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General Environmental Duty

Understanding your General Environmental Duty and Duty to Notify under the EP Act.

Under Victoria’s new environmental regulatory regime which came into effect on 1st July, 2021, the focus has been shifted from a reactive to a prevention-based approach, underpinned by the new General Environmental Duty (GED). The GED is a positive duty to proactively identify and manage environmental risk and is a shared responsibility of all Victorians.

The GED states that:

A person who is engaging in an activity that may give rise to risk of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.

The GED is intended to be enduring, flexible and fill regulatory gaps where no specific requirement exists in current legislation. For example, specific practices or technologies do not have to be identified upfront and the duty can apply to new hazards that emerge in the future.

Minimising Risks of Harm

To determine what is reasonably practicable in relation to the minimisation of risks, regard must be given to:

  • the likelihood of those risks eventuating
  • the degree of harm that would result if those risks eventuated
  • what the person concerned knows, or ought to reasonably know, about the harm or risks of harm and any ways of eliminating or reducing those risks
  • the availability and suitability of ways to eliminate or reduce those risks
  • the cost of eliminating or reducing those risks.

Remedial Notices and Penalties

A breach or a threatened breach of the GED will trigger the Environment Protection Authority (EPA)'s capacity to issue a notice, such as improvement and prohibition notices or notices to investigate and environment action notices, so that the problem can be remedied quickly.

Failure to comply with the GED results in civil liability and criminal penalties of:

  • $363,480 for a natural person
  • $1,817,400 for a body corporate

There are additional penalties if the breach of the GED is aggravated, meaning it is intentional or reckless:

  • $726,920 and/or 5 years imprisonment for a natural person
  • $3,634,800 for a body corporate

All businesses are required to ensure compliance with the GED such as risk identification, risk assessment and risk mitigation. Edge Group provides consultation on the new Environment Protection Act 2017 (EP Act) and businesses’ obligations including:  

  • Evaluation of the nature of historic land uses and activities at the specified sites to assess “duty to manage” and assess potential contamination sources. 
  • Assess whether historic land uses and activities at the specified sites trigger a “duty to notify” under the EP Act.
  • Provide advice on possible management protocols and site investigations that may be required at the specified sites consistent with the EP Act.
  • Review existing environmental management plans (EMPs), inhouse risk assessments and environmental assessment reports (where available) to assess for the presence of possible contaminating activities and contamination sources.
  • Conduct desktop history reviews to assess for the presence of potential contamination sources associated with historic land uses and activities.
  • Conduct site inspections to check for the presence of potential contamination sources / activities / infrastructure, migration pathways and sensitive receptors (on and off-site).
  • Interview site personnel with knowledge of site operations and infrastructure to obtain further information in relation potential contamination sources / activities / infrastructure and pathways.
  • Develop conceptual site models for each site to assess the nature and likelihood of risks to environmental values protected under the EP Act.  

Edge can develop and provide training/education programs covering a broad range of topics/audiences: 

  • Education sessions to upper management/Corporate on the EP Act and businesses’ obligations (i.e. a due diligence perspective).
  • Office staff/project managers/Asset managers training on duties and responsibilities in managing sites and facilities.  
  • General environmental awareness training in the management of potential contaminating activities for all staff. 

Taking preventative action will protect businesses against potentially significant costs for serious breaches in the future. For further information about the GED and your responsibilities under the EP Act, contact Edge Group today.

 

 

 

 

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