New Environment Protection Laws in Victoria


New Environment Protection Regulations will commence on 1 July 2021 as part of an overhaul of the environment protection legislative framework in Victoria.

Environment Protection Regulations 2021 (Vic)

This article applies to all Victorian organisations.

Please be advised that the Environment Protection Regulations 2021 (Vic) (the new Regulations) will commence on 1 July 2021 and, alongside the repeal of the Environment Protection Act 1970 (Vic) (the old Act) and amendments made to the Environment Protection Act 2017 (Vic) (the new Act) by the Environment Protection Amendment Act 2018 (Vic) (the Amending Act), will make substantial changes to the environment protection legislative framework in Victoria.

Contaminated land

Part 2.2 of the new Regulations will introduce provisions relating to contaminated land. Importantly, this new Part requires a person in management or control of land where a non-aqueous phase liquid is present in soil or groundwater to clean up the non-aqueous phase liquid so far as reasonably practicable and remove or control the source of the liquid if possible. A non-aqueous phase liquid is defined in the new Regulations as an organic or inorganic liquid that is not miscible with water, can exist in soil or groundwater in various forms, is commonly present as a measurable thickness or sheen, and may be identifiable analytically when solubility has been reached or observed to be present within the unsaturated soil, rock profile or aquifer matrix.

Litter

The new Regulations have also made amendments to provisions relating to litter, including the replacement of several existing obligations that will be repealed by the Amending Act. Repealed and replaced provisions include offences relating to the deposit or affixing of unsolicited documents, offences relating to the defacing of public litter receptacles, and provisions relating to the loading of vehicles, which are now substantially replicated in regulations 55, 57 and 58 of the new Regulations.

Regulation 56 introduces several new obligations, including a requirement for a person who commissions the printing of a document that is or is intended to be distributed as an unsolicited document, and a person who engages another person to distribute an unsolicited document, to ensure that the documents are distributed in a way that does not contravene the new Regulations. Contravention of regulation 56 will carry a penalty of 20 penalty units for a natural person (currently $3,304.40), or 100 penalty units for a body corporate (currently $16,522).

Industrial & Priority Waste

Part 4.2 of the new Regulations regulates industrial and priority waste and its classification for the purposes of the new Act. Industrial waste is defined in the new Act as waste arising from commercial, industrial or trade activities or from laboratories, or waste that is prescribed as industrial waste including, as set out in regulation 60 of the new Regulations, waste from any source received at a place or premises which stores or handles waste generated at another site for the purpose of resource recovery or off-site transfer or disposal, and waste transported for fee or reward (other than the collection of kerbside waste by or on behalf of a council or a Waste and Resource Recovery Group). Further, priority waste is defined in the new Act as any waste, including municipal waste and industrial waste, that is prescribed to be priority waste for the purposes of eliminating or reducing risks of harm to human health or the environment posed by the waste, ensuring the priority waste is managed in accordance with the new Act, or facilitating waste reduction, resource recovery and resource efficiency. For the purposes of this definition, regulation 65 prescribes industrial waste that is classified, or would have been had it been classified, as priority waste under regulations 61 and 62 of the new Regulations.

Under the new Regulations, industrial waste must be classified in order to determine the applicable waste code and whether it is also priority waste. Regulation 61 sets out the applicable waste codes and classification criteria for certain types of industrial waste, however organisations should note that if the waste cannot be classified in accordance with the hazardous properties assessment criteria in the Waste Classification Assessment Protocol, the person who has management and control of the waste must apply for a designation in relation to the waste. Importantly, a person who has management or control of soil sourced on-site from contaminated land must determine whether that soil is also priority waste. Such soil is to be categorised as priority waste if it meets the requirements specified in the Waste Disposal Categories—Characteristics and Thresholds, or if it contains asbestos, as set out in regulation 62. Failure to comply with this provision carries a penalty of 60 penalty units for a natural person (currently $9,913.20), or 300 penalty units for a body corporate (currently $49,566.00). Organisations should note that a classification of waste under regulations 61 or 62 of the new Regulations must be consistent with any applicable designation issued by the Environment Protection Authority (the Authority) in relation to that type of waste.

