STATUTORY POLICY REVIEW – FINAL REPORTref.epa.vic.gov.au/our-work/setting-standards/~/media/... · – FINAL REPORT Review of Statutory Policy under the Environment ... diffuse

STATUTORY POLICY REVIEW– FINAL REPORT

Review of Statutory Policy under the Environment Protection Act 1970

Publication 1498 July 2013

Environment Protection Authority (EPA)

Department of Environment and Primary Industries (DEPI)


Contents

FOREWORD .................................................................................................................................................................................................... 1

DEFINITIONS .................................................................................................................................................................................................2

ACRONYMS ...................................................................................................................................................................................................3

EXECUTIVE SUMMARY ................................................................................................................................................................................5

SUMMARY OF KEY FINDINGS AND RECOMMENDATIONS ..................................................................................................................6

THE REVIEW ...................................................................................................................................................................................................7

CHAPTER 1. INTRODUCTION, CONTEXT AND DRIVERS ..................................................................................................................12

1.1 Introduction .....................................................................................................................................................................................12

1.2 How statutory policy works ..........................................................................................................................................................13

1.3 The need for statutory policy review ........................................................................................................................................ 15

1.4 Objectives and scope of the Statutory Policy Review ..........................................................................................................17

CHAPTER 2. HISTORY AND CONTEXT OF STATUTORY POLICY...................................................................................................... 19

2.1 A very short history of statutory policy ................................................................................................................................... 19

2.2 Statutory policy for water – an evolution over time.............................................................................................................. 19

2.3 Contributing to improvements in air quality .......................................................................................................................... 20

2.4 Addressing noise pollution issues ............................................................................................................................................. 20

2.5 Current and emerging environmental challenges .................................................................................................................21

2.6 Responding to current and emerging environmental challenges .......................................................................................21

CHAPTER 3. POTENTIAL MODELS AND SPECIFIC SUGGESTIONS FOR REFORM ......................................................................23

3.1 Potential models for a revised statutory policy framework ................................................................................................23

3.2 Stakeholder comments ................................................................................................................................................................26

3.3 Specific environment issues raised ......................................................................................................................................... 30

CHAPTER 4. IMPROVING THE FRAMEWORK FOR STATUTORY POLICY ......................................................................................32

4.1 Broad policy framework ..............................................................................................................................................................33

4.2 Defining what we want to protect in the environment ........................................................................................................ 36

4.3 Setting longer-term objectives and strategic direction ...................................................................................................... 41

4.4 Target setting to realise environmental quality objectives ............................................................................................... 42

4.5 Provisions that enable or set rules for decision makers including EPA .......................................................................... 43

4.6 Requirements on emitters/industry ........................................................................................................................................ 46

4.7 Improving guidance materials .....................................................................................................................................................51


CHAPTER 5. REQUIREMENTS AND RESPONSIBILITIES OF AGENCIES AND OTHER BODIES ..................................................................................................................................... 54

5.1 Effective implementation to achieve environmental objectives ...................................................................................... 55

5.2 How are roles and responsibilities specified in statutory policy? ..................................................................................... 55

5.3 The problem ................................................................................................................................................................................... 58

5.4 Implementation plans – proposed approach ..........................................................................................................................60

5.5 Roles of agencies ......................................................................................................................................................................... 64

5.6 Roles of local government .......................................................................................................................................................... 64

5.7 Using statutory policy to drive regional or local outcomes................................................................................................ 66

CHAPTER 6. IMPROVING LINKS WITH OTHER STATUTORY SYSTEMS ........................................................................................ 68

6.1 Intersection of policy with other Victorian statutory systems .......................................................................................... 69

6.2 Statutory policy and statutory land use planning ................................................................................................................ 69

6.3 What the consultation and submissions told us .....................................................................................................................70

6.4 Statutory policy and catchment planning ...............................................................................................................................73

6.5 Statutory policy and national standards ..................................................................................................................................73

6.6 Challenge of linking statutory policy to strategic planning .................................................................................................76

CHAPTER 7. ACCOUNTABILITY, MANAGEMENT AND PERFORMANCE .........................................................................................79

7.1 Introduction ....................................................................................................................................................................................79

7.2 The problem ...................................................................................................................................................................................79

7.3 Objectives ........................................................................................................................................................................................ 81

7.4 Driving accountability through role definition and improved administration ................................................................. 81

7.5 Driving accountability through reporting requirements ..................................................................................................... 83

7.6 Driving accountability for environmental standards ............................................................................................................84

7.7 Improving and reviewing environmental standards ............................................................................................................. 87

CHAPTER 8. IMPROVING THE STATUTORY POLICY DEVELOPMENT PROCESS .......................................................................88

8.1 Community engagement ............................................................................................................................................................88

8.2 Alignment with Regulation-making process ..........................................................................................................................90

CHAPTER 9. IMPROVING ACCESSIBILITY, USEABILITY AND GUIDANCE .....................................................................................92

9.1 Introduction ................................................................................................................................................................................... 93

9.2 Stakeholder views ......................................................................................................................................................................... 93

9.3 Specific suggestions .................................................................................................................................................................... 94


CONCLUSION .............................................................................................................................................................................................. 97

APPENDICES ............................................................................................................................................................................................... 99

Appendix 1. (Recommendations) ........................................................................................................................................................... 99

Appendix 2. Specific issues raised in consultation ........................................................................................................................... 101

Appendix 3. VCEC Review of Environmental Regulation: relevant recommendations ........................................................... 102

Appendix 4. Consultation summary ....................................................................................................................................................105

Appendix 5. Individual statutory policies - a summary ..................................................................................................................108

1


FOREWORD

We are pleased to present the Statutory Policy Review – Final Report.

In this review, EPA and the Department of Environment and Primary Industries (DEPI) have examined the framework for statutory policies — state environment protection policies (SEPPs) and waste management policies (WMPs) — under the Victorian Environment Protection Act 1970 (EP Act).

This review proposes reforms to deliver a much simpler, more streamlined and accountable statutory policy framework that will support industry and government agencies to act to prevent pollution and protect the environment. The review recommends actions that will simplify and clarify the focus of statutory policy, and improve implementation and accountability, links with other statutory systems, readability and accessibility.

Feedback from industry and other stakeholders indicates SEPPs and WMPs are often viewed as complex, difficult to access and hard to understand. A lack of coordinated and accountable implementation has limited their effectiveness and exposed EPA and other Victorian government agencies to legitimate criticism. Current statutory policies are not sufficiently flexible to respond well to emerging challenges. Many SEPPs and WMPs are overdue for review, undermining stakeholder confidence and creating uncertainty for decision makers. Despite these problems, feedback and analysis have confirmed the fundamental importance of statutory policy for environment protection in Victoria.

We would like to thank the many people who have participated in this review. We also acknowledge the contribution made by members of the review Reference Group (Lyn Denison, Tony Robinson, Ian Rutherfurd (part), Julia Reed (part), Don Hough, Phillip Johnstone, Jessica Kerstjens, Leon Metzeling and Shaun Green).

The recommended reforms respond directly to stakeholder feedback. They are also consistent with the direction of recommendations in EPA’s Compliance and Environment Review. A separate implementation plan is being developed to deliver the reforms.

Cheryl Batagol Adam Fennessy EPA Chairman Secretary

July 2013

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DEFINITIONS

attainment program in current statutory policy attainment programs outline the actions needed to meet the purpose of the statutory policy. They usually outline roles and responsibilities for environment protection and identify actions and tools to address specific activities

best practice is used in statutory policy to mean the best combination of techniques, methods, processes or technology used in an industry sector or activity that demonstrably minimises the environmental impact of that industry sector or activity

beneficial use a use of the environment which is conducive to public benefit, welfare, safety, health or aesthetic enjoyment and which requires protection from the effects of waste discharges. A full definition is provided in the Environment Protection Act 1970

buffer an area set aside between a potential hazard and the ‘receptor’ asset or system that needs protection

compliance following the law by obtaining the right approvals or permissions and conducting authorised activities in accordance with any conditions, regulatory requirements or guidelines. Compliance is the responsibility of businesses and individuals with obligations under the law

diffuse source pollution a source of contaminants or pollutants which is not an identifiable single point of discharge

ecosystem resilience the ability of an ecosystem to withstand and recover from environmental stresses and disturbances

environment defined by the Victorian Environment Protection Act 1970 as ‘the physical factors of the surroundings of human beings including the land, waters, atmosphere, climate, sound, odours, tastes, the biological factors of animals and plants and the social factor of aesthetics’

environmental indicators a measurement that provides information on the environmental quality of an environment

environmental quality objectives

in statutory policy environmental quality objectives provide the ‘benchmarks’ that describe the environmental quality needed to protect the environment. Specifically the objective is represented by the concentration or level of an indicator

environmental standards in the broadest definition environmental standards take diverse forms. They include not only numerical and legally enforceable limits, but standards which are not mandatory but contained in guidelines, codes of practice or sets of criteria for deciding individual cases. Types of environmental standards include biological standards, exposure standards, quality standards, emission standards, product standards, process standards, life-cycle standards, use standards and management standards

net environmental gain where, over a specified area and period of time, losses of natural ecosystem extent or function, as measured by a combined quality-quantity measure are reduced, minimised and more than balanced by commensurate environmental gain. (Note also ‘best practicable environmental outcome’ and ‘best net environmental outcome’)

non-statutory not defined, authorised or regulated by statute or legislation

government policy government policies are not law. They usually set out a government’s position and aims, however do not set legally binding requirements on the public. Government policy and statutory policy should not be confused (see definition of statutory policy below)

point source pollution means contaminants or pollutants which are identifiable to a single point of discharge

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regulation/Regulation in this discussion paper ‘regulation’ refers to all forms of government regulation, including Acts, subordinate legislation and guidance, whereas ‘Regulation’ refers to statutory rules made under an Act of Parliament

risk based in general terms a risk can be understood to be the likelihood of an undesirable effect occurring due to a hazard (a situation, event or substance that can become harmful). In the context of ecosystems a risk-based investigation framework can be considered to be a process for evaluating the probability of adverse effects on an ecosystem

segments are used to identity parts of the policy area which have common features in terms of environmental condition. The EP Act’s definition is ‘segment in relation to the environment means any portion or portions of the environment expressed in terms of volume, space, area, quantity, quality, time or any combination thereof’

statutory enacted, regulated, or authorised by statute. A statute is a law made by parliament. It is more commonly known as an Act of Parliament or Legislation. Governments pass laws in order to regulate conduct which is likely to affect our various environments

statutory policy statutory policies are a type of subordinate legislation which have statutory force, tied to an Act, separately approved by parliament, and may be enforceable either in their own right or through other instruments. In Victoria there are currently two types of statutory policy under the Environment Protection Act 1970 – State Environment Protection Policies (SEPPs) and Waste Management Policies (WMPs)

subordinate legislation is a form of legislation made by the Governor in Council under a specific authority to make it under an Act. Regulations are a form of subordinate or delegated legislation. Statutory policy is also a type of subordinate legislation

ACRONYMS

Ai Group Australian Industry Group

ANZECC Australian and New Zealand Environment Conservation Council

AQIP Air Quality Improvement Plan

ARRT Advanced Resource Recovery Technology

ASIC Australian Securities and Investments Commission

BPEM Best Practice Environmental Management

CES Commissioner for Environmental Sustainability

CMA Catchment Management Authority

COAG Council of Australian Governments

DEPI Department of Environment and Primary Industries

DESCC DEPI, EPA and Sustainability Victoria Coordination Committee

DTPLI Department of Transport, Planning and Local Infrastructure

DSE Department of Sustainability and Environment (the predecessor of DEPI)

DTF Department of Treasury and Finance

EDO Environment Defenders Office

EfW Energy from Waste

4


EPA Environment Protection Authority

EP Act Environment Protection Act 1970 (Vic)

EV Environment Victoria

FLA Forward Legislative Agreement

GEM Guideline for Environmental Management

GHG Greenhouse Gas

IWMP Industrial Waste Management Policy

MAV Municipal Association of Victoria

MoU Memorandum of Understanding

MWMG Metropolitan Waste Management Group

MWPAN Minor Works Pollution Abatement Notice

NEIP Neighbourhood Environment Improvement Plan

NELA National Environmental Law Association

NEPC National Environment Protection Council

NEPM National Environment Protection Measure

NPI National Pollutant Inventory

OCPC Office of the Chief Parliamentary Counsel

PAN Pollution Abatement Notice

PACIA Plastics and Chemicals Industries Association

PEM Protocol for Environmental Management

QMS quality management system

RIS Regulatory Impact Statement

SEPP State Environment Protection Policy

SEPP AAQ SEPP Ambient Air Quality

SEPP AQM SEPP Air Quality Management

SEPP GoV SEPP Groundwaters of Victoria

SEPP N-1 SEPP Control of Noise from Commerce, Industry and Trade (N-1)

SEPP N-2 SEPP Control of Noise from Music Premises (N-2)

SEPP WoV SEPP Waters of Victoria

SLA Subordinate Legislation Act 1994

SV Sustainability Victoria

VCAT Victorian Civil and Administrative Tribunal

VCEC Victorian Competition and Efficiency Commission

VCMC Victorian Catchment Management Council

VLGA Victorian Local Governance Association

VSHREW Victorian Strategy for Healthy Rivers, Estuaries and Wetlands

WMP Waste Management Policy

5


EXECUTIVE SUMMARY

In this review, EPA and DEPI have examined the framework for statutory policies – State Environment Protection Policies (SEPPs) and Waste Management Policies (WMPs) – under the Victorian Environment Protection Act 1970 (EP Act).

SEPPs establish in law the uses and environmental values to be protected in Victoria and define the environmental quality objectives needed to protect these beneficial uses. WMPs do similar things for waste. Both SEPPs and WMPs currently establish programs to meet and attain their objectives.

Statutory policies provide a framework for environment protection that is set in law. They contain whole-of-government statutory commitments. Once established, statutory policies are required to be reviewed every 10 years but do not sunset like Regulations.

Feedback from industry and other stakeholders indicates SEPPs and WMPs are often complex, difficult to access and poorly understood. A lack of coordinated and accountable implementation has limited their effectiveness and exposed EPA and other Victorian government agencies to legitimate criticism. Current statutory policies are not sufficiently flexible to respond well to emerging challenges. Many SEPPs and WMPs are overdue for review, undermining stakeholder confidence and creating uncertainty for decision makers. Despite these problems, feedback and analysis have confirmed the fundamental importance of statutory policy for environment protection in Victoria.

This review proposes reforms to deliver a much simpler, streamlined and accountable statutory policy framework that will support industry and government agencies to act to prevent pollution and protect the environment. The review recommends actions that will simplify and clarify the focus of statutory policy and improve implementation and accountability, links with other statutory systems, and readability and accessibility.

These recommended reforms respond directly to stakeholder feedback gathered through the review. They are consistent with the direction of recommendations in EPA’s Compliance and Environment Review.

A separate implementation plan has been developed to deliver the reforms.

6


SUMMARY OF KEY FINDINGS AND RECOMMENDATIONS

The review recommends that statutory policy under the Environment Protection Act 1970 be retained but reformed.

The review makes 15 recommendations. In summary, the review broadly recommends that EPA and DEPI:

1. Simplify and clarify the focus of statutory policy (chapter 4). The review outlines a number of reforms that focus the role of SEPPs and WMPs on setting longer term objectives and environmental quality standards for air, noise, water, land and waste, and removing those elements that do not need statutory force (for example, general agency roles). This approach will assist the development of clear, effective and consistent environmental obligations and standards.

2. Improve implementation (chapter 5). The review recommends removing from statutory policy those program and delivery elements that do not need legal definition and replacing them with a more regularly developed and accountable ‘implementation plan’ approach.

3. Strengthen links with other statutory systems (chapter 6). The review recommends retaining and strengthening the links between statutory policy and the statutory land use planning system and permitting process. The review recognises the importance of links with national standards setting approaches. It suggests changes to enable statutory policy to be amended to reflect national standards more easily.

4. Build accountability (chapter 7). The review suggests a number of changes and options to improve accountability for effective implementation and to drive continuous improvement in Victoria’s environmental standards. For example, through new public reporting requirements and making the roles and responsibilities of agencies (particularly DEPI and EPA) clear.

5. Improve the statutory policy development process (chapter 8). The review suggests changes to improve regulatory and public scrutiny by more closely aligning the statutory policy development process with that currently used for Regulations under the Subordinate Legislation Act 1994 (SLA). It also suggests that improved community consultation and engagement approaches are needed to enable more Victorians to inform the development of environmental standards.

6. Improve accessibility, useability and guidance (chapter 9). The review suggests a number of changes to improve readability and access to policy. These changes will enable industries and others to better understand their regulatory obligations and allow community better understanding of Victoria’s ambient environment standards.

When combined, these changes will produce a simpler and more effective framework for statutory policies, primarily focused on setting environmental quality standards.

7


THE REVIEW

The purpose of the review

The purpose of this review was to step back and look at the place of statutory policies in the Victorian environment protection framework.

SEPPs and WMPs have been an essential, innovative and evolving element of Victoria’s environment protection framework since the 1970s. While individual statutory policies have been reviewed and updated, the overall framework and use of policies has not been re-examined since then.

The critical question in this review has been whether statutory policies, in their current form, are the right instrument to tackle the complex environmental issues for the decades ahead. This has required analysis of the current function, structure, content, management and effectiveness of statutory policies.

How the review was conducted

The review was conducted as a joint project between the DEPI and EPA. A joint Project Control Board and a Reference Group, each consisting of senior managers from both organisations, were established. Following initial research and analysis of existing statutory policies, a Discussion Paper was released in June 2011 (EPA Publication 1370).

A series of stakeholder workshops were conducted between May and July 2011. The Australian Industry Group, Municipal Association of Victoria, Environment Victoria, Environment Defenders Office and National Environmental Law Association assisted with convening workshops for their members and other stakeholders.

Submissions were sought on the issues and questions raised in the review Discussion Paper. Twenty-seven formal and several informal submissions were received from organisations, peak bodies and individuals.

These submissions, along with stakeholder views from the workshops, have informed the recommendations.

In addition to this Final Report a Summary Report has been prepared.

Figure 1 – How the review was conducted

The challenge

Our environment is changing, Victoria’s population is growing and greater stress is being put on resources. We also face significant changes in technology and in approaches to regulation. We need to ensure that our regulatory instruments will protect and enhance the Victorian environment in the face of all of these new challenges and opportunities. Our regulatory instruments need to provide certainty, transparency and a ‘clear line of sight’ for industry to understand and comply with their obligations. There needs to be an evaluation framework to ensure continuous improvement, long term relevance and utility. Our regulatory requirements need to be proportional to the problems they are addressing and to avoid unnecessary costs for industry and government. Additionally there may be opportunity to streamline, consolidate and simplify our regulatory instruments, reducing the administrative costs experienced by business, industry and other stakeholders.

Research and analysis

2010 - early 2011

Discussion paper released

June 2011

Final report

2013

Implementation - including individual policy reviews

From 2013

Consulted and received submissions on discussion paper

Mid-2011

Fig. 1

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Changing institutional context

There are currently 15 statutory policies. Each reflects the issues and institutions at the time they were developed. Over time, however, institutions, environmental challenges and approaches to regulation and administration have changed significantly. Reflecting the different policy and management approaches adopted over the last thirty years, current statutory policies vary significantly in structure and approach.

Figure 2 – Current Victorian statutory policies

The regulatory environment has changed considerably over last 30 years. For example there has been an increased focus over time on consistent national standards. There is also a greater focus on regulatory efficiency and on clearly demonstrating the environmental outcomes achieved by regulatory interventions.

Within Victoria, local government, water authorities and natural resource management arrangements have all changed markedly. Key pieces of legislation, such as the Environment Effects Act 1978, Planning and Environment Act 1987, Water Act 1989, Catchment and Land Protection Act 1994 and the Coastal Management Act 1995, have all been enacted since the first statutory policy was declared in 1975.

This review has considered the place of statutory policies in light of these changes.

Learning from other models

All Australian States now provide for statutory policies in some form in their environment protection legislation.

Victoria was the first Australian jurisdiction to establish an Environment Protection Authority and to create statutory policies. It has the most statutory policies and they have the broadest coverage and content.

South Australia and Queensland’s statutory policies are the most comparable to Victoria’s. Each has broad state-wide statutory policies for air, noise, waste and water1. South Australia also has policies on more specific issues such as open air and incinerator burning and motor vehicle fuel quality. By comparison, Western Australia’s policies are geographically specific, addressing air, inland water and biodiversity issues2.

1 SouthAustraliahasEnvironmentProtectionPolicies;QueenslandhasEnvironmentalProtectionPolicies.2 WesternAustraliahasEnvironmentalProtectionPoliciesandStateEnvironmentalPolicies

State environment protection policies (SEPPs)

- Ambient Air Quality- Air Quality Management- Groundwaters of Victoria- Prevention and Management of

Contamination of Land- Music Noise from Public Premises- Noise from Commerce

Industry and Trade - Waters of Victoria

Waste management policies (WMPs)

- Movement of Controlled Waste Between States and Territories

- National Pollutant Inventory- Protection of Ozone Layer- Waste Acid Sulfate Soils- Ships Ballast Water- Siting Design and Management

of Landfills- Solid Fuel Heating- Used Packaging Materials

Fig. 2

9


New South Wales’ legislation makes provision for statutory policies, but none have been developed to date3. Environmental quality standards for air and water are based on national standards but are not specifically housed in New South Wales’ law.

Compared to Victoria’s policies, South Australia and Queensland’s policies for air, noise and water are more concise and accessible. Their core focus is on defining the ‘environmental values’ to be protected and enhanced, and on the environmental quality objectives and indicators needed to achieve this. They do not, for example, set out general responsibilities of agencies. South Australia’s policies also detail industry obligations.

Queensland revised its statutory policy framework in 2008-09, moving its ‘rules for decision makers’ out of various environment protection policies and into a single Regulation. Part of the rationale for this change was to make clearer the matters that agencies must consider when they make different types of decisions. As a result, their policies are now more focused on environmental quality standards.

There are both differences and similarities in how statutory policies are enforced. As in Victoria, policies are indirectly enforced in all other States via notices/orders or licence conditions. In South Australia, Western Australia and Queensland, policies are also directly enforceable. South Australia’s policies set out specific penalties for non-compliance with mandatory provisions. These penalties can be higher than what is able to be attached to their Regulations.

South Australia’s policy is uniquely flexible. Its policy can itself specify which of its sections can be amended by the Minister by notice in the Gazette. This helps their policy to remain current, to reflect changes in science and to address newly identified risks and pollutants. Safeguards on the use of such fast-track amendments are written into their policies. South Australia also clearly names which third level instruments apply and the legal status of those instruments, so that industry can readily establish what their obligations are.

South Australia, like Victoria, uses statutory policies to implement most National Environment Protection Measures into its state law. By comparison, New South Wales, Queensland and Western Australia use Regulations more often for this purpose.

In conclusion, all other Australian States include the statutory policy instrument in their toolkit. It is valued because of the breadth of what it can include and give legal weight to. Victoria can particularly learn from the conciseness, accessibility and focus of South Australia and Queensland’s policies.

It is more difficult to compare overseas approaches, given differences in constitutional, legislative and institutional frameworks. However, it is interesting to note that a similar standards based approach is used in environment protection in the federated USA system and through European Union directives. Gunningham describes the US EPA as the ‘quintessential example of an agency applying a ‘rules and deterrence’ strategy. Such a strategy relies heavily on a system of roles prescribing uniform standards applicable to diverse circumstances’4. He notes that this system is often accompanied by considerable litigation, which is often costly and time consuming. In contrast, Gunningham describes the Australian States and Commonwealth as applying a mixture of enforcement based approaches and ‘advice and persuasion’ approaches, typified by a stronger emphasis on cooperation and conciliation to achieve compliance, as opposed to pure enforcement5.

3 TheamendedNSW Protection of the Environment Operations Act 1997providesforthedevelopmentofProtectionoftheEnvironmentPolicies(PEPs).4 Gunningham,Neil,Enforcing Environmental Regulation,JournalofEnvironmentalLaw,23:2,2011,pp1765 Gunningham,Neil,Enforcing Environmental Regulation,JournalofEnvironmentalLaw,23:2,2011,pp177

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THE CASE FOR RETAINING AND REFORMING STATUTORY POLICIES

Why SEPPs and WMPs are important (what they do)

The EP Act was built around the approach of first defining the uses of the environment that Victorians want protected and enhanced (beneficial uses), then defining the standards needed to achieve these outcomes (environmental quality objectives and indicators).

Statutory policies:

1. fundamentally underpin environment protection in Victoria

2. define, with legal weight and certainty, the meaning of clean (non-polluted) air, water and land, and acceptable noise levels under the EP Act

3. underpin the EPA’s licensing, works approval and many compliance and enforcement decisions

4. provide a basis for the environmental audit system under the EP Act (see case study below) and monitoring and assessment of environmental quality

5. can set, in law, longer-term strategic directions for protecting and enhancing the environment, providing certainty and anchor points for industry and government agencies (including EPA)

6. are a key vehicle for implementing national standards into Victorian law

7. set rules for decision makers, including EPA and other agencies such as planning and water authorities

8. provide a key legal link with the Victorian planning framework

9. place requirements on industry (emitters), including requirements (unsuited to Regulation) for industry practices to keep improving.

Case study - How environmental auditors use statutory policies

TheEnvironmentalAuditSystemhasoperatedinVictoriaundertheEPActsince1989.Themostextensiveuseofthesystemtodatehasbeenbyplanningauthorities,governmentagenciesandtheprivatesectortoprovideassurancethatpotentiallycontaminatedlandissuitableforitsintendeduse,ortoadvisewhatisrequiredtomakethelandsuitableforitsintendeduse.

TheEPAct(insection53Y(1))requiresenvironmentalauditorstohaveregardtopolicy.

Therequirementsinstatutorypoliciesprovidefundamentalbenchmarksforenvironmentalauditors’assessments.Environmentalauditreportsarestructuredaroundtheserequirements.Auditreportsprovidedetailedanalysisofwhetherstatutorypolicyrequirementsarebeingmet,andifnot,howtheycouldbemet.Forexample,anauditofpotentiallycontaminatedlandwillassesswhetheranyofthebeneficialusesprotectedbySEPPWatersofVictoria,SEPPGroundwatersofVictoriaandSEPPPreventionandManagementofContaminationofLandareprecludedbycontamination,andifso,recommendcleanupandmanagementmeasures.

Wherefullcleanuptoprotectallofthebeneficialusesofgroundwaterisnotpracticable,thenSEPPsrequiregroundwatertobecleaneduptotheextentthatispracticable.Thisisanevolvingconcept.Whatispracticablewillchangeascleanuptechnologieschange.SuchanevolvingconceptisbettersuitedtostatutorypolicythantoRegulation.

11


Why we need to retain them

SEPPs and WMPs play a critical and distinct role in Victoria’s environment protection framework.

In particular, they:

• define ambient standards (beneficial uses, environmental quality objectives and indicators) which apply generally, rather than to particular regulated entities

• include requirements that oblige industry to keep improving its practices (continuous improvement concepts such as ‘best practice’).

These elements are best placed in statutory policy as they are too detailed and technical to be outlined in the primary Act and too broad to be expressed in Regulations. They need to remain in law, that is, in statutory policy, to underpin the range of uses set out above.

Why we need to reform them

Reform is needed to:

- make it easier for industry (and others) to understand and comply with their obligations

- reduce industry compliance costs and allow for innovation

- respond to emerging challenges

- improve implementation

- clarify the legal weight of third level guidance

- help ensure the standards and requirements in statutory policies remain current and appropriate.

12


CHAPTER 1. INTRODUCTION, CONTEXT AND DRIVERS

This chapter outlines the objectives and scope of this review. It briefly explains how statutory policy functions under the EP Act. It concludes with a summary of the policy and regulatory drivers for this review.

1.1 Introduction

For more than 35 years, statutory policy has been an essential element of the environment protection framework in Victoria. These policies, State Environment Protection Policies (SEPPs) and Waste Management Policies (WMPs) made under the EP Act, express in law the community and government’s expectations for protecting and improving the environment.

The first statutory policy for the Waters of Port Phillip Bay was declared in 1975, followed by policies for air and noise in 1981. In a report on its first 10 years of operation, the capacity to make statutory policies was regarded by the authority as ‘one of the most important provisions in the Environment Protection Act 1970’6. Three decades on, in 2011, there are 15 policies covering air, land, groundwater, noise, water and waste issues (Figure 3).

Statutory policies have been developed to respond to the challenges of the time. They have contributed to significant environmental improvements, for example in our air quality and urban water quality. 2011 was EPA Victoria’s 40th year and we want to ensure that Victoria’s statutory policies are ‘fit for purpose’ to meet the challenges of protecting and improving Victoria’s environment over the coming decades.

Looking ahead, we face the uncertainty of a changing climate and the pressures of resource overuse. Climate variability can lead to rainfall and temperature changes, along with more extreme weather events, sea level rises and inundation. This in turn leads to potential changes in the quality and quantity of resources available and the resilience of natural systems7. Economic growth with increased consumption and rapid technology changes can lead to potential impacts such as increased resource extraction, use and waste generation. Population growth coupled with increasing urbanisation and higher density living can lead to pressures on community amenity (quality of life) and wellbeing8. To deliver the best environmental outcomes for Victoria over the long term, we are now asking what features our statutory policy framework needs in the face of current and emerging environmental challenges and how these equip us to deal with scientific and technological developments.

Changes in the ‘regulatory’ environment are also placing a greater focus on regulatory efficiency and on clearly demonstrating the environmental outcomes achieved by regulatory interventions. The 2009 report by the Victorian Competition and Efficiency Commission (VCEC) on improving environmental regulation in Victoria, and the follow up VCEC inquiry into Victoria’s regulatory framework9 both highlighted the need for clear regulatory objectives and outcomes10.

6 EPA,1971-1981: achieving environmental objectives,1981,p.57 EPA 5 Year Plan 2011 – 2016,EPAPublication1402,September2011,p.68 Ibid,p.69 VCEC,A Sustainable Future for Victoria: Getting Environmental Regulation Right,July2009;VCEC,Strengthening Foundations for the Next Decade: An Inquiry into

Victoria’s regulatory framework,FinalReport,April201110 Inthisdiscussionpaper,theterm‘regulation’referstoallformsofgovernmentregulation,includingActs,subordinatelegislationandguidance.‘Regulation’refers

tostatutoryrules,suchastheVictorianEnvironmentProtection(IndustrialWasteResource)Regulations2009.‘Subordinatelegislation’referstobothRegulationandstatutorypolicy.

State Environment Protection Policies (SEPPS)

- Ambient Air Quality- Air Quality Management- Groundwaters of Victoria- Prevention and Management of

Contamination of Land- Music Noise from Public Premises- Noise from Commerce Industry and Trade- Waters of Victoria

Waste Management of Policies (WMPs)

- Movement of Controlled Waste Between States and Territories

- National Pollution Inventory- Protection of Ozone Layer- Waste Acid Sulfate Soils- Ships’ Ballast Water- Siting, Design and Management of

Landfills- Solid Fuel Heating- Used Packaging Materials

Fig. 3

Figure 3 - Current statutory policies

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The 2010 Compliance and Enforcement Review undertaken to assess EPA’s compliance approach emphasised the need for simpler and more transparent environment standards and a need to clarify the levels of statutory instruments used by EPA11. Internally, EPA Victoria is undergoing significant reform to become more effective to deliver better environmental outcomes for Victoria. The EPA’s 5 Year Plan for 2011-2016 sets out its corporate vision and goals. Two important guiding principles are transparency12:

‘Regulation will be developed and enforced transparently, to promote the sharing of information and learning. Compliance of duty–holders and EPA’s regulatory actions will be explained and open to public scrutiny. Enforcement actions will be made public, to build the credibility of EPA’s regulatory approach and processes’.

And to be authoritative:

‘The EPA will be an influential authority on environmental impacts. It will also be an authoritative source of information on environmental conditions, level of compliance with the laws it regulates, key risks and new and emerging issues’.

This review is an important part of the EPA reform processes and is seeking to understand how statutory policy can better align with and support the EPA corporate and regulatory objectives and principles.

1.2 How statutory policy works

1.2.1 What is statutory policy?

For the purposes of this review, statutory policies are SEPPs and WMPs made under the EP Act. SEPPs establish in law the uses and environmental values to be protected in Victoria and define the environmental quality objectives needed to protect these beneficial uses. WMPs establish state-wide objectives and directions for waste management which can cover any aspect of waste management including the generation, reuse, recycling, storage, treatment, transport, handling and disposal of waste. While WMPs do not specify environmental quality objectives themselves, they generally aim to protect the beneficial uses set out in statutory policies for air, water, land and groundwater. Both SEPPs and WMPs establish programs to meet and attain their objectives (see Figure 4 which illustrates the current structure of policies, including examples of content in each section within the policies).

Statutory policies provide a framework for environment protection that is set in law and are whole-of-government statutory commitments. Once established policies are required to be reviewed every 10 years but do not sunset like Regulations.

A key feature of statutory policies is the setting of standards, such as environmental quality objectives or minimum and management standards, which are used to provide a statutory basis for environment protection decisions. For example, statutory policies are the basis for EPA to determine licence and works approval conditions. Statutory policies also implement and cross-reference a range of national standards (an example is National Environment Protection Measures as outlined below).

The EP Act states that SEPPs can be declared for the environment generally or in any portion(s) of Victoria with respect to any elements or segments of the environment13. Similarly, the EP Act states that WMPs may be declared with respect to any aspect of the management of waste in Victoria14. Most SEPPs broadly cover an environmental segment, whereas WMPs address specific waste management issues.

With the exception of requirements for industrial waste, there is no direct offence for non-compliance with statutory policies15. EPA uses other provisions of the EP Act, such as Pollution Abatement Notices, licence conditions and other offences, to enforce compliance with statutory policy.

