The next time a quantity of diesel or oil is split at your Victorian premises your response will in part be governed by a new ‘environmental duty’.
Underpinning the new Victorian Environment Protection Act 2017 (EP Act) that came into effect on 1 July 2021, is the introduction of the General Environmental Duty (GED).
The general environmental duty (GED) is at the centre of the EP Act. Businesses must reduce the risk of their activities that potentially harm the environment or human health through pollution or waste.
The GED will apply to many businesses, including some that may be dealing with Environmental Protection Authority Victoria (EPA) for the first time.
To meet this new duty, members should be proactive in identifying and implementing practicable risk management measures to reduce the impacts of pollution and waste. Under the changes, the EPA is now empowered to work with businesses to prevent harm, rather than being solely reliant upon remedial measures after environmental damage has occurred.
Businesses with a higher risk of causing environmental harm such as those involved with the design, manufacture, installation or supply of a substance, plant or equipment, can expect additional requirements that may including registrations, permits and licences for prescribed activities. Higher risk activities can pollute soil, groundwater, surface water and air if they are incorrectly undertaken. These activities include, but are not limited to, handling and storing liquids, disposing of chemicals, receiving, storing and treating waste and discharging industrial wastes. Higher risk activities can also produce harmful odour and noise.
If you transport prescribed industrial waste, you have a duty to keep the community safe from pollution and waste. Leaks or spills from vehicles can be a risk to public health and the environment. There is detailed guidance on this issue available here: https://www.epa.vic.gov.au/for-business/business-forms-permits-online-tools/vehicle-safety-standards-industrial-waste-transportation
In assessing whether an organisation has sufficiently minimised the risks of harm so far as is ‘reasonably practicable, the new section 6(2) of the EP Act provides that a decision-making authority will have regard to:
- the likelihood of those risks eventuating;
- the degree of harm that would result if those risks eventuated;
- what the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks;
- the availability and suitability of ways to eliminate or reduce those risks; and
- the cost of eliminating or reducing those risks.
Businesses must report certain pollution incidents (known as ‘notifiable incidents’) to EPA as soon as practicable. Failure to report may result in a penalty.
A notifiable incident is one that causes or threatens to cause harm to the environment or human health. Incidents should be reported if:
- the release is uncontrolled or unplanned and could cause material harm;
- the substances are dangerous or toxic and threaten the environment or people, for example, the safety data sheet indicates a risk to the environment or to people;
- the substances are harmful to water or land in large quantities, such as milk and organic materials;
- a clean up would be expensive; or
- the substance is a ‘substance of concern’ in the Environment Protection Regulations 2020.
The obligation to report applies even where the incident is contained to your site. It also applies where harm is threatened by the event.
So spillages that occur when refuelling or because of improper storage or equipment that is not properly maintained may be a reportable incident.
If the GED is found to be breached, civil and/or criminal penalties of up to $1.6 million could be issued. In cases of either intentional or reckless breaches of the GED, a maximum penalty of up to five years’ imprisonment or fines up to $3.2 million could be imposed.
There are a number of guidance documents available on the EPA Victoria website that can provide general guidance to members on discharging their duty under the GED.
Some beneficial first steps that members can take are to:
- identify environmental hazards in the workplace;
- assess the risk each identified hazard poses;
- develop actions to eliminate the risks or control the risk so far as reasonably practicable;
- document the hazard identification, the risk assessment and controls via an environmental management plan (EMP); and
- ensure your workforce is properly trained and able to follow your EMP to minimise the risk of harm to human health and the environment.
NatRoad communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Our advisors are available to clarify any questions you have and provide the right advice for your business and workforce. Contact David at [email protected] or Richard at [email protected], or on (02) 6295 3000.