Councils are reminded that an application for review of a pollution abatement notice may be filed in VCAT within 21 days of the date of issue. It is important that Council's are alert to this time frame, particularly given the impending Christmas and New Year period.
In response to the migration of landfill gas impacting on the Brookland Green Estate in Cranbourne (circa 2008) the Environment Protection Authority (“EPA”) introduced changes to its guidance documents. The changes significantly increased the liability and cost (capital and operational) for landfill operators and owners.
The guidance reform included:
- amendment to the ‘Best Practice Environment Management – Siting, Design, Operation and Rehabilitation of Landfills’ (Publication 788 - October 2001, amended September 2010 and October 2014) (“BPEM”)
- introduction of the ‘Closed Landfill Guideline’ (Publication 1490 - December 2012) (“CL Guideline”)
In 2013 the EPA commenced implementation of the CL Guideline by issuing pollution abatement notices for closed landfills previously licenced under the Environment Protection Act 1970 ("Act") (3 collective issuing of notices; 2 complete, a further set of notices to be issued). Typically multiple notices were issued for each closed landfill; a notice requiring a hydrogeological risk assessment and a further notice requiring a rehabilitation plan and aftercare management plan to be produced. The notices required these plans to be produced to the standard of the BPEM for final capping, landfill gas management, leachate management and monitoring infrastructure.
A number of council’s contested the notices in the Victorian Civil and Administrative Tribunal (“VCAT”) successfully settling with the EPA as appropriate standards.
In March 2014 the Victorian Auditor-General’s Office (“VAGO”) commenced an audit to determine if landfills are appropriately, designed, managed and rehabilitated to prevent unacceptable risk to public health and environment.
VAGO published its report titled ‘Managing Landfill’ in September 2014 (“VAGO Report”) making 15 recommendations (5 for local government and 10 for the EPA and State Government).
Standard of rehabilitation
At the core of the VCAT applications was the standard of rehabilitation to be adopted in the rehabilitation plan required by the notices.
These proceedings settled by consent amending the notices to require the standard of rehabilitation for capping (cap profile) to be consistent with the licence or the requirements prescribed in legislation at the time of closure of the respective landfill cells.
Click here to view the table.
Where previous rehabilitation does not comply with the standard applicable at the time of the cells closure, remedial work is to be completed to that standard and not to today's standard in the BPEM (i.e. no retrospective application of the BPEM). This significant concession by the EPA results in multi million cost savings for local government.
Who is responsible for aftercare
The VAGO Report identifies that the land owner is the entity responsible for the aftercare and any remedial rehabilitation works for a closed landfill. This is entirely consistent with the power under the Act to issue notices to the ‘occupier’ (owner or person in occupation or control of the land).
Typically, when a council ceased operation of a landfill the land was rehabilitated to the standard at that time and then handed back to the owner (often the State Government).
From December 2012 to mid 2014 the EPA issued approximate 110 notices for closed landfills (approximately, 90% to councils and 10% to private entities). To date no notices have been issued to State Government for closed landfills located on Crown land.
The VAGO report relied on data from the EPA that all closed landfills previously licensed under the Act are located on land owned by local government or private entities. There are numerous closed landfills located on Crown land across Victoria, where State Government is responsible for land management.
Recently the EPA has retracted from its position of issuing notices to council's for closed landfills located on Crown land, where the council no longer has a function in relation to the land (i.e. Committee of Management). It is not clear if the EPA intends to issue notices to the State Government for those sites.
The EPA's approach for landfills on privately owned land where the land owner is impecunious is also unclear, although no notices have been issued in these circumstances and local councils are taking measures to protect the local community.
In August 2014 the Act was amended allowing monies collected from the landfill levy to be granted to a public entity or other body established for a public purpose to be used for environment assessment, protection, restoration or improvement purposes.
This allows councils to apply for grants for funding for the assessment, rehabilitation and aftercare of closed landfills.
The VAGO Report recommends that the EPA and the State Government develop options for the rehabilitation of high risk landfills utilising monies from the landfill levy. Councils should consider persuing grants in appropriate circumstances.
It is critical that these developments are understood and factored in to councils decisions. The potential cost consequence to local government is significant where decisions are made accepting costs and liability going beyond a council's responsibility or the relevant landfill rehabilitation and aftercare standard.
Councils are reminded that an application for review of a pollution abatement notice may be filed in VCAT within 21 days of the date of issue.
It is important that Council's are alert to this time frame, particularly given the impending Christmas and New Year period.