Recommended changes to Environmental Regulation in Victoria - Clean Air / Pollution

Overview

On the 16 May 2016, the Victorian Government released an "Independent Inquiry into the Environment Protection Authority" (the report), the culmination of a ten month investigation by the Ministerial Advisory Committee into the EPA's role in environment protection (the Committee). The 48 recommendations from the report focus on environmental and human health, and recommend a comprehensive overhaul of the legislative framework to strengthen the EPA's role as a science-based regulator with enhanced environmental health capability, strengthened prosecutorial powers and an increased role in whole-of-government decision-making.

The suite of changes, if implemented, would significantly alter the landscape of environment protection in Victoria. This upheaval of current practices could have far-reaching implications for businesses, developers, infrastructure providers and for the community generally. There are also industry-specific recommendations affecting agribusiness, transfer stations, mining and windfarms.

KEY RECOMMENDATIONS OF THE COMMITTEE

General Duty and Enforcement, including Third Party Enforcement

The report:

recommends the introduction of a general duty to take reasonably practicable steps to minimise risks of harm from pollution and waste. The duty would be underpinned by statutory codes of practice and advice from the EPA and would be phased in, starting with entities operating licensed premises or registered under a new registration scheme based on WorkSafe dangerous goods notifications. It would eventually apply to all Victorians.
recommends introducing the right for third parties to seek a court order to restrain or remedy breaches of environmental protection laws.
criticises the risk averse nature of the EPA in relation to prosecutions, and recommends an expanded range of sanctions with increased severity, and modernised inspection powers for EPA authorised officers.

Environmental incidents

The Committee recommended the introduction of a mandatory requirement for all businesses to notify pollution incidents to the relevant authority (either the EPA or local government). It also proposes a state-wide network of environment protection officers situated within local government to respond to smaller scale, localised pollution.

Licensing

The report:

recommends expansion of the cohort of activities requiring works approvals and licences to include all activities with significant impacts on human health or the environment, regardless of the type of hazard posed. The report specifically references intensive agricultural activities with significant waste and odour issues, and transfer stations with large stockpiles of different types of wastes;
proposes fixed terms for new licences;
recommends periodic review of all licences to maintain alliance with current environmental standards;
recommends requiring licence holders to develop and implement pollution incident plans;
advocates a "more enduring, fit-for-purpose, instrument" such as a new post-closure licence category for landfills and high risk contaminating activities;
recommends that consideration be given to a load-based licensing scheme with licence fees restricted to cost-recovery and fee caps;
proposes that licensees be required to make emissions monitoring information available to the public;
recommends broadening the basis upon which third parties can appeal to the Victorian Civil and Administrative Tribunal against EPA works approval and licensing decisions.

Contaminated Land

The Committee proposes that the Department of Environment, Land, Water and Planning (DELWP) establish a comprehensive State-wide database of contaminated sites, with a "reform process" to provide a more consistent, risk-based approach to manage legacy risks. Notably, it does not propose mandatory reporting of legacy contamination.

Prescribed Industrial Waste Regime

Reform of the Prescribed Industrial Waste levy and associated regulatory framework for transporting, storing and disposing of hazardous waste ( with particular but not exclusive regard to the settings for asbestos) was also recommended, with the intend of reducing incentives for illegal dumping and encourage responsible disposal.

Land Use Planning

The report:

proposes a new statutory trigger, potentially a Ministerial Direction under the Planning and Environment Act 1987 (Vic), to require responsible authorities to seek early advice from the EPA on strategic planning processes that involve significant human health and environmental risks or development in close proximity to a licensed facility. This would apply to rezoning, structure planning and other strategically-based planning scheme amendments;
recommends that the new Victorian Planning Authority, when established, be subject to a mandatory obligation to refer strategic planning processes such as the above to the EPA;
recommends, as a priority, the development of robust land use planning mechanisms to establish and maintain buffers to separate conflicting land uses, avoid encroachment problems, help manage heath, safety and amenity impacts and ensure integration with EPA regulation of scheduled premises.

Windfarms

The Committee considered but did not support the EPA becoming the licensing body for windfarms, but recommends that the existing Policy and Planning Guidelines for Development of Wind Energy Facilities in Victoria be amended to require a statutory environmental audit of noise to be undertaken for approval and compliance.

Mining

The report recommends strengthening and formalising the EPA's role in mining regulation under the Mineral Resources (Sustainable Development) Act 1990 to make the EPA the primary regulator of environmental issues related to mining. The EPA would oversee or have a part in:

the issuing of licence and mining work applications;
compliance and enforcement;
care and maintenance conditions for inactive mine sites;
rehabilitation bonds; and
remediation requirements.

Climate Change

The Committee criticised the ineffectiveness of the State Environment Protection Policy (Air Quality Management) in dealing with regulating emissions. It recommended that the Victorian Government clarify the EPA's role and ensure the EPA has appropriate statutory instruments to give effect to its role in managing greenhouse gas emissions.

Victorian Government's Response

As an immediate response to some of the report's recommendations, the Government has agreed to:

establish an interim board with a range of skills and expertise to guide the EPA in delivering reform, with Cheryl Batagol continuing to chair the EPA;
employ a Chief Environmental Scientist to strengthen the EPA's focus on science; and
improve the EPA's environmental health capability by working with the Department of Health and Human Services to shift their environmental health functions to the EPA over time.

The Government's formal response to the recommendations is to be released later this year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.