11 August Victoria’s new environmental laws August 11, 2021 By AMPLA Admin Environment climate change, environment, The Laws 0 On July 1, amendments to the Environment Protection Act 2017 (Vic) came into effect that impact most businesses operating in Victoria. Victoria’s new environmental laws On July 1, amendments to the Environment Protection Act 2017 (Vic) came into effect that impact most businesses operating in Victoria. The laws consider how environmental risks will be dealt with and introduce a General Environmental Duty (GED). This makes it clear that both businesses and individuals are responsible for protecting our environment and human health. The GED has some similarities to the occupational health and safety framework. It requires organisations to implement “reasonably practicable measures” to reduce environmental hazards and risks. This means you must put in place controls that are proportionate to mitigate or minimise the risk of harm. Under the GED, Victorians must reduce the risk of harm from their activities: to human health and the environment; and from pollution or waste. This places a positive expectation on organisations and individuals to avoid the risk of environmental damage and to respond if pollution or waste occurs. This means you can fall foul of the law even if you don’t cause any pollution or waste - the contravention is failing to put in place proper management systems or plan. This includes but is not limited to managing risks associated with: Business activities that produce dust, noise, odour or runoff to stormwater or into waterways; The storage, use and disposal of liquids and chemicals; and Management of wastes including the choice of transporter or receiver of wastes For many organisations, this will require a risk management and monitoring plan to be put in place and actions documented so that you can demonstrate due diligence. The Act also introduced a new permissions regime with licences, permits and registrations, depending on the level of risk in the activity. Two types of licences will replace existing works approvals and licences - development and operating licences. A development licence is required when designing, constructing or modifying a building project, while an operating licence effectively replaces the previous EPA licence. A permit is required if you’re undertaking a prescribed permit activity, which includes the supply or use of wastewater, biosolids or reportable priority waste. While a registration is required to undertake prescribed registration activities that include low volume e-waste reprocessing, and transporting low-hazard reportable priority waste. There are also a wide range of activities that were not regulated previously that now require either a licence, permit or registration. These include waste and resource recovery, containment of category D waste soil, low-volume on-site wastewater management systems and temporary on-site industrial waste treatment. If you require a licence, permit or registration you will need to apply for them through the EPA who will consider the new Environment Reference Standard (ERS). The ERS is a tool that identifies environmental values that the community wants to achieve and maintain and whether these are met or threatened by the activity. The Act is governed by the Environmental Protection Authority (EPA) who has broad powers to conduct inspections and take action even if no harm has occurred. Anyone who breaches the GED could face civil or criminal penalties, regardless of whether any harm has actually been caused. The EPA can act against anyone who has a responsibility under the Act, which includes people in management or who are in control of an activity that may give rise to the risk of harm. Corporate penalties range from $1.6 million to $3.3 million for aggravated offences, while individual penalties also apply. When considering enforcement, the EPA will look at a range of factors including the attitude and behaviour of the duty holder. If you haven’t yet considered the implications of this legislation, there is no time to waste. Related Articles COMMUNITY LEGAL RIGHTS IN MINE CLOSURE PLANNING; A COMPARATIVE ANALYSIS OF THREE AUSTRALIAN STATES Professor Alex Gardner, University of Western Australia Law School, and Laura Hamblin, formerly research associate at the UWA Law School, 2021 Why does the Mining Act 1978 (WA) not provide secure legal rights for community consultation in relation to mining lease proposals and mine closure plans? Addressing this question presents an important theme for this comparative review of some core features of the regulatory frameworks for mine closure in three Australian States. It also raises important questions for future legal research. Western Australia, Queensland and Victoria have prominent but vastly different, and thus uniquely significant, mining industries. Western Australia’s mining industry has a long history of large and smaller scale mining of a diverse range of minerals by various methods that pose significant mine rehabilitation challenges.[i] Queensland’s mining industry is similarly large and diverse, dominated by export coal production, and planning future minerals development in a decarbonising world.[ii] Victoria has a smaller mining industry with a large historical legacy dominated by a coal mining industry for domestic electricity generation in the Latrobe Valley, which is closing as the State actively transitions to renewable power sources.