Proposed EPA regulations and environment reference standards

By on January 28, 2020

The biggest change in 50 years to Victoria’s environment protection laws is coming soon. The new Environment Protection Amendment Act 2018 (the Act) comes into force on 1 July 2020. It will be focused on prevention.

The general environmental duty (GED) is central to the new Act and applies to all Victorians. The risk of any activities which may harm the environment or human health through pollution or waste must be reduced. Occupational health and safety (OHS) laws, which many businesses use and are familiar with, was the template for building the GED.

The new Act has a more flexible approach to issues of compliance. As far as reasonably practicable, you must reduce your activities’ levels of risk to human health and the environment.

Businesses will have to manage risks specific to their sites. Individuals will have a duty to prevent harm from their activities. They will also have stronger rights to protect their interests.

The Act makes sure the public can access more environmental information. This means EPA can help you better understand the state of the environment and how we make regulatory decisions.

The Act contains a greater range of penalties. It allows for review of decisions and encourages broader participation in decision making. Courts will be able to order offenders to repay profits resulting from prior illegal activity. They can also order offenders to take part in a community project.

The EPA is proposing the new laws that are supported by:

  • Environment Protection Regulations
  • Environment Reference Standards (ERS)
  • Regulatory Impact Statement (RIS)
  • Impact assessment

More information is available from www.epa.vic.gov.au

The CMPA supports the principle of responsible, balanced legislation that is in the best interests of the State of Victoria. One of the roles of CMPA has been to assist the extractive industry to take a preventative approach to environment protection through the development of Guidelines for Noise Management and Dust Management with EPA input through workshops.

A CMPA workshop (21 November 2019), including a presenter from EPA, will eventually result in a Guideline for Water Management in the extractive Industry being produced. The CMPA would like to thank EPA for their contributions to date.

It is noted that the documentation provided is ~1000 pages. Whilst this may amount to a very thorough examination of the proposed regulations (Regulations) and ERS, it is too long to give it justice in the consultation period allowed. These documents are available at https://engage.vic.gov.au/new-environmental-laws

DISCUSSION

EPA Regulations and Regulatory Impact Statement (RIS) The RIS considers 10 specific problem areas:

  • Permissions (licences, permits and registrations);
  • On-site wastewater management systems (septic tank systems);
  • Contaminated Land;
  • Waste;
  • Litter;
  • Plastic bags;
  • Air;
  • Water;
  • Noise; and
  • Vehicle emissions.

However, a full cost benefit analysis was undertaken for only one of the problem areas: Permissions.

Environment Reference Standards (ERS) and Impact Assessment (IA)

It appears with the ERS it is mostly a change in terminology (as per IA table 1.) and “adopt relevant standards from current statutory policies” in the most part. However, the additional adoption of “… new standards identified through current reviews, where these were sufficiently developed” is of concern and is not supported, for example, the objective for noise in land use category V “An acoustic quality that is conducive to human tranquillity and enjoyment having regard to the ambient natural soundscape.”.

The ERS is a reference standard and does not provide for mandatory compliance requirements. However, the CMPA expects that the ERS will be given considerable weight in respect of certain decisions, such as during work plan and work plan variation approvals processes.

SUMMARY

The CMPA supports a practicable preventative approach to protection of human health and environment. However, the lengthy documents produced for the subordinate legislation, if an example of what is to come on 1 July 2020 when the EP Act 2017 (General Environmental Duty), the Regulations and ERS come into force, do not necessarily inspire confidence that a smooth transition will occur. An initial “period of grace” for industry together with an “assisting” mentality by experienced (in the new legislation) EPA staff will perhaps overcome this.

Specific comments

Regulations RIS
Page Number: p.7
Regulatory Impact Assessment:
…the EP Act 1970 was not meeting the community’s expectations, particularly in light of major trends and emerging challenges such as:

  • “The changing economy including the transition from a manufacturing to service-based economy.
  • Rapid population growth and urbanisation.
  • The changing environment.
  • Technological change.”