11 Compliance and Enforcement Review(February2011),p.63(recommendation6.4);seewww.epa.vic.gov.au/compliance-enforcement12 EPA 5 Year Plan 2011 – 2016,EPAPublication1402,September2011,p.613 section16,Environment Protection Act 197014 section16A,Environment Protection Act 197015 section27A(1)(a)oftheEPActallowsdirectenforcementofrulesandrequirementsrelatingtoindustrialwastespecifiedinaWMP

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Figure 4 - Structure of statutory policy with examples

1.2.2 Implementation of National Environment Protection Measures (NEPMs)

An important function of Victorian statutory policy, both SEPPs and WMPs, is to bring into Victorian law the requirements set out in National Environment Protection Measures (NEPMs). NEPMs set out agreed national objectives for protecting or managing particular aspects of the environment and typically include standards and monitoring and reporting protocols.

Of the 15 current statutory policies, five implement NEPMs (two of seven SEPPs and three of eight WMPs). Victoria participates in national processes to introduce and review NEPMs. All five of the Victorian statutory policies that implement NEPMs are either currently under review or will be reviewed shortly (when current NEPM reviews are complete).

1.2.3 Process for individual statutory policy development and review

The process for development and review of SEPPs and WMPs is set out in the EP Act16. As outlined below, it involves formal advertising for information, preparation of a Policy Impact Assessment and a three month statutory period for public comment. It is a resource-intensive, highly consultative and rigorous process that subjects policies to economic, public and parliamentary scrutiny. Interviews with current and former EPA staff who have developed or managed a statutory policy review process indicate that depending on the complexity of the policy, this formal process can take 12 – 18 months or more and is usually preceded by the collection and analysis of information over a longer period of time. A shortening of these timeframes is one of the potential benefits from the reform option to simplify, streamline and consolidate statutory policy.

16 sections18–18DoftheEPAct.Asnoted,thisreviewisnotreviewingoramendingindividualpolicies

Attainment programs (SEPPs and WMPs)

Environmental indicators (SEPPs)

Program by which environmental quality objectives are to be collectively achieved or ‘attained’. Includes minimum and management standards to meet objectives.

Maximum levels of waste to be discharged, levels of noise to be emitted, how agencies need to work together, as well as minimum standards and guidance for the installation and operation of works or equipment for the control of waste or noise.

Environmental quality objectives (SEPPs)

More specific Objectives (WMPs)

Beneficial uses(SEPPs)

Policy purpose principles and intent

(SEPPs and WMPs)

Area to which the policy applies

(SEPPs and WMPs)

Section of policy Content in section Examples

SEPPs: Objectives (ambient standards) to ensure all beneficial uses (environmental values) are protected. WMPs: More specific waste management objectives.

Used to monitor whether objectives are being met. A critical part of determining the quality of the environment is to measure a parameter or indicator that allows us to assess the health or damage to a particular ecosystem.

Those uses and environmental values which require protection. (WMPs tend not to stipulate specific beneficial uses rather a general requirement to protect beneficial uses.)

Broad policy intent, context and guiding principles that generally reflect the EP Act principles.

The segment of the environment and the part of Victoria that the policy applies to.

E.g. the water quality objectives in SEPP (Waters of Victoria) link to designated values in the Australian and New Zealand Guidelines for Fresh and Marine Water Quality.

E.g. In the SEPP (Waters of Victoria) water quality parameters such as pH, dissolved oxygen, turbidity and electrical conductivity (salinity) are important indicators of ecosystem health.

E.g. SEPP (Ambient Air Quality): human health and well-being, visibility, etc; noise SEPPs: sleep in the night period.

The policy principles are usually the principles of environment protection set out in sections 1B – 1 L of the EP Act.

E.g. SEPP (Groundwaters of Victoria) applies to groundwaters and aquifers throughout Victoria.

Fig. 4

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1.3 The need for statutory policy review

Together with the EP Act and other subordinate legislation, statutory policy provides a state-wide, long-term framework for environment protection in Victoria. Two critical roles for statutory policies are the setting of standards, such as environmental quality objectives and minimum discharge standards that are used in making environment protection decisions, and the establishment of management approaches. When policies work well they clearly define standards for clean air, water, land, noise pollution and waste management, and establish a program of action to achieve these standards. As an example, air quality in Melbourne has improved significantly over the past 30 years largely due to industry compliance with standards set in statutory policy as well as improved regulatory controls on vehicle emissions.

Over the past decades, statutory policies that focus on individual segments of the environment have been pivotal to environmental improvements. They are considered by many to have been fundamental to environment protection in Victoria. The policies each reflect the issues and the institutions at the time they were developed. Over time however, the institutional, administrative and regulatory environment and environmental challenges have changed significantly.

1.3.1 Broad scope

The EP Act essentially provides a statutory duty for ‘environmental protection’ in that it empowers the Authority to act against those who breach the standards established under the Act and in subordinate legislation. The duty for environment protection could be viewed from either a ‘positive’ or ‘negative’ application of the duty, that is, to promote activities that improve the quality of the environment or to refrain from actions that damage the environment, that is pollution control17.

Perhaps one of the reasons statutory policy is complex is that it is providing for both pollution control and environmental improvement. The ambient standards and objectives inform regulatory instruments such as licences and works approvals, while the attainment programs outline the roles and responsibilities of a wide range of agencies. The 2010 Compliance and Enforcement Review found a broad acceptance of a ‘shared duty of care’ to the environment. From consultation, it found that there was strong support for EPA to promote this duty, a shared duty of care, and to promote the EP Act and the role of the EPA. The review found that this duty to protect the environment and to manage potential environmental hazards extended to all businesses and individuals, regardless of whether they are licensed by EPA or not18. Some environment protection legislation in Australia is more explicit with a general duty of environment protection incorporated in statute19.

The challenge for the statutory policy framework and EPA more broadly is to effectively support both approaches to the environment protection duty at the core of the EP Act.

1.3.2 Changing institutional context

While individual statutory policies have been reviewed and updated, the overall framework and use of policies has not been fully re-examined in light of broader contextual and institutional changes. For example, local government, water authorities and natural resource management arrangements have changed considerably over 30 years. Similarly, key pieces of legislation, such as the Environment Effects Act 1978, Planning and Environment Act 1987, Water Act 1989, Catchment and Land Protection Act 1994 and the Coastal Management Act 1995, have all been enacted since SEPPs and WMPs were first designed.

At the national level, the regulatory environment has also changed considerably over this time. The Commonwealth has a stronger role, including through the Murray Darling Basin Authority, the Environment Protection and Biodiversity Conservation Act 1999, National Waste Policy and the Product Stewarship Act 2011. The implication and challenge is to

17 SeeasimilardiscussioninDepartmentofHumanServices,Review of the Health Act 1958: A new legislative framework for public health in Victoria: A discussion paper.August2004,p.37

18 Compliance and Enforcement Review: Overview of key themes and recommendations for EPA Victoria,January2011,p.319 Forexampleseesection22oftheEnvironment Protection Act 1997 (ACT)andsection25oftheEnvironment Protection Act 1993 (SA)

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understand the relative role of emerging national standards and assessment processes viz Victorian standards set in statutory policy. There are existing interactions in some segments. National Council of Australian Government (COAG) processes may drive new dependencies.

1.3.3 Early feedback

With 15 different policies developed over more than 30 years to address a range of environment protection issues, it is not surprising that statutory policies vary greatly in their approach and effectiveness. Early analysis, feedback and research undertaken before formal consultation suggested that users and stakeholders felt there was significant opportunity to improve the form and operation of statutory policy. Formal consultation confirmed much of this analysis. Themes that emerged from early analysis and were presented in the 2011 discussion paper included:

- the statutory policy framework needs to contain greater flexibility to respond to emerging environmental challenges and changes in government priorities and community expectations, however this needs to be tempered with ensuring certainty and transparency of legal obligations

- the clarity, consistency, enforceability and accessibility of environmental standards in statutory policies varies considerably and should be improved

- there is significant scope to improve the way that statutory policy intersects with other regulatory instruments within Victoria and nationally

- active management, coordination across government and accountability for policies and their environmental performance can be improved

- the value of statutory policy should be quantifiable and should be evaluated through measuring improvements in environmental quality.

1.3.4 Changes to improve environmental regulation

In addition to changes in the institutions that manage and regulate the environment, changes in the regulatory environment are placing a greater focus on regulatory efficiency and on clearly demonstrating the environmental outcomes achieved by regulatory interventions. VCEC reported in 200920 and again in 201121 on opportunities for improving environmental regulation in Victoria. A number of recommendations relevant to this review include:

- the need to have clear regulatory objectives, including the outcomes that regulation is intended to achieve

- extending a risk-based approach to regulation in some areas

- replacing some prescriptive regulations with outcome-based approaches

- improving assessment and approval processes to reduce timeframes

- more effective compliance including performance reporting and evaluation

- improving regulation with the use of indicators (outcome, output and input) and frequency of reporting.

This review has examined ways to improve the efficiency of statutory policy and also how to better demonstrate the value of statutory policy by measuring improvements in environmental performance.

1.3.5 The need to review individual statutory policies

A further driver for this review was that around half of the 15 policies are due or shortly due for review, with several reviews of policies that implement NEPMs already well under way (refer to Figure 5). This timing has provided an opportunity to look more holistically at the entire framework for statutory policy and consider the effectiveness of statutory policies and the statutory policy model before commencing further individual policy reviews.

20 VCEC,A Sustainable Future for Victoria: Getting Environmental Regulation Right,July200921 VCEC,Strengthening Foundations for the Next Decade: An Inquiry into Victoria’s regulatory framework,FinalReport,April2011

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Any reformed statutory policy framework will directly inform the approach to individual policy reviews, including resources required and timeframes. The approach and timing for individual policy reviews will be informed by a range of factors, such as when policies are due for review, the need for any data collection or other background work before a review and an assessment of any risks associated with not reviewing a policy in the short term.

Figure 5 – Age of current statutory policies (at June 2013)

POLICIES THAT IMPLEMENT NEPMS

WMP (National Pollutant Inventory) 2012

WMP (Movement of Controlled Waste between States and Territories) 2012

SEPP (Ambient Air Quality) 1999 (varied 2001) (NEPM currently under review)

WMP (Used Packaging Materials) 2012

POLICIES THAT ADDRESS SPECIFIC ISSUES

IWMP (Waste Acid Sulfate Soils) 1999

IWMP (Protection of the Ozone Layer) 2001

WMP (Ships’ Ballast Water) 2004

WMP (Solid Fuel Heating) 2004

WMP (Siting, Design and Management of Landfills) 2004

POLICIES THAT BROADLY COVER AN ENVIRONMENTAL SEGMENT

SEPP (Control of Music Noise from Public Premises) 1989 (varied 1999)

SEPP (Control of Noise from Commerce, Industry and Trade) 1989 (varied 2001)

SEPP (Air Quality Management) 2001

SEPP (Groundwaters of Victoria) 1997 (varied 2002)

SEPP (Prevention & Management of Contamination of Land) 2002*

SEPP (Waters of Victoria) 2003

0Years

* SEPP (Prevention and Management of Contamination of Land) also implements a NEPM but includes broader requirements

2 4 6 8 10 12 14

Fig. 5

1.4 Objectives and scope of the Statutory Policy Review

The aim of this review has been to ensure that Victoria’s statutory policies provide an effective framework to protect the environment and achieve better environmental outcomes into the future.

The review has examined the current statutory policy framework, its function, structure, content, effectiveness and management. It presents possible models to reform statutory policy to better protect Victoria’s environment. It has not been a review of Victoria’s entire environment protection framework, the EP Act or policy development process. Where relevant it makes recommendations for legislative changes. The review itself is not a reform of individual policies.

The review has been undertaken jointly by EPA Victoria and DEPI.

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ADDRESSING CRITICAL CHALLENGES

The main body of this report presents stakeholder views and analysis broadly based on the critical challenges put forward in the Review Discussion Paper in 2011. The report is set out as follows:

Responding to current and emerging environmental challenges – addressed in Chapter 2

Given the new and emerging environmental protection challenges facing Victoria, it is important that we have the right regulatory and statutory frameworks to support decision making that improves environmental outcomes.

Maintaining and improving the health of the environment in the face of unprecedented environmental challenges may require rethinking approaches to environment protection.

Responsive, clear and more accessible standard setting – addressed in Chapters 4 and 7

A key role for statutory policy is standard setting; defining the environmental objectives we seek to protect and minimum and management standards to achieve these. Critical to responding to changes in our environment, such as those due to climate change, is the ability to update environmental standards based on the latest science in a timely manner, while retaining sufficient legal certainty.

Establishing a clear hierarchy of instruments – addressed in Chapter 4

Statutory policies refer to a wide variety of ‘third level’ documents and guidance that set out or explain statutory policy obligations in greater detail. The hierarchy and legal status of these documents is often unclear. There can be confusion on the current applicable standard and the enforceability of these standards. An important challenge is to articulate a hierarchy for statutory and non-statutory guidance that would explain the purpose for each type of guidance and their legal status.

Improved implementation to achieve objectives – addressed in Chapter 5

The action required to achieve environmental quality objectives (or ambient standards) is set out in the ‘attainment programs’ sections of statutory policy. Attainment programs typically include guidance, management controls and methods to be followed to achieve the policy objectives. This includes provisions that give discretion or empower organisations to take action. The nature of requirements included in attainment programs varies widely across and within policies. This means the attainment programs are often lengthy and difficult to navigate and understand. An important question for this review is whether statutory policy is best placed to continue to house and manage such diverse content, or whether some of it would be better placed in other instruments, such as non-statutory implementation plans.

Improved coordination and management of policies within and across agencies – addressed in Chapters 5 and 6. Statutory policies are whole-of-government commitments and seek to align decision making across multiple agencies to meet common objectives. In practice however, the requirements of statutory policies and their relationship to other instruments are often not well understood or could be better applied across government agencies.

Despite statutory policy being a whole-of-government legislative commitment, the knowledge and application of statutory policy (for example, by agencies who need to implement programs to attain policy outcomes) appears to be variable. There is scope to set clearer roles and responsibilities for policy development, delivery, review and reporting.

Clearer accountability for environmental performance - addressed in Chapter 7

A key challenge and opportunity is to demonstrate the value that statutory policy provides in terms of environmental improvements, relative to any compliance and administrative burden they impose. There is scope to improve the evidence, metrics and accountability for measuring the value of statutory policies, and the broader environment protection framework in terms of environmental outcomes.

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CHAPTER 2. HISTORY AND CONTEXT OF STATUTORY POLICY

This chapter presents a brief history on the development and use of statutory policy over the last 30 years. This history provides important context that assists the understanding of the current focus and structure of statutory policy. Short case studies of the history of the development of policy for water, noise and air segments are presented.

2.1 A very short history of statutory policy

When the Environment Protection Bill was introduced to the Victorian Parliament in 1970, the then Minister for Lands noted its first principal objective was ‘… to provide for the establishment of State policy, respecting conditions to be maintained in various segments or areas of Victoria’s environment … The adopted policies would form the guidelines for action by all agencies in the prevention of pollution’22.

SEPPs were the cornerstone of the new Act. Their development was recognised as the most fundamental task for the new EPA23. By the early 1980s, with policies for Waters of Port Phillip Bay, air and noise in place, the capacity to make statutory policies was regarded as ‘one of the most important provisions in the Environment Protection Act 1970’24.

Industrial Waste Management Policies (IWMPs) were introduced in 1985 to give EPA a means of setting broad statutory frameworks for the management of industrial waste.

In 1995, the National Environment Protection Council was established to make and report on NEPMs. The EP Act was amended to specifically provide for statutory policy incorporating a NEPM.

Waste Management Policies (WMPs) were introduced in 2002, providing for statutory policies on any aspect of the management of waste, not limited to industrial waste.

In 2011, 40 years after EPA commenced operating, there were 15 policies, covering air, land, groundwater, noise, water and waste issues.

2.2 Statutory policy for water – an evolution over time

The first SEPP was declared in 1975 for the Waters of Port Phillip Bay and in 1988 SEPP Waters of Victoria was made. This was the first SEPP to apply to all surface waters in Victoria and also foreshadowed that EPA would develop a separate groundwater protection policy.

The SEPP Groundwaters of Victoria was gazetted in December 1997, with a 2002 amendment renaming polluted groundwater zones as ‘groundwater quality restricted use’ zones. After numerous variations the 1988 version of SEPP Waters of Victoria was largely revoked and replaced by the 2003 version.

The Policy Impact Assessment for the 2003 SEPP Waters of Victoria explained how times had changed since 1988:

‘Use of Victoria’s natural resources has increased, awareness and understanding of ecologically sustainable development has improved, new bodies have been established for coastal and catchment management and there is now a greater focus on diffuse pollution sources. Modern SEPPs need to be flexible and support other tools, plans, actions and processes aimed at protecting the environment, particularly regional tools.’

Schedules to SEPP Waters of Victoria 2003 cover specific waters and catchments – Western Port, the Yarra, Port Phillip, the Gippsland Lakes and the Latrobe and Thompson Rivers.

22 HonBillBorthwickMP,MinisterforLands,12Nov1970.See25 years of making a difference(EPAPublication492,April1996),p.323 Between a rock and a hard place: The story of the development of the EPA(EPAPublication503,June1996),pp.22-2324 EPA,1971-1981: achieving environmental objectives (1981)p.5

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In summary, Water SEPPs have needed to evolve to align with significant and numerous changes in:

- the institutions that govern, regulate and manage water, for example, the restructure of the Victorian water industry

- new and emerging government strategies and non-statutory policies, such as the draft Murray Darling Basin Plan (2011), the Victorian Strategy for Healthy Rivers, Estuarine and Wetlands (VSHREW) and the Living Melbourne Living Victoria process

- the external challenges facing water management, especially climate change.

2.3 Contributing to improvements in air quality

Statutory policies have made a strong contribution to improvements in air quality in Victoria, benefiting human health and our enjoyment of the environment.

The first SEPP for the air environment was made in 1981. In 1999 it was divided into two policies, SEPP (Ambient Air Quality) (AAQ) and SEPP (Air Quality Management) (AQM). Following an extensive review, these were both varied in late 2001.

SEPP (AAQ) contains the objectives, indicators, standards, goals, and monitoring and reporting protocols for the NEPM for Ambient Air Quality (first made in 1998). SEPP (AQM) establishes an extensive management framework and attainment program, so that the air quality objectives in SEPP (AAQ) are met and continuous improvement in Victoria’s air quality is achieved. SEPP (AQM) addresses the management of emissions from all sources of air emissions in Victoria. It covers point and diffuse emission sources, including industry, motor vehicles, domestic sources and open burning.

Air quality in Melbourne and Geelong improved significantly from the 1970s to the 1990s. This was largely due to industry complying with EPA standards, as set in SEPP and through licence conditions, the introduction of emission controls on cars underpinned by Regulations and the banning of backyard burning in metropolitan Melbourne. Carbon monoxide and nitrogen dioxide have continued to decrease. Removing lead from petrol has dramatically reduced lead levels.

Under the 2001 changes to SEPP (AQM) the protection of climate systems was added as a beneficial use, with measures for greenhouse gas management included to assist in and provide consistency with state and national climate change policy. Since then all works approval and licensing applicants have been required to apply best practice controls for greenhouse gas (GHG) emissions and to demonstrate that GHG and energy efficiency have been addressed. These provisions in SEPP (AQM), supported by an incorporated Protocol for Environmental Management, aim to ensure licence holders and applicants consider approaches to reduce greenhouse gas emissions. SEPP (AQM) continues to drive improvements in air quality by requiring all generators of emissions, licensed or unlicensed, to demonstrate best practice or maximum extent achievable for minimisation and control of emissions. In addition, modelling of emissions is required in some cases to enable an assessment of predicted levels of pollutants and associated risks to environmental quality. This modelling is assessed against the standards contained in SEPP (AQM) to ensure the protection of the beneficial uses of the environment specified in the policy. SEPP (AQM) also continues to address diffuse sources of air pollution across Victoria.

The NEPM for Ambient Air Quality has recently been reviewed and a decision regarding variation of the NEPM is pending. When complete, Victoria’s SEPP (AAQ) and SEPP (AQM) will be reviewed.

2.4 Addressing noise pollution issues

The first noise SEPP (known as ‘N-1’) was declared in 1981, addressing noise from commerce, industry and trade in the Melbourne metropolitan area. In 1989, this original policy was repealed. It was replaced by a new version of SEPP N-1, which was varied in 1992 and most recently in 2001. A second noise SEPP (known as ‘N-2’) was declared in 1989, focusing on the control of music noise from public premises. It was amended in 1999.

The last substantial review of both policies was in 1989. Subsequent amendments have focused on targeting specific issues under the SEPPs.

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In contrast to water and air, SEPPs have not been used to broadly address the environmental segment of noise (music and industry noise) with N-1 only applying to the Melbourne metropolitan area. The noise SEPPs do not manage the cumulative impacts of different noise sources (for example road and industry) for a residential location. They protect domestic activities and use of the home only, rather than the overall state of the environment such as public space and impacts on fauna.

In 2007 EPA conducted a noise survey to determine what noise sources most frequently annoyed Victorians. The survey found that noise from alarms, traffic, construction activity and residences are the sources that most disturb the community. While the current noise SEPPs have been valuable in addressing industry and music noise, they do not cover the noise sources listed above. Other instruments such as the Vehicle Emissions Regulations, the ‘unreasonable residential noise’ provision in the EP Act and assorted guidelines are used to regulate noise. Regulation of a broader suite of noise sources may be considered in future SEPP reviews.

2.5 Current and emerging environmental challenges

Population growth, consumption and land use changes will continue to place further pressure on natural resources and the broader environment. The impacts of climate change may become more frequent and intense, with projections of more severe weather events and bushfires disturbing the natural and built environment. These changes are important drivers in the context of this review. They mean the environment we protect in the future will be different from the one we protect now.

Changes in our climate are also likely to be a catalyst for rapid changes in technology and infrastructure to mitigate and adapt to impacts. One recent example is an increase in the use of small scale (in-place) desalination technology. As Victoria moves to a carbon constrained economy, new technologies will continue to emerge that were not foreseen during the development of current statutory policies. An emerging example is the growth of natural-gas fired tri-generation systems in offices and high-density residential developments.

In addition to changes in our natural and built environments, we are seeing changes in approaches to environmental management to take a more holistic view. Modern environment protection approaches recognise that effective pollution control often comes from making the production process more resource efficient, rather than focusing solely on end-of-pipe solutions. Better understanding impacts across the whole life cycle of a product or service and enables focus on areas with the greatest potential to impact the environment. Improving the integration of resource efficiency and pollution management aligns with the concept of achieving ‘net environmental gain’.

For example, the increasing focus on achieving ‘net environmental gain’ or ‘best net environmental outcome’25 requires us to determine to what extent to clean up groundwater contamination, given it is energy intensive and given the benefits of improving the groundwater quality.

Collectively, diffuse pollution from a wide range of sources, for example into stormwater or from agricultural run-off, are major stressors on the environment. Directly regulating diffuse pollution sources however, is often more difficult due to the lack of a visible pollution stream and the large number of contributing sites. While some statutory policies include measures to address diffuse pollution sources we still have diffuse pollution problems and focus needs to be given to how we can most effectively manage these issues.

Approaches to how we protect the environment are changing with the introduction of concepts such as ecosystem stressors and resilience found in evolving approaches worldwide. Current policy approaches do not address these concepts.

2.6 Responding to current and emerging environmental challenges

Given the new and emerging environmental protection challenges facing Victoria, it is important that we have the right regulatory and statutory frameworks to support decision making that improves environmental outcomes.

25 See,forexample,EPA’s Works Approval Guidelines(Publication1307;Nov2009).Section1LoftheEPActreferstotheprincipleofintegratedenvironmentalmanagement

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Maintaining and improving the health of the environment may require rethinking approaches to environment protection. For example, in a changing climate, impacts from extreme events like bushfires and storms and changes in baseline stream-flow or wind patterns, impact how we protect the environment. The need to develop approaches to manage these changes will grow, which in turn will have implications for how we set environment quality standards and measures. We will need to better understand the stressors on ecosystems and build resilience in the face of environmental change.

It is now a legal requirement under the Climate Change Act 2010 (Vic) for EPA to consider these climate change challenges when it makes or amends statutory policy. Since July 2011, when recommending to the Governor in Council that a SEPP or WMP be declared, EPA has been required to have regard to the relevant potential impacts of climate change and the potential contribution to Victoria’s greenhouse gas emissions26.

Another emerging challenge for environment protection is to take a more holistic approach to ensure the best overall environmental outcomes. To date, policies have been developed for separate environmental segments, air, noise, water, waste and land, based on their history and the issues at the time.

There is also a need to assess and address the environmental impacts of processes and products across their lifecycle, not just at a particular site or point in a process.

26 Climate Change Act 2010(Vic),section14andschedule1

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CHAPTER 3. POTENTIAL MODELS AND SPECIFIC SUGGESTIONS FOR REFORM

This section summarises four models of reform put forward in the Review Discussion Paper. The Review Discussion Paper sought feedback on four potential models for revising the statutory policy framework to address the problems and challenges identified. Broadly, the models ranged from less substantial changes to the current framework, through to significant reform options that would likely involve amendments to the EP Act. The models were:

- model 1 – minor changes to streamline statutory policy

- model 2 – significant scope and structural changes to statutory policy

- model 3 – innovative reform of statutory policy to drive regional or local approaches

- model 4 – abolish statutory policy and rely on the EP Act, Regulations and guidance.

These models are not necessarily mutually exclusive. For example, model 3 could potentially be a key design feature of changing statutory policy under model 2. Alternatively, the models could be staged, for example, model 2 might present a longer term reform agenda that follows shorter term gains through model 1.

3.1 Potential models for a revised statutory policy framework

Analysis and consultation has indicated that reform to some extent is needed to improve the operation of statutory policy and to respond effectively to the environmental opportunities and challenges that lie ahead. Reflecting on the challenges and opportunities of statutory policy review, four potential models for reform were presented for discussion. The models focus on the role of policy in the legislative framework and the structure of statutory policy. They progress from a minimal change model through to models requiring more substantial legislative change. To manage resources as policies fall due for review, it may be necessary to implement reform in phases, for example, making minor changes (model 1) ahead of more significant changes (model 2) across all policies. The different options have very different implications in terms of scope and timeframes for implementation. Stakeholders were asked for their opinions on the proposed models.

Specific suggestions were also put forward for improving the accessibility, flexibility and management of statutory policy, which could be applied under models 1, 2 or 3. The suggestions focused on structural issues and ways to improve the management and working of statutory policy.

Table 1 - Potential models for a revised statutory policy framework

Model Summary of features

1.Minorchangestostreamlinestatutorypolicy - retainthecurrentbroadelementsofstatutorypolicyandkeepthenumberofindividualpolicies(orminorconsolidation)

- simplifycontent,clarifyhierarchybetweeninstrumentsandenforceabilityofprovisions

- improvetheaccessibility,clarityandconsistencyofthesupportingguidance

2.Significantchangestostatutorypolicy - movepartsofstatutorypolicyintoRegulationandguidance- tightenthefocusofstatutorypolicy,todefiningenvironmentalvalues,

environmentalqualityobjectivesandindicators- minoramendmentstotheAct,ifnecessary

3.Usingstatutorypolicytodriveregionalorlocalapproaches

- usedincombinationwithmodel1or2- usestatutorypoliciestoenablemoreeffectiveregional/localobjectivesand

implementationplans

4.AbolishstatutorypoliciesandrelyontheEPAct,Regulationsandguidance

- useonlytheAct,Regulationsandguidance- majoramendmentstotheAct

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3.1.1 Model 1 – minimal changes to statutory policy

This model aims to simplify and improve the clarity of existing statutory policies. It does not propose making any major structural changes to them or any legislative amendments. Under this model the current elements of statutory policy would be retained, including the different types of standards they currently include, although there may be some reduction in scope of the statutory policies as part of this simplification process. For example, some ‘attainment’ provisions may be reduced, simplified or moved into other non-statutory supporting documents.

A clearer hierarchy of instruments, from the EP Act, Regulations, statutory policies and guidelines, would be developed so their relative ‘legal weight’, enforceability and inter-relationships are better understood. Specific measures would be taken to improve the currency, accessibility, flexibility and management of the 15 current policies and related guidance (see specific suggestions below).

This model would ideally be a faster reform and may have potential to demonstrate some ‘quick wins’ in improving efficiency. It may not, however, be the best option to address the more strategic challenges of policy being more responsive to current and emerging environmental issues.

3.1.2 Model 2 – significant changes to statutory policy

This model aims to ensure that the right statutory instrument is used for the right purpose to best protect the environment. It would involve significantly reducing the content of statutory policies, with elements being moved ‘up’ into the Act, ‘across’ into Regulation or ‘down’ into guidance.

The main role of statutory policy would be to focus on ‘ambient’ standard setting, to define environmental values (beneficial uses), environmental quality objectives and indicators, and housing those standards that cannot be transposed into Regulation or guidance.

Where possible and practical, Regulation would house mandatory obligations or minimum standards for undertaking a particular activity. References to evolving concepts such as best practice, continuous improvement and maximum extent achievable would most likely remain in statutory policy. Some management standards could be retained or they may be moved into non-statutory instruments.

It is possible that a number of statutory policies would be combined (for example, to create a single water policy or single noise policy). If suitable, one or more statutory policies could be replaced by Regulations.

As elements of statutory policy could be moved into the Act or Regulations, this model may require some legislative amendments.

This model supports a view that a mix of regulatory instruments, with different, yet complementary roles, can be most effective in protecting the environment and helping users understand their obligations and opportunities. The key challenge for this type of ‘smarter regulation’ is ensuring the best combination of instruments27. The innovative approaches to best practice, co-regulation and voluntary regulation found in SEPPs could be further developed with this model. The choice of approach would depend on the nature and context of the environment protection issue being addressed.

As with model 1, this model would also set out a clearer hierarchy of instruments and be combined with specific measures to improve the ongoing currency, accessibility, flexibility and management of statutory policies.

3.1.3 Model 3 – using statutory policy to drive regional or local approaches

There may also be a number of quite different and innovative applications of an environment protection framework that should be considered.

For example, statutory policies could be combined to set and integrate environmental quality objectives (ambient standards) across all environmental segments (air, water, noise, waste etc). These state-wide objectives could then be realised or ‘attained’ at a regional or local level, by setting aligned regional or local objectives in subordinate instruments and establishing statutory regional or local implementation plans to achieve the objectives. Minimal

27 SmartRegulation’,or‘regulatorypluralism’,isdiscussedatlengthinN.Gunningham,EnvironmentLaw,RegulationandGovernance:ShiftingArchitectures,Journal of Environmental Law 21:2(2009),pp.179-212

25


standards and obligations of particular parties could be established in Regulations. Amendments may be required to the Act to enable a new regional environment protection approach.

This model could be used in combination with model 2 above. It could potentially result in a framework that is tailored to regional or local contexts and focused on the varying condition of local environments. It may also have the potential to improve engagement at regional and local levels towards higher state-wide environmental objectives. It may provide a model for better addressing diffuse pollution.

3.1.4 Model 4 – abolish statutory policies and rely on the EP Act, Regulations and guidance

This model would aim to provide a simpler, more defined regulatory model and a definitive, consistent set of legal obligations with a clear line of sight from the EP Act through to supporting guidance.

This model would likely involve, as a minimum:

- moving those parts of existing statutory policies with ongoing relevance and that require legal force into Regulations (and potentially the EP Act in a few cases)

- moving those parts of existing statutory policies that do not require legal force into supporting non-statutory guidance, codes, position statements, agreements or implementation plans

- amending the Act (and licences) to change references to statutory policy

- then revoking what remains of statutory policy once the new legal framework is in place.

Buinesses would primarily rely on guidance documents to understand and act upon their legal obligations.

This model would likely present some fundamental challenges to environmental regulation. Environmental quality objectives (ambient standards) are foundational in the current Victorian environment protection framework. The practical and legal feasibility of housing these in Regulations or some other instrument would need to be carefully examined. Our starting point is that ambient standards need to stay as an important part of the legal framework, given that they serve as a key reference point for EPA decisions (for example, when determining works approvals or licence conditions).

26


3.2 Stakeholder comments

Below is a selection of stakeholder comments and views from workshops and submissions. They are selected to give a quick overview of feedback from stakeholder consultations. More detailed analysis of submissions occurs in later sections (See Appendix 4 for a list of submitters and workshops.)

Figure 6 - What was not working well?

Fig. 6

‘existing SEPPs are inconsistent with each

other and many are outdated’

What was not working well?

‘the establishment of prescribed management approaches in a legal instrument such as a SEPP or WMP,

whilst providing clarity, can be inflexible and at times limit

innovation’

‘the environment protection principles are very broad and it

is not well understood how they have to be applied in

practice’

‘local government not always resourced to meet expectations

and often have difficulty assessing EPA advice’

‘lack of coordination when dealing with non

point source issues’

‘difficult to read and interpret, some

terminology unclear

‘lack of flexibility to update on a regular

basis’

‘policies do not integrate well with

each other’

‘ the connection between policy (SEPP objectives) and

compliance in the case of diffuse sources is not clear’

‘amending statutory policy is a difficult or

cumbersome process’

‘there is a level of confusion around the legal status of

instruments in the framework’

‘the term “statutory policy” is ambiguous and it is often unclear which

documents hold legal weight’

27


Figure 7 - What was working well?

Fig. 7

What was working well?

‘Provide a long-term statement on goals

and approaches which gives certainty to

stakeholders’

‘The current statutory framework has

facilitated a general improvement in the

environment’

‘Provide a broad outlook regarding

desired environmental outcomes’

‘Combination of community values and

scientifically-based environmental quality

standards’

‘Provide guidance to VCAT on long term goals and accepted

standards’

‘Some of the statutory policies are effective at

communicating environmental values and

beneficial uses, and articulate clear targets for environmental protection’

‘Generally describing terms to demonstrate

compliance (eg best practice)’

‘Provide a mechanism to recognise NEPMs and national standards in

Victorian law’

‘SEPP WoV creates a one-stop shop on water

obligations and strategic drivers’

28


3.2.1 What model is supported?

A majority of submissions supported the broad philosophy and overall structure of the current approach to statutory policy but suggested that reasonably significant reform is needed to make the approach more effective. These submissions in the main supported the suggested improvements listed in the Discussion Paper and overall supported model 2 reforms. A small number of submissions felt the current framework was not at all effective and should not be retained in any form. These submissions suggested model 4 was preferable as it created a simpler regulatory model where obligations were clear and enforceable. Some submissions supported the current structure and principles but identified the need for improved management and implementation of policy as the major problem. These submissions supported only minor administrative and delivery reform, aligned with model 1.

