What Is the Duty to Report Contamination in NSW and When Does It Apply?

Prepared by Confluence Environmental — contaminated land and environmental compliance consultants supporting development, remediation and regulatory reporting across NSW.

Environmental contamination — whether soil, groundwater, asbestos or other hazardous materials — is a regulated risk in New South Wales. When contamination is identified, a key question often arises:

Do I have a legal duty to report it, and if so, when does that duty apply?

Understanding when the duty to report contamination arises — and how it fits alongside planning, work health and safety and environmental legislation — is critical for duty holders seeking to manage compliance and avoid unnecessary project delays.

This article explains the legal and practical requirements for reporting contamination in NSW, the circumstances that trigger the obligation, and how reporting is typically managed in practice during contaminated land assessment and remediation.

Understanding the Duty to Report Contamination

In NSW, the obligation to report contamination arises when there is a reasonable suspicion that contamination may pose a risk to human health or the environment. The duty sits at the intersection of work health and safety legislation and the Protection of the Environment Operations Act 1997 (POEO Act).

The key principle is simple:

If you obtain information — through observation, investigation or monitoring — indicating that contamination may cause harm, you may have a legal obligation to report it to the relevant authority.

This obligation is distinct from routine reporting during development approvals and carries legal weight where thresholds are met during contaminated land investigations and site works.

Where the Duty Comes From: Key NSW Frameworks

Work Health and Safety (WHS) Laws

Under WHS legislation, persons conducting a business or undertaking (PCBUs) must manage risks posed by hazardous materials, including contamination. Where contamination is identified during construction, demolition, excavation or remediation works, duty holders must ensure risks are controlled and, in some cases, reported.

This is particularly relevant where contamination presents an immediate exposure risk to workers or occupants, such as asbestos disturbance or contaminated dust associated with asbestos and hazardous materials.

Protection of the Environment Operations Act 1997 (POEO Act)

The POEO Act imposes obligations on occupiers and persons carrying out activities to notify the NSW Environment Protection Authority (EPA) of pollution incidents where there is a risk of material harm to the environment.

Although the legislation refers to “pollution incidents”, significant contamination identified during earthworks, groundwater disturbance or waste handling can meet this threshold — particularly where off-site migration is occurring or likely.

This commonly arises during excavation and material management governed by waste classification in NSW.

Planning Approvals and Consent Conditions

Development consents, construction certificates and infrastructure approvals may also contain specific contamination reporting requirements. These obligations are tied to approval conditions and sit alongside — but separate from — statutory reporting duties.

Failure to comply with approval conditions can place a consent at risk, even where statutory thresholds for EPA notification are not triggered.

When the Duty to Report Is Triggered

The duty to report contamination in NSW is commonly triggered in the following circumstances.

Identification of Contamination During Site Works

Unexpected contamination may be identified during excavation, demolition or investigation works, such as staining, odour or buried waste encountered during earthworks, or elevated contaminant concentrations identified through sampling and laboratory analysis.

Where these findings indicate a reasonable possibility of harm, reporting may be required as part of contaminated land risk management.

Off-Site Migration of Contaminants

If contaminants are migrating beyond the site boundary — impacting neighbouring land, groundwater or surface water — reporting is often required.

Examples include contaminated groundwater discharge to stormwater systems or airborne dust or vapour affecting adjacent properties.

Suspected Pollution Incident

Under the POEO Act, a pollution incident includes any event that has caused, is causing or is likely to cause material harm to the environment.

A reasonable suspicion — based on monitoring data, observations or investigation findings — can trigger the duty to report, even before impacts are fully characterised.

Regulatory or Council Request

In some cases, councils or the EPA may request early notification of potential contamination risk during planning assessment or compliance oversight.

While not always a statutory duty, such requests often become formalised through consent conditions and should be treated seriously.

How and Where to Report

In NSW, contamination reporting is typically made to the NSW Environment Protection Authority (EPA) where POEO Act thresholds are met.

Reports should be prompt, clear and supported by documentation such as photos, sampling results or incident records.

Where contamination presents work health and safety risks — such as asbestos fibre release — notification may also be required following asbestos inspections and assessments.

Practical Examples

Scenario 1: Unexpected Asbestos Discovery

During demolition works, asbestos fragments are unexpectedly disturbed within a wall cavity and dust spreads beyond the immediate work area.

Action: Cease works, implement controls, engage a qualified assessor and consider reporting where there is reasonable suspicion of airborne fibre exposure, supported by asbestos inspection and clearance.

Scenario 2: Elevated Groundwater Contamination

Groundwater sampling during a Detailed Site Investigation identifies petroleum hydrocarbons migrating toward a nearby waterway.

Action: Notify the EPA, implement interim controls and integrate findings into remediation planning and remediation and validation.

Scenario 3: Off-Site Dust or Vapour Migration

Construction works generate visible dust affecting neighbouring properties. Subsequent testing confirms asbestos or other hazardous contaminants.

Action: Implement controls immediately, report the incident and support the response with monitoring data and risk assessment documentation.

What Reporting Does and Does Not Do

Reporting contamination:

• Satisfies statutory and approval obligations

• Triggers appropriate regulatory engagement

• Supports defensible risk management decisions

• Protects public health and environmental values

Reporting does not automatically imply wrongdoing, enforcement action or project shutdown where contamination is managed appropriately.

Key Takeaways

• The duty to report contamination in NSW arises where there is reasonable suspicion of harm

• Obligations may arise under WHS laws, the POEO Act and consent conditions

• Reporting is a risk management requirement, not an admission of fault

• Clear, timely reporting protects public health and project integrity