Understanding your risks and duty to protect the environment: a session for business and industry
Webinar 26 May 2021 transcript
Miranda Tolmer: Welcome to EPA's webinar series on the new environment protection laws. My name is Miranda Tolmer, and I am the Manager of the Industry Guidance Unit at EPA Victoria. With me today is Con Lolis, the Director of Development and Infrastructure. Hi, Con.
Con Lolis: Hi, Miranda. It's good to see you in person after all this time.
Miranda Tolmer: Absolutely. We are really pleased that you have joined us today to talk about the role of industry and business in protecting the environment. As I have said, this is part of a series of webinars that EPA is developing on the new environment protection laws, which come into effect on 1 July this year. I would like to start with acknowledging the Wurundjeri people of the Kulin nation, on whose lands I am currently living and working, and I pay my respects to their elders past, present and emerging. Given that we are all in different locations today, I want to acknowledge the various traditional lands on which we are meeting. You will note that our speakers are not wearing face masks today; that is to ensure that any participants who need to lipread can do so. Also, if you need or want to use closed captions, that function is available; just look for the 'CC' button at the bottom of this web screen.
Today, Con and I will give you a brief introduction to the new laws and then have a discussion with the EPA's Director of Regional Operations, Marleen Mathias, and its Director of Regulatory Programs, Dan Hunt; they will be joining us in a moment. Today, we are really going to talk about the general environmental duty and assessing and controlling your risks. After that discussion, we will move into some questions and answers from you. We encourage you to submit your questions in writing via the Slido function, which is to the right of your video box. I do encourage you to ask questions relating to the general environmental duty and assessing and controlling your risks, as the panel that we have assembled for you today is best placed to answer those. We will be reviewing and responding to the common themes in all of the questions that you do ask, though.
Waste is always a very popular topic, and the EPA has a waste webinar coming up on 8 June; so we will forward through any questions that we receive specifically on waste to the team putting that webinar together, and it will make sure that it covers that content in that forum. I also want to note that today we will not be responding to any current issues or individual matters. This session is recorded and will be available and sent out later to all people who have registered on Eventbrite. One more thing to note is that the information presented today is provided as general guidance only. It does not constitute legal or professional advice and should not be relied on as a replacement for consulting the laws directly to understand how they may apply to you.
We have had an excellent response to this event. Over 1700 people have registered, and we have had about 60 pre-submitted questions already. The themes from some of those pre-submitted questions we have discussed as a panel, and we have created some discussion points around those that our presenters will respond to during the questions. Firstly, I am going to ask Con to give us a brief summary of the new laws. Thank you, Con.
Con Lolis: Thank you so much, Miranda. These are the biggest changes in 50 years, and it all happens on 1 July, Miranda, so we are literally five weeks away. The first thing that these laws will do is repeal the Environment Protection Act 1970, which many of us are going to celebrate. You need to understand what these laws are attempting to do, and that is to create a set of duties. Those duties require all of you to minimise the risks of harm to human health and the environment from pollution and waste. It sounds complicated, but, in fact, it is not, because it is about taking practical and reasonable steps and having in place really good environmental practices. So those of you who already have in place ways to manage your environmental risks are really ahead of the game, and these laws should provide you with no surprises. In fact, what they will allow you to do, as my colleagues Marleen and Dan will explain, is to, in fact, systematise what you have been doing for so long. Importantly, these laws are based on the Occupational Health and Safety Act, which I know that all of you are familiar with, so the way in which these laws have been developed has really paid careful attention to that act. Those of you who are familiar with managing risks to your employees will not be taken at all by surprise by these laws.
I just want to introduce the concept of the general environmental duty. I know that all of you have been paying attention to our previous webinars and seminars and reading the extensive volume of material on our website, and I want to encourage you to keep doing that. But the general environmental duty is at the heart of this, and my colleagues Dan and Marleen will really tease that out for you. But, for industry, the thing that I really want you to take away is that this is about a system of flexibility. Thank you.
Miranda Tolmer: I do want to add to that as well, Con. In addition to the general duty, which is our focus for today, there is a series of other duties that you need to be aware of. As Con has mentioned, there is a lot of information on our website, but you do have requirements to manage your waste and contaminated land; you need to respond to pollution incidents, if they occur; and you may need to seek a permission, depending on the activity that you undertake. We are not discussing those today, but there are a lot of resources to help you with those things on our website. We keep referring back to our website, as that is a key source for accessing such information. Also, future webinars are coming up—I have mentioned the waste webinar on 8 June—and we also have a series of previous webinars with information there. Another source of information could be your industry association. We have been working with a number of industry associations over the last couple of years, and they can provide you with some good, tailored information for your industry.
I would now like to introduce the rest of our panel members. Marleen Mathias is Director of Regional Operations, and Dan Hunt is Director of Regulatory Programs. We are going to ask some questions about taking a risk-based approach and also the general environmental duty and what it means for you. Marleen, I am going to ask this first question of you, and it's a pretty simple one: what are environmental risks; are we talking about being energy efficient or about making sure that the things that you do not actually harm people and the environment?
