This article was written by Mark Beaufoy, Emily Heffernan, Bronwyn Woodgate and Alex McKinlay.
On 16 May 2016, the report of the Independent Inquiry into the Victorian Environment Protection Authority (Report) was released to the public. The Government has not yet responded to the Report but is expected to do so later this year.
The Report will be of significant interest to business in Victoria in that it proposes a ‘comprehensive overhaul’ of existing environmental legislation including: increased criminal penalties, strengthened third party rights to restrain breaches of environmental laws, new statutory triggers for early EPA input into strategic planning processes, new statutory duties on businesses to minimise risks of harm to human health and the environment, statutory duties for the notification of pollution incidents and preparation of pollution incident response plans, licence reform (fixed terms and periodic reviews), and a strengthened and formalised role for the EPA in mine regulation.
A Ministerial Advisory Committee (MAC) was appointed by the Minister for Environment, Climate Change and Water (the Hon. Lisa Neville MP) in May 2015 to conduct the Inquiry, following a series of high profile environmental and public health incidents in Victoria, including the fire at the Hazelwood coal mine, contamination issues at the former CFA Fiskville training ground, and asbestos contamination issues for residential properties in North Sunshine.
The MAC’s Terms of Reference required it to consider: the EPA’s role relating to public health, environment protection (particularly exposure to asbestos, site contamination, air and water quality), the regulation of greenhouse gas emissions, the appropriateness of its governance existing structures and resourcing, the scope and adequacy of its powers, and its role in environmental justice.
In conducting the Inquiry, the MAC sought the views of the community, industry and workers in relevant industries, local government and Victorian government agencies, and other relevant stakeholders. A Discussion Paper was released in August 2015 followed by a series of public consultation hearings across a number of regional and metropolitan locations in Victoria. More than 200 written submissions were received.
The Report (more than 400 pages in length) contains a large number of recommendations (48) aimed at establishing a modernised EPA, with a focus on protecting both environmental and human health.
These recommendations included the following (in summary):
Reforming the EPA’s legislation, governance and funding
- the Environment Protection Act 1970 be replaced with two separate pieces of legislation: an EPA (Establishment) Act, and a modernized Environment Protection Act. The new EPA (Establishment) Act would contain a statutory objective for the EPA to protect human health and the environment by reducing the harmful effects of pollution and waste, and establish ten high level functions of the EPA, reducing and simplifying the 27 separate powers and functions for the EPA under the current legislation;
- a high level Environment Protection (Integration and Coordination) Act be introduced in order to improve coordination and collaboration across government on environment protection and associated public health issues. The MAC also considered that the EPA’s current funding is both inappropriate and unsustainable and recommended a reformed funding model, including more appropriate and efficient use of fees and levies to fund EPA and DEWLP developing a business case to increase the EPA’s future resources levels to take on additional functions recommended by the MAC.
EPA’s role in strategic land use planning processes - including managing land use conflicts
- the creation of a statutory trigger to require planning authorities to seek early advice in relation to strategic planning processes (some amendments, rezoning and structure planning) from the EPA for developments that involve significant human health or environmental risks, or that are located near a licensed facility. The Report also recommended that the establishment legislation for the new Victorian Planning Authority require strategic planning processes to be referred to the EPA;
- strengthened land use planning mechanisms be developed, and that the EPA and the Department of Environment, Land, Water and Planning (DELWP) work together to simplify and better integrate EPA regulatory standards and obligations that are to be applied through the planning system;
- as a priority, land use planning mechanisms be developed to establish and maintain buffers to separate conflicting land uses, avoid encroachment problems, help manage health, safety and amenity impacts, and ensure integration with EPA regulatory requirements. The issue of ‘reverse buffers’, to prevent sensitive residential and other uses encroaching on existing industrial land uses, has long been recognized as a significant gap in the existing planning and environmental regulatory framework (an issue also considered recently by the Planning Minister’s Major Hazard Facilities Advisory Committee).
Strengthening prevention of environmental harm – general duty and mandatory notification of pollution incidents
- the introduction of a general duty to minimize risks of harm to human health and the environment (akin to employers’ health and safety duties to employees under the Occupational Health and Safety Act 2004 (Vic));
- expanding the number of activities requiring a works approval or licence to include all activities with significant impacts on human health or the environment;
- introducing more conditions on certain licenses, a new post-closure licence category for landfills and activities that carry a high risk of causing contamination;
- a requirement for EPA licensees to prepare and implement pollution incident plans and a requirement for business to notify the EPA or local government of pollution incidents (this mandatory notification requirement would apply to both licensed and non-licensed business) (similar to the pollution incident planning and notification regimes in NSW).
Holding polluters to account - increasing enforcement measures and penalties
- the EPA develop a robust and efficient overarching prosecution strategy, as well as review how it applies enforceable undertakings and modernize the inspection and enquiry powers for EPA authorized officials (including local government environment protection officers) to provide powers equivalent to safety regulators;
- the EPA expand its range of sanctions, increasing their severity, including the maximum penalty for criminal offences (in line with penalties in NSW which for corporations is up to $1M for most strict liability pollution offences, and $2M where there is negligence and $5M for willful conduct leading to an offence), and the introduction of a civil penalty regime as an alternative to prosecution;
- third party rights be strengthened, to allow persons whose interests are affected or any other person with the permission of the court to seek an order to restrain or remedy breaches of environment protection laws (civil remedies).
Managing legacy risks – site contamination
- an integrated database for recording potentially contaminated sites be developed by DELWP based on site history information and other data held by government;
- planning and environmental regulation of legacy contamination be integrated and strengthened through a reform process to be led by DEWLP to provide a more consistent, risk-based approach to risk screening, assessment and remediation requirements and ongoing compliance mechanisms.
Strengthening the EPA’s role in mining regulation
- the EPA’s role in mining regulation be strengthened and formalised, including to ensure compliance and enforcement of environmental conditions in licences;
- the Earth Resources Regulator should refer mining work plan applications and variations, including rehabilitation plans, to the EPA, as well as seek the EPA’s advice in relation to applications for reductions in, or the return of, rehabilitation bonds.
Other key recommendations
- the EPA be given appropriate statutory mechanisms in order to effectively respond to climate change, specifically a role in regulating and managing greenhouse gas emissions; and
- the establishment of a new statewide network of local government environment protection officers to address localised pollution and waste complaints.
The Government is now considering the Report's findings and all 48 recommendations made by the MAC and will release a government response later in 2016.
In the interim, the Victorian Government has committed to respond to the Report and its recommendations by establishing a board to guide the EPA in delivering reform, employ a Chief Environmental Scientist to strengthen the EPA’s focus on science and improve their environmental health capability by working with the Department of Health and Human Services to gradually transfer the Department’s environmental health functions to the EPA.
We will continue to follow the Government's response to these proposed reforms and keep you updated. However, if you have any queries arising from the Report and proposed reforms, please contact Mark Beaufoy.