Figure 8 – Stakeholder views on level of reform needed

Examples of support for model 1

The Metropolitan Waste Management Group28 submission stated: ‘The high level architecture of the EP Act, SEPP, Waste Management Policy BPEMs and Australian standards have a logical consistency and flow. They define enduring environmental principles that are set in law that are scientifically based and are set out so as to be easy to follow. Any changes need to retain this clarity around objectives and acknowledge Victoria’s legislative framework as unique. MWMG therefore supports model 1 — make minor changes to streamline statutory policy as outlined in the discussion paper.’

Professor Rob Joy’s29 submission stated: ‘Only model 1 has any prospect of improving rather than undermining the significant strengths of the present system.’

28 MetropolitanWasteManagementGroupsubmission,p.229 ProfessorRobJoysubmission,p.7

Fig. 8

Stakeholder views on level of reform needed

Model 1 minor changes

MWMG Prof Rob Joy

Minor MajorLevel of change supported

Model 4 abolish statutory

policiesPACIA

Model 2 significant changes

ACLCA, Ai Group, Melbourne Water, VicWater, EV/EDO

Model 3 driving regional/local

approachesYarra Valley Water

29


Examples of support for model 2

The Australian Contaminated Land Consultants Association30 (ACLA) supported model 2 and stated: ‘Model 2 outlines a number of fundamental changes that incorporate flexibility, simplicity and innovation... and allows for the introduction of regional and local relevance, which is something that the current framework lacks. The beneficial uses listed in SEPPs are not always applicable due to the local/regional setting... an example being the relevance of ‘stock watering’ as a groundwater beneficial use in the Melbourne CBD.’

The Ai Group supports elements of model 2. For example their submission stated: ‘The discussion paper puts forward a number of specific suggestions to improve the accessibility, flexibility and management of statutory policy. The Ai Group considers many of these to be common sense initiatives which should be incorporated into a package of reforms…’31

Melbourne Water32 supports model 2 because it:

- clearly separates compliance requirements into Regulations

- retains statutory policy for longer-term improvement objectives

- locates principles in legislation

- supports the achievement of objectives by resourcing based on risk.

Model 2 is supported by VicWater33 because it would significantly reduce the content of statutory policies and support more innovation in achieving ambient standards with a backstop of minimum environmental protection specified in Regulations.

Examples of support for model 3:

Yarra Valley Water34 preferred model 3, followed by model 2. ‘Model 3 appears to provide the most practical approach in terms of local approaches. The new model should be less complex, easier to understand, simpler to reference and more definite.’

VicWater35 also saw benefits in model 3, including allowing a more practical approach locally, while still driving environmental improvement across the State.

Examples of support for model 4:

The Plastics and Chemical Industry Association (PACIA)36 submission stated: ‘We recommend that statutory policies be eliminated and that regulatory requirements are clearly set out in regulation instead’ (model 4). PACIA argues that these changes would strengthen the environment protection framework and reduce the regulatory burden for business.

30 AustralianContaminatedLandConsultantsAssociationVictorianBranchsubmission,p.331 AustralianIndustryGroupsubmission,p.832 MelbourneWatersubmission,p.833 VicWatersubmission,p.1234 YarraValleyWatersubmission,p.535 VicWatersubmission,p.1236 PlasticsandChemicalIndustryAssociationsubmission,p.1

30


3.3 Specific environment issues raised

3.3.1 Environmental challenges raised in submissions

- The Ai Group submission stated: ‘Businesses consulted by the Ai Group support provision of improved guidance on the underlying assumptions on which SEPP numbers are derived. In addition, businesses seek greater transparency in how the standards are set, including transparency of the data available to support standard setting processes. Businesses also advise that there is need for a clear hierarchy of selection of relevant standards where there is no standard cited37.’

- The Association of Victorian Regional Waste Management Group submission38 stated: ‘The protection of existing and proposed resource recovery facilities and their existing buffers from the encroachment of sensitive land uses is a key challenge... another challenge is to find, identify and nominate sites for future waste infrastructure and facilities...’

- The Metropolitan Waste Management Group submission (MWMG)39 also identified future infrastructure needs for waste disposal and treatment as a priority. The MWMG submission stated: ‘The MWMG is proposing, through the [former] DPCD Review of the Victorian Planning System, the introduction into the Victoria Planning Provision of an overlay (similar to airports/wildfire management). This may be one way to ensure that communities were aware of where waste management sites currently are and have been planned. To achieve this, EPA Statutory Policies need to define buffers for all resource recovery uses, including landfills, organic composting, ARRTs and EfW facilities.’

- The Victorian Catchment Management Council submission40 commented on the challenge of diffuse pollution and stated: ‘Because of the diffuse nature of the sources, effective action to control this type of pollution is difficult and remains one of the biggest challenges to improving water quality for government, industry and the community.’ Their submission further stated: ‘CMAs could potentially play a greater role (working with EPA and others) to (i) identify sources of diffuse pollution, (ii) develop potential land management solutions, (iii) prioritise management actions to guide investment decisions and (iv) coordinate action to combat issues.’

- The VicWater submission41 stated: ‘Climate variability is a key risk, there is a need to ensure that policies which impact on environmental resilience are reviewed first (i.e. AQM, Land and Water).’ Further, their submission stated that: ‘Clarity around stormwater and recycled water with community responsibilities needs to be clearer to ensure that the priority pollutants are minimised.’ To them this was a critical issue.

- The Environment Defenders Office and Environment Victoria submission42 stated: ‘Environment Victoria uses the SEPPs most often, particularly with regards to environmental quality objectives for water and air quality. However we note that these instruments were limited in their use to Environment Victoria and our supporters as they contain no standards for greenhouse pollution or water extraction from rivers, two of the biggest causes of environment damage in Victoria.’

- The URS Australia submission stated in reference to contaminated land that: ‘The implementation of the output from the statutory processes, such as Audit Statement Conditions, is not covered by statutory policy or any adequate means to ensure that conditions are followed by future owners/occupiers of premises that are the subject of the statements or audits, or that any such conditions are implemented appropriately during the construction/development process. This is a priority and should be considered as part of the Land SEPP review process43.’

37 AustralianIndustryGroupsubmission,p.538 TheAssociationofVictorianRegionalWasteManagementGroupssubmission,p.539 MetropolitanWasteManagementGroupsubmission,p.340 TheVictorianCatchmentManagementCouncilsubmission,p.341 VicWatersubmission,p.642 TheEnvironmentDefendersOfficeandEnvironmentVictoriasubmission,p.1043 URSAustraliasubmission,p.3

31


3.3.2 Dated guidelines for noise and air

A number of submissions identified the age of guidelines and confusion on their status as problems. Particular guidelines mentioned include the Recommended Buffer Distances for Industrial Residual Air Emissions (Environmental Protection Authority, 1990) and Interim Guidelines for Control of Noise from Industry in Country Victoria (Environment Protection Authority, 1989). The Septic Tank Code of Practice being out of date or unavailable in draft form to affected delivery agencies was also raised a number of times44.

3.3.3 Buffer distances

A number of stakeholders and submitters identified buffer distances as a major problem. For example, Ms Jani Brieder’s submission stated: ‘Buffer distances have been a major issue for the community for many years. Industries are also affected by buffer distances when sensitive uses encroach. The (outdated) buffer distances to sensitive uses for industries that exist in EPA Publication AQ2/86 (which are also reflected, though more up-to-date, in provision 52.10 of planning schemes) do not apply to sensitive uses. For example, an industry may not be able to establish within 300 metres of a residential area, yet there is no requirement that a residential area must not be developed within 300 metres of that industry…..There is a need for clear and effective buffer distances that satisfy the community with regards to feeling safe, and it is wondered if such should be done through policy.’45

3.3.4 Other issues

A number of other areas for improvement of individual statutory policies were identified. They fall outside the scope of this review however have been documented in Appendix 1.

44 Notetheseguidelineshavesincebeenupdated.InOctober2012,EPAreleasedforcommentaDraft Guideline on Recommended Separation Distances for Industrial Residual Air Emissions(EPAPublication1506).ThefinalisedRecommended Separation Distances for Industrial Residual Air Emissions – Guideline(EPAPublication1518)waspublishedinMarch2013.Itreplacesthe1990guideline.NewguidelinesfornoiseinruralVictoriawerereleasedin2011–see Guidelines for Noise from Industry in Regional Victoria(EPAPublication1411).InDecember2010,EPAreleasedtheDraft Code of Practice for Onsite Wastewater Management (EPAPublication1364)forcomment.ThefinalisedGuidelines for Environmental Management – Code of Practice for Onsite Wastewater Management (EPAPublication891.3)waspublishedinFebruary2013.

45 MsJaniBriedersubmission,p.2

32


CHAPTER 4. IMPROVING THE FRAMEWORK FOR STATUTORY POLICY

As illustrated below, the current content of statutory policy is diverse, addressing both ‘what we want to protect’ and ‘how we are going to get there’ (attainment programs).

The review has found that current statutory policy is often complex, difficult to access and poorly understood by community and businesses. Stakeholders were of the view that the standards and obligations within statutory policy are sometimes unclear, which often confuses businesses, industries, agencies and communities.

The review recommends that the content of statutory policy be streamlined to focus its primary role on setting longer term objectives and environmental quality standards for air, noise, water, land and waste; that is, ‘the goalposts’ for what we want to protect in the Victorian environment.

The review recommends that attainment programs be, in part, replaced with separate implementation plans (see section 5.4 ‘Implementation plans – proposed approach’).

Figure 9 – Recommended changes to the content of statutory policy

Fig. 9

Current content of statutory policy

Longer-term strategic direction Policy purpose, environment protection

principles and intent (SEPPs & WMPs)

Beneficial uses (SEPPs)

Environmental quality objectives & indicators (SEPPs)

More specific objectives (WMPs)

WH

AT

we

wan

t to

pro

tect

General roles & responsibilities of agencies (SEPPs & WMPs)

Specific responsibilities of agencies(SEPPs & WMPs)

Rules for decision-makers (SEPPs & WMPs)

Industry obligations – general and specific(SEPPs & WMPs)

Explanatory notes(SEPPs & WMPs)

HO

W w

e’re

go

ing

to

pro

tect

it

(att

ain

me

nt

pro

gra

m)

Streamlined content of statutory policy

Longer-term strategic direction

Beneficial uses

Environmental quality objectives & indicators

WH

AT

we

wan

t to

pro

tect

Rules for decision-makers

Industry obligations(where unsuited to Regulation)

Explanatory notes

33


This chapter discusses the broad policy framework under the EP Act. It emphasises that statutory policies fundamentally define what we want to protect in the environment (our ‘goalposts’). It sets out the differences between statutory policy and Regulation. It analyses different types of provisions within statutory policy and assesses which may be better placed in Regulation or a non–statutory mechanism. This chapter also examines third level guidance material and approaches to target setting.

4.1 Broad policy framework

Consultation has revealed strong support for retaining statutory policy, in some form, as a key part of the framework under the Victorian EP Act46.

There is strong support for the logic of the broad ‘architecture’ of the current framework, that is, the EP Act, supported by statutory policy and Regulations, supported in turn by guidance.

Our June 2011 Discussion Paper illustrated the current hierarchy or pyramid of instruments under the Act as follows:

Figure 10 – The current framework under the EP Act

As noted in the Discussion Paper, the 15 current statutory policies fall into three broad categories:

1. policies that implement NEPMs

2. policies that address specific issues

3. policies that broadly cover an environmental segment.

This mix of categories and functions may warrant simplifying. It is suggested that, over time and where practical and beneficial, statutory policies that address specific issues (2. above) should be moved into Regulations.

46 Asnotedinsection3,supportforretainingstatutorypolicieswasnotuniversal.PACIAsupportedmodel4intheDiscussionPaper,abolishingstatutorypolicyandmovingtoanAct-Regulation-Guidelines/Codesframework.

Fig. 10

EP Act

Regulation Statutory policy

Statutory guidance

Non-statutory guidance

Primary legislation

Subordinate legislation

Third level guidance

34


Key considerations relevant to such a change include:

- The experience of other jurisdictions demonstrates the feasibility of implementing (at least issue specific) NEPMs as Regulations rather than as statutory policy (see Table 2).

- Where a NEPM is not being implemented, the requirements for making a Regulation are, in some ways, now less onerous and less time-consuming than the statutory requirements for making a SEPP or WMP (see text box on page 35)47.

- The need for consequential changes to the Act. For example, the Act (s. 20(C)(2)) currently requires EPA’s authorisations (works approvals, licences, etc) to be consistent with all applicable policies. It may also need to require consistency with all applicable Regulations.

The benefit of such a revised framework is that it would provide statutory policies with a clearer focus. Statutory policies would not be used to address specific issues. They would focus on broad environmental segments, setting the ‘goalposts’ for what we want to achieve in relation to noise, waste, water, land and air. Whilst Regulations and statutory policy are both forms of subordinate legislation, this revised framework conceptually sees statutory policy as broader in scope, sitting above and informing Regulation, as follows:

Figure 11 – A revised approach to statutory policy under the EP Act

It is worth considering whether SEPPs and WMPs should be re-named to better reflect a tightened focus on setting environmental quality standards (‘the goalposts’) for environmental segments. The name ‘State Environment Protection Measures’ (SEPMs) is suggested. This would also remove the confusion caused by the word ‘policy’. A decision on renaming SEPPs and WMPs should also take into account the names used by other states for their statutory policy instruments (all include the word ‘policy’) and the extensiveness of the changes that would be needed to the EP Act and other instruments. If SEPM is adopted, clear communication would be needed to avoid a misunderstanding that all the instrument does is implement NEPMs.

47 TheEPAct(s.18A(1)(d))providesashortcutprocessforimplementingaNEPMasastatutorypolicy.AshortcutprocessmaysometimesbeavailableforimplementingaNEPMasaRegulation.The Subordinate Legislation Act 1994(s.8(1)(f))allowstheresponsibleMinistertoissueacertificateexemptingaproposedstatutoryrulefromtherequirementtopreparearegulatoryimpactstatementifit‘isrequiredunderanationaluniformlegislationschemeandanassessmentofcostsandbenefitshasbeenundertakenunderthatscheme’.

Fig. 11

Regulation

Statutory policy

Statutory guidance

Non-statutory guidance

Primary legislation

Subordinate legislation

Third level guidance

EP Act

35


Table 2 – Principal instrument used by jurisdictions to implement NEPMs into their law48

Jurisdiction National Pollutant Inventory

Ambient Air Quality

Movement of Controlled Waste

Used Packaging Materials

Assessment of Site Contamination

Diesel Vehicle Emissions

Air Toxics

NSW R StP+R R R A+G R A+R

VIC P P P P P R P

QLD R R+P R R A A R+P

WA R DraftP R R A+R A DraftP

SA P P P P A+R P P

TAS* P P P+R P P P P

ACT A Notstated R IWRP P R Notstated

NT EPO A A N/A DraftEPO Notstated A

A–ActR–RegulationP–statutorypolicy,i.e.SEPPorWMPinVic;environmentprotectionpolicyinSAandACT;environmentalprotectionpolicyinQLD;stateenvironmentpolicyinWA;statepolicyinTAS*InTAS,NEPMsareautomaticallytakentobestatepoliciesG-guidelineEPO–environmentalprotectionobjectiveIWRP–industrywastereductionplanStP–StateplanN/A–notapplicable

How have the formal requirements for making statutory policies changed and become more onerous?

StatutorypolicieswereacornerstoneofthenewEPAct,whichtookeffectinearly1971,withthefirstSEPP(fortheWatersofPortPhillipBay)declaredin1975.

TheoriginalEPActsimplyrequiredEPAtoadvertiseover21days,vianoticeinthreenewspapers,anintentiontodeclareaSEPPandthentoconsiderallinformationreceivedoverthenexttwomonths,priortomakingarecommendationtotheGovernorinCouncil50.

Theserequirementsweresignificantlystrengthenedin1994.ThisiswhentherequirementstoprepareaPolicyImpactAssessmentanddraftpolicy,consultonthemforatleastthreemonthsandrespondtoeachformalcommentwereadded51.

ScrutinyofproposedregulationinVictoriafurtherincreasedwiththeestablishmentofVCECinmid-2004.

UntilDecember2005,thestatutorypolicymakingprocesswaslessonerousthantheRegulationmakingprocess,asitdidnotinvolveassessmentbyVCEC.InDecember2005,inresponsetorecommendation7.1ofVCEC’sFinalReport:Regulation and Regional Victoria: Challenges and Opportunities(June2005),EPAcommittedtoseekingVCEC’sindependentreviewofdraftPolicyImpactAssessmentsanddraftstatutorypolicies.ThishasnotyetoccurredasnomajorsegmentSEPPshavebeenreviewedsinceDecember2005(thelastonewasSEPP(WoV),gazettedin2003).VCECandEPAhaveinformallydiscussedhowsucharrangementsmaybeabletobeimplemented.SuchanarrangementwouldmaketheformalprocessofmakingSEPPsandWMPsmoreinvolvedandrigorous.ItwouldinvolveVCECanalysingthecostsandbenefitsofdraftstatutorypolicies,comparabletotheirassessmentofdraftRegulations.

TheconsultationrequirementsformakingstatutorypoliciesthatarenotimplementingNEPMSaremoreonerousthanthoseformakingRegulations.UndertheSLA(s.11),therequiredconsultationperiodfordraftRegulationsis28days(with60daysormoreconsideredbestpracticeundertheSubordinateLegislationGuidelines).Asnotedabove,theEPAct(s.18A(3))requiresaconsultationperiodofatleastthreemonthsandincludesanadditionalrequirementtoprovideawrittenresponsetoeachformalcommentreceived.

Seechapter8ofthisreportforrecommendationsonimprovingtheformalstatutorypolicydevelopmentprocess.

4950

48 Basedonjurisdictionalimplementationreportsathttp://www.nepc.gov.au/nepms?q=annual_report49 Section19oftheoriginalEnvironment Protection Act 1970(No.8056,assented22December1970)50 Sections18A–18DoftheEPActwereaddedbysection6oftheEnvironment Protection (General Amendment) Act 1994(assented17May1994).Therequirementon

EPAtoreviewstatutorypolicieswithin10yearswasalsoaddedatthistime.

36


4.2 Defining what we want to protect in the environment

A key role for statutory policy is standard setting; defining the environmental objectives we seek to protect and minimum and management standards to achieve these. Critical to responding to changes in our environment, such as those due to climate change, is the ability to update environmental standards based on the latest science in a timely manner, while retaining sufficient legal certainty.

A challenge for statutory policy is to improve the way that advances in scientific thinking and information are included in statutory policy, in particular minimum standards and listed pollutants. The need to amend standards based on the latest science requires greater flexibility than current processes provide for51. The process for reviewing individual statutory policies is deliberately highly consultative and rigorous. The challenge is to balance flexibility, where it is needed, with retaining sufficient certainty for users of the standards and with consideration of the compliance costs or other impacts on business. Standards or information that requires regular changes may be better placed in more flexible, non-statutory guidance documents.

Another challenge for government in updating ambient standards is that the technical knowledge and resources required to do the work can be substantial. It can involve the gathering of data over several years plus the need to apply high levels of science to the task.

4.2.1 Beneficial uses, environmental quality objectives and indicators

SEPPs establish in law the uses and environmental values (currently called ‘beneficial uses’) to be protected in Victoria and define the environmental quality objectives and indicators needed to protect these beneficial uses. These may be considered our ‘goalposts’ for what we want to protect in the environment.

WMPs establish objectives and directions for waste management issues (see section 1.2.1). They do not specify environmental quality objectives themselves, but generally aim to protect the beneficial uses set out in the SEPPs for air, water, land and groundwater.

This review has critically examined how the framework under the EP Act currently defines what we want to protect. We have asked and discussed with stakeholders:

- Is it helpful to have such ‘goalposts’ in law?

- If so, is it useful to house the ‘goalposts’ for what we want to protect in the environment in SEPPs? Or do they belong in a different instrument?

- Are they well understood – that is their legal status, scientific basis and enforceability and the logic of the SEPP model?

- Is ‘environmental value’ a clearer/more preferable phrase than ‘beneficial use’?

- Do beneficial uses, within SEPPs or across different SEPPs, often conflict?

- If it is not possible (in the short-term) to protect all beneficial uses and/or objectives, how should they be prioritised?

- When segment-specific beneficial uses and objectives are defined or reviewed, is enough regard given to the consequences for, and interrelationships with, other segments of the environment?

- How can we ensure they reflect what the community values (or what different communities value) about the environment in Victoria?

- Are the standards in the framework under the EP Act able to be updated readily enough (given changes in scientific knowledge, new technologies, changing approaches to environment protection, our changing and variable climate, etc)?

51 Forexample,thebioticindexSIGNALisusedinSEPP(WatersofVictoria)andtheSchedulesforYarraandWesternportasanindicatorwithspecificobjectiveswithinregions.Theindexwasfirstpublishedin1995andbecamewidelyacceptedinAustralia.Anupdatedversionwaspublishedin2003buttheschedulesstillrefertotheoriginalformoftheindex,whichotherorganisationsstoppedusingyearsago.

37


- How can we ensure that climate change, future challenges and different approaches (for example, adaptive management) are adequately considered when beneficial uses and objectives are defined or reviewed?

4.2.2 Keeping ‘the goalposts’ in law

Statutory policy has performed a critical ambient standard setting role, setting the environmental quality objectives and indicators that define clean air, clean water, etc in Victoria under the EP Act. This need will continue, regardless of whether it is housed in statutory policy, Regulation or elsewhere.

The current Act contains many references to ‘beneficial uses’ (the uses of the environment that we value). These are fundamentally connected to environmental quality objectives and indicators, sometimes called ambient standards (the standards we need to protect these uses). The current Act is founded on, and structured around, this approach.

Any change away from this approach would necessarily involve significant reworking of the EP Act. This would require a review of the fundamental approach of the Act. This has not been within the scope of the Statutory Policy Review.

Statutory policies define qualitative concepts not currently defined in the Act or (readily) able to be defined in Regulations. Having these concepts as statutory requirements has helped to drive major improvements in industry’s performance over time and has been considered a key feature to improving environmental quality. Our review has found that these concepts need to be retained in law. We have examined the best mechanism for doing so.

In consultation, a range of stakeholders expressed their support for beneficial uses, environmental quality objectives and indicators (‘the goalposts’) being retained in law or, specifically, in SEPPs:

- ‘Statutory policies provide a useful framework for defining ambient standards and setting medium to longer term broad environmental objectives.’

Australian Industry Group52

- ‘EDO and Environment Victoria recognise the benefits of setting standards for the environment. Setting out specific objectives for environmental quality can provide valuable clarity of purpose for environmental regulation, by ensuring it is outcome-focused. It can also provide business certainty by sending a clear, consistent and legally sanctioned message about what is expected of business and what environmental regulation will aim towards. It also offers the promise of a shared community understanding of common environmental and regulatory goals. Most importantly, these standards determine the level of environmental health required to protect fundamental ecological and human uses of the environment. This is done nowhere else in Victorian law and therefore is the core of statutory policy.’

Environment Defenders Office and Environment Victoria53

- ‘The standards established in the key SEPPs that deal with ambient environmental quality (for example, WoV and SEPP Ambient Air Quality) are firmly grounded in science and provide reliable benchmarks against which progress in achieving agreed environmental quality goals can be assessed.

Such standards are best placed in an integrated statutory framework that includes clear statements of environmental values to be protected, goals, monitoring regimes and attainment programs. Regulations are suited to setting up precisely specified standards and requirements, rather than providing a comprehensive framework of objectives and means framed in everyday language, as are SEPPs.’

Professor Rob Joy54

- ‘The establishment of beneficial uses and waste management outcomes consistent with the Victorian communities’ expectations is another positive aspect of the SEPP and WMP. Establishment of beneficial uses provides a sound basis for the establishment of relevant objectives and indicators and assists in evaluation of impacts and decision making on complex issues, or where some uncertainty exists about specific criteria. Evidence based approaches supported by sound science should continue to be used to establish environmental objectives and waste management outcomes.

52 AustralianIndustryGroupcomments,p.453 EnvironmentDefendersOffice(EDO)andEnvironmentVictoriacomments,pp.9-1054 ProfessorRobJoycomments,p.4(onquestion7)

38


Numerical objectives and indicators established within a legal framework, consistent with the established beneficial uses, also assist in providing clarity and consistency of expectations.

These elements of the statutory framework assist in decision making associated with the evaluation of environmental impacts, waste management decision making and evaluation of risk mitigation measures.’

Golder Associates 55

- ‘The current statutory framework has facilitated a general improvement in the environment, in spite of the increasing population in Victoria and particularly in metropolitan Melbourne.

They have provided definitions of ‘segments’, ‘beneficial uses’ and many of the key issues that need to be considered in relation to the factors that impact on ecosystems and human health. We would strongly recommend that the policy framework in that regard that now exists be at least preserved, as that would retain the years of knowledge and experience that has gone into the current range of SEPPs.’

URS56

Consultation also confirmed a level of confusion about whether ambient standards have to be met/are enforceable:

- ‘In many of the cases the EDO has worked on, our clients have told us that they find statutory policy very hard to understand. For example, on more than one occasion our clients have expressed surprise that the environmental quality objectives and indicators specified in a SEPP were not binding. After we explain that a SEPP is a legislative instrument with the same legal force as Regulations, people assume that the contents of the SEPP will be enforced. Several clients have expressed frustration when we explain that the environmental quality objectives and indicators cannot be directly enforced and that the attainment programs designed to achieve them are often not enforced or enforceable either.’


Alternative views were put forward as to where our ‘goalposts’ should be housed. For example, PACIA recommended abolishing statutory policies, and instead housing overarching objectives, principles and environmental values to be protected (beneficial uses) in the EP Act and outcome-focused standards in Regulations:

‘In order to establish the most effective, transparent and clear framework for the protection of Victoria’s environment, statutory policy is eliminated and the framework encompasses:

• The Environment Protection Act 1970 (EP Act) – primary legislation setting out the overarching objectives, principles, and environmental values to be protected

• Regulations – subordinate statutory instruments that are outcome-focused and set standards but do not prescribe attainment processes

• Non-statutory documents such as codes of practice and guidance notes – which provide guidance, present potential (non-mandatory) approaches to attain the standards, may reference ‘best practice’, are monitored and well maintained, and easily updated over time.’

Plastics and Chemicals Industries Association58

55 GolderAssociatescomments,p.156 URScomments,p.1(onquestion1)57 EnvironmentDefendersOffice(EDO)andEnvironmentVictoria(EV)comments,p.858 PACIAsubmission,p.3

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4.2.3 Should ‘the goalposts’ be housed in Regulation, the Act and/or guidance rather than in SEPPs?

This section considers whether ‘the goalposts’, beneficial uses and environmental quality objectives and indicators, should be housed in Regulation, the Act and/or guidance, rather than in SEPPs.

The table below summarises the features of, and differences between, Regulations and statutory policies under the EP Act:

Table 3 – The features of, and differences between, Regulations and statutory policy

Regulations (statutory rules) Statutory policy (SEPPs and WMPs)

General purpose/features

UsuallyspecificCancompletethedetailsofalegislativeschemebutcannotaddnewitemsorideasunlessexpresslyauthorisedtodosoDirectlyregulatemattersindetail;targetaudiencemaynotbelicenseesTendtobemoreprescriptive(mayprescribeaprocess)MayprescribefeesandformsMustsatisfyParliamentaryCounselrequirementsTypicallyhavesanctionsfornon-complianceGenerallyprovideforwhatmust/mustnotbedonetocomplywiththeActEPAadministersRegulationsmadeundertheEPAct,whereasSEPPsandWMPsarestatepolicies.

‘SEPPsestablishenvironmentalqualityobjectivesforVictoriawhichallgovernmentagencies,industryandthecommunitymustworktogethertoachieve.SEPPsguidethedevelopmentofdetailedcontrolsandprograms,suchasregulations,marketmechanism,licensingandeducationcampaigns.TheyarecomplementedbyIWMPswhichsetframeworksforthemanagementofindustrialwaste.…IWMP’sandSEPPSareultimatelyexpressionsofcommunityvalues.’Hansard,31March199460Interwovenwithinthewholeday-to-dayoperationsofEPADefine‘beneficialuses’,givingdefinitiontowhatwemeanbycleanair,cleanwater,etcundertheActSetafuturevisionforenvironmentalqualityIncludeevolvingconcepts,suchasbestpractice,continuousimprovement,maximumextentachievable,etcPartsareprescriptivebutotherpartsarebroaderandlessdirective

Provided for by Section71 Section16–SEPPsSection16A-WMPs

Approval process RISrequirementsVCECParliamentaryCounselrequirementsDonotrequireCabinetapproval

PolicyImpactAssessmentprocess61VCECApprovedbyCabinet/Cabinetcommittee–whole-of-governmentpolicies[C.f.Qld,sameprocessasforRegs]

Scope for shorter process? Interim instrument?

Yes,providedforunderSubordinateLegislationSubordinate Legislation Act 1994(e.g.Premier’scertificates)

YesSections18Aand18B–e.g.ifimplementingNEPMor,ifMinistercertifiestherearespecialreasons

Duration Sunsetafter10years Requirementtoreviewwithin10years,butdonotsunset[C.f.WA,mustreviewwithin7years;Qld,theysunsetlikeRegs]

Directly enforceable?

Yes(ifpenaltyprescribedintheRegulation) Indirectlyenforced,viaPANs,licenceandworksapprovalconditions,andindirectlyreferredtoinotheroffences62Notethat,undersection27(1)(a)oftheEPAct,itisadirectoffencetocontravene‘anyrulesorrequirementsrelatingtoindustrialwastespecifiedinawastemanagementpolicy’.Typicallythisisnotused.[C.f.SA,WAandQld:statutorypoliciesmayprescribedirectoffences]

What documents can they incorporate?

Section72(1)–SEPP,WMPorNEPM[thiscouldbeamendedtoallowmoredocumentstobeincorporated(butstillsubjecttoOCPCrequirements)]

Notrestricted(e.g.canreferenceafuturecodeorguidancetobedeveloped)

596061

59 IndustrialWasteManagementPolicies(IWMPs)predatedWasteManagementPolicies(WMPs).A2002amendmenttotheEPActintroducedWMPs,whicharedefinedtoincludeformerIWMPs.

60 Since1July2011,underchangestotheSubordinate Legislation Act 1994,some‘tertiary’documents,referredtoorincorporatedinstatutorypolicy,aresubjecttoRISrequirements.Seesection4.7.3

61 E.g.section39(1)(e)offenceofpollutionofwatersdetrimentaltoanybeneficialusemadeofthosewaters;thebeneficialusesare,inpart,definedinSEPPs

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The Victorian Guide to Regulation (2011), Subordinate Legislation Act Guidelines (2011), and the Office of the Chief Parliamentary Counsel’s (OCPC’s) Notes for Guidance on the Preparation of Statutory Rules (2011) all provide principles and guidance on what is appropriately housed in an Act, Regulation or third level guidance.

This review has found that the full definitions of beneficial uses and environmental quality objectives and indicators are best housed in SEPPs, rather than in the EP Act, Regulations or third level guidance. The level of detail in the full definitions of beneficial uses and environmental quality objectives and indicators makes them unsuitable to be housed in the EP Act (as does the frequency at which this content may need to be reviewed and amended).

Under the current environment protection framework established through the EP Act, the ‘beneficial uses’ of the environment to be protected, and the environmental quality objectives (ambient standards) needed to do so, apply generally. They do not apply directly to a ‘regulated community’ or legal person. This makes them less suited to being prescribed in Regulation.

In addition, moving the full definitions of beneficial uses and environmental quality objectives and indicators from SEPPs into Regulations would be a very significant undertaking. Significant flow-on changes would also be required, including multiple changes to the EP Act62, and also to licence and works approval conditions. This would be resource intensive and involve some legal risk, all for little benefit. Beneficial uses, environmental quality objectives and indicators are foundational to the current framework under the EP Act. They require a level of legal weight and certainty that makes them unsuitable for third level guidance.

4.2.4 ‘Beneficial use’ or ‘environmental value’?

The review Discussion Paper suggested that the phrase ‘environmental value’ is a more readily understood phrase than ‘beneficial use’ and, if adopted, would help to make statutory policies more accessible.

In consultation, there were mixed views on this suggestion. It was noted, for example, that describing the protection of water for agriculture and irrigation as an ‘environmental value’ may also cause confusion. It would still need to be understood that an environmental value is a use of the environment that we value.

Victoria is the only jurisdiction to solely use the phrase ‘beneficial use’. South Australia’s policies refer to ‘protected environmental values’; Queensland and Tasmania refer to ‘environmental values’. Western Australia’s legislation refers to both ‘environmental values’ and ‘beneficial uses’; it does this by defining ‘environmental value’ as (a) a beneficial use, or (b) an ecosystem health condition63.

If the phrase ‘beneficial use’ was replaced exclusively with the phrase ‘environmental value’, then this would require extensive changes to the EP Act, statutory policies and guidance. Again the resources and risk involved may outweigh the benefits.

Adopting Western Australia’s approach may be more manageable, however, it is also problematic. It would require a definition of ‘environmental value’ to be added to the EP Act, whilst retaining the definition of ‘beneficial use’. This would allow future statutory policies to refer to environmental values, as appropriate, without affecting the validity of existing references to beneficial uses. However, if the Western Australian approach is adopted, other changes to the EP Act would also be required, such as replacing ‘beneficial use’ with ‘environmental value’ at sections 39(1)(e), 41(1)(e) and 44(1)(f). Further, having two terms in the EP Act and statutory policies; ‘beneficial use’ and ‘environmental value’, rather than one or the other may cause confusion, particularly as there are current ‘beneficial uses’ that relate to ecosystem health conditions64.

