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
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;
the contamination meets a criterion prescribed by the
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
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
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
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
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
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
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.
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
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