The Environment Protection Act 2017 (Vic): Reflections and insights on the first year of operation

The shift toward prevention under the new EP Act framework

A fundamental tenet of the EP Act is that environmental protection be achieved through a preventative, risk based approach, where harm and potential harm to human health and the environment must be eliminated, or if not eliminated, minimised so far as reasonably practicable.

The requirement to minimise risk is embodied in the general environmental duty (GED) in section 25 of the EP Act. The GED captures a large group of duty holders and is broad in its scope.  Unlike other Australian jurisdictions, the GED is an enforceable duty through civil and criminal penalties, although we are yet to see proceedings commenced in relation to non-compliance with the GED.  Given risk minimisation under the new EPA Act is a new concept for some duty holders, the EPA’s initial focus has been on assisting duty holders to be more informed about the requirements of the GED (and other new duties) and how to comply.

In our experience, many of the lessons from the occupational health and safety legislative framework (which has a similar preventative risk based approach) have assisted in illuminating the new provisions of the EP Act, and will continue to do so as the regime develops over time. This is particularly the case given the concept of “reasonably practicable” (derived from the OHS regime) is applicable to many of the new duties including the GED and encompasses greater flexibility in how a duty is met. We expect that there will continue to be a dynamic evolution of the standard expected to comply with the duties as the standard of knowledge evolves.

Other new duties in the EP Act relating to waste and contaminated land have generated many queries from duty holders, seeking to understand the application, implications and compliance requirements of these duties, particularly relating to how the EPA as the regulator expects compliance to be achieved.   We anticipate that as implementation of the EP Act matures, the state of knowledge grows, and duty holders and the EPA alike become more familiar with the requirements, there will be higher expectations for compliance.

Utilisation of new enforcement tools and commencement of regulatory action

The past 12 months have seen the EPA take to its new regulatory function, with full use of the new compliance and enforcement powers and tool kit afforded to it.

Among the new regulatory powers exercised by EPA have been its notice powers, which have been exercised at high frequency, as part of the EPA’s responsibility to monitor and enforce compliance with the GED and other duties imposed by the EP Act. The notice powers contained in the EP Act added to the types of notices that could be issued under the now repealed Environment Protection Act 1970 (1970 Act). Under the EP Act, the EPA has the power to issue a range of information gathering and compliance notices, including:

• waste abatement notices (s 121);
• waste information gathering notices (s 127);
• information gathering notices (s 255);
• notices to investigate (s 273);
• environmental action notices (s 274); and
• non-disturbance notices (s 278).

The EPA also now has the power to issue the following sanction notices:

• remedial notices, including:
  • improvement notices (s 271);
  • prohibition notices (s 272);
  • notices to investigate (s 273); and
  • environmental action notices (s 274); and
    
• infringement notices (s 307);

The EPA recently released figures on its regulatory action for the 2021/2022 financial year (ie following the EP Act’s commencement) which highlight the take-up of the EPA’s new enforcement and compliance measures.¹

We have also observed a number of trends involving the EPA’s use of notices and evidence gathering tools to achieve compliance with the GED and other statutory duties, including:

1. Use of intelligence gathering tools: the EPA has used new and emerging technology to assist in gathering of compliance information and evidence. We have observed in the context of duty holders who have large, complex sites with locations difficult to reach in person, the use by the EPA of drones to take images and conduct aerial surveys.
2. Use of Notices to Investigate as a pre-cursor to Environmental Action Notices: In the past year EPA has often used its new notice powers in a staged manner. This has included the issuing of notices to investigate (NTI) to obtain further information (where it suspects there may be grounds to issue an environmental action notice (EAN) to require clean up or remediation in the future, before actually issuing the EAN. The issuance of NTI has arisen in the context of suspected contaminated land to gather more information about the nature and extent of contamination as a precursor to an EAN. Interestingly, there are no cost recovery provisions for compliance with a NTI unlike with an EAN, which is often the time when significant costs may be incurred to undertake intrusive environmental assessments or investigations.
3. Use of Information Gathering Notices: there appears to be a high volume of information gathering notices being issued by the EPA to monitor compliance with permissions, particularly operating licences, as well as other entities and persons subject to statutory duties such as the GED. Again, the purpose of these notices appears to be to determine whether further investigation or enforcement is warranted before further action, such as issuing remedial notices, is taken.
4. Use of Improvement Notices: Improvement Notices are a tool which can be deployed in a wide variety of circumstances. We have seen improvement notices being used to have duty holders take action to comply with the duty to manage contaminated land, to comply with conditions imposed on permissions, or where the EPA considers there is a risk to human health or the environment.
5. Replacement of notices issued under the 1970 Act: Notwithstanding the transitional provisions in the EP Act which enable a notice or direction issued under the 1970 Act (eg a Clean Up Notice) to remain on foot for 2 years after the EP Act’s commencement (ie until 1 July 2023), the EPA has been proactively replacing “old” notices with “new” ones in the first 12 months, particularly where there are ongoing or long term timeframes for compliance.

What's ahead for the next 12 months?

In the next 12 months, some transitional arrangements will come to an end and some remaining provisions will commence operation under the EP Act, including.

• Certain transitional provisions in the EP Act ensured that permissions granted under the 1970 Act could continue to have effect under the EP Act. From 1 July 2021, the EPA has had the power to amend, revoke or alter the conditions for these “transitional permissions”. The EPA has engaged with all pre-1 July 2021 licence holders to review their permissions and update the permissions to ensure they accord with the EP Act. This power ceases to have effect from 1 July 2022.
• From 1 July 2022, s 308 of the EP Act takes effect. This provision, which empowers third parties to seek remedies for contraventions or non-compliance with provisions of the EP Act, by commencing civil proceedings in the Magistrates Court, County Court or Supreme Court. From this date onwards, entities subject to duties and obligations under the EP Act should take into account the risks of potential third party proceedings in their decision-making and attitude towards compliance.
• Additionally, under the Environment Protection Regulations 2021, from 1 July 2022, a person “in management or control of land on which [an] on-site wastewater management system is located” is required to notify the relevant local council as soon as practicable once the person becomes aware or “reasonably should have been aware” that the system poses a “risk of harm to human health or the environment or is otherwise not in good working order”.²

In terms of future trends, we expect to see the EPA enforce non-compliance with the GED for the first time, either through civil penalty proceedings and/or prosecution. It is also conceivable that more proactive enforcement by the EPA will continue, given it has a new environmental crime branch, with increasing use of its information sharing powers with other regulators (eg Councils and WorkSafe), and conducting more inspections and use of its enforcement tools.

The EPA has indicated it will have several key focus areas to improve compliance and environmental and human health outcomes, including:

• End of life decommissioning/product stewardship;
• Handling of used tyres and other materials subject to COAG bans;
• Pollution of waterways;
• Waste pollution;
• Agricultural waste;
• Fire prevention, particularly at high risk sites; and
• Priority harms, namely activities that may involve material harm to human health or the environment.

If you have any questions or are seeking advice relating to the EP Act, please contact a member of our team.

The authors acknowledge the contribution of Edward McCombe, Lawyer in assisting with the preparation of this legal update.