Marleen Mathias: That's a good question; thanks, Miranda. Thinking about the EPA's remit and what we do every day, we are here to protect the environment from the harmful effects of pollution and waste. We are not talking about energy-efficient light globes or your carbon footprint; they are for other people. So, thinking about our role, some of the common risks that you might find in your workplace are activities that generate noise, odour and emissions; any stormwater runoff that might come from your sites; the management and disposal of waste; and your use of chemicals and where they might be stored. They are some of the key risks on your site, and we are asking people to know their risks and put some simple mitigations in place.
Miranda Tolmer: Terrific; thank you.
Con Lolis: Hey, Dan. It's good to see you after all this time. Dan, I want to know more about the general environmental duty. As I understand it, it is about knowing your risks, putting controls in place and making sure that you monitor and manage those risks. Can you just let us know how that is different to what is currently required under the EP Act? Also, can you just give us a bit of the benefit of your really deep experience about how businesses can go about doing these things, while understanding their risks?
Dan Hunt: Sure, Con. Currently, the EPA will respond to harm. We will conduct license compliance inspections of licensed premises, under current legislation. But, essentially, under GED, we will be going out and looking at preventative measures that industry, companies or individuals have put in place. What does that look like in a practical sense? We would expect a company or individual in the business to be going out to where the work happens, walking around their business, understanding the hazards that may present and looking such things as what the potential sources are that may cause environmental harm or harm to human health. What is the pathway by which that might enter a stormwater system, for example, or, if it's odour, what is the pathway for that to get out into community, for example? Then, finally, what is that receptor? In the case of stormwater, that would be a local creek et cetera. Once you understand your risks and hazards, you can then take a step back and think about practical controls that you can put in place to manage those risks. The EPA has a wealth of guidance available on its website to support local business and larger industry. Also, it does not need to be that complicated, Con. I think there are really practical examples of things that are well known within industry sectors around how to manage some of these risks, but we just expect those controls to be in place.
Con Lolis: Dan, if I'm a small business employing two or three people, what are the kinds of things that I should be doing?
Dan Hunt: That's a great question, Con. It is very simple things like bunding. You may not need to go and put in a large bunded area for the storage of chemicals. You may have only a small amount of chemicals in two- three- or five-litres drums and, in that application, a pallet bund would be a practical solution to prevent any discharge occurring there. It's also about controlling noise, such as making sure that you keep your roller doors down; and training your staff on these things, and keeping records that you have actually trained them, in how to be aware of their obligations under the GED.
Con Lolis: So it's about taking those practical steps, isn't it?
Dan Hunt: That's right, yes.
Miranda Tolmer: There are other things that I want to ask about as well. One is that we will talk about checking your controls at the end, which is that regular review, to see that they are actually having the effect that was intended when you implemented them. I assume that would be part of the process that you would be looking for as well.
Dan Hunt: Absolutely, Miranda. It's about maintenance. Think about your vehicle; it needs to be regularly maintained to make sure that it is working properly and does not break down on you when you actually need it. The same rule applies under the general environmental duty. You must maintain your equipment; you must check that it is working; and, most importantly, an environment protection officer, if they come to your business, will expect to be able to see records that you have done that.
Miranda Tolmer: Excellent; thank you. Those concepts do sound quite simple, but the general environmental duty also talks about eliminating or minimising the risk of harm 'so far as reasonably practicable'. I would like to have a bit of a conversation about what 'reasonably practicable'. Marleen, do you want to have a go?
Marleen Mathias: Yes. It's an interesting concept. I think it's really about what is proportionate to manage the risk. As for high-order risks, when looking at our current licence sites, we would expect some extensive understanding of risks and the mitigation of those. For a small business—I think Dan said it really well earlier—you need to have bunding, but what type of bunding do you need in order to manage your chemical runoff? A pallet bunding is fine for a small volume. There are probably some other things that we could talk about in terms of examples, but it is really: what is the risk, what is the size of the business, and what is something that is proportionate to manage that risk? I don't know whether there are any other examples, Dan.
Dan Hunt: It's all about the scale of your business and the activities that you conduct. Essentially, yes, I think you have answered that question, Marleen. It is about what is proportionate for the size of the business, how much chemical you may store on any given site and how many truck movements you may have at any particular site. All of that comes into play around 'reasonably practicable'.
Con Lolis: I guess, Marleen and Dan, it starts with identifying your risks. Once you understand those risks, you can then determine which controls to put in place. But I think, from hearing the message, unless you identify them at first instance, you are really behind the ball, aren't you?
Dan Hunt: Yes, that's right.
Miranda Tolmer: The EPA has also developed some guidance on what is reasonably practicable, and that is available on our website as well. That talks through some of the criteria that you can consider for your business operation so that you can determine, for your particular set of circumstances, what would be reasonably practicable in that situation. Thanks.
This is related; sometimes it can be a bit difficult to know exactly how to eliminate or minimise environmental risks. I would like some advice—Dan, I will start with you—for businesses that are really trying to determine what controls might be best for their particular situation. There is a lot of information out there. How would you advise a business to start that process?
