Victoria’s new environment protection framework (Framework), under the amended Environment Protection Act 2017 (Vic) (Act), is expected to come into effect on 1 July 2021. The Framework, intended to transform Victoria’s environment protection laws and the Environment Protection Authority (EPA), adopts a preventative rather than prohibition based approach aimed at better protecting human health and the environment. Importantly, it introduces a number of key duties including the duty to notify the EPA of notifiable contamination.
What is the duty to notify?
As of 1 July 2021, the duty to notify will require a person in ”management or control” of land to notify the EPA “as soon as practicable” after they become aware of, or reasonably should have become aware of, notifiable contamination.1
The duty to notify therefore imposes a positive duty on persons who, in many instances, will not have caused or contributed to the contamination. The duty is a continuing duty, meaning that the responsibility does not shift to the EPA once notice has been given.
Are you in management or control of land?
Management or control is not defined in the Act or proposed regulations (Regulations).2 However, you will be considered to manage or control land if you can exercise power over that land. Examples of exercising power over land include:
- Holding a legal interest in the land; or
- Having access to the land or use of the land.
Importantly, more than one person can manage or control the same land at any time. Where there are multiple duty holders for the same land, only one duty holder is required to notify the EPA in the approved form, unless there is additional information that needs to be provided.
Are you aware or reasonably aware of notifiable contamination?
In determining whether a person is aware of or reasonably should have been aware of notifiable contaminants on land they manage or control, regard will be given to:
- The person’s skills, knowledge and experience;3
- Whether the person could practically seek advice regarding the contamination;4 and
- Any other circumstances of the contamination.5
What is considered “notifiable contamination”?
The Regulations provide that the following types of contamination will be notifiable when certain thresholds are exceeded:
- On-site soil contamination;6
- Soil contamination on land adjacent to a duty holder’s land;7
- The presence of friable asbestos in or on soil;8
- Actual or likely contamination of groundwater or surface water;9
- Vapour intrusion;10
- On-site retention of contaminated soil.11
The regulations also set out notifiable contamination that will be exempt from the duty to notify.
What happens if I do not notify the EPA?
The maximum penalty for contravention of the duty to notify under current penalty units are:
- $99,120 for a corporation; and
- $19,826 for a natural person.
What steps do I need to take?
We recommend you take the following steps to ensure compliance with the duty to notify:
- Identify the sites for which you have management or control. It is important to note that this will not always be clear, and you may be required to review existing contracts including leases and licenses;
- Conduct a physical assessment of the sites that you manage or control to determine whether they may be contaminated. Be aware that contamination may be a result of current or historical uses of the sites;
- Where assessments suggest there is contamination on the land, take steps to understand whether sites meet notification thresholds in the regulations and whether any exemptions apply. This may involve engaging a contaminated land consultant;
- Notify the EPA in the approved form set out under the Act and provide information on your management response, or proposed management response, to the notifiable contamination; and
- Implement a system for periodic review of the sites you manage or control, keeping in mind that the duty is a continuing duty.
HWL Ebsworth Lawyers has expertise in advising on matters regarding contaminated land. Please contact James Lofting of our Planning, Environment and Government team to discuss any aspect of the above.
This article was written by James Lofting, Partner and Laura Kenny, Law Graduate.
1.Environment Protection Amendment Act 2018 (Vic), s 40(1).
2.Environment Protection Regulations Second Exposure Draft.
3.Environment Protection Amendment Act 2018 (Vic), s 40(3)(a).
4.Environment Protection Amendment Act 2018 (Vic), s 40(3)(b).
5.Environment Protection Amendment Act 2018 (Vic), s 40(3)(c).
6.Environment Protection Regulations Second Exposure Draft, s 8(a).
7.Environment Protection Regulations Second Exposure Draft, s 8(b).
8.Environment Protection Regulations Second Exposure Draft, s 9.
9.Environment Protection Regulations Second Exposure Draft, s 10.
10.Environment Protection Regulations Second Exposure Draft, s 11.
11.Environment Protection Regulations Second Exposure Draft, s 12.