A new approach to an old issue: Victoria's transformed contaminated land laws and legal - WasteMINZ
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A new approach to an old issue: Victoria’s transformed contaminated land laws and legal implications for development and management of brownfield sites Dr Dru Marsh Senior Legal Policy Officer September 2019
Objectives • Scheme overview • Some of the key obligations • Purpose behind new duties-approach • Focus on the approach to contamination
4
Why would someone in New Zealand want to know about
Victoria’s contamination laws?
Context setting
• 4.8 million people
• 268,021 km2
• Ag output:
• $14.8 billion
• 13.9 million ha
• Tourism: $20.9 billion
• 6.3 million people
• 237,629 km2
• Ag. output:
• $14.9 B p.a.
• 11 million ha
• Tourism: $17.4 billion
8
Current Act…
9
More recently…
Environmental public health?
Transformation of EPA Victoria • Statutory Authority + Board • Chief Environmental Scientist • Land use planning referrals • Officers for the Protection of the Local Environment • Environmental Public Health Unit • Emergency Management capabilities
Transformation of EPA Victoria
Act 201712
1991 in NZ…Context setting
Polluter pays vs transfer of risk
KIWI
KIWI-ENGLISH OZ-ENGLISH
• Resource Management Act • Environment Protection Act + Planning
& Environment Act
• NESCS + CLMG + Draft Ecological SVG • NEPM
• MfE • Dep. of Env & Energy
• EPA • ~ NEPC/HEPA/NICNAS
• Regional Council (environment) • EPA (environment + public health)
• Territorial Council (public health) • Local Council
• Resource consent • Planning permit or an EPA licenceObjectives
• Conceptual changes
• Addressing the emerging contaminant
?
challenge
• Approach to the contamination legacyDriving principle: Prevention vs Protection
Failure
Pathway Receptor Harm
Duty mode
Activity Hazard
Holder
Failure
Pathway Receptor Harm
mode
2017 Act focus 1970 Act focus
Focus: Preventing the pollution in the first place by Focus: Protecting the environment and human health
making risk management the primary obligation by punishing polluters that cause harm
No more pollution offencesGeneral Environmental Duty (GED)
“A person who is 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 Assess
options
Identify
as reasonably practicable.” and
to
eliminate
assess
and then
risks
reduce
• Minimise means to eliminate the risks (as far as risks
reasonably practicable) and if not, reduce the risks.
Implement
Duty breach is criminally enforceable for businesses controls to
reduce risks
$1.6 Million max fine ($3.2 M for aggravated offences)
Section 17 of the RMA??Prevention-refocus
OLD
NEW
Risk of harm
Activity Risk controlPrevention-refocus
OLD
NEW
State of Knowledge
Activity Risk controlState of Knowledge: EPA
State of Knowledge: Industry
State of Knowledge: Duty holder
State of Knowledge: Emerging contaminants • Duty to minimise risk sits with person conducting the activity • Not obligation of the State to know of all risks • As state of knowledge evolves – duty holder expected to adjust activities accordingly
Risk management in practice
Pathway
Hazard source
Supplying Stuff Receptor
Pty Ltd
Making Stuff Pty Ltd Receptor
Hazard source
Receptor
Pathway
ActivitiesIndustry-wide issues
ActivitiesIndustry-wide issues
lndustry-wide issues
Industry-wide issues
Are there limits on the duty?
“so far as is reasonably practicable”
5 factors to weigh up:
• Likelihood
• Degree of harm Risk
• What the duty holder: knew or ought reasonably
have known about the risk and means of its control State of knowledge
• Means of control were available and suitable
• Cost of control measures not disproportionate to Relative to risk
risk - Not duty holder’s
financial position
Proportionate to riskDuty to report “notifiable incidents” to EPA
Pollution incident
• Leak, spill,
unintended/unauthorised
deposit or escape of a
substance
NOTIFY
• Results in pollution
Material harm
• Adverse effect, not negligible
• High conservation value
• >$10,000 to prevent/minimise
harm or restore/rehabilitateDuty to respond to harm caused by pollution incident
• Applies after any pollution
incident
• Restore affected area to pre-
incident state
TAKE ACTION
• Polluter-pays principle
• Applies whether GED is breached
or not
• No sanctions apply
• Basis for a remedial noticeSo what about legacy contamination?
