New Environmental Law Regime in Victoria

The amendments to the Environment Protection Act 2017 (VIC) (EP Act) commenced on 1 July 2021, bringing with it significant changes to the environmental law regime in Victoria.

Our environment and planning experts have unpacked the key changes introduced by the amendments to the EP Act and the potential impact on organisations with operations in Victoria. 

Environmental reforms

Key to the new regime in Victoria is the introduction of the general environmental duty (GED), which requires persons engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste, to minimise those risks, so far as reasonably practicable. Some common risks to manage include activities that produce noise, odour, runoff to stormwater and waste management.

Other significant reforms introduced by the new regime include:

• a duty to actively manage contaminated land;
• a duty to notify the EPA of a “notifiable incident”, including a pollution incident that causes or threatens to cause material harm to human health or the environment and contaminated land (notifiable contamination);
• a new environmental permission framework, which introduces 3 main tiers: licences, permits and registrations;
• an overhaul of the waste regime, including a new system of priority and reportable priority wastes and changes to disposal categories and premises authorised to receive industrial waste; and
• new environment regulations and environmental reference standards.

The amendments to the EP Act also substantially increases the maximum applicable penalties, for example:

• the maximum penalty for a corporation in breach of the GED that acted intentionally or recklessly and the contravention results or is likely to result in material harm to human health or the environment and the person knew or should have known the contravention would cause harm is $3,634,800.00;
• the maximum penalty for corporations that commit illegal dumping has doubled to $1,817,400.00; and
• the maximum penalty for individuals breaching the law has increased to $726,960.00 and/or imprisonment of up to 5 years.

If a company commits an offence, directors and others involved in the management of the company also commit the offence unless they can prove that they exercised due diligence to prevent the commission of the offence by the company.

Commencement & transitional arrangements

The amendments to the EP Act all came into force on 1 July 2021.

Most duty holders who held licences under the Environment Protection Act 1970 will automatically continue to hold the equivalent permission under the EP Act.

In relation to waste licences and operating licences, the EP Act contains transitional arrangements in relation to permissions held under the predecessor legislation which remain valid until 30 June 2022. During the transition period the EPA will be contacting these licence holders to update their licences to reflect the new 3-tiered regime. More information on this can be found here: https://www.epa.vic.gov.au/for-business/new-laws-and-your-business/permissions & https://www.epa.vic.gov.au/for-business/new-laws-and-your-business/permissions/changes-to-licences-permits.

 Guidance documents

In addition to the GED, the EP Act imposes the following obligations on duty holders:

• Duty to respond to harm caused by a pollution incident (s 31);
• Duty to notify pollution incidents (ss 32-33);
• Duty to manage contaminated land (s 39);
• Duty to notify contaminated land (s 40); and
• Duties relating to waste (ss 133-135,139,140,142,143)

The EPA has developed a number of industry specific guidelines to assist industry in complying with the GED and the new regime. Generally, companies should have regard to the following guidance documents/ information:

• 1695.1: Assessing and controlling risk – A guide for business
•  1741.1: Supporting you to comply with the general environmental duty 
• Industrial Waste Guidance
• 2008: Notifiable contamination guideline: Duty to notify of contaminated land
• 1820.1: Construction - guide to preventing harm to people and the environment

Recommendations moving forward

It will be important for companies to review how the new regime will impact on their activities and operations and whether any environmental practices and procedures need to be updated, particularly as a result of the GED and new statutory duties. Fundamental to the new regime is that businesses need to identify and assess the risk of harm to human health and the environment from any of its activities and ensure that there are suitable risk control measures. It is also important that new mandatory reporting obligations, including in relation to contaminated land and environmental incidents, are addressed in updated processes and systems.   

Contact us

As a team, we are closely monitoring the guidance released by the Victorian EPA as the new regime is rolled-out. It is important for businesses to consider and continue to monitor regulators’ comments and the legal requirements especially in the constantly changing landscape of COVID-19 which may affect companies’ ability to comply with their obligations under the EP Act.  Please let us know if you require any assistance or more detailed advice on the changes and their impact on your business operations.

If you would like to discuss specific environmental legal compliance and/or licensing obligations please contact Jacinta Studdert or Brooke Moerk.