New environmental laws are proposed to come into effect from 1 July 2021 in Victoria where some parts of the law will come into effect gradually, and other elements will be enforceable from day one. The Environment Protection Act 2017 (the EPA Act) will change Victoria’s focus for environment protection and human health to a prevention-based approach, underpinned by the general environmental duty. The Environment Protection Authority Victoria (EPA Victoria) will have enhanced powers and tools to prevent and minimise the risks of harm to human health and the environment from pollution and waste.
Are you ready for the changes? In a series of updates, we briefly investigate some changes. This article briefly explores the proposed air framework. Other available articles explore the proposed waste disposal categories, and the water framework.
The general environmental duty (GED) is a centrepiece of the new laws. It applies to all Victorians with a new approach to preventing harm from waste and pollution rather than managing impacts after harm has already occurred. The GED requires that any individuals and businesses in Victoria engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.
Doing what is ‘reasonably practicable’ means that you must put in proportionate controls to mitigate or minimise the risk of harm. This may include taking steps to:
Identify and assess risks
Assess options to eliminate and then reduce risks
Implement controls to reduce risk
The GED is modelled on an equivalent duty in Victoria's Occupational Health and Safety Act 2004 (Vic). As most organisations already have good management practices in place, businesses may therefore find that these practices align with the GED.
However, and in an Australian first, the GED is criminally enforceable. Breaches of the GED could attract civil and/or criminal penalties of up to $1.6 million for a company. In comparison, while there are similar duties in other states and territories (e.g. Northern Territory, Queensland and South Australia), a breach of the GED does not carry any civil or criminal penalties in these jurisdictions.
The proposed air regulations, which are in Part 5.2, will not significantly alter the obligations of duty holders. They instead are aimed to provide certainty on how to meet the general environmental duty for specific types of risks to human health and the environment. The proposed environment reference standard also contains reference standards transposed from the State Environment Protection Policy (Ambient Air Quality) (SEPP [AAQ]).
The proposed changes relating to air cover:
Class three substances - the final regulations provide equivalence to SEPP (Air Quality Management) (AQM) for the management of Class 3 substances by outlining the steps to manage the generation and emission of these substances to comply with the GED.
Solid fuel heaters - The proposed final regulations require for instance, wood heaters manufactured and sold in Victoria to comply with joint Australian/New Zealand emission and efficiency standards (AS/NZS 4012:2014 and AS/NZS 4013:2014). The installation of non-compliant wood heaters will remain regulated by the Victorian Building Authority under the Plumbing Regulations 2018.
Ozone-depleting substances (ODS) – EPA Victoria is producing a new air quality guidance for businesses to meet their obligations under the new GED. The final guideline is to be published at the end of 2021.
Vehicle emissions – managed under Part 5.6 of the regulations and reflecting the Environment Protection (Vehicle Emissions) Regulations 2013. Focus is on fuel quality and exhaust emissions, not on how vehicles are operated – i.e the changes do not introduce Victoria-specific emission standards, as this would cause regulatory overlap with national standards.
National pollutant inventory requirements – provisions incorporate the requirements set out in the NPI NEPM. The proposed final regulations accordingly set out requirements for reporting to the NPI.
In getting familiar with the new classification, some concerns have been raised for some of the areas relating to the air framework. For instance, looking at solid fuel heaters, some concerns may still relate to air quality and health impacts from poorly maintained or inefficient heaters as well as the prohibited manufacture and supply of non-compliant solid fuel heaters. While the idea of a phase-out might initially appear plausible, solid fuel heaters are the only available form of heating in some parts of Victoria. A phase-out of wood stoves or fires across the state would therefore appear to be unfeasible. Nevertheless, under the GED, all duty holders have a responsibility to minimise their risks. EPA Victoria’s website has additional information on the correct operation of solid fuel heaters.
The new framework attempts to introduce greater flexibility and proportionality to risk through the GED. Since commencing a public inquiry process in 2015, EPA Victoria has been working with stakeholders from various industries, including composting, agriculture, energy and construction, to draft the proposed regulations and the Environment Reference Standard (ERS). In doing so, EPA Victoria has released and will continue to release updated guidance for different industries about the application of the GED by sector.
Next Steps and Further Information
Changes in legislation and regulations can be confusing for those affected, particularly in the lead-up. For this reason, it is worthwhile that businesses in Victoria, as duty holders, do become familiar with the changes and implement recommended steps to ensure compliance. Further information is available at EPA Victoria’s website or by contacting the authority.
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