On 9 July 2012, the Victorian Environmental Protection Authority (EPA) released its Review of contaminated environments Discussion Paper (Discussion Paper). The Discussion Paper follows a number of recently released reports into the Victorian contaminated land management system and forms part of the EPA's Contaminated Environments Review process, which aims to comprehensively review the management of contaminated land in Victoria in accordance with the strategic priorities identified in the EPA's five-year plan.

The EPA is calling for submissions on the issues raised in the Discussion Paper. Submissions must be received by midnight Friday 3 August 2012. A copy of the Discussion Paper can be viewed here.

EPA's Contaminated Environments Review

The EPA's five-year plan, released in 2011, details how the EPA intends to improve its regulatory performance and protect Victoria's environment. "Dealing with past pollution" is one of three strategic priorities identified by the EPA in its five-year plan, through which the EPA aims to reduce the environmental and health impacts of historical contamination. To address this priority, the EPA is undertaking a comprehensive review of the management of contaminated environments in Victoria.

This process commenced with workshops involving a number of stakeholders (for example, environmental auditors, land owners, developers, other government departments and councils) on the current contaminated land management system in Victoria, which were run by the EPA in December 2011. The Discussion Paper summarises the comments made and key issues identified by the stakeholders at the workshops.

The key issues include: confusion about appropriate roles and responsibilities of regulatory bodies within the system, criticism of the EPA's decision-making and application of statutory tools, issues with the Environmental Audit system, questions about mandatory reporting and orphan sites, and the lack of a state-wide integrated system for the capture and management of information on contaminated environments.

The Discussion Paper raises further questions in relation to these issues and asks for further feedback and suggestions on potential options for managing the issues raised. Unfortunately, at this stage, the EPA has not made any recommendations for reform. However, the topics discussed and questions asked in the Discussion Paper provide a good indication of potential areas for reform.

Questions raised include:

  • how the EPA can improve transparency and consistency in its application of regulatory tools
  • what needs to happen for stakeholders to have confidence that the roles and responsibilities between various regulatory bodies are clearly defined and accountability established within the contaminated land management system
  • whether mandatory reporting should be introduced, and if so, who should be required to report and in relation to what type of contamination.

The Discussion Paper is the latest release amongst a suite of recent reports that have reviewed the effectiveness of the current framework for managing contaminated land in Victoria and the role of the EPA.

Other recent reports include the audit and subsequent December 2011 report by the Victorian Auditor General's Office into the roles and practices of the EPA, the Department of Planning and Community Development and councils in managing contaminated environments and the Planning Minister's Advisory Committee's review and September 2011 Issues and Options Paper on the planning framework for managing potentially contaminated land. The Advisory Committee's final report was completed some time ago but has not yet been released by the Minister.

About the same time as the release of the Discussion Paper, the EPA also released its Annual Compliance Plan 2012-13 (Compliance Plan), which outlines the EPA's key compliance and enforcement priorities and projects for the next two years. (A copy of the compliance plan can be viewed here). These priorities include inspecting 100% of sites that hold a licence, review of licence annual performance statements and inspecting sites subject to a works approval. Clearly, holders of an EPA licence and works approval should carefully check and monitor their compliance obligations to avoid EPA identifying non-compliances and taking enforcement action. The EPA also proposes to inspect 90% of sites with remedial notices (pollution abatement notices and clean up notices). Breach of a works approval or licence condition or failure to comply with the requirements of a notice is an offence subject to a maximum penalty of approximately $340,000.

Further, in relation to contaminated sites, the EPA proposes to inspect 90 contaminated sites on the Priority Sites Register. This has important compliance implications for businesses, state authorities and local government who may be subject to a clean-up notice or pollution abatement notice relating to a contaminated site. Closed and past licensed landfills are also coming under scrutiny, with 100% to be inspected and issued with new post-closure pollution abatement notices.

Implications

Given the amount of review recently focused on contaminated land management, including the EPA's Contaminated Environments Review, it would appear that the current contaminated land framework in Victoria is in for a major overhaul in the coming years. Making a submission on the Discussion Paper is an opportunity for interested persons to have a say on the future of the Victorian contaminated land management system. All submissions and comments must be received by midnight Friday 3 August 2012.

DLA Piper has extensive experience in advising and acting for clients in relation to contaminated land in Victoria including land owners and developers, state government and local government. We were also involved in the workshops conducted by the EPA. If you would like to discuss the questions raised by the Discussion Paper separately or require advice or assistance in preparing a submission to the EPA, please contact Mark Beaufoy.

The EPA's Compliance Plan gives a clear indication of the EPA's compliance and enforcement program and priorities. Many licensed sites have already been inspected and the EPA has issued an increased number of remedial notices. There are important compliance implications for businesses operating sites subject to licences, works approvals or remedial notices. Owners and occupiers of contaminated sites should also be aware of EPA's Compliance Plan, review current compliance requirements, take proactive action to address any identified non-compliances and be ready for a visit by the EPA. You should also know your responsibilities and rights, and the EPA's powers, during a site visit and inspection by the EPA.

If you have questions about the EPA's Compliance Plan and how you can prepare, please contact Mark Beaufoy.