Dan Hunt: Thanks, Miranda. Essentially, there is no one way to control a risk; there are always multiple options and, as I said before, it leads back to the scale of business. If you have a high volume of operations or particular tasks in those operations and that presents a greater risk, the EPA will expect you to have increased controls to manage that risk. I would advise people to go to trusted sources. Go to the EPA's website, where there is really practical, easy-to-understand guidance on things like stormwater controls. Go to industry associations; they always have a wealth of knowledge in this space. If you are really stuck and looking at a very technical complex piece of plant or equipment that you need to control, you can always engage professional services, like environmental consultants, to help you through that, which is what I would recommend.
It's all about the fact that, as we understand it, people in industry know their business, and they know it really well, and are able to look at things practically and control the risk. I would also add to that by saying that—again, coming back to source pathway receptor—it's always preferable to control the risk upstream at the source; that should always be the starting point. If it is unable to be controlled at that point, you then move down to other ends of the scale. At the pathway, for example, you may decide to put in a stormwater valve so that you can shut off stormwater to your facility. But, if we go upstream with that to the source, it may be simpler to putting in bunding of chemicals and the training of staff et cetera.
Miranda Tolmer: Or potentially even using a different input at the start that has potentially less environmental impact in the first place and eliminate it altogether.
Dan Hunt: Correct.
Miranda Tolmer: Ecellent. Does anyone want to add anything more to that?
Con Lolis: I think Dan summarised it well. I just want to emphasise the point that Dan made, which is that looking at the risk at its source is absolutely vital in understanding how to best comply with these laws. We would encourage everyone out there, listening today, to make this something really important in your EMS systems: look at the source.
Miranda Tolmer: Excellent, thanks. We have talked a little about what you can do as business on the ground. Now I want to ask Marleen: what will our environment protection officers be looking for, when they go on to sites or visit a business; how will they know that a business has taken those steps that we have just been discussing?
Marleen Mathias: That's a great question. For people who have not seen our environment protection officers before, I can say that the first thing they will be doing is asking a lot of questions, so expect that they will be asking, 'What's that piece of equipment; what does it do?' Then officers will be looking for things, such as a risk register, and talking to staff and asking them about what they know about what they need to be doing. There are lots of things that we will be asking for, so we reasonably expect businesses to know what is going on, to have trained their staff, to understand the risks and to have practical things in place to mitigate those risks. We have spoken quite a bit back and forth about the general environmental duty. They are the sorts of key pillars of the general environmental duty; that is what we will be looking for. Sometimes we will be there because we will have received a pollution report, but we will still be looking at what you had in place to stop that happening.
Miranda Tolmer: So you will keep going up the stream to that prevention all the time.
Marleen Mathias: That's right.
Con Lolis: Dan, just thinking about what Marleen has just told us, under the new laws, what might happen if a business has not tried to understand their risks or has put in place inadequate controls? Take us through how the EPA will be thinking about this issue.
Dan Hunt: Thanks, Con. Essentially, we will take a proportionate approach. When we come on to the site, we will take into account a lot of factors around what specific statutory tools we will apply in any given circumstance. If I take sanctioning as an example, we have the ability to issue warnings, infringement notices or more serious prosecution. But it is all about being proportionate. So we will assess any matter on a case-by-case basis. We will look at whether the act was intentional, what level of controls you had in place and how well you tried to prevent the harm from occurring. Whether you even had any controls at all will also come into it; and, ultimately, whether there was harm, did harm result and how serious was the harm. So that is a little bit on sanctioning.
In relation to our other approaches, we have a range of tools that we can use. An improvement notice is probably the one that people will see most commonly. Essentially, that is replacing what we have under our current legislation as a pollution abatement notice. Essentially, this is a notice that we will use when we conduct our site investigations and audits of your facilities. We will be looking for areas where you have not got controls in place and then issuing you with an improvement notice to make sure that you go and implement that control. It is important to note that failure to comply with a statutory notice is a really serious issue and something that the EPA will be treating very seriously. Essentially, it is a requirement under law that you comply with that notice, and failure to comply with it will be treated appropriately and proportionately under a sanction.
Con Lolis: Also, we are going to be transparent, so we will publish a compliance enforcement policy, a sanctions policy and some other policies so that everyone out there will get a sense of what the EPA will think about issues so that we can act consistently and, hopefully, predictably. That's right, isn't it? We're not after gotcha moments and we don't want to take people by surprise, but compliance is an important thing. So, for us, being transparent is pretty important, I imagine.
Dan Hunt: Absolutely, Con, yes. It's important that people know what they can expect from the EPA on any given issue. As you have said, the compliance and enforcement policy is really our guiding star, when we look at what type of approach we will take to a particular situation, with regard to the serving of notices or the issuing of infringements or prosecutions and the like; so it absolutely is. There are other tools that we have available, such as a raft of notices. We have environmental action notices, which we will use in a circumstance where we need an individual or a company to undertake clean-up of a site. We also have prohibition notices as another tool. Again, we will use those proportionately, but they require immediate ceasing of any activities on site. We will use those sparingly, as they are for more extreme circumstances.
Con Lolis: Dan, you have told us about a few things, so let's just tell the audience a little more about them. Let's start with environmental action notices; are they new under these new laws?
Dan Hunt: They are; however, essentially, they are quite similar to the current clean-up notices that we use. The powers are quite similar, but they are a new tool in that they are now an environmental action notice. Essentially, the outcome is the same, as they will require cleanup. But there are other new tools that we have available to us.
