Victoria now has new environment protection legislation – are you ready for the new regime?

Australia Publication July 2021

EP Land flow chart

The Environment Protection Act 2017 (Vic) (as amended by the Environment Protection Amendment Act 2018) (New Act) commences on 1 July 2021. As highlighted in previous updates, the focus is now on managing and preventing risks of harm to human health and the environment by positive duties and preventative mechanisms.

The New Act is broad in scope and the extent of the activities to which it will apply. That said, the extent of the application of the new duties and the levels of preparation and compliance required will vary depending on the nature of the operations and the risks posed to the environment and human health associated with pollution and waste. There will be many organisations already prepared or well advanced in their preparations for the commencement of the new legislation.

In our final readiness update, we provide a reminder of the key areas of focus for organisations to consider and implement when operating under the new environment protection framework in Victoria. These are:

  1. Environment protection duties – general environmental duty (GED), pollution incident duties and contaminated land duties
  2. Waste duties
  3. Permissions

Environment Protection Duties

General Environmental Duty

In our previous update we explained the nature and scope of the GED. We remind you that the GED requires you to take reasonably practicable steps to minimise risks to human health and the environment from pollution or waste. This means putting in controls which are proportionate to the risk. Consider whether you have an appropriate environmental management plan or environmental management system to assist in identifying and managing risks, and ensure your staff are trained in relation to the requirements of this plan or system.

Pollution incident duties

It is inevitable that even with the best risk controls, accidents and spills may still occur. The New Act contains two pollution duties – the duty to respond to harm caused by a pollution incident and the duty to notify the EPA of a notifiable event.

Our previous update sets out what the pollution incident duties require. In complying with the pollution incident duties, we recommend that your policies, systems and management plans incorporate the pollution incident duties and a process for identification, response and reporting, where required. While a pollution incident response plan isn’t mandated, we suggest you consider putting in place such a plan and ensure it addresses the guidance contained in EPA guidance Publication 1991 on responding to harm caused by pollution.

Contaminated land duties

Our previous update contained detailed guidance on the new contaminated land framework including the new duties related to management and notification of certain contaminants.

Since publishing our update, the EPA has released guidance on the duty to manage (Publication 1977) and the duty to notify (Publication 2008) which set out detail on matters such as how to meet these duties, assessing risk of harm, completing the notification process and EPA’s expectation on a person’s management response to notifiable contamination. These guidance documents are a must read for those in management and control of land which is or might be contaminated.

Waste Duties

The new regime shifts the previous focus from regulating primarily landfills to the broader waste supply chain. Our waste duties update provided details of the various waste duties and the obligations which apply to generators, transporters and receivers of waste. In undertaking your operations you should consider which of the new waste duties will apply and ensure you have processes in place to ensure compliance with the duties is achieved, particularly in relation to correctly classifying waste and ensuring it goes to a lawful place.

Permissions

Our permissions update highlighted that there are several activities which were previously unregulated by the EPA which now require a permission. The EPA’s portal for making applications for permissions is open from 1 July 2021.

What can you do to transition to the New Act?

While the commencement of the New Act has been delayed for 12 months, we expect that the EPA will assume organisations have had additional time to be ready and should be able to demonstrate steps taken to achieve compliance.

That said, it is not too late to make changes to your systems and procedures, to otherwise ensure your organisation is transitioning to the New Act and continue to make improvements as further guidance is released and the regime matures. In this regard we recommend you:

  • Keep up to date with the EPA’s guidance material and subordinate instruments – the EPA is continuing to release guidance material, and make determinations which will continue post 1 July 2021. Implementing the guidance material will be important in ensuring you are aware of, and can demonstrate compliance with the state of knowledge;

  • Consider whether you require a new permission – do you need a new permission to cover an activity or facility not previously regulated? Are you aware of the application requirements, process and timeframe for making the necessary application?

  • Consider whether you need to make a notification or put in place measures to manage contaminated land – ensure you are familiar with the specific circumstances, thresholds and substances which are notifiable and what the EPA expects in terms of managing contaminated land;

  • Prepare plans – ensure you have an environmental management plan or environmental management system which appropriately addresses the level of risks posed by your organisation; and

  • Document – ensure you are documenting the changes you are implementing and investigations which are being carried out to demonstrate steps taken to comply with the various duties.

Do you have a question, need some advice or a training workshop? Please contact a member of our team.



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