CMPA Comments:
A question that should be considered by all Governments in Australia is whether there is a correlation between the transition from a manufacturing to service – based economy and the proliferation of red-tape/regulatory burden. An acceptance of the status quo (decline in manufacturing) is not necessarily a positive benefit to the Australian economy when consideration is given to, for example, self-reliance and exporting capability.

Page Number: p.9 1st para
Regulatory Impact Assessment:
“Establishing the GED shifts pollution and waste management in Victoria from a more ‘reactive’ framework to a ‘preventative’ framework, which will require duty holders to take all reasonable steps to minimise the risk of harm to the environment from waste generation activities and to avoid or minimise pollution so far as reasonably practicable.”

CMPA Comments:
A preventative practicable framework is supported.

Page Number: p.9 4th para
Regulatory Impact Assessment:
“most existing subordinate legislation under the EP Act 1970 will cease to operate when the new EP legislation takes effect, meaning that some of the proposed regulations will address specific risks that are currently the focus of these outgoing instruments.”

CMPA Comments:
The proposed transition could be improved through consultation, education and training with the extractive industry and relevant consultants to allow a seamless process. A focus should also be on assisting the extractive industry to fulfill its requirements under the new Environment Protection (EP) Act 2017 and subordinate legislation.

Page Number: p.10 2nd para
Regulatory Impact Assessment:
“Costs incurred as a result of waste and pollution can be significant. For example, the costs of the Hazelwood mine fire are estimated to have exceeded $100 million.”

CMPA Comments:
The extractive industry has a much lower and different risk profile to mines, for example, over the past 20 years only $20K has been spent by Government on rehabilitation of a quarry and so should be considered separately.

Page Number: p.10 6th para
Regulatory Impact Assessment:
“Over 40 separate Acts cover environmental regulation in Victoria. These instruments will continue to exist once when the EPA Act 1970 ceases to operate and the new EP legislation commences (intended to commence effect on 1 July 2020).”

CMPA Comments:
Whilst environment protection is well understood, red-tape and regulatory burden lead to high cost to industry especially small to medium businesses/quarries who are struggling to stay in the market. Unfortunately, the EP Act and subordinate legislation fails to provide clarity or streamline environmental regulation in Victoria.

Page Number: p.18 3rd bold dot point
Regulatory Impact Assessment:
“Existing licence holders will automatically be taken to hold a ‘new’ licence for the relevant operating licence activity and will not need to reapply. Their licences will remain perpetual to and will not become time bound licences.”

CMPA Comments:
This statement is supported.

ERS Impact Assessment

Page Number: p.13 2nd para
Regulatory Impact Assessment:
“Due to the short timeframe to prepare the proposed ERS, and the range of periods since existing environmental standards were last reviewed, it was determined that the proposed ERS would adopt relevant standards from current statutory policies, or new standards identified through current reviews, where these were sufficiently developed.”

CMPA Comments:
This approach appears logical and is supported where standards are adopted from relevant current statutory policies.

Page Number: p.16
Regulatory Impact Assessment:
“Environmental values

  • Child learning and development;
  • Human tranquillity and enjoyment in natural areas”

“Objective – An acoustic quality that is conducive to human tranquillity and enjoyment having regard to the ambient natural soundscape.”

“Land use category V, general description – Unique combinations of landscape, biodiversity and geodiversity. These natural areas typically provide undisturbed species habitat and are frequently called the ‘country’ because they enable people to see and interact with native vegetation and wildlife.”

CMPA Comments:
The proposed additional environmental values for noise are noted. In particular, “human tranquillity and enjoyment in natural areas” is of concern.

The indicator is qualitative and so open to wide interpretation under the objective (opposite).

The general description (opposite) of the land use category for the above objective is very broad and also open to wide interpretation. Given that extractive industries are located throughout Victoria, it is more than likely to have a detrimental effect on the regulatory approvals process and the industry itself. The impact assessment does not take into account the increased cost to the extractive industry. This environmental value, which may be considered commendable in some areas, is not supported.

Note: The CMPA intends to hold a workshop in May 2020 to assist CMPA Members with the implementation of their General Environmental Duty.

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