On 3 July 2015, the NSW Environment Protection Authority (EPA) published the new Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997 (CLM Act) (Reporting Guidelines). The Reporting Guidelines replace the previous guidelines published in 2009 and provide information on the duty to report contamination to the EPA under the CLM Act.

Any person carrying out activities which may result in the contamination of land and owners or prospective owners of potentially contaminated land should be aware of the duty to notify contamination under the CLM Act and the Reporting Guidelines.

When must contamination be notified to the EPA?

The CLM Act establishes a framework for the investigation of and, where appropriate, regulation and remediation of contaminated sites. The duty to notify contaminated sites provides the EPA with knowledge about which sites are contaminated and whether to take regulatory action. It also provides the public with information about potential contamination issues on land.

In particular, section 60 of the CLM Act imposes a duty on:

  • a person whose activities have contaminated land; and
  • an owner of land that has been contaminated (whether before or during the owner's ownership of the land),

to notify the EPA in writing that the land has been so contaminated, where certain triggers have been met. For example, this duty to notify arises where a guideline specifies a level of the contaminant in soils and that level is equal to or above the relevant level specified in the guideline and a person has been, or foreseeably will be, exposed to the contaminant.

What do the Reporting Guidelines do?

The EPA can make guidelines for its own use or for the use of landowners, developers and site auditors, for example, for any purpose connected with the CLM Act.

The purpose of the Reporting Guidelines is to specify circumstances where the requirement to notify contamination to the EPA is met. Generally, under the Reporting Guidelines, anyone whose activities have contaminated the land, or an owner of land that is contaminated, is required to notify where:

  • the level of the contaminant in, or on, soil is equal to or above a level of contamination set out in the National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM) or the Reporting Guideline with respect to a current or approved use of the land, and people have been, or foreseeably will be, exposed to the contaminant;

OR

  • the contamination meets a criterion prescribed by the regulations 1;

OR

  • the contaminant or a by-product has entered, or will foreseeably enter, neighbouring land, the atmosphere, groundwater or surface water, and is above, or will foreseeably be above, a level of contamination set out in NEPM or other approved guidelines and will foreseeably continue to remain equal to or above that level.

Section 2.3 of the Reporting Guidelines specifies what levels trigger notification for the purposes of the CLM Act, including levels for on and off site soil contamination, foreseeable contamination on neighbouring land, asbestos, groundwater and surface water and vapour intrusion.

Sections 2.5 and 2.6 list situations that are, and are not, intended to be captured by the duty to report, with examples.

What has been updated in the Reporting Guidelines?

The Reporting Guidelines are similar to the previous 2009 version, except that they now address the NEPM as amended in 2013. The purpose of the NEPM is to establish a nationally consistent approach to the assessment of site contamination to ensure sound environmental management practices by the community 2.

The Reporting Guidelines also provide for:

  • a notification trigger for asbestos, which adopts the NEPM health screening level for friable asbestos in or on soil; and
  • NEPM levels for soil, groundwater and surface water, as well as vapour intrusion.

This means that the NEPM is now the source of most reporting thresholds under section 60 of the CLM Act and, as a result, the statutory reporting thresholds for some contaminants may change.

Owners and occupiers of potentially contaminated land should ensure that they are familiar with the Reporting Guidelines and understand whether they have a duty to notify a site to the EPA.

If you have any questions in relation to whether you may have a duty to notify your site to the EPA, please do not hesitate to contact Breellen Warry.

Footnotes

1At the time of publication, the Contaminated Land Management Regulation 2013 does not prescribe any criterion.

2 NEPM, section 5.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.