Changes to the EP Act: a modernised EPA Victoria

Changes to the EP Act: a modernised EPA Victoria

Waste Management Review Editor Toli Papadopoulos sat down with EPA Victoria and the Department of Environment, Land, Water and Planning in late September to discuss what the new changes to the Environment Protection Act mean for waste industry regulation.

One of the election promises of the Andrews Government prior to being swept into office in 2014 was to commission an independent inquiry into the Environment Protection Authority (EPA).

In fulfilling this commitment, an independent inquiry was undertaken over 10 months from June 2015 to March 2016 by a Ministerial Advisory Committee chaired by KPMG’s Penny Armytage. The environment minister asked the committee to examine and advise on the EPA to address present and future environmental risks. 

The committee was asked to consider the EPA’s role in protecting the environment and human health; the appropriateness of its governance structures and resourcing; and the scope and adequacy of its powers; and environmental justice. The terms of reference also stressed the need to balance this role with economic sustainability and highlighted a need for the committee to consult extensively with stakeholders.

A range of insights from the Victorian public, interest groups, environmental services industry, scientists, government partners and regulators and expert scientists led to 48 recommendations in a highly comprehensive document spanning more than 400 pages. 

Within these recommendations were to undertake a comprehensive overhaul of the Environment Protection Act 1970, including to create a modernised Environment Protection Act which applies to the EPA and other entities charged with reducing pollution and waste impacts. 

Earlier this year, the Environment Protection Amendment Act 2018 passed the Parliament of Victoria and will take effect from 1 July 2020. The reforms represent the most significant changes to Victoria’s environmental regulatory regime since the introduction of the Environment Protection Act 1970.

The new legislation has a key focus on preventing risks of harm from pollution and waste rather than managing harms after they have occurred and is modelled on occupational health and safety legislation. Some of the most significant changes include a general environmental duty (GED), which requires all Victorians undertaking an activity with risks of harm to the environment and human health to identify and implement reasonably practical means to eliminate or minimise these risks. This covers risks from waste management activities, from generation, right through to disposal. Under the new legislation, licences will also be subject to regular reviews and a risk-based environmental audit regime introduced. 

Furthermore, the new Act introduces a suite of regulatory tools – new notices, including improvement, prohibition and environmental action notices; higher penalties for illegal dumping; a public register; improved information sharing with other agencies; and third party community rights that allows courts, on application by an individual or community, to enforce the new legislation where EPA has not acted.

The new scheme is supported by a chief environmental scientist and a new governing board overseeing EPA Victoria, which goes to the heart of the agency’s statutory objective to protect the environment and people by preventing and reducing harm from pollution and waste.

Waste Management Review Editor Toli Papadopoulos sat down with Kate Gavens, Director Environment Protection at Department of Environment, Land, Water and Planning (DELWP) and Dan Keely, Executive Director Transformation at EPA Victoria to discuss what the changes mean for the waste industry and community at large.

THE CHANGING FACE OF EPA

Kate explains that the independent report recognised the need for a modernised EPA, with changing environmental issues such as more diffuse types of pollution that have exacerbated due to increased population density. 

She says the nature of the waste stream is also changing. Kate says the combination of these issues prompted the need for a new suite of regulatory tools. 

“In terms of the independent enquiry process, government was very clear that it wasn’t a performance review of EPA. It was really a recognition that over the last 47 years, EPA served the Victorian community really well around dealing with issues like gross pollution sources,” Kate says.

“Some of the common stories and reflections that people have are pilots used to not be able to take off at Essendon airport because of the smog around that area. Now clearly we’ve moved a really long way under EPA’s guidance to be in a very good position now where air quality in Victoria is some of the best in the world.”

She says that over time, the community and waste industry expectations of the EPA had changed to expect issues to be prevented rather than waiting for them to occur.

“We’ve seen it play out, for example with the recycling industry issues around stockpiling of waste and the expectation of EPA to be able get in there and deal with those matters quickly and even looking at the role of EPA in preventing those things from occurring,” Kate says.

