Do you have a question, need some advice or a training workshop? Please contact a member of our team.