Inquiry into the EPA

A major public inquiry into the Environment Protection Authority (EPA) commenced on 1 June 2015. This inquiry will look closely at the EPA to establish how the government can develop the Authority to ensure it can protect public health, while protecting our precious Victorian environment for future generations. An independent three-person ministerial advisory committee (MAC) has been established to conduct the inquiry. The MAC will be supported by its own secretariat.

The Inquiry Terms of Reference include:

  1. the EPA’s appropriate role regarding 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
  2. the Victorian community’s and industry’s expectations of the EPA as its environmental regulator
  3. the EPA’s appropriate role in protecting the environment
  4. 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
  5. 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
  6. 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,
  7. any other matter reasonably incidental to these above matters.

The MAC is required to provide a written report to the Minister by 31 March 2016. The Minister for Environment, Climate Change and Water will publicly release the report and a response to its findings and recommendations on behalf of the Victorian Government in mid-2016.

Further details and a discussion paper can be accessed here. Submissions were open until 31 October 2015. The discussion paper indicates that a review of the EPA’s legislative powers is a key aspect of the inquiry.

Expanded role for Environmental Upgrade Agreements

The Local Government Legislation Amendment (Environmental Upgrade Agreements) Act 2015 (Act) was passed in September 2015. The Act will provide a council-based financing mechanism to help businesses access funding for building works to improve energy efficiency, water efficiency or environmental sustainability. The legislation applies to existing buildings on rateable land, provided that the building is used wholly or predominately for non-residential purposes.

Under an Environmental Upgrade Agreement (EUA), lenders provide finance to a building owner for environmental upgrades, with the local council then collecting the repayments through its rates system and passing them on to the lender. Use of the council rates system means that loans are more secure, allowing lenders to offer more attractive loan terms.

The Act extends the existing arrangements in place under the City of Melbourne Act 2001 to all Victorian councils. The power to enter into an EUA can be delegated to the Chief Executive Officer of the council. The council can specify administrative charges to be deducted from repayments in an EUA.

Native Vegetation Permitted Clearing Regulations Review

The Victorian Government recently announced a review of the Permitted Clearing Regulations. The terms of reference for the review can be accessed here.

A consultation paper is to be released in late 2015, which will provide a basis for further stakeholder engagement.

The Terms of Reference for the review include:

  • The decision making processes and the availability and appropriate use of decision making tools.
  • The accuracy of statewide mapping products and the use of site based species information for consideration in the permit application.
  • The application of the avoid, minimise and offset hierarchy.
  • How the regulations measure and manage cumulative loss.
  • The functioning and liquidity of the credit market arrangements.
  • The appropriateness of costs faced by different groups of proponents.
  • The range of objectives for regulating the removal of native vegetation.
  • The relationship between the “no net loss” objective of the regulations and the state-wide native vegetation management objective to achieve “net gain”.
  • The clarity and operability of the native vegetation exemptions.
  • Whether current compliance activities provide sufficient deterrence to illegal clearing.
  • The appropriateness of current offset rules to provide adequate compensation for the environment.
  • The process of ongoing system improvement and stewardship.

Wind farm planning law changes

In the lead up to the election, the Victorian Labor party proposed to reduce the buffer zone for the development of wind farms in proximity to existing dwellings. On 2 April 2015, Amendment VC124 was gazetted which amended clause 52.32 (Wind Energy Facility) to reduce the allowable distance of a turbine to a dwelling with the landowners consent from 2 kilometres to 1 kilometre. Amendment VC124 also amended clause 61.01-1 of all Victorian planning schemes to make the Minister for Planning the responsible authority for all new planning permit applications for the use and development of land for the purpose of a Wind energy facility.

