This article was written by Mark Beaufoy.
The Environment Protection Amendment Act 2018 (Amendment Act) was passed by the Victorian Parliament in August 2018 and is due to commence by 1 July 2020.
The Amendment Act provides a broad framework for key reforms (as outlined in our earlier update), however much of the Amendment Act’s detailed operation and context will be outlined in the draft consolidated Regulations.
Based on the current EPA and DELWP work program, the draft consolidated Regulations are anticipated to be released in late July – mid August 2019 for public comment and submissions (confidential and public submissions may be made through www.engage.vic.gov.au and invitations to make submissions will be publicised when the Regulations are released).
A single draft consolidated Environmental Reference Standard (ERS) relating to four environmental elements (air, land, noise, water), together with an impact assessment (like a regulatory impact statement), will also be published for public comment in the middle of 2019. The ERS is intended to replace the current State Environment Protection Policies.
The period for public comment on the draft Regulations and ERS will be longer than the normal statutory time period (a minimum of 28 days) and allow 60-70 days for public comment.
Over the past 6 or so months EPA and DELWP have engaged in extensive industry and stakeholder consultation on the draft Regulations. There has also been an extensive training program of EPA officers on the principles, operation and implementation requirements of the Amendment Act.
Schedule 1 of the Amendment Act sets out the matters the regulations can cover. Some of the key matters which may be prescribed in the draft Regulations include:
- General environmental duty – aspects of the definitions for ‘harm’ (s.4), ‘pollution’ (s.3) and ‘waste’ (s.3) to be prescribed, which are relevant for obligations imposed by the general environmental duty. The regulations will also prescribe the threshold for ‘material harm’ (s.5) which is relevant in determining whether there has been a contravention of the general environmental duty and triggers the transitional duty relating to material harm.
- Duty to notify the EPA of notifiable incidents – ‘notifiable incidents’ (s.30) may be prescribed, which are intended to form the basis of pollution incidents that are required to be notified to the EPA.
- Duty to respond to harm caused by pollution incident – aspects of the definitions for ‘pollution’ and ‘harm’ to be prescribed, which inform the duty to take action to respond to harm caused by pollution incidents.
- Duty to notify contaminated land – ‘notifiable contamination’ (s.37) to be prescribed, which is intended to form the basis of what is required to be notified to the EPA in the context of contaminated land. The regulations will also prescribe exemptions to notifiable contamination which will not trigger the duty to notify of contaminated land.
- Duty to manage contaminated land – aspects of the definition of ‘contaminated land’ (s.35) to be prescribed, which is relevant to the exercise of the duty to manage contaminated land.
- Permissions – activities and circumstances that require a licence, permit or registrations to be prescribed. The regulations should also set out guidance relating to permission applications, renewals and conditions.
- Duties relating to industrial waste – aspects of the definition of ‘industrial waste’ (s.3) to be prescribed, which is relevant to trigger duties relating to the depositing, transporting and receiving of industrial waste.
- Duty to manage priority waste – types of ‘priority waste’ (s.138) may be prescribed which is intended to form the basis of what triggers the duty to manage priority waste. The regulations may also set out what is required in relation to the duty to manage priority waste.
- Duty to notify priority waste – ‘reportable priority waste’ (s.142, s.143) may be prescribed, which will form the basis of what is required to be notified to the EPA and what triggers the duty for persons involved in transporting reportable priority waste.
On release of the draft Regulations and ERS, we will be preparing a detailed analysis of the draft Regulations and ERS and assisting clients with their submissions. We will also be hosting a series of sector-based workshops for industry (Industrial & Consumer, Real Estate & Construction, Energy & Resources sectors) on the implications of the new Regulations and any action that should be taken in preparation of the commencement of the new legislation. We will be partnering with an environmental consulting firm to provide both legal and technical insights into the new Regulations and ERS.
If you would like to participate in any of the workshops, please click here and indicate your preferred sector workshop.