Con Lolis: Let's talk about prohibition notices, because I imagine that people might have heard that for the first time and are going to be a little concerned about what the work prohibition might entail. Can you just let us know a little more about how those notices work and perhaps even the circumstances in which the EPA might use them?
Dan Hunt: Sure. Let's take a fire hazard as a real-world example. An environmental officer will turn up to a site. They may see a smouldering waste pile at the facility, and there is a real risk of a real hazard occurring. The officer can form a reasonable belief that there is likely to be a fire; the fire may spread and is likely to impact the local community and cause a real hazard. In that circumstance, we can issue a prohibition notice to require the duty holder to cease all activity on that site related to that waste pile. We can require them then, through directions and other means, to separate waste out, and obviously we would work with emergency services in that scenario. But I'm taking a really high-level hazardous situation, I guess, to try to get across when we would use those sorts of powers.
Con Lolis: I guess, Dan, in the EPA's mind, the risk is the hazard and also the emergency that would trigger the prohibition notice.
Dan Hunt: Absolutely, Con. Yes, that is a 100-per cent summary; you have summarised it very well.
Con Lolis: Pot luck. Dan, I don't mean to pick on you, but can you also tell us a little more about some of the other requisites? We have covered the prohibition notice. Can you just let us know a little more about improvement notices, which you mentioned a couple of questions ago?
Dan Hunt: Sure. The easiest way that I draw an analogy of the improvement notice is to think about the OH&S legislation. Essentially, OH&S legislation does not wait for someone to get their hand or their hair caught in a machine; it's about taking a preventative approach in putting a guard on the machine before someone injures themselves. Our general environmental duty is very similar. The improvement notice, which others under the OH&S regulation also would use, requires that you go and put a guard on that machine. We would go out, observe and say, 'Well, there's no guard on that machine; you need to put one on.' It would be the same for environmental controls: 'Okay, there's no bunding, and you've got liquid waste stored right next to a stormwater drain and there are no controls present to prevent a discharge if there were a leak or a puncture of the container; therefore, here's an improvement notice for you to go and do that thing.' Most importantly, notices are not sanctions; they are statutory instruments that direct you to do a particular thing, which will ultimately be monitoring, clean-up, undertaking an investigation, ceasing activities or implementing controls. So they are a direction to do something; they are not a punitive measure.
Con Lolis: Dan, of all of the notices that the EPA will be issuing, I guess that an improvement notice is probably going to be the one that is most commonly issued.
Dan Hunt: Absolutely.
Con Lolis: I guess, also, it's a way that the EPA will bring a person into compliance with the general environmental duty; is that a fair summary?
Dan Hunt: Absolutely, Con, yes. You can take an improvement notice as: 'I am requesting you to do a particular thing that I feel is reasonably practicable, and I have formed a reasonable view that that is a practical solution to an area where I see you as having not controlled your risk appropriately.'
Con Lolis: Thank you. You're not out of this yet; I have two more things that I wouldn't mind asking you about. Can you just let us know how a notice to investigate works and how it may be used in the future?
Dan Hunt: Yes, sure. A notice to investigate is basically a tool that we will use where there is a reasonable brief—you will notice that I am using that term quite a lot—that, say, there is potential contamination at a site through the soil. If we form that view, we will issue you with a notice to investigate, which will require you to go and undertake some testing to prove or disprove that there is contamination at the site. It's likely that what will follow is an environmental action notice, if it is contaminated, to potentially go and clean up that contamination.
Con Lolis: I promise that this is the last one. Dan, I read, with interest, that there is something called a site management order.
Dan Hunt: There is.
Con Lolis: You have to tell us about that.
Dan Hunt: A site management order is a brand new tool under legislation. Essentially, we understand that sometimes there is only so far that you can go in cleaning up premises that have been contaminated. There will be pollution of groundwater and pollution of soil. How far is 'reasonably practicable' in going and cleaning up that material to make it safe? There are always circumstances where remediation of soil and groundwater will take you to a certain point and some contamination, therefore, then remains. What the EPA then uses a site management order to do is to ensure that there is adequate monitoring of the contamination that is remaining. We then get reporting in on that contamination, at a specified frequency, from a company or an individual, and we are able to then monitor that remaining contamination to make sure that it is not posing a risk to human health or the environment.
Con Lolis: I guess, Dan, it's therefore about long-term management measures being put in place.
Dan Hunt: Absolutely.
Con Lolis: So, if there is a difference between environmental action notices and site management orders, it is that a site management order is really focused on the longer term; and it might be years or it might be decades, depending on the issues.
Dan Hunt: Yes, that's 100-per cent correct, Con. It's also a useful tool, as it's actually attached to the title of the property as well. Anyone who is purchasing land will be able to see on the title that a potential site has a site management order and there is ongoing contamination that needs to be monitored.
Con Lolis: Thank you. I think that brings the interrogation to a close.
Miranda Tolmer: That was actually a terrific discussion. A lot of language there was around different tools and those sorts of things that are available to our officers to use in appropriate circumstances. But I am going to come back now to a question that I asked Marleen previously, which is about what that looks like on the ground, when we have an authorised officer visiting a site and making these sorts of assessments. How would they be having these conversations with the business owner? Will they be looking to support them, providing them with some information that we have, and how much is back on the operator to make these sorts of decisions for their business?
