From 1 July 2021, contaminated land duties address risk of harm from contamination of land and groundwater. They work alongside the general environmental duty (GED). Unmanaged contamination can cause harmful changes in land or groundwater quality, posing a risk to human health and the environment.
Depending on the contamination status of your land (including groundwater), your duties and obligations may include:
- your general environmental duty to manage risks that your activities involving contaminated land pose
- your duty to manage contaminated land
- your duty to notify EPA of contamination.
Unlike the GED, the duty to manage and duty to notify apply regardless of whether you’re undertaking an activity. You can find a detailed explanation of the duties and EPA’s expectations in the Contaminated land policy (publication 1915).
Summary of the contaminated land duties
The contaminated land duties apply to you if land you manage or control is contaminated.
When contamination is present, or you suspect it’s present, you have a duty to manage the risks from that contamination. This is the case even if the contamination happened before you took control of the land.
Working out whether you’re in management or control of land
You’re in ‘management or control’ of land if you can exercise power over that land. For example, if you:
- hold a legal interest in the land, such as owner, leaseholder or committee of management, or
- have access to the land or use of the land.
A person in management or control of land is a ‘duty holder’ under the contaminated land duties. Sometimes more than one person is a duty holder for the same land. For example, an owner and an occupier share management or control of land. The extent of their duties relates to the level of management or control they each have.
About the duty to manage contaminated land
Section 39(2) of the Environment Protection Act 2017 (the Act) outlines the duty to manage contaminated land. The duty to manage requires you to take reasonably practicable measures to minimise risks of harm to human health and the environment.
You have a duty to manage contaminated land if:
- you are in management or control of land, and
- the land meets the definition of contaminated land in Section 35 of the Act.
You are in management or control of the land if you exercise power or control over that land, or if you share power or control. You will need to consider if the land, including groundwater, has the potential to be contaminated. We will consider if you reasonably ought to have known about the contamination in our approach to compliance and enforcement.
You have a duty to manage contamination on your land even if you did not cause the contamination. You have a right to recover reasonable costs from the person who caused or contributed to the contamination.
You can comply with the duty to manage by:
- identifying contamination you suspect is present
- investigating and assessing contamination, with professional help
- providing and maintaining measures to minimise risk. This may include:
- interim controls while you assess the contamination
- clean up to make the site suitable for its current use
- review of controls to ensure they remain effective.
- providing information to others that the contamination may affect, where sharing that information will help control the risks.
The measures used to minimise risk should consider what is reasonably practicable. They should also consider the hierarchy of risk controls.
Read Guide to the duty to manage (publication 1977.1) to help you.
About the duty to notify of contaminated land
The duty to notify of contaminated land applies to you if you are in management or control of land and should reasonably have been aware of notifiable contamination of the land.
The duty to manage is the primary contaminated land duty. Under the duty to manage, you must reduce the risks of harm so far as reasonably practicable.
You may also have a duty to notify of contaminated land EPA about the contamination. Some contamination is 'notifiable contamination'.
The Environment Protection Regulations (the Regulations) define notifiable contamination. It includes contamination above a certain threshold and is either:
- exposing a person to those contaminants, or
- moving, has moved or is likely to move off your land.
Section 40 of the Environment Protection Act requires you to notify EPA if your land has notifiable contamination.
Notification helps EPA understand the extent of land and groundwater contamination in Victoria. It also helps EPA respond strategically to contaminated land issues.
First focus on the duty to manage, and read the guideline EPA has produced to help you meet this duty.
If the contamination means there is imminent risk, tell EPA right away through the pollution hotline. This is separate to the duty to notify of contaminated land. The duty to notify of contaminated land requires you to give EPA more detailed information about the extent of contamination and what you are doing to manage it.
The Notifiable contamination guideline will help you confirm if you have a duty to notify.
The types of contamination that are notifiable are:
- contamination of soil (including friable asbestos) that exposes a person to that contamination
- contamination of soil that is moving, has moved or is likely to move onto adjacent land
- contamination of groundwater that is being used, or may be used
- the entry of contamination into surface water
- contamination of soil or groundwater that indicates a risk of exposure to vapour
- any presence of non-aqueous phase liquid (NAPL) in groundwater, surface water or an aquifer
- contaminated soil sourced from that land that can be lawfully retained onsite.
The thresholds and substances are set out in technical documents such as:
- Section 6 of Schedule B1 of the NEPM (ASC)
- the Australian Drinking Water Guidelines
- the Australian and New Zealand Guidelines for Fresh and Marine Water Quality
There are circumstances that are exempt from notification. This includes when a notification was already made for the contamination. The Regulations also prescribe some contamination as exempt:
- lawfully stockpiled industrial waste
- land that is under a remedial notice issued under the Environment Protection Act 1970 (1970 Act), if the condition of the land has not changed
- land where an environmental auditor issued a certificate or statement under the 1970 Act, the condition of the land has not changed, with no impacts on adjacent land
- contamination with a waste or substance that isn't included in section 6 of Schedule B1 of the NEPM (ASC).
Environmental experts can help you to understand if you need to notify EPA. You can authorise them to complete the notification on your behalf.
You then call EPA to start your notification process as soon as practicable. There are forms to guide you through the information required for your notification. You will need to include your proposed management response.
EPA will acknowledge your notification and may contact you to request copies of your documentation. EPA may assess your management response to make sure you are meeting your duty to manage.
If you don't notify EPA about notifiable contamination, you may have committed an offence. When deciding what enforcement action to take, EPA will consider:
- your skills, knowledge and experience
- whether you could practicably have sought advice
- the circumstances of the contamination.
How the GED works with the new duties
The GED may apply in relation to contaminated land if you undertake an activity such as:
- excavating contaminated soil
- disturbing underground tanks.
If you undertake such activities, you must minimise risks.
How EPA understands the definition of contaminated land
You may already know of contamination on your land, or be assisting someone who does. To check if land falls within the definition of contaminated land, read Contaminated land: Understanding section 35 of the Environment Protection Act 2017 (publication 1940).
Assessing the background levels of waste, a chemical substance, or a prescribed substance on land is an important step in understanding if the land is contaminated.
The background level is the naturally occurring concentration of waste, a chemical substance, or a prescribed substance on or under the surface of the land, or, in the vicinity of the land. This is when the background levels are not specified in the Regulations or an environment reference standard (ERS).
EPA has developed Background levels: Identifying naturally occurring concentrations (publication 2033)to support duty holders assessing background levels. This draft guidance includes a method and approach for assessing background levels and includes case studies.
The draft guidance is available on Engage Victoria. The finaised guidance will be available on our website shortly.
Read more about contaminated land
Contaminated Land Policy (publication 1915)
Potentially contaminated land – A guide for business (publication 2010)
Reviewed 5 October 2022