New obligations following overhaul of environment protection regulatory regime

The new regime will move to a more preventative and duties-based regime than the current, more reactive regime.

What are the changes?

The new regime introduces a new general environmental duty (GED) for persons engaged in an activity that may give rise to risks of harm to human health or the environment from pollution or waste. 

The GED requires a person to eliminate the risks of harm.  If that is not reasonably practicable, the risks must be reduced.

There are four further key changes:

1. Pollution Notification Duties: will require a person to notify the EPA if engaged in an activity that results in a “pollution incident”, being an incident that causes or threatens to cause material harm to human health or the environment.
2. Contamination Duties: will require a person engaged in management or control of contaminated land to minimise risk of harm even if not engaged in an activity giving rise to that risk. The EPA will be able to issue clean up notices to the current or former owner of contaminated land.
3. Re-direction of corporate responsibility: the EPA can now direct a company to comply with a notice issued to a related body corporate, even where the related body corporate has been wound up.
4. Third-party enforcement: After 12 months, civil remedies will become available to persons whose interests are affected by a breach of the Act, or persons to whom a Court grants leave where the application is in the public interest and the EPA has failed to take enforcement action. 

What do you need to do?

It is an offence to breach the GED (such as by failing to take reasonably practicable steps to address an environmental risk).  It is therefore important to understand how the GED impacts you and your business.  The GED is modelled on existing OH&S duties in Victoria, so it will be useful to draw from any existing safety management system in this process.

It is also important to understand your obligation, after 1 July 2021, to notify the EPA as soon as practicable after you become aware of a “pollution incident”.  Take a common sense approach. You should report an incident to the EPA if:

• the release is uncontrolled or unplanned and could cause material harm;
• the substances are dangerous or toxic and threaten the environment or people, or are ‘substances of concern’;  
• the substances are harmful to water or land in large quantities; or
• the cleanup or management of the pollution would cost $10,000 or more.

How can we help?

To discuss how these changes may affect you, please do not hesitate to contact a member of our team below.