62 Ifbeneficialuses,environmentalqualityobjectivesandindicatorsweremovedoutofSEPPsandintoRegulation,thenmultiplechangestotheEPActwouldberequired,includingtosections38,40,44(pollutionoffencesthatreferenceprotectionofbeneficialusesasdefinedinpolicy)andtosection20C(requirementforauthorisationstobeconsistentwithpolicy)

63 Environmental Protection Act 1986(WA)section364 Forexample,SEPPAQM(clause9(1)(f))protectsthebeneficialuseof‘climatesystemsthatareconsistentwithhumandevelopment,thelife,healthandwell-beingof

humansandtheprotectionofecosystemsandbiodiversity’

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4.3 Setting longer-term objectives and strategic direction

Statutory policies can also establish what we want to protect by setting longer-term objectives and strategic direction for a segment or element of the environment. This function is particularly relevant to the waste sector, as this sector does not have the ‘goalposts’ that ambient standards provide for air, water and noise.

For example, one of the objectives of the current Landfills WMP is to ‘minimise the development and use of landfills, consistent with the policy principles’65. The former IWMP (Prescribed Industrial Waste) also set a strategic direction. The case study below illustrates how the relationship between statutory policy and non-statutory government strategy and policy can evolve.

Case study – strategic direction setting for prescribed industrial waste

1999 HazardousWasteConsultativeCommittee

Dec2000 IWMP(PrescribedIndustrialWaste)declared:

*objectivesincluded‘[to]eliminateassoonaspracticablethedisposalofprescribedindustrialwastetolandfill’ (clause5)

*providedforEPAtoestablishandpublish‘targetsforreductionintheneedforlongtermcontainmentofprescribed industrialwaste’(clause10)

2001 HazardousWasteSitingAdvisoryCommittee

July2006 OurEnvironmentOurFuture:SustainabilityActionStatement2006publishedbytheformerDSE::

*‘WewilldramaticallyreduceVictoria’shazardouswastegoingtolandfillbyraisinglandfillleviesfrom$30/tonneto $130/tonne,andputtheproceedsbackintoinitiativestohelpindustryavoidwasteandreusematerials’(p.49)

Jan2007 VictorianGovernmentmediareleaseNewLandfillLeviestoEliminateIndustrialWaste:

*‘...Governmentiscommittedtoremovingthesewastesfromlandfillby2020...’

2008 HazWasteFundopened

July2009 EnvironmentProtection(IndustrialWasteResource)Regulations2009tookeffect

Aug2009 EPApublishedtargetofreducingdisposalofCatBwastetolandfillto35,000tonnes/yearin2009-10(inEPACorporate andBusinessPlan2009–2012)

Sept2009 RevocationofIWMP(PrescribedIndustrialWaste)

Most stakeholders regard the longer-term objectives and strategic directions in statutory policy as valuable. They provide important context for EPA staff, industry and community stakeholders when interpreting and explaining the intent of different provisions. They are regarded as ‘anchor points’, which endure beyond the pressures and changing priorities of the government of the day. They provide certainty for EPA in developing its regulatory program.

A key consideration is how much ‘space’ there is left for strategic objectives and direction setting in statutory policy when such direction is also set out in non-statutory policy/strategy documents; such as, for waste, in Getting Full Value: The Victorian Waste and Resource Recovery Policy. The answer will differ depending on the segment in question.

The best option may be to house objectives and broad strategic directions in statutory policy, with more detail and hard targets published in a non-statutory policy/strategy document that is regularly reported against.

South Australia has adopted this approach in its waste policy. South Australia’s waste policy objectives are set out, to a significant extent, in their Environment Protection (Waste to Resources) Policy. South Australia’s State Strategic Plan then includes a hard target for reducing waste to landfill, which is reported on two-yearly66.

65 WMP(Siting,DesignandManagementofLandfills)clause7(c)66 SouthAustraliaStrategicPlanT3.8ZeroWaste:Reducewastetolandfillby25%by2014

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4.4 Target setting to realise environmental quality objectives

The distinction between ‘objectives’ and ‘targets’ has been a recurrent discussion point in this review. As discussed (in section 5.2.1), the environmental quality objectives in SEPPs are ‘the goalposts’ we need to reach to protect the uses of the environment we value. Where these objectives will take some time to achieve, targets provide us with stepping stones, setting a path to get us there.

Two key issues raised in this review have been:

1. the need for the environmental quality objectives in SEPPs to be regarded as relevant and achievable, rather than being disregarded as unachievable or ‘merely aspirational’

2. the need for the statutory policy framework to provide for adaptive target setting mechanisms, at an appropriate scale, where these objectives will take time (for example more than a decade) to be met.

4.4.1 Target setting under SEPP (Waters of Victoria)

SEPP (Waters of Victoria) currently provides for regional target setting67. It requires Catchment Management Authorities (CMAs), DSE (now DEPI) and EPA to work together to develop regional water quality targets. While this was done a number of years ago for initial catchment plans, the approach to setting these targets may need to be reviewed.

The environmental quality objectives in SEPP (Waters of Victoria) were used to set state-wide targets, in non-statutory Victorian Government policy, for the improvement of water quality68.

Looking ahead, water quality targets are currently being considered as part of the development of the Victorian Strategy for Healthy Rivers, Estuaries and Wetlands (VSHREW) and will be highly relevant in the subsequent development of Regional Strategies under VSHREW69.

4.4.2 Target setting processes under other statutory policies

Other statutory policies also establish processes for achieving gradual improvements – effectively ‘targets’ - towards meeting SEPP objectives.

For example, SEPP N-1 provides for environment improvement plans where EPA is satisfied there are no practicable means currently available for a commercial, industrial or trade premises to comply with SEPP N-1’s environmental quality objectives. The plan is required to include a description of the proposed or likely reduction in noise levels over its lifetime (effectively ‘targets’)70.

SEPP (Air Quality Management) includes provision for EPA to develop Air Quality Improvement Plans; the purposes of which include identifying actions that will enable SEPP AQM’s environmental quality objectives to be met and to promote continuous improvement in air quality71.

4.4.3 Stakeholder comments on target setting

In its response to the review Discussion Paper, the Victorian Catchment Management Council (VCMC) noted:

‘The upcoming review of regional catchment strategies would be an appropriate mechanism for EPA to work with CMAs to review regional water quality targets. Targets can often become meaningless when upsteam discharges, climate variability, changing land use, etc make them unattainable. Furthermore, consideration of [water] quantity, which provides a context for [water] quality, should be addressed72.’

67 SEPPWoVclause2468 TheformerDSE’sVictorian River Health Strategy(2002)includedastate-widetargetthat,by2011,95%ofallhighlandanduplandand60%ofalllowlandmonitoring

siteswillmeetSEPPenvironmentalqualityobjectives(p.36)69 Currentregionalriverhealthstrategiesalsoincludetargets,relatingtoresourceconditionandmanagementactions.Theytendtobepractical,e.g.kmofstream

bankfencedoff,reducedphosphorusloadatdesignatedsites.TheydonottendtodirectlyreferencepercentageimprovementstowardsmeetingSEPPWoVobjectives

70 SEPP(ControlofNoisefromCommerce,IndustryandTrade)N-1,clauses17A–17B71 SEPP(AirQualityManagement)clause3172 VictorianCatchmentManagementCouncilcomments,pp.3-4

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In their comments, EDO/EV likened the objectives in SEPPs with the longer-term objectives in laws that aim to address climate change:

- ‘When setting environmental quality objectives and indicators, statutory policy needs to be set at a level that actually protects the environment. It should not matter if business is unable to meet these standards overnight. If the standards that our environment requires are for the moment out of reach, then statutory policy needs to take an approach analogous to that used in climate change law — set a longer-term target and plot a trajectory to gradually achieving it. This approach, if adopted, would need to be clearly explained so that business and communities understand what is enforceable immediately and what may take time to achieve.’

4.5 Provisions that enable or set rules for decision makers including EPA

In addition to defining what we want to protect in the environment and setting longer-term objectives and strategic directions, statutory policies, particularly in their attainment programs, currently house a range of different types of clauses:

- provisions constraining (rule setting for) decision makers, particularly EPA but also other agencies such as planning authorities and water authorities, i.e. when EPA does X, it must … [discussed in this section]

- provisions enabling EPA, i.e. EPA may … [also discussed in this section]

- provisions constraining emitters, e.g. when emitter does X, it must … [see section 4.6]

- provisions constraining (rule setting for) another agency, i.e. when agency does X, it must … [see chapter 5]

- directional/agreement provisions, committing to future action, e.g. EPA will develop guidance on … [see chapter 5]

- general statements of EPA and/or another agency’s roles and responsibilities [see chapter 5].

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Table 4 – Examples in current statutory policies of provisions that constrain or enable EPA

Provision enabling EPA i.e. EPA may … Provision constraining (rule setting for) EPA i.e. when EPA does X, it must …

SEPP

WoV

SEPPWoVcl30MixingzonesInissuingalicence,theEnvironmentProtectionAuthoritymayapproveamixingzonewhereitisnotpracticabletoavoid,reuse,recycleandeffectivelymanagewastewater.…[clausethenconstrainsEPArehowitmaydoso]

SEPPWoVcl28(3)Newwastewaterdischarges[EPA]willnotapproveanynewdischarges:(a)totheaquaticreserves,wetlandsandlakesorestuariesandinletssegmentsortowatersinareasofhighconservationsignificance,includingthoselistedinscheduleB,exceptinaccordancewiththeprovisionsofclause31…

SEPP

AQM

SEPPAQMcl2174MonitoringofemissionsTheAuthoritymayrequireageneratorofemissionstomeasureandreportonitsemissions…

SEPPAQMcl27(1)75LocalAirQualityManagementInassessinganapplicationforanewdevelopmentthatmayhaveimpactsonlocalairquality,theAuthority,therelevantprotectionagencyandthepublichealthauthority,willhaveregardtoprotocolsforenvironmentalmanagement…

WM

P La

ndfil

ls

WMPLandfillscl1876RecyclingfacilitiesTheAuthoritymayrequire,bylicence,worksapprovalornotice,alandfilloperatortoprovide,operateandmaintainfacilitiesforthesegregationandcollectionofreusableandrecyclablewastesreceivedatthelandfillsite.

WMPLandfillscl15(5)GeneralrequirementsIfanapplicantforaworksapproval,licenceorlicenceamendmentproposesmeasuresalternativetothesuggestedmeasuresoftheBPEM,theAuthorityshallnotissuetheworksapproval,licenceorlicenceamendmentunlesstheapplicantsatisfiestheAuthoritythat…

SEPP

Co

ntam

inat

ed

Land

SEPPContaminationofLandcl1977SitecontaminationassessmentTheAuthoritymaythroughworksapproval,licenceornoticerequiretheoccupierofapremisestoundertakeandreporttheresultsofasitecontaminationassessment…

SEPP

Gro

undw

ater

s of

Vic

tori

a

SEPPGoVcl17(1)78Attenuationzones…theAuthoritymaydesignateanattenuationzonewithinwhichsomeorallofthewaterqualityobjectivesspecifiedinTable3arenotrequiredtobeachieved.[clausethenconstrainsEPArehowitmaydoso]

SEPPGoVcl19(4)GroundwaterQualityRestrictedUseZoneTheAuthoritywillnotissueoramendanyworksapprovalorlicence…[unlesssatisfied](a)…therewillnotbeanyriskoffurtherdegradationofgroundwaterqualityinthegroundwaterqualityrestrictedusezone…and(b)therewillnotbeanydetrimenttoanybeneficialuseofsurfacewatersorgroundwaterbeyondtheboundariesofthegroundwaterqualityrestrictedusezone.

SEPP

N-1

- N

oise

fr

om C

omm

erce

, In

dust

ry a

nd T

rade SEPPN-1cl17A(1)(c)

[Ifsatisfiedthatconditionsincl17A(1)(a)and(b)exist,EPA…]mayrequiretheoccupiertosubmitaproposedenvironmentimprovementplantotheAuthorityforapproval.

SEPPN-1cl17DApprovalofenvironmentimprovementplan…(2)IndecidingwhethertoapprovetheenvironmentimprovementplantheAuthoritymusthaveregardto…

WM

P Us

ed

Pack

agin

g M

ater

ials

WMPUPMcl10(4)Todeterminethematerialsinrespectofwhichtheobligationswillbeimposed,theAuthoritymusthaveregardto…

7374757677

73 AlsoSEPPAQMclause16(4)(EPAmayrequireageneratorofemissionstoundertakeariskassessment)74 AlsoSEPPAQMclause30(4)(inconsideringanyemissionsoffsetsoremissionstradingproposal…,EPAmustbesatisfiedthat…)75 AlsoWMPLandfillsclause16(EPAmayrequiresegregation)andclause20(EPAmayrequireinstallationoflandfillgascollectionsystem)76 AlsoSEPPContaminationofLandclause17(4)(EPAmayrequireEIP)andclause26(EPAmayrequireenvironmentalaudit)77 AlsoSEPPGoVclause19(1)(b)(EPAwillrequiregroundwaterwithinpollutedgroundwaterzonestobecleaneduptotheextentpracticable…)

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4.5.1 Provisions enabling EPA

These provisions currently provide a level of transparency; by setting out what EPA may do or require of emitters/industry. They often reference other EPA tools; works approvals, licences, notices, etc, as the mechanisms for how it will be done.

EPA is already enabled by the EP Act, particularly by section 13 (powers, duties and functions of the Authority), to do many of the things referred to in these clauses. Where this is the case, an option is to refer to this in explanatory notes, but not in the statutory policy (i.e. not in ‘law’ twice).

The provisions enabling EPA to approve mixing zones (WoV) and declare attenuation zones (GoV) need to be retained as distinct provisions in law, and appear better suited to being retained in SEPPs rather than moved to Regulation. Indeed, the approval of mixing zones and the declaration of attenuation zones can be thought of as an extension of the core role of statutory policy in defining when or where beneficial uses apply. If these provisions are not retained, EPA would be unable to authorise (license) discharges unless beneficial uses were protected and environmental quality objectives/indicators were met in all discharge areas. This is because section 20C of the EP Act requires EPA’s authorisations to be consistent with statutory policy.

4.5.2 Provisions constraining (rule setting for) EPA

These provisions also currently provide a level of transparency to industry/community regarding how EPA will exercise its powers. As they are in law, they can provide a ground for legal appeal if EPA does not follow them. This may not be the case if they are moved from statutory policy into guidance.

Another option is to use Regulations, rather than statutory policy, to set out the factors that EPA must take into account in various decisions. This approach has been adopted by Queensland in its Environmental Protection Regulation 2008.

Some of the provisions in the attainment programs of statutory policies that constrain (set rules for) EPA may be able to be recast as emitter constraints/obligations. The aim here is to make it easier for industry to understand its obligations and relevant standards.

Recommendation 1

That EPA and DEPI retain statutory policies – SEPPs and WMPs – but focus the primary role of statutory policies on setting longer-term objectives and environmental quality standards (‘the goalposts’) for air, noise, water, land and waste.

To support this recommendation the following, or similar, criteria should be considered when writing new statutory policies or reviewing current SEPPs and WMPs:

• retaining environmental quality standards in SEPPs (i.e. beneficial uses, environmental quality objectives and indicators)

• continuing to include whole-of-government, longer-term objectives and to set strategic directions for air, noise, water, land and waste in statutory policies

• publishing interim targets in non-statutory documents and regularly publicly reporting against them

• where relevant, setting out agreed methodologies and processes for the establishment of interim targets in statutory policies, and using these to inform the delivery of programs and planning by agencies

• continuing to use statutory policies to set rules for regulatory decision makers, including EPA and other agencies such as planning authorities and water authorities, but only where such definition is needed in law. Not repeating or setting out rules in statutory policy if they are already defined elsewhere or able to be housed in more flexible documents. This will enable statutory policies to have a tighter focus on setting longer-term environmental quality objectives.

In the longer term, the following directions should be considered as part of any broader reforms considered for the EP Act:

- reinforcing tighter focus on standards, renaming SEPPs and WMPs as ‘State Environment Protection Measures’ (SEPMs)

- making it clearer that statutory policies define the uses of the environment that Victorians value, giving further consideration to the merits of using the phrase ‘environmental value’ rather than ‘beneficial use’.

Both of these would require extensive changes to the EP Act and related documents.

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4.6 Requirements on emitters/industry

The provisions in current statutory policies that constrain emitters/industry vary in nature. Some state specific requirements, others involve evolving concepts (best practice, continuous improvement, maximum extent achievable, etc) and others are more general. Many reference other documents. Some clauses involve two or all of these characteristics.

The table below provides examples taken from a range of current statutory policies.

Table 5 – Examples of requirements on emitters / industry in current statutory policies

Type of requirement Statutory policy Clause textSpecific WMPLandfillscl16(3) [Landfilllicenceholdersmust]useaweighbridgetomeasurethequantityofwasteacceptedat

thesite.

Specific WMPUsedPackagingMaterialscl10(2)

Abrandownermust(a)undertakeorassurethesystematicrecoveryofconsumerpackaginginwhichthebrandowner’sproductsaresold;and(b)undertakeorassurethereuse,recyclingorenergyrecoveryof[theirorequivalentconsumerpackaging,tolevelsspecifiedbyEPAandwithexemptions,includingforPackagingCovenantsignatories].

Specific SEPPGoVcl20 Theremustnotbeanydirectdischargeofwastetoanyaquifer…exceptfor[specifiedpurposesandsubjecttothesatisfactionoftherelevantprotectionauthorityorEPA].

Specific (but also evolving in a changing climate)

SEPPWoVcl35 Sewerageinfrastructureneedstocontainflowsassociatedwitha1-in-5-yearrainfalleventoracomparabledesignstandardthatavoidslossesofwastewater.

Evolving concepts SEPPAQMcl19 (1)Ageneratorofaneworsubstantiallymodifiedsourceofemissionsmustapplybestpracticetothemanagementofthoseemissions.(2)…ageneratorofaneworsubstantiallymodifiedsourceofemissionsofClass3indicatorsmustreducethoseemissionstothemaximumextentachievable.

Evolving concepts and reference to other documents

SEPPContaminationofLandcl17(2)

Topreventcontaminationofland,anyoccupierorotherpersonwithinthepolicyareainvolvedinthetransport,storageorhandlingofanychemicalsubstanceorwastemust:(a)applybestpractice(b)complywithanyIndustrialwastemanagementpolicyorrelevantdangerousgoodslegislation(c)haveregardtoanyguidancedocumentapprovedbytheAuthority.

More general SEPPN-1cl15 Subjecttoclause17Gwherenoiseemissionsfromexistingcommercial,industrialortradepremisesexceedtherequirementssetoutinthepolicy,stepsshallbetakenbytheoccupiertoreducethelevelofthesenoiseemissionsto,orbelow,therelevantpolicynoiselimits.

More general SEPPWoVcl27 Toprotectbeneficialuses,thedischargeofwastesandwastewaterfromlicensedandunlicensedpremisesandactivitiestosurfacewatersmustbemanagedinaccordancewiththewastehierarchy,withprioritygiventoavoidingthegenerationofwastewater.

Almost all requirements on emitters/industry in statutory policy are expressed as mandatory (must, shall). There are only a few discretionary or enabling provisions and they tend to be matched by a provision that allows EPA to require the industry/emitter to do the same thing78.

With the exception of requirements for industrial waste, there is no direct offence for non-compliance with statutory policies79. EPA uses other provisions of the EP Act, such as pollution abatement notices80, licence and works approval conditions81 and other offences82, to achieve or enforce emitters/industries’ compliance with the requirements housed in statutory policy.

78 Forexample,inIWMPOzone,clause24(1)statesindustrymaysubmitanenvironmentimprovementplan,followedbyclause24(2)thatstatesEPAmayrequirethistobedone.Similarly,inSEPPAQM,clause16(3)statesageneratorofemissionsmayundertakeariskassessment,followedbyclause16(4)thatstatesEPAmayrequirethistobedone.

79 Section27A(1)(a)oftheEPActallowsdirectenforcementofrulesandrequirementsrelatingtoindustrialwastespecifiedinaWMP.80 Section31A(b)(ii)and(iii)oftheEPActallowforaPollutionAbatementNoticetobeissuedwhereaprocessoractivitydoesnotcomplywithanyOrderdeclaring

policyoranyrequirementscontainedinanypolicy.81 Section20CoftheEPActrequiresauthorisation,includinglicensingandworksapprovalconditions,tobeconsistentwithallapplicablepolicies.82 Section39(1)(e)offenceofpollutionofwatersdetrimentaltoanybeneficialusemadeofthosewaters;section41(1)(e)offenceofpollutionofatmospheredetrimental

toanybeneficialusemadeoftheatmosphere;section45(1)(f)offenceofpollutionoflanddetrimentaltoanybeneficialusemadeoftheland.

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4.6.1 Stakeholder feedback on clarity of emitter/industry obligations

Feedback from consultation indicates that some stakeholders find it difficult and/or frustrating to establish what their/industry’s legal obligations are. The wide range of different types of clauses in statutory policy and the variation in the types of requirements applying to emitters/industry, contributes to this difficulty and frustration. Industry stakeholders expressed concern that this adds cost and stifles innovation.

- ‘A constant theme in Ai Group’s consultations with members and the industry consultation sessions is the confusion that exists in relation to standards, outcomes and obligations as set out in SEPPs. This is consistent with the report on the review of EPA Compliance and Enforcement (Krpan report) which identified considerable concern amongst business that SEPPs are complex documents which are difficult to navigate, and that in some cases the policies and clauses of the policies are inconsistent or ambiguous.

… Uncertainties around the requirements of statutory policies impose increased costs for businesses and can act as a barrier to the uptake of new technologies by encouraging conservative approaches.’


- ‘We agree with discussion paper feedback that statutory policies:

- can be difficult to understand, but on the whole are much better than the Acts

- [can be] long and overly complex

- [can be] difficult to navigate

- [are] sometimes unclear.’

Yarra Valley Water84

Several stakeholders specifically stated that what is expected from ‘best practice’ and ‘maximum extent achievable’ requirements is unclear, with more guidance needed. EV/EDO stated they should be replaced with clear and (directly) enforceable requirements in Regulation.

- ‘General objectives such as the requirement to use ‘best practice’ or ‘maximum extent achievable’ are often open to broad interpretation resulting in inconsistent approaches and a lack of certainty for industry. We suggest that such objectives would benefit from more guidance on interpretation such as a clear methodology that would enable transparent evaluation of proposals.’

Golder Associates85

- ‘Businesses consulted by Ai Group stressed the need for improved clarification of key terminology in statutory policies. For example, there was strong criticism of the lack of clarity of what constitutes ‘best practice’ and what the difference is between ‘best practice’ and ‘maximum extent achievable’.’


- ‘Requirements that hinge on terms like ‘best practice’ are inherently vague and malleable. They can hinge on industry availability and economic feasibility, rather than environmental protection requirements, facilitating bad environmental outcomes. EDO has acted in a number of cases, in areas as diverse as toxic waste management to climate change regulation, where the definition of ‘best practice’ was highly contested.’


83 AustralianIndustryGroupsubmission,p.484 YarraValleyWatersubmission,p.1(requestion2)85 GolderAssociatessubmission,p.286 AustralianIndustryGroupsubmission,p.687 EnvironmentDefendersOffice(EDO)andEnvironmentVictoriasubmission,p.7

48


4.6.2 Clarifying emitter/industry obligations relating to best practice (and similar terms) and risk assessment

Consultation feedback, noted above, has demonstrated the need for more clarity on what is expected of industry from requirements in statutory policy to meet ‘best practice’. As well as developing generic guidance, it is likely to be worth developing specific best practice guidance for those common types of premises that EPA receives multiple works approvals or other applications for each year (for example, wastewater treatment plants)88.

Some statutory policies use other terms to express evolving concepts that are similar to ‘best practice’, as shown in Table 6 below. The difference in what is expected of industry/emitters from each of these terms needs to be clarified. To reduce confusion, the number of terms used should be reduced where possible (that is, where two terms have the same meaning in practice.

Table 6 - Evolving concepts in current statutory policies

Current policy Clause (context) Emitter/industry requirementSEPPN-1 cl19(whenreplacingorinstallingnewequipment) usequietestequipmentavailable

SEPPWoV cl3(indefinitionof‘minimise’;e.g.relevanttocl44dredgingactivities)

reducetomaximumextentpracticable

SEPPGoV cl12(preventionofgroundwaterpollution) undertakeallpracticablemeasures

SEPPContam cl17(2)(preventionofcontaminationofland) applybestpractice

SEPPAQM cl19(managementofnewsourcesofemissions) applybestpractice,reducetomaximumextentachievable

Different SEPPs also include a requirement on emitters to undertake a risk assessment or to developing guidance on risk assessment89. EPA has published guidance on risk assessment for some specific contexts 90. However, as with the term ‘best practice’, this review suggests there is a similar need to develop general guidance on what is expected of emitters/industry by a risk assessment requirement.

4.6.3 Addressing sector-centric obligations

Consultation also confirmed concerns that obligations on emitters/industry in statutory policy can be sector-centric, without sufficient regard for the overall consequences of the requirement for the environment (or triple bottom line outcomes).

- ‘… To comply with some of the attainment program causes issues with other environmental impacts as well as introducing more costs to the community. For example, a more advanced sewage treatment will require additional energy use, emit more greenhouse gas, [and] cost more to run for potentially marginal environmental gain. The policies at the moment seem to be siloed and do not take a holistic look across all environmental impacts and do not consider best community and environmental outcomes.’

Yarra Valley Water91

This concern may be best addressed by EPA publishing guidance on what is expected from the requirement to seek the ‘best practicable environmental outcome’92 or to determine the ‘best net environmental outcome93.’

88 TheLandfillBPEMalreadyprovidesthisadviceforlandfills89 SEPP(AirQualityManagement)clause16;SEPP(PreventionandManagementofContaminationofLand)clause23;SEPP(WatersofVictoria)clause25(1)(a)90 Forexample,Guidelines for Risk Assessment of Wastewater Discharges to Waterways (EPAPublication1287,July2009)91 YarraValleyWatersubmission,p.292 EPActsection1J(principleofintegratedenvironmentalmanagement).Guidancemaybeneededonhowalltheenvironmentprotectionprinciplesaretobeapplied.

EPAhaspublishedsomeguidanceonthisforthewastesector–Applying the Environment Protection Principles in Waste Management Regulation(EPAPublication1360,December2010)

93 EPA Works Approval Guidelines(EPAPublication1307,November2009)

49


4.6.4 Principles for requirements of emitters/industry

In setting requirements of emitters/industry, this review suggests the following principles should be front-of-mind:

- First and foremost, the requirements need to protect and enhance environmental quality objectives. Sector specific requirements should not inhibit net environmental gain outcomes.

- The obligations in statutory policy and statutory guidance that apply to industry/emitters need to be clearly understood, as this will assist compliance.

- The requirements need to be appropriate to the size of the industry/emitter that they apply to – for example, small businesses may want/need a simple fixed criterion, with medium-large businesses better placed to resource modelling and risk assessment requirements94.

- Requirements should balance prescription with room for innovation/flexibility – for example, by allowing for compliance by meeting specific requirements or by satisfying EPA that an alternative approach will achieve equivalent outcomes.

- Requirements should be able to be updated as needed – so they are responsive to our changing environment, new technologies, advances in scientific thinking and changes in monitoring and measurement approaches. However, there also needs to be sufficient certainty - so that an industry can confidently decide which technology it will invest in to fulfil its environment protection responsibilities.

- Standards and requirements need to be appropriately housed, depending on the legal weight, flexibility and level of detail that they need.

When considering the types of regulatory requirements that should apply to emitters/industry, and whether they should be housed in Regulation, statutory policy or elsewhere, it is also useful to refer to the Victorian Guide to Regulation (May 2011) (the Guide), in particular:

Figure 12 – Factors to be considered in good regulatory design (page 3.3, Table 3.1 in the Guide)

- Thenatureandextentoftheproblemtobeaddressedneedstobeclearlyidentified.

- Carefulconsiderationneedstobegiventothedesiredobjectivesandoutcomesoftheintervention.

- Allfeasibleformsofregulationandnon-regulatorymeasuresthatcouldachievethedesiredobjectives/outcomesshouldbeconsidered.(Thisincludestheoptionoftakingnoaction.)

- Theimpacts(costsandbenefits)ofaregulatoryproposalshouldbecarefullyassessed(andquantified,wherepossible)fordifferentgroupswithinthecommunity,aswellasforsocietyasawhole.

- Anyregulatoryresponseshouldnotrestrictcompetitionunlessitcanbedemonstratedthatthebenefitsoutweighthecosts,andtheobjectivesoftheregulationcanonlybemetbyrestrictingcompetition.

- Regulatorymeasuresmustbetheminimumnecessarytoachievethedesiredobjectives.

- Generally,adirectapproachtoanidentifiedproblemwillensureamoreefficientandeffectiveoutcome.

- Whereappropriate,performance-based,principle-basedorprocess-basedregulationisfavouredoverprescriptiveregimes.

- Regulationshouldbeevaluatedregularlytoensurethatitismeetingitsspecifiedobjectives.

- Theburdenofcomplianceandadministrationshouldbereasonable.

- Theregulationshouldbeenforceable,andenforcementregimesshouldbeeffectiveandcostefficient.

- Effectivecommunicationisnecessarysothataffectedpartiesunderstandandaccepttheirregulatoryrequirements.

- Wherefeesandchargesareimposed,theseshouldgenerallybesetonafullcostrecoverybasis.

- Anymaterialincorporatedintoregulations(forexamplecodesofpractice)shouldbereadilyaccessible.

- Newregulationshouldbecompatibleandconsistentwithotherexistinglawsandregulations.

- Theregulationshouldbeadministeredbyaccountablebodiesinafairandconsistentmanner.

- Thereshouldbetransparentandrobustmechanismstoappealagainstdecisionsmadebyaregulatorybody.

94 NotedinURSsubmission,pp.3–4(requestion4)

50


Table 7 - Prescriptive, performance-based and process-based regulation – summary of advantages and disadvantages (page 3.10, Table 3.2 in the Guide)

Advantages Disadvantages

Prescriptive rules - certaintyandclarity–requirementsaresetoutindetail;standardisedsolutions;

- easeofenforcement- thedecisiontoprosecutecanbemadeonobjective

criteria

- inflexibilityinmeetingregulatoryobjectives- highadministrationandcompliancecosts- unsuitableinindustriessubjecttochanging

circumstances(e.g.duetotechnologicalchange)whereprescriptiverulesmayberendered

- superfluous

Performance-based standards

- suitableforindustriessubjecttochangingcircumstances(e.g.duetotechnologicalchange)

- greaterflexibilityindealingwithtechnicalmatters- encouragesleastcostmeansofachievingtheoutcome- lowercompliancecosts- mayencouragecontinualimprovementthrough

innovations

- mayleadtouncertaintyastowhetheractionsundertakensatisfystandardssetbyregulation

- generateuncertaintybecausecircumstancesgivingrisetoprosecutionsmaybedeterminedsubjectively

- mayrequirehighlevelsofguidance- increasedriskofnon-compliancebecausestandards

maynotbeuniformacrosstheindustry

Process-based regulation

- suitableforcontrollingsubstantialbutdiverserisks- canbeappliedtocomplexareasofdifferentoperations

subjecttotechnologicalchange- maypromoteinnovationinthedevelopmentofrisk

mitigationpractices- mayencouragegreaterownershipandaccountability

forriskmitigationpractices

- maybecostlytoadminister- (particularlyforsmallfirms)- thereisariskofregulatorycreepwherescopeofrisks

coveredorstandardsof- controlsrequiredincreaseovertime- potentialforoverlapwithothergeneralregulation

4.6.5 Analysis

This review has considered three options for improving the clarity of requirements on emitters/industry:

- retaining the status quo – that is, retaining in statutory policy requirements on emitters that are specific, general and that involve continuous improvement concepts (for example best practice)

- housing all emitter obligations in Regulation

- only housing emitter obligations in statutory policy if they are unable to be housed in Regulation and are valuable, or if there are very few emitter obligations and they do not warrant a separate Regulation.

The first option is not considered favourable as it is likely that industry would continue to experience difficulties in understanding its obligations.

The second option, housing all emitter/industry obligations in Regulation, is not considered viable. This is because it is unlikely that emitter/industry requirements relating to evolving concepts such as ‘best practice’, ‘continuous improvement’ and ‘maximum extent achievable’ can be included in Regulation, as they lack sufficient certainty95. These requirements need to be retained as they are vital to Victoria’s current environment protection framework. Their philosophy is to drive continuous improvement in inxdustry performance (not just meeting minimum standards)96. This is achieved in a comparably efficient manner (see text box below). These requirements need to retain their legal weight, therefore, they need to be retained in statutory policy. Whereas Regulations are directly enforced, the requirements in statutory policy to apply best practice (or similar terms) are given specific expression through third level guidance and through licence and notice conditions, of which the failure to comply with may result in enforcement.

The third option is preferred as it should make it easier for industry to understand its obligations, and it retains the ability to set requirements in statutory policy that drive continuous improvement.

95 TheOfficeofChiefParliamentaryCounsel(OCPC)requiresstatutoryrulestobeexpressedasclearlyandunambiguouslyasisreasonablypossible;seeOCPC,Notes for Guidance on the Preparation of Statutory Rules(May2011)p.10

96 DiscussedintheSEPP Air Quality ManagementandAmbient Air Quality Variations Policy Impact Assessment(January2002)

51


Whilst these requirements should be retained in statutory policy, consultation feedback (noted above) has emphasised the need to:

- provide greater consistency in the wording of references to ‘best practice’ requirements

- provide guidance, applicable to all policies, on what is required by ‘best practice’ and ‘maximum extent achievable’ requirements.

In considering whether emitter/industry obligations should be moved into Regulations, a secondary consideration is that Regulations cannot reference third level documents that are not yet written97. This has been fairly common practice in statutory policies to date, however it can result in uncertainty.

Another consideration is that Regulations sunset after 10 years, whereas statutory policies do not. The sunsetting of Regulations helps to ensure that the obligations on emitters/industry contained in Regulations remain current and appropriate.

It is worth emphasising that a lot can be done to clarify emitter/industry requirements without moving them from statutory policy to Regulation. For example, greater clarity will result from publishing consolidated versions of each policy, user guides and clearer guidance on best practice requirements. A clearer hierarchy of instruments, in particular, clarifying the legal status of third level documents, will also make emitter/industry obligations clearer. (See section 4.7.1)

Most importantly, there needs to be clarity at the ‘user interface’. If emitter/industry obligations are housed in an assortment of legal instruments (statutory policies, Regulations and statutory guidance), there needs to be material available for users that brings these disparate references together, including via advanced web searches and in industry specific user guides or compliance guides.