Marleen Mathias: Really, in terms of on the ground and what we spoke about earlier, the improvement notice will be the key notice. There is another tool; compliance advice is another formal statutory tool that we have under the new legislation, so we will be capturing that. When our officers are out, we will be having those discussions and be asking lots of questions. When they identify something that needs to be managed or is not being managed appropriately or reasonably practicably, there are sort of two roots. People will be talking to business owners directly, saying, 'This needs some improvement.' There is compliance advice that can be provided and captured formally, or we would issue an improvement notice that says, 'You need to manage this risk; there will be options for how you do it,' and we would expect the business owner to look to the guidance that is out there in order to put something in place. So that is what it will look like. It will be a conversation and then captured in a formal document, which will be emailed or posted through.
Miranda Tolmer: Excellent; thank you.
Dan Hunt: Again, Marleen, it goes to the proportionate approach. How big is the risk that we are dealing with? Is it more relevant to give compliance advice to tweak the hazard control that is in place; or does it actually present quite a serious risk of harm and, therefore, is an improvement notice then a more applicable way to go?
Marleen Mathias: I think an improvement notice is still a way for us to help duty holders know what they need to do. So it's really still helpful advice and it will be proportionate, but it's a way for the EPA to say, 'This needs to be managed; did you know that?' and it's providing some advice on that front.
Con Lolis: Marleen, each time one of our officers attends a site, they need to leave a formal record behind; is that called an entry report?
Marleen Mathias: That's right. That is some of the formal documentation. If there were an improvement notice, we would issue an entry report that says generally what we saw as well as an improvement notice, so you will get two formal documents.
Con Lolis: So any compliance advice that the officer gives will be recorded in the report.
Marleen Mathias: That's right.
Con Lolis: Thank you.
Miranda Tolmer: That's the end of the discussion with our panel there. I just want to come back to you both and ask for your one key takeaway message, before we move into some of the specific questions from our audience today. Marleen, I will start with you.
Marleen Mathias: There are so many things. A good wrap-up of everything that we have talked about is that, from 1 July, our officers will be out there, looking at things from a preventative mindset. We will be asking questions and looking at whether there are preventative measures in place and that you know your risks. So, if you take away nothing else from this morning, look at your site and know your environmental risks, and start thinking about what you need to put in place to manage them.
Miranda Tolmer: Thanks, Marleen. Dan.
Dan Hunt: This is quite similar to what Marleen has said. It's all about getting out into your business and understanding the risks that are present and what the hazards are and how you are going to control them, and really taking a step back to think through what may occur and what is the likelihood of it occurring. Then it's about taking action and implementing simple controls to make sure that, when an officer does come out on site, you can easily demonstrate to that officer that you have controls in place that are proportionate to the risks of your operation and that you are ultimately preventing any harm to the environment or human health.
Miranda Tolmer: Excellent. Thank you both very much for those wrap-ups. Before we move into the live Q&A session, answering your specific questions, there are a couple of pre-submitted questions that I am going to put to our panel. Continue to type your questions into the Slido bar, which is to the right of your screen. I'm just going to pick a couple of questions out of those that have been pre-submitted. The first question is from the agricultural sector, but I think it applies quite broadly. That is: what processes will be in place for education and—this question is for the farming community—on the ground; and how does the EPA plan to drive adherence to the new standards?
Marleen Mathias: That is a great question, and I think it has many parts to it. If we focus on what is available now in terms of guidance, our EPA website, which we have spoken about a few times this morning, has some really great sector-based guidance as well as guidance on knowing and managing risks; that is a really great resource. I think there are also some programs out there. There is the Industry Partnership Program; the EPA is working with industry guidance groups, supporting some training and upskilling. Obviously, environment protection officers will be out there, on the ground, so we will be providing practical guidance and education for support when we are out and about. Also, particularly out in the regional areas, we are running face-to-face sessions, in terms of drop-in sessions, which have been advertised on the website and Twitter, in terms of coming in and speaking to people about your particular questions. So there are lots of avenues to be able to seek some guidance and ask some questions, if you are concerned.
Miranda Tolmer: Thank you. This next question was submitted by an audience member who works in manufacturing: is monitoring mandatory, if you don't hold an EPA licence? Dan, would you like to respond to that?
Dan Hunt: Yes, thanks Miranda. Monitoring is not always essential, but it's good practice. If we are talking about emissions to air, yes, you absolutely should be monitoring. Why should you monitor? Because, when an environment protection officer comes around to your premises, even if you are unlicensed, they will very much want to know how you can show them that the hazard has been controlled and you are actually not emitting anything to air. Again, this links back to the maintenance question around your also then needing to maintain your equipment. If you are working as a panel beater, for example, you need to have controls of your spray booths to make sure that there are no paint emissions to air. Making sure that you maintain those controls is equally important, and you also need to have good record-keeping of that.
Miranda Tolmer: Thank you. This is a pre-submitted request: please describe the likely or expected interaction between an accredited environmental management system, an EMS, and the general environmental duty. Marleen, would you like to have a go at that one?