Current contaminated land triggers
?
1. Fuel storage system
2. Sampling
3. Soil disturbance
No change 4. Subdivision
in use 5. Change of land useIs contamination covered by the GED?
Duty to manage contamination risks General environmental duty
Trigger: A person’s Based on a person’s activities
management or control of into the future
contaminated land
* Polluter remains liable
Direct activity = GEDGeneral Environmental Duty (GED)
“A person who is 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 Assess
as reasonably practicable.” Identify and
options to
eliminate and
assess risks
then reduce
risks
• Minimise means to eliminate the risks (as far as
reasonably practicable) and if not, reduce the risks.
Implement controls
to reduce risksDuty to manage contamination
in management
“A person who is engagingorincontrol of contaminated
an activity land must
that may give
minimise
rise to risks of harm to human health or the environment
& the
from pollution or the
waste must minimise
contaminated land those risks, so far Assess
as reasonably practicable.” Identify and
options to
eliminate and
assess risks
then reduce
risks
• Minimise means to eliminate the risks (as far as
reasonably practicable) and if not, reduce the risks.
Implement controls
to reduce risksWhat is “contaminated land”?
Definition:
• Land is contaminated if a chemical substance or waste is
present on or under the surface of the land:
• In a concentration above background level; and
• Creates a risk of harm to human health or the
environment
• Background:
• As “determined” for that substance/location; or otherwise
• The naturally occurring concentration in the vicinity
Ambient concentrations?Complying with the duty
• Identify any contamination present
• Investigate and assess
• Measures to minimise risk – could include clean- Assess
up, but other measures may be appropriate Identify and
options to
eliminate and
assess risks
• Provide that information to others affected by the then reduce
risks
contamination
• Tenants? Neighbors?
• Provide information when transferring Implement controls
to reduce risks
management or control
NOT CRIMINALLY ENFORCEABLEDuty to notify of certain contamination
• Act default threshold
• >$50,000 anticipated remediation costs
• Displaced by regulations
• Proposed regulations on exhibition
• Modeled on NSW scheme
• Primary purpose: improve EPA knowledge of extent of
contamination
CRIMINALLY ENFORCEABLESupporting reforms
• Environmental auditor system reformed (c.f. SQEP)
• Largely formalising what is in guidance
• Environmental audit system
• New “tool” called a preliminary risk screening assessment
• Scoped audits – fit for purpose
• Increased referrals between planning authorities and EPAAvenues for seeking compliance
NOTICE TO INVESTIGATE ENVIRONMENTAL ACTION SITE MANAGEMENT ORDER
NOTICE
EPA reasonably believes:
Officer reasonably believes: Officer reasonably believes: • Long-term management is
• Land is or may be • Land is or may be necessary because of
contaminated contaminated contamination OR
• Pollution incident occurred • Pollution incident occurred • Risk of harm from pollution
• Industrial waste dumped and likely to cause harm or waste
• Risk of harm from pollution • Industrial waste dumped EMPs, monitoring and
or stored waste • Harm has occurred or is monitoring equipment, use of
likely from pollution or land, notifying EPA, specified
Investigation stored waste actions
Clean up Runs with titleRedirecting corporate liability for contamination
EAN
Body Body corporate
corporate • Failed to comply
• Then wound up
SMO
Polluter?Victoria Unearthed
• Business directories
(HAIL)
• Past audits
• Old landfills
• Audit overlays
• Groundwater use
restriction zones
• www.environment.vic.gov.au/sustainability/victoria-unearthedA duties framework - General environmental duty (preventative duty) - Duty to notify of event - Duty to respond to harm and restore - Duty to notify of contaminated land - Duty to manage contaminated land - Duties for priority waste - Duty to manage industrial waste disposal
engagement@epa.vic.gov.au
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