Pollution

EPA Victoria is the main body responsible for pollution control in Victoria, including power to order cleanup of contaminated sites. It issues emission licences and works approvals, subject to planning controls, state policies and environmental effects statements. EPA Victoria decisions can be appealed to VCAT. The Commonwealth Government deals with national and international standards.

Introduction

Most pollution control regulation in Australia is done by independent state environmental regulators, such as the EPA Victoria.

The Commonwealth Government principally deals with setting national and international standards on health and pollution control. The Commonwealth’s responsibilities relevant to pollution are administered by the Department of Environment (the federal Environment Ministry). A National Environment Protection and Heritage Council, with representatives of Commonwealth, state and territory governments, was established in 1995. One national initiative is the National Pollution Inventory (seeFurther references”), which sets out valuable information about a range of toxic substances, such as nationally acknowledged standards for exposure to the listed substances. Information about toxic substances can also be found on international websites.

EPA Victoria

EPA Victoria is the key pollution control agency in Victoria. Created in 1970, it is responsible “for the protection and improvement of the quality of the environment” (s 13(1)(b) EP Act). It coordinates all activities relating to the discharge of waste, including emissions to air and water, noise, contaminated sites, municipal waste, and the generation, handling, treatment and disposal of industrial waste.

Principles of Environment Protection have been introduced in an amendment to the EP Act, and these encompass the concerns of “ecologically sustainable development” (ESD) (ss 1A–1L) (seeConsiderations for licences and works”).

EPA Victoria licences and approvals

EPA Victoria uses licences and works approvals to control discharge of emissions to air, land and water.

Licences are required for the emission or disposal of waste, the treatment of waste or the handling of ozone-depleting substances at certain types of premises (s 20 EP Act; Environment Protection (Scheduled Premises and Exemptions) Regulations 2007). Licences are also required for the transport of certain types of wastes.

Works approvals are required for new developments that could produce a potentially harmful discharge to the environment or an increase or change in an existing discharge (s 19A EP Act). A works approval provides an overall framework for controlling discharges and the effects of an activity both offsite and onsite. Works approvals specify the type and volume of discharges for which licences may be issued for the premises.

The main idea behind works approval licensing is for EPA Victoria to become involved in the design of industrial processes at the earliest possible time, when advice can make a difference. It is important to keep this in mind, because a very important part of the works approval inquiry is the development of conditions to which the approval will be subject. Considerable thought and discussion should be devoted to formulating site requirements and the introduction of pollution-control technologies that will minimise the impact of the development. From an objector’s point of view, it might not be possible to stop the project, but with the right conditions it might be made decent. This should be viewed realistically and kept in mind when formulating objections and submissions.

Applications for works approvals must be publicly advertised, in a state-wide newspaper (ss 19B(3)(b), 20(8)(b)) and referred to local councils, the Department of Health and other authorities. Submissions are invited from the public and relevant agencies, and objections must be lodged within 21 days (s 19B(b)(iv) EP Act). EPA Victoria will consider comments and submissions and may convene a conference to resolve differences between the parties (s 19b(6) EP Act). It must take into account any resolutions of this conference and any recommendations of the chairperson.

Licence applications are not generally subject to public submissions, unless a company fails to apply for a works approval and commences building in circumstances where a works approval is required. If this occurs, the application or licence amendment will go through the same procedure as a works approval would (ss 20(8), 20A(6)).

A licence will generally be issued unless the works approval was not complied with, so breaches of the works approval are a point on which records should be kept, and complaints and submissions made.

Considerations for licences and works

Licence and works approval decisions by EPA Victoria must be based on SEPPs, discussed below, and a consideration of the environmental benefits of particular licence conditions.

Principles of Environment Protection have been added to the EP Act (ss 1A–1L). These require that the following be treated as major considerations in decision-making:

ecologically sustainable development;

integration of environmental considerations;

the precautionary principle;

intergenerational equity;

conservation of ecological integrity;

use of economic instruments;

shared responsibility;

responsibility for the full life cycle of goods;

wastes to be managed in preference order:

avoidance,

re-use,

recycling,

recovery of energy,

treatment,

containment and disposal;

integration of environmental management;

objective of law enforcement to be environmental protection and ensuring there is no commercial advantage for law-breakers; and

accountability to the people of Victoria.

