EPA provided a contamination-focussed review of recent work and upcoming legal changes, including reform to the Victorian Environment Protection Act, which commences in July 2020.
Dr Paula Sardina presented on emerging contaminants in Victoria’s aquatic ecosystems to provide a picture of EPA’s perspective on surface and ground water contamination following a recent EPA-led investigation into the presence and distribution of high-risk contaminants in Victoria’s aquatic ecosystems. The investigation collected water, sediment and soil samples from undeveloped land, agricultural land and urban land in 5 activity centres (Melbourne, Geelong, Bendigo, Ballarat and the La Trobe Valley) and assessed this for pesticides, PFAS, phthalates and SCCPs. 19 high risk chemicals were identified. PFAS was reported occurring in all land uses. EPA is now starting the second phase of the project to collect more data, which will include sampling for more analytes such as microplastics. EPA is preparing a publication that will have the main findings of the project, due for release in July 2019.
Dr Dru Marsh provided an authoritative briefing on the overarching “General Environmental Duty” which will be a fundamental part of the new legislation. It will have general application and so be relevant to all organisations, whether consultants, drillers or other remediation practitioners working on sites.
The regulatory regime is moving from a prohibitive regime based on outcomes, to a preventative regime based on managing hazards. The focus of EPA will be on the steps that entities should have taken to prevent harm and this will enable EPA intervene at an earlier time to educate the community and enforce the law.
Several important concepts of the new General Environmental Duty were discussed, including the need to minimise environmental hazard to the extent practicable. In determining what is reasonably practicable, five matters will be taken into account in the new regime, which include the likelihood and degree of harm occurring, the state of knowledge (what the duty holder knew or ought to reasonably have known about the risk), the availability and suitability of control measures and cost. The existing regulations and SEPPs (to the extent that they provide a means of managing risk) will continue to be influential in determining “state of knowledge”, particularly in the immediate aftermath of the commencement of the Act.
Dru also outlined the new mandatory pollution incident notification obligations which will apply from 1 July 2020. It was noted that “pollution incidents” are defined broadly under the new legislation and the key question when considering reporting is whether the nature of the incident is such that it will give rise to material environmental harm. There is also going to be a new duty to respond to environmental harm caused by a pollution incident.
Anne Northway spoke about specific duties for managing contaminated land, including the new duty to notify of contaminated land. EPA has reviewed the legislation from NSW in developing its threshold for notification of contaminated land (contamination likely to cost more than $50,000 to remediate). When making notifications it will be important for duty holders to demonstrate that they have a plan for managing contamination.
EPA is also introducing a “Preliminary risk screen assessment” (PRS) as an alternative to an environmental audit, and may be appropriate for sites that do not require a full audit. EPA and DELWP have been trialing a PRS Pilot with several councils including Whittlesea, Greater Bendigo and Brimbank and VicRoads. Changes to the audit system were also debated, and Anne Northway provided a brief overview of Site Management Plans and Better Environment Plans, two new measures designed to better enable EPA to ensure environmental compliance.
The General Environmental Duty is a significant change for Victorian legislation and state of knowledge is a key aspect of compliance with the duty. It will be very important for the regulated community to understand what information is available about risk controls generally (such as through industry guidance and publications) as well as being aware of site-specific controls and site history.
Some of the changes to the audit system and the alternate use of preliminary risk screen processes were discussed. The legislation doesn’t currently dictate whether PRS must be done by a consultant or an auditor and part of the purpose of the pilot is to understand which way works best. There remains some uncertainty over how the PRS and audit system will work in practice.
- The regulations under the new Environment Protection Act 2017 (as amended by Environment Protection (Amendment) Act 2018) are now expected to be released for comment by EPA in draft in late July or early August.
- Anyone wishing to obtain more information about the regulatory reform can do so by contacting EPA
- EPA is also proposing to publish a new Compliance and Enforcement Policy prior to the commencement of the new regime.
Presenter Name | Presenter Company |
Dru Marsh |
EPA VIC |
Paula Sardina |
EPA VIC |
Anne Northway |
EPA VIC |
19 June 2019 VIC event report by Gabrielle Guthrie, Guthrie Legal
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