Unwrapping Victoria’s general environmental duty to plastics communities: Synthetic statutes

Plastics pollution and environmental justice at the international level

Plastics pollution has been identified as an issue of global inequality since the 1990s. Like many other types of waste, plastics are overwhelmingly consumed in wealthy countries and then exported as waste to poorer countries. The latter countries often have relatively unregulated waste management practices and fewer resources to address the health and environmental risks associated with plastics waste. ³ This phenomenon has been referred to as ‘waste colonialism’. ⁴ At the same time, many of these countries are navigating an increase in their domestic production and consumption of plastics, creating a ‘double burden’. Furthermore, moving away from the production or use of plastics is likely to negatively affect workers whose livelihoods centre around managing plastics waste. ⁵

Thus, ideas of environmental justice are extremely relevant to the life cycle of plastics. Environmental justice is a multi-faceted concept ⁶ that considers environmental issues through the lens of social justice concerns. Principles of environmental justice include: people should not be unequally burdened with environmental harms; affected communities should have a say in the regulation of neighbouring polluting industries; communities should be treated respectfully in their engagements with government; and communities ought to be on a level footing with developers when they encounter the law. ⁷ Environmental justice also advocates for compensatory or amelioratory benefits, such as grants, activities and green space for communities hosting potentially harmful industries and activities.

Plastics communities in Victoria

In the Victorian context, plastics communities in Melbourne’s north and west bear the brunt of environmental harms associated with plastics manufacture and storage. These plastics communities have also been identified as future sites for plastics incineration.

Plastics manufacturing occurs in the northern suburbs of Campbellfield, Dallas and Coolaroo, and in the south-eastern suburb of Dandenong – some of Melbourne’s least socially and economically advantaged neighbourhoods. Manufacturing plants are also located close to residential areas, schools, retail, hospitality zones and protected grasslands.

In addition to the risks posed by manufacturing, plastics storage has negatively affected Victorian communities on several occasions. In 2018, the EPA identified dangerous stockpiles of recycling waste across the state, including in Melbourne’s western suburbs. ⁸ An earlier report had also detailed the experiences of residents in Melbourne’s west dealing with nearby rubbish tips and waste dumps. ⁹ Plastics stockpiles also exist in the city’s north where, in 2017, residents of Dallas were evacuated following a fire that broke out at a paper and plastic recycling factory. The fire lasted for 20 days and occurred after multiple fires had taken place at the same plant. ¹⁰ The EPA stated that air quality near the plant was ‘very poor’. ¹¹ Similarly, in May 2021, a brick warehouse storing plastics in an inner suburban area just south of Melbourne’s CBD was engulfed in flames, leading to the closure of a school and the EPA advising residents to stay indoors. ¹²

Issues involving plastics storage are likely to continue, given the projected increase in the number of recycling factories in Victoria and the decreased opportunities for plastic waste export. Thirteen new recycling projects, including facilities capable of recycling plastics, paper, glass and tyres, have been proposed in the suburbs of Melbourne and, regionally, in Mildura and Warrnambool. ¹³ One of these projects is a PET recycling plant to be built in Altona North. It has received $6 million in funding and is projected to recycle 26,000 tonnes of collected plastic bottles following completion in 2023. ¹⁴ Construction has also been announced of a recycling plant in Laverton North that will be capable of converting plastics into food grade rHDPE and rPP resin. This plant is expected to be operational by December 2022. ¹⁵

Waste incinerators are also under development in Laverton North and Dandenong South. ¹⁶ Medical experts and community groups have raised concern for communities living near plastic incinerators, given the increased risk of negative health impacts. ¹⁷

Environmental justice and the general environmental duty in Victoria

International legal frameworks – like the Stockholm Convention, the MARPOL Convention, the United Nations Convention on the Law of the Sea, and the London Convention – have largely failed to recognise the environmental justice dimensions of plastic, ¹⁸ although the Basel Convention and, to a lesser extent, World Trade Organisation instruments are exceptions to this. ¹⁹ Fortunately, some domestic jurisdictions, including the state of Victoria, are broadening their recognition of harms caused by plastics.

