Thinking | 21 June 2021

Victoria’s new environmental law from 1 July 2021: how to comply

By Meg Lee and Luke Denham

With 1 July just around the corner, have you determined whether you need a new development or operating licence or a new permit or registration for your activities under Victoria’s new environmental protection reforms?

This is the second in our series of articles on how to comply with the significant amendments to the Environment Protection Act 2017, which comes into force on 1 July 2021 (new EP Act). Our May article explored the key new duties, transition to the new licensing regime and an overview of the new Regulations and Guidance materials.

We now look at the new ‘permissions’ and ‘determinations’ procedures, and provide insights into activities that were not previously regulated but will now require approval from the Environmental Protection Authority (EPA).

New permissions regime

The new EP Act will introduce a broader, risk-based compliance framework. This new regime will consist of three tiers of ‘permissions’ that correspond to the risk of the underlying activity. These tiers range from ‘licences’ (for the highest-risk activities), ‘permits’ (for medium-risk activities) to ‘registrations’ (for lower-risk activities). ‘Risk’ for this purpose is informed by both the likelihood and consequence of the risk occurring.

The Environment Protection Regulations 2021 (new EP Regulations), which will also commence on 1 July 2021, will specify which tier of permission is required for each activity specified in the new EP Regulations, and the application and assessment processes for those permissions.

These permissions will also help to set performance standards under the general environmental duty (GED) by setting performance standards and customised conditions, including reporting requirements for permission holders.

New permission #1: licences

Existing works approvals and licences will be effectively replaced by development and operating licences respectively.

Development licences (replacing works approvals under section 19B of the existing EP Act)

A development licence will be required for the design, construction and modification stages of a building project. In particular, section 44 of the new EP Act will require a person to hold a development licence if, for the purposes of a ‘prescribed development activity’ (PDA), a person is:

  • constructing or installing plant or equipment;
  • developing processes or systems; or
  • modifying (other than general maintenance) plant, equipment, processes or systems or the operation a PDA:
    • if doing so creates a risk of material harm to human health or the environment from pollution or waste; or
    • in ‘prescribed circumstances’ (which are yet to be prescribed in the Regulations).

However, a person does not need a development licence if an exemption under section 44(2) applies.

Undertaking any of the above activities without a development licence and exemption is an indictable offence that attracts penalties exceeding $340,000 for persons and $1.65 million for businesses.

What do I need to do?

  • You should review current and proposed development activities against the exemptions under section 44(2) of the new EP Act to see if a development licence will be required for those activities from 1 July 2021.
  • If you will require a development licence for those activities (and you do not already hold a relevant works approval), you will be able to apply for a development licence online. This online portal is still under development – we hope it will be ready for 1 July!
  • Once you have submitted your development licence application online, it will be publicly advertised for at least 15 business days to allow the community an opportunity to provide feedback. You will have an opportunity to resolve any concerns arising out of this process, which may involve a meeting with the EPA and members of the community.
  • The EPA will then assess your application against the environmental requirements under section 69(3) of the new EP Act, together with any public comments and your responses.
  • The EPA must decide on a complete development licence application within four months of receiving it (adjusted if the EPA requires more information). If the EPA approves your development licence, a draft development licence with proposed conditions will be provided and discussed with you before it is finalised.
  • You will be able to appeal the EPA’s decision on the development licence application to the Victorian Civil and Administrative Tribunal (VCAT) within 15 business days of it making its decision.

Operating licences (replacing licences under section 20 of the existing EP Act)

From 1 July 2021, an activity that previously required an EPA licence (under section 20 of the current EP Act) will be defined as a ‘prescribed operating activity’ (POA) for which an ‘operating licence’ will be required under section 45 of the new EP Act.

However, a person does not need an operating licence if one of the exemptions under section 45(2) apply.

Undertaking a POA without an operating licence or an exemption is also an indictable offence that attracts penalties exceeding $340,000 for persons and $1.65 million for businesses.

What do I need to do?

