A public inquiry into the Victorian Environment Protection Authority (EPA) has been announced and will commence on 1 June 2015. The inquiry will cover a variety of issues, including the EPA’s role in relation to public health issues and environment protection, as well as governance, funding and powers of the authority. The industrials sector with EPA licences and works approvals may be affected by the outcomes of the inquiry, including the potential for greater third party involvement. The inquiry also has the potential to impact the wind farm industry. Partner Chris Schulz (view CV), Managing Associate Meg Lee (view CV) and Associate Kate Kirby report.
A ministerial advisory committee has been formed, chaired by Penny Armytage (former Secretary of the Department of Justice), to undertake a public inquiry into the Victorian EPA. Other members of the committee are Jane Brockington (former CEO of the 2009 Bushfires Royal Commission) and Janice Van Reyk (Non-Executive Director of Northern Territory EPA and Melbourne Water).1
The Minister for Environment, Climate Change and Water, Lisa Neville, has previously been critical of the EPA over a number of incidents, including about a spill into Corio Bay and another incident at Yallourn.2 In relation to the inquiry, the Minister said: 'We're making sure the EPA is equipped to provide a healthy environment, which will ensure the best quality of life for our communities.3
The terms of reference published by the Department of Environment, Land, Water and Planning (DELWP) are for the inquiry to report and make recommendations on the following (in order of priority):
- the EPA's appropriate role in relation to public health issues, including at least:
- community concerns, such as exposure to asbestos, chemicals and other pollutants;
- the prevention and management of site contamination, air quality, and water quality in rivers and other waterways;
- the Victorian community's and industry's expectations of the EPA as its environmental regulator;
- the EPA's appropriate role in protecting the environment;
- the ability of the EPA to ensure that:
- the principle of environmental justice is adhered to,
- the environment is protected for the benefit of the community, and
- members of the community can be meaningfully involved in, and access fair treatment through, environmental regulation;
- the ability of the EPA's current governance structures and funding arrangements to enable it to effectively and efficiently discharge its powers, perform its duties, and implement its required functions;
- the scope and adequacy of the EPA's statutory powers and the effectiveness and efficiency of the suite of tools available to, and utilised by, the EPA in enabling protection of the Victorian community and the environment, particularly in light of recent, new and emerging risks and issues; and
- any other matter reasonably incidental to these above matters'.4
The inquiry will have a focus on improving efficiency and minimising the burden of regulation.
The EPA previously commissioned an independent review of its compliance and enforcement activities in 2009/2010 by Stan Krpan, the former Director of Legal Services and Investigations at WorkSafe Victoria.5 This review resulted in mostly operational, organisational and policy recommendations, which the EPA has been progressively implementing, including the publication of a new compliance and enforcement policy in 2011. The 2009/2010 inquiry recommended that the EPA seek the amendment of legislation to 'enable it to better perform its regulatory and enforcement role'.6 However, no substantial changes to the Environment Protection Act 1970 (Vic) have been made since that review. While the Act has been amended since it was introduced almost 46 years ago, the Minister has indicated that the upcoming inquiry 'is about ensuring the regulator keeps up with the times and has the powers and resources it needs to do its job'.7
The terms of reference of the upcoming inquiry are broad and flag a potential overhaul of the Environment Protection Act, including the role of third parties in decision-making processes and the community right to know. To date, the third party rights of review in relation to works approval and licensing under the regime have been deliberately constrained on the basis that the EPA is the body best placed to consider and determine whether a proposal complies with state environment protection policies or is likely to have any unacceptable impact on the environment.
While not mentioned specifically in the terms of reference, it is also possible that the committee may consider the EPA's role in the monitoring and enforcement of noise from wind farms. This issue has been raised by communities, councils and the DELWP in the past due to the burden placed on councils in investigating noise complaints and the inconsistencies that can arise with various bodies regulating this highly technical area.
The inquiry will report to the Minister by 31 March 2016 and it is anticipated that the report will be released to the public (with the Government's response) by mid-2016.
The Government has indicated that it will seek the views of stakeholders. However, it is yet to provide details about how to make submissions to the inquiry. This information is likely to be available once the committee starts work on 1 June 2015. Parties interested in making submissions should monitor the DELWP and EPA websites for more information.