New contaminated land duties – Victoria's new framework for managing and reporting contaminated land

On 1 July 2021, the Environment Protection Act 1970 (Vic) was repealed and replaced by the reforms introduced by the Environment Protection Act 2017 as amended by the Environment Protection Amendment Act 2018 (Vic). The 2017 Act is now the central environment protection legislation in Victoria.

As part of the overhaul of the environment protection regime, new contaminated land duties were introduced. There is no transition period for these duties, and anyone that owns, occupies or undertakes activities on contaminated land needs to understand and comply with these new obligations.

The new duties for contaminated land in Victoria

There are two key duties directly related to contaminated land:

• Duty to manage contaminated land – A person in management or control of contaminated land must minimise risks of harm to human health and the environment from the contaminated land so far as reasonably practicable. Section 39(2) of the 2017 Act provides an incomplete list of activities that can be carried out to minimise risks, including identifying and investigating contamination, undertaking clean-up activities, and providing information to affected third parties and future owners/occupiers of the land.
• Duty to notify EPA of notifiable contamination – A person in management or control of land must notify EPA as soon as practicable after the person becomes aware, or reasonably should have become aware, that the land is contaminated by notifiable contamination. Notifiable contamination is a subset of contaminated land and is prescribed by the Environment Protection Regulations 2021. The regulations also prescribe certain contamination that is exempt from the duty to notify.

Together with the general environmental duty, these duties create an escalating level of obligation corresponding to the status of the contamination on the land.

• The general environmental duty will apply to any activity that may give rise to risks of harm to human health or the environment from pollution or waste, and requires the person undertaking the activity to minimise those risks so far as reasonably practicable.
• The duty to manage will apply where there is potential, or known contamination, requiring the person managing or controlling the land to minimise risks so far as reasonably practicable
• The duty to notify only applies where there is 'notifiable contamination' and requires notification to the EPA in an approved form, containing prescribed information

The new duties apply to land contaminated before, on or after the commencement of the new regime on 1 July 2021.

Who bears these new duties for contaminated land

Both of these duties apply to the person "in management or control" of the contaminated land.

More than one person can be in management or control of land, so the responsibility of complying with these duties can be shared.

EPA guidance recommends that parties who share the duty to manage discuss and agree on how to manage contamination where they all share the duty to manage. You can read more about this in Assessing and controlling contaminated land risks: A guide to meeting the duty to manage for those in management or control of land (EPA Publication 1977, June 2021).

Where more than one person is in management or control of land contaminated with notifiable contamination, generally only one person will need to make the notification. The other persons in management or control of the land will not be required to notify where they are aware that EPA has already been notified. If you are sharing management or control of land with other parties, it will be important to have a system in place to inform the other parties of notification to EPA.

What you should be doing if you manage or control contaminated land in Victoria

If you manage or control contaminated land or potentially contaminated land:

• review EPA's guidance in relation to the duty to manage – see Assessing and controlling contaminated land risks: A guide to meeting the duty to manage for those in management or control of land (EPA Publication 1977, June 2021)
• update your systems and processes to reflect the new requirements including providing information to third parties affected by contamination on your land, and future owners / occupiers of land
• if you have contractors or tenants on your land, review your contract documents to understand the degree of management or control that you have over the land and the extent to which this has been assigned to the tenant or contractor
• seek technical and/or legal advice if you are unsure about the scope of your obligations

If your land is only potentially contaminated land, seek advice if you are unsure of the scope of your obligations and review EPA's guidance Potentially contaminated land – A guide for business (EPA Publication 2010, July 2021).

If you have notifiable contamination on your land:

• review EPA's guidance in relation to the duty to notify – see Notifiable contamination guideline: Duty to notify of contaminated land (EPA Publication 2008.1, July 2021)
• review your contractual documentation (if applicable) and discuss with any other parties who are also in management or control of the land to ensure you understand who will make a notification to EPA
• gather the necessary information and notify EPA – the duty to notify has been in force from 1 July 2021 and there is no transition period

Look out for our next article in this series, which will address the general environmental duty.

Key provisions and publications for the management of contaminated land (As at 2 August 2021)

We have compiled a list of the key provisions of the 2017 Act and key EPA publications in relation to contaminated land that may also be a useful reference point for you.