  • If you hold an existing EPA licence or are planning to undertake new activities or projects, you should consider the implications of the EPA’s draft Guidance for Operating Licences (Publication 1850.1) on your operations. These guidelines outline:
    • standardised content for EPA operating licences, for both new and existing licence holders;
    • how the new operating licences will differ from existing EPA licences; and
    • the EPA’s principles and approach for review of licence conditions.
  • The EPA will be reviewing existing licences and updating the conditions of those licences to ensure they are consistent with the kinds of conditions that may be imposed under the amended EP Act, which obviously could have significant implications for businesses. If the EPA proposes to do so, it must give the licence holder at least 10 business days’ notice. During this notice period, the licence holder may request (in writing) that it not be required to comply with the amended or new conditions until six months after the conditions are amended or imposed.

Further information about the new licence regime can be found on the EPA’s website.

New permission #2: permits

From 1 July 2021, a ‘permit’ will be required under section 81 of the new EP Act to undertake a ‘prescribed permit activity’ (PPA). A PPA is an activity specified as such in the new EP Regulations and includes, among other activities, the supply or use of wastewater, biosolids or reportable priority waste, and temporary on-site industrial waste treatment. There are permits for various industries including animal, waste and outdoor concerts.

However, a person does not need a permit if an exemption under section 46(2) applies.

Undertaking a PPA without a relevant permit or an applicable exemption is an indicatable offence that attracts penalties of over $165,000 for persons and $825,000 for businesses.

What do I need to do?

  • You should review current and proposed operating activities against the PPAs specified in the new EP Regulations, and the exemptions under section 46(2) of the new EP Act, to see if a permit will be required for those activities from 1 July 2021.
  • If you will require a permit, you will be able to apply for a permit online. Although we note that this online portal is still under development.
  • Once you have applied for a permit, EPA must, within 15 to 42 business days, make a decision to issue the permit, subject to any conditions, or refuse it. Once you have applied for a permit online, it will be publicly advertised for at least 15 business days to allow the community to provide feedback. You will have an opportunity to resolve any concerns arising out of this process, which may involve a meeting with the EPA and members of the community.
  • The EPA will then assess your application against the environmental requirements under section 69(3) of the new EP Act, together with any public comments and your responses.
  • The EPA must decide on a complete development licence application within four months of receiving it (adjusted if the EPA requires more information). If the EPA approves your development licence, a draft development licence with proposed conditions will be provided and discussed with you before it is finalised.
  • You will be able to appeal the EPA’s decision on the development licence application to VCAT within 15 business days of it making its decision.

Further information about the new permit regime can be found on the EPA’s website.

New permission #3: registrations

From 1 July 2021, a ‘registration’ will be required under section 47 of the new EP Act to undertake a ‘prescribed registration activity’ (PRA). A PRA is an activity specified as such in the new EP Regulations and includes, among other activities, commercial dry-cleaning, low volume e-waste reprocessing, low volume organic waste processing and transporting low-hazard reportable priority waste.

However, a person will not need a registration if one of the exemptions under section 47(2) apply. As with licences and permits, these exemptions include actions to comply with other authorisations, exemptions, or requirements provided under the new EP Act.

Undertaking a PPA without a relevant permit or an applicable exemption is an indictable offence that attracts penalties of over $82,500 for persons and $412,500 for businesses.

Further information about the new registration regime can be found on the EPA’s website.

Transitional arrangements for existing permission holders

Under section 471(3) of the new EP Act, holders of an existing permission (an ‘old permission’) will be ‘taken’ to hold the equivalent ‘new permission’ on and from 1 July 2021, subject to the same conditions as the old permission. The equivalent permissions are as follows:

Old permission New permission
Works approval Development licence
Licence Operating licence
Research, development or demonstration approval Pilot project licence
Section 30A Emergency waste authorisation Section 157 Authorisation for discharge/disposal
Waste approvals, noise approvals, vehicle permits, environmental improvement plans (EIPs) Permits
Vehicle permits Registrations or Permits
Exemptions Exemptions, permits, registrations, etc

 

However, under section 472 of the new EP Act, between 1 July 2021 and 1 July 2022, EPA can amend, revoke, add, and consequently amend one or more conditions to ensure that the new permission is consistent with the kinds of conditions that may be imposed under the new Act.

