Contaminated land management under the new Victorian environmental protection laws

What you need to know

• The Environment Protection Act 2017 (Vic) will introduce a new regime for contaminated land, including a stand-alone definition of "contaminated land" and new duties to manage contaminated land and notify the Victorian EPA of "notifiable contamination".
• The draft Environment Protection Regulations define the scope of "notifiable contamination". 
• The Regulations prescribe that information on the (proposed) management response in respect of notifiable contamination must be included in the notification to the EPA.  

What you need to do

• Consider whether your business or organisation will be required to comply with the contaminated land management regime in the new Act and Regulations. 
• Ensure that your business or organisation has updated its practices, policies and procedures so that it can identify notifiable contamination, and ensure the EPA is notified as required. 
• Ensure that management responses, or proposed management responses, to contamination are included in any notification to the EPA about notifiable contamination.

This edition of our Victorian Environmental Alert series expands upon our high level overview of the new contaminated land management regime in the Environment Protection Act 2017 (Vic) (New EP Act) and proposed Environment Protection Regulations (Regulations).  

As outlined in Edition 4 of our New Victorian Environmental Protections Law series New duties for the reporting and management of contaminated land (17 Sept 2018), the New EP Act and draft Regulations introduce two new duties on persons who are in management or control of contaminated land: 

(a)  a duty to manage contaminated land; and 
(b) a duty to notify the EPA of "notifiable contamination".  

The Regulations and draft Environment Reference Standard (ERS), released for public comment on 2 September 2019, prescribe the detail of these new duties, in particular what is a "notifiable contamination".  

The period for public consultation on the Regulations and ERS has now closed.  We consider it unlikely that broad scale amendments will be made to the Regulations or ERS as a result of submissions made during this consultation period.  

What is "contaminated land"? A new definition

The New EP Act introduces a stand-alone definition of contaminated land.  

Land will be considered contaminated if "waste, a chemical substance or a prescribed substance" is present on, or under the surface of the land: 

• in a concentration above the background level; and 
• which creates a risk to human health or the environment. 

The ERS specifies that "background level" means the levels of an "indicator" (such as pH, sulfates or heavy metal contaminants), measured in geologically similar land containing a measurable level of that indicator, outside the influences of any contamination. 

The New EP Act provides that land will not be contaminated merely because a waste, chemical substance or prescribed substance is present in surface water at a concentration above the background level, or if any prescribed circumstances apply to the land.  No circumstances have yet been prescribed by the Regulations.

What is "notifiable contamination"? 

In practice, the Regulations and ERS have not added much to the duty to manage contaminated land.  However, the Regulations and ERS are integral to the duty to notify.

The Regulations provide clarity on what is expected of duty holders to identify and notify the EPA of contamination.  

"Notifiable contamination" is defined in the New EP Act to mean contamination that is prescribed, or where not prescribed, contamination where the reasonable cost to remediate the land is likely to exceed $50,000 or any other prescribed amount.

The Regulations prescribe a number of types of notifiable contamination, including in relation to: 

• soil contamination, both on the land under management or control, or on adjacent properties, where the "contaminant" is likely to remain at a level greater than or equal to stated thresholds;
• the presence of friable asbestos in or on soil on the land, where a person has been, or is likely to be, exposed to airborne asbestos fibre levels in excess of the stated threshold; 
• groundwater or surface water contamination on or in the land, if the concentration of the "contaminant" is or is likely to be above the stated threshold and likely to remain above that threshold; 
• the presence of any "non-aqueous phase liquid" in groundwater, surface water or an aquifer on the land; and
• a "contaminant" in soil vapour samples above specified thresholds. 

"Contaminant" (used in a number of the prescribed types of notifiable contamination) is defined in the Regulations as waste or a chemical substance, or a by-product of waste or a chemical substance, set out in section 6 of Schedule B1 of the National Environment Protection (Assessment of Site Contamination) Measure (NEPM (ASC)). 

The NEPM (ASC) is also used in the Regulations to establish the relevant thresholds for contaminants, including health investigation levels and health screening levels for the current use of the land.   

If a body corporate fails to notify the EPA of notifiable contamination, it can face a penalty of up to $99,132. 

Exempt notifiable contamination 

The Regulations exempt certain contamination from notification, including: 

• stockpiles of industrial waste at a place or premises authorised to receive industrial waste; 
• contaminated land for which a Pollution Abatement Notice, Minor Pollution Abatement Notice or a Clean-up Notice under the Environment Protection Act 1970 (1970 Act) had been issued in certain circumstances; 
• contamination of land for which a statement or certificate of environmental audit had been issued by an auditor under the 1970 Act, where there has been no potentially contaminating activities undertaken since the audit, no material change to the condition of the land, and no adverse effects on adjacent land; and 
• contamination of land arising from a particular waste or chemical substance that is not specified in NEPM (ASC) other than arising from asbestos or non-aqueous phase liquid.

Insights: Lack of clarity and areas of possible concern 

"Notifiable contamination", as prescribed in the Regulations, is highly technical, and may be difficult to understand for people who are not environmental consultants or auditors. 

The technical nature of the Regulations may result in duty holders experiencing difficulty complying, without expert professional advice.  As such, compliance with the contaminated land regime in the New EP Act is likely to be costly and time consuming. 

Over time, we consider that duty holders will familiarise themselves with the Regulations and begin to understand the technical complexity of the provisions.  However, there is a risk that in the short term, the complexity may result in cautious over reporting or poor compliance, increasing the administrative burden on the EPA. 

The other area of confusion that may arise is from the use of the "catch-all" definition of notifiable contamination (ie where the reasonable cost of action to remediate the land is likely to exceed $50,000).  Given the Regulations largely cover the field in terms of types of contaminants, it is likely that this $50,000 test will be seldom used.  

It is important to understand that a duty to notify the EPA of notifiable contamination may be triggered where the remediation cost is much lower than $50,000.  As such, businesses and organisations  should be aware that the $50,000 is not a threshold level for all notification (i.e it does not overlay a requirement on top of notifiable contamination as defined in the Regulations).