The concept of ‘environmental justice’ was introduced into the Victorian policy lexicon through a 2011 review of EPA operations. This review recommended, among other things, that the EPA improve its responsiveness to community concerns regarding environmental harms. As part of this recommendation, the review suggested adopting an environmental justice regulatory approach, which the government later committed to as an organising principle for the EP Act’s reform. ²⁰ The reformed Act created the GED, which imposes an obligation on all Victorians to manage environmental risks arising from their activities. The Act also created more meaningful ways for communities to be involved in enforcing and upholding the law, ²¹ including by way of third party appeals and enforcement. ²²

The GED is intended to be a flexible tool that captures a broader range of harmful activities than the previous legal regime. ²³ Unlike the previous regulatory regime, the GED is proactive and preventative in focus; the EPA is no longer required to wait for pollution to occur before it can act. ²⁴ Faced with risks like those outlined in Figure 1 (following), the EPA can act pre-emptively to protect human and environmental health from pollution. Additionally, if the EPA does not act, then the community can take action instead.OPEN IN VIEWER

Who can a claim be brought against?

The GED applies to those persons engaging in activity that gives rise to risks of harm arising from ‘pollution’ or ‘waste’. ²⁵ ‘Pollution’ or ‘waste’ would extend to emissions, such as carbon and methane, created by the plastics cycle and plastics waste (see Figure 1, following). Persons, including plastics industries, engaged in plastics manufacture or disposal could thus have a claim brought against them under the GED.

Section 25(4) provides a non-exhaustive list of activities that contravene the GED. If the EPA or a community member or group with standing identify any of these activities, they can bring a GED claim against plastics industries. These activities include a failure to:

• use and maintain facilities, equipment, processes and systems in a manner that minimises risks of harm to human health and the environment from pollution and waste;

Who can bring a claim?

A civil claim can be brought against a business or individual that has breached the GED in order to secure a financial penalty or directions for a change of practice. An action for breach of the GED may be brought by the EPA or by an ‘eligible person’. ²⁶ An eligible person is a person whose interests are affected by contravention of or non-compliance with the GED. These standing provisions are an improvement on the previous Environment Protection Act 1970 (Vic), as enforcement of that Act was far more limited and almost exclusively a function of the EPA. ²⁷

The Victorian GED includes an explicit reference to human – rather than solely environmental – health. For the purposes of being an ‘eligible person’, ‘interests’ may therefore extend to actual or potential impacts on human health. Given the case law under the previous Act, such as the Dual Gas decision, ²⁸ and the proximity of communities in areas such as Dallas, Broadmeadows, Dandenong and Campbellfield to plastics manufacturing, storage and incineration, it is highly likely that the interests of these communities will be impacted by the plastics cycle, particularly given the health conditions linked to plastics emissions (noted in Figure 1).29

Plastics manufacturing, storage and incineration facilities may also be located close to protected grasslands and parklands. For example, plastics-related plants in Campbellfield and surrounding suburbs are close to the Bababi Marning (Cooper St) Grassland Nature Conservation Reserve. This reserve is an important part of the larger Merri Creek Marran Baba Parklands, which is a critical biodiversity corridor. Environmental conservation groups, particularly those co-located with impacted plastics communities, may also be considered eligible persons under the EP Act. Such groups could bring claims against plastics industries that are not taking positive steps to minimise environmental risks as required under the GED.

A person whose interests are not ‘affected’ in the manner outlined above, such as a city-based environment group, may need to make a case to have standing to bring a GED claim. For such a person to be able to bring a GED claim, the court must be satisfied that:

• it would be in the public interest to allow the civil claim to proceed;

Establishing existence of risk of harm

To establish a contravention of the GED, the applicant needs to establish the existence of a risk, meaning ‘the likelihood of injury or illness arising from exposure to a hazard’. ³⁰ This is an objective inquiry. ³¹ It is not necessary for the risk to have eventuated for plastics industries to breach their duty – the purpose of the duty is to prevent harms or injury.