4.7 Improving guidance materials

4.7.1 Clarifying the status of guidance

Statutory policies refer to a wide variety of ‘third level’ documents and guidance that set out or explain statutory policy obligations in greater detail. These include protocols for environmental management (PEMs), guidelines for environmental management (GEMs), best practice environmental management guidelines (BPEMs), assorted codes of practice, EPA and Australian and New Zealand guidelines and Australian standards. Policies often provide for guidance to be developed by EPA (and other agencies) after the policy has been made.

The hierarchy and legal status of these documents (Figure 10) is often unclear. There can be confusion on the current applicable standard and the enforceability of these standards. EPA’s Compliance and Enforcement Review also highlighted these issues and the lack of consistent naming conventions for third level documents. It recommended that EPA:

‘… clearly articulates a hierarchy for statutory and non-statutory guidance that would explain the purpose for when each type of guidance is provided and adopt a clear naming convention that would be applied consistently to its publications. The hierarchy and naming conventions would make clear the legal status of the publication98.’

EPA has accepted and is now working on implementing this recommendation.

97 OCPCwillnotissueasection13certificate–arequirementundertheSubordinate Legislation ActwhenRegulationsaremade–ifadocumentincorporatedinastatutoryruleisnotinexistenceatthedateofsettlingofthestatutoryruleoratthelatest,therequestforthesection13certificate:OCPC,Notes for Guidance,p.18

98 Compliance and Enforcement Review,p.63,Recommendation6.4,February2011

The value of ‘best practice’ requirements

Inworksapprovalapplications,EPArequiresindustrytodemonstratehowitisapplyingbestpractice.Whatconstitutesbestpracticechangesastechnologyusechanges.

EPAreviewstheapplicant’sassessmentwithexpert/peerassistance.

ThealternativeisEPAseekingtoprescribeinregulationwhichtechnologiesconstitutebestpracticeacrossalltheindustrysectorsandscenariosthatEPAregulates.Thismaybeundesirableasitisprescriptive,ratherthanoutcomefocused.ItmayalsobecostprohibitiveforEPAandispronetobecomingout-of-date.

ThescaleoftheEuropeanUnionandUSAmakesuchprescriptiveregulationmorefeasibleinthosejurisdictions.

52


Consultation in this review confirmed a strong call to clarify the hierarchy and legal enforceability of the ‘third level’ guidance material that relates to statutory policy.

Other regulators have similarly realised they had, over time, produced too many different types of guidance material, causing confusion for industry and other users. For example, prior to mid-2007, the Australian Securities and Investments Commission (ASIC) published guidance in the form of policy statements, practice notes, guides, guidelines, kits and frequently asked questions. In mid-2007, these were all rationalised into regulatory guides99. ASIC also publish on-line Information Sheets. These documents include statements that explain their purpose and legal status.

EPA’s website could readily be updated to clarify the types, purpose and legal status of EPA’s guidance documents. This has been done by EPA SA; it has a webpage that usefully summarises the legal status of its different types of documents100.

Another option is to seek to formally define different types of guidance documents in the EP Act; that is, their purpose, legal status and enforceability, and how they will be developed and approved. Depending on how this is worded, this could give certain forms of guidance stand-alone legal weight, irrespective of whether statutory policy (or licences) requires it to be followed.

4.7.2 Improving the currency of guidance

Consultation feedback in this review has also reinforced the need (noted in EPA’s Compliance and Enforcement Review101) for a process that systematically reviews the quality and currency of EPA’s guidance material and publications. Specific views were expressed through consultation on the need to update particular guidance documents102. The need for current EPA guidance is amplified where it intersects with planning decisions and with guidance published by other agencies under the planning framework.

EPA is addressing this need by undertaking an audit of its current standards and guidelines, and by establishing a process, involving risk-assessment, for prioritising and managing their review. Updating guidance is a very major task, noting the amount of EPA guidance requiring review and ongoing management. Guidance reviews tend to be resource and time intensive, more so now given additional requirements (discussed below).

4.7.3 Significance of Subordinate Legislation Act 1994 amendments

Since July 2011, some third level guidance documents under the EP Act are newly subject to regulatory impact statement requirements. Amendments to the Subordinate Legislation Act 1994 (SLA) have extended scrutiny under that Act from statutory rules (Regulations) to ‘legislative instruments’ (a broader set of instruments). Instruments that create a binding rule of general application are likely to be ‘legislative instruments’.

Where a third level guidance document includes such a binding rule and is likely to impose a ‘significant economic or social burden on a sector of the public’, then it is likely to be newly subject to SLA requirements; regarding consultation, a regulatory impact statement (requiring review and approval by the Victorian Competition and Efficiency Commission), publication in the Victorian Government Gazette, and documents being laid before Parliament103.

During consultation, some stakeholders welcomed the increase in the level of scrutiny that will now be applied to the economic impacts of proposed third level documents under the EP Act, including those referenced in statutory policy104. While increased scrutiny is welcome, it will also make these guidance documents less flexible and more difficult and resource intensive to update.

99 http://www.asic.gov.au/asic/asic.nsf/byheadline/Regulatory+guides?openDocument100 http://www.epa.sa.gov.au/environmental_info/legislation101 ComplianceandEnforcementReview,p.64102 E.g.Recommended Buffer Distances for Industrial Residual Air Emissions,EPAPublicationAQ2-86(commentsfromMsBreider).Note,anupdatedguidelinehasbeen

publishedthatreplacesAQ2-86,seeEPAPublication1518.Interim Guidelines for Control of Noise from Industry in Country Victoria,EPAPublicationIBN3-89,issuedApril1989(localgovernmentworkshop;noteN3-89hasnowbeensupersededbyEPA’sNoisefromIndustryinRegionalVictoriaGuidelines,EPAPublication1411,October2011).Conversely,oneconsultantstakeholderexpressedconcernthatthefrequencyofrecentupdatestoEPA’sLandfill Licensing Guidelines andLicence Management Guidelineshadaddedtocostsandcausedsomefrustrationforindustry.

103 Formoredetail,includingthegroundsforexemptioncertificatesfromtheseSLArequirements,seetheSubordinate Legislation Act Guidelines 2011, OCPC Statutory Rules Notes for Guidance (May2011)andtheVictorian Guide to Regulation(May2011).

104 Forexample,somestakeholders(inthelocalgovernmentandindustry/consultantsworkshops)expressedconcernthattheamendedLandfill Best Practice Environmental Management Guidelinehadresultedinunexpectedcostsfromtheperspectiveofsomecouncilsanddevelopers.

53


Recommendation 2

That EPA and DEPI reform statutory policies, Regulations, guidance documents and website functionality to make it easier for industry (emitters) to understand and comply with their obligations under the EP Act. First preference should be given to housing emitters/industry obligations in Regulation.

To support this recommendation the following, or similar, criterion should be considered, together with those criteria outlined after recommendation 1 on page 45, when developing new statutory policies or reviewing current SEPPs and WMPs:

• giving first preference to housing emitters/industry obligations in Regulation. In principle, giving preference to housing emitters/industry obligations in statutory policies where they are unsuited in Regulation and needed in law (for example, requirements relating to evolving concepts, such as best practice, continuous improvement and maximum extent achievable).

The following approaches should also be considered to support this recommendation:

- developing materials and website functionality in close consultation with industry, so that industry can readily find all of their obligations in one place. That is, bringing together references to requirements housed in different legal instruments and providing an effective ‘user interface’

- EPA publishing and maintaining a webpage summarising the legal status and purpose of its different types of guidance documents, as EPA SA has done

- EPA implementing recommendation 6.4 of the Compliance and Enforcement Review, that is, clarifying the purpose and legal status of the different types of EPA guidance, including adopting consistent naming conventions

- developing guidance, applicable across all SEPPs and WMPs, on what is expected of emitters/industry by requirements relating to risk assessment

- developing and publishing guidance to assist industry to assess and achieve the ‘best practicable environmental outcome’ or ‘best net environmental outcome’106.

Further analysis of best practice

In relation to ‘best practice’ and related terms, EPA has now published a Guideline on Demonstrating Best Practice107. This guideline provides advice on the information required from applicants when a statutory application needs to demonstrate best practice.

Areas for future investigation that will build understanding and assist improvements include:

- clarification of when best practice, continuous improvement and management system approaches will be applied

- comparing and contrasting the ‘best practice’ requirement with the ‘reasonably practicable’ requirement used in the occupational health and safety framework.

To ensure clarity, a longer-term goal is to reduce the number of terms used to describe ‘best practice’ currently found in different statutory policies, where these terms have the same meaning in practice.

105106

105 Inits2009report,A Sustainable Future for Victoria: Getting Environmental Regulation Right,VCECrecommended,‘ThatEPAVictoriaclarifythedefinitionsof‘bestpractice’,‘bestpracticableoutcome’,‘bestpracticablemeasureorapproach’and‘bestavailabletechnology’initspoliciesandguidancetoensuretheydonotconstrainbusinessesfrommeetingtherequiredperformanceoroutcomestandardsinaleastcostmanner.’TheGovernmentsupportedthisrecommendation.TheapproachesabovewillbuildontheGovernment’sresponsetoVCEC’srecommendation.

106 SeeEPAPublication1517,Guideline – Demonstrating Best Practice

54


CHAPTER 5. REQUIREMENTS AND RESPONSIBILITIES OF AGENCIES AND OTHER BODIES

‘There is support for … the measures suggested [in the Discussion Paper] for improving accountability, management and coordination.’ VicWater

This review has explored those parts of statutory policy that deal with delivery and activities to meet the environmental quality standards and objectives – the ‘attainment programs’.

Overall, the review found that attainment programs in statutory policy are too broad, confusing and without strong budgeting, delivery or accountability mechanisms. EPA has not prioritised oversighting, delivery or management of many of these programs. Other agencies and departments have not prioritised or recognised some attainment program goals and roles.

Many stakeholders argued that programs to support attainment of statutory policy environmental quality objectives were important, however, recognised they probably did not need to sit in statutory policy. Therefore a core question is whether such implementation plans could sit in separate documents.

The review recommends a reduction in the scope of attainment programs in statutory policy, retaining only those clauses or provisions that require statutory definition and removing clauses that outline general roles, partnership or programs. It recommends the development of separate implementation plans and new reporting and oversighting approaches, as outlined below.

Current approach

Currently, the EP Act requires EPA to formally review each statutory policy within 10 years. There is annual implementation reporting through the National Environment Protection Council (NEPC) for those statutory policies that implement National Environment Protection Measures (NEPMs) (5 of 15). The EP Act does not address public reporting on implementation, but some individual policies have included commitments to do so.

Proposed approach

To improve accountability, the review recommends:

• an implementation plan be developed for each statutory policy (and reviewed 3 – 5 yearly)

• regular (for example, five yearly) public reporting against environmental quality objectives and standards and on implementation plan actions and commitments

• the establishment of an advisory committee on environmental standards (either state-wide or environmental segment specific), drawing on internal government and external technical and scientific expertise, including DEPI’s Chief Scientist. (See chapter 7).

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5.1 Effective implementation to achieve environmental objectives

The action required to achieve environmental quality objectives (or ambient standards) is set out in the ‘attainment programs’ sections of statutory policy. Attainment programs typically include guidance, management controls and methods to be followed to achieve the policy objectives. This includes provisions that give discretion or empower organisations to take action. The nature of provisions and requirements included in attainment programs varies widely across and within policies. Attainment programs are often lengthy and difficult to navigate and understand. The following are examples of broad categories of attainment program clauses found in SEPPs and WMPs.

Roles and responsibility clauses: outline general and specific responsibilities of government agencies, local government, community and industry.

Guidance or methodology clauses: outline provisions relating to processes to be used in the statutory policy as a whole; for example, processes for regional target setting or for off-set measures in SEPP (Waters of Victoria). Some SEPPs such as the SEPP (Ambient Air Quality) include clauses on monitoring and reporting.

Activity and specific management requirement clauses: outline a range of standards and controls that apply to particular activities. For example, in SEPP (Waters of Victoria) these clauses are presented in three major categories: waste and wastewater management, water management and catchment management. The WMP (Siting, Design and Management of Landfills) sets out the general and specific management requirements for landfills.

A key focus of this review has been whether statutory policy is best placed to continue to house and manage such diverse content, or whether some of it would be better placed in other instruments, such as non-statutory implementation plans.

5.2 How are roles and responsibilities specified in statutory policy?

5.2.1 General responsibilities

The model for statutory policy delivery and implementation currently envisaged through policy is one of ‘shared responsibility’ of both statutory and non-statutory roles. For example, the policy impact assessment for SEPP (Waters of Victoria) states:

‘Ensuring the protection and management of Victoria’s water is a shared responsibility. No single group or agency has an overall custodial role for ensuring the management of the region’s water environments and as such the arrangements for their management is complex. While the Environment Protection Authority is responsible for ensuring the overall implementation of the SEPP, its implementation on a daily basis is the shared responsibility of protection agencies, businesses and the community107.’

The attainment programs within policies are designed to articulate at a broad level the actions needed to meet the purposes of a statutory policy. The attainment programs are intended to articulate clear roles and responsibilities and also to identify strategic actions and tools to address activities that pose a risk to particular segments or environments. Additionally, the attainment programs seek to reflect delivery through a range of existing and established statutory mechanisms including regional catchment plans, coastal action plans, state and national strategies, and through local government roles and delivery.

5.2.2 Specific responsibilities

As well as the general responsibilities outlined above, statutory policies also set out specific responsibilities for agencies and departments. Examples include, domestic waste water management planning by local government108 and planning authorities carrying out their duties consistent with the statutory policy for contaminated land109. These ‘responsibilities’ empower agencies to take action and develop best practice guidance. They often set out a joint approach between EPA and other agencies.

107 Policy Impact Assessment, State Environment Protection Policy (Waters of Victoria),EPAPublication905,2003,p.26108 SEPP(WatersofVictoria)clause32109 SEPP(WatersofVictoria)clause17andSEPP(PreventionandManagementofContaminationofLand)clause13

56


Tab

le 8

– E

xam

ple

s o

f ag

en

cy r

esp

on

sib

iliti

es in

sta

tuto

ry p

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licy

and

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ture

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ts

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gard

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inis

ter’s

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rect

ion

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as

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ded

from

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eto

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ion

12(2

)(a)o

fthe

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nnin

gan

dEn

viro

nmen

t Act

19

87.

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Con

tam

inat

ion

ofL

and

cl15

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iona

lca

tchm

ents

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sTh

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thor

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uppo

rtto

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tchm

entM

anag

emen

tAut

horit

ies

and

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rpro

tect

ion

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cies

to

enab

leth

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otec

tion

ofb

enefi

cial

use

sfr

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onta

min

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nof

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thro

ugh

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onal

cat

chm

ents

trat

egie

san

dot

her

man

agem

ents

trat

egie

san

dpr

ogra

ms.

57


SEPP

/WM

PPr

ovis

ion

cons

trai

ning

(rul

e se

ttin

g fo

r)

anot

her

agen

cy i.

e. w

hen

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cy d

oes

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ust

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gain

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nstr

aint

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t, o

ther

s sp

ecifi

c)

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r pr

ovis

ions

, e.g

. in

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amew

ork

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nal/

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t pr

ovis

ion

- co

mm

itm

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to fu

ture

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(inc

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op t

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ned

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ram

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tc)

i.e. E

PA w

ill d

evel

op g

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on X

…

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ral s

tate

men

t re

EPA

and

/or

agen

cy’s

rol

e/re

spon

sibi

lity

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re

spon

sibl

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r …

or

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ill p

rovi

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info

rm a

nd in

volv

e …

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be

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to d

irec

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gree

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t pr

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(at

left

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e ge

nera

l

SEPP

Gr

ound

wat

ers

of V

icto

ria

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GoV

cl1

5Pl

anni

ngs

chem

esa

nda

men

dmen

ts

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lann

ing

auth

oriti

esm

uste

nsur

eth

atp

lann

ing

sche

mes

adm

inis

tere

dun

dert

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lann

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and

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ronm

ent A

ct 19

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ndp

erm

itsis

sued

und

er

plan

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sch

emes

are

con

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entw

ithth

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ovis

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of

this

pol

icy.

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sof

pra

ctic

ean

dgu

idel

ines

In

co-

oper

atio

nw

ithre

leva

ntp

rote

ctio

nag

enci

es,

indi

vidu

als

and

orga

nisa

tions

the

Auth

ority

w

illin

itiat

ean

dpa

rtic

ipat

ein

the

deve

lopm

ent

and

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ewo

fcod

eso

fpra

ctic

ean

dgu

idel

ines

ai

med

atm

inim

isin

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eim

pact

ofa

ctiv

ities

that

ar

ede

trim

enta

lorp

oten

tially

det

rimen

talt

ogr

ound

wat

erq

ualit

y.

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GoV

cl2

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gion

alc

atch

men

tst

rate

gies

Th

eAu

thor

ityw

illw

ork

with

Cat

chm

ent

Man

agem

entA

utho

ritie

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dot

her

prot

ectio

nag

enci

esto

ens

ure

that

re

gion

alc

atch

men

tstr

ateg

ies

and

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rm

anag

emen

tstr

ateg

ies

and

prog

ram

sm

ake

adeq

uate

pro

visi

onfo

rthe

pro

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of

bene

ficia

luse

sof

gro

undw

ater

.

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Nois

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om

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mer

ce,

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stry

and

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ade

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mak

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nnin

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cisi

ons

and

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ting

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ning

sch

emes

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pons

ible

au

thor

ities

and

pla

nnin

gau

thor

ities

with

inth

em

eani

ngo

fthe

Pla

nnin

g an

d En

viro

nmen

t Act

1987

m

usth

ave

rega

rdto

this

Pol

icy.

58


5.3 The problem

5.3.1 Roles and responsibilities across agencies

Reflecting the contribution of multiple agencies and stakeholders in managing our environment, attainment programs often specify roles and responsibilities of several government agencies, not just EPA. They often require partnerships between different agencies or a particular strategic management approach.

Stakeholder feedback suggests that statutory policy is sometimes unclear about the boundaries between agencies, and the scope and nature of the anticipated outcomes. There may be a need to strengthen mechanisms for inter-agency coordination. Feedback suggests that reforms are needed to encourage participation by multiple agencies or stakeholders, such as strengthening public reporting on how agencies are implementing statutory policies.

Despite statutory policy being a whole-of-government legislative commitment, the knowledge and application of statutory policy (for example, by agencies who need to implement programs to attain policy outcomes) appears to be variable.

5.3.2 What submissions said

A majority of submissions argued that those parts of the attainment programs in statutory policy that direct responsibility for delivery by other agencies, such as local government, water authorities and CMA’s had not worked effectively. There were a range of reasons given for these views.

Some submissions argued strongly that there was no role for attainment programs in statutory policy and that allocation of such responsibilities should not occur through statutory policy. For example:

- The Environment Defenders Office and Environment Victoria submission110stated that: ‘Statutory policies are not effective at allocating roles to other agencies. Placing obligations outside the EPA’s statutory regime makes it difficult for those external agencies to locate their obligations. EDO and EV also consider that the attainment programs in statutory policies have not been useful. The programs themselves are a confusing mix of aspirational policy statements and specific mandatory requirements.’

- Mr Garrett Hall in his submission111 stated: ‘These instruments should include scientifically sound environmental quality or management objectives where appropriate. The SEPPs and WMPs should detail what the State’s desired outcomes are for the environmental segment or waste management practice, but not detail or prescribe a method of attaining these outcomes…setting benchmark attainment measures has the potential to stifle innovation.’

- URS Australia stated in their submission112: ‘Including the roles and responsibilities of agencies in statutory policy has not really been valuable, because it is often unclear which agencies retain responsibility for implementation or enforcement of policy,e.g. waste policy split between EPA and [the former] DSE.’

Several number of submissions noted that even where roles were outlined and accepted by delivery agencies, often it was lack of capacity, resources and support that led to poor delivery. For example:

- Professor Rob Joy stated in his submission113: ‘Historically EPA has not devoted sufficient resources to following through on key elements of policy attainment programs (including monitoring and publicly reporting on key aspects of implementation both on its own and in concert with other parties). While including the roles and responsibilities of agencies has been useful in some instances (e.g. the program that EPA, Melbourne Water and local government were able to implement for stormwater), such opportunities are not always recognised or taken up due to varying agency priorities, budgetary constraints, or agencies tendencies to protect their turf.’

- The Rural City of Wangaratta submission114 raised the capacity and resource issues for attainment programs: ‘Councils need clearly specified roles to allocate resources and develop appropriate expertise and should not be expected to work outside these roles to fill gaps for other agencies.’

110 TheEnvironmentDefendersOfficeandEnvironmentVictoriasubmission,p.6111 MrGarrettHallsubmission,p.1112 URSAustraliasubmission,p.6113 ProfessorRobJoysubmission,p.2114 RuralCityofWangarattasubmission,p.3

59


- Mornington Peninsula Shire Council’s submission115 stated: ‘EPA has stated that local government is responsible for any noise impacts from commerce onto residential properties. This is not supported by enforcement tools, and councils are often under resourced to investigate these complaints. Contacting EPA officers for advice or assistance can be a difficult process.’

A number of submissions suggested defining roles and responsibilities is important but not necessarily through statutory policy. Suggestions included:

- Where attainment programs contain general statements about how a problem is to be managed, these should not be in Regulations or statutory policy. If they do not impose legal rights or obligations they should be placed in policy or guidance documents116.

- Being clear about roles is important but probably not best described in statutory policy. More direct statements of obligation would be more effective. Defining roles and responsibilities also needs flexibility to cope with changes in the machinery of government and to respond to emerging issues117.

- Roles and responsibilities need to be more prescriptive and explain how the different agencies (e.g. EPA and local government) will work together where appropriate, to achieve better outcomes118.

- An example of a successful policy implementation was the nitrogen reduction to Port Phillip Bay where the majority of actions were the responsibility of Melbourne Water119.

- Whist the intent of the policy [SEPP (Waters of Victoria)] is clear, there is no mechanism for bringing the agencies together to tackle particular issues. The feasibility of incorporating policy requirements into relevant instruments used by other agencies could be considered in relation to planning. Planning Schemes or Municipality Strategic Statements could also include the policy requirements to make them more relevant to the planning authorities120.

- Diffuse source pollution requires a combined effort from protection agencies and polluters. Clarity on particular roles is important for this, as is agreement to the roles required of them121.

- While EPA develops wastewater legislation and publications they cannot respond to local government queries regarding wastewater issues. MoUs between EPA, local government and other agencies should be considered during the statutory policy review122.

A number of submissions suggested clarifying the roles of DEPI and EPA for policy and regulation was important. For example:

- Yarra Valley Water stated in their submission123 that: ‘One of the main challenges for statutory policy is the resolution of the relationship between EPA and DSE [now DEPI]. There are many advantages to the separation of policy and regulation.’

- The VicWater submission124 also stated that the clarity of roles between DEPI (policy maker) and EPA (regulator) as being a key challenge to this review.

5.3.3 The challenge: in summary

Attainment programs are too broad and confusing without strong budgeting, delivery or accountability mechanisms. EPA has not prioritised oversight, delivery or management of many of these programs. Other agencies and

115 MorningtonPeninsulaShireCouncilsubmission,p.7116 EnvironmentDefendersOffice(EDO)andEnvironmentVictoria(EV)submission117 MelbourneWatersubmission118 CityofGreaterBendigosubmission119 VicWatersubmission120 VicWatersubmission121 MelbourneWatersubmission122 MorningtonPeninsulaShiresubmission123 YarraValleyWatersubmission,p.3124 VicWatersubmission,p.8

60


departments have tended to ignore attainment program goals and roles. Many submitters argued that programs to support attainment of SEPP environmental quality objectives were important but argued that they probably did not need to sit in statutory policy. Therefore a core question is whether such programmatic or implementation plans should sit in statutory policy or could sit in non-statutory implementation plans or programs.

As a general principle this review recommends much more tightly focused attainment programs in future statutory policy, with only clauses or provisions which require a statutory definition being included. Clauses and provisions that outline broad roles and responsibilities of agencies and departments, or clauses that refer to programmatic style implementation or partnership would be removed.

Instead of detailed attainment programs within the statutory instrument, this review recommends that a requirement for the development for ‘implementation plans’ be included in the EP Act. This would remove actions that are programmatic or administrative out of statutory policy, but the requirement to provide an implementation plan within a certain time period of the statutory policy being gazetted would drive implementation planning between agencies. Regular reporting and performance reporting requirements (chapter 9) would also be introduced, driving accountability for actions and commitments within plans.

5.4 Implementation plans – proposed approach

To improve accountability, the review recommends:

- an implementation plan be developed for each statutory policy (and reviewed three to five yearly)

- regular (for example, five yearly) public reporting against environmental quality objectives and standards and on implementation plan actions and commitments

- the establishment of an advisory committee on environmental standards (either state-wide or environmental segment specific), drawing on internal government and external technical and scientific expertise, including DEPI’s Chief Scientist.

61


Figure 13 – Proposed approach

Each implementation plan would:

(1) address how monitoring and assessment against the environmental quality standards in the statutory policy will be coordinated across agencies

(2) identify the highest risks and priority challenges for the segment that the statutory policy relates to

(3) set out a limited number of critical actions (between one and five) that agencies are committing to in order to address these highest risks, priority challenges and community concerns.

Compared to current attainment programs, there would be fewer agency actions and commitments set out in the implementation plans. A relatively small number of actions and commitments would focus on addressing the highest risks, priority challenges and community concerns for the relevant environmental segment. That is, the implementation plans would not extend to listing all of the responsibilities, programs and actions relating to the segment. Rather, the focus would be on ensuring the successful delivery of a smaller number of key actions.


Beneficial uses


WH

AT

we

wan

t to

pro

tect



Statutory Policy Instrument

Implementation Plan

+

Monitoring

Critical actions (1-5) to address highest risks / priority challenges

every 3-5 years

Public reporting

every 5 years

Assessment of currency &

effectiveness

ongoing

Formal review

within 10 years

Fig. 12

62


The review notes the importance of the links between these statutory policy implementation plans and agency plans. Ideally, all of these should be complementary and aligned.

The review also considered a model with narrower implementation plans, covering points 1 and 2 above but not 3. That is, with implementation plans that do not include any critical agency actions and commitments. That model would rely only on agency and portfolio plans to articulate and report against such actions and commitments. On balance, the review decided that implementation plans should be slightly broader than this, that they should include critical actions and commitments.

The review suggests amending the EP Act such that the Minister requires the development and publication of targeted implementation plans, as well as regular reporting on implementation plan commitments (by a nominated authority or authorities) and environmental quality standards (by EPA).

63


Figure 14 – Proposed approach (in more detail)


Explanatory notes

Beneficial uses


WH

AT

we

wan

t to

pro

tect



Statutory Policy Instrument - Content

+Implementation Plan

Statutory Policy

Monitoring & Assessment

Activity & delivery

Co-ordination of monitoring & assessment

Plan identifies critical actions

Critical actions (1-5) to address highest risks / priority challenges & community concerns

5 year agency plans

Data collection

and monitoring

Formal Review

DEPI/EPA/SV coordination committee (DESCC)

Oversight and advisory committees

Advisory committee (s) on

environment standards

Within 10 years

Public reporting on trends viz

environmental quality standards,

and implementation

plan actions

Active, ongoing assessment of

currency & effectiveness of

content

Every 5 years

5 year environment

portfolio plan

Puplic reporting against portfolio

and agency plans

An

nu

ally

Identification of highest risks / priority challenges

Priority Issues paper

ever

y 3

-5 y

ears

64


Recommendation 3

That EPA and DEPI more clearly focus the scope of ‘attainment programs’ in statutory policies by:

- retaining only those clauses or provisions that require statutory definition, that is, rules for regulatory decision makers (see recommendation 1)

- removing clauses that outline general roles, partnerships or programs from statutory policies.

In addition, that three to five yearly ‘implementation plans’ be required to be developed, published and regularly publicly reported on for each statutory policy.

The following elements are desirable for these implementation plans:

- addressing how monitoring and assessment against the environmental quality standards in the statutory policy will be coordinated across agencies

- identifying the highest risks and priority challenges for the segment that the statutory policy relates to

- setting out a limited number of critical actions (1-5) that agencies are committing to in order to address these highest risks, priority challenges and community concerns.

These implementation plans could be initially developed administratively under the current EP Act. In the longer term, it would be preferable to formalise the implementation plans and reporting in the EP Act as part of any broader reforms considered for the EP Act.

Giving the implementation plans and reporting more formal status would improve the accountability of statutory policy implementation and reporting. For example, the EP Act might be amended such that the Minister requires:

- the development and publication of the targeted implementation plans

- a nominated authority (or authorities) to regularly report (perhaps five yearly) on targeted implementation plan actions and commitments

- EPA to report (perhaps five yearly) against environmental quality standards.

5.5 Roles of agencies

Statutory policies outline both broad and specific roles for a range of external agencies. However, agencies and departments still report confusion about their role under the EP Act and also report confusion as to the statutory basis or boundary for their role. For example, ‘including the roles and responsibilities of agencies in statutory policy can actually be unhelpful where there are grey areas outlined in responsibilities, or where agencies lack technical capability or where agencies lack the necessary resources to perform their responsibilities125.’

To add to this confusion often the role for particular agencies, especially local government, is further defined in the EP Act in particular segments (see below, Roles of local government). This layering of definition of role and statutory powers is confusing.

5.6 Roles of local government

The intersection of local government with statutory policy is complex. Councils interact with statutory policy in their role as local planning authorities principally through those clauses which direct consideration of statutory policy in local planning decisions (see chapter 8). Councils also intersect with statutory policy where clauses or provisions direct a specific role, for example clauses in statutory policy directing approaches to septics management or stormwater

125 CityofBoroondarasubmission

65


management. In these cases the intersection is with their role in local environmental health or their role as a local drainage authority. Councils will also intersect with statutory policy where local amenity issues arise, for example in noise or litter complaints. Finally, councils interact with statutory policy as a regulated entity, for example councils who manage landfills will intersect with statutory policy for landfill management.

Consultation with local government and local government peak bodies found that the complexity of SEPP requirements and confusion over roles and responsibilities are central to local government concerns with statutory policy. For example the Victorian Local Governance Association (VLGA) submission126 stated:

‘The major issues for VLGA members are:

- the number of and level of complexity of SEPPs

- the confusion around how the SEPPs relate to and integrate with each other

- understanding the SEPP as law as opposed to ‘policy’

- confusion around which agency is responsible for policy and regulation; EPA, CMA, local government etc’.

Local government issues with statutory policy included:

- Links between statutory planning and the SEPPs and WMPs were not always clear.

- Councils sought greater advice at the decision level through development of planning provisions or planning practice notes.

- Local permitting or planning decisions often require decisions to address complex tradeoffs, and local officers need more guidelines, guidance and access to EPA to assist with technical aspects.

- There was a reasonably high level of frustration expressed about EPA being unavailable to provide advice to councils, ‘walking away’ from giving advice on problems seen as local governments’, or in the slow or non-existent development of guidelines and codes.

- Where there is discretion in statutory policies, guidelines and codes open the door for appeals by developers that end up in VCAT. Assistance is required by councils on ‘interpretation’ of these discretionary issues.

- Implementation challenges for councils are large, with costs and resources required to keep driving system improvements; for example, Implementing Domestic Wastewater Management Plans, retaining planners who understand environment standards and application of statutory policies, or even staff who can understand audit reports for contaminated land.

- Roles and responsibilities between EPA and councils need to be better defined at a local complaints level, and a local planning level.

To add to the confusion at the statutory policy level, the EP Act also defines a number of key intersections for local government, particularly in the solid waste management areas. For example sections of the EP Act define council’s roles in Regional Waste Management (for example division 2AB Metropolitan Local Governments Waste Forum, division 2AC Metropolitan Waste Management Group, division 2AD Metropolitan Waste and Resource Recovery Plan, division 2A Regional Waste Management Groups, sections 45A– 45ZL on litter management, sections 53J-530 on septic tank management and section 46-48D on noise management).

EPA’s Compliance and Enforcement Review identified the need to clarify which agency is primarily responsible in different situations. It recommended ‘That EPA identify those issues that are shared with local government and other agencies and prioritise these for addressing uncertainty as to primary regulatory responsibility127.’ EPA is currently implementing this recommendation.

126 VictorianLocalGovernanceAssociationsubmission,p.1127 Compliance and Enforcement Review,recommendation5.5

66


Recommendation 4

That, in reviews of individual SEPPs and WMPs, EPA and DEPI examine and clarify how the powers, duties, roles and expectations of external agencies are expressed. This may include agencies such as local government, catchment management authorities, water authorities and departments.

It is suggested that reviews of individual SEPPs and WMPs also examine of the use of the term ‘protection agency’ to ensure clarity of roles and powers. This type of examination aligns with EPA’s implementation of the Compliance and Enforcement Review recommendations 5.5 and 18.1, that seek to clarify which agency has primary responsibility in different situations.

In the longer term, an examination of how the EP Act defines the powers, duties, roles and expectations of external agencies could be considered as part of a broader set of reforms to the EP Act. Such an examination should ensure roles with a statutory function are clearly defined in the EP Act or statutory policy. Where necessary to improve delivery, the respective roles of EPA, agencies and co-regulatory agencies could be defined through MoUs and/or service agreements.

5.7 Using statutory policy to drive regional or local outcomes

During the review a model (model 3) for regional delivery was put forward to gauge stakeholder interest in the application of a new model for attainment programs. See chapter 3 for a more detailed description of this model.

The model basically outlines:

‘For example, statutory policies could be combined to set and integrate environmental quality objectives (ambient standards) across all environmental segments (air, water, noise, waste etc). These state-wide objectives could then be realised or ‘attained’ at a regional or local level, by setting aligned regional or local objectives in subordinate instruments and establishing statutory regional or local implementation plans to achieve the objectives. Minimal standards and obligations on particular parties could be established in Regulations. Amendments may be required to the Act to enable a new regional environment protection approach.’128

It should be noted that statutory policies are already able to establish regional targets; for example regional catchment related provisions in Waters of Victoria, or air shed provisions in Air Quality Management. Additionally, the EP Act has provisions for Local Neighbourhood Environment Improvement Plans or ‘NEIPs’ and regional waste management plans.

