As part of the shift to a preventative and risk-based approach to environmental regulation, the Environment Protection Act as amended (EP Act) includes new contaminated land duties, an updated environmental audit system and a new mechanism to impose specific Obligations on Managers of Land or Infrastructure. These requirements come into effect on 1 July 2021.
Government agencies and public authorities who are 'in management or control of' land (Land Managers) will need to understand each of these new regulatory mechanisms and adapt their practices to ensure compliance with new duties and requirements.
Contaminated Land Duties
The EP Act contains two new duties in relation to contaminated land. Land Managers must manage contaminated land and notify EPA if land becomes contaminated. These duties sit alongside the General Environmental Duty (GED) (discussed in more detail in our article here).
Duty to manage contaminated land
The duty to manage contaminated land is contained in s 39 of the EP Act and provides that a Land Manager of contaminated land must minimise the risk of harm to human health and the environment so far as 'reasonably practicable', including by:
- identifying, investigating and assessing contamination;
- minimising risks of harm from the contamination (including by clean-up activities); and
- providing information to any person who may be affected by the contamination, and to future Land Managers to enable them to comply with the duty.
The duty to minimise risks under the EP Act requires that a person eliminate risks of harm so far as reasonably practicable. If elimination is not reasonably practicable, a person must reduce those risks as far as reasonably practicable.
In addition, the proposed Regulations require Land Managers to clean up non-aqueous phase liquids, and in certain circumstances, remove or control the source of the liquid.
Duty to notify the EPA of contaminated land
Under s 40 of the EP Act, a Land Manager must notify the EPA if the land has been contaminated by notifiable contamination as soon as practicable after the Land Manager becomes aware of, or reasonably should have become aware of, the notifiable contamination.
The proposed Regulations prescribe notifiable contamination in relation to:
- soil contamination;
- asbestos in or on soil;
- actual or likely contamination of groundwater or surface water;
- vapour inhalation pathways; and
- on-site containment of contaminated soil.
The levels of contaminants that trigger notification requirements refer to the levels in section 6 of Schedule B1 of the National Environment Protection (Assessment of Site Contamination) Measure 1999 NEPM (ASC). If a chemical substance or waste is not listed in section 6 of Schedule B1 of the NEPM (ASC) it is exempt from the duty to notify unless it is asbestos of non-aqueous phase liquid.
It is important to note, a Land Manager cannot rely on the privilege against self-incrimination to avoid the duty to notify, and any information given to the EPA cannot be used against the person in a proceeding for an offence or for the imposition of a penalty in relation to the notification.
What do managers of Crown land need to do?
The duties apply in relation to land that is contaminated before, on or after the commencement of the new EP Act.
The duties arise by the fact of land being contaminated or by the fact of notifiable contamination, and circumstances where the Land Manager is, or should reasonably, be aware of that fact. This imposes obligations on Land Managers to not merely respond to contamination events but to proactively investigate, identify and assess contamination or risk of contamination. This is a significant shift from the previous regime.
Leading up to the commencement of the new regime, Land Managers should:
- understand what constitutes contamination and notifiable contamination;
- build contamination investigation, assessment and identification practices into their operations; and
- be prepared to implement new processes for managing contamination risks consistently with EPA guidance and the legislative requirements.
Environmental audit system
The EP Act establishes a new two part environmental assessment system comprising preliminary risk screen assessments (PRSAs) and environmental audits. PRSAs assess the likelihood of land being contaminated to determine whether an environmental audit is required and the scope of that audit. If required, an environmental audit may be conducted to assess the nature and extent of the risk of harm, and to recommend measures to manage the risk and the activity.
Obligations of Managers of Land or Infrastructure (OMLIs)
The EP Act also provides for obligations to be imposed on a council, public sector body or infrastructure manager for the purposes of minimising risks of harm to human health or the environment from pollution or waste. By Order in the Government Gazette, the Governor in Council may require a council, public sector body or infrastructure manager:
- to take a specified action in relation to land or infrastructure; or
- to take into account a specified matter when managing land, managing or operating infrastructure or planning the management of land or infrastructure; or
- to comply with a specified document, code, standard or rule, subject to any modification specified in the order, when managing land, managing or operating infrastructure or planning the management of land or infrastructure.
The purpose of OMLIs is to clarify obligations on Land Managers and to supplement other duties in the new regime. OMLIs are likely to be relevant for a number of project authorities and public sector bodies who manage or control land or infrastructure.
 Contamination is defined in s 35 of the EP Act.
 See EP Act, s 6 for guidance on what is 'reasonably practicable'.
 EP Regulations, r 13(d).
 EP Act, s 38.
 EP Act, s 204.
 EP Act, s 208.
 EP Act, s 156.
 This section sets out wide definition of infrastructure and defines infrastructure manager as a person or body that manages or operates infrastructure; or manages or controls the design, construction or maintenance of infrastructure.
Reviewed 09 September 2022