As noted above, if the EPA proposes to do this, it must give the licence holder at least 10 business days’ notice. During this notice period, the licence holder may request (in writing) that it not be required to comply with the amended or new conditions until six months after the conditions are amended or imposed. However, a full merits review is not available.

Further information for businesses in transitioning to the new EP Act and Regulations can be found on the EPA website.

Newly regulated activities

Under the new EP Regulations, around 27 activities that were previously unregulated will now require one of the above permissions. One major new activity that was not previously regulated by the licence regime is that of waste and resource recovery sites, or transfer stations. The level of permission required will depend on the processing or production volume, or hazard level. The activities include:

Development licence and permit:

  • municipal landfills servicing <5,000 people
  • operating an animal industry, livestock saleyard or holding pen that deposits waste solely to land

Licence, permit or registration:

  • waste and resource recovery (depending on volume)

Permit:

  • conducting more than six outdoor concerts or entertainment events
  • containment of category D waste soil
  • discharge of waste to aquifer
  • low-volume on-site wastewater management systems
  • operating outdoor entertainment venue or event outside of prescribed operating hours
  • supply or use of wastewater, biosolids or reportable priority waste
  • temporary on-site industrial waste treatment
  • transporting controlled waste into or out of Victoria

Permit or registration:

  • transporting reportable priority waste (depending on hazard classification)

Registration:

  • low volume e-waste reprocessing
  • low volume organic waste processing
  • low volume waste tyre storage
  • temporary storage of low volume biomedical waste, asbestos or designated waste under certain conditions
  • low volume glass reprocessing
  • conducting commercial dry-cleaning

In setting conditions on permissions the EPA will have regard to the new Environment Reference Standard (ERS).

In particular, the ERS sets out the environmental values of the of the ambient air, ambient sound, land and water environments that are sought to be achieved or maintained in Victoria and standards to support those values. Most reference standards also have indicators and objectives. An objective is the level of an indicator, or a way of using an indicator, to assist the EPA in assessing the environmental value.

The Act specifically requires EPA to consider the environmental values in the ERS when deciding, among other things, whether or not to issue or provide exemptions for development or operating licences and the conditions included on those approvals – for example, discharge limits.

New Determinations regime

A Declaration of Use (DoU) is a tool that enables waste producers and recyclers to reuse, store and recover materials from low-risk waste. They function like a contract between the producer and recycler. A DoU can be used when industrial waste is proposed to be used at a site without needing to process it further. DOUs can only be used for industrial waste and cannot be used for high-risk wastes, which will require a permission.

Under regulation 64 of the new EP Regulations, a person in management or control of industrial waste and/or a site receiving industrial waste may make a DoU to enable its immediate use or application to land. Applying waste to land is only allowed through a DoU for a limited number of wastes, including organic landscaping waste and untreated timber.

If seeking to apply any other waste to land, a person will need to seek a ‘determination’ issued by the EPA for guidance.

The DoU will be a short self-assessment statement or checklist that describes the waste and its risks, identifies legitimate uses for it, and provides details about its quality and safety.

DoUs will be valid for up to 12 months, or until the waste’s form changes; there is no need to obtain a new DoU every time the person or site receives the same kind of waste.

Further information about DoUs can be obtained from the EPA’s website.

Further assistance and detail

The EPA will continue to release guidance material for different industries about how you comply with the GED in the relevant industry sectors. At a minimum, companies should be reviewing this guidance material and implementing the recommended steps to ensure compliance.

In addition, the Final Draft of the Regulations provide significant additional detail and prescribed information to support the interpretation of the EP Act.

Please contact us if you need any assistance with understanding the new duties or with preparing or updating your environmental management system in time for the 1 July 2021 commencement date.

Contact

Meg Lee

Meg is a Partner in our Property and Projects team, specialising in planning and environment law. She has over 20...

Natalie Bannister

Natalie Bannister

Partner & Commercial National Practice Leader

Natalie has close to 20 years’ experience in property, planning and environment law and has been recognised as a...

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