Additionally, other Acts and statutory mechanisms exist that establish some regional basis for natural resource planning such as regional catchment strategies, regional water plans, regional growth plans etc . Any exploration of an additional regional model or instrument should be mindful not to duplicate or overlay existing statutory functions already available under the EP Act or other Acts. That being said, consultation and submissions were generally in favour of a potential regional model that enhanced delivery to achieve statutory policy goals. Stakeholders were particularly supportive of the idea of applying the model to ‘problem’ areas or areas where environments were under particular threat or stress. The regional model could enable a stronger statutory basis for gaining the involvement of a range of agencies and stakeholders, and driving accountability and delivery. Another attractive possibility of this sort of model was the potential to define environment protection objectives suitable to the region or area of interest.

It is therefore recommended that as a means of targeting statutory policy delivery and implementation that model 3 be explored and expanded. The recommendations below outline an approach to this task.

128 StatutoryPolicyReviewDiscussionPaper,June2011,p.24

67


Recommendation 5

That EPA and DEPI review the need for a new approach for ‘at risk’ areas, that is, areas with or facing a serious decline in environmental quality standards.

This is a longer term priority and would be best undertaken as part of consideration of broader reforms to the EP Act. Consideration should be given to:

- the need for a statutory mechanism and/or plans to drive local or regional support and action. The mechanism and/or plans would outline actions to address the decline, or risks of further decline, in environmental quality standards, and outline appropriate roles and responsibilities of agencies and stakeholders

- the need for a statutory mechanism to protect largely unmodified areas or areas with high environmental values

- linking these mechanisms or plans to objectives or targets within statutory policy that signal a need to address significant issues as per recommendation 11

- the context and approach of existing provisions in the EP Act for plan development (for example, Neighbourhood Environment Improvement Plans (NEIPs) and Sustainability Covenants) and in policy (for example, Air Quality Improvement Plans (AQIPs)).

(See also recommendation 11)

68


CHAPTER 6. IMPROVING LINKS WITH OTHER STATUTORY SYSTEMS

There are significant links between statutory policies and the Victorian planning framework.

The planning system, its legislative base, the structure of planning schemes and regulations under the Planning and Environment Act 1987, significantly interface with EPA’s administration of the EP Act and with various policies and programs that support it.

Statutory policies are whole-of-government legal commitments and seek to align decision making across multiple agencies to meet common objectives. In practice, however, the requirements of statutory policies and their relationship to other instruments are often not well understood or could be better applied across government agencies.

In this review, industry and local government planners highlighted the confusion that exists in relation to standards, outcomes and obligations as set out in SEPPs. For example, the State Planning Policy Framework states that planning authorities ‘must consider, as relevant’ various SEPPs; what this means in practice can be unclear.

‘… as the provision included in the State Planning Policy Framework only requires ‘consideration’ of SEPPs and WMPs, this can lead to confusion about what to do where the implementation of SEPPs and WMPs is contrary to other land development outcomes.’ City of Boroondara

Workshops conducted with local government also generated useful insights on how to improve the interrelationship of the planning system with environment protection.

A common theme was that local permitting and planning decisions often require decisions to address complex trade-offs between land use and development, and the control of pollution and protection of the environment. In these circumstances, local officers need more guidance and access to EPA to assist with technical aspects. Specifically, assistance is required by councils on ‘interpretation’ of discretionary issues.

A number of submissions raised concerns about the alignment and links between statutory policy and statutory planning under the Planning and Environment Act 1987. Submissions supported the development of guidance, training and resources for statutory planners and the development of more planning advisory and planning practice notes. Given resource limitations there is a need to prioritise provision of resources to those areas of most need.

The review recommends that EPA and DEPI:

- retain and strengthen the links between statutory policy and the statutory land use planning system and permitting process

- work with the Department of Transport, Planning and Local Infrastructure (DTPLI) to review and address inconsistencies between the frameworks

- further develop working relationships with authorities responsible for strategic planning decisions (the Growth Areas Authority and Urban Renewal Authority).

The review also recommends improving the links between statutory policy and regional catchment planning.

It also notes the importance of Victoria continuing its active involvement in the development and review of National Environment Protection Measures, Australian standards and other relevant national standards.

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6.1 Intersection of policy with other Victorian statutory systems

Environment protection statutory policies are whole-of-government commitments and seek to align decision making across multiple agencies to meet common objectives. In practice, however, the requirements of statutory policies and their relationship to other instruments is often not well understood or could be better applied across government agencies.

6.1.1 How others use statutory policy

As statutory policies are whole-of-government instruments, they set standards and outline implementation and coordination programs that apply beyond EPA to a range of other government agencies. For example, statutory policies are:

- used by DEPI to assess the success of strategies (for example, the Victorian River Health Strategy sets targets for the percentage of sites that meet SEPP (Waters of Victoria) environmental quality objectives)129

- used by local councils and other planning authorities to inform planning application decisions under the Victorian Planning Provisions and the Planning and Environment Act 1987

- used by councils to inform advice about, and responses to, noise issues130

- used by catchment management authorities (CMAs) to set regional targets for water quality to inform regional catchment management plans131

- used by water corporations and the Essential Services Commission in water plans and price determination processes

- used by the Victorian Commissioner for Environmental Sustainability as a source for assessing and reporting on the state of the environment

- used as a starting point in the assessment of proposals under the Environment Effects Act 1987.

6.2 Statutory policy and statutory land use planning

The planning system, its legislative base, structure of planning schemes and regulations under the Planning and Environment Act 1987, significantly interfaces with EPA’s role in administering the EP Act and its various policies and programs that support it. The planning scheme requires consideration of the provisions of state environment protection policies in planning provisions.

For example, s13.02 states that ‘Planning must consider as relevant: State Environment Protection Policy (Waters of Victoria)’. Similar requirements exist for consideration of noise, air quality and contaminated land SEPPs.

There is a clear intent expressed in the Planning and Environment Act 1987 for there to be integration and coordination between various instruments under the Planning and Environment Act 1987 and the EP Act.

Depending on the nature of the planning application, in some instances EPA is a formal ‘referral authority’ in which case it has the power to mandate a refusal or imposition of particular conditions within a planning permit when granted. These referrals include developments requiring a works approval, a licence or an amendment to a licence under the EP Act. An example of this referral requirement is found in s. 52.10 under the Planning and Environment Act 1987. In other instances when it is not a referral authority, EPA, like other citizens, has a right to express a view. Many planning authorities use non-statutory referrals to seek the scientific and engineering expertise of EPA to assist in preventing environmental harm.

Statutory policy seeks to actively link a consideration of environmental objectives into the statutory land use planning system. The State Planning Policy Framework (SPPF) requires planning authorities to consider State Environment Planning Policies where relevant.

129 SEPP(WatersofVictoria),clause19130 SEPP(ControlofNoisefromCommerce,IndustryandTrade)(‘N-1’)andSEPP(ControlofMusicNoisefromPublicPremises)(‘N-2’)131 SEPP(WatersofVictoria)

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For example the State Planning Policy Framework strongly references State Environment Planning Policies, for example, clause 13.03.1 contaminated land, 13.04-1 noise, 13.04-2 air, and 14.02-01 and 14.02-2 catchment planning and water quality respectively132.

Some statutory policies contain clauses that direct planning authorities to consider the objectives in the SEPP or WMP directly in planning decisions.

6.3 What the consultation and submissions told us

In the responses to the Statutory Policy Review discussion paper, a common theme in the consultations with industry and local government planners was the confusion that exists in relation to standards, outcomes and obligations as set out in SEPPs.

Workshops conducted with local government as part of the review also generated useful insights on how to improve interrelationship of the planning system with environmental protection.

A common theme articulated in these forums was that local permitting and planning decisions often require decisions addressing complex trade-offs between land use and development and the control of pollution and protection of the environment. In these circumstances, local officers need more guidance and access to EPA to assist with technical aspects. Specifically, assistance is required by councils on ‘interpretation’ of discretionary issues.

Where relevant, VCAT refers to statutory policy in its reviews of EPA decisions and the application of statutory policy by third parties133. For example, under planning legislation, VCAT is required to ‘take account of and give effect to’ any relevant statutory policy when it is determining an application for review under that Act134. The courts also refer to statutory policy where decisions are appealed on points of law135. Significantly, VCAT has commented on the need for EPA’s policies, guidelines and other publications to be consistent with one another, accessible and easy to navigate136.

Feedback in relation to the statutory policy framework and planning from VCAT137 included that:

- policies need to be expressed in a more user-friendly way that facilitates them being readily understood by non-technical people that need to apply or enforce them (for example in local government or at VCAT)

- a clearer hierarchy needs to be developed so that the weight, enforceability and interrelationships of EPA regulations, statutory policy and guidelines is understood

- the role of EPA policies in the planning system (for example their regular reference and use in planning permit conditions, and the respective roles of the EPA and local government in relation to them) needs to be better articulated, particularly in the area of noise control.

A large number of submissions raised concerns about the alignment and linkages between statutory policy and the Planning and Environment Act 1987. Concerns included in submissions included:

6.3.1 Ambiguity of Responsibilities

Despite a requirement to make decisions consistent with SEPPs, evidence suggests there are cases where local government planners are generally unaware of, or confused by, the requirements of SEPPs and their need to make decisions consistent with them.

- Boroondara Council stated in their submission138 a key concern: ‘While the SPPF requires local government to consider SEPPS and WMPs, the provision in the SPPF only requires ‘consideration’, this can lead to confusion about what to do when land development outcomes are contradictory to SEPPS and WMPs. Use of the word ‘consider’ does not make it clear to decision makers.’

- Knox City Council in their submission139 stated that: ‘Ambiguity in policy results in misaligned expectations among stakeholders leading to dispute of planning decisions by applicants that lead to VCAT.’

132 StatePlanningPolicyFrameworkhttp://planningschemes.dpcd.vic.gov.au133 E.g.SkyeEnvironmentalServicesv.D&RAnderson[2004]VCAT682134 Planning and Environment Act 1987(Vic)section84B(2)(e)135 E.g.WesternWatervRozen&Anor[2008]VSC382136 SITAAustraliaPtyLtdandPWM(Lyndhurst)PtyLtdvGreaterDandenongCityCouncil[2007]VCAT156137 LetterfromJusticeIainRoss,VCATpresidenttoEPACEO,August2011138 BoroondaraCityCouncilsubmission,p.2139 KnoxCityCouncilsubmission,p.2

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- The Rural City of Wangaratta submission140 stated: ‘Some of the SEPPs such as SEPP (Noise and Air Pollution) have been converted into planning con trols with varying level of success. For example the incorporation of buffer distances has only been partly successful as there is insufficient guidance for decision. The SEPP clauses need to be adapted to planning decisions. For example a house can be built on a lot of appropriate size within the buffer distance in an adjacent Farming Zone without a planning permit.’

Most local government submissions suggested improving the definition of roles and responsibilities of all agencies. A number suggested reviewing the referral system to enable a broader range of technical referrals to be made to the EPA.

6.3.2 Guidance

A number of submissions raised concerns about the content, age and legal status of guidance material referenced or incorporated in statutory policy. Issues included:

- There can be some confusion between the different types of documents and their legal status, for example codes of practice incorporated into planning schemes, guidelines such as the Recommended Buffer Distances for Industrial Residual Air Emissions (Environmental Protection Authority, 1990) and Interim Guidelines for Control of Noise from Industry in Regional Victoria (Environment Protection Authority, 1989)141.

- Lack of clarity in how different instruments apply and interact with planning. For example in guidelines for buffer distance, different definitions have been used by the EPA and the planning system.

- Definitional issues in various statutory policies for example what is ‘best practice’, ‘best available technology’ and ‘maximum extent achievable’. Improved EPA guidance on the interpretation of these terms would be helpful.

- For example, Mornington Peninsula Shire Council’s submission142 suggested: ‘inclusion of the Precautionary Principle into all EPA policy so that it is clear to applicants, land owners and consultants.’

- Concern over the age and status of EPA guidelines (some not reviewed since the late 1980s).

6.3.3 Interpretation of principles

A number of statutory policies currently either reference or repeat the 11 principles outlined in the EP Act. These principles include such principles as the precautionary principle, intergenerational equity, conservation of biological diversity, shared responsibility and integrated environmental management. While these principles form the core to the high level directions of the EP Act, how they are meant to be applied to statutory policy provisions, in practice or for day to day decisions is often unclear. Some statutory policy requires the principles to be used to guide decision about the protection and management of the environment (see for example clause 6, SEPP Waters of Victoria)143.

Consultation with legal practitioners raised the issue of interpretation and use in decision making of the EP Act principles referenced in statutory policy. The VCAT case of Rozen vs Macedon Ranges Shire Council and Western Water144 is a good example. The case involved the application of the precautionary principle when considering a proposal to construct a dwelling in an open potable water catchment. In December 2010 the Victorian Supreme Court determined to uphold the tribunal decision and interpretation of the precautionary principle and issues of cumulative risk. VCAT has designated this case a red dot decision (a case of interest or significance) because of the interpretation and application of the precautionary principle.

It is worth exploring if further guidance on the interpretation of the environment protection principles in the EP Act would be useful. Such guidance or criteria might assist those who are required to apply the principles in practice, such as land use planners.

140 RuralCityofWangarattasubmission,p.3141 Note:newguidelinesfornoiseinruralVictoriawerereleasedin2011.SeeEPAPublication1411,Guidelines for Noise from Industry in Regional Victoria,October2011.

Newguidanceonbufferdistanceswaspublishedinearly2013.SeeEPAPublication1518,Recommended Separation Distances for Industrial Residual Air Emissions – Guideline,March2013.

142 MorningtonPeninsulaShireCouncilsubmission,p.3143 SEPPWatersofVictoria,clause6144 RozenvMacedonRangesSC(includessummary)(RedDot)[2009]VCAT2746

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6.3.4 Local capacity

A number of submissions from local government outlined that enforcement of permit conditions relevant to SEPPs and WMPs can be difficult in the planning system due to the technical nature of issues (for example noise) and the limited availability of expertise.

A number of local government submissions stated that EPA advice for local government or local decision making can either be difficult to access or inconsistent, depending on the particular expertise of personnel. For example:

- The City of Greater Bendigo submission145 stated: ‘An example where the City of Greater Bendigo struggles with being able to administer EPA requirements is where proposed land use development sites have a history of mining. The requirement to ask for an assessment of site contamination is straight forward, however there is no assistance from the Regional EPA office to peer review these reports and/or written technical advice.’

Capacity and training of statutory planning staff in local government is an ongoing challenge, with highly mobile statutory planning professionals in an industry with high demand and lower supply. While not an issue particular to application of statutory policy, but a broader system issue with planning, the issue does exacerbate the problem of trying to manage relatively complex statutory policy at a local level.

Recommendation 6

That the links between statutory policy and the statutory land use planning system and permitting process be retained and strengthened. That EPA, DEPI and DTPLI review and address inconsistencies between the statutory policy framework and the statutory land use planning framework.

The following are suggested areas for consideration to improve the links with the land use planning framework and to help ensure that SEPP/WMP standards are properly considered in the planning system:

- Roles and responsibilities: More clearly defining the roles of councils and other agencies, including EPA, in consideration of SEPP objectives in planning decisions.

Referral: improving the transfer of advice on planning referrals where EPA and other authorities have technical and specialised expertise that councils cannot provide.

Advice: improving the access by councils to advice from EPA on local planning and decision making.

Information: developing a summary checklist on when and how EPA provides advice on the application of SEPPs/WMPs in different types of planning applications and decisions.

- Training: Developing a coordinated and ongoing training module to train planning professionals in how to apply statutory policies and on their intersection with the planning framework.

- Application of principles: Exploring the usefulness of guidance for planning authorities on the interpretation of the environment protection principles in the EP Act as they relate to land use planning decisions – for example, the Precautionary Principle and consideration of cumulative risk in planning decisions involving environmental standards.

- Strategic planning: EPA and DEPI further developing their working relationships with Places Victoria and the Urban Renewal Authority to better integrate statutory policy with whole-of-government strategic planning efforts.

EPA‘s planning strategy is helping to progress this recommendation.

145 CityofGreaterBendigosubmission,p.10

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6.4 Statutory policy and catchment planning

In regard to catchment management, there is scope to clarify the application of SEPP (Waters of Victoria) for regional catchment management authorities. For example, the SEPP (Waters of Victoria) requires CMAs and EPA to work together to develop regional water quality targets. While this was done a number of years ago for initial catchment plans, the approach to setting these targets in revised Catchment Management plans may need to be reviewed. Additionally the scale and detail in statutory policies may not always align well with local strategies, for example within sub-catchments.

The Victorian Catchment Management Council’s (VCMC) submission stated that they see diffuse pollution as one of the biggest challenges to improving water quality. CMAs could potentially play a greater role (working with EPA and others) to: (i) identify sources of diffuse pollution, (ii) develop potential land management solutions, (iii) prioritise management actions to guide investment decisions and (iv) coordinate action to combat issues.

VCMC would welcome further research and the development of an action plan (with formalised roles and responsibilities) to address this issue as part of the revised framework. Further development of model 3 (to drive regional or local approaches) would have direct implications for regional catchment planning and discussions about these two processes and how they would interact would need to occur (if this model were to be pursued).

VCMC agrees that there is scope to clarify the application of SEPP Waters of Victoria for CMAs and the upcoming review of Regional Catchment Strategies would be an appropriate mechanism for EPA to work with CMAs to review regional water quality targets. Targets can become meaningless if external factors make then unattainable146.

Goulburn Murray Water in their submission wrote that the role of SEPPs in catchment management needs to be more explicit and EPA needs to be more actively involved in this area, as currently there is no accountability for water quality management. No one agency has primacy for the management of water quality147.

Recommendation 7

That EPA and DEPI improve the links between statutory policy and regional catchment planning, by reviewing and improving the approach to regional water quality targets in statutory policy, and their use in regional catchment and river health planning.

In reviewing regional water quality targets and developing strategies and action plans to address water quality at a regional or sub-regional level, early engagement between EPA with CMAs and VCMC will be important.

VCMC supports the exploration of evolving concepts in environmental management and standard setting such as ‘ecosystem resilience’. They stated148:

‘resilience thinking presets an opportunity to completely change the way we think about and manage our landscapes in a flexible, adaptive and experimental way.’

However, they urge caution as there is a lack of clear guidelines around how to implement a resilience approach and few local examples to draw upon to seek direction. The challenge for CMA’s and the EPA is to utilise current segment based environmental standards as a starting point for more complex integrated ecosystem approaches.

6.5 Statutory policy and national standards

Victoria’s SEPPs and WMPs extensively reference national standards, including Australian standards, and (former) Australian and New Zealand Environment Conservation Council (ANZECC) guidelines. As noted, five of the current 15 policies implement National Environment Protection Measures (NEPMs).

A critical challenge in any reform of statutory policy is to ensure that cross-references to other standards, particularly national standards, remain current.

146 VictorianCatchmentManagementCouncil,pp.3-4147 GoulburnMurrayWatersubmission,p.2148 VictorianCatchmentManagementCouncilsubmission,p.3

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An example raised in consultation was that SEPP (Waters of Victoria) (published in 2003) references the 2000 version of the Australian and New Zealand Environment Conservation Council (ANZECC) guidelines for Fresh and Marine Water Quality, whereas SEPP (Groundwaters of Victoria) (published in 1997) picked up an earlier (1992) version149.

One approach to ensuring the currency of cross-references from statutory policies or third level EPA guidance documents to national standards (for example, National Water Quality Guidelines, Australian standards) is to include the phrase ‘as amended from time to time’ after the reference150. While automatic adoption of revised national standards is efficient, it removes the safeguard that enables (and requires) government to consider and decide on the suitability of the revised standard for Victoria. It also requires the user to search for the most current version of the national standard. Another approach is to include a fast-track mechanism in the EP Act for such amendments to be made with appropriate safeguards, including consultation with parties that would be affected by the amendment and making such amendments subject to parliamentary scrutiny.

Further consideration should be given to whether a new ‘fast track’ mechanism is needed to help ensure that cross-references from statutory policies to national standards remain current. Any such new mechanism would need to include appropriate safeguards, including consultation with parties that would be affected by amendments and making such amendments subject to parliamentary scrutiny for a set period of time. A new mechanism may not be needed if recommendation 14 is accepted; as, under the Subordinate Legislation Act 1994, updates can be made fairly quickly (without a Regulatory Impact Statement and extensive consultation process) if the change is not likely to impose ‘a significant economic or social burden on a sector of the public’ (see section 8.2).

6.5.1 Implementation of NEPMs

In consultation, stakeholders also emphasised that it is important that changes to NEPMs are quickly implemented into Victorian law. When this does not occur, uncertainty is created as to the applicable standard, especially when the timetable for implementation is unclear151. Australian standards can be inconsistent with SEPP standards or third level guidance and it can be unclear how much weight should be given to each152.

6.5.2 National Processes and Review

The Victorian government, to date, particularly through EPA, actively participates in national processes to introduce and review NEPMs, Australian standards and other national standards. This work is very valuable as it can significantly improve environment protection standards and also result in requirements being harmonised across jurisdictions.

There are currently seven NEPMs, all of which have been varied or re-made within the last three years, or remain subject to significant reviews. Table 9 below summarises the relationship between Victoria’s current SEPPs and WMPs and relevant national standards or processes, and Victoria’s involvement in the review and development of those standards.

149 Statutorypoliciesalsorefertolessformalnationalstandards.Forexample,thebioticindexSIGNALisusedinSEPP(WatersofVictoria)andtheSchedulesforYarraandWesternportasanindicatorwithspecificobjectiveswithinregions.TheIndexwasfirstpublishedin1995andbecamewidelyacceptedinAustralia.Anupdatedversionwaspublishedin2003buttheschedulesstillrefertotheoriginalformoftheIndex,whichotherorganisationsstoppedusingyearsago.

150 EPActsection72(2)allowsSEPPsandWMPstoapply,adoptorincorporatesuchdocumentsandstandards‘asinforceataparticulartimeorasinforcefromtimetotime.’

151 Industryandconsultantsworkshop,5August2011.Theexamplecitedwascontaminatedland152 MorningtonPeninsulaShireCouncilsubmission,p.5.TheexamplecitedwasAS1547-2000On-sitedomesticwastewatermanagement.NotethefinalisedGuidelines

for Environmental Management – Code of Practice for Onsite Wastewater Management(EPAPublication891.3,February2013)directlyaddressthisissue,stating(atclause1.7.4)thatifthereisaninconsistencybetweenanAustralianstandardandtheCode,theCodetakesprecedence.

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Table 9 – National standards and processes relevant to current Victorian statutory policies

Current SEPP/WMP Relevant national standard(s) or processes (as at October 2012)*

Victoria’s involvement in reviews of these national standard(s) and national processes

Air

SEPPAmbientAirQuality NEPMAmbientAirQualityandNationalPlanforCleanAir

RecentNEPMreviewwasledbyVictoria

SEPPAirQualityManagement NEPMAirToxics154(recentlyvaried)andNationalPlanforCleanAir

RecentNEPMreviewwasledbyVictoria

Land and groundwater

SEPPPreventionandManagementofContaminationofLand

NEPMAssessmentofSiteContamination(currentlybeingvaried)

Victoriainvolvedinvariation

SEPPGroundwatersofVictoria ANZECCGuidelinesforFreshandMarineWaterQuality(currentlybeingreviewed;alsoknownastheNationalWaterQualityGuidelines)

Victoriainvolvedinreview

Noise

SEPPControlofNoisefromCommerce,IndustryandTrade(N-1)

SomereferencetoAS1259–1982soundlevelmeters

SEPPControlofMusicNoisefromPublicPremises(N-2)

SomereferencetoAS1259–1982soundlevelmeters

Water

SEPPWatersofVictoria ANZECCGuidelinesforFreshandMarineWaterQuality(currentlybeingreviewed)

Victoriainvolvedinreview

Waste

WMPMovementofControlledWasteBetweenStatesandTerritories

NEPMMovementofControlledWastebetweenStatesandTerritories(variedNov2010)

Victoriacontributedtoreview

IWMPNationalPollutantInventory NEPMNationalPollutantInventory(variedin2008)


IWMPProtectionoftheOzoneLayer [includesobjectiveofenablingVictoriatoplayitspartinmeetingAustralia’sobligationsundertheMontrealProtocol(internationalstandard)]

IWMP Waste Acid Sulfate Soils

WMPShips’BallastWater Workiscontinuingtodevelopanationalballastwatersystem,whichcouldsupersedethisWMP

Victoriaiscontributingtothedevelopmentofanationalballastwatersystem

WMPSiting,DesignandManagementofLandfills

ThethirdlevelLandfillBPEMreferstoassortedAustralianstandards

WMPSolidFuelHeating SomereferencetoAS/NZS4013–Measurementofparticulateemissionsfromwood-burningresidentialheatingappliances.Workiscontinuingtodevelopnationalapproachestowoodheaterstandards,whichcouldsupersedethisWMP

Victoriaiscontributingtothedevelopmentofnationalapproachestowoodheaterstandards

WMPUsedPackagingMaterials NEPMUsedPackagingMaterials(re-madeSept2011)


*Notanexhaustivelist.

154 ThefiveairtoxicsintheAirToxicsNEPMareincludedasindicatorsinSEPP(AQM)153

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6.5.3 National priorities

In 2011, COAG ‘agreed on the need for major reform of environmental regulation across all levels of government to reduce regulatory burden and duplication for business and to deliver better environmental outcomes …154’ This includes exploring opportunities to harmonise and integrate environmental assessment and approvals processes. These reforms are part of COAG’s Seamless National Economy agenda.

Environment and Water Ministers have ‘…endorsed COAG’s recommended major reform of environmental regulation across all levels of government, aiming to cut red tape, reduce duplication and, most importantly, improve environmental outcomes155.’

Current priority work areas at the national level include:

- seamless environmental regulation

- implementation of the National Waste Policy – including Commonwealth product stewardship regulation and reform of chemicals and plastics regulation

- a landscape scale, ecosystem approach to protecting biodiversity

- a national water reform implementation work program

- the development of a National Plan for Clean Air.

The COAG drive to reform environmental regulation and Ministerial Council and bilateral processes, will continue to shape Victoria’s environment protection framework, including our statutory policies, through the continued development of nationally consistent standards and approaches.

Recommendation 8

To ensure ongoing alignment of standards, the Victorian Government continue to work with other jurisdictions to reduce red tape by streamlining and aligning standards for environment protection.

Victoria is already working with other jurisdictions to support consistent national environmental standards. This includes the introduction and review of NEPMs, Australian Standards and other relevant national standards.

In the longer term, further consideration should be given to whether a new ‘fast track’ mechanism is needed to help ensure that cross-references from statutory policies to national standards (for example, National Water Quality Guidelines and Australian Standards) remain current. Any such new mechanism would need to include appropriate safeguards. A new mechanism may not be needed if recommendation 14 is implemented.

6.6 Challenge of linking statutory policy to strategic planning

Statutory policy and broader strategic planning outcomes critically interface in regional and strategic planning exercises. A number of submissions identified the ongoing challenge of linking statutory policy to broader strategic planning exercises often involving a number of departments and agencies. For example:

- The Metropolitan Waste Management Group’s submission156 stated: ‘The key to actively integrating allied acts and policies is maintaining an open dialog across state portfolios and local government, particularly at this time when so many varying elements are being reviewed.’

154 COAGCommuniqué,19August2011http://www.coag.gov.au/coag_meeting_outcomes/2011-08-19/index.cfm155 EnvironmentandWaterMinistersCommuniqué,16September2011http://www.ephc.gov.au/156 MetropolitanWasteManagementGroupsubmission,p.2

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However the MWMG identified: ‘A key challenge for the MWMG and councils is to find, identify and nominate sites for future waste infrastructure and facilities. Maintenance of appropriate buffer distances to sensitive uses is essential. EPA is yet to define and map buffer distances for each of Melbourne’s landfills and resource recovery facilities and this needs to be a priority. Across Melbourne significant EPA regulatory and community engagement resources are being committed to odour and amenity concerns of communities adjoining these facilities and waste infrastructure.’

Further they argued that: ‘Innovation is not being captured and enabled by the EPA. Clearly the triggers within the EPA for revisions and new guidelines and policies are lagging and slow to adapt. They are well behind advances in technology and foreseeable need. This results in costly delays for industries and great uncertainty leading into tender processes around EPA approval requirements.’

6.6.1 Challenge of the Transport Integration Act 2010 and a principles-based regulatory approach

Comment from the former Department of Transport157 has raised the concern about how well a segmented approach to the statutory policy framework meets the environmental and transport needs of present and future Victorians.

- The submission stated: ‘It would be useful to provide a new overall framework for the State Environment Protection Policies (SEPPS) to fit into. The framework could be based on achieving a sustainable balance between social, economic and environment factors. Such an approach would provide an important context for how SEPPs should be applied to major projects with significant benefits in all three areas.’

- The submission also called for greater clarity and coordination at a central government level on implementation of environmental controls for issues that are covered by SEPPs/WMPs. In particular the requirements of SEPPs and implementation of the Environment Effects Act 1978 and Planning and Environment Act 1987.

6.6.2 Integrated decision making under the Environment Effects Act 1978

Statutory policies under the EP Act are an important input for the assessment of impacts of proposals under the Environment Effects Act 1978158. Environmental effects assessment processes require proponents to undertake significant assessment of the integrated impacts of proposals against the principles of Ecologically Sustainable Development. For example, the Ministerial Guidelines for Assessment of Environmental Effects under the Environment Effects Act 1978 state159:

‘These guidelines incorporate the following specific principles of best practice:

- a systems approach to identifying, assessing and managing potential environmental effects to ensure that relevant effects and responses are considered

- a risk-based approach to ensure that required assessment, including the extent of investigations, is proportionate to the risk of adverse effects

- an integrated perspective of the relationship between, and significance of, different effects to inform decision making

- the need to assess the consistency of proposed works with principles and objectives of ecologically sustainable development.’

The environmental standards and provisions in statutory policy are an important input that inform subsequent integrated decision making. The Ministerial guidelines describe integrated assessment of environmental performance. The interesting clarification is that while statutory provisions may provide some criteria, often the criteria are dependent on the context of the development. For example:

‘Assessment might involve the use of performance criteria to address particular effects or risks. While some such criteria will be available under applicable statutory provisions, criteria for some matters

157 DepartmentofTransportsubmission,p.2158 MinisterialGuidelinesforAssessmentofEnvironmentalEffectsundertheEnvironment Effects Act 1978,June2006,p.30159 Ibid,p.3

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may need to be developed in the specific context of the project and its likely effects. Performance criteria will help to guide studies and provide a clear framework for management of environmental effects160.’

A critical challenge is for the beneficial use values and environmental quality standards in statutory policies to be effectively used in integrated strategic planning exercises, in the context of particular developments. The assessment processes under the Environment Effects Act 1978 point to one potential approach to this challenge.

Refer also to section 2.5 and 2.6 discussion of ‘net environment benefit’.

160 Ibid,p.19

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CHAPTER 7. ACCOUNTABILITY, MANAGEMENT AND PERFORMANCE

A key challenge and opportunity is to demonstrate the value that statutory policy provides in terms of environmental improvements, relative to any compliance and administrative burden they impose. There is scope to improve the evidence, metrics and accountability for measuring the value of statutory policies, and the broader environment protection framework, in terms of environmental outcomes. There may be value in further developing metrics to measure, not only the regulatory efficiency of statutory policy through the Policy Impact Assessment process, but also the effectiveness of statutory policy in achieving environmental outcomes.

Key proposals include:

- designation of key lead agency for statutory policy development and review

- actions to improve policy administration and management

- appointment of an advisory committee on environmental standards to provide scientific advice

- regular public reporting requirement on achievement of environmental objectives and standards.

7.1 Introduction

Historically EPA has been responsible for establishing and managing environment protection policies. Management of policy includes working with responsible agencies and departments on the delivery of programs associated with statutory policy objectives. The range of involvement of EPA in the management of policy is currently varied. Some policies have little or no active management or associated programs while others have had considerable resources allocated over time.

The attainment programs within statutory policy are intended to outline approaches and measures by which the policy objectives will be achieved. In practice there is a huge variety of clauses within attainment programs; varying from those clauses or controls that establish the ‘rules’ by which the authority will make decisions, those that establish minimum levels of allowable discharge and emissions to those that require a role by delivery agencies, which are more ‘programmatic’ in nature.

However, to enable effective implementation, standard setting and review of policy is critical to ensure efficient but effective accountability and management of policy, operating within the resource constraints of the EPA, the DEPI and partner agencies.

Critical questions fall into three main themes:

Accountability - what are the current governance arrangements, that is, who currently tracks and ensures implementation of policy within the EPA but also in other agencies with responsibilities under statutory policy?

Management – what prompts or informs a review of policy and how do we maintain currency of policies?

Performance - how is effectiveness and efficiency of policy measured and reported against?

7.2 The problem

Evidence from consultations, other research and analysis

A number of submissions highlighted the need for improved accountability for the performance of statutory policy.

For example:

- The Association of Victorian Regional Waste Management Group’s submission161 stated: ’EPA should provide accountability for attainment and targets of SEPPs and ensure SEPPs are maintained and up-to-date.’

161 AssociationofVictorianRegionalWasteManagementGroupssubmission,p.2

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- Mornington Peninsula Shire Council162 suggested: ‘The EP Act should be amended to require review of statutory policies every five years.’

A number of submissions suggested greater transparency of decisions made by EPA was needed. For example:

- Metropolitan Waste Management Group’s submission163 stated: ‘Greater transparency is needed in the decisions made by EPA across statutory policies. This will improve, retain and provide the rationale for the scientific basis of objectives and standards. Currently transparency is lacking.’

- The Australian Contaminated Land Consultants Association164 (ACLA) also suggested transparency was a problem: ‘There has been a certain level of inconsistency in the decisions made by EPA with reference to similar projects over time. The difference in decisions is not clear and they may be due to the varied interpretation of the applicable SEPPs or the inconsistency of wording. The US EPA publishes its record of decisions, clearly stating the process taken to arrive at the decision. This type of publication may assist the industry (in Victoria)... publishing decisions may also assist EPA with a level of transparency.’