[iii] These States also have significant differences in the regulation of their mining industries. What all three States do have in common is the significance of their mining industries to both the State economy and the communities who depend on or live near mining operations. Importantly, all three States are confronting large legal and regulatory challenges in managing mine rehabilitation and closure. The key to addressing these challenges is effective mine closure planning: the closure of a mine site has ripple effects that are not merely environmental and economic, but social and cultural too. The initial approval of a mine closure plan occurs before any mining has begun and, with the life cycle of a mine often spanning decades, regulatory bodies are approving hypothetical closure scenarios, potentially subject to vast changes. Regulatory bodies may then seek to enforce closure requirements enshrined in a plan that may wane in relevance as mining operations progress, the updating of which may depend on the miner. Yet remedying the regulatory system so that it creates adaptable but consistently effective mine closure outcomes for affected communities still begins at planning. Although that planning is an iterative process across the life of the mine, it is very important at the initial stage of approval. Recent legislative reforms in all three States are adding to the regulatory rigour and adaptability of mine closure planning, though there are very different legal requirements for community consultation. This article aims to explain and assess the regulatory reforms by undertaking a comparative analysis of mine closure planning across Western Australia, Queensland and Victoria, with a focus on the initial approval stage and how stakeholders and communities are brought into that process. The facilitation of continuous and comprehensive community engagement is critical to ensuring that mine closure planning accounts for environmental, economic, social, cultural and safety outcomes after mine closure, but it has not been possible to consider here the process of ongoing mine closure planning, especially for amending mine closure plans and determining satisfaction of mine closure plans leading to resource tenure relinquishment.[iv] The article begins by considering core concepts of mine closure planning and the regulatory goals that inform it. It then provides a comparative overview of each State’s mine closure planning requirements under the mineral resources, environmental and land use planning laws and draws out some of the different regulatory structures and processes for mine closure within each State. The third step in our analysis compares the ways in which those laws provide for local communities’ participation in mine closure planning, with specific attention to whether the regulatory provisions create legally enforceable rights for effective community engagement. The article concludes with a summary of the key points from the discussion of three themes in our analysis: (i) the importance of clear definitions of core concepts and key goals, (ii) mine closure planning as an essential part of a mining proposal, and (iii) the legal definition of community engagement and consultation rights. Mine closure planning and implementation is necessarily influenced by many other spheres of law including taxation law, investment law, water law, and the rights of traditional owners, to name a few. A potentially directly relevant Commonwealth law is the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which may require environmental impact assessment of a mining proposal and closure plan and lead to approval conditions supplementing State requirements.[v] Whilst acknowledging the importance of these adjacent spheres of the regulatory frameworks for effective mine closure planning, this article does not attempt to address their impact. In particular, the rights of Traditional Custodians are a crucial part of mine closure planning that are only briefly noted here and that would benefit from future research. WA Department of Mines, Industry Regulation and Safety, Major Commodities Review 2022-23”. Qld Government, Department of Resources, Queensland Resources Industry Development Plan, June 022. Vic Government, Department of Jobs, Precincts and Regions, Latrobe Valley Regional Rehabilitation Strategy. See L Hamblin, A Gardner, Y Haigh, Mapping the Regulatory Framework of Mine Closure, May 2022, CRC TiME, for a broader exploration of the full life cycle of mine closure regulation. In Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities  FCAFC 111; (2013) 214 FCR 301, , -, referring to the range of approval conditions, which included mine closure. In setting conditions under the EPBC Act, the Commonwealth Minister must consider any relevant conditions under State or Territory law: at  citing Lansen v Minister for Environment and Heritage (2008) 174 FCR 14. Implications of the Interim report on Commonwealth environmental protection laws Professor Graeme Samuel recently released his Interim Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). The report is highly critical of the EPBC Act, reporting that it neither ensures effective environmental and biodiversity protections nor efficiently regulates business. In the report, Professor Samuel makes several recommendations, some of which have already become priority areas for the government. These have significant implications for the energy and resources industry. QUEENSLAND’S MINE REHABILITATION REQUIREMENTS FOR VOIDS: ENSHAM CASE STUDY The State of Queensland reformed its mine rehabilitation legislation, namely the Environmental Protection Act 1994 (Qld) (EP Act), in 2018 through the Mineral and Energy Resources (Financial Provisioning) Act 2018 (Qld) (MERFP Act). A case study of the Ensham open-cut coal mine[i] in central Queensland highlights three issues for the efficacy of this regulatory framework. The first issue concerns an available exclusion of rehabilitation requirements for existing mining voids (the area of excavation created by open cut mining) in flood plains. Under the EP Act, as amended by the MERFP Act, a holder of an environmental authority (EA) may, in its Progressive Rehabilitation and Closure Plan (PRCP) and PRCP Schedule, identify land as a Non-use Management Area (NUMA).[ii] This is land that would not be rehabilitated “to a stable condition” and not have a post-mining land use. This rehabilitation exception as a NUMA is not applicable to mining voids wholly or partly in flood plains – these must be rehabilitated to a “stable condition”,[iii] as defined in the EP Act. This is the “section 126D(3) rehabilitation obligation”.