Amendments To The Contaminated Land Management Act 1997

Following a statutory five year review of the Contaminated Land Management Act 1997 (NSW) (CLM Act), significant changes have been introduced in relation to investigating, cleaning up and reporting contamination in New South Wales.

Amendments in force prior to 1 July include:

  • Removal of the 'no knowledge' defence in criminal prosecutions for directors and managers of a company.
  • The introduction of a general offence for the provision of false and misleading information in purported compliance with a requirement under the CLM Act.

Amendments that commenced on 1 July 2009 include:

  • Changes to the terminology used throughout the CLM Act. In particular, the declaration of 'contaminated land' is now the declaration of 'regulated land'.
  • The 'significant risk of harm' (SROH) test is replaced by the 'significant enough to warrant regulation' test, giving the EPA greater discretion to regulate contaminated land. The EPA will still need to assess the same considerations as those under the SROH test when making its determination.
  • The responsibility for contamination hierarchy will be altered so that the EPA will not have to pursue the principal polluter before taking action against other parties. The EPA will only be required to follow the former hierarchy as far as is practicable. The EPA will also be able to issue to more than one person a management order to investigate or clean-up contamination.
  • New powers will enable the EPA to issue a preliminary investigation order to determine whether land should be declared 'regulated land' where it reasonably suspects that the land is contaminated. No hierarchy of responsibility will apply to the EPA when serving a preliminary investigation order.
  • The 'duty to notify' test will be tightened so that an owner or polluter will be obliged to notify the EPA where a person 'ought reasonably to have been aware of contamination'.

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