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 NSW. When contamination is identified, a key question arises:

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

This article explains the legal and practical requirements for reporting contamination in NSW, the circumstances that trigger the obligation, and how duty holders can manage reporting to satisfy both regulatory expectations and project needs.

Understanding the Duty to Report Contamination

In NSW, the obligation to report contamination arises when there is a reasonable suspicion that contamination poses 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 have information — through observation, investigation or monitoring — that a site is contaminated in a way that may cause harm, you must report it to the relevant authority.

This reporting requirement is distinct from notification during planning or approval processes and has legal weight.

Where the Duty Comes From: Key NSW Frameworks

1. 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 discovered during work activities, duty holders must ensure risks are controlled and, in many cases, reported.

This is particularly relevant on construction, demolition, excavation and remediation sites.

2. Protection of the Environment Operations Act 1997 (POEO Act)

The POEO Act imposes obligations on ‘occupiers’ and ‘persons carrying out activities’ to ensure that pollution incidents are reported to the Environment Protection Authority (EPA) where there is a risk of material harm.

While the POEO Act uses the term “pollution incidents”, significant contamination encountered during earthworks or groundwater disturbance often meets that threshold.

3. Planning Approvals and Consent Conditions

Development consents and infrastructure approvals may contain specific reporting conditions relating to contamination. These are contractual obligations tied to the approval and are separate to statutory reporting duties.

Failing to comply with approval conditions can jeopardise your consent.

When the Duty to Report Is Triggered

The duty to report contamination in NSW is typically triggered where:

– You identify contamination during site works

For example:

• Unexpected staining or odour during excavation

• Contaminants identified in soil or groundwater sampling

• Elevated concentrations identified in laboratory results

When these discoveries indicate a reasonable possibility of harm, reporting may be required.

– You become aware of off-site migration

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

Examples include:

• Contaminated water discharge to stormwater

• Vapour or dust migration to adjacent properties

– You suspect a pollution incident

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

A reasonable suspicion that a pollution incident has occurred — for example through monitoring results or visual evidence — triggers the duty to report.

– A regulator requests notification

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

While not a statutory duty per se, this request sets expectations for reporting and may be formalised through approval conditions.

How and Where to Report

In NSW, reporting is typically made to the NSW Environment Protection Authority (EPA) — particularly when the POEO Act is engaged.

Reports should be:

• Prompt — without unreasonable delay

• Clear — describing the nature of contamination and the context of discovery

• Documented — with supporting evidence such as photos, sampling data or incident logs

Where the contamination has WHS implications, a report may also be required to SafeWork NSW or other relevant agencies.

Practical Examples

Scenario 1: Unexpected Asbestos Discovery

During demolition, previously unknown asbestos fragments are exposed in a wall cavity and dispersed.
Action: Cease works in the area, implement controls, engage a qualified assessor, and report the discovery to the relevant regulator if there is reasonable suspicion of airborne hazard or spread beyond the removal area.

Scenario 2: Elevated Groundwater Contaminants

Groundwater sampling during a Detailed Site Investigation reveals elevated petroleum hydrocarbons migrating toward a waterway.
Action: Notify the EPA promptly under the POEO Act, initiate risk controls, and provide a summary of findings and proposed management measures.

Scenario 3: Off-Site Dust or Vapour

Works are generating visible dust impacting neighbouring properties. If testing indicates asbestos or other hazardous contaminants in the air, this must be reported and controlled.

What Reporting Does — and Does Not — Do

Reporting does:

• Satisfy statutory obligations

• Trigger regulatory engagement

• Enable approvals for risk management measures

• Provide a defensible compliance record

Reporting does not:

• Automatically lead to enforcement action

• Imply wrongdoing

• Prevent further work if properly managed

Regulators generally expect reporting to be followed by appropriate risk assessment, management and documentation.

How to Manage Reporting Without Delay

To avoid unnecessary delays while meeting obligations:

• Have a reporting protocol in place before works start

• Clarify who will report and to which authority

• Document evidence early and clearly

• Integrate reporting with contamination investigation plans

• Communicate with regulators proactively

Early engagement with environmental consultants helps interpret obligations and frame reports in regulatory terms.

Key Takeaways

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

• Obligations can stem from WHS laws, the POEO Act and approval conditions

• Reporting is about risk management, not blame

• Clear, prompt reporting protects public health and project integrity