[iv] However, the transitional provisions of the mining rehabilitation reforms differentiate the rehabilitation obligations of pre-existing mines (those existing at the time of the reforms, such as the Ensham Mine) and new site-specific mines.[v] Pre-existing mines with a “land outcome document” that presents an outcome similar to a NUMA can establish criteria for rehabilitation or management of a void in a flood plain that supersede this section 126D(3) rehabilitation obligation.[vi] The MERFP Bill Explanatory Notes for the transitional provisions reveal that this exemption from section 126D(3) “does not retrospectively breach existing rights and provides certainty to industry on the transitional process”.[vii] However, this grandfathering is arguably disconnected from environmental risks of such residual voids, creating two classes of mines based on the timing of a mine’s existence (pre-existing versus new). This Ensham case study provides an example of a pre-existing mine’s use of a “land outcome document” to exempt rehabilitation of residual voids in a flood plain but without clarity around the non-use management status of the area of the residual voids. The second issue discussed in this case study is progressive rehabilitation. The design of a financial assurance system to increase progressive rehabilitation was “a clear objective of the EPA’s work in 2004”, yet the EP Act fell short by failing to clearly outline criteria for certification of final rehabilitation for industry, and a scheme of refunding financial assurances at the termination of mining activity.[viii] These issues remained unaddressed until the 2015 State election when the then Labor Opposition ran on the campaign “[to] investigate the expansion of upfront rehabilitation bonds for resource companies to fully fund long-term rehabilitation activities”.[ix] Thereafter, the Queensland Treasury Corporation published a number of discussion papers advising of the shortcomings of the current financial assurance framework and that, in 2017, there were “220,000 hectares of disturbance, with an estimated rehabilitation cost of $8.7 billion”.[x] Queensland’s 2018 mining regulation amendments concerning progressive rehabilitation were intended to ensure “rigorous” review of NUMA approvals in PRCPs, “through an objective public interest evaluation” for future or newly established mines.[xi] However, the reforms may not effectively address instances in which progressive rehabilitation has been lacking in large, open-cut, mature mines in operation at the time of these legislative changes. As of 2021, approximately 33% of the Ensham Mine’s 4,944.7 ha of scheduled rehabilitation areas had been progressively rehabilitated.[xii] According to Ensham’s PRCP, this level of progressive rehabilitation exceeds that of other open-cut mines in Queensland.[xiii] For established mines, such as Ensham, that are approaching closure and have large voids that have not been substantially progressively rehabilitated across their mine life, the most economical rehabilitation option may be to rehabilitate residual voids to accord with legislated requirements. Under Queensland’s legislation, “rehabilitation” does not necessarily mean these voids will be re-filled. This may be contrary to community understanding of what rehabilitation is. Thirdly, this case study highlights areas in the regulatory framework in which information transparency could be improved – particularly public access to information – which raises issues of accountability, quality of community engagement and, ultimately, social licence on the part of mining companies and government. Information transparency is also relevant to community engagement and expectations for rehabilitation, such as the meaning of “rehabilitation” of residual voids (i.e., refilling to establish a pre-mining state versus the legislated “stable condition” standard). This article is structured as follows. Part 2 presents the legal and operational context of the Ensham Mine. It also describes the operational history of flooding and its relevance to rehabilitation and management of post-mining residual risks, which leads to a discussion of the rehabilitation legal reforms. Part 3 discusses the reform of Queensland’s rehabilitation legislation framework as it concerns residual voids, including the transitional provisions of the EP Act. Part 3 also explores Ensham’s Residual Void Project (RVP) for the development of the rehabilitation criteria for residual voids and considers the community engagement process. Part 4 comments on the transitional regulatory design issues in Queensland’s framework, issues concerning progressive rehabilitation of pre-existing open-cut mines such as Ensham, as well as transparency of information and community consultation. Part 5 concludes and suggests future research. Recent environmental cases in Australia Two recent cases involving environmental actions provide some guidance on how the law and Ministerial decision making can apply. Recently two judicial review proceedings were dismissed by the Federal Court. The case was brought by Environmental Justice Australia and has been called the Living Wonders case. The case sought to challenge the Federal Environment Minister’s failure to adequately consider climate change risk when assessing two coal mine expansions under s78 of the Environmental Protection and Biodiversity Conservation Act 1999. UWA Environmental Protection Law: Online Short Course This short course is for legal practitioners and other professionals interested in the environmental protection regulatory framework in Western Australia, in its national and international contexts. Potential changes to Environmental, Social and Governance reporting Environmental, Social and Governance (ESG) isn’t new to Australia, but it’s expected to become a more important aspect of business in the coming years. With shareholders and institutional investors paying close attention to business activities with an ESG lens we can expect more focus on this area. A recent example is the HESTA superannuation fund choosing to very publicly vote against the AGL demerger proposal on ESG grounds. 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