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 over 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.
About the duty to notify
You may also have a duty to notify EPA of confirmed contamination. The proposed 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.
You must notify EPA as soon as practicable once you become aware of notifiable contamination.
By reviewing the information you have and advising on whether it meets the definition set out in the Regulations, environmental experts can work out if you need to notify EPA.
If you already know of significant contamination from past investigations or reports, you probably have enough information to notify us.
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).
Read more about contaminated land
Contaminated Land Policy (publication 1915)
Reviewed 22 February 2021