The General Environmental Duty, the Duty to Manage and the Duty to Notify

Introduction

This overview was prepared by us to assist our clients in understanding their responsibilities under new sections of the Environment Protection Act (2017) regarding Environmental Duties which came into effect on 1 July 2021.

Under the Act, from 1 July 2021:

• You have a general environmental duty to ensure your activities minimize risks of harm to human health and the environment.

• You have a duty to manage risks from any contamination on land you own or manage.

• You have a duty to notify EPA of any contamination on land you own or manage.

The General environmental duty

In October 2020 EPA released a 2-page industry guidance fact sheet (publication 1741.1 Industry guidance: supporting you to comply with the new general environmental duty

as defined in this fact sheet, the general environmental duty (GED) requires that:

"A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimize those risks, so far as reasonably practicable”.

The fact sheet notes that for businesses already following good management practices the GED will not require any change as those businesses will already be complying with (e.g.) OHS laws, industry standards and relevant environmental legislation).

However the fact sheet points out that “For those few who choose not to do the right thing, the Act not only clarifies their obligations, it also provides EPA with tools to pick up wrong-doing and bring people into compliance, levelling the playing field for everyone.”

Definitions

Reasonably practicable means putting in controls that are proportionate to the risk.

“lt relates to the chance of harm occurring and potential impacts on the environment. It also relates to what controls are available, their cost, and considers what an industry generally knows about the risk and control options. This is termed the ‘state of knowledge’”

State of knowledge refers to the body of knowledge that is known or ought reasonably to be known about harm that could arise from the risks. The GED requires you to have reasonable knowledge about the risks your activities pose and how to address them:

“Obtaining this knowledge means drawing on reliable, reputable sources. Existing knowledge may include business and industry knowledge, regulatory and government agency knowledge and independent organisations’ knowledge.”

The Duty  to manage

Under the requirements of the new Environmental Protection Act which came into effect on 1 July 2021, when contamination is present, you have a duty to manage the risks from that contamination.

The requirements of the  Duty to Manage are set out in:

EPA Vic Publication 1977, June 2021 Assessing and controlling contaminated land risks: a guide to meeting the duty to manage for those in management or control of land.

The duty to manage requires that “A person in management or control of contaminated land must minimize risks of harm to human health and the environment from the contaminated land so far as reasonably practicable.”

Definitions relevant to duty to Manage

Management or control

“You’re in ‘management or control’ of land if you can exercise power over that land. For example, if you:

• hold a legal interest in the land, such as owner, leaseholder or committee of management, or

• have access to the land or use of the land.” (EPA Vic Understanding your contaminated land duties” https://www.epa.vic.gov.au/for-business/new-laws-and-your-business/manage-contaminated-land/about-contamination/understanding-your-contaminated-land-duties

Contaminated land

“Land is contaminated if waste, a chemical substance or a prescribed substance is present on or under the surface of the land, and the waste, chemical substance or prescribed substance
(a) is present in a concentration above the background level; and
(b) creates a risk of harm to human health or the environment” (EPA Duty to Manage, p.6)

Harm

The term “harm” as used in the definition of contaminated land means:

“…an adverse effect on human health or the environment (of whatever degree or duration) and includes amenity and certain changes in conditions.”

If you are a person in management or control of contaminated land you
must meet this duty.

Your duties under the duty to manage include:

• “identifying contamination you suspect is present

• investigating and assessing contamination, with professional help

• providing and maintaining measures to minimise risk. This may include clean up to make the site suitable for its current use

• providing information to others who contamination may affect, where sharing that information will help control the risks.” (EPA Vic Understanding your contaminated land duties https://www.epa.vic.gov.au/for-business/new-laws-and-your-business/manage-contaminated-land/about-contamination/understanding-your-contaminated-land-duties

 The duty to manage guideline says that EPA’s approach to implementing the duty will initially be an educational approach: “The first year of the new environment protection scheme, from 1 July 2021, is about raising everyone’s level of understanding of their duties, and their management of risks. EPA is committed to a proportionate approach to compliance and enforcement. Our approach considers your risks, state of knowledge, and your history of EPA engagement.”

The Understanding your contaminated land duties document also covers the duty to notify in plain(ish) English:

“In addition to the duty to manage, which is the primary contaminated land duty, you may also have a duty to notify EPA of confirmed contamination. The Environment Protection Regulations (the Regulations) define ‘notifiable contamination’. It includes contamination that is present in levels above a certain threshold and is either:

• exposing a person to those contaminants, or

• is moving, has moved or is likely to move off your land.