Marleen Mathias: If we come back to the general environmental duty, it is to know your risks and put some controls in place. An EMS, or an environmental management system, is a really great framework for working through that. If you have an EMS or are thinking about putting one in place, it gives you a really great framework to look at your environmental risks and those controls. It is not mandatory that you need an EMS. But, when our officers are out on the ground and you are able to present your accredited environmental management system, it will go a long way to answering the questions that we have and to show that you are meeting the general environmental duty.
Con Lolis: But, Marleen, if I am a small business and I have a staff of three, would I need to have an EMS?
Marleen Mathias: I don't think so, because then it comes back to 'reasonably practicable' question. That is, if you have three staff and yourself, you probably need some written procedures, but you do not need a formal EMS.
Con Lolis: But you would expect me to know what my risks were—
Marleen Mathias: That's right.
Con Lolis: And to have a look at them and think about which controls are in place. So, even if I do not have a formal system, because I just can't afford it, you would expect me still to have something in play so that I can demonstrate to one of your officers that I'm taking the law seriously and I know my risks.
Marleen Mathias: That's right. As long as you can talk us through that and make sure that your staff are trained, in terms of what those controls are, that meets the requirements.
Miranda Tolmer: I will add to that. There is a very simple risk-register template in our assessing and controlling risk guidance, which is available on the EPA's website as well. If you need them, there are some very simple tools that are available for that situation as well. I think we are ready to move into the live Q&A. I'm going to ask the first question here, which is: what is the process for sites that are already established and did not need an operating licence in the past but require one under the new legislation? When will the EPA be releasing guidance on this? Marleen, are you able to answer this question?
Marleen Mathias: Yes, I can take that one. Firstly, the guidance on the process will be available on the EPA website in June, which is next month. There are a couple of other things that are really important to note. One is that the regulations, as they have been made, provide a three-month period after the commencement of the legislation; so an application can be made three months after 1 July. If, from 1 July, you find yourself in a situation where you need a licence, you will have three months to apply for it; so you've got until 1 October 2021 to apply.
Miranda Tolmer: Excellent; thank you. Dan, I'm going to ask you a question that has come through about how the new laws interact with the OH&S legislation. Dan and Con, both of you would probably like to comment on this one.
Dan Hunt: Sure. Both pieces of legislation have a requirement to protect human health, so how do they interact? For example, I think the question was whether the EPA looks outside the property boundary of the workplace, while WorkSafe works within the property boundary of the workplace. That's not true. Essentially, both WorkSafe and we have a responsibility to protect human health within the property boundary, and we also then go outside of the property boundary to local community et cetera. So it really depends on the circumstance. The way that I could simplify it the most is to say that the EPA looks at the environmental impacts on human health. There might be times where WorkSafe and we will overlap, but we work very well with our co-regulators and have memorandums of understanding of how we do that. So, absolutely, we will be joined at the hip where those overlaps do occur.
Con Lolis: Dan, it is fair to say that overlaps occur now under the existing laws, and the EPA has a really good history of working together with WorkSafe and its inspectors. You have mentioned the MOUs, and I also know that the EPA has done joint regulatory task forces with WorkSafe. So we would just understand that things will just continue to work well.
Dan Hunt: Yes, I completely agree, Con. We work with WorkSafe and other co-regulators quite regularly, and it's part of 'business as usual' for us.
Con Lolis: Thanks, Dan.
Miranda Tolmer: I can see a couple of questions coming through about things like declaration of use and some other contaminated-land guidance. I will forward those questions, particularly those about waste and those sorts of things, to the next webinar. So sign into the June 8 webinar, and there will be a panel of waste experts pulled together to answer your waste questions. As I also said earlier in this presentation, we will be responding to the general themes that come through this as well. So we will certainly answer those questions, but today I'm going to try to focus on questions about the general environmental duty and assessing your risk. There is one question I will address, though, because I can. A lot of questions ask about the duty to notify of and manage contaminated land, and the EPA will be releasing guidance on both of those duties prior to 1 July. That guidance will be published on the website, and that will support people in understanding the nature of those duties. The next question I'm going to ask is: will the EPA make it clear to community what the EPA's priorities are? They have noted here, very kindly, that 'our staff obviously can't attend every noise, odour or water report, especially with the number of new sites being commissioned'. The questioner here has noted that fire prevention is a priority, and that is absolutely correct. So how do we manage that out in the field? Dan, do you want to respond to that?
Dan Hunt: Sure. As any regulator does, we prioritise our effort on areas where there is high risk. We are intelligence-led around what we are seeing out in industry and what community and industry are telling us around potential non-compliant behaviours. We then work with our strategy team to develop strategies so that we can then understand what the risks are, what the outcome is that we are seeking and how we get behaviour change within certain individuals who may be conducting illegal activities or, through some ignorance, are having an effect on the environment. Essentially, we then target our compliance focus to those efforts. Fire prevention is a classic example of that. With the number of fires in the landscape, particularly earlier this year, the EPA then decided, 'Right, this is a real problem.' We have worked with our co-regulatory partners and emergency services, and we are out there implementing that right now to make sure that industry has proper separation of waste and are managing their risks and putting in controls to prevent fires from occurring.
Miranda Tolmer: Marleen, do you want to add how we prioritise what we attend, in terms of sending officers out into the field—
Marleen Mathias: Yes.