Further, a person who has management or control of priority waste, priority waste consigned for disposal, or priority waste that is soil sourced on-site from contaminated land must classify that waste before relinquishing control of it to another person for the purposes of transporting it. A person in management or control of priority waste that is soil not sourced on-site from contaminated land, however, is required to classify that soil as soon as practicable after sourcing it. Regulations 66, 67 and 68 of the new Regulations set out certain categories and classification criteria in relation to the classification of priority waste and provide that the classification of priority waste must be consistent with any applicable designation issued by the Authority. The new Regulations have also introduced a prohibition on mixing, blending or diluting priority waste with other wastes that would result in a change to its waste classification, except in accordance with a designation issued by the Authority. A breach of this offence will incur a penalty of 60 penalty units in the case of a natural person (currently $9,913.20), and 300 penalty units in the case of a body corporate (currently $49,566).

Further, record keeping and information requirements relating to industrial and priority waste will be updated, and a person who has the management or control of priority waste must now make records including the details set out in regulation 69 of the new Regulations and retain those records for two years from the date on which the waste was classified. In addition, any person who receives information under regulations 79, 80 or 81 must retain that information for 12 months from the date on which the reportable priority waste is transported. Any person who transports controlled waste into Victoria from another State or a Territory or out of Victoria must be able to produce the information in Parts 1 and 2 of Schedule B to the National Environment Protection (Movement of Controlled Waste between States and Territories) Measure (NEPM (MCW)) when transporting the controlled waste. Failure to comply with either of these provisions attracts a penalty of 20 penalty units for an individual (currently $3,304.30) or 100 penalty units for a body corporate (currently $16,522).

Obligations on brand owners

Part 4.3 of the new Regulations will introduce new obligations on brand owners, the definition of which includes (but is not limited to):

  • in relation to a product that is sold or distributed in Australia, a person who is the owner of the product name under which the product is sold or distributed; and
  • in relation to a plastic bag that is provided to a consumer for the transportation of products purchased by the consumer in Australia, the importer or manufacturer of the bag, or the retailer who provides the plastic bag to the consumer at or around the point of sale.

Organisations should note that Part 4.3 of the new Regulations does not apply to brand owners who are signatories to and comply with the Australian Packaging Covenant or any other arrangement which the Authority is satisfied produces equivalent outcomes to those achieved by the Australian Packaging Covenant, and brand owners who have an annual turnover in Australia of less than $5 million.

Under the requirements set out in the new Regulations, a brand owner must ensure that the materials used in packaging for which the brand owner is responsible are recovered at a recovery rate for a financial year of at least 70% for each category of material that the brand owner has used, that the recovered materials are reused or recycled so far as reasonably practicable, and that consumers are given adequate information as to how the packaging may be recovered. Each of these new requirements carries a penalty of 60 penalty units for an individual (currently $9,913.20), or 300 penalty units for a body corporate (currently $49,566.00). Organisations who are brand owners should note that the new Regulations have also introduced a requirement to ensure that the need for the design and packaging is regularly reviewed.

Brand owners must also keep certain records, as set out in regulation 98, for a period of 5 years, and provide a report to the Authority prior to 30 September each year setting out the brand owner’s compliance with the new Regulations. Failure to comply with these provisions attracts a penalty of 20 penalty units for a natural person (currently $3,304.40), or 100 penalty units for a body corporate (currently $16,522.00).

Prohibited chemical substances

Part 5.1 of the Regulations introduces a new prohibition on the use of certain chemical substances except in certain circumstances, including:

  • Trichlorofluoromethane CFCl3 (CFC 11);
  • Dichlorodifluoromethane CF2Cl2 (CFC 12);
  • Trichlorotriflouroethane C2F3Cl3 (CFC 113);
  • Dichlorotetrafluorethane C2F4Cl2 (CFC 114);
  • Monochloropentafluoroethane C2F5Cl (CFC 115);
  • Bromochlorodifluoromethane CBrClF2 (Halon 1211); and
  • Bromotrifluoromethane CBrF3 (Halon 1301).