See further sections 1A–1L EP Act.

These Principles of Environment Protection appear to have displaced the constrictions of EPA Victoria’s powers that developed through conservative judicial interpretations of the EP Act over three decades of administration, and particularly the first decade. Submissions with respect to licensing and appeals should be based around them.

EPA Victoria and planning

The grant of a works approval by EPA Victoria is conditional on planning approval being granted for the relevant activity, if the relevant planning scheme requires a permit (ss 19B, 7A, 7B EP Act; ss 20(8)(g), 20A(6)(g) in relation to licences).

EPA Victoria decisions are also linked to the planning system through the referral authority mechanism described in “Planning and Environment”. As a referral authority recognised in planning schemes, EPA Victoria can impose conditions on, or veto, the decision of a local council (responsible authority) to grant a planning permit if a proposed development requires an EPA Victoria licence or works approval.

The development of Neighbourhood Environment Improvement Plans must be done with municipal strategic statements and any relevant planning schemes in mind. Planning powers must be exercised with regard to a Neighbourhood Environment Improvement Plan (s 19AI(3)(i), (l) EP Act).

A major project might require an amendment to the planning scheme and an EES, as well as a works approval. In such cases, the works approval application is usually considered at the same time. Where a works approval is advertised jointly with an EES, any submission by a member of the public must be made with submissions on the EES. Where a works approval is issued substantially in accordance with the EES, the works approval is not subject to third party appeals to VCAT (ss 19B(3B) and 33B(1B)) (seeAppealing EPA Victoria decisions”).

A proposal likely to have significant impact on a matter of national environmental significance (such as nationally listed plant or animal species, or nuclear issues) must be assessed under the federal EIA system established by the EPBC Act. Failure to do so could result in substantial fines.

EPA Victoria recently acquired the power to enter sustainability covenants with industries that might have a significant impact on the environment (ss 49AA–49AP). They could prove to be effective in achieving more efficient resource use and reduction of the ecological impact of products and services, and the processes by which they are produced.

State environment protection policies (SEPPs)

Licence and works approval decisions of EPA Victoria must be based on SEPPs and waste management policies (WMPs) (ss 16–19 EP Act). SEPPs and WMPs set overall environmental quality standards and objectives.

There are SEPPs on Ambient Air Quality, Waters of Victoria and Waters of Port Phillip Bay, waters in specific catchment areas, industrial and entertainment noise, siting and management of municipal tips, a number of WMPs, including one on control of ozone depleting substances, and many other topics available on the EPA Victoria website at www.epa.vic.gov.au.

SEPPs contain fixed and ambient standards that are directed to maintaining and protecting “beneficial uses” of the environment. For example, SEPPs on specific water catchment areas protect the beneficial use of the water for the purpose of drinking. Fixed standards prescribe maximum emissions from fixed points. Ambient standards establish minimum environmental quality standards, which allow emissions to change as the level of pollution in the environment increases or diminishes.

SEPPs are created on the recommendation of EPA Victoria, after a period of public advertisement and consideration of submissions (ss 16–19 EP Act). EPA Victoria must take into account financial, social and environmental considerations when deciding on recommended standards for SEPPs. The draft SEPPs and WMPs must be laid before state Parliament with a policy impact statement before coming into effect.

Appealing EPA Victoria decisions

Review of a decision by EPA Victoria in relation to a works approval may be sought at VCAT within 21 days of the approval being granted (ss 33, 33A, 33B EP Act). Appeals in relation to licences can also be made, but only where works have commenced without the necessary works approval. Appeals by objectors are called third party appeals.

An objector who is “a person whose interests are affected” may apply to VCAT for review of a decision to grant a works approval (s 33B(1) EP Act). This term was introduced in 1998 to replace the previous requirement that the person “feel aggrieved”. The effects on a person’s interests need not be economic effects and they may be direct or indirect (s 5 VCAT Act). The former requirement, to “feel aggrieved”, also let in a wide range of objectors. It extended to interference with recreational interests, and to the disappointment felt if one’s initial objection to EPA Victoria was not adopted.

