Victoria’s new contaminated land duties recently commenced in July 2021 – as part of the broader environment protection regime implemented by the Victorian Government under the Environment Protection Act 2017.
This article sets out the key elements of those contaminated land duties and implications for business.
The contaminated land duties require persons with ‘management or control’ of land to notify and manage contaminated land – together with the general environmental duty to minimise risks as far as reasonably practical. We have summarised key elements of those duties in this article below.
If you have management or control of any contaminated land, or are undertaking any activities involving contaminated land, it will be important to understand whether any of those duties have been triggered for your business – and have a strategy in place to comply.
We expect that the Victorian Environment Protection Authority (EPA) may adopt a pragmatic approach to enforcement of the new contaminated land duties in the early stages.
That said – we also anticipate that the EPA may apply a higher standard against companies that operate in industry sectors familiar with contaminated land issues, or large corporations with significant management systems and resources that can obtain legal/technical advice to inform themselves of those duties.
Key Action Items + Risks
Key action items for companies will be to:
- Identify any contaminated land (or potentially contaminated land) over which they have management or control – noting that more than one person may fall into this bucket, and
- Assess the risk of contamination present at that land (incl. any existing environmental site assessments in the companies’ possession or control) to determine whether the duty to notify and/or manage has been triggered.
In our experience – a key risk area for companies will be sites where contamination is suspected (but not actually known) – and whether the new duties require those companies to undertake intrusive investigations to assess the risk and/or notify the EPA.
Another key risk issue arises for companies that manage or control land contaminated by a third party and how they meet their duties in those circumstances – including protecting any rights to statutory cost recovery from the polluter.
Duty to Notify
Prior to the commencement of the new contaminated land duties – Victoria was the only State in Australia which did not impose a statutory duty to notify contaminated land.
The new Victorian duty to notify contaminated land is triggered if:
- you are a person in ‘management and control’ of land;
- the land is contaminated above certain thresholds (referred to as ‘notifiable contamination’); and
- you become aware, or reasonably should have become aware, that the land you manage or control is contaminated by notifiable contamination.
Management or Control of Land
The EPA’s Guidelines provide that the question of who is in management or control of land will turn on the powers or control that a person can exercise over the land – including any decision-making powers. For example, if you hold a legal interest in the land (such as an owner or occupier) or have other legal rights of access to the land or to use of the land. This may require terms of existing leases, licences or other agreements to be reviewed to ascertain whether a duty exists.
More than one person may have ‘management or control’ of contaminated land and hold the duty to notify. The EPA Guidelines provide that notification by one of those persons will generally satisfy the duty to notify – however you need to have a reliable basis why you believe that notification has occurred.
It will be important for future leases, licences and other agreements to reflect the new contaminated land duties regime – and to ensure that the ‘management or control’ flowing from those contracts reflects the proposed allocation of liability for those duties between the parties.
Any identified contamination is only notifiable to the EPA if certain thresholds are likely met. This will require an analysis of whether specific substances are present, above specific concentrations and in specific circumstances.
The following broad circumstances may trigger notification:
- where a person is exposed, or is likely to be exposed, to the contamination (including friable asbestos);
- the presence of non-aqueous phase liquid (NAPL) (such as oils, fuel and certain solvents) in soil or groundwater;
- the contamination is migrating from the site onto adjacent land, into useable groundwater or into any surface water; and
- in relation to waste soil sourced from contaminated land – where it is proposed to be retained on site.
The EPA’s Guidelines provide that, as a general principle, the word likely has been interpreted to mean ‘real and not a remote chance or possibility’ for the purposes of determining whether contamination meets the threshold criteria to be notifiable contamination.
The duty to notify requires the person in management or control of the land to notify the EPA as soon as practicable after they become aware, or reasonably should be aware, of notifiable contamination.
The factors that will be taken into consideration by the EPA to determine whether a person in management or control of land should be aware of notifiable contamination are:
- the person’s skills, knowledge and experience;
- whether the person could practicably seek advice regarding the contamination; and
- other circumstances of the contamination.
The ‘reasonably should be aware’ of test is intended to ensure that persons do not ‘bury their head in the sand’ in relation to potentially contaminated land.
However, the EPA Guidelines provide that this test does not, in itself, require an investigation be initiated solely for determining whether or not notifiable contamination is present. Whether an investigation is required to discharge that duty will arise from a more detailed consideration of the factors above – and the duty to manage contaminated land discussed below.
There are a range of exemptions to the duty to notify which include, among other matters, where the EPA has already been notified.
A new notification may be required if new contamination is identified which is not covered by the original notice, or where the risk profile changes such as, for example, where there is a change of land use to a more sensitive land use. It is important to note that a Section 53V Audit that has been provided to the EPA does not in itself provide an exemption to the duty to the notify.
Under the duty to notify, the EPA requires information on what management response a person notifying has in place or is proposing to put in place to manage the contamination risks. The EPA may seek further information or require the involvement of an environmental auditor if the management response is not adequate.
Duty to Manage
The new duty to manage contaminated land requires any person in ‘management or control’ of contaminated land to minimise risks of harm to human health and the environment so far as reasonably practicable.
The EPA’s Guidelines provide that the duty to manage will only be triggered if:
- you are a person in management or control of land;
- the land is contaminated – such as where the person knows the land is contaminated or where, based on the circumstances of the land, it is reasonable to assume the land may be contaminated; and
- there are reasonably practicable actions that can be taken to minimise the risks of harm associated with the contamination.
The duty to manage may, subject to the facts and circumstances of the specific land, require persons in management or control of that land to:
- identify any contamination that the person knows or ought reasonably to know of;
- investigate and assess the contamination;
- provide and maintain reasonably practicable measures to minimise risks of harm, including undertaking clean-up activities where reasonably practicable;
- provide adequate information to any person you reasonably believe may be affected by the contamination; and
- provide adequate information to enable any person who is reasonably expected to become a person in management or control of contaminated land to comply with the duty to manage contaminated land.
General Environmental Duty
The general environmental duty requires any persons engaging in an activity associated with contaminated land to minimise those risks so far as reasonably practicable.
The duty will require companies to identify and assess any potential risks – and then to implement systems to minimise those risks, so far as is reasonably practicable.
In determining what is “reasonably practicable” the EP Act provides that regard must be had to the following matters:
- 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.”
We anticipate that any companies undertaking activities involving contaminated land (such as excavating contaminated soil and disturbing underground tanks) may need to meet a high standard of risk minimisation to meet the general environmental duty. It will be important to have a risk management system in place that meets applicable industry standards/best practice.
Authors: Ben Fuller, Ben Hayward and Nina Pearse.