Environmental Legislation Update - Victoria

The Victorian Environment Protection Amendment Act 2018 (EP Act) passed on the 26th July 2018 and will be progressively introduced until 2020. The EP Act implements what is effectively an entirely new regime for environmental compliance designed to prevent pollution incidents. 

The legislation changes greatly increases environmental liability exposures. Environmental Managers & Environmental Health Officers in conjunction with the Business should start preparing now on how to identify, mitigate, manage and report pollution as part of their overall risk management strategy.

Johanna Kennerley, Senior Associate of Carter Newell Legal Firm (2018) describes the reforms below;

• General Environmental Duty - a new underlying ‘general environmental duty’ where companies and individuals are required to minimise risks so far as reasonably practicable from activities that may risk harm to human health or the environment from waste or pollution such as maintaining plant and equipment, supervision and training.
• Contaminated Land – a new obligation on individuals and companies in management or control of land to minimise risks of harm to human health and the environment from contamination such as investigating contamination you should reasonably know about and notifying any person who may be affected
• Pollution incident notification - new duties on individuals and businesses for ‘pollution incidents’ to take action to respond and notify the EPA where it causes or threatens to cause material harm
• Waste management duties - The EP Act introduces ‘priority waste.’ A person who has the management or control of priority waste must correctly classify the priority waste, and must take all reasonable steps to contain it, isolate it and provide information on the nature of it.

A new waste levy scheme has also been introduced.

• Penalties and Liabilities - increased civil and criminal penalties. In some circumstances, if a company commits an offence, an Officer of the company will also commit an offence if the Officer failed to exercise due diligence to prevent the commission of the offence. In addition, the EPA may direct a body corporate to comply with an order or notice given to a related or associated entity.
• Third party ‘community’ rights – which will allow courts, on application by an individual or community group with standing, to enforce the new legislation where the EPA has not acted
• Public register and information sharing - the development of a new EPA public register which will increase transparency and the sharing of information, including data on permit applications, permits, emissions and compliance data (subject to privacy and commercial confidentiality) and authority for EPA to share information with other regulators (such as councils and WorkSafe)¹; 
  

There isn’t a better time to consider environmental liability insurance as part of your overall risk management strategy as it can protect businesses against legal liabilities arising from pollution incidents resulting in clean-up costs, environmental damage, third party damages for property damage and bodily injury, civil fines and penalties and personal liability for clean-up to Directors & Officers.

Marsh’s Environmental Practice are your environmental risk advisors and can help you identify your environmental exposures, assist with risk management and provide insurance risk transfer solutions.

_{1. https://www.carternewell.com/page/Publications/2018/Environment_Protection_Amendment_Act_2018/}

The information contained in this publication provides only a general overview of subjects covered, is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. Insureds should consult their insurance and legal advisors regarding specific coverage issues. All insurance coverage is subject to the terms, conditions, and exclusions of the applicable individual policies. Marsh cannot provide any assurance that insurance can be obtained for any particular client or for any particular risk.