The grounds for review that third party objectors may advance are, however, limited, especially when compared with planning appeals. They must show either that there will be a discharge of waste, or similar environmental risk, which will adversely and unreasonably affect them, or that a situation will be created that is inconsistent with a SEPP (s 33B(2)–(2c)). If there is no relevant SEPP, third party objectors must show that the works approval conditions would result in pollution or, with respect to licensing of industrial waste sites, an environmental hazard.

These restrictions appear to be inconsistent with the principles of shared responsibility and accountability now found in sections 1G and 1L of the EP Act.

A statement of the grounds to be relied on at the hearing must be served on the applicant for works approval and the responsible authority (cl 56, sch 1 VCAT Act). Here, “responsible authority” probably refers to EPA Victoria, although it usually means the local council or other authority responsible for issuing planning permits and implementing planning schemes under the PE Act. Until this ambiguity in the Act is cleared up, it is advisable to serve a copy on the relevant local council as well.

A party is not restricted in the proceedings to the grounds previously notified (s 36E EP Act). However, a failure to formulate a statement of grounds properly may involve a third party objector in substantial costs (seeAppealing a permit decision”). Therefore, it is important to formulate the grounds for review around the restrictions noted above, and obtaining legal advice is recommended (seeLegal advice”).

In its decision, VCAT takes into account a range of matters, including (s 37A EP Act):

the relevant planning scheme; and

SEPPs.

If a planning permit is also required, the appeal on both applications may be heard together. This means that broader planning issues can be considered in the decision.

Contaminated sites

Where a site is suspected to be contaminated, EPA Victoria can order it to be assessed and, if necessary, remediated by the person who caused the contamination or by the occupier. If they take no action within the time specified in the order, EPA Victoria can clean up the site itself and require the occupier to pay the costs. It may also place a charge on the certificate of title of the land in order to recover its costs (s 62 EP Act).

If land is to be rezoned to a more sensitive use, such as from industrial to residential use, EPA Victoria must be notified, and can require the site to be assessed for contamination.

A person selling land that may be contaminated is under no obligation to notify the purchaser, or to test the land for contamination, unless a statement of environmental audit has been issued with respect to the land (s 53ZE).

EPA Victoria maintains a Contaminated Sites Register, which includes sites that EPA Victoria has tested for contamination, but it is known to be incomplete. EPA Victoria also has an internal register of sites suspected of being contaminated because of previous activities, but these are not disclosed to the public because they have not been tested.

Sewage and waste water

Following privatisation of many of the functions of Melbourne Water, responsibility for the storage, treatment and disposal of trade waste and domestic sewage rests with the relevant local retail water and sewage company. Regional water authorities and local councils may also have responsibility for sewage treatment and provide licences for trade waste and septic tanks for individual premises.

Trade-waste agreements are used to prescribe the type and quantity of waste and the cost of treatment of waste to be discharged into the sewers from industrial or commercial facilities. Regional water authorities provide licences for trade waste for individual facilities, while Melbourne Water in turn contracts with regional authorities for waste-treatment arrangements.

The quality of discharge from all sewage treatment and waste water plants, whether operated by local councils, water authorities or at industrial facilities, is controlled by EPA Victoria licences. EPA Victoria has powers to control polluting industrial waste going into sewers.

Information and complaints

Getting information

The EPA Victoria website is at www.epa.vic.gov.au. EPA Victoria will provide the following information when it is not available on its website:

copies of regulations, SEPPs and WMPs and guidelines used as the basis for licensing;

copies of licences and works approvals;

any monitoring information required by licences or abatement notices;

copies of EPA Victoria investigation files of licensees; and

scientific reports prepared as part of the process of developing SEPPs and guidelines, once the SEPPs or guidelines are finalised.

This is subject to exemptions under the Freedom of Information Act 1982 (Vic) and the EP Act, which requires licensees to give consent before EPA Victoria can disclose information in relation to a manufacturing process or trade secrets (s 60 EP Act). See Freedom of information law, for details of freedom of information exemptions.

