Victorian EPA to strengthen powers

You might recall that we wrote to you in November last year to advise of upcoming new powers by Environment Protection Authority (EPA) in Victoria. The changes will commence from 1 July 2021.

As we advised you at that time, these new environment protection laws will require all Victorian businesses and industries, including sporting organisations, to take proactive steps to manage risks of harm from pollution and waste. Golf Australia is keen to brief clubs on these changes.

In this letter we provide some suggested practical steps to aid your preparation and readiness for these changes.

What is Changing?

In July 2021, the Environment Protection Amendment Act 2018 will come into effect. This means the EPA will have a range of new and enhanced powers. EPA has advised that it will also be able to issue stronger sanctions and penalties to hold environmental polluters to account.

The general environmental duty (GED) is a centrepiece of the new laws. It applies to all Victorians. The GED will mean that you must also take reasonably practicable steps to eliminate or minimise risk to the local environment. We provide further advice below on what practicable steps could be typically employed.

Under the GED, the EPA will require that Victorian businesses and industries, including sporting organisations have reasonable knowledge about the risks your activities pose, and how to address them.

EPA is progressively developing new guidance for Victorian business along these lines. You can find more information at the EPA website below:

https://www.epa.vic.gov.au/about-epa/laws/new-laws How Do Clubs and Facilities Best Adapt to the Changes?

Using sustainable resources and introducing recycling and waste reduction measures can have a positive effect on the environment of your course, but can also improve your Club’s financial performance, reputation and the pride of your members.

For clubs already managing their environmental risks, the GED generally means little to no change to how they operate. Most clubs already follow good management practices. This will make complying with the GED easier. The GED just makes it clear your responsibility is to reduce risk to the environment.

These principles and ideas that we will be offering are entirely voluntary. They assume your desire for regulatory compliance and are designed to provide low cost opportunities beyond that which is likely to be required by EPA. It is hoped that the practical tips and simple checklists that offer in this letter (see below) will be used to improve the level of environmental awareness at your Club.

What does a Club need to do?

The EPA will require that all businesses (including clubs) must manage the risks their activities may pose to human health and the environment. Managing risk in a structured way helps businesses:

• better identify, assess and control risks that could impact air, land, water and groundwater, as well as harm caused by noise;

• prevent harm to human health and the environment;

• comply with your environmental duties and obligations; and

• meet community expectations.

Under the EPA’s new legislation and in particular GED, it will be the responsibility of a golf club to:

• understand and assess your environmental/pollution risks; and

• eliminate or reduce them as far as reasonably practicable.

We recognise that local communities, and your members and your employees, based on local values and circumstances, will be best suited to assess the environmental aspects of routine maintenance of your course and grounds. We also recognise that local decisions should be considered on how best to ensure sustainable protection and enhancement.

What would happen if a Club is non-compliant?

• EPA has advised that it takes an escalating approach to enforcement. This means EPA would respond more harshly if a Club is resistant, evasive or fails to account for its risks. By enforcing the law, EPA aims to: stop unlawful activity and remedy harm;

• ensure future compliance is achieved and sustainable;

• raise awareness of the law and the consequences of breaking it; and

• punish offenders and remove any commercial advantage from non-compliance.

EPA has also advised that it considers several factors when responding to an organisation that hasn’t met its obligations. These include:

• the type of offence and how serious it is the risk of harm caused;

• the characteristics of the person/entity responsible, such as their attitude to dealing with EPA; and

• other relevant factors like the public interest.

It is important to point out that fines for those parties found guilty of an offence under the new Act will increase markedly compared to the existing EPA legislation. As examples:

How can a Club minimise its environmental risks?

As we indicated above in this letter, we encourage all Clubs to take reasonably practicable steps to eliminate or minimise risk to the local environment.

To show EPA that a Club has thought about what is reasonably practicable, consider these factors:

1. Eliminate first: Can you eliminate the risk?

2. Likelihood: What’s the chance that harm will occur?

3. Degree (consequence): How severe could the harm be on human health or the environment?

4. Your knowledge about the risks: What do you know, or what can you find out, about the risks your activities pose?

5. Availability and suitability: What technology, processes or equipment are available to control the risk? What controls are suitable for use in your circumstances?

6. Cost: How much does thecontrol cost to put in place compared to how effective it would be in reducing the risk?

You need to consider these factors together as they will help you to determine what is reasonably practicable to control your risks. Attachment 1 of this letter provides several typical illustrations of how a golf club can make some improvements along these lines.