Hazelwood Mine Fire Inquiry Reopened

The Hazelwood Mine Fire Inquiry was reopened on 26 May 2015. In summary, under its new Terms of Reference, the Board of Inquiry is examining:

  • what options are available to decrease the risk of fire arising from or impacting the Anglesea Mine for the 2015/16 fire season
  • whether there were any increases in the rates of death in the Latrobe Valley as a result of the Hazelwood Mine Fire, comparing data from 2009-2014
  • what measures are available to improve the health of the Latrobe Valley communities in relation to any health impacts identified by the Board as being associated with the Hazelwood Coal Mine Fire
  • mine rehabilitation options for the three Latrobe Valley coal mines.

The full Terms of Reference are available here. The findings and recommendations regarding the Anglesea Mine were delivered on 31 August 2015. The Board of Inquiry recommended that Alcoa publish a progress report detailing the steps it has taken to implement its fire minimisation strategies by 15 September 2015, which are to be updated by 15 November 2015, on the Alcoa website. The Inquiry will deliver its report into whether the Hazelwood mine Fire contributed to an increase in deaths in the Latrobe Valley on 29 January 2015. Other findings and recommendations on mine rehabilitation will be delivered on 15 March 2016.

New regulations to control hazardous tyre storage

The Environment Protection (Scheduled Premises and Exemptions), (Industrial Waste Resource) and (Fees) Amendment Regulations 2015 commenced on 29 April 2015. The regulations introduce new controls for the storage of used tyres. A transitional period applies between now and 29 October 2015 to allow existing occupiers to make application for works approval and licence.

Businesses that do not currently store waste tyres but that are proposing to store more than 40 tonnes or 5000 ‘EPU’ after 29 April 2015 will need to apply to EPA Victoria for a works approval (to build the site), prior to applying for a licence (to operate).

There are exemptions from the licensing requirements. The EPA advise that:

  • Waste tyres can be reused in other applications, including, in an acceptable manner:
    • as safety barriers at racing venues and similar activities
    • by farmers to weigh down covers on silage stacks
    • as a second-hand tyre where safe to do so.
  • Otherwise, waste tyres should be reprocessed at suitable facilities or be shredded before they can be disposed to landfill. Unacceptable reuse or disposal of used tyres include:
    • erosion control works
    • fences
    • artificial reefs
    • to assist burning of other wastes (e.g., stumps, dead stock)
    • drains constructed from half-tyres
    • dumping or burial at unlicensed premises.
    • If you are reusing tyres in an acceptable manner, then the EPA works approval and licensing requirements will not apply. In some cases, planning approvals may still be required. 

Closed landfills update

As many Victorian councils will be aware, the Environment Protection Authority has been issuing post-closure pollution abatement notices to the occupiers of closed landfills.

In many instances, the PC PANs are being issued in a form that seeks to retrospectively apply the requirements of EPA Publication 788.2 (better known as the ‘Landfill BPEM’) to landfills that were closed and rehabilitated under previously policy guidance many years ago.

In several instances the PC PANs have been the subject of review proceedings brought before the VCAT. We have seen a number of instances recently where the EPA has issued statutory notices which are arguably invalid or which include requirements which are either beyond the power of the EP Act, or which are not adequately justified from an evidentiary point of view.

Among the concerns with notices we have seen are examples where:

  • statutory notices require the occupier to clean up land that is not controlled by the occupier
  • standard requirements based on the Landfill BPEM are sought to be imposed on closed landfills that were not constructed with sophisticated leachate or landfill gas management infrastructure.

If you are intending to seek review of such a notice you should remember that:

  • independent internal review is available within seven days of the date of the notice (this does not affect the 21 day period to commence review at VCAT
  • any application for review of a PAN must be lodged with VCAT within 21 days
  • if an application for review is lodged at VCAT this will stay the effect of the PAN pending the outcome of the review proceeding, which allows mediation to occur without time pressure.

If your organisation is served with a statutory notice by the EPA, and if you are unsure as to whether it is likely to be cost-effective to seek review of the notice, please do not hesitate to contact us.

Current policy reviews

The review of the Environment Protection (Scheduled Premises) Regulations 2007 is due to sunset in 2017. Click here for further details.

The review of State Environment Protection Policy (Waters of Victoria), with a Policy Impact Assessment due for release for public comment in 2016. Visit here for further details.