New Victorian environment protection regime commences today – here’s what you need to know

Today the Environment Protection Amendment Act 2018 (Vic) commences, which amends the Environment Protection Act 2017 (Vic) (New Act) and ushers in a new approach to environmental protection in Victoria.

Snapshot:

• The New Act means that everyone in Victoria, both individuals and businesses, need to take reasonable steps to minimise the risk of harm that their activities pose to human health or the environment.
• The EPA has released extensive guidance to help Victorians understand their duties. If you are unsure where to start, we have gathered links to guidance for different industries below.
• Below we highlight key priorities for businesses to ensure compliance with the New Act.

Key changes under the New Act

If you’re engaging in an activity that may give rise to risks of harm to human health or the environment, or are in management or control of a site on which such risks may arise, it’s important that you understand the duties and other new obligations which will apply to you under the New Act. Key among them are:

• General Environmental Duty (GED)
• Pollution and contaminated land duties
• Waste management duties
• New permissions framework
• Reformed environmental auditing approach

Find HSF guidance on the new duties here and the New Act guidance materials here.

What are my top priorities for compliance from today, 1 July 2021?

1. Undertake a self-assessment to identify and assess risks

EPA guidance explains that your approach to managing the risk your business’ activities may pose to human health or the environment from pollution or waste will depend on the scale and complexity of your activities, or kinds of risks you need to manage.

Firstly, undertake a thorough assessment to identify all business activities that could harm human health or the environment.

Assess the risks posed by those activities, based on how likely they are to occur and how severe the harm caused could be.

Make sure you have the right permissions for the activities you undertake or propose to undertake. From 1 July 2021 some activities which did not previously require EPA authorisations will now need a permission. For example, for low or medium risk activities (which may require a registration or permit) there are specific timeframes you must apply within (several require application before 2 January 2022). If you needed a licence for your waste activity before 1 July 2021, you’ll need an operating licence and have from 1 July to 1 October 2021 to apply. See EPA guidance here.

Consider whether your business’ activities pose a low risk (e.g. cafes, offices or pharmacies), or medium/high risk (e.g. construction or manufacturing, or if your business disposes of chemicals). See below links to EPA guidance for businesses with:

• low risk activities
• medium to high risk activities.

Assessing and controlling risk: A guide for business (EPA publication 1695) has more information on risk management.

Duties in relation to land

If you are in ‘management or control’ of any land, then you will also owe duties in relation to that land, including the GED and duties in relation to any contamination present on that land. Conduct a self-assessment of all land of which you are in management or control (e.g. if you are the owner, occupier, contractor on site) and the risks of any contamination present on that land. Note that there may be multiple duty holders in respect of the contamination duties on that land. Consider any information you should request from other persons either currently or previously in management or control of the land, in order to make sure you have all information you ought to have to discharge your duties.

You should also review the terms of existing leases and transaction documents regarding change in laws and ensure you have processes to manage and sensitively approach any contaminated land management and notification obligations to the EPA.

2. Manage and minimise those risks - prepare a risk management and monitoring program (RMMP)

The GED requires you to minimise risks of harm to human health and the environment from pollution or waste ‘so far as reasonably practicable’. This requires you to eliminate those risks, or if not reasonably practicable to do so, to reduce them so far as reasonably practicable.

Every licence holder under the New Act will be subject to conditions requiring them to prepare and implement a RMMP to demonstrate compliance with the GED.

Even if you are not a licence holder, the EPA expects anyone undertaking activities that may give rise to risks of harm to human health or the environment from pollution or waste to manage and minimise those risks. As such, a risk management framework in the form of a RMMP may be appropriate.

Consider whether it is appropriate for you to engage an environmental consultant to prepare the RMMP.

Review your current environment and safety procedures and systems to ensure you have the following in place and that they are responsive to the particular risks you have identified in your self-assessment:

• Appropriate practices (e.g. incident and emergency response, staff training)
• Appropriate systems (e.g. environment management systems)
• Appropriate and performance evaluation, auditing and operational control procedures.

You should include details of these in your RMMP as needed.

You should undergo regular review of your RMMP as industry standards develop, you undergo further self-assessments, and/or your state of knowledge of the risks posed by your business’ activities evolves.

3. Record keeping and information sharing with other duty holders in relation to your site or your business’ activities

Make sure you keep records of all steps taken in your risk management process, including assessment, implementation and ongoing compliance, both as a means to retain knowledge and in order to demonstrate compliance.

Ensure appropriate information flows to directors and senior management, to enable your business to demonstrate due diligence in ensuring the company is complying with its duties.

Be aware of when you are required to make a notification to the EPA, for example from a pollution incident or in relation to contamination over notifiable thresholds.

Ensure you have clear information sharing mechanisms amongst duty holders in order to meet the GED and other duties, particularly where multiple parties are in management or control of land (for example, between a contractor, principal and owner of a development site).

New compliance and enforcement tools

The EPA also has new compliance and enforcement tools at its disposal. This includes a suite of new notices, including Site Management Orders which may be placed on title.

Importantly, the EPA will also join other Australian jurisdictions in having the power to compel witness interviews through the issue of an information gathering notice. This is a significant boost to the EPA’s enforcement powers.

Business and sector specific considerations

If you need further sector specific guidance, the EPA has released additional information available at the links below:

• Agriculture
• Construction and infrastructure
• Energy, petroleum and extractive industries
• Manufacturing
• Planning
• Retail and small business
• Waste and recycling
• Water

If you are interested in a workshop relating to compliance considerations for your business, we’d be happy to discuss.

by Heidi Asten, Partner, Ellen Tarasenko, Special Counsel, Thomas Ellicott, Senior Associate, Paige Mortimer, Solicitor and Peggy Gusah, Solicitor.