1 Dial (a lawyer) before you dig –What you need to know about contaminated land! The state of contaminated land regulation in Victoria VPELA seminar, 6 July 2016 _1
2 A short recent history…‘My finding is that the extent of problems associated with the operation of the EAO are now so overwhelming that it is inappropriate/ imprudent for the Tribunal to seek to utilise these four criteria to resolve this type of conditions dispute involving so many complicated issues arising from the EAO… Clearly the EAO is ripe for review and Tribunal hopes that a review can “wipe the slate clean” in terms of how the EAO operates… In the Tribunal’s view anything short of an overall review of the wording of the EAO is dabbling around the edges of the problem’ (Member Philip Martin) Year Event October 2007 Premier Building and Consulting Pty Ltd v Spotless Group Limited & Ors [2007] VSC 377 (5 October 2007) s.62A(1AA) included in Environment Protection Act 1970 November 2008 Class action brought in the Supreme Court of Victoria by the property owners against City of Casey, EPA and others known as the ‘Brookland Greens Estate, Cranbourne’ matter (Wheelahan v City of Casey & Ors) July 2009 VCEC, Final Report – A Sustainable Future for Victoria: Getting Environmental Regulation Right October 2009 Brookland Green Estate: Investigations into Methane Gas Leaks report by Ombudsman Victoria January 2010 Department of Treasury and Finance, Victorian Government Response to Final Report – A Sustainable Future for Victoria: Getting Environmental Regulation Right February – March 2010 The Yarra PCL decisions - Architype v Yarra CC [2010] VCAT 170; Architype Australia Pty Ltd v Yarra CC (includes summary) (Red Dot) [2010] VCAT 497 February 2011 Compliance and Enforcement Review: A Review of EPA Victoria’s Approach by Stan Krpan on behalf of EPA September 2011 Potentially Contaminated Land Advisory Committee: Issues and Options Paper EPA 5 Year Plan: December 2011 VAGO Managing Contaminated Environments
3 A short recent history… (cont.)Year Event March 2012 PCL Advisory Committee Report July 2012 EPA Review of contaminated environments discussion paper February 2013 EPA Contaminated Environments Strategy April 2013 State Government response to PCL Advisory Committee July 2013 Statutory Policy Review – Final Report: Review of Statutory Policy under the Environment Protection Act 1970 by the EPA and the Department of Environment and Primary Industries February 2014 Revised CUTEP guidelines issued May 2014 Plan Melbourne – focus on urban renewal sites October 2014 Landfill BPEM, section 8 – s.53V/ risk assessment requirements for planning decisions in landfill buffers 24 October 2014 Cleaner Environments – Smarter Urban Renewal by Victorian Government November 2014 Change in Government, 2014 policy platform – focus on ‘environmental justice’ and ‘community right to know’ 2015 Various inquiries/ committees appointed - CFA Fiskville inquiry (December 2014), Independent Inquiry into EPA (June 2015), Plan Melbourne Refresh (March 2015), Major Hazard Facility Advisory Committee (September 2015) May 2016 Independent Inquiry into EPA Vic report released
4 The need for reform… … My investigation identified that the EPA failed to take adequate enforcement action in relation to the landfill over a number of years. This was not as a result of a shortage of powers as the Act affords EPA extensive statutory powers and an array of enforcement tools. In my view, EPA ineffectively utilised the enforcement tools at its disposal… (Oct 2009) … The EPA’s monitoring and inspection activities lack coherence, purpose and coordination. This combined with poor business information because of EPA’s lack of data reliability, poor analysis and reporting and inadequate documentation of its rationale for decisions, means that there is neither sound compliance monitoring nor effective enforcement regimes. As a consequence, there is little assurance that hazardous waste is stored and disposed of appropriately. (June 2010) …Common to these reviews and my observations during the review was a confusion in the EPA of the organisations purpose and a neglect of its role as regulator and its responsibility for enforcement of the law (Feb 2011)
5 The need for reform… (cont.)…there is no denying that there are problems in the current system for managing contaminated land in Victoria. Some people we spoke to think these problems run so deep that a root and branch review of the system is required. (Sept 2011) …agencies are not effectively managing contaminated sites, and consequently cannot demonstrate that they are reducing potentially significant risks to human health and the environment to acceptable levels (Dec 2011) …EPA recognises that creating an optimal system for dealing with contaminated environments in Victoria is not a short term project (Feb 2013)
6 Reform recommendations – system improvementsTopic Recommendations Inquiry / report System improvements Undertake a systematic and coordinated review of the entire regulatory framework for the management of potentially contaminated and contaminated sites to improve clarity and address gaps, including: -The wording application and use of the environmental audit overlay -The application of the framework for planning permits and planning scheme amendments and the types of use to which it applies -The use, content, guidance, material and peer review of environmental site assessments -Establishing mandatory reporting requirements -Establish processes to capture information about framework and system issues and processes to address issues in a timely way -Establish a performance framework to assess the efficiency and effectiveness of the contaminated sites framework and system. VAGO, December 2011 - Review beneficial uses of groundwater - Enforcement of Statement conditions - Review history of industrial uses in Res zones (non-conforming uses) - Apply EAO to existing and former service station sites in residential zones - Review EAO on residential properties unlikely to have been used for industry in past - Guidance on model precinct based approach - EAO should not be applied without some form of assessment - Risk based approach, only require audit when no other management options PCL Advisory Committee, March 2012 (Recommendation 6) That the links between statutory policy and the statutory land use planning system and permitting process be retained and strengthened. That EPA, DEPI and DTPLI review and address inconsistencies between the statutory policy framework and the statutory land use planning framework. Statutory Policy Review, July 2013
