GED vs. Specific Environmental Duties: What’s the Difference?
UNDERSTANDING YOUR DUTIES
Victoria’s new environmental regulatory regime came into effect on 1 July 2021. This is the commencement date of the Environment Protection Act 2017 and other subordinate legislation – the Environment Protection Regulations, 2021 and Environment Reference Standard.
GENERAL ENVIRONMENTAL DUTY (GED)
The new regulatory regime has shifted its focus from a reactive to an enforceable prevention-based approach, i.e. before harm occurs as opposed to after, underpinned by the new General Environmental Duty (GED). The GED is basically a duty for individuals and organisations to proactively identify and minimise the risk of activities potentially harming the environment or human health through pollution or waste. It is intended to be an overarching flexible tool to fill regulatory gaps where no specific requirement exists in current legislation.
There will be a significant increase in penalties under the new regime, and it will be easier for Environment Protection Authority Victoria (EPA) to enforce the regulatory scheme.
The GED is modelled off the general duty imposed on employers under Occupational Health and Safety (OH&S) legislation and therefore compliance should mean little change or no change to well-run existing operations as organisations will be familiar with and be able to use similar risk identification, assessment and mitigation methodologies.
Importantly though, and similar to the OH&S duty, a breach of the GED, i.e. by failing to use and maintain systems for the identification and management of risk, can occur even if no harm to human health or the environment has actually occurred.
Some common risks organisations must manage include:
– business activities that produce noise, odour or runoff to stormwater.
– the storage, use and disposal of liquids and chemicals.
– management of wastes, including the choice of transporter of wastes, and the receiver of wastes.
PERMISSIONS
To perform prescribed commercial or industrial activities that may cause pollution and waste, you must have a permission such as a licence, permit or registration. There are 3 tiers of permissions based on the level of risk to human health and the environment:
– Licences for high-risk prescribed activities.
– Permits for medium-risk prescribed activities.
– Registrations for low-risk prescribed activities.
To apply for a permission (or permission exemption), you must submit information required by EPA in the approved form and manner.
OTHER DUTIES
As well as the GED which applies to all Victorians, there are other specific duties for:
– Reporting and Managing Pollution
Encompassing the Duty to Notify of Incidents and Duty to Respond to Harm, a duty holder must report certain pollution incidents (known as ‘notifiable incidents’) to EPA as soon as practicable. A notifiable incident is one that causes or threatens to cause harm to the environment or human health. Similar to OH&S duty and the GED, the duty to report applies even if no actual harm has occurred. More detail on what is and what is not a notifiable incident is provided on the EPA website (see link above).
Regardless of whether there is a duty to report the incident or not, the pollution incident still needs to be managed as part of the GED.
A duty holder must also restore a site to its original state (so far as is reasonably practicable) following a pollution incident that has resulted in contamination (regardless of fault). This duty applies concurrently with the duty to manage (see below).
– Managing Contaminated Land
The contaminated land duties apply to you if land (including groundwater), you manage or control is contaminated. When contamination is present, or you suspect it’s present, you have a duty to manage the risk of harm to human health and the environment from that contamination so far as is reasonably practicable. This is the case even if the contamination happened before you took control of the land. Read our blog post ‘What is Contaminated Land’ to find out how contamination is defined and identified.
There are two contaminated land duties:
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- The duty to manage (DtM) contaminated land; and
- The duty to notify (DtN) EPA of contamination in certain circumstances.
The GED may also apply in relation to contaminated land if you undertake an activity such as excavating contaminated soil or disturbing underground tanks. If you undertake such activities, you must minimise risks.
The duty to manage and duty to notify apply regardless of whether you’re undertaking an activity, unlike the GED.
– Correct Waste Disposal
As per sections 133-135, 139, 140, 142, 143 and 3(1) of the EPA Act 2017, a duty holder must classify, transport and dispose of industrial waste to a lawful place. It also must consider alternatives to waste disposal such as re-use or recycling. Most industrial waste does not need to be classified until it is to be transported offsite (except for hazardous waste or suspected contaminated soil).
Waste is unwanted or surplus material including any solid, liquid or gas, irrespective of its potential use or value. Different waste categories include:
- Industrial waste
- Priority waste
- Reportable priority waste
See Part 2 of the EPA Act 2017 for the full definitions of the different waste categories.
Thinking of accepting some fill soil onto your property? Make sure you read our post on ‘8 Actions to Avoid to Taking Contaminated Soil onto Your Land‘ before you do so.
ENVIRONMENTAL LAW ENFORCEMENT
EPA authorised officers have powers of entry. Council officers can also be authorised officers under the EPA Act 2017. Authorised officers who visit your business or site will consider issuing you with directions or remedial notice if they believe you are not fulfilling one or more duties.
EPA takes an escalating approach to enforcement. This means they will respond more harshly if a business is resistant, evasive or doesn’t account for its risks. A breach of the GED and other duties could lead to criminal or civil penalties. Refer to the EPA Act 2017 for these penalties.
WHAT SHOULD YOU BE DOING TO ADDRESS THE GED AND THE OTHER ENVIRONMENTAL DUTIES?
This will ultimately depend on the activity or activities you are in engaging in, however, we offer the following general tips:
- Be sure to understand the risks of harm to human health and the environment from pollution and waste arising from your activities;
- Obtain independent expert advice on the risks, and the ways to eliminate or minimise those risks as necessary;
- Keep abreast of best practice measures relevant to your industry and activity;
- Understand the legislation and the extent of your duties and obligations under the EPA Act 2017;
- Ensure that you have systems, processes and procedures in place to implement identified measures to minimise risks of harm;
- Keep accurate and up to date records of action taken to demonstrate compliance with the GED.