New EPA contaminated land duties

EPA release two Contaminated Land Management Guidelines for comment: a duty to notify and a duty to manage contaminated land. The following is the submission prepared by Dr Elizabeth Gibson, CMPA General Manager.

EPA released two Guidelines: “Notifiable contamination guideline – Duty to notify of contaminated land” (publication 2008.1 July 2021) and “Assessing and controlling contaminated land risks: A guide to meeting the duty to manage for those in management or control of land” (Publication 1977 June
2021). They are available at https://engage.vic.gov.au/newcontaminated-land-duties-duty-manage-and-duty-notify.

Notifiable contamination guideline – Duty to notify of contaminated land (publication 2008.1 July 2021)

Guideline Objectives

This guideline sets out EPA’s expectations in relation to:

• circumstances where contaminated land needs to be notified to EPA under section 40 of the Act
• reporting requirements, including the information required for notification
• timeframes when the notification needs to be provided to EPA
• circumstances where a person required to notify is aware a notification has already been made as per section 40(4)(a)
• circumstances that are exempt from the notification requirements as per section 40(4)(b) of Act
• and detailed in regulation 13 of the Regulations.

This guideline only relates to notifiable contamination under section 40 of the Act. There are other notification obligations that require reporting to the EPA that are not covered in this guidance, including:

• pollution incidents that cause or threaten to cause material harm (section 32 of the Act) where an imminent state of danger is identified by an environmental auditor in carrying out any of their functions (section 216 of the Act)

• reporting requirements under a permission issued under Part 4 or a remedial notice issued under Part 10 of the Act.

Notifications may also be required under other legislation, such as occupational health and safety laws. If a duty holder is unsure what notification requirements may apply, it is recommended that professional advice is obtained.

Discussion

General:
The Guideline (Duty to notify) is impractical being 71 pages long with numerous references to other publications. The document is very technical though the presence of diagrams may assist the understanding of “any person who is in management or control of land.”
It is unclear whether the document is written “for any person who is in management or control of land” (unlikely) or for contaminated land specialists.
The on-line reporting system for Contaminated Land Notification – Part B is not fit for purpose:

• The notifier is unable to obtain a copy of their submission, though, a Microsoft word version is provided and recommended to be filled in prior to the on-line notification.
• When clicking submit a “Failed submission error” may be received resulting in a phone call to EPA whilst ensuring the window remains open.
• Attachments cannot be uploaded to the form.
• The browser cannot be closed while filling in the form including automatic shutdown/restart of the computer if it is left idle due to all data input not being saved.
• If the form is resubmitted with updated information, it will delete any previously submitted information.
• The on-line data is not automatically saved or even able to be manually saved as the form is completed.

Assessing and controlling contaminated land risks: A guide to meeting the duty to manage for those in management or control of land (Publication 1977 June 2021)

Guideline objectives

This guideline is intended to help you make decisions around the level of action, appropriate to your circumstances, that is needed to meet the duty. It also seeks to link your obligations to existing information published by EPA and other bodies that supports identification, assessment and management of land and groundwater contamination risks.

This guideline cannot specify all actions required to meet compliance with your obligations. Instead, it describes the principles, supported with practical examples, to use when approaching your obligations and exercising judgment in a way that will enable the Act goals to be achieved.

This guideline supports the duty to manage by:

• setting out a standard of conduct that supports compliance with the duty with practical examples
• outlining how the principles of environmental protection apply to contamination issues
• identifying assessment methods EPA considers suitable for addressing contamination
• providing a framework to support the selection of management actions and risk controls
• showing how information sharing can help minimise risks of harm from contamination
• supporting duty holders to make decisions that are proportionate to the risks of harm.

Discussion

General:

As one of the original authors of the NEPM (ASC) and a former
EPA Principal Environmental Auditor (contaminated land) the guideline outlines the process for assessing and controlling contaminated land use. However, for any person who manages, or controls contaminated land (including land that makes it reasonable to assume the land or groundwater may be contaminated) the guideline (duty to manage):

• Does not have a clearly defined end point: the requirements of the Guideline (duty to manage) are unattainable;
• Requires specialist advice from contaminated land consultants and lawyers;
• Is disproportionate to the magnitude of the risk of harm to human health or the environment;
• Would be daunting to the average person who manages, or controls contaminated land including land that has potential contamination present
• Does not give definitive clear direction for example, “a largely intact ecosystem may be sufficiently resilient to allow levels of contamination, whereas invasive remediation to remove the contaminants may unreasonably disrupt the ecosystem”;
• Does not deliver on EPA expectations for documented evidence of compliance which has yet to be released by the EPA;
• Is not reasonably practicable.

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