7 Reform recommendations – system improvements (cont.)Topic Recommendations Inquiry / report System improvements (General Practice Note) - Distinguish between land in EAO, on council/EPA register of PCL and other - Clearly set out requirements for site history and preliminary site assessment - Councils to develop protocols and training programs for council planners - Precinct wide assessment before rezoning industrial areas for urban renewal - More information of list of contaminating activities - Restrict use of s.173 agreement for Statement conditions - Standard permit condition and Site Remediation Management Plan to enforce statement conditions - Guidance on monitoring of ongoing conditions PCL Advisory Committee, March 2012 System improvements (EAO) - Require a permit for nominated list of sensitive uses, buildings and works associated with a sensitive use - Require a permit for subdivision - No permit required for buildings and works with no excavation, buildings more than 3m above natural ground level, works approved by a Site Management Plan or audit, works required to contain contamination or make site safe - Audit not mandatory for building and works for an existing sensitive use - Exemption for works associated with an audit – demolition, site preparation, basement (as advised by an auditor) - Audit required before permit issued where any secluded private open space or children’s play areas at ground level - Permit cannot be granted until Certificate or Statement
8 Reform recommendations – system improvements (cont.)Topic Recommendations Inquiry / report System improvements - Update Environmental Audit Overlay to better target risks (preliminary risk screening, simplifying removal and application of EAO) - More targeted use of the audit system in planning permit applications (preliminary risk screening) - Review definition of ‘sensitive use’ and ‘potentially contaminated land’ (consistency between VPPs and SEPP) - Clear, risk-based principles for assessment and remediation of contaminated environments (review of Contaminated Land SEPP and Groundwaters SEPP, more risk-based focus to audit system) - Changed expectations for clean up of contaminated groundwater (more strategic approach to risk based assessment and clean up of groundwater – precinct wide assessment for urban renewal areas, metro Melbourne) - Integrated environment and planning instruments (clearer roles and accountabilities, review of SPPF and VPPs, integrated guidance and ‘one stop shop’ on statutory system - Transparent performance measures and reporting arrangements - Accreditation of assessors Cleaner Environments – Smarter Urban Renewal, Oct 2014
9 Reform recommendations – identification (cont.)Topic Recommendations Inquiry / report Identification of sites -Develop mechanisms and processes that enable the identification and recording of contaminated land - Assess the risk of these sites - Prioritise high risk sites and actions to manage the associated risks. VAGO, December 2011 - Systematically identifying PCL - EPA maintain a central register of PCL - Industry profiles on contaminating activities PCL Advisory Committee, March 2012 CE2: developing a centralised, publicly available listing of information on contaminated environments known to EPA (including GQRUZs) CE3: developing options for EPA to gain information about contaminated environments that would not come to the EPA’s attention through the current system. EPA Contaminated Environments Strategy, Feb 2013 Mandatory notification of serious health risks (expanding imminent hazard to include cumulative exposure over longer term) Cleaner Environments – Smarter Urban Renewal, Oct 2014
10 Reform recommendations - information (cont.)Topic Recommendations Inquiry / report Recording of information, more transparency, monitoring and enforcement Develop systems to capture ongoing site conditions to inform their compliance monitoring activities around the development, management and clean up of contaminated sites Develop compliance monitoring programs and enforcement processes consistent with better practice and perform these activities on a routine basis Assess the level of expertise and financial resources required to accurately manage and clean up high risk sites. VAGO, December 2011 Strengthened compliance and enforcement (scope of EPA / council responsibilities, s.173 agreement and Statement conditions, formal notice on title, EPA compliance checks and reporting) Cleaner Environments – Smarter Urban Renewal, Oct 2014
11 Independent Inquiry into EPAA Ministerial Advisory Committee (MAC) appointed in May 2015 to conduct the Inquiry. The MAC’s Terms of Reference required it to consider: the EPA’s role relating to public health, environment protection and the regulation of greenhouse gas emissions; the appropriateness of the EPA’s governance, existing structures and resourcing; the scope and adequacy of the EPA’s powers; and the EPA’s role in environmental justice. Discussion Paper released in August 2015 followed by a series of public consultation hearings. More than 200 written submissions were received. Report released 16 May 2016 (> 400 pages), 48 recommendations The Government expected to respond to the Report later this year.
