In 1971, the Victorian EPA was established under the Environment Protection Act 1970 (Vic) (EP Act). It was the second EPA to be established in the world. On 2 December 1970, the first EPA was established in the USA.
Now 47 years after the inception of the EPA, the Environment Protection Act (Amendment) Act 2018 (Vic) was passed by the upper house on 9 August 2018 and lower house on 23 August 2018. This Act follows the report of the Independent Inquiry into the EPA in March 2016 and the State Government’s response to that report in January 2017. There are a large number of changes to the EPA and its powers that you and your clients need to know about if you practice in the area:
- Risk-based regulation: The Act represents a highly significant shift to a ‘risk based’ approach to regulation rather than simply managing the impacts of pollution on segments of the environment through the grant of works approvals and conditions on licences.
- Public health: While the purposes of the Act are almost identical to the purposes of the EP Act, there is a shift towards human health. For example, the new principle of conservation requires biological diversity and ecological integrity to be protected for purposes that include the protection of human health.
- Governing body: The first phase of reform has already been implemented by passage of the new Environment Protection Act 2017 . Since 1 July 2018, the EPA has a new Governing Board. The statutory role of Chief Environmental Scientist was also created.
- Mandatory reporting: The Act creates a new duty to notify pollution incidents as soon as reasonably practicable and a duty to take action to respond to harm caused by a pollution incident and to notify certain contamination.
- Corporate veil: The Act provides power for the EPA to direct a notice to a related or ‘associated’ entity over which the body corporate had control if the entity is being wound up or it has failed to comply with a notice from the EPA. Exercise of that power is subject to a test that requires knowledge, a position of influence and a failure to exercise due diligence by the associated entity.
- Clean up powers: The EPA may take action in response to immediate or serious risk of harm to human health or the environment including conducting a clean up. The EPA may make a claim on a financial assurance to cover the costs of the clean up.
- Cost recovery powers: The EPA may recover its reasonable costs in relation to issuing notices including improvement notices, prohibition notices, environmental action notices or site management orders. The costs are recoverable against a person who the EPA reasonably believes caused the circumstances. Reasonable costs include legal costs. Unrecovered costs may become a charge on the land and the EPA may lodge a notice of that charge with the titles office which is required to be noted in the Register.
- Third party rights: Third parties whose interests are affected by a contravention or non-compliance or who have been granted leave of a court may take action if the EPA has not taken enforcement or compliance action. A court may make an order restraining a person from engaging in specified conduct or requiring specific action to be undertaken if the court considers appropriate. Interim orders may also be made.
- Compensation for third parties: A court may make a compensation order requiring a person to pay compensation for injury, loss or damage and costs incurred by the interested third party.
- General environmental duty: A breach of the general environmental duty may incur a penalty up to 10,000 penalty units (currently $1,611,900) for a body corporate or 2000 penalty units (currently $322,380) for a natural person. The general environmental duty requires a person engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste to minimize those risks so far as reasonably practicable. A breach of the general environmental duty in the course of conducting a business or undertaking is an indictable offence. Multiple or aggravated breaches of this duty attract higher penalties – currently up to $3,223,800 for a body corporate.
- Development licence: Works approvals are replaced with ‘development licences’ for ‘development activities’. A requirement to hold a development licence is triggered for construction or installation of plant or equipment or development of processes or systems for a prescribed development activity. Certain modifications to plant, equipment, processes or systems which may create a risk of material harm to human health or the environment from pollution or waste may also trigger a requirement to hold a development licence. This reform is coupled with a new definition of environment.
- Definition of environment: The old concept of ‘segments of the environment’ is replaced with a very broad definition that includes climate, water, land, atmosphere, sound, odour, taste, plants and animals and social aesthetics.
- Operating Licences, Permits and Registrations: The Act requires an operating licence for a prescribed operating activity and a permit for a prescribed permit activity. A new concept of a pilot project licence is also introduced. A registration activity triggers a requirement for authorization. Refusal triggers a right of appeal to VCAT.
- Licence reviews: Operating licences must be reviewed after 4 years. Conditions of the licence may then be varied by EPA or the licence revoked.
- SEPPs: SEPPs are replaced with environment reference standards which identify environmental values.
- Waste: The regulation of waste emissions requires detailed review by operators and industry because it represents a transformative change to waste regulation in Victoria.
- Audits: A new tool called a preliminary risk screen is introduced to define the scope of environmental audits. Environmental auditors have new duties to notify the EPA in relation to imminent danger or an imminent state of danger to human health or the environment .
- Planning permits: The Act requires a development licence applicant to provide a copy of a planning permit or the planning scheme amendment to the EPA as part of the development licence application. In that sense, planning permits are intended to precede the grant of EPA licences.
- Public Register: A new Public Register is created. This is intended to contain details of enforceable undertakings, licences, permits or registrations that have been issued by EPA and conditions that attach in addition to the term. The register is to be made available for inspection by the public. Exemptions for persons or classes or persons may be applied for.
- VCAT Review: Rights of review to VCAT lie from decisions by the EPA to issue a notice such as an improvement notice; a prohibition notice; a notice to investigate; an environmental action notice or an abatement notice. Further, a large list of decisions by the EPA under the Act are reviewable to VCAT including on applications for permits or authorisations, requirements to provide environmental assurances. An application for review of a reviewable decision must be made within 15 days. Limited grounds of review apply to certain decisions.
The reforms are proposed to have full effect by 1 December 2020, with staggered commencement dates to be proclaimed.
(c) Eliza M Bergin 2018