A draft Environment Protection (Site Contamination) Amendment Bill 2005 (Bill) (an amendment to the Environment Protection Act 1993 (Act)), was recently released for public comment in South Australia. The Bill is part of a package of proposed reforms to contaminated land laws in South Australia.
If the Bill is passed, new obligations will be imposed on developers, polluters, owners and occupiers of contaminated land. In addition, the Bill covers site contamination that occurred prior to commencement of the Act on 1 May 2005 (the Bill is retrospective).
Definition of Site Contamination
Pursuant to the Bill, the following two activities must have occurred for site contamination to be said to exist:
First, a chemical substance(s) (including waste) must have been introduced by an activity to the site in concentrations above the background concentrations.
Second, this must result in:
Actual or potential harm to the health or safety of human beings that is not trivial, taking into account current or proposed land use(s).
Actual or potential harm to water (surface or underground) that is not trivial.
Other actual or potential environmental harm that is not trivial, taking into account the current or proposed land uses.
Who is the ‘appropriate person’ to be served with a Site Contamination Assessment Order/Site Remediation Order?
Pursuant to the Bill, in the first instance the ‘appropriate person’ will be the person responsible for the site contamination, namely the polluter. However, if the polluter is insolvent, unidentifiable or has died, the owner of the site may be served with an order by the Environment Protection Authority (EPA).
If the site is sold under an agreement that is entered into at arm’s length, then responsibility can be transferred to the new owner in circumstances where that new owner has agreed in writing to assume full or partial responsibility for any site contamination.
Also, if a body corporate issued with an order is believed to be winding up or stripping its assets in order to avoid:
meeting its obligations pursuant to that order, or
being issued with such an order,
a director or another person concerned in the management of the body corporate, or of a holding company of the body corporate, is the appropriate person to be issued with an order in respect of the site.
Other components of the Bill
The Bill also proposes to:
Prohibit or restrict the taking of water affected by site contamination.
Establish ‘areas of special concern’ of land and/or water and to ensure their effective management.
Empower the EPA to order appropriate persons to competently assess, remediate and manage site contamination wherever this may be necessary and appropriate.
Effectively implement the National Environment Protection (Assessment of Site Contamination) Measure 1999 (and any subsequent amendments) and other relevant national and South Australian guidelines, policies and principles.
Develop a framework for determining the person responsible for site contamination.
Establish the accreditation, administration and operation of a site contamination audit system in South Australia.
Establish effective operation of land use planning processes in conjunction with this legislative framework to ensure that all new developments with a sensitive land use, where site contamination is identified or suspected, are suitable for that use.
Submissions on the Bill
The South Australian Government is requesting submissions on the Bill be made up to 27 January 2006.
The Bill is part of a ‘Site Contamination Package’ to ensure site contamination is well managed throughout South Australia. The Bill provides legislation protecting human health and the environment where activities resulting in site contamination occurred before the commencement of the Act on 1 May 1995.
As a holistic framework for managing site contamination, the Site Contamination Package will comprise the Bill and associated regulations, appropriate amendments to planning processes pursuant to the Development Act 1993, amendments to other South Australian legislation (particularly the regulations under the Land and Business (Sale and Conveyancing Act 1994)), and a series of EPA guidelines and codes of practice.
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.
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