News & Insights

• Watch the recording: Unpacking Victoria's New Environmental Protection Act - 3 June 2021

The new Victorian Environment Protection (EP) legislation introduces a number of new duties with regards to contaminated land including a duty to notify of contaminated land to the Environment Protection Authority (EPA) and a duty to manage contaminated land. The EP legislation introduces duties that affect those that manage or control contaminated land and, as such, both should familiarise themselves with the new duties a in order to ensure compliance and prepare for increased EPA enforcement activity.

Under the EP legislation, land would be considered contaminated if waste, chemicals or a prescribed substance is present on or under the surface of the land that is present in concentration above the background level and creates a risk of harm to human health or the environment. A background level of waste or substances in relation to the land is either the background level specified in regulations or environmental reference standards or the naturally occurring concentration in the vicinity of the land.

The Duty to Notify the EPA of Contamination

The new duty dictates that a person in ‘management or control’ of a site must notify the EPA ‘as soon as practicable’ when they become aware of or ‘reasonably should have become aware of’ any ‘notifiable contamination’.

What is ‘notifiable contamination’?

Under the new EP legislation and draft subordinate legislation, there will be a range of triggers for notification of contamination. Deciphering the specific application of the notification triggers will require technical understanding and interpretation. Therefore, where a person is in management or control of potentially contaminated land, consultation with EPA or a suitably qualified environmental consult is considered prudent to help comply with the new EP legislation and avoid penalties.

An example of a notification requirement could be for a person in management or control of contaminated land where contamination from a disused underground fuel storage system is located near a property boundary with the adjacent land use being a sensitive childcare centre. In this scenario, notification to EPA would be required where the contamination from the underground fuel storage system is ‘likely’ to enter and remain on the adjacent land and is ‘likely’ to be at or above the health investigation criteria as defined under the National Environment Protection Council’s guidance. 

What is the penalty for failure to notify?

A failure to notify the EPA of contaminated land will incur a penalty of approximately $14,000 per person and approximately $40,000 per body corporate.

The Duty to Manage Contaminated Land

The current contaminated land regulations focus on providing notices to remediate contaminated land and do not provide requirement for a proactive duty to manage it. Under the new EP legislation 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'.

What does it mean to ‘manage contaminated land’?

In order to comply with the with the duty to manage contaminated land the EP legislation provides definition of actions required which includes but is not limited to:

• identification of any contamination that the person knows or ought reasonably to know of;
• investigation and assessment of the contamination;
• provision and maintenance of reasonably practicable measures to minimise risks of harm to human health and the environment from the contamination, including undertaking clean-up activities where reasonably practicable;
• providing adequate information to any person who might be affected by the contamination; and
• providing adequate information to any person who is reasonably expected to become a person in management or control of the contaminated land.

It is also noted that the new EP legislation provides specific recourse for the person who becomes in management or control of land to recover in court, ‘as a debt due to the person’, any ‘reasonable costs’ incurred in complying with the duty against ‘any person’ responsible for causing or contributing to contamination of the land. This duty provides a much more robust legislative vehicle to enact the notion of ‘polluters pay’ especially in the case of property transfers.

Auditing Under the New Contaminated Land Duties

The introduction of the new Victorian EP Act will see the abolishment of Section 53V and 53X audit systems and the introduction of a two-stage process of Preliminary Risk Screen Assessments (PRSA) and Scaled Audits.

Preliminary Risk Screen Assessments (PRSA)

A business would engage an auditor to undertake a desktop study and site inspection to determine whether a full environmental audit is required. There is no requirement to perform a PRSA prior to a full environmental audit, however it may assist in developing the scope of the audit.

Scaled Environmental Audits

The primary purpose of a full environmental audit is to assess and manage the risks of harm to human health and the environment and provide the necessary information for decisions to be made regarding the use of the land. 

How to Prepare for the Changes

The new EP legislation introduces specific duties that s that affect both t managers and those in control of sites. As duty holders, managers or those in control of contaminated land must minimise the risks of harm so far as reasonably practicable. In similar fashion to the OHS Act. The EPA will give regard to the following when determining if a person’s actions are considered ‘reasonably practicable’:

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

Failure to comply with the contaminated land duties with the General Environmental Duty can result in fines, a remedial notice and/or having an operating licence suspended or revoked by the EPA. As the contaminated land duties fall on the person in ‘management or control’ of a site, it is therefore important for owners and occupiers of both higher and lower risk sites to identify and understand and document their risks and develop appropriate management plans to control the risk so far as reasonably practicable.