Focus: Environment & Planning – August 2006
Changes to the Victorian Environment Protection Act
In brief: To give effect to various initiatives from its Our Environment, Our Future – Sustainability Action Statement 2006, the Victorian Government has introduced several pieces of legislation into Parliament, including the Environment Protection (Amendment) Bill. Senior Associate Meg Lee and Lawyer Caroline Ray report on the Bill, which will streamline the Environment Protection Act 1970 and give the Environment Protection Authority new efficiency and enforcement tools.
Significant proposed changes
The Victorian Minister for the Environment, Water and Victorian Communities, John Thwaites introduced the Environment Protection (Amendment) Bill (the Bill) into Parliament, calling it 'an important step in achieving the government's environmental sustainability vision'. If passed in its current form, the Bill will give effect to some of the initiatives contained in Our Environment, Our Future – Sustainability Action Statement 2006, such as the plastic bag phase-out and reform of the industrial waste landfill levy.
The Bill will also make some significant changes to streamline the administration of licences, clean-up notices and prosecutions under the Environment Protection Act 1970 (the Act). Importantly, the Bill will impose new obligations on Victoria's 250 biggest energy- and water-using companies via the introduction of environment and resource efficiency plans.
Licensing
The Bill makes amendments to the definitions of 'scheduled premises', 'accredited licences' and related provisions to simplify the previously cumbersome definitions associated with the licensing regime. The Bill proposes one definition of scheduled premises, rather than the old regime of 'schedule 1, schedule 2', etc. The new scheduled premises definition covers any premises that is:
- prescribed by regulation;
- a premises at which certain actions take place, such as the discharge of waste or noise, waste storage, processing, treatment or disposal; or
- a premises where an activity is conducted which creates a state of potential danger to the environment.
In light of the new definition of scheduled premises, the Bill clarifies the 'acts and things' that an occupier of a scheduled premises cannot undertake except in accordance with a works approval, licence or notice issued by the Environment Protection Authority (the EPA). These 'acts and things' include an increase or change in waste, change in equipment, increase in noise or a state of potential danger.
The Bill proposes two further changes to simplify the EPA's licensing system:
- the EPA may issue a single corporate licence to a licensee that controls several premises; and
- each licensee must report annually by way of a performance statement, which should summarise any failings and proposed remedies.
This reporting requirement amendment makes it an offence to fail to submit a statement or to give in the statement false or misleading information to, or conceal information from, the EPA. To encourage frank disclosure, any information provided to the EPA in a statement may not be used in evidence in any proceedings for an offence against the Act (except for the offence of providing false or misleading information).
Prosecutions
The Bill gives the EPA more flexibility in relation to prosecutions. The Bill proposes to insert into the Act a capacity for the EPA to enter into an enforceable undertaking with an offender. This means an offender may give a voluntary, negotiated, written set of promises to settle and remedy a contravention of the Act. This tool may be used in circumstances where the EPA could take proceedings against a party for an offence under the Act, but because of certain factors, which will be governed by publicly available guidelines that are yet to be published, the EPA chooses this method instead.
The tool is essentially a contract with the offender not to take proceedings while the undertaking is in force. However, if the offender withdraws from the undertaking prior to fulfilling their obligations, then proceedings may be initiated. If the person complies with the undertaking, no future proceedings may be brought for that offence. The undertakings are enforceable in the Magistrates' Court by order compelling compliance with the undertaking or 'any other order that the Magistrates' Court considers appropriate in the circumstances'.
The EPA can, at any time, give notice that it considers the offender has not complied with the undertaking and, if the offender still does not comply, the EPA can carry out the actions remaining to be done and publicise the failure of the person to comply with the order. The EPA can then recover the costs of carrying out the actions as a debt. The EPA will keep a public register of these enforceable undertakings.
In addition, the Bill removes the defence of 'no knowledge' for directors. Accordingly, directors are only left with the 'due diligence' defence and the 'not in a position to influence' defence. This change follows recent similar amendments in New South Wales. In practical terms, however, this amendment will not make much difference as the defence was not often used, for the obvious reason that directors should have knowledge of environmental issues.
