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Complying with Victoria’s new environmental duties

23 June 2021

#Planning, Environment & Sustainability, #Property, Planning & Development

Published by:

Christopher Watt

Complying with Victoria’s new environmental duties

The Environment Protection Amendment Act 2018 (Vic) comes into force on Thursday, 1 July 2021, and forms the updated Environment Protection Act 2017 (Vic) (Act). Individuals and corporations in Victoria will be subject to new duties, a new licensing regime and updated regulations and guidance materials.

This new environmental regime focuses on managing and preventing risks of harm through broad positive duties:

  • the General Environmental Duty (GED) to proactively minimise risks
  • the duty to manage and respond to incidents
  • the duty to notify the Environment Protection Authority (EPA) of certain incidents.

These duties are enlivened by different activities and require different responses to ensure compliance.

What is the GED and how do I comply?

Under section 25(1) of the Act, a person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as is reasonably practicable.

Identifying any potential risks is the first step to compliance. Next, it is important to develop a system for assessing and controlling identified risks, as required by section 25(4) of the Act. Once you have assessed the identified risks of harm, you must minimise those risks, so far as is reasonably practicable.

If your business has a low risk of causing harm to human health or the environment, such as retail, offices or cafes, complying with the GED will be relatively straightforward. For example, you would appropriately remove waste, keep sites clean and keep rubbish and chemicals out of stormwater drains. If your activities are low risk, you can demonstrate risk management by your actions, without the need for documenting risk management practices.

As the risk of harm to human health or the environment increases, complying with the GED becomes more onerous because what minimisation techniques are “reasonably practicable” is open to interpretation. Section 6 of the Act helps to determine what is ‘reasonably practicable’ in these circumstances:  

“…regard must be had to the following matters —

  • the likelihood of those risks eventuating;
  • the degree of harm that would result if those risks eventuated;
  • what the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks;
  • the availability and suitability of ways to eliminate or reduce those risks;
  • the cost of eliminating or reducing those risks.”

If you engage in medium to high-risk activities, such as, operate a petrol station, engage in earthworks, handle chemicals, or even roast coffee, the GED will require a higher standard of risk minimisation from you. You will need to assess your risks by following a risk management process as outlined by the EPA and follow industry guidelines, or engage a consultant where there is no clear best practice for your specific activity.

What is the Duty to Manage and how do I comply?

Section 31 of the Act requires a person to take action and respond to a leak, spill or other escape of a substance, known as a “pollution incident”. If a pollution incident causes or is likely to cause harm to human health or the environment, a person who is engaging in that activity must, so far as is reasonably practicable, restore the affected area to the state it was in before the pollution incident occurred.

For example, if your business manages or stores chemicals, you should ensure you have a clear protocol for responding to incidents and train staff and contractors appropriately. If you are a landlord, ensure your lease requires tenants to respond to incidents and report to you.

Section 39 of the Act creates a duty to manage contaminated land by minimising risks of harm as far as reasonably practicable. Contaminated land is defined in section 35 of the Act as land that has on or under it any chemical or prescribed substance in a concentration above background levels that creates a risk of harm to human health or the environment.

This duty requires you to identify any contamination that you know or “ought reasonably to know of”. For example, if you intend to purchase a piece of land, as part of your due diligence prior to the purchase, you should investigate the site to see if any past uses or reported contamination indicate that the land is or may be contaminated. If there is a reason to believe the land is contaminated, you are required to investigate further, obtain advice from a contaminated land consultant and implement reasonably practicable measures to minimise any risk of harm.

Anyone who “manages or controls” contaminated land, even if you did not cause the contamination, must comply with this duty. If you did not cause the contamination, you can recover any costs of investigation and risk minimisation from the polluter. For example, if you live next to a petrol station that has caused contamination to migrate to your land, you could recover any contamination clean-up costs from them.

What is the Duty to Notify and how do I comply?

Under section 40 of the Act, the Duty to Notify applies to ‘Notifiable contamination’, which is defined in section 37. A person has a duty to notify the EPA when they become aware, or should reasonably have been aware, that they manage or control land where notifiable contamination is present. Other duties apply simultaneously.

Under section 32 of the Act, any pollution incident that causes or threatens “material harm”, including near misses, must be reported to the EPA by the person engaging in the activity. “Material harm” means that there is an adverse effect on human health or the environment, an adverse effect on an area of high conservation value or of special significance, or the clean-up would cost $10,000 or more. For example, you may not need to notify the EPA if chemicals spill on concrete and are quickly cleaned up before any runoff occurs.

Regardless of whether the Duty to Notify is triggered, you should continue to keep records of pollution incidents and restore any damage to the environment, whether or not it causes material harm. 

What next?

The new environmental laws put the onus of protecting people and the environment on individuals or corporations engaging in risky activities or simply dealing with historical contamination. Understanding the new duties and updating environmental management systems is key to avoiding penalties for non-compliance. Therefore, at a minimum, companies should be reviewing EPA guidance materials and implementing the recommended steps to ensure you comply with these positive duties.

Holding Redlich’s dedicated planning and environment practice group is experienced in advising individual and corporate clients with respect to matters of contamination. If you would like further detail with respect to this article, or advice in relation to your own needs, please contact us.

Authors: Joseph Monaghan, Tess Kerridge & Christopher Watt

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity, nor be relied upon as legal advice. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Christopher Watt

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