Some submissions identified that clarification of accountability for water quality management was important. For example:

- ‘The role of SEPPs in catchment management needs to be more explicit and EPA needs to be more actively involved in this area, as currently there is no accountability for water quality management. No one agency has primacy for the management of water quality165.’

A challenge for the EPA is whether it should have the role to ensure accountability of other agencies against the requirements or roles outlined in policy. In effect the regulator would be holding departments and agencies to account. Statutory policy is not owned by the EPA but EPA is the ‘custodian.’

Some of the existing statutory policy under the EP Act and associated guidance material (incorporated/referenced documents) are out of date. Attainment programs across most policies have not been fully implemented and policy effectiveness is not being effectively monitored. While some management of individual policies is occurring, this is not currently standard practice.

VCEC argued in its 2009 report on environmental regulation that aspects of the organisational architecture for environmental regulation needs improvement.

The Commission has argued for example, that regulatory bodies should not be responsible for policy and the Commission has recommended that the Government shift the primary responsibility for developing new regulatory proposals from EPA Victoria to DSE (now DEPI)166.

VCEC also noted in its 2009 report on environmental regulation that recurring themes across much of Victorian environmental regulation included the need to clarity objectives, improve accountability, and implement performance monitoring and evaluation frameworks167.

In summary:

Accountability - implementation of statutory policy is not currently coordinated across government. It is unclear who holds agencies to account for undertaking roles identified in policy or who reports on action in accordance with policy.

Management - lack of ‘active management’ of statutory policies to maintain their currency, continually improve and ensure reviews are informed by new developments and emerging issues in a structured way.

Performance - currently weak evidence base to inform review of policy performance, and to ascertain whether

162 MorningtonPeninsulaShireCouncilsubmission,p.12163 MetropolitanWasteManagementGroupsubmission,p.2164 AustralianContaminatedLandConsultantsAssociationVictorianBranchsubmission,p.5165 GoulbournMurrayRuralWaterCorporationsubmission,p.3166 VCEC2009, A Sustainable Future for Victoria, Getting Environmental Regulation Right, Overview and Recommendations,p.40167 Ibid,p.38

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statutory policies are demonstrating value, are efficient or cost beneficial.

7.3 Objectives

Three objectives relating to accountability, management and performance have been noted:

• The policy cycle for statutory policy including stages not only for the development and review of policy but also stages involving implementation, coordination of delivery, reporting, evaluation and assessment.

• Clear accountability and management of statutory policies to ensure policies are implemented, monitored and reviewed.

• Strategic management of statutory policy with monitoring and assessment of the effectiveness of the policy to protect and maintain environmental quality standards.

7.4 Driving accountability through role definition and improved administration

Establishing the clarity of the separation of policy and regulation between DEPI and the EPA is an important task. The Victorian Government has agreed that DEPI should have primary responsibility for policy advice as it relates to regulatory proposals under the EP Act in consultation with EPA Victoria.

The 2009 VCEC inquiry into environmental regulation168 identified areas in which policy development and implementation are insufficiently separated.

VCEC noted:

‘EPA Victoria is responsible for developing state environmental protection policies and waste management policies that set environmental standards that businesses must meet, and is also responsible for implementing these policies through licensing, works approval and through regulatory activities. The Commission has recommended that the Government shift the primary responsibility for developing new regulatory proposals from EPA Victoria to [the former] DSE169.’

VCEC made the following recommendation:

Recommendation 10.5

‘That the Victorian Government shift the primary responsibility for preparing new regulatory proposals from EPA Victoria to the [former] Department of Sustainability and Environment170.’

The Victorian Government supported in principle the VCEC recommendation with the following comment:

‘In principle this already exists, as the [former] Department of Sustainability and Environment has primary responsibility for providing policy advice and EPA Victoria provides technical input to regulatory development. The Victorian Government accepts the principle that regulatory agencies should not have primary responsibility for the provision of policy advice, and this should be the role of the relevant government department.

DSE (now DEPI) will continue to have primary responsibility for policy advice on the development of regulatory proposals relating to the Environment Protection Act 1970. Such advice will be developed in consultation with EPA Victoria. The Government will work with EPA Victoria to review existing regulatory and administrative setting, agree on an annual regulatory program and make whatever changes are appropriate to ensure that this arrangement is put into effect by June 2010171.’

In mid-2010 the former DSE [now DEPI], EPA and Sustainability Victoria (SV) Coordination Committee (DESCC) (formerly Forward Legislative Agenda Steering Committee) was established. This committee is the formal mechanism

168 VCEC, A Sustainable Future for Victoria: Getting Environmental Regulation Right,July2009169 Ibidp.40170 Ibidp.64171 Victorian Government Response to VCEC’s Final Report, A Sustainable Future for Victoria: Getting Environmental Regulation Right,January2010,p.32

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by which the DEPI and the EPA are consulting with each other to determine the timetabling of legislative initiatives and amendments. Discussion concerning the roles of the Department and the Authority regarding providing policy input and advice versus development and implementation of statutory policy (standards or regulation) has been informed by the principles outlined above, and to this end the former DSE and EPA signed the Forward Legislative Agreement (FLA) in August 2010.

The FLA states that DSE (now DEPI) has primary responsibility for providing advice on environment protection policy and the development of resulting legislative proposals, while the EPA provides technical, standard setting and operational input. This means that DEPI has primary responsibility for the review of individual statutory policies (and other subordinate legislation).

7.4.1 What are the implications?

The changed roles of EPA and DEPI in the management of statutory policy has significant implications for both organisations. Much of the reviewing of statutory policy work (from planning and initial consultation to final policy approval and gazettal) performed in the past by the EPA would instead need to be performed by DEPI. DEPI and EPA are working to ensure that there is capacity, resources and experience to perform these tasks.

The EP Act contains a statutory duty for the EPA to initiate reviews of policies. Depending on the interpretation of ‘primary responsibility’ it may be necessary to amend the Act to make DEPI the responsible entity, if the FLA is to be followed strictly.

7.4.2 Coordination of implementation plan development and delivery

Evidence from stakeholders and analysis of existing polices is suggesting there are important steps in the policy cycle that are not being adequately addressed in the management of existing policy. Evidence suggests that these management gaps are limiting the effectiveness of statutory policy management and delivery.

As outlined in chapter 5, the proposed model involves an implementation plan for each statutory policy, rather than a detailed attainment program. Recommendation 3 puts forward two options for such implementation plans and for public reporting against them.

7.4.3 Improved administration

EPA has already begun improvement to the internal administration of policy, conducting a risk audit of two major segment statutory policies (SEPP Air Quality Management and SEPP Waters of Victoria). The actions below outline a number of administrative steps that could be taken to greatly improve the management of statutory policy within the Authority and in the broader portfolio. These actions represent ‘quick wins’ to improve the management of policy, being relatively easy to implement.

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Recommendation 9

That DEPI has primary responsibility for the development and review of statutory policies, while EPA provides technical, standard setting and operational input, in line with the separation of policy and regulatory roles. As part of the identification of specific roles and accountabilities, DEPI and EPA agree on a five year rolling work program for individual policy review and reform.

This work program should address the roles and responsibilities for the review and management of statutory policies as recommended by this review, including consolidation of the number of policies.

A number of suggestions for improving the administration of policy support this recommendation. They include:

- Management of documentation: Establishing procedures and accountability for the management of all documentation used in setting environmental standards (including statutory policy documents, guideline documents and associated regulation documents). This includes management of the document review and updating processes.

- Map policies and guidelines: Establishing and maintaining a ‘map’ of how statutory policies and guidelines relate. This includes identifying overlaps and prioritising the need for amendments to guidelines or statutory policies (as per the Guidelines Audit scope).

- Audit regulatory regime: EPA auditing its compliance, licensing and works approval decisions, and conditions for adherence to statutory policy requirements and objectives.

Section 19 of the EP Act currently requires EPA to review statutory policies within 10 years. In the longer term, as part of the consideration of broader reforms to the EP Act, the EP Act may need to be amended to reflect these administrative changes in responsibility across the environment portfolio.

7.5 Driving accountability through reporting requirements

Currently, statutory policy is not directly enforceable in its own right and there is no direct penalty associated with non-compliance against statutory policy objectives. Penalties can be issued by the EPA using other regulatory or penalty provisions in the Act, for example penalties for breach of licence or works approval conditions or penalties for a pollution event. While statutory policies are used to define licence conditions or are used to define whether ‘pollution’ has occurred, the penalties are through other powers in the Act. Stakeholders have been somewhat critical of this, arguing that the environmental quality objectives in statutory policy have been viewed as being aspirational, as there is no consequence for not achieving the objectives.

One approach to building accountability in statutory policy is through public reporting, as is required for the NEPM for Ambient Air Quality under the National Environment Protection Act 1970. In this case, accountability for meeting standards lies in public reporting; that is, there are no penalties associated with non-compliance. Jurisdictions are only required to evaluate their performance against NEPM standards and goals and report the results to the NEPC each year.

Currently, a number of statutory policies state that EPA will report annually on the implementation of the particular statutory policy, and responsible agencies will also include reporting on actions under the statutory policy in their own annual reports. However, this annual reporting has not occurred as a regular practice. One of the criticisms of the NEPM approach is that reports are not accessible or effective. Carefully considering the language and level of technical content in public reporting is important to ensure that the target audience can access and understand the information.

This review supports regular public reporting. One option is to amend the EP Act to establish a requirement for annual reporting against the environmental quality objectives within a statutory policy, with a report required to be tabled in Parliament and made available on the DEPI or EPA website. A suitable reporting protocol should be developed at the time of making or reviewing an individual statutory policy. The reporting would at a minimum report on assessment of performance against the standards or environmental objectives, provide data on progress towards the standards or goals, data on ‘exceedances’ or breach of standards, and also information on action taken to address non-achievement

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of standards or annual goals.

It will be important to align this proposal for annual compliance reporting with current EPA and Department environmental assessment and reporting activities. Currently both the EPA and the Department commit resources and effort to ongoing environmental monitoring and assessment. It would be important to build and enhance this effort rather than duplicate. See also chapter 5, which sets out two options for implementation plans and public reporting approaches.

Recommendation 10

That there be regular (perhaps five yearly) public reporting against the environmental quality objectives and implementation plan commitments for each statutory policy. To build continuous improvement, appropriate performance and evaluation metrics be developed for current and new statutory policies to measure both the environmental and regulatory effectiveness and efficiency of statutory policy.

The following elements are priorities to improve the reporting approach:

- outlining the lead agency and suitable protocol for measurement and reporting in the implementation plan for each statutory policy

- making the public reports available on the EPA or DEPI website. Giving consideration to making reporting against environmental quality objectives part of EPA’s annual reports (perhaps every five years)

- developing appropriate performance and evaluation metrics for current and new statutory policies to measure both the environmental and regulatory effectiveness, and efficiency of each statutory policy.

As with the implementation plans outlined in recommendation 3, these reporting approaches could be developed in the first instance administratively under the current EP Act. In the longer term, it would be preferable to formalise reporting in the EP Act as part of any broader reforms considered for the EP Act.


7.6 Driving accountability for environmental standards

Another mechanism to build accountability for environmental objectives is to address ‘at risk’ areas, or areas where there is a decline in environmental standards. A mechanism to build this accountability is to require statutory policy to build in a ‘trigger’ to address decline in standards or presentation of an environmental problem that breaches the statutory policy environmental objectives. The trigger would be a metric or indicator value, which if reached, would require certain actions by the Government or Authority. The trigger could require preparation of an environmental audit and risk assessment, and if necessary, development of an environmental improvement plan.

Such a concept would need to work with and not duplicate existing powers conferred on the EPA under the EP Act. For example, currently the EP Act gives powers to the Authority to address pollution events under a number of circumstances (see Table 10 of current EPA remedial powers), as well as a well established process and standards for environmental audit. Clearly a distinction would need to be developed between pollution events and assessment of long term decline in environmental standards that might trigger the need for a response.

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Table 10 – Current EPA remedial powers

Current EPA remedial powers under the Environment Protection Act 1970173

Are used in respect to or when:

Directions Theseareissuedundersection62BoftheActtoimmediatelystopanactivity,addressanincidentorundertakeanactivity

– pollutantshavebeenorarebeingreleased–pollutionislikelytohappen–industrialwasteorpotentiallyhazardousmaterialhas

beenabandonedordumped–industrialwasteorpotentiallyhazardousmaterialis

beinghandled.

Pollution Abatement Notices (PAN)

Areissuedundersection31AoftheAct,tocontrolaprocessoractivity,ortopreventorrectifyanincident.APANincludesconditionswhichrequiretherecipienttostopormodifyanactivityorprocess.PANscanbeusedatsiteswherestoppinganactivityorprocesswillleaveanissuerequiringongoingmonitoringandevaluation.

– apersoncausesormaycausepollution,includingunreasonablenoise

– apersoncausesormaycausenon-compliancewithregulations,licenceorpermitconditionsorotherlegalrequirements

– apersoncreatesormaycreateanenvironmentalorhealthrisk

– apersonissubjecttoanenvironmentimprovementplanundersection31CoftheAct

– apersoniscausing,ormaycause,noiseconsideredunreasonableinthecircumstances.

Minor Works Pollution Abatement Notices (MWPAN)

Areissuedundersection31BoftheAct,andareusedtocontrolaprocessoractivityorpreventorrectifyapollutionincidentinurgentsituations.Theycomeintoeffectimmediatelyonceissued.

MWPANisusedinthesamecircumstancesasaPAN(refertoprevioussection),however:– theexpectedcostforcompliancewillnotexceed

$50,000– urgentactionisrequired.

Clean Up Notices Areissuedundersection62AoftheActtocleanup,orrequireongoingmanagement,wherepollutionhasoccurredorislikelytooccur.

Maybeusedforanycleanupactivityandmaybeissuedto:– theoccupierofapollutingsiteorasitefromwhich

pollutionhasoccurred– apersonwhocausedorallowedpollutiontooccur– anypersonwhohasabandonedordumpedindustrial

wasteorapotentiallyhazardoussubstance– anypersonhandlingindustrialwasteorapotentially

hazardoussubstance.

172

The Act also has provision for environment improvement plans in s.31C that can be applied to a particular industry or duty holder. A number of WMPs and major segment statutory policies also already have provisions that under certain circumstances require the preparation of environment improvement plans. For example:

- IWMP Ozone, clause 24(1) states industry may submit an environment improvement plan, followed by clause 24(2) that states EPA may require this to be done.

- In SEPP Air Quality Management, clause 16(3) states a generator of emissions may undertake a risk assessment, followed by clause 16(4) that states EPA may require this to be done.

- SEPP Air Quality Management, clause 31, provision for EPA to develop Air Quality Improvement Plans, the purposes of which include identifying actions that will enable SEPP AQM’s environmental quality objectives to be met, and to promote continuous improvement in air quality.

172 EPAwebsite:http://www.epa.vic.gov.au/compliance-enforcement/powers/pan.asp

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- SEPP N-1 clauses 17A – 17B, provides for environment improvement plans where EPA is satisfied there are no practicable means currently available for a commercial, industrial or trade premises to comply with SEPP N-1’s environmental quality objectives. The plan is required to include a description of the proposed or likely reduction in noise levels over its lifetime (effectively ‘targets’).

The idea behind a ‘trigger’ built into statutory policy to address ‘at risk ‘ areas or a decline in standards stems from the US Federal EPA ‘anti-degradation’ law, which establishes legal and statutory consequences for states for a decline in ambient standards against baseline. US EPA guidance states:

‘The basic purpose of a state or tribal antidegradation program is to promote the maintenance and protection of existing water quality. Under this program ‘waters of the United States’ are typically provided antidegradation protection based on a system of three different levels, or tiers….

Antidegradation recognises that existing water quality has inherent value worthy of protection. Thus, unlike other aspects of water quality standards that are directed towards attainment of fully-protective levels of water quality (as defined by the applicable criteria), the purpose of antidegradation is to maintain and protect existing levels of water quality173.’

The other challenge for this concept is linking any potential ‘trigger’ to the proposed statutory policy implementation plan development and reporting requirements. The linkages here would need to be twofold. First, aligning any ‘trigger’ to the development of appropriate annual goals or targets in implementation plans. Secondly, annual reporting on compliance against environmental objectives and implementation plan actions could be used in potential assessment of whether a particular trigger has been reached. An additional layer of complexity, different for each major segment, is what an appropriate trigger might be.

The assessment could result in a variety of actions, including; undertaking an environmental audit or risk assessment, developing an environment improvement plan, amendment of the statutory policy’s implementation plan, amendment of targets in a non-statutory strategy document, or a recommendation to review the statutory policy.

Other factors to consider in developing this approach:

- the need to involve and convene existing agencies and networks, rather than duplicate existing processes or where agencies are already addressing issues.

- the need to determine criteria or an approach that helps in prioritising areas to address.

- keeping the approach relatively simple rather then build a complex set of criteria on top of existing ambient standards.

Such a ‘trigger’ would provide governments and communities with an important signal that environmental quality objectives in statutory policy are not just aspirational but important and legally binding. The ‘trigger’ point would be a useful approach to addressing areas ‘at risk’ or experiencing serious decline in ambient environmental standards. In exploring these concepts it would be useful to examine and build on the technical concepts and approaches in the SEPP Air Quality Management. SEPP Air Quality Management defines ‘intervention levels’ for a selected group of air quality indicators. ‘Intervention levels’ can be used to assess monitoring data on local air quality174.

173 USEPARegionVIIIGuidance:AntidegradationImplementationUS.Requirements,Options,andEPARecommendationsPertainingtoState/TribalAntidegradationPrograms,August1993

174 PolicyImpactAssessment:VariationstoSEPP(AirQualityManagement)andSEPP(AmbientAirQuality),EPAPublication826,January2002,p.34

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Recommendation 11

That EPA and DEPI consider the use of targets or values within statutory policies, set relative to ambient environmental standards, that would provide a measurable point that if not achieved, would then require assessment by EPA or DEPI.

(See also recommendation 1).

7.7 Improving and reviewing environmental standards

A number of statutory policies (SEPPs, WMPs etc) under the EP Act are due or overdue for review. Additionally, a body of ongoing work on a number of NEPM review processes is continuing. .

Considerable scientific work needs to be done ahead of the formal reviews of some individual statutory policies, regardless of which agency takes primary responsibility for reviewing statutory policies.

In considering these processes, it is important to keep in mind EPA’s role as an independent environmental regulator. It is important that EPA retains the ability to make recommendations on the setting and updating of the standards contained in statutory policy, based on science.

An initiative to drive continuous improvement and to provide scientific and strategic advice on the development of Victoria’s environment standards and objectives is the establishment of a suitably qualified and expert advisory committee.

Recommendation 12

That EPA and DEPI establish an advisory committee on environmental standards (either statewide or environmental segment specific) to advise EPA and DEPI executive on, and to drive continuous improvement in, Victoria’s environmental standards. The committee would draw on internal government and external technical and scientific expertise, and could involve DEPI’s Chief Scientist.

It is envisaged that this committee would advise on the following areas:

- key new scientific knowledge and developments relevant to environmental standards

- environmental quality standards and monitoring and measurement methodologies

- performance/effectiveness measurement (progress towards achievement of scientific standards)

- gaps, issues, directions and areas for priority attention for Victoria’s environmental standards.

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CHAPTER 8. IMPROVING THE STATUTORY POLICY DEVELOPMENT PROCESS

There are significant opportunities to improve community engagement with statutory policies, and the formal legal process for making and reviewing statutory policies.

Community engagement

Statutory policy seeks to put into law what Victorians value in the environment, so it needs to be communicated in a way that Victorians can relate to and debate.

The language of ‘beneficial uses’ and ‘environmental quality objectives and indicators’ is not readily accessible or familiar to the broader community. Neither is the formal consultation process for statutory policy development; that is, seeking formal written comment on a discussion paper, then on a lengthy draft policy impact assessment and a draft statutory policy document.

When we make or amend statutory policies, our engagement with the community needs to be in tune with the principle of accountability under the EP Act.

Accordingly, the review recommends that EPA and DEPI provide the community with improved opportunities to engage in statutory policy development and review by using participative and accessible approaches.

Alignment with the process for making other legislative instruments

The formal requirements for making statutory policies have changed and become more onerous over time. They are now much more similar to the requirements for making Regulations. For example, EPA has committed to seeking the Victorian Competition and Efficiency Commission’s independent assessment of draft policy impact assessments and draft statutory policies, as it does for draft regulatory impact statements and draft Regulations.

This review recommends aligning the formal process for statutory policy development with the formal process for making other legislative instruments under the Subordinate Legislation Act (SLA). This will result in there being one process in legislation rather than two. It will also allow for quicker amendments where they are more than declaratory, machinery or administrative in nature, but are not likely to impose a significant economic or social burden on a sector of the public.

Recognising the continuing need for environmental quality standards, the review recommends retaining the current distinction between Regulations sunsetting after 10 years and statutory policies not sunsetting (but requiring review). The ability to incorporate National Environment Protection Measures also needs to be retained.

8.1 Community engagement

8.1.1 Context

Statutory policy seeks to put into law what Victorians value in the environment, so it needs to be communicated in a way that Victorians can relate to and debate.

The language of ‘beneficial uses’ and environmental quality objectives and indicators is not readily accessible to the broader community. Neither is the formal consultation process for statutory policy development, that is, seeking formal written comment on a discussion paper, and then on a lengthy draft policy impact assessment and a draft statutory policy document.

When we make or amend statutory policies, our engagement with the community needs to be in tune with the principle of accountability under the EP Act.

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EP Act section 1L

Principle of accountability (1) The aspirations of the people of Victoria for environmental quality should drive environmental improvement. (2) Members of the public should therefore be given - (a) access to reliable and relevant information in appropriate forms to facilitate a good understanding of environmental issues; (b) opportunities to participate in policy and program development.

This review has considered a range of questions relating to community engagement with statutory policies, including:

- How can we interest and best engage with the community in the development and review of statutory policies (for example, community workshops, open house format, surveys, social media)? What can we learn from consultation methods recently used for other purposes by EPA175?

- Statutory policies, starting with their articulation of beneficial uses, are currently foundational to what is protected in law in the Victorian environment. How can we best communicate this foundational role?

- There are lots of communities and lots of different and, at times, conflicting views on the uses of the environment that should be protected and enhanced. How do we ensure different communities are involved and different views are fairly represented?

- How do we involve both individuals in the community as well as representatives of community and environment groups?

- Which part or parts of statutory policies will ‘communities’ most readily relate to and provide the most valuable feedback on? Perhaps the uses of the environment that they value and want protected and enhanced (beneficial uses)? Perhaps specific standards and requirements on industry/emitters in their locality?

Anecdotally, there is a very low level of understanding about statutory policies in the community. A consultant working in the environmental industry engaged in this review commented that it was the first time he had heard of statutory policy after 20 years of working on environment protection projects176.

Statutory policies are potentially a powerful tool for EPA to be referring to in dialogue with the community. Their role should be considered as part of EPA’s strategy for community engagement. This should be linked to educating the community on environmental quality, environment protection issues and EPA’s role in establishing standards that reflect their values.

8.1.2 Compliance and Enforcement Review - consideration of community engagement

EPA’s recent Compliance and Enforcement Review emphasised the importance of community engagement (not just industry and government engagement) when standards and policies are developed:

‘… it is clear from the EP Act, its principles and the consultations undertaken, that business and the community both have legitimate claims to consultation and participation in EPA’s policy and program development, and to be informed of its regulatory activity…

EPA has recently commenced engaging with the community and providing more formal avenues of engagement and consultation that extend beyond transactional involvement in individual matters, such as works approval applications. This is to be commended. In time, I expect that these networks and arrangements will lead to more constructive dialogue and opportunities for three-way collaboration between government, business and the community in the work of EPA.

This engagement would include ways of participating in policy and regulatory development, by providing opportunities for consultation and including representative bodies on stakeholder groups177.’

175 E.g.theworkshopsusedtodeveloptheEnvironment Protection (Industrial Waste Resources) Regulations,orthestory-gatheringprocessusedtogatherinformationabouthowresidentialnoiseaffectstheVictoriancommunity(Residents’ noise stories,EPApublication1235,June2008)

176 Seealsothe2005reportfortheMunicipalAssociationofVictoriaonlocalgovernments’knowledgeandimplementationofSEPP(WoV)177 StanKrpan,EPA Compliance and Enforcement Review,p.297

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The Compliance and Enforcement Review recommended (as recommendation 20.1):

‘That EPA establishes a protocol for stakeholder participation in standard and policy setting. The protocol should include opportunities to participate in the development of regulatory standards and compliance guidance178.’

EPA has accepted this recommendation, which encompasses statutory policy development as well as Regulation and guidance development. EPA’s Community and Stakeholder Engagement Unit is currently working on its implementation.

8.1.3 Consultation feedback in this review

As part of the consultation for this review, Environment Victoria and the Environment Defenders Office hosted a roundtable discussion for environment group representatives and community stakeholders179. A number of suggestions were put forward for engaging the community when statutory policies are made, amended or referenced elsewhere, including:

- setting up an advisory or reference group early in the review process, enabling interested people to consider the parameters and scope of the review

- including broad stakeholder representation so as to strengthen the advisory or reference group – that is, industry and scientific experts, as well as community stakeholders

- establishing both regional groups and a state-wide advisory group, with regional groups electing a representative for membership on the state-wide advisory group

- asking children, for example, through a competition, what they enjoy being able to do in the environment (as a creative way of exploring ‘beneficial uses’)

- the need for community representatives to have genuine input into decisions – for example, a citizens’ jury is a model that gives the community a greater say and level of responsibility in decision making

- using common measurement units, for example, if a SEPP sets a standard for particulates in grams per cubic metre (g/m3), EPA’s guidance materials and related works approval applications should also use this measurement unit.

Recommendation 13

That EPA and DEPI provide the community with early and improved opportunities to engage in statutory policy development and review, by using participative and accessible approaches.

The following are suggested areas of focus to improve accessibility for the community, and to support strong community engagement and participatory approaches:

- when SEPPs are developed or reviewed, expressing ‘what we want to protect in the environment’ (the ‘beneficial uses’ in SEPPs) as a story or vivid vision to better engage a non-technical audience

- as part of the implementation of the Compliance and Enforcement Review recommendation 20.1, EPA and DEPI developing a community engagement model for statutory policy development

- to improve engagement with the community and other stakeholders, establishing advisory/reference groups for individual policy reviews, with a cross section of representatives from the community, industry and government, and including scientists and regional representatives as appropriate.

8.2 Alignment with Regulation-making process

As noted in section 4 of this report, the formal requirements for making statutory policies have changed and become more onerous over time.

178 EPA Compliance and Enforcement Review,recommendation20.1179 Thistookplaceontheeveningof26July2011,at60LeicesterStreetCarlton

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There are good arguments for amending the EP Act to align the formal process for statutory policy development with the formal process for making other legislative instruments under the Subordinate Legislation Act 1994 (SLA):

- The process for making Regulations under the SLA is slightly less lengthy – the required consultation period is 28 days, rather than three months, and there is no requirement to provide a written response to each formal comment received. This would make it slightly easier to update statutory policies.

- As noted (in section 4.1), EPA has committed to seeking VCEC’s independent review of draft policy impact assessments and draft statutory policies (as is done with draft regulatory impact statements and draft Regulations). This reduces the rationale for having two separate development processes.

- Having one process in legislation rather than two, integrating government processes.

- The SLA provides greater scope than the EP Act for ‘fast-tracking’ amendments where they are more than declaratory, machinery or administrative in nature but are not likely to impose a ‘significant economic or social burden on a sector of the public’. This will also make it easier to update statutory policies.

Queensland changed its legislation to adopt this approach several years ago180. As a result of this change, Queensland’s statutory policies now also sunset, as their Regulations do, after 10 years. However, this review does not recommend that Victoria’s statutory policies should sunset after 10 years. The ‘goalposts’ (beneficial uses, environmental quality objectives and indicators) in statutory policies are foundational to our environment protection framework, and there is a continuing need for them. They should not be subject to the risk of sunsetting; they have an ongoing need to be retained, with certainty, in law. Instead, the improved governance recommended in this review will support reviews being undertaken more regularly so that statutory policies remain relevant and up-to-date (see chapter 7).

Recommendation 14

That EPA and DEPI streamline the formal process for the development of statutory policies by aligning the process with the formal process for developing other legislative instruments under the Victorian Subordinate Legislation Act 1994.

The following approaches should be considered in support of this recommendation:

- recognising the different nature of the standards and obligations in statutory policies, retaining the current distinction between Regulations sunsetting after 10 years and statutory policies not sunsetting (but requiring review within 10 years). Retention of the current practice of statutory policies not sunsetting is consistent with other legislative instruments in Victoria.

- maintaining the ability to incorporate a NEPM into statutory policy, without requiring a further consultation process. (This is currently provided for by sections 17A and 18A of the EP Act. It may be able to be provided for by the Subordinate Legislation Regulations).

- to ensure consistency and integration between policies, when a statutory policy is reviewed, giving consideration to whether the objectives or requirements in other related statutory policies also need to be reviewed.

180 Queensland’sEnvironmental Protection Act 1994statesthatitsenvironmentalprotectionpoliciesaresubordinatelegislation(s.33).Asaresult,therequirementsintheStatutory Instruments Act 1992(Qld)apply.

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CHAPTER 9. IMPROVING ACCESSIBILITY, USEABILITY AND GUIDANCE

VCMC support the principle of ‘a clearer and more transparent framework that stakeholders can easily use to understand their legal obligations and obtain information’

Victorian Catchment Management Council

Accessibility and useability

Statutory policies contain important information for a wide range of users. This information includes environmental quality standards, specific requirements on industry and rules for decision makers. However, policy users and stakeholders report often finding current statutory policies unclear, overly complex, long and difficult to navigate and understand, and, at times, inconsistent with other policies, instruments and standards.

A majority of submissions supported the suggestions set out in the discussion paper to improve the accessibility of statutory policies. This includes:

1. publishing a consolidated version of each policy

2. avoiding repetition and jargon

3. publishing a ‘user’s guide’ to each policy

4. consolidating the number of statutory policies, for example, perhaps combining the WMP Ozone and the two air SEPPs into a single air SEPP.

The review additionally recommends improving the use of internet and web-based approaches to make statutory policy accessible to a range of different stakeholders and users, with a continued focus on the ‘user interface’.

Improving guidance

Statutory policies refer to a wide variety of ‘third level’ documents and guidance that set out or explain statutory policy obligations in greater detail. These include protocols for environmental management (PEMs), guidelines for environmental management (GEMs), best practice environmental management guidelines (BPEMs), assorted codes of practice, Australian and New Zealand guidelines and Australian standards. Policies often provide for guidance to be developed by EPA (and other agencies) after the policy has been made.

The hierarchy and legal status of these documents is often unclear. EPA’s Compliance and Enforcement Review also highlighted these issues and recommended that EPA:

‘… clearly articulates a hierarchy for statutory and non-statutory guidance that would explain the purpose for when each type of guidance is provided and adopt a clear naming convention that would be applied consistently to its publications. The hierarchy and naming conventions would make clear the legal status of the publication.’

EPA has accepted and is now working on implementing this recommendation.

Consultation in this review confirmed a strong call to clarify the hierarchy and legal enforceability of the ‘third level’ guidance material that relates to statutory policy.

Other regulators have similarly realised they had, over time, produced too many different types of guidance materials, causing confusion for industry and other users.

As well as implementing the above Compliance and Enforcement Review recommendation, this review suggests that EPA publish a webpage that summarises the legal status of its different types of documents, as has been done by EPA SA.

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9.1 Introduction

Policy users and stakeholders report finding current statutory policies unclear, overly complex, long and difficult to navigate and understand, and at times inconsistent with other policies, instruments and standards.

Statutory policies will be more accessible if they are made easier to navigate, use more consistent language and are shorter documents that avoid repetition. Industry, business and the community need to be able to readily find, access and understand statutory policy.

9.1.1 Businesses

By setting minimum standards to protect the environment, statutory policies aim to establish a ‘level playing field’ for Victorian businesses to operate in and to provide certainty to businesses on their legal obligations. As identified in the Compliance and Enforcement Review, statutory policies do not always do this well, with businesses commenting that policies are complex documents that are difficult to navigate, inconsistent or ambiguous.

9.1.2 Communities

Statutory policies provide communities with information about environmental standards (for example, standards for clean air and noise pollution) and specific requirements on industry. They also set out the agreed environmental values the community wishes to protect. Community members may look to policies to understand the requirements on businesses to minimise their impact on the environment.

In the Compliance and Enforcement Review, community members raised concerns regarding the current coverage of the policies, that they were difficult to understand and at times out of date181.

9.2 Stakeholder views

A majority of submissions were of the view that statutory policy is confusing in both application as a regulatory/legal instrument and in use of language.

9.2.1 Application

Some submissions stated that there was a lack of understanding about the legal weight of statutory policy relative to Regulation, with businesses therefore experiencing difficulty in determining their obligations.

Specific comments received about accessibility and understanding included:

- The Australian Industry Group submission182 stated that: ‘The complexity of SEPPs and inconsistencies between SEPPs, combined with lack of clarity around the hierarchy… of the various instruments results in businesses experiencing difficulty in determining their obligations.’

- The Environment Defenders Office and Environment Victoria submission183 stated: ‘SEPPs and WMPs have the legal status of Regulations, but they are drafted like policy documents.’

- The Environment Defenders Office commented further that: ‘Statutory policy is very poorly understood. Clients (of EDO) have not been aware that a SEPP is a legislative instrument with the same force as Regulations. When this is explained, the same clients assume that the contents of the SEPP will then be enforced.’

- Golder Associates submission184 commented that the general objectives such as the requirement to use ‘best practice’ or ‘maximum extent achievable’ are often open to broad interpretation, resulting in inconsistent approaches and a lack of certainty for industry. Golder Associates suggested that such objectives would benefit from more guidance on interpretation, such as a clear methodology to enable transparent evaluation of proposals.

181 Compliance and Enforcement Review(February2011),p.62182 AustralianIndustryGroupsubmission,p.4183 EnvironmentDefendersOfficeandEnvironmentVictoriasubmission,p.6184 GolderAssociatessubmission,p.2

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9.2.2 Language

A majority of stakeholders were of the view that statutory policy could be improved by using simpler, clearer language and be written in plain English. Many suggested avoidance of jargon and repetition. A large number of submissions suggested policies should be made more consistent in language and structure to each other to assist accessibility. A majority of submissions supported consolidating amended versions of statutory policy into a single up-to-date version.

