Principal, EPA Environmental Auditor
Principal Environmental Consultant
In Victoria, Australia, new environmental laws are proposed to come into effect from 1 July 2020. These laws will change the powers and tools that the Environment Protection Authority Victoria (EPA) has at its disposal to prevent environmental harm.
At the centre of the new Environment Protection Amendment Act 2018 is the general environmental duty (GED) that requires all Victorian individuals and businesses to prevent or minimise risks to the environment to the extent practicable.
There will be many changes, and there’s much to come to grips with. Some of the major changes are to requirements regarding waste management and contamination, and these are likely to extend specific regulatory controls to a significantly greater number of businesses of all sizes – many of which may have limited awareness of the new requirements. Victorian businesses that take the time to fully understand the implications of the legal changes before they come into effect will find adapting to these new expectations and requirements far easier.
As part of the implementation of the new legislation, proposed Environment Protection Regulations were released for comment in September 2019. Public consultation about the proposed regulations and standards has now closed, and submissions are being reviewed before finalising the regulations. In Golder’s submission, we suggested some areas in which the proposed regulations could be clarified or fine-tuned.
Below we discuss the key proposed changes and issues associated with managing waste and contaminated land, together with areas in which additional measures or clarification are under consideration or recommended.
Definition of waste
Our understanding of the draft regulations is that the definition of the term ‘industrial waste’ is broadening, and will include materials currently considered part of the resource recovery stream (e.g., fill material soil, recycled concrete and glass, and by-products from commercial operations currently safely processed elsewhere).
This broad definition of industrial waste and the new definition of reuse in the Act, coupled with the obligation to ensure that industrial waste is only transported to an authorised place, means that specific regulatory controls will extend to a significantly greater number of regulated entities.
Many materials not currently subject to specific regulatory control will be captured in new waste arrangements. This will affect both waste generators and waste processors.
Industrial waste will be required to be sent to a facility with a licence, permit or registration or, where appropriate, will require a Declaration of Use (DoU) for reuse. Organisations will need to update their procedures and, if needed, prepare a DoU to remain compliant.
Requirements for managing waste soil
As it does not contain waste and must meet stringent chemical contaminant criteria, fill material should have very low risk; however, under the amended legislation, fill material — including uncontaminated soil — is classified as an industrial waste and must be managed as such. Based on recent advice from EPA, we understand that additional measures may be introduced to simplify how fill material is to be managed.
A new category of contaminated soil waste, Category D, is proposed to be introduced. According to the proposed regulations, a permit will be required for onsite containment of Category D contaminated soil. It is unclear whether the EPA intends to permit the onsite reuse or containment of Category C or B contaminated soils, and we have suggested that this should be clarified.
Further clarification is needed on how waste acid sulfate soils (WASS) will be regulated. The proposed regulations do not appear to include any provisions for requiring a licence, permit or registration for the offsite reuse or disposal of WASS. Currently the Industrial Waste Management Policy (Waste Acid Sulfate Soils) (IWMP) requires that WASS be managed in accordance with current best practice. Disposal or reuse of WASS is only permitted either at a site licensed to accept WASS or where the occupier of the site has an EPA-approved Environment Management Plan. Based on recent advice from EPA, we understand that additional measures may be introduced to clarify expectations on how WASS is to be managed.
Notification of contamination
The Act sets a ‘duty’ for businesses to manage contaminated land. The proposed regulations set out when notification of contamination will need to be provided to the EPA. But under what circumstances do businesses need to investigate land to confirm whether notification is required?
The notification criteria are linked to the potential for exposure to contamination or entry into groundwater and concentrations linked to the National Environment Protection Measure. This appears to present an opportunity for a risk-based approach to assessing the likelihood of exposure and determining the need for notification.
The prescribed notifiable contamination concentrations put equal emphasis on data sourced from soil vapour, soil and groundwater. However, there is considerable industry knowledge that the latter two data sources are inherently unreliable for predicting soil vapour intrusion issues. Golder has recommended that data from direct measurement of soil vapour should take precedence over the other two methods and that the regulations should be amended accordingly.
The application and use of the notification criteria are complex. Although risk-based approaches may be able to be used, there is uncertainty and a lack of clear precedents. The EPA has indicated that the intent is to better understand the extent of land contamination issues, but it is unclear what action will result once a notification has been made.
Closing note …
While changes in legislation and regulations can be confusing for those affected, particularly in the lead-up to implementation, it is likely that the EPA will provide further clarification once all the public submissions to the draft legislation have been reviewed and the regulations are finalised. Now is the time for businesses operating in Victoria to become acquainted with the rules surrounding general environmental duty (GED), stay ahead of, and prepare to navigate the implications for their activities as painlessly as possible.