In recent years there has been an increase in redevelopment of industrial land to residential land in NSW. As a result, regulatory focus on the management and control of contaminated land has increased. Due to the growing awareness of the impact of contaminated land on the environment and human health, the NSW Government introduced The Contaminated Land Management Act 1997 (NSW).
The Act establishes a process for investigating, managing and remediating sites. After a five year statutory review and the release of the Contaminated Land Management Amendment Bill 2007, it is clear that, although the Act significantly improved the management of contaminated sites in NSW, there are still a number of concerns about the operation of the Act. Consequently, the Contaminated Land Management Bill 2008 (NSW) has been drafted to clarify how contaminated land will be better regulated. This includes removing unnecessary regulation, strengthening investigation and duty to notify requirements, clarifying reporting and disclosure of information arrangements, expanding cost-recovery provisions, providing for voluntary offset arrangements and strengthening the false and misleading information offence.
The Contaminated Land Management Amendment Bill 2008
The Bill was introduced to Parliament on 26 June 2008 following the release last year of the draft Contaminated Land Management Amendment Bill 2007 for public consultation. The Bill contains some differences from the earlier bill. The Bill proposes to fundamentally alter the way in which contaminated land is regulated and managed in NSW including the requirements to notify contamination to the EPA.
Preliminary investigation orders
The Bill changes the current process to allow investigation and remediation to be conducted concurrently under management orders and/or approved voluntary management proposals. The Bill introduces a new power to enable the EPA to require certain persons to carry out the preliminary contaminated site investigation to identify whether the land is significantly contaminated, the nature and extent of the contamination, and whether the contamination is significant enough to warrant regulation. The Bill provides no direct right of appeal against the EPA issuing a preliminary investigation order.
The protection of a Voluntary Remediation Agreement under the Contaminated Land Management Act 1997 (NSW) has been removed, whereby the EPA can still issue an order or require ongoing management action to be undertaken regardless of compliance with a voluntary agreement. The Bill also confirms the "polluter pays" principle, that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement.
Once the contaminated land is declared to be significantly contaminated land the EPA is able to make a "management order" in respect of that land requiring a person or persons to investigate and remediate the contamination of the significantly contaminated land. The Bill clarifies that a management order can be issued to one or more persons who are responsible for the contamination. The Bill also clarifies that the EPA can issue clean-up and prevention notices under the Protection of the Environment Operations Act 1997 (NSW) in relation to significantly contaminated land, regardless of whether it is the appropriate regulatory authority under that Act.
Significant Risk of Harm
The Significant Risk of Harm test has partially been re-introduced, having been removed under the draft Bill released in 2007 for public consultation, although the Bill as finally introduced into Parliament has given the EPA greater discretion to decide whether a site is contaminated and whether such contamination is significant enough to warrant regulation. The Bill provides for this by replacing the phrase "significant risk of harm" with "significantly contaminated land". The EPA must still take into account any increase in the risk of harm that arises from the current and approved uses of land, as well as referring to the existing guidelines.
Duty to Notify
A person is required to notify the EPA, as soon as practical, after the person becomes aware of the contamination of land. The Bill clarifies that persons will be taken to be "aware" of contamination if that person ought "reasonably" to have been aware of the contamination. The Bill takes into account the person's abilities, experience, qualifications and training; whether persons could reasonably have sought advice that would have made it aware of the contamination; and the circumstances of the contamination.
New Offset Arrangements
The Bill proposes to allow the Minister to enter into offset arrangements with the party responsible for contamination, where, if it is not practicable to remediate (meaning "long term management") the contamination within a reasonable time, the contamination may be offset by providing community assistance. This amendment will provide a way of mitigating the community impacts of contamination. The offset arrangements can only be applied to a person responsible for the contamination and cannot include direct financial compensation.
What does this mean for you?
The proposed amendments are likely to bring certainty as to the trigger for mandatory reporting by removing the significant risk of harm test and making the reporting threshold referable to guidelines. However, the change to the reporting threshold is likely to mean that there will be a significant increase in the number of sites required to be notified, and organisations will need to be vigilant to ensure that information is disseminated in circumstances where they "ought" to be aware of contamination.
The introduction of preliminary investigation orders will give the EPA far greater powers than at present to require an early assessment of whether land is contaminated, without also being satisfied that the contamination presents a significant risk of harm. The opportunity to make preliminary investigation and management orders against more than one person will also mean that the EPA need no longer be concerned to ensure that it has selected the most appropriate person as the recipient of the order.
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.