Miranda Tolmer: Or has Dan covered it?
Marleen Mathias: No. I think it largely has been covered. It's about being risk-based, but we have established processes, particularly when pollution reports come in, to look at what is an immediate response that we need to go out with and what is something that might take us a little bit of time. We seek to look at themes and risks and to deploy our staff, based on the highest environmental risk, with whatever we do, whether it's work that we have planned or work that is responsive to pollution reports.
Miranda Tolmer: Terrific. Thank you, both. The next question here is about training material. Is there material that the EPA can provide around the general environmental duty that we can roll out to our operational personnel? I'm going to take this one, seeing that this is my real 'house'. Yes, there is a lot of information, as we've said quite a bit today, on the website. There are also some overarching sector guides, which provide an overview of the new laws and the duties that are tailored to specific sectors; they are available on the website as well. Also, we do have an industry partnership program whereby we will be supporting industry associations to roll out training to their members. We will make those training materials available in the near future but, in the interim, we recommend that you visit the industry landing page on our website. I'm going to go to the next question around what the GED does. Con, I'm going to ask you to answer this one: what does the general environmental duty do that the Environment Protection Act 1970 didn't do, in terms of responsibility for an avoiding or reducing the risk of pollution?
Con Lolis: It does a lot. But what I want to say, in contrasting the old act with the new act, is that, under the old act, the EPA had to wait for harm to take place; in other words, it had to wait for the pollution to occur. Under the new act—Marleen and Dan have made this point continually—it's all about the risk. The EPA will be looking at risks and can intervene at the point at which the risk is uncontrolled. It's no longer waiting for pollution to happen; it's more about looking at the risks that are uncontrolled and intervening at that point in time. So it's an exciting development and, as we mentioned at the start, it does bring these laws into line with the Occupational Health and Safety Act.
Miranda Tolmer: Fabulous; thank you. I'm going to a question here for Dan. It is around: can you explain what we mean by 'risk'? What does 'proportionate' mean for different kinds of risks, if there is a low probability of risk but a very high consequence of risk versus a high probability of risk but a low consequence of risk? Can you elaborate on that for us, please?
Dan Hunt: Yes, I think that's exactly it. I think they have answered their own question there. Risk management is all about likelihood and consequence of harm, so that is absolutely what we mean by risk. To elaborate on that a little further though, the general environmental duty talks about a state of knowledge, such as what the state of knowledge is within a particular sector around how to best control certain risks or hazards that may be present. The benefit of that is that we used to talk a lot about best practice. Best practice, as we know, continually evolves. New technologies, new systems and new processes continually evolve, and the general environmental duty around the state of knowledge allows industry to move with that state of knowledge rather than saying, 'Best practice 2021 looks like this,' and years later you have to say, 'Well, best practice now looks like this.' We just say, 'Well, the state of knowledge is what the best practice is, and that is what we would expect.' But, again, it very much depends on the scale and size of your operations around what the EPA would practically expect you to be installing to control risk. It leads back to Marleen's earlier point around what is 'reasonably practicable'.
Miranda Tolmer: You mentioned the term 'state of knowledge' there and a question has actually come in about state of knowledge, so that was very timely. I'm going to address that briefly because there is a bit of a definition around that. 'State of knowledge' describes the body of accepted knowledge that is 'known or reasonably ought to be known'. I think a key point in that is that ignorance is no defence. If your peers in your sector know that sort of information, you would be expected to know it as well. That knowledge pertains to the risks of the nature of your operations but also the sorts of controls that are available to eliminate or reduce those risks for those situations. So 'state of knowledge' encompasses pieces of information, if you like. It does include, of course, the EPA guidance that we publish, things like the Australian industry standards, scientific and engineering research papers, information from your industry associations and, of course, any notices or information that the EPA has provided in a formal manner to you during a site visit. That's a bit of a definition for you of the term 'state of knowledge'. Now I am going to a question about improvement notices: will the EPA specify the nature of the controls to be implemented in an improvement notice, or will we just require a reasonably practicable control to be identified by the operator? Do either of you want to take a go at that one?
Marleen Mathias: I'll take that one. I think it depends; but that's not a helpful answer, so I will elaborate a little more. It depends on the context. There might need to be an assessment first. An improvement notice might say, 'Do an assessment,' and then to do something further. In certain circumstances, we may be prescriptive. So it sort of depends on what an officer sees, the judgement and the conversation that you have on site. It will be a mix of the two. Generally, an outcome-based requirement is probably better for the EPA and a business holder because then there are some options. As Dan said earlier, there are lots of different ways to mitigate risk; it is not one size fits all for everybody everywhere. So, where we can, we will look to set out outcome-based requirements; however, after saying that, it depends on the context too.
Con Lolis: Let's say, Marleen, that I'm about to receive a notice and, in that discussion, I tell you about how I propose to control the risks, and your officer thinks what I have said is a suitable way to do it. In some cases, will that be incorporated in the risk? Will I have the ability, as a duty holder, to have some influence over what is in the notice? I know my risks pretty well.
Marleen Mathias: Again, I think it depends, so it would come down to judgement at the time. I think there is always a good discussion about time frames and about what is being proposed. Sometimes, if it is a really good solution, possibly. Probably, if there is further discussion, it might be a bit more open-ended.