The above substances must not be processed, stored or used unless the person doing so notifies the Authority at least 30 days before the relevant activity commences, receives permission from the Authority to undertake that activity, and complies with any conditions or requirements set by the Authority. Contravention of these requirements will carry a penalty of 60 penalty units in the case of a natural person (currently $9,913.20), and 300 penalty units in the case of a body corporate (currently $49,566.00).

Occupiers of reporting facilities

The new Regulations have introduced obligations on occupiers of reporting facilities, defined as facilities where the ANZSIC code for one or more activities undertaken at the facility is included in the list of ANZSIC codes for National Pollutant Inventory reporting. Within 3 months of the end of a reporting period, the occupier of a reporting facility must now provide the information set out in regulation 104 of the new Regulations, along with a statement to the Authority, with failure to do so attracting a penalty of 20 penalty units for an individual (currently $3,304.30) or 100 penalty units for a body corporate (currently $16,522). The reporting period, for a facility, means a financial year, or an annual period approved for the facility by the Authority.

Importantly, for the purposes of providing the information required by regulation 104, the occupier of a reporting facility must use the specified estimation techniques set out in regulation 105 to estimate emission data and mandatory transfer data. Other record keeping requirements include an obligation on an occupier of a reporting facility to keep the data used in deciding if the reporting threshold for a substance specified in the National Environment Protection (National Pollutant Inventory) Measure (NEPM (NPI)) is exceeded in the reporting period for the occupier’s facility and the data used in calculating emission data or mandatory transfer data given to the Authority for five years after the data is required to be given. Failure to keep such records carries a penalty of 20 penalty units for an individual (currently $3,304.30) or 100 penalty units for a body corporate (currently $16,522).

Noise

Part 5.3 of the new Regulations introduces several new provisions relating to noise, including a requirement under regulation 113 to conduct any prediction, measurement, assessment or analysis of noise within a noise sensitive area in accordance with Noise Protocol. In addition, if 2 or more commercial, industrial and trade premises (whether existing or proposed) emit, or are likely to emit, noise that contributes to the effective noise level, a person in management or control of one or more of those premises must take all reasonable steps to ensure that the contribution from each of the premises, when combined, does not exceed the noise limit for the noise sensitive area.

On-site wastewater management systems

The new Regulations have set out several requirements in relation to on-site wastewater management systems, including a new requirement for a holder of a permit relating to the construction, installation or alteration of an on-site wastewater management system to ensure that any such system specified in the permit is not used until the council has approved it. Failure to obtain council approval attracts a penalty of 20 penalty units for an individual (currently $3,304.30) or 100 penalty units for a body corporate (currently $16,522).

In addition, Part 5.7 of the new Regulations introduces new obligations on owners of land, or persons in management or control of land, on which an on-site wastewater management system is located. Importantly, persons in management or control of land on which an on-site wastewater management system is located must take all reasonable steps to ensure the system is operated so as not to pose a risk of harm to human health or the environment, and to ensure the system is maintained in good working order. From 1 July 2022, a person in management or control of land on which an on-site wastewater management system is located must also notify the relevant council as soon as practicable after becoming aware that the system poses a risk of harm to human health or is otherwise not in good working order. Each of these provisions carries a penalty of 10 penalty units for a natural person (currently $1,652.20), or 50 penalty units for a body corporate (currently $8,261).

Further, persons who are owners of land on which an on-site wastewater management system is located must provide to a person in management or control of the system written information regarding the correct operation and maintenance of the system. Failure to do so carries a penalty of 10 penalty units for a natural person (currently $1,652.20), or 50 penalty units for a body corporate (currently $8,261). The owner must also keep and hold a record of all maintenance activities carried out on the system, including any pump-out and service records, for a period of 5 years after each maintenance activity. Failure to comply with this provision carries a penalty of 5 penalty units for a natural person (currently $826.10), or 25 penalty units for a body corporate (currently $4,130.50).

Organisations should also note that a person in management or control of land on which a septic tank system is located must ensure the contents of the septic tank system do not overflow. Failure to do so attracts a penalty of 10 penalty units for a natural person (currently $1,652.20), or 50 penalty units for a body corporate (currently $8,261).

Please click here to access the full Regulations.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au