In its explanatory materials for the business community, the EPA states that common obstacles to fulfilling the GED (ie activities that generate risks) include:

• business activities that produce noise, odour or runoff to stormwater;

Manufacturing plastics involves a range of chemical processes that may have negative impacts on the human body and the environment (see Figure 1). Plastics storage and incineration emit toxic fumes, which have been linked to a range of cancers and various health conditions related to the endocrine and nervous systems with human exposure occurring through: inhalation (air); ingestion (water and soils); and skin/contact (air, water and soils).

These risks of harm to human health and the environment caused by exposure to the plastics cycle are well-documented. Having satisfied the standing requirements, it should be fairly straightforward for plastics communities to establish that there is a relevant risk of harm. It is worth noting that, unlike GEDs in other Australian jurisdictions, the Victorian GED does not stipulate how likely the realisation of a harm must be – even a small likelihood of the risk eventuating may be enough to satisfy this requirement.

Establishing failure to minimise risk so far as ‘reasonably practicable’

Once a risk is established, the next question is whether the plastics industries alleged to have breached the GED have done all that is reasonably practicable to minimise that risk. Plastics communities need to show that the plastics industries have failed to minimise the risk so far as reasonably practicable.

The EPA has released guidance notes on interpretation of the term ‘reasonably practicable’ for the purposes of the GED. ³³ The guidance notes explain that taking reasonably practicable action means putting in place proportionate controls to eliminate or minimise risks of harm. Additionally, to determine what is reasonably practicable in relation to the minimisation of risks to human health and the environment, there must be regard to: ³⁴

• the likelihood of those risks eventuating;

Judicial consideration of what constitutes reasonable precautions in other areas of law, including negligence, could be helpful in determining the ‘reasonably practicable’ steps that may be required to minimise risks to the environment and human health. ³⁵ The leading interpretation of the wording ‘reasonably practicable’ comes from the High Court in Baiada Poultry Pty Ltd v R. ³⁶ The Court stated that the term ‘reasonably practicable’ does not require a duty-holder to take ‘every possible step that could be taken’. ³⁷ Additionally, the Victorian Supreme Court recently rejected that the argument ‘reasonable practicability’ involves a concept of necessity, stating that ‘“practicable” means “capable of being done”, not “needing to be done”’. ³⁸

Determining whether an action to minimise a risk is ‘reasonably practicable’ requires weighing up the risk and its likelihood against considerations of time, cost and trouble. ³⁹ A severe gravity or high likelihood of the risk will make precautions more reasonably practicable. Correspondingly, the time, cost and trouble required to implement a particular action to minimise a risk may render it impracticable. Determining reasonable practicability is, therefore, a factually specific inquiry.

Graham Barclay Oysters Pty Ltd v Ryan highlights that in certain situations – where a ‘very rare event’ occurs, a lack of statutory power exists, or a business needs to cease operation indefinitely – a person may not need to take certain steps to fulfil their duty of care. ⁴⁰ Graham Barclay Oysters also indicates that where a business has considered precautions that were reasonable in response to a potential risk the realisation of the risk does not require more. The High Court held that this was a reasonable response to the low risk of harm and in accordance with industry practice. ⁴¹ The Court further confirmed that a business should not be required to do things that it does not have the power to do, such as offsite testing. ⁴²

In circumstances where there are well-known risks that fall within the EP Act – for instance, those that trigger licence requirements for plastics industries – and where the business has not put in place a comprehensive risk management regime, reasonable precautions will be all those things that a business can do to decrease harms while still operating, even if those precautions may decrease profits. The more severe or likely the risk, the more expensive precautions will become reasonable.