A number of submissions also suggested education about the role, structure and approach to statutory policy and regulation should be a priority.

Specific comments received about accessibility and understanding included the following:

- The Australian Industry Group submission185 stated that: ‘The failure to use plain English in SEPPs means that they are generally not well understood by industry.’

- The Victorian Catchment Management Council submission186 stated that: ‘There is a view amongst administering agencies, businesses and the community that statutory policies in their current form are not readily accessible and are ‘voluminous, complex, and sometimes inconsistent and confusing’.’

- The Environment Defenders Office and Environment Victoria submission187 stated that: ‘Terms like ‘best practice’, ‘have regard to’, ‘maximum extent achievable’ etc are unclear and create significant confusion.’

- The Metropolitan Waste Management Group (MWMG) submission188 suggested that: ‘EPA should strive to ensure user friendliness by continuous improvement in policies and regulation, making them easier to read and use, in plain English, web-based and accessible.’

9.3 Specific suggestions

Specific suggestions put forward in the Review Discussion Paper to improve accessibility and useability included:

Publishing a consolidated version of each policy

Currently, variations to SEPPs are published in separate documents to the original policy. A consolidated version of each policy should be published, incorporating all variations. This is standard practice in other states.

Avoiding repetition

For example, the policy principles in sections 1B – 1L of the Act could be noted in statutory policy, rather than repeated at length.

Using the phrase ‘environmental value’

The phrase ‘environmental value’ (or ‘protected environmental value’) is used in statutory policies in South Australia, Western Australia, Queensland and Tasmania. It is a more easily understood phrase than ‘beneficial use’. It would require amendments to the Act.

Consolidating the number of statutory policies

There are currently 15 statutory policies. There are significant overlaps in some areas of policy objectives, beneficial uses and types of issues being addressed. For example, surface and groundwater policies may be able to be consolidated into a single water policy.

185 AustralianIndustryGroupsubmission,p.4186 VictorianCatchmentManagementCouncilsubmission,p.1187 EnvironmentDefendersOfficeandEnvironmentVictoriasubmission,p.8188 MetropolitanWasteManagementGroupsubmission,p.2

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Publishing a users’ guide

A guide on what statutory policy does, who it affects, and how and when it is used (compared to the Act, Regulations and guidance) would also assist EPA staff and external users of statutory policy. It would complement the plain English guide to the Act that EPA’s Compliance and Enforcement Review has recommended 189.

A majority of submissions supported three of these specific suggestions, namely:

- consolidated versions of each policy

- avoiding repetition and jargon

- consolidating the number of statutory policies regarding subjects, for example, water.

There were mixed views on the suggestion of using the phrase ‘environmental value’. This reflected mixed views about how well the term ‘beneficial use’ is understood. For example, a number of stakeholders stated:

- definitions of ‘beneficial uses’ and ‘environmental objectives’ are generally well understood but there is a lack of understanding and consistent interpretation

- the phrase ‘environmental value’ is more easily understood than ‘beneficial use’.

Others were of the view that the term ‘beneficial use’ is not well understood by the general community.

Section 4.2.4 discusses the pros and cons of replacing the phrase ‘beneficial use’ with ‘environmental value’.

The suggestion of publishing a users’ guide also received mixed views. While many supported its development, some qualified this as potentially adding confusion and leading to assumptions about legal requirements.

Another action that may improve the accessibility of Victorian statutory policy is for it (that is, current and perhaps historical consolidated versions of each SEPP and WMP) to be published on the Victorian legislation website (www.legislation.vic.gov.au). This occurs in South Australia190. This may also make it clearer that statutory policy is subordinate legislation.

189 Compliance and Enforcement Review(February2011),p.59,recommendation6.3190 http://www.legislation.sa.gov.au/listPolicies.aspx?key=E

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Recommendation 15

That EPA and DEPI improve the readability of, and language used in, statutory policies, reduce the number of policies through consolidation, and improve the use of web-based approaches to make statutory policy accessible to a range of different stakeholders and users.

The following are suggested areas of focus to improve the accessibility of statutory policy for a range of different stakeholders and users:

- wherever possible, using plain English drafting language for statutory policy, while recognising the necessary legislative drafting principles

- publishing a consolidated version (amendments and current) of each policy

- working with the Office of the Chief Parliamentary Counsel with a view to publishing consolidated versions of each SEPP and WMP on the Victorian legislation website (www.legislation.vic.gov.au)

- establishing a standard template for the structure of statutory policies to ensure consistency

- within statutory policies, including reference to the applicability of the EP Act policy principles, rather than repeating the principles verbatim

- developing an on-line and searchable database of statutory policies, similar to ‘planning schemes on-line’ managed by the DTPLI. Basing this on the statutory hierarchy or levels of control of the EP Act, policy, Regulations and guidelines, to allow stakeholders and duty holders to readily access the obligations or standards that apply to them

- using explanatory notes for statutory policies only if they add value to explaining the statutory policy in plain English. To facilitate ease of use, publishing explanatory notes in separate documents to the statutory policy (already done for noise SEPPs)

- to improve accessibility and to simplify the statutory hierarchy, reducing the number of statutory policies through consolidation. Statutory policies should be consolidated to cover the major environment segments: air, water, land, waste and noise. This suggestion would not preclude the portfolio having the flexibility (through the EP Act) to introduce SEPPs or WMPs where necessary to address priority issues into the future.

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CONCLUSION

In this review, EPA and DEPI have examined the framework for statutory policies — SEPPs and WMPs, under the EP Act. This required analysis of the current function, structure, content, management and effectiveness of statutory policies.

The EP Act was built around the approach of defining the uses of the environment that Victorians want protected and enhanced (beneficial uses), then defining the standards needed to achieve these outcomes (environmental quality objectives and indicators). While SEPPs and WMPs have been an essential, innovative and evolving element of Victoria’s environment protection framework since the 1970s, the overall framework and use of statutory policies has not been fully re-examined since that time.

Analysis and consultation revealed a number of challenges. Feedback from industry and other stakeholders indicated SEPPs and WMPs are often viewed as complex, difficult to access and hard to understand. A lack of coordinated and accountable implementation has limited their effectiveness and exposed EPA and other Victorian government agencies to legitimate criticism. Current statutory policies are not sufficiently flexible to respond well to emerging challenges.

Many SEPPs and WMPs are overdue for review, undermining stakeholder confidence and creating uncertainty for decision makers. Despite these challenges, consultation revealed strong support for the broad ‘architecture’ of the current framework.

The review found support for clearly focusing the role of statutory policy on setting environmental quality standards. This revised approach conceptually sees statutory policy as broader in scope, sitting above and informing Regulation. The review proposes reforms to deliver a much simpler, more streamlined statutory policy framework that will support industry and government agencies to act to prevent pollution and protect the environment.

Implementing the review recommendations will clarify the focus of statutory policy and improve implementation, accountability, links with other statutory systems, readability and accessibility.

In summary, the review recommends:

- that the content of statutory policies be streamlined. It should focus its primary role on setting longer-term objectives and environmental quality standards for air, noise, water, land and waste — that is, ‘the goalposts’ for what we want to protect in the Victorian environment

- a reduction in the scope of ‘attainment programs’ in statutory policies, retaining only those clauses or provisions that require statutory definition and removing those that outline general roles, partnerships or programs

- the development of separate implementation plans for individual statutory policies

- new reporting approaches

- improved accountability and management of statutory policies to ensure policies are implemented, monitored and reviewed

- monitoring and assessing the effectiveness of each policy

- developing improved approaches to community engagement with statutory policies, and making statutory policies more accessible to industry and the community.

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Priorities for implementation

Many of the recommendations present a preferred approach that will need to be carefully assessed in the context of each environment segment and the existing statutory policies. There may be various ways of implementing the recommendations. These will be explored as specific statutory policies are formally reviewed.

The following recommendations are priorities for delivering the preferred approach:

1. Developing the model for individual SEPP Implementation Plans (recommendation 3).

2. Developing the approach for public reporting against environmental quality objectives and individual statutory policy Implementation Plan commitments (recommendations 3 and 10).

3. Establishing an advisory committee on environmental standards (recommendation 12).

4. As individual statutory policies are reviewed, focusing their primary role on setting longer-term objectives and environmental quality standards, giving first preference to housing industry obligations in Regulation and removing clauses that do not require statutory definition (recommendations 1 – 3).

The following improvements are occurring, or will primarily occur, through other processes, including administrative reforms:

- improving the administration of policy – delivered through DEPI’s and EPA’s ongoing work program (recommendations 8 and 9)

- accessibility – delivered through EPA’s changes to its website and guidance work (recommendation 15)

- community engagement – delivered as individual SEPPs and WMPs are reviewed, using EPA’s engagement strategy (recommendation 13)

- strengthening links with the planning framework – delivered through EPA’s planning strategy work (recommendation 6).

The following areas of work can be developed in the longer term, as part of the consideration of broader reforms to the EP Act and/or as individual SEPPs are reviewed:

- comparing the ‘best practice’ requirement with the ‘reasonably practicable’ requirement used in the occupational health and safety framework (a suggested approach under recommendation 2)

- reviewing the jurisdiction, powers and duties of external agencies (recommendation 4)

- reviewing approaches to ‘at risk’ areas and exploring models for statutory mechanisms to drive regional and local action (recommendation 5)

- improving the links between statutory policy and regional catchment management planning (recommendation 7)

- considering using targets or values in statutory policy, set relative to ambient environmental standards, that, if not met, would require assessment by EPA or DEPI (recommendation 11)

- aligning the process for developing statutory policy with the process for other legislative instruments under the Victorian Subordinate Legislation Act 1994 (recommendation 14).

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APPENDICES

Appendix 1. (Recommendations)

Simplifying and clarifying the focus of statutory policy (chapter 4)

Recommendation 1 That EPA and DEPI retain statutory policies – SEPPs and WMPs – but focus the primary role of statutory policies on setting longer-term objectives and environmental quality standards (‘the goalposts’) for air, noise, water, land and waste.

Recommendation 2 That EPA and DEPI reform statutory policies, Regulations, guidance documents and website functionality to make it easier for industry (emitters) to understand and comply with their obligations under the EP Act. First preference should be given to housing emitters/industry obligations in Regulation.

Improved implementation (chapter 5)

Recommendation 3 That EPA and DEPI more clearly focus the scope of ‘attainment programs’ in statutory policies by:

• retaining only those clauses or provisions that require statutory definition, that is, rules for regulatory decision makers (see recommendation 1)

• removing clauses that outline general roles, partnerships or programs from statutory policies.

In addition, that three to five yearly ‘implementation plans’ be required to be developed, published and regularly publicly reported on for each statutory policy.

Recommendation 4 That, in reviews of individual SEPPs and WMPs, EPA and DEPI examine and clarify how the powers, duties, roles and expectations of external agencies are expressed. This may include agencies such as local government, catchment management authorities, water authorities and departments.

Recommendation 5 That EPA and DEPI review the need for a new approach for ‘at risk’ areas, that is, areas with or facing a serious decline in environmental quality standards.

Improved linkages with other statutory systems (chapter 6)

Recommendation 6 That the links between statutory policy and the statutory land use planning system and permitting process be retained and strengthened. That EPA, DEPI and DTPLI review and address inconsistencies between the statutory policy framework and the statutory land use planning framework.

Improved accountability (chapter 7)

Recommendation 7 That EPA and DEPI improve the links between statutory policy and regional catchment planning, by reviewing and improving the approach to regional water quality targets in statutory policy, and their use in regional catchment and river health planning.

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Recommendation 8 To ensure ongoing alignment of standards, the Victorian Government continue to work with other jurisdictions to reduce red tape by streamlining and aligning standards for environment protection.

Recommendation 9 That DEPI has primary responsibility for the development and review of statutory policies, while EPA provides technical, standard setting and operational input, in line with the separation of policy and regulatory roles. As part of the identification of specific roles and accountabilities, DEPI and EPA agree on a five year rolling work program for individual policy review and reform.

Recommendation 10 That there be regular (perhaps five yearly) public reporting against the environmental quality objectives and implementation plan commitments for each statutory policy. To build continuous improvement, appropriate performance and evaluation metrics be developed for current and new statutory policies to measure both the environmental and regulatory effectiveness, and efficiency of statutory policy.

Recommendation 11 That EPA and DEPI consider the use of targets or values within statutory policies, set relative to ambient environmental standards, that would provide a measurable point that if not achieved, would then require assessment by EPA or DEPI.


Recommendation 12 That EPA and DEPI establish an advisory committee on environmental standards (either statewide or environmental segment specific) to advise EPA and DEPI executive on, and to drive continuous improvement in, Victoria’s environmental standards. The committee would draw on internal government and external technical and scientific expertise, and could involve DEPI’s Chief Scientist.

Improved statutory policy development process (chapter 8)

Recommendation 13 That EPA and DEPI provide the community with early and improved opportunities to engage in statutory policy development and review, by using participative and accessible approaches.

Recommendation 14 That EPA and DEPI streamline the formal process for the development of statutory policies by aligning the process with the formal process for developing other legislative instruments under the Victorian Subordinate Legislation Act 1994.

Improving accessibility and useability (chapter 9)

Recommendation 15 That EPA and DEPI improve the readability of, and language used in, statutory policies, reduce the number of policies through consolidation, and improve the use of web-based approaches to make statutory policy accessible to a range of different stakeholders and users.

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Appendix 2. Specific issues raised in consultation

- SEPP N-1; particularly around extension of N-1 from metropolitan to a state-wide SEPP

- Consideration of additional SEPPs to consider wind energy facility noise

- Extent and scope of noise guidelines

- Traffic noise

- Rail noise

- Waste facility buffer issues

- SEPP N-1 and N-2 fail for medium to high density residential developments. Policies are dated and refer to outdated technology. Other areas requiring attention are:

• rail and track noise (VIC only jurisdiction in Australia without a railway noise policy or guideline)

• construction noise

• road traffic noise (outside arterial roads)

• wind farms

• rural areas (is N-3 policy or not?)

• sleep disturbance

• helicopter noise

- Defining roles and responsibilities for the Household Asbestos program

- Definition of who is the lead agency for the decontamination of Methamphetamine labs

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Appendix 3. VCEC Review of Environmental Regulation: relevant recommendations

From:

- VCEC Final Report – A Sustainable Future for Victoria: Getting Environmental Regulation Right191

- Victorian Government Response to VCEC Final Report – A Sustainable Future for Victoria: Getting Environmental Regulation Right192.

Recommendation 7.10

That EPA Victoria, in developing protocols and guidelines for environmental management, publish the key steps in the process as well as timeframes.

Victorian Government response: Support

The Government supports a programme of ongoing review for updating protocols and guidelines for environmental management. EPA Victoria is committed to supporting transparent processes by publishing information regarding key processes and timeframes on the EPA Victoria website each time it develops or reviews a protocol or guideline.

Recommendation 7.11

That EPA Victoria clarify the definitions of ‘best practice’, ‘best available outcome’, ‘best practicable measure or approach’ and ‘best available technology’ in its policies and guidance to ensure they do not constrain businesses from meeting the required performance or outcome standards in a least cost manner.


EPA Victoria will continue to provide relevant guidance and support to industry to ensure the concepts and requirements of ‘best practice’, ‘best practicable measure or approach’ and ‘best available technology’ for EPA Victoria approvals and services are well understood. Furthermore, in keeping with principle 1B(3) of the Environment Protection Act 1970 measures applied by businesses to achieve best practice are considered in light of their cost effectiveness. Relevant guidance material will be available to the public via EPA Victoria’s website.

Recommendation 7.12

That EPA Victoria, to promote the consistency of its advice to business, review its training procedures, internal guidance material, information systems and other methods of internal communication.


To support the consistent delivery of high quality external services, EPA Victoria is implementing a quality management system (QMS). This will incorporate the development of policies, procedures, forms and guidelines to complement and align with the overarching corporate documents. This work will support knowledge and practices to be constructive, flexible and produce high quality services. The implementation of a QMS will ensure consistency among internal guidance and procedures. EPA Victoria has already made progress in improving the internal communication system through the review of how information is communicated via the internal intranet site. EPA Victoria will complete this project by June 2010. These changes will build on the improvements already made through EPA Victoria’s recent restructure which centralised statutory decision making and advice, and has ensured that clients have a single client manager to manage all contact points with EPA Victoria.

191 VCEC,July2009, Final Report – A Sustainable Future for Victoria: Getting Environmental Regulation Right192 DepartmentofTreasuryandFinance,January2010,Victorian Government Response to Final Report – A Sustainable Future for Victoria: Getting Environmental

Regulation Right

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Recommendation 10.3

That the Victorian Government develop performance reporting frameworks for environmental regulations to be implemented by the relevant department or agency, with the frameworks specifying:

• regulatory objectives, including the outcomes that regulation is intended to achieve

• the use of indicators (outcome, output and input) and frequency of reporting

• how the results are to be used (for example, the frequency of pubic reporting and the use of the information to review the regulations).

The development and implementation of performance reporting frameworks should be subject to oversight by an independent body such as the Commissioner for Environmental Sustainability or the Victorian Auditor General, which would report periodically on implementation.

Victorian Government response: Support in principle

The Victorian Government recognises the importance of effective performance reporting on environmental regulations over time. On 4 September 2009, the Treasurer announced that the Victorian Guide to Regulation will be updated to ensure that it incorporates the very latest experience in designing efficient regulation. This will include further guidance and tools for all regulation in relation to establishing appropriate regulatory objectives, performance indicators and reporting arrangements as part of the performance reporting framework. This process will involve input from relevant government agencies and other stakeholders, and be concluded by mid 2010. In conjunction with this process, the Victorian Government will investigate the most effective mechanisms for the implementation, oversight and monitoring of performance reporting frameworks for environmental regulation.

Recommendation 10.4

That the Victorian Government:

• require all new environmental regulations with a potentially significant impact on business and the community to have an evaluation strategy and associated data collection plan

• establish and make provision for an evaluation program for existing environmental regulations.

The evaluation program for environmental regulation would identify the criteria for prioritising evaluations, the specific areas of regulation to be evaluated, the agency responsible for undertaking or commissioning the evaluation and the program timeframe.

The full results of evaluations would be provided to the Commissioner for Environmental Sustainability which would also report publicly on the delivery of the evaluation program.


In conjunction with its review of the Victorian Guide to Regulation, which will strengthen guidance on evaluation strategy, the Victorian Government will examine the most effective mechanism for requiring all new regulation (including environmental regulation) with a potentially significant impact on business and the community to have an evaluation strategy and associated data collection plan. The Government believes that an immediate revision of existing environmental regulation to establish evaluation programs would not necessarily be cost effective. The Government will consider applying any evaluation mechanism identified during the review of the Victorian Guide to Regulation to existing environmental regulations on a case by case basis, particularly as opportunities arise through regulatory instruments sunsetting or as part of other reviews.

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Recommendation 10.5

That the Victorian Government shift the primary responsibility for preparing new regulatory proposals from EPA Victoria to the [former] Department of Sustainability and Environment.


In principle this already exists, as the [former] Department of Sustainability and Environment (DSE) has primary responsibility for providing policy advice and EPA Victoria provides technical input to regulatory development. The Victorian Government accepts the principle that regulatory agencies should not have primary responsibility for the provision of policy advice, and that this should be the role of the relevant government department. DSE [now DEPI] will continue to have primary responsibility for policy advice on the development of regulatory proposals relating to the Environment Protection Act 1970. Such advice will be developed in consultation with EPA Victoria. The Government will ask DSE [now DEPI] to work with EPA Victoria to review existing regulatory and administrative settings, agree on an annual regulatory program, and make whatever changes are appropriate to ensure that this arrangement is put into effect by June 2010.

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Appendix 4. Consultation summary

Questions in the Discussion Paper (EPA Publication 1370, June 2011)

Question 1: In your experience what has worked well in statutory policy? What has not worked well?

Question 2: How well do you think the features and obligations in statutory policy are understood? Are some parts better understood than others? (We would welcome some examples).

Question 3: Are there critical issues, risks, or relevant processes (for example, upcoming reviews, strategic planning processes) that should be considered in prioritising individual policy reviews?

Question 4: What do you think are the main challenges for statutory policy? Are there other challenges?

Question 5: In your work which instruments or documents under the Environment Protection Act 1970 do you (or your organisation) use the most often? The Act, Regulations, statutory policy or guidance?

Question 6: What types of measures or provisions in the ‘attainment programs’ of statutory policy do you find most useful? Do you think these need to stay in statutory policy or may be better placed in other regulatory instruments or guidance?

Question 7: How well do you think statutory policies perform their standard setting role? Would specific types of standards be better placed in other regulatory instruments?

Question 8: Has including the roles and responsibilities of agencies – which often sets out how agencies will jointly tackle particular issues – in statutory policy been valuable? Why/why not?

Question 9: In your experience, are there features in other fields of regulation that would be useful in the Victorian environment protection framework?

Question 10: In your experience, what features of statutory policy in other states or overseas work well?

Question 11: Which of the model(s) do you think may work well? Why?

Question 12: Are there other models that should be considered?

Question 13: What do you think of these specific suggestions for reform?

Question 14: What else should be done to make statutory policy more responsive, accessible and easier to apply?

Question 15: How could the links between statutory policy, catchment planning, statutory planning and other frameworks be improved?

Question 16: Do you have any other suggestions for reforms to the statutory policy framework?

Who made submissions?

Industry

ARUP Pty Ltd

Golder Associates Pty Ltd

H.G. Recoveries Pty Ltd

URS Australia Pty Ltd

Peak bodies

Association of Victorian Regional Waste Management Groups

Australian Industry Group

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Australian Contaminated Land Consultants Association Victorian branch

Construction Material Processors Association

Plastics and Chemical Industry Association

Victorian Local Governance Association

Victorian Water Industry Association (VicWater)

Environment community groups

Environment Defenders Office and Environment Victoria

Local government

City of Boroondara

City of Greater Bendigo

Knox City Council

Mornington Peninsula Shire Council – Environmental Health Team

Rural City of Wangaratta

Government agencies

Goulburn Murray Water

Melbourne Water

Metropolitan Waste Management Group

Victorian Catchment Management Council

Yarra Valley Water

(Former) Department of Transport

Individuals

Jani Breider

Garrett Hall

Professor Rob Joy

How have the submissions been used?

The EPA and DEPI have used the submissions to inform the development of recommendations in this final report of the Statutory Policy Review. Submissions, along with stakeholder views from the workshops held in July and August 2011 will inform the recommendations.

Workshops held

1. Industry and consultants workshop 1 (22 July 2011). Workshop held in partnership with Australian Industry Group (Ai Group), 20 Queens Road, Melbourne.

2. Industry and consultants workshop 2 (5 August 2011). Supplementary workshop also held in conjunction with Australian Industry Group (Ai Group), 20 Queens Road, Melbourne.

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3. Water sector workshop (26 July 2011) held at Royal College of Surgeons, 250-290 Spring Street, Melbourne.

4. Environment and community members workshop (26 July 2011), held in partnership with Environment Victoria and Environment Defenders Office, 60 Leicester Street, Melbourne.

5. Local government workshop (28 July 2011) held in partnership with the Municipal Association of Victoria (MAV), 12/60 Collins Street, Melbourne. Approximately 25 participants.

6. Legal practitioners workshop (16 August 2011) held in partnership with the National Environmental Law Association (NELA) at the Victorian Bar Inc, level 5, 205 William Street, Melbourne.

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Appendix 5. Individual statutory policies - a summary

Types of statutory policy

Waste Management Policy (WMPs). Waste management policies can be declared with respect to any aspect of the management of waste in Victoria. There are currently eight waste management policies (including several Industrial Waste Management Policies).

State Environment Protection Policy (SEPPs). EPA can declare environment protection policy for any portion or portions of Victoria, or with respect to any element or elements or segment or segments of the environment. Under this provision, EPA currently has seven State Environment Protection Policies (relating to air, water, land and noise).

Five of the current 15 Victorian statutory policies implement National Environment Protection Measures (NEPMs).

Groupings into major segments

Air (SEPP Ambient Air Quality and SEPP Air Quality Management)

Noise (SEPP N-1 and SEPP N-2)

Water (SEPP Waters of Victoria)

Land and Groundwater (SEPP Contaminated Land and SEPP Groundwaters of Victoria)

Waste (WMP Landfills, WMP Used Packaging Materials, IWMP National Pollutant Inventory, WMP Movement of Controlled Waste, IWMP Waste Acid Sulfate Soils, IWMP Protection of the Ozone Layer, WMP Ships’ Ballast Water, WMP Solid Fuel Heating)

AIR

(published on http://www.epa.vic.gov.au/about_us/legislation/air.asp )

STATE ENVIRONMENT PROTECTION POLICY (AMBIENT AIR QUALITY)

What does it do?

Sets air quality objectives and goals for the whole State of Victoria. The SEPP adopts the requirements of the National Environment Protection Council (Ambient Air Quality) Measure (NEPM). This NEPM sets standards, goals, monitoring and reporting protocols for six common pollutants: carbon monoxide (CO), nitrogen dioxide (NO2), photochemical oxidants (such as ozone), sulfur dioxide (SO2), lead and particles such as PM10. The SEPP also includes a separate objective for visibility reducing particles, which is not included in the NEPM.

Age and currency

Gazetted 1999, varied in 2001

AAQ NEPM is currently under review – see http://www.nepc.gov.au/taxonomy/term/23

Once that is complete, SEPP (AQM) will need to be varied to (at least) incorporate the varied NEPM

Note - NEPC annually publishes reports on how each jurisdiction has implemented each NEPM – see http://www.nepc.gov.au/nepms?q=annual_report (scroll to bottom of web page)

STATE ENVIRONMENT PROTECTION POLICY (AIR QUALITY MANAGEMENT) 2001

What does it do?

Establishes the framework for managing emissions into the air environment in Victoria from all sources of air

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pollutants, so that the air quality objectives outlined in the Ambient Air Quality SEPP are met and where possible exceeded.

The management framework and attainment program for protection of the air environment contained in SEPP (Air Quality Management) address not only ambient (or regional) air quality, but also the management of particular sources (for example, industry, motor vehicles and open burning) and local air quality impacts, including air toxics, odorous pollutants, greenhouse gases and ozone depleting substances.

Age and currency

Gazetted in 2001

NOISE

(published on http://www.epa.vic.gov.au/about_us/legislation/noise.asp#sepp_noise_public )

STATE ENVIRONMENT PROTECTION POLICY (CONTROL OF NOISE FROM COMMERCE, INDUSTRY AND TRADE) (N-1)

What does it do?

Recognising that Melbourne’s planning scheme may position industrial areas near residential zones, the SEPP aims to protect people from the effects of noise in these noise sensitive areas. The policy is also used as a planning tool. The policy requires new and proposed industries to be designed so as to not exceed the noise limits outlined in the SEPP.

Age and currency

Gazetted 1989, most recent (minor) variation in 2001

STATE ENVIRONMENT PROTECTION POLICY (CONTROL OF MUSIC NOISE FROM PUBLIC PREMISES) (N-2)

What does it do?

This SEPP aims to protect residents from levels of music noise that may affect the beneficial uses of noise sensitive areas, while recognising the community demand for a wide range of musical entertainment.

Age and currency

Gazetted 1989, varied 1999

WATER

(published on http://www.epa.vic.gov.au/about_us/legislation/water.asp#sepp_waters )

STATE ENVIRONMENT PROTECTION POLICY (WATERS OF VICTORIA)

What does it do?

This SEPP applies to all surface waters of Victoria, and aims to provide a coordinated approach for the protection and, where necessary, rehabilitation of the health of Victoria’s water environments. This policy protects the environmental values, beneficial uses and associated social and economic values of the water environment to ensure that the needs of current and future generations are met. Specific schedules to SEPP (Waters of Victoria) deal with specific individual catchments and have more detailed requirements that apply within the catchments in question - Waters of Port Phillip Bay, Waters of the Yarra Catchment, Waters of Western Port and Catchment, Gippsland.

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Note 1st SEPP (WoV) was made in 1998; so Policy Impact Assessment for this 2nd (2003) SEPP (WoV) (EPA Publication 905) is itself, in part, a review document.

Age and currency

Gazetted 1998, very significantly varied in 2003. Schedules variously gazetted 1988 – 2001

LAND AND GROUNDWATER

(published on http://www.epa.vic.gov.au/about_us/legislation/land.asp#sepp_contamination )

STATE ENVIRONMENT PROTECTION POLICY (PREVENTION AND MANAGEMENT OF CONTAMINATION OF LAND)

What does it do?

Maintains and seeks to improve the policy.

Amongst other things this SEPP implements NEPM (Assessment of Site Contamination).

Age and currency

Gazetted 2002. The related NEPM is currently in the process of being varied – see http://www.nepc.gov.au/contam/pcdocs. Once the NEPM variation is complete, this SEPP will (at least) need to incorporate the varied NEPM.

STATE ENVIRONMENT PROTECTION POLICY (GROUNDWATERS OF VICTORIA)

What does it do?

Developed to meet community demands for an integrated framework of environment protection goals for groundwater. It aims to maintain and, where necessary, improve groundwater quality to a standard that protects existing and potential beneficial uses of groundwater. It sets a consistent approach to, and provides quality objectives for groundwater protection throughout Victoria.

Age and currency

Gazetted 1997, varied 2002

WASTE

(published on http://www.epa.vic.gov.au/about_us/legislation/iwmps.asp )

WASTE MANAGEMENT POLICY (SITING, DESIGN AND MANAGEMENT OF LANDFILLS)

What does it do?

Strengthens landfill management framework to emphasise minimizing landfill disposal and construction on new landfill sites. Promotes best practice and continuous improvement, in the way in which we plan, site, design and manage landfills in Victoria. The policy also promotes waste minimisation and resource recovery infrastructure that will in turn encourage market opportunities for recycling. The policy also provides a transparent assessment and consultation process to investigate banning specified wastes from landfill disposal where a higher waste management option is practicably available.

BPEM (key document referenced in this WMP) reviewed in 2010 – see http://www.epa.vic.gov.au/waste/landfill.asp#revisedguidance

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Age and currency

Gazetted 2004

WASTE MANAGEMENT POLICY (USED PACKAGING MATERIALS)

What does it do?

The Waste Management Policy (Used Packaging Materials) 2010 focuses on reducing environmental degradation arising from the disposal of used packaging and the conservation of raw materials. It encourages the reuse and recycling of used packaging materials by supporting and complementing the voluntary strategies in the Australian Packaging Covenant. This WMP implements the NEPM (Used Packaging Materials).

Age and currency

Gazetted 2012 to align with NEPM re-made in 2011.

WASTE MANAGEMENT POLICY (NATIONAL POLLUTANT INVENTORY)

What does it do?

This WMP implements the NEPM (National Pollutant Inventory) in Victoria. It involves collecting a broad base of information on emissions of substances to air, land and water within Victoria from both industry (through reporting obligations imposed on industrial facilities) and domestic sources (estimated by EPA).

Age and currency

Gazetted 2012, replacing 1998 version.

WASTE MANAGEMENT POLICY (MOVEMENT OF CONTROLLED WASTE BETWEEN STATES AND TERRITORIES)

What does it do?

Implements the NEPM for the Movement of Controlled Waste between States and Territories. The IWMP provides a nationally consistent statutory framework in Victoria for the management of the movement of controlled wastes between the State of Victoria and other states and territories originating from commercial, trade or business activities. Core elements of the IWMP are the implementation of compatible tracking and notification systems, consultation between interested parties and mutual recognition of licenses and permits for transporters.

Age and currency

Gazetted 2001, re-made 2012 to implement a minor variation to the related NEPM (see http://www.nepc.gov.au/taxonomy/term/46)

WASTE MANAGEMENT POLICY (SHIPS’ BALLAST WATER)

What does it do?

This policy aims to prevent new invasions and stop the spread of existing marine pests. The policy prevents the discharge of high risk ballast water into Victorian State waters. To avoid discharges of high risk ballast water, ships must either discharge their ballast safely out at sea or keep high risk ballast water on board. All ships are required to provide EPA with accurate information on the status and risk of any ballast water contained on their ships prior to arriving in Victorian State waters.

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Age and currency

Gazetted 2004. Work is continuing to develop a national ballast water system, which could supersede this WMP.

WASTE MANAGEMENT POLICY (SOLID FUEL HEATING)

What does it do?

Focuses on improving air quality; protecting the environment including human health and minimising emissions from solid fuel heaters. In essence the objectives of the policy are to improve air quality in Victoria by reducing emissions from solid fuel heaters; protect the environment from the hazards that may be posed by these emissions and minimise generation of emissions through specific requirements applying to the manufacture, installation and use of wood-heaters.

Age and currency

Gazetted 2004. Work is continuing to develop national wood heater standards, which could supersede this WMP.

INDUSTRIAL WASTE MANAGEMENT POLICY (PROTECTION OF THE OZONE LAYER)

What does it do?

This policy aims to prevent depletion of stratospheric ozone by minimising the release into the atmosphere of ozone-depleting substances such as chlorofluorocarbons, halons, hydrochlorofluorocarbons and methyl bromide.

Age and currency

Gazetted 2001. With the exception of some methyl bromide issues, Commonwealth regulations (in particular the Commonwealth Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (as amended in 2005) – see http://www.environment.gov.au/atmosphere/ozone/legislation/index.html) now address most of the areas covered by this IWMP.

INDUSTRIAL WASTE MANAGEMENT POLICY (WASTE ACID SULFATE SOILS)

What does it do?

An acid sulfate soil is any soil, sediment, unconsolidated geological material or disturbed consolidated rock mass containing metal sulphides exceeding criteria published by the Authority. If managed inappropriately, waste acid sulfate soils may oxidise to produce acid which poses a risk to human health and the environment. This policy aims to protect human health and the environment from this risk by providing a management framework and specific requirements for the management of acid sulfate soils in an environmentally responsible manner.

Age and currency

Gazetted 1999

STATUTORY POLICY REVIEW – FINAL REPORTref.epa.vic.gov.au/our-work/setting-standards/~/media/... · – FINAL REPORT Review of Statutory Policy under the Environment ... diffuse

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