12 EPA Independent Inquiry - key recommendationsEP Act overhaul RECOMMENDATIONS 5.1, 7.1 Create modernised protection and administration Acts, and an integration and coordination to clarify roles and responsibilities across government agencies General duty RECOMMENDATION 12.1 Introduction of a general duty to take reasonably practicable steps to minimise the risks of harm to human health and the environment from pollution and waste. Pollution incident planning RECOMMENDATION 12.3(iii) Introduction of a requirement for EPA licensees to prepare and implement. pollution incident plans Pollution incident notification RECOMMENDATION 12.3(iv) Introduction of a mandatory requirement for all businesses (not only licensees) to notify pollution incidents to the relevant authority (EPA or local government) and integrate with existing emergency / incident planning. More activities requiring a licence RECOMMENDATIONS 12.2, 12.3(ii) Expanding the cohort of activities requiring a works approval or licence to include all activities with significant impacts on human health or the environment, regardless of the type of hazard posed. New licence category for post-closure landfills and high risk contaminating activities Increased penalties and strengthening third party rights RECOMMENDATIONS 13.3(i),(iv), 7.5 Increase maximum penalties for criminal offences and introducing a civil penalty regime ($360K > $1M, $2M negligence, $5M wilful) Third party rights to restrain / remedy breach of environmental law Modernize inspection and enquiry powers of EPA RECOMMENDATION 13.4 Powers similar to safety regulators Managing legacy risks RECOMMENDATION 14.1 and 14.2 Database of high risks sites managed by DEWLP (but no mandatory reporting) Integrating planning and environmental decision making on contaminated sites to provide more consistent, risk-based approach to screening, assessment and remediation requirements and ongoing compliance mechanisms Increased role for Vic EPA in planning RECOMMENDATIONS 10.1, 10.2 Ministerial Direction to trigger requirement to seek advice from EPA on strategic planning decisions which involve significant environmental and human health risks / near licenced facility Formal involvement of EPA in strategic planning processes including where development in close proximity to a licensed facility, including waste facilities. Reverse land-use buffers RECOMMENDATION 10.3 Developing strengthened land use planning mechanisms that establish and maintain buffers to separate conflicting land uses, avoid encroachment problems (e.g. MHF, landfills, other industry)
13 What’s next? Complete overall of the Environment Protection Act - query whether likely in the short term, but required (EP Act has been amended more than 80 times in its history – needs updating and a refresh) Changes to scheduled premises and types of activities requiring a licence and new licence compliance tools could be effected more easily through relatively minor amendments and updated regulations Better information on contaminated sites and transparency of that information - has improved, making notices, audit reports, and GQRUZs… but still a long way to go and only relates to regulated sites, gathering and publishing existing information would be a start Likely to see some kind of notification requirement for contaminated sites and pollution incidents – new legal obligations and risk for owners of licenced and non-licenced sites Recording of information about sites in transparent way - s.173 agreement not a good tool – other jurisdictions do this better… notifications on title, environmental covenants Greater role/ coordination / consistency of local government in environment protection and EPA in planning decision making, increased enforcement and responding to mandatory reporting requires improved funding and training - big questions raised in Independent Inquiry report around EPA funding and query council funding and training to take on great environment protection role Important to get this right…. increasing number of industrial site closures, and brownfield redevelopment and urban renewal a strategic planning priority Avoid cycle of crisis and response in the development of environment law in Victoria evident in Ardeer, Brookland Greens, Sunshine North asbestos - is a another crisis needed to bring about change??