If there is proof that it was reasonably practicable, on an objective standard, to minimise the risks to human health or the environment, the fact that a business might be struggling financially will not limit the application of the GED. Arguably, if the risk has been realised – that is, environmental or human health harm is proven – then the realisation of that risk will require plastics industries to do everything available to them to ameliorate the risk, except for adopting measures that would bankrupt an otherwise financially prudent business outright. This could include temporary shutdowns, the adoption of new technologies or the adjustment of processes. Where risks cannot be managed, and harms persist, the GED may prevent plastics industries from operating.

Barriers to accessing justice

Although the GED empowers plastics communities in many ways, affected persons and groups may nevertheless face barriers in bringing a GED action, ⁴³ particularly since, as discussed above, Victorian plastics communities often overlap with socially and economically disadvantaged populations. Such barriers may include:

• being unaware of the EP Act and the GED as a viable legal avenue, a barrier that the authors are seeking to address through their research;

Recycling the OHS Act

The GED was modelled on the general duty imposed on employers under the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’). Under the OHS Act, employers ‘must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health’. ⁴⁵ Interpretations of this duty may provide guidance on how the GED will be understood, although courts have cautioned transposing ideas across different areas of the law. ⁴⁶

To fulfil the duty imposed by the OHS Act, employers are required to take an active and flexible approach to identifying risks. ⁴⁷ Duty-holders must be constantly considering risks and the reasonable practicability of minimising those risks. Risk management system manuals and registers ⁴⁸ and safety procedures ⁴⁹ have been referred to in case law as actions that may show an employer was actively fulfilling this duty. However, even if an employer actively considers risks and minimisation, the court may still query whether their approach is adequate. ⁵⁰ The substantive nature of the obligation may be informed by evidence such as industry codes of practice, industry regulations and general industry knowledge. ⁵¹

This suggests that plastics industries may be more likely to be held to have breached the GED if they do not have an environmental management system, do not have publicly available data and information about environmental risk management, do not have dedicated environmental personnel, and are not adopting best practice industry knowledge.

Interpretations of the OHS Act also provide the following guidance for understanding the GED in the context of plastics:

• the risks will be determined by a factually specific consideration of the activity that the duty-holder (meaning, in this context, plastics industries) is engaged in. For plastics communities, the risks will be defined by location and conduct;

The general environmental duty in other jurisdictions

In states and territories with GEDs similar to Victoria’s, ⁵² courts have found the following measures to be reasonable and practicable, such that a failure to undertake those measures may constitute a breach of the GED:

• having a management plan that sets out measures to prevent or minimise environmental harm; ⁵³

Drastic times call for plastic measures

The Victorian GED empowers plastics communities to take action against plastics industries, although these communities will continue to face some barriers in accessing the law. Most plastics industries fall squarely within the scope of the EP Act and its GED, and many plastics communities may be eligible to bring claims against these industries. Establishing that there is a risk of harm ought to be relatively straightforward for many plastics communities. What remains to be seen is how courts analyse the key issue of whether a risk was minimised ‘so far as reasonably practicable’ – this is a highly fact-specific inquiry and, while other regimes and jurisdictions may shed some light on the nature of these inquiries, ultimately these are not binding on Victorian courts applying the GED.

The GED helps to ensure that plastics industries have risk management measures in place that prevent environmental or health disasters before they occur. Plastics industries will need to constantly monitor for potential risks and take all reasonably practicable steps to reduce them. If the EPA does not scrutinise plastics industries engaging in potentially harmful behaviour, plastics communities can use the law to protect people and the environment, as this article has demonstrated. In so doing, plastics communities can contribute to improvements in Victoria’s environment and human health. While this article has focused on plastics communities, the GED can be similarly applied to coal communities, aluminium communities and gas communities across the state. Collectively, these communities can utilise the GED to effect local change, and to bring about global benefits and improve environmental justice.