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A new landscape for environmental law in Victoria in 2018?

A new landscape for environmental law in Victoria in 2018?

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Since 2011, there have been multiple reviews and recommendations for reform in relation to the operation and powers of the EPA, and environment protection and contaminated land legislation in Victoria. These reviews culminated in the Independent Inquiry into EPA Victoria in May 2016 and the Government response in January 2017 which supported most of the Inquiry’s 48 recommendations. As the Inquiry found, Victoria’s Environment Protection Act was the first such legislation in Australia, but it is now the oldest state environment protection act not to have been comprehensively reviewed and re-enacted, despite being amended more than 80 times in its 40 year history. In many areas it is out of step with other jurisdictions and current regulatory practice.

Key EPA Inquiry recommendations

Key Inquiry recommendations which have the potential to significantly change the way EPA operates and increase compliance risks for business include:

  • introduction of a general duty to take reasonably practicable steps to minimise risk of harm to human health and the environment
  • new requirements for pollution incident planning and incident notification
  • increasing penalties (in line with penalties for environmental offences in other jurisdictions such as NSW)
  • increasing public information available about high risk contaminated sites
  • increasing EPA’s role in planning and decision making, and the planning tools for reverse land-use buffers (for example, in relation to Major Hazard Facilities)
  • modernising the inspection and enforcement powers of EPA

Recent reforms

What has happened since the Inquiry? The EPA appointed a chief environmental scientist (Dr Andrea Hinwood), increased its public health capability, commenced the Officers for the Protection of the Local Environment (OPLEs) pilot program and the Environment Protection Act 2017 was passed and received Royal Asset on 24 October 2017. The new Act provides for a new governance structure for EPA and introduces a new objective for EPA ‘to protect human health and the environment by reducing the harmful effects of pollution and waste’.

A further bill is expected to be introduced into Parliament in 2018 including the substantive amendments implementing the recommendations from the EPA Inquiry. Some of the EPA’s current programs, such as the major industries (MI) audit program, are being carried out in line with EPA’s expectations of the general preventive environmental duties which are to be introduced in the reform legislation. The MI program will have conducted detailed audits and issued multiple clean up and remedial notices at more than 40 sites (MHF and licensed) over 2017 and 2018.

Complex environmental problems

Environmental regulators have also been tackling the complex environmental problems presented by PFAS contamination. This has recently resulted in the Intergovernmental Agreement on a National Framework for responding to PFAS Contamination (20 February 2018) (PFAS IGA) which includes a PFAS Contamination Response Protocol (Protocol) and the PFAS National Environmental Management Plan (NEMP). The NEMP was prepared by the heads of EPAs in Australia and New Zealand and endorsed by the federal, state and territory governments on 16 February 2018.

The focus of the PFAS IGA is on identifying, investigating and managing PFAS contamination on government-owned sites, or on sites where government activities have resulted in PFAS contamination. However, the IGA and supporting protocol and NEMP also contain important guidance and expectations of how non-government entities responsible for a PFAS release or contamination should respond. PFAS continues to be a major focus of environmental regulatory action and has been the subject of multiple class actions and other litigation in multiple jurisdictions.

A renewed discipline in environmental risk management

General preventive environmental duties and new EPA powers and regulatory requirements require a renewed discipline in environmental risk management and due diligence. Recent EPA MI audits have highlighted gaps in licence compliance and environmental management systems, and lack of action on some facility audit recommendations. These audits have increased the focus in actually understanding what EPA licence conditions require and what EPA’s expectations are in its licence assessment and management guidelines. Good, technical due diligence, ongoing training, having the systems and ensuring they are complied with, are still the best ways to reduce environmental legal risks. In 2018, keep a close watch on the further EPA reforms which will represent a major change for environmental law in Victoria. 

 

Mark Beaufoy, partner, King & Wood Mallesons

 

Want to find out more? Register for the Planning and Environment Half Day Intensive, on 22 March, where Mark Beaufoy will provide a comprehensive overview of current trends in contamination law with a particular focus on PFOA and PFAS contamination. For more information and to register, see here.


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