“I think what this legislation does is give EPA the ability to do just that. So I think the stockpiling issue is a really good example where these laws are going to be much more targeted and proactive to allow EPA to get in to respond effectively.”

Introducing a GED to minimise risks of harm to human health and the environment from pollution and waste through a concept of reasonable practicability was a key recommendation of the independent report.  

Reasonable practicability involves giving regard to the likelihood of the risk of harm eventuating; the degree of harm that would result if the risk eventuated; actual and reasonable knowledge of that risk of harm; and availability, suitability and cost of ways to eliminate or reduce the risk of harm.

The GED requires 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 reasonably practicable. The GED replaces the existing strict liability provisions for causing pollution. 

According to the Act, pollution includes any emission, discharge, deposit, disturbance or escape of a solid, liquid or glass or a combination of a solid liquid or gas, including, but not limited to, smoke, dust, fumes or odour. 

The new Act takes effect on 1 July, 2020.

The definition of waste clarifies that waste remains waste until the process of resource recovery is completed.

“It’s about having the ability to recognise where there are legitimate resource recovery operations and also where someone may be claiming to recover resources where they’re not. It gives us the ability to intervene where there are not legitimate activities,”  Kate says.

According to a fact sheet on changes to the Act, unlike similar laws in other states and territories, a breach of the GED could lead to criminal or civil penalties of up to $1.6 million for corporations. 

TIERED FRAMEWORKS

Another key recommendation adopted was to establish a simplified set of legislated decision-making principles for the EPA, encompassing elements which include recognising a risk-based approach to regulation through proportionality. The principle of proportionality informs decisions or actions to minimise harm or a risk of harm to human health or the environment and highlights that this should be proportionate to the harm or risk of harm that is being addressed. 

The fact sheet explains that EPA will develop guidance material, including statutory compliance codes in partnership with industry and technical experts to help identify, assess and manage risks for particular industries or activities.

Other key reform highlights include a new tiered permissions framework to replace works approvals. The tiers consist of registrations, permits and licences. 

Licences will apply customised conditions to manage complex activities that need the highest level of regulatory control. Permits will have largely standardised assessment processes and are suited to medium-high risk activities with low complexities. Registrations, as the least burdensome tier, would be automatically granted and suited to organisations posing lower risk activities, but where a level of industry wide, direct regulatory oversight is required. EPA permissions will also now focus on activities rather than premises.

The new scheme abandons the prescribed industrial waste system. Tailored controls will be introduced for specific hazardous wastes and specified municipal and industrial wastes that have resource recovery, recycling and reuse potential via ‘priority waste’ regulations. Kate says that moving away from the prescribed industrial waste categorisation of A, B and C and looking at it from a waste-by-waste basis and identifying the controls that need to be in place applies a proportionate risk-based lens to each waste.

In terms of how the EPA will determine if the risk is large enough, Dan says there will be an element of EPA discretion to it. “As a duty holder, the obligation is on you to understand the risk, likelihood and consequence of a pollution event and your activity – the waste and pollution that you cause,” Dan explains.

He adds that there is a duty to then assess the potential controls to eliminate or manage that risk and then adopt those controls and go through that process. 

“Low-risk activities would only be expected to have commensurate controls based on the risk and available technology to deal with it, and your awareness or knowledge of that control and ability to deal with it.”

Kate says at the heart of the legislation is reasonable practicability and a need to move away from strict liability and apply that to environmental activities going forward. 

She says an example of reasonable practicability is the EPA’s development of guidelines for combustible recycling materials (Waste Management Policy (Combustible Recyclable and Waste Materials) – which allow the industry to assess what is reasonable for them in controlling their fire risk. 

Kate says that an example of a proportionate risk-based approach to penalties is also graduated penalties for illegal dumping. She says that for industrial waste dumping offences, the upper limit of penalties under the Act have essentially doubled.

She notes that other jurisdictions do have a GED, but they also have strict liability sitting alongside this. 