The Bill also introduces a capacity to enable consent for an indictable matter to be heard summarily to be given in a defendant's absence. As Minister Thwaites stated in the Second Reading Speech, such an amendment is designed to increase the chances of successfully and efficiently prosecuting a charge under the Act against a person who has fled the Victorian jurisdiction.
Finally, the Bill repeals section 63A of the Act, which allowed three years between certain listed offences taking place (eg aggravated pollution) and proceedings being instituted. This means that a proceeding for a summary offence under the Act must be commenced in the Magistrates' Court within a year after the offence is alleged to have been committed.
Clean-up notices
The Bill proposes two significant changes to the Act's clean-up notice regime:
- notices may be issued to a company where its subsidiary or related or associated company caused or permitted pollution; and
- each reference to 'clean up' is expanded to be a reference to 'clean up and ongoing management' measures.
The first change is designed to avoid corporate structures quarantining liability for polluting behaviour and is modelled on provisions in the Corporations Act 2001 (Cth), which attach liability to parent companies for the insolvent trading of a subsidiary. The change will allow the EPA to order a parent company to accept responsibility for clean-up and ongoing management where its subsidiary is liable under s62A of the Act. The circumstances in which the EPA can do this are where, having regard to the level of 'control' over the subsidiary, the directors of the parent company were aware of the conduct of the subsidiary or it is reasonable to expect them to be so aware and the EPA is not satisfied that the company took all reasonable steps to prevent the polluting conduct.
The second change will clarify that the EPA has the power to require ongoing monitoring and clean-up into the future after a pollution or contamination incident.
Resource plans
Based on the Victorian Government's greenhouse industry program, which required high energy users to prepare and implement action plans, the Bill introduces an environment and resource efficiency plan scheme (the scheme) to facilitate and promote increased environmental resource use efficiency. The scheme requires the occupier of a premises where a 'scheduled activity' is undertaken (the occupier) to register with the EPA (or face a penalty of $6,445.80) and submit prescribed reports at prescribed times (or face a penalty of $32,229). A 'scheduled activity' is defined as the use of environmental resources in excess of prescribed thresholds for resources of that kind, or disposal of waste off-site in excess of the prescribed threshold for wastes of that kind.
In addition, the occupier must prepare and submit to the EPA for its approval a plan, or face a penalty of $32,229. The plan must contain certain matters, including:
- description of relevant environmental resource use and disposal of waste off-site;
- actions to achieve environmental resource efficiency gains and waste disposal reductions;
- timeframes for implementing the actions;
- how the plan's implementation will be monitored; and
- the period of time the plan is to be in operation.
Once the EPA approves the plan, the occupier must implement it within the timeframes specified in the plan. However, according to Minister Thwaites in the Second Reading Speech, only 'actions which have a three-year or better payback period must be implemented'. If the occupier transfers the undertaking of a scheduled activity to another person while a plan is in operation, the transferee becomes responsible for implementing the plan and must notify the EPA of the transfer.
Since the Bill provides for much of the new scheme to be fleshed out in regulations, it remains to be seen in what form and how often an occupier will have to report to the EPA and what thresholds of resource use and waste disposal will invoke the scheme.
Conclusion
If enacted in its current form, the Bill will equip the EPA with more tools to protect and improve the Victorian environment. Businesses need to be aware of the new powers to impose clean-up responsibility on parent companies and of the new obligations on companies which are large users of energy and water and dispose large amounts of waste.
For further information, please contact:
- Chris SchulzPartner,
Melbourne
Ph: +61 3 9613 8772
Chris.Schulz@aar.com.au - Jim ParkerPartner,
Sydney
Ph: +61 2 9230 4362
Jim.Parker@aar.com.au - Rosanne MeurlingSpecial Counsel,
Brisbane
Ph: +61 7 3334 3517
Rosanne.Meurling@aar.com.au - Robyn GlindemannSenior Associate,
Perth
Ph: +61 8 9488 3712
Robyn.Glindemann@aar.com.au