EPA has released a guideline to help you understand the duty to notify. This guideline sets out:

• information about the duty and who it may apply to

• guidance on the definition of notifiable contamination set out in the Regulations and how to identify it on your land

• the types of contamination that are exempt from notification

• guidance on the information you need to provide when notifying EPA.”

The Duty to notify

The duty to notify is a duty to notify EPA of confirmed “notifiable” contamination at land which you manage or control. The requirements of the  Duty to Notify are set out in:

EPA Vic Publication 2008.1 July 2021 Notifiable contamination guideline – duty to notify of contaminated land

Definitions relevant to duty to notify

Notifiable contamination is contamination that is present at concentrations above the thresholds set out in the duty to notify guideline. For practical purposes, notifiable contamination is any contamination that prevents you from being able to answer “NO” to every question on the flow chart on the flow chart on page 10 of the Notifiable contamination guideline.

If you don’t have sampling data for soil, water and vapor, notification is not presently required; but the flowchart refers you to your duty to manage…and under this duty, if you know or suspect contamination is present then you have to assess and investigate. This in turn leads you to re-visit the flow chart with your new-found knowledge.

Notification comprises

• “Collation of all required documentation (such as site plans, laboratory data, soil investigation and groundwater investigation data and offsite disposal documentation).””

• An initial phone interview with EPA to confirm your intention to notify (this is Part A of the notification process).

• “Online completion of Part B of contamination of land notification documentation and submission to EPA.”

What are the criteria for having to notify?

• “You are a person in management or control of land.

• The land or groundwater is contaminated within the meaning of section 35 of the Act.

• The contamination meets the definition of ‘notifiable contamination’

• You have become aware, or reasonably should have become aware, that the land you manage or control is contaminated by notifiable contamination.”

What concentrations make contamination notifiable

In most cases contamination is notifiable if the 95% UCL for average concentration exceeds the relevant investigation or screening level or if the concentration of any one sample is greater than 2.5 times that level.

What about neighbouring properties?

The duty to notify does not only require notification of contamination on land you control. It also requires you to notify if:

o      Soil contamination on your land is likely to move onto adjacent land.

o      If contamination in or on soil on adjacent land is contamination that has migrated from your land (this is relevant particularly to migration of contaminants in groundwater).

Note that in relation to neighbouring land, the notifiable concentrations are the investigation and screening levels applicable to the use of the neighbouring land. So even if your land is commercial, if the neighbouring land is residential you must apply residential criteria assessing concentration impact on the neighbouring land.

How do you notify?

Details of how to notify are set out starting on page 39 of the guideline: “The notification process has been broken into two parts:

• Part A: Initial contact with EPA (phone) to confirm your intention to notify and create a notification record in EPA’s system

• Part B: completion of the online form to provide detailed information.”

In the Part A phone contact you need to provide EPA with very detailed information as set out in the guideline.

At the conclusion of this interview if EPA considers any of the circumstances are “high risk” “EPA’s Contact Centre staff will create a pollution report with your assistance, to enable EPA to address the immediate risk or circumstances.”

On completion of Part A EPA will email you a link to complete Part B of your notification via an online form.

The last 30 pages of the duty to notify guideline are a copy of the online Part B form, as well as instructions and information on the completion of Part B and the very detailed information you need to have at hand in order to do so.

At an EPA webinar at the end of June 2021, EPA noted that the part B form needed to be completed in one sitting, as it was unable to be saved during the completion process.

Other relevant points

Retention of contaminated soil onsite

Although managed onsite retention of contaminated soil rather than disposing of this soil to landfill is a good outcome in terms of the EPA waste hierarchy, it means that notification is required. This also applies to retention of Category D contaminated soil onsite under an EPA permission. The EPA rationale for this is that “Notification of retained soil will assist in ensuring a record is maintained of that retained soil and associated management requirements are made available to future persons in management or control of
the land.” (Duty to notify guideline p.21).

Non-notifiable substances

Certain substances (such as PFAS) are not notifiable. However if you are notifying because of the presence of notifiable substances you must also provide information about any non-notifiable substances of which you are aware.

Offsite disposal of soil

The duty to notify guideline does not reference offsite disposal of soil. However this is covered by section 5.7 of the duty to manage guideline which concludes

“Disposal of contaminated soil off-site to comply with the duty to manage needs to
be balanced against the negative impacts, both direct and indirect, of transporting,
disposing of, and managing the waste elsewhere”.

Other sources of information

Most of the big law firms have web-accessible explanations and commentaries on the new requirements, and these often give practical legal insight into how lawyers are seeing the new requirements working (e.g. how far do you have to go to demonstrate that you’ve taken “reasonably practicable” steps in performing your general environmental duty?).