Dan says that moving away from strict liability does not remove certainty from the scheme as there are a range of mechanisms that can be used to create certainty for duty holders, including licence conditions, subordinate legislation and compliance codes.

For example, a compliance code will be one way to meet your obligations  under the GED. Dan says that if you choose to adopt the technique in your compliance code described for a particular industry or hazard you will be deemed to satisfy the duty insofar as the code relates to your obligations. 

He notes that compliance codes are not mandatory and if operators feel they have a better and more cost-effective measure, which achieves the same outcomes, they can discharge their duty through a different mechanism.

INFORMATION SHARING

Another significant reform in the legislation is greater EPA powers to share information with peer regulators and other government agencies. The development of a public register will also provide the public with greater information on permit applications, permits, emissions and compliance data. The data remains subject to privacy and commercial confidentiality laws.

“It’s really about the bias in the current Act being about information not being shared and there’s pretty strict penalties for officers who share information when it’s not appropriate,” Kate explains.

“This amendment Act sets out the times that information can be shared in quite a bit of detail so it gives you a really clear framework for saying we can share information with others under these circumstances.”

She says an example of the limitations of the previous legislation was the ability to share landfill levy data among Victorian agencies. “In the 1970 Act, our ability to share that data with agencies like Sustainability Victoria, that have great interest from a strategic infrastructure point of view, was not made impossible by the legislation, but it certainly was made more difficult. We had to go through a process of developing memorandums of understanding,” she says.

ENVIRONMENTAL AUDIT CHANGES

Environmental audits have also been changed with the goal of establishing a more flexible process. DELWP’s fact sheet described environmental audits under the old legislation as one-size-fits-all and sometimes involving unnecessarily detailed investigation and excessive costs.

The new changes include preliminary risk screenings (PRS), which are intended to be more rapid, lower cost assessments that may include limited sampling and scaled audits that assess and manage the risk of harms to human health and environment from contamination or industrial activities. Kate says EPA is working with environmental auditors and consultants to trial the PRS system and identify its effectiveness before the legislation commences. 

A new regulatory tool called Site Management Orders allows for ongoing regulation of the risks associated with sites such as closed landfills and contaminated environments. Dan says that licences are reframed around the general preventative duty that codify reasonably practical measures for a duty holder. 

EPA Victoria will be working directly with industry to help it transition to the new act in 2020. Kate says the key area of interest over the next 18 months will be working with industry on permissions for licences, permits or registrations under the schemes, priority waste controls, compliance codes and guidance and systems that support the broader transformation of EPA. 

“We’ve got less than two years to put in place the subordinate instruments that give effect to it. 

“Really the key things are around: who requires permission around the new system? What are priority wastes and what controls will apply?”

Dan says there are transitional arrangements designed into the arrangements which recognise and have the ability to carry over active licences, notices and prosecutions.

While the changes to the regulatory framework are comprehensive, Dan says the expectation of industry and other duty holders doesn’t necessarily change overnight. 

“The state of knowledge is such an important factor in driving what is reasonably practical for people under their preventative duty, waste duty and their other duties under legislation.

“That state of knowledge and what is reasonably practicable the day before the new scheme commences will continue to be so on the day after. The benefit of the new scheme is that it recognises that, with better information and more accessible technology to manage risk, this state of knowledge evolves over time,” Dan says.

You can the full act and what it means by visiting the DELWP website: https://bit.ly/2RxgKhV

This article was published in the November issue of Waste Management Review. 

For further assistance: 

The Victorian Waste Management Association (VWMA) can assist in keeping its members and the sector informed about incoming changes related to the new EP Act and will be coordinating a range of activities leading up to its commencement. The VWMA supports its members on pollution, environmental regulation, urban planning, occupational health and safety and a range of other areas, with membership encompassing the waste and resource recovery industry. It is able to advocate on its members behalf in addressing their concerns, challenges and aims through the appropriate channels. For more information head to: www.vwma.com.au