Con Lolis: The key, though, is that bit about discussion.
Marleen Mathias: That's right.
Con Lolis: We expect and encourage duty holders to have a discussion with officers about what is going on and how to remedy the risk. It is not about sort of setting really tight controls; it's about a discussion that leads to the best environmental outcome.
Marleen Mathias: That's right.
Dan Hunt: We may not always agree, absolutely. I think, when that happens, environment protection officers will look to see, 'Well, what's the risk here; what's the consequence? Is it a practical solution; is it in line with the industry's state of knowledge? Where is the closest receptor, what's the likelihood of the impact and is the control being proposed really adequate?' Another one will be, 'What's the history of the site?' and 'Have we received a lot of complaints around the area about odour or dust?' for example. In those sorts of circumstances, if the officer doesn't agree with the site manager on what the appropriate control is, they may choose to specify exactly what they would like installed as a control for that issue. As I said earlier, it's about being proportionate.
Con Lolis: Thank you.
Miranda Tolmer:The next question actually leads on very nicely from that, and it is about whether our officers have had appropriate and extensive training about visiting a site?
Marleen Mathias: We have sort of two cohorts of officers. There are currently authorised officers, which includes me. We have all undergone retraining, if you like; so that is training to understand the new legislation and what are our expectations. But, previous to that, we have all been trained and have requirements in terms of safety, causes and other things in enabling us to visit a site. So, absolutely, all of our current officers and all of our new officers will be reauthorised and assessed under the new legislation.
Miranda Tolmer: Thank you. There is a question here about permissions; Marleen, I think you'll be able to answer this one. The questioner has stated that it is currently difficult to understand which businesses or processes need a registration or a permit versus a licence, for example. They've asked who determines the level of risk that is required. They have stated that they are probably in a low risk regarding registration, but it's a bit unclear about how to obtain that registration. Can you help and provide some clarity to that, thank you?
Marleen Mathias: Not dissimilar to the earlier question around licences but particularly for registration and permits, schedule 1 of the environment protection regulations set out all the criteria for what needs a permit and registration. In most cases, it is about your operating capacity, so what your site is designed to be able to have as a throughput. So, when you are talking about processing, it's not necessarily what you are processing now; it's about what the design limit of your site is. Guidance is going to be released in terms of how and when to make an application for a permission, noting that the legislation goes live on 1 July; but there is a grace period. So, for all tiers—licences, permits and registration—there will be a grace period, so you are not expected to apply now in anticipation of 1 July. The EPA is also developing a simple online tool to help you to understand whether you need a permit or registration, and that should be on our website in the coming months.
Con Lolis: Marleen, in general terms, though, the higher the risk of the activity, the more likely it is that you will need something; if it is a high-risk activity, it's likely to be a licence and then cascading downwards towards registration.
Marleen Mathias: Yes.
Con Lolis: I guess that the message we want to give to the audience is that registrations are going to be used for, I guess, the lower level of risks.
Marleen Mathias: That's right. Licences are for our highest tier of risk, then permits are for that next level down, and then it's registrations as a kind of 'EPA knows you're there, but generally we expect you to be managing your risks'.
Miranda Tolmer: I need to jump in here because the time has flown in responding to our audience's questions and I now need to wrap us up. Thank you very much, panel—Dan, Marleen and my co-host Con—for responding to those questions. Thank you very much for joining us. The recording and links will be available to everyone who registered for this event through Eventbrite. As always—I don't think we could count the number of times that we have said this—please visit our website. There is a lot of information there on the new laws. There is also a lot of guidance there that will help to explain the core concepts and duties that are applicable to you. I think we mentioned this earlier, but if you are a small business and you don't have huge teams of people to help you with your environmental responsibilities, there are simple tools and guidance available for you on the website as well. I'm going to draw your attention to one in particular; there is a small business assessment tool and there is also guidance around assessing and controlling risks. Some of those materials have been translated into other languages as well. Also, risk videos are available on our website and our You-Tube channel. We also encourage you to subscribe to our quarterly e-bulletins; we have those for industry, community and local government. Please also follow us on our socials; we have Twitter, LinkedIn and Facebook. There is also our EPA phone number of 1300 EPA, which is 1300 372 842, or our email, which is firstname.lastname@example.org. I will give one more reminder that our waste framework overview webinar will be held on Tuesday, 8 June. There will be a registration link popped into the chat so that you can register for that through Eventbrite as well. Please forward that to your network so that they can attend the event as well.
The EPA will continue to support businesses to understand and comply with these new laws; that is our commitment to you. We do thank you very much for attending today and for your insightful questions. We hope that you have learnt a little more about understanding risk and managing it in your operations and about the general environmental duty. Again, I would like to thank my panel today: Con Lolis, Marleen Mathias and Dan Hunt. Also, I thank you very much for joining us.
Victoria’s environmental laws have changed. EPA’s webinar explains how the new laws will affect you and your operations. It covered:
- key environmental obligations for business and industry.
- the general environmental duty (GED)
- how to identify and manage your environmental risk
- where to find more information.
There was a Q&A session at the end of the webinar.
Reviewed 20 July 2021