Australia: New contamination reporting requirements in NSW would change assessment and reporting thresholds

Clayton Utz Insights

Key Points:

Sites which previously did not trigger the duty to report under the Contaminated Land Management Act could do so under new draft Guidelines on the Duty to Report Contamination.

Contamination reporting requirements in NSW are about to change, as the EPA has issued new draft Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997 (NSW) (CLM Act).

The Draft Guidelines adopt the national contamination assessment standards which were updated significantly in 2013 and have been used widely since then, but the statutory force of the Guidelines will give those standards new impetus.

Given the CLM Act's broad triggers for the duty to report contamination, and changes to some of the reporting standards in the Draft Guidelines, land owners and occupiers of potentially or actually contaminated sites may want to review their position on whether contamination on those sites should be reported.

The EPA has invited submissions on the Draft Guidelines until Friday 8 August.

In this article we highlight some of the key changes proposed in the draft Guidelines and their implications for land owners and occupiers.

The duty to notify contamination of land

Section 60 of the CLM act requires a person whose activities have contaminated land, and the owner of that land, to notify the EPA if the contamination of that land is at levels above those specified in guidelines made under the CLM Act and other specified situational criteria are met.

The duty to report arises as soon as the person or land owner becomes aware, or ought reasonably to have been aware, of the contamination.

Failure to notify can result in significant penalties.

Greater use of the Contaminated Sites NEPM

The current Guidelines on the Duty to Report Contamination under the CLM Act were made in 2009. They adopt several contamination standards in the National Environment Protection Measure for the Assessment of Contaminated Sites (Contaminated Sites NEPM). However, the Contaminated Sites NEPM did not specify trigger levels for some relevant contaminants (eg. asbestos), and the EPA had its own guidelines for some contaminants (eg. Guidelines for Assessing Service Station Sites (1994)), when the Existing Guidelines were published. So the Existing Guidelines refer to various source documents for the assessment of various contaminants, provide their own State-specific levels for some contaminants, and propose site-specific risk assessment for other contaminants.

Major amendments to the Contaminated Sites NEPM in 2013 broadened their scope to cover additional substances such as asbestos, and so provided national standards for a wider range of substances. (The amendments also addressed matters such as site characterisation, site risk assessment analysis methodologies and community engagement.)

As a result, the Draft Guidelines propose a more comprehensive use of the Contaminated Sites NEPM. This should simplify the assessment of whether the duty to notify contamination in NSW has been triggered. It also should promote a stronger national approach to contamination assessment, although, as the EPA's proposal to amend the Existing Guidelines indicates, each State retains its own laws about reporting contamination.

Some specific changes to asbestos and threshold levels of contaminants

Specific changes in the Draft Guidelines include:

  • The Draft Guidelines provide a specific notification trigger for asbestos, which adopts the Contaminated Sites NEPM health screening level for friable asbestos in or on soil. The Existing Guidelines do not refer to asbestos, and so they rely on risk assessment criteria developed on a site-by-site basis to address asbestos issues.
  • The Draft Guidelines adopt Contaminated Sites NEPM levels for substances in soils, groundwater and surface water, and for vapour intrusions. The specific levels of contaminants for groundwater and surface water set out in the Appendix to the Existing Guidelines, and the references to levels set out in the EPA's Guidelines for Assessing Service Station Sites (1994), have been removed.

The adoption of the Contaminated Sites NEPM levels for surface water and groundwater in the Draft Guidelines means that, if the Draft Guidelines are made, some of the contaminant trigger levels for notifying contamination under the CLM Act will be higher, some will be lower and some will stay the same.

The Draft Guidelines, like the Existing Guidelines, recognise that the standards they adopt will not cover all contaminants, and propose a site-specific risk assessment in such situations, although the wording in the Draft Guidelines is slightly stronger in this regard.

Implications: Simplified contamination assessment, but in some cases lower thresholds for reporting it

If the EPA adopts the Draft Guidelines, the Contaminated Sites NEPM will become the source of almost all contaminant reporting thresholds under section 60 of the CLM Act. This should simplify the contamination assessment process, reduce inconsistencies which currently arise in NSW between the Contaminated Sites NEPM and some contaminant reporting thresholds which are specific to NSW, and promote a more consistent approach nationally to contamination assessment.

However, one of the consequences of this is that the statutory reporting thresholds for some contaminants in NSW will change. This means that sites which were assessed previously as not triggering the duty to report under the CLM Act may now trigger that duty.

Given that the CLM Act requires a person to report contamination if the person is aware, or ought reasonably to have been aware, of the contamination which triggers the duty to report, land owners and occupiers of potentially or actually contaminated sites may want to review their position on whether contamination on those sites should be reported.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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