Local councils are responsible for sewers, drains, public health and sanitation, and can provide information about planning schemes and copies of planning permits. Freedom of information applies.

The relevant local retail water and sewerage company can provide information about trade waste.

Making complaints

Only persons appointed by EPA Victoria may prosecute offences against the EP Act (s 59). Complaints about industrial pollution and noise, discharge of solids, liquids or gases detrimental to health or the environment, offensive smells and obnoxious or hazardous dumps should be made to EPA Victoria’s 24-hour Pollution Watch Line (tel: 1300 372 842), or in writing. Reports can also be made online via EPA Victoria’s website at www.epa.vic.gov.au.

Complaints about noise and other discharges of material or gas that are offensive to the human senses, dangerous constructions and “offensive industries” (such as abattoirs and piggeries) may be made to the local council and to the Victorian Department of Health and Human Services, and may also be made to EPA Victoria. For information about the types of noise that can be complained about, see Neighbours and noise.

Action EPA Victoria can take

EPA Victoria usually visits the premises or the site of a complaint. If there is a persistent problem then EPA Victoria can do a number of things.

A minor works notice can be served, directing an owner or occupier of premises to correct the problem within a specified period if the problem is urgent and correction will cost less than $50,000 (s 31B EP Act). There is no appeal against a minor works notice.

A pollution abatement notice may be issued where a pollution problem, including noise, is less urgent and involves more substantial cost (s 31A).

Where waste being discharged into a sewerage system is causing a contravention of the sewerage authority’s licence or does not comply with standards prescribed by the EP Act, an abatement notice can be issued (s 28B EP Act). Various requirements might be imposed on the offender by the notice.

Appeals against such notices can be made to VCAT (ss 34 and 35). Residents who have made complaints can assist EPA Victoria by appearing as witnesses. Greater assistance can be provided if notes are made about an incident shortly after it occurs. People who are not appearing as witnesses but still wish to be heard should write to VCAT.

EPA Victoria can direct a number of operators to take action to reduce the level of emissions where the problem is caused by the combined pollution of a number of premises, although no individual is exceeding the allowable level (s 31 EP Act).

EPA Victoria can also issue “on-the-spot” fines for infringements of the EP Act.

In more serious cases, EPA Victoria can prosecute for discharges without a licence or in breach of the level permitted in the licence. There are also offences for failing to comply with a notice or direction of EPA Victoria, the use of prohibited substances, or emitting offensive odours. Charges of aggravated pollution may also be brought, with heavy fines and jail sentences, for deliberate contamination that places the public at risk (e.g. ss 59E, 67AA EP Act).

Community monitoring

EPA Victoria can impose an Environment Improvement Plan (EIP) on an industry. This may include an order that the industry establish a community monitoring program to monitor implementation of the EIP. There is no appeal from an EIP (s 31C EP Act). An EIP is now compulsory for any licences issued in certain types of industries, including: chemical manufacturing, oil and gas refining, metal or cement manufacturing and industrial waste treatment, processing and disposal.

Proposals for Neighbourhood Environment Improvement Plans may come from:

EPA Victoria (s 19AG);

a governmental agency with environmental responsibilities, such as a local council or CMA (s 19AF(1)); or

the community (s 19AF(2)).

Action by local council and residents

The public has no direct statutory rights to seek restraining orders, or abatement notices, or to prosecute for offences under the EP Act (s 59).

If planning permit conditions require compliance with EP Act licences, it is possible to seek an enforcement order in VCAT if the condition is breached (seeEnforcement”, under “Victorian Civil and Administrative Tribunal (VCAT)”).

Where a nuisance such as noise, dust or odour is, or is liable to be, offensive or dangerous to health, the local council can be asked to apply for an abatement notice in the Magistrates’ Court under the Public Health and Wellbeing Act 2008 (Vic) (“PHWA”). If the local council does not act within a reasonable time, a member of the public can apply to the court (see Neighbours and noise, for more information about remedies under the PHWA).

Even if polluters are acting within approvals or licences granted under the EP Act, they might still be liable to civil action under common law principles (s 65 EP Act) (see Negligence and injury).