Australia: Review of WA Contaminated Sites Act and Regulations - last chance for comments

HG Environment Alert: 13 February 2014
Last Updated: 15 February 2014
Article by Kylie Panckhurst

The Western Australian Contaminated Sites Act 2003 (CS Act) and Contaminated Sites Regulations 2006 (Regulations) are currently undergoing their five year review.

Interested parties are invited to submit their comments on the discussion paper by 9am Monday 24 February. This is the last round of consultations before the review report is prepared and finalised for the Minister for Environment.

The Department of Environmental Regulations (DER) is seeking specific feedback on four issues:

  1. Introducing a duty to report for environmental consultants
  2. The site identification scheme - improvement of internal procedures and guidance
  3. Mandatory disclosure arrangements - clarifying timeframes
  4. The role and procedures of the Contaminated Sites Committee

While points two and three are minor changes to the current regime, points 1 and 4 raise a number of issues.

Does this affect you?

To determine if the review affects you, you should consider whether you:

  • offer services that have the potential to contaminate land if an accident or failure occurs;
  • operate on, or own land that is or was historically, in an industrial area, or exposed to fuels, chemicals or similar products; or
  • advise on contamination investigations and remediation.

If so, it is especially important that you keep up to date with the proposed changes and register your comments.

Environmental consultant duty to report

Current position

The CS Act provides that only the following people must report a contaminated site:

  • an owner or occupier of the site;
  • a person who knows, or suspects, that he or she has caused, or contributed to, the contamination; and
  • an auditor engaged to provide a report that is required under the Act for the site.

Proposed change

It is proposed that the group above be extended to include 'an environmental consultant' engaged for investigation or remediation purposes. The DER acknowledge that the definition of 'environmental consultant' will need to be clear to ensure it captures the environmental consultant project manager and does not capture other professionals such as field or laboratory technicians.

The new duty would apply from the date of the amendment onwards. If this occurs, consultant terms of engagement and confidentiality arrangements will need to be updated to align with the new duty.

Site classification scheme

Current position

Sites classified as "possibly contaminated – investigation required" make up nearly half of the classifications recorded on the DER's electronic register and are searchable by written application. However, the details are not available on the public contaminated sites database and do not have to be disclosed to land purchasers.

Proposed changes

Rather than amending the classification categories, DER propose to provide clearer guidance to effected parties on what "possibly contaminated – investigation required" means, including the actions required and indicative timeframe for completion.

Mandatory disclosure arrangements clarifying timeframes

Current position

Section 68 of the CS Act requires landowners to provide written disclosure to any new or potential owners, mortgagees or lessees of the land where that land is classified as:

  • contaminated – restricted use;
  • contaminated – remediation required;
  • remediated for restricted use; or
  • land that is subject to a CS Act regulatory notice and has a memorial registered.

Written disclosure must occur at least 14 days before the completion of a transaction.

Proposed changes

The DER propose to clarify the meaning of 'completion of a transaction' for the purposes of section 68 to mean the settlement date for a sale, the date the mortgage is registered for a mortgage, or the date the lease is signed for a lease.

Also, in certain circumstances, the requirement to provide written disclosure within 14 days will be replaced with 'as soon as reasonably practicable' after the owner has been first notified or becomes the new owner. Such circumstances are based on situations where the owner does not have notice of the classification prior to the 14 day period or becomes an owner less than 14 days before completing another transaction which would require disclosure (such as a mortgage).

The Contaminated Sites Committee

Current position

The Committee:

  • makes statutory decisions on responsibility for remediation of sites classified contaminated – remediation required;
  • grants, cancels, amends or transfers exemption certificates; and
  • determines appeals against classifications and regulatory notices given by DER under the CS Act.

While Committee decisions on responsibility for remediation were originally intended to take six months, the reality is that undisputed decisions take one to two years. One of the explanations for this extension is the delay in parties providing all relevant material.

Proposed changes

It is proposed that the State Administrative Tribunal (SAT) will be given jurisdiction to review the Committee's primary decisions (eg remediation responsibility, liability for costs and exemption certificates) and will replace the Committee as review decision-maker for appeals against classification and notices served by the DER under the CS Act.

The proposals assume that SAT will be appropriately resourced to perform this task.

Suggestions to improve decision-making timeliness include:

  • imposing a three month time limit for providing all relevant information for circulation to other parties;
  • extending the section 94 offence of providing misleading and false information to include written submissions to the Committee (penalty of $125,000 and a daily penalty of $25,000); and
  • authorising the Committee to publish its reasons for each decision on responsibility for remediation.

These proposed changes do not address the fact that the Committee can only determine responsibility for contamination that exists on the site at the time of the determination. This limitation discourages remediation and encourages disputing parties to leave contamination on site, which could potentially spread and cause more damage, while a decision on remediation responsibility is reached. Such a result is counter-intuitive to the purposes of the CS Act.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Kylie Panckhurst
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