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
The duty to manage applies to what you know about contamination on land you manage or control.
You may have existing information about contamination on your land. You should also investigate when you suspect contamination from:
- activities you’ve undertaken, or incidents such as spills
- past use, such as manufacturing or mining activities, and storage of chemicals or waste.
It’s important to identify potentially contaminated sites because they can cause harm to human health and the environment. What you know, or should reasonably know, about land and contamination can also change over time. To meet your duty to manage contaminated land, you may need to engage an expert for advice.
You can comply with this duty by:
• identifying contamination you suspect is present
• investigating and assessing contamination, with professional help
• providing and maintaining measures to minimise risk. This may include clean up to make the site suitable for its current use
• providing information to others who contamination may affect, where sharing that information will help control the risks.
EPA has released Assessing and controlling contaminated land risks: a proposed guide to meeting the duty to manage for those in management or control of land (publication 1977) to help you.
EPA’s approach to implementation of the duty to manage
The first year of the new environment protection scheme, from 1 July 2021, is about raising everyone’s level of understanding of their duties, and their management of risks.
EPA is committed to a proportionate approach to compliance and enforcement. Our approach considers your risks, state of knowledge, and your history of EPA engagement.
About the duty to notify of contaminated land
In addition to the duty to manage, which is the primary contaminated land duty, you may also have a duty to notify EPA of confirmed contamination. The Environment Protection Regulations (the Regulations) define ‘notifiable contamination’. It includes contamination that is present in levels above a certain threshold and is either:
- exposing a person to those contaminants, or
- is moving, has moved or is likely to move off your land.
EPA has released a guideline to help you understand the duty to notify.
This guideline sets out:
- information about the duty and who it may apply to
- guidance on the definition of notifiable contamination set out in the Regulations and how to identify it on your land
- the types of contamination that are exempt from notification
- guidance on the information you need to provide when notifying EPA.
See, Notifiable contamination guideline: Duty to notify of contaminated land (publication 2008).
If you have existing information on contamination, environmental experts can help you work through the Notifiable contamination guideline to understand if you need to notify EPA.
As part of meeting your duty to notify you will need to provide information on your management response or proposed management response. EPA recognises that duty holders will need time to explain their management response. Assessing and controlling contaminated land risks: a proposed guide to meeting the duty to manage for those in management or control of land (publication 1977). will be an important source of information to refer to, before you notify EPA.
EPA’s approach to implementation of the duty to notify of contaminated land
While EPA takes compliance with the duty to notify seriously, we recognise that it will take time for you to understand the duty and assemble the necessary information to make your notification. In order to meet EPA’s expectations, you should:
- first focus on the duty to manage, and read the guideline EPA has produced to help you meet this duty
- if you may have notifiable contamination, then work through the Notifiable contamination guideline
- ensure you have the information EPA requires for your notification, including on your management response or proposed management response
- call EPA to start your notification process once you are satisfied you have notifiable contamination, and you have the information you will need to provide.
Provide feedback on Duty to Manage and Duty to Notify
EPA released two proposed guidelines to support duty holders to comply with the new contaminated land duties:
- Assessing and controlling contaminated land risks: A guide to meeting the duty to manage for those in control of land (publication 1977)
- Notifiable contamination guideline - Duty to notify of contaminated land (publication 2008)
We are now seeking feedback on how clear and easy to use the guidelines are. You can provide feedback through Engage Victoria.
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 for consultation until 1 February 2022. We will consider all submissions before finalising the guidance.
Read more about contaminated land
Contaminated Land Policy (publication 1915)
Potentially contaminated land – A guide for business (publication 2010)
Reviewed 4 January 2022