What you need to know
- The Environment Protection Amendment Act 2018 (Vic) introduces two new duties in relation to contaminated land. These reforms are anticipated to take effect from 1 July 2020.
- New duty to manage contaminated land: a person in management/control of contaminated land must minimise risks of harm to human health and the environment so far as reasonably practicable.
- New duty to notify: a person in management/control of land must notify the EPA if the land has been contaminated with notifiable contamination as soon as practicable after the person becomes aware of, or reasonably should have become aware of, the notifiable contamination.
- The polluter pays principle is enshrined, with the costs incurred in complying with the new contaminated land duties, or a site management order, being recoverable against the person responsible for causing or contributing to the contamination.
What you need to do
- Watch out for the publication of draft regulations and the clarification of the threshold for notifiable contamination.
- Ensure that those in management/control of land are aware of these new duties, and where relevant conduct assessments to consider whether there is contamination which requires management, or meets the threshold of notifiable contamination.
- Ensure that your organisation has updated its policies and procedures to comply with the Amendments before they commence in 2020.
Background
This is the fourth instalment of our New Environment Protection Laws Series to inform you about the way in which the Environment Protection Amendment Act 2018 (Vic) is reshaping Victoria's environmental protection laws.
In our previous alerts we have discussed the introduction of the 'general environmental duty', reforms to the review rights of eligible persons and third parties under the Amendments and a three-tiered approach to environmental approvals: licences, permits and registrations.
The Amendment Act received Royal Assent on 28 August 2018 and its reforms are anticipated to take effect from 1 July 2020.
The Amendments introduce a new regime to manage contaminated land, enhancing the powers of the Environment Protection Authority (EPA) in respect of contaminated sites. This alert looks at the duties under the Amendments to:
- manage contaminated land; and
- notify the EPA of notifiable contaminated land.
These duties aim to minimise risks of harm to human health and the environment so far as reasonably practicable.
When will land be considered contaminated?
Land will be considered contaminated if waste is present on, or under the surface of the land, in a concentration above background levels (to be determined in light of new Environment Reference Standards) or the naturally occurring concentration, and creates a risk of harm to human health or the environment. However, land will not be contaminated merely because the contamination is in surface waters.
Having a definition of contaminated land is a first for Victoria. The current Act does not contain such a definition (regard is had instead to the State Environment Protection Policy (Prevention and Management of Contaminated Land)).
The Amendments also capture land that is contaminated before or after the commencement of the Amendments.
Polluter pays
The "polluter pays" principle is enshrined in the Amendments, with the reasonable costs incurred by a person in management or control of a contaminated site in complying with the new contaminated land duties, or site management orders, being recoverable against the person responsible for causing or contributing to the contamination.
Duty to manage contaminated land
Under the Amendments, a person in management or control of contaminated land has a duty to minimise risks of harm to human health and the environment so far as reasonably practicable. This duty will include obligations to:
- identify contamination that the person knows or ought reasonably to know of;
- investigate and assess that contamination;
- minimise the risk of harm (including clean-up activities where reasonably practicable); and
- provide adequate information to those who may be affected by the contamination.
The Victorian Government has indicated that the EPA will provide guidance on how to meet these obligations. It is not clear at this stage what form that guidance will take (query the use of position statements or compliance codes).
Duty to notify the EPA of contamination
Under the Amendments, a person in management or control of land must notify the EPA as soon as practicable after the person becomes aware, or reasonably should have become aware, of notifiable contamination. Currently, "notifiable contamination" will be contamination for which the reasonable cost of action to investigate and remediate is likely to exceed A$50,000. Pending further definition provided in the yet to be drafted Regulations, the threshold for what constitutes notifiable contamination, which must therefore be notified to the EPA, has been set very low.
Whether a person in management or control becomes aware of, or reasonably should have become aware of, notifiable contamination will be determined having regard to:
- the person's skills, knowledge and experience; and
- whether the person could practicably seek advice; and
- any other circumstances of the contamination.
A body corporate that does not notify the EPA of notifiable contamination faces a penalty of up to $96,714.
EPA Powers: Site Management Orders
Site Management Orders are a new instrument under the Amendments, and can be issued by the EPA where long-term management of a site is necessary due to contamination. Site Management Orders will bind subsequent owners, occupiers or persons with management or control.
Closed landfills are the other example of sites that are likely to be issued Site Management Orders. As part of the management process these Orders will be registered on the title of the land.
Failure to comply with a Site Management Order without reasonable excuse is an indictable offence, with a penalty of up to $402,975 applying for a corporation.
It should be noted that the EPA may redirect Site Management Orders (including to related or associated entities and officers) in the event of winding up or non-compliance.
Next steps
- Watch out for the publication of draft Regulations and the clarification of the threshold for notifiable contamination.
- Ensure that those in management/control of land are aware of duties to notify, and where relevant conduct assessments to consider whether any existing contamination meets the threshold of "notifiable contamination".
- Ensure that your organisation has updated its policies and procedures to comply with the Amendments before they are anticipated to commence on 1 July 2020.
Author: Jane Hall, Senior Associate
