The Environment Protection Authority Victoria (EPA) and the Department of Environment, Land, Water and Planning (DELWP) have released Proposed Environment Protection Regulations (Proposed Regulations) to simplify and support Victoria's new environmental protection laws.
On 1 July 2020, the amendments to Victoria's Environment Protection Act 2017, which implement the substantive overhaul of Victoria's new environmental protection laws, are expected to come into force. The new regime adopts a preventive and duties-based approach to environmental protection and imposes a General Environmental Duty (GED) on Victorian business, industry and the community to prevent and reduce risks to human health and environmental harm. For more detail on these changes see our previous publications "Major Re-write of Victoria's Environmental Laws: The Environment Protection Amendment Bill 2018" and "Victorian Environment Protection Amendment Bill 2018 passes the Upper House."
The EPA and DELWP are currently developing a range of subordinate legislative instruments and guidelines designed to support and clarify obligations arising under the new laws. The Proposed Regulations were released on 1 September 2019, and are available in exposure draft form online. DELWP and the EPA are currently consulting on the Proposed Regulations and you can make a submission outlining your support for the new regulations and/or areas where you think that changes are required, until 31 October 2019.
The new legislation introduces a three-tiered permissions framework to complement the GED. The Proposed Regulations provide detail around which activities will (continue to) require development and operating licences (replacing works approvals and licences under the current regime) and which activities will only require a permission or simple registration, depending on the level of risk involved. The Proposed Regulations also set out application requirements, fees and other particulars relating to permissions.
The Proposed Regulations introduce a clear, tiered waste classification system and provide further detail on the types of waste that will be considered "industrial waste", "priority waste" and "reportable priority waste" as well as applicable waste codes. The new classification system is designed to reduce and simplify waste sampling and analysis processes. Further detail is also provided on when a person or place will be considered to be "authorised to receive industrial waste."
In order to address gaps in the principal legislation with respect to obligations to deposit waste destined for recycling or re-use only at a "lawful place," a new tool called a declaration of use (DoU) is introduced by the Proposed Regulations. This allows for self-assessment of low-risk industrial and priority waste (but not reportable priority waste) for re-use and recovery in certain circumstances.
The Proposed Regulations also introduce a new category of contaminated soil and waste. In addition to retaining the current Categories A, B and C, a new Category D has been introduced for soils with lower levels of contamination that can support alternative uses. There are separate categories for soil containing asbestos only, packaged waste asbestos, soil which can be used as fill material, and municipal waste. The EPA retains the ability to issue individual designations of waste categories where self-classification is not possible.
An accreditation scheme for waste consigners is also proposed.
Under the new laws, managers and controllers of land will have a duty to report contaminated land to the EPA when the levels exceed set thresholds. The Proposed Regulations provide further detail on these levels by including definitions for "prescribed notifiable contamination." In summary, these definitions provide that contamination will need to be notified to the EPA where:
- there is a risk pathway
- the contamination exceeds average background levels (generally set with reference to the National Environment Protection Mechanism (Assessment of Site Contamination)) or the localised elevated threshold levels where these have been set for a particular area
Business and individuals will need to consider whether any sites within their property portfolios will need to be notified when the legislation commences on 1 July 2020.
Other Key Regulations Proposed
The Proposed Regulations introduce a number of additional obligations on Victorian businesses, industries and municipal councils as well as replacing existing regulations and policies that will be repealed when the new regime comes into force.
These include a new ban on the sale or provision of prohibited plastic shopping bags (essentially single-use plastic bags); details on prohibited chemical substances, National Pollutant Inventory obligations, motor vehicles emissions and noise standards; further detail on environmental audits and auditor requirements; financial assurances; continued requirements on brand owners to recycle consumer packaging (where that brand owner is not a signatory to the Australian Packaging Covenant); and further details on the creation of a freely accessible Public Register to record decisions, authorisations and permissions granted under the new legislation.
The Public Comment submission period will be open from 2 September 2019 until 31 October 2019. Public or confidential submissions on the Proposed Regulations can be made online via the Engage Victoria website.
How We Can Help
Baker McKenzie has a specialised environmental law team that can advise you on the implications of the Proposed Regulations and assist you to make a submission. Please do not hesitate to contact one of us.