Download attachment 1

Consider how your Club can best eliminate the risks. This may be achieved by redesigning your activities to remove the source of risk in the first place. Sometimes of course complete elimination of risk may not be feasible.

Attachment 2 of this letter provides a simple, EPA-endorsed process for assessing your Club’s current environmental risk.

Download attachment 2

Importantly, Attachment 3 of this letter provides a suggested template for an environmental audit checklist to help Clubs periodically audit the range of routine operations associated with maintaining and improving the course and its physical infrastructure.

Download attachment 3 (pdf) or (excel)

Please read through the instructions in Attachment 3 before commencing an audit. Ensure appropriate people at the Club are notified beforehand and are involved in deciding any necessary corrective actions that may arise from each audit.

Closing Comments We hope that this letter and the attachments have provided you with a greater insight about the upcoming changes to Victorian environmental legislation. The processes and audit checklists in this letter are not intended to duplicate or replace any formal environmental management system (EMS) that your Club may already have in place. We nevertheless hope that this letter may prompt your Club committee to review and refine any existing EMS that you may be using. We reiterate that the practical suggestions contained herein are entirely voluntary. But please keep in mind that your Club’s adoption of processes described in Attachments 2 and 3, if conducted diligently and regularly, not only represent sensible environmental practice but also provide a solid body evidence of your Club’s appreciation and implementation of GED under the upcoming Act. We welcome any feedback, especially constructive suggestions for improvement, that this letter may generate. We would be interested to hear from you if the processes described in this letter have resulted in positive changes in the way that your Club manages its local environment. We gratefully acknowledge the assistance of Warren Pump, Principal/Director of Salient GeoEnvironmental Consulting Pty Ltd, for the preparation of this material. Don’t hesitate to contact John Stamp, Club & Facility Support Manager – Victoria, email john.stamp@golf.org.au or phone 0418 395 140 if you have any questions about this letter.

Victorian EPA Powers

In November 2020, Golf Australia alerted Victorian Clubs and Facilities of the upcoming new powers of the Environmental Protection Authority which come into effect 1 July 2021. By way of a reminder all Victorian businesses and industries including sporting organisations are required to take proactive steps to manage risks of harm from pollution and waste. Within a second communication sent to Clubs and Facilities in February we provided more information including processes by which our industry could assess their current environmental risks together with associated processes and checklists which we trust have been implemented.

In May 2021, we wrote to the Minister for Energy, Environment and Climate Change expressing our concerns regarding ss 349 and 350 of the new Act as they apply to officers and directors following which resulted in a meeting with senior management of the EPA including the draftsman of the new Act. As a consequence we were informed of the following points which have been verified by the lawyer acting for Golf Australia:

1. Victorian Clubs should be aware of recent amendments to theEnvironment Protection Act 2017 (EPA). These amendments (new ss 349 and 350) now make certain offences under the EPA apply to officers of corporations as well as the corporations themselves. Golf clubs are corporations for the purposes of the EPA.

2. Clubs should also be aware that the defence of “due diligence” is available to an officer under ss 349 and 350 of the EPA. This is a common defence and is effectively the same defence as “taking reasonable care” under the OH&S Act.

3. For a Club (and its officers) to demonstrate that is has exercised due diligence under the EPA it should:

a. ensure that its employers or agents are aware of the requirements of environmental laws and standards relating to the prevention or minimisation of environmental harm and ensure compliance; and b. establish an environmental management system and ensure its implementation and compliance; c. ensure its directors are personally familiar with the requirements of environmental laws and standards; d. ensure the Club and directors had taken all reasonable steps to comply with those laws and standards; e. take steps to ensure other relevant persons were familiar with any relevant laws and standards and compliance with those laws and standards; f. take steps to establish an environmental management system and to ensure familiarity and compliance with it by other relevant persons; and g. ensure it acted immediately and personally when it became aware of any non-compliance with the system or other incident connected with the environmental harm.

4. If Golf Clubs undertake activities that attract the EPA, then it is incumbent on those Club’s boards to be across those matters from a governance perspective.

We can advise that the meeting with the EPA was very positive and supportive of our concern and that at some future point in time amendments to the Act may occur. It was also noted that the EPA are yet to produce guidelines to the Act which they will do post 1 July. The guidelines will include definitions of ‘due diligence’ under the act to provide assistance to clubs. We look forward to continuing to work closely with the EPA throughout this process. Clubs and Facilities can find the details of the new Act on the EPA website below:

EPA website

Clubs and Facilities can refer to previous details including the processes and checklists provided by GA in the tab above.