New South Wales has just significantly tightened its regulation of contaminated land, so if you currently own, occupy, or have impacts on land which could potentially be contaminated, or you ever have done in the past, or are proposing to do so in future, you will need to review your obligations and exposure to investigate or clean up the land.

The changes in the Contaminated Land Management Amendment Bill 2008 were passed by Parliament on Tuesday, 2 December and include:

  • an expanded definition of persons responsible for contamination - and those "responsible for contamination" will continue to be responsible as far as the Act is concerned, even if they have made a contract or other arrangement which says another person is responsible
  • widening the duty to report contamination - if you reasonably ought to have known about contamination (for example, if you could have reasonably sought advice that would have made you aware of the contamination) you must report it
  • a new test for the EPA's power to regulate - the objective "significant risk of harm" test will be replaced by a more subjective test of whether the EPA considers the contamination is "significant enough to warrant regulation"
  • new powers allowing the EPA to require a broad range of persons to carry out preliminary investigation, even if the EPA hasn't determined there is contamination that is "significant enough to warrant regulation"
  • removing the "no knowledge" defence for managers/directors
  • new offset arrangements between the Minister and a polluter (for example, provision of community services or the establishment of environmental or resource projects) where, in the opinion of the Minister, it is in the public interest and it would not be practicable to remediate the contamination within a reasonable time; and
  • greater penalties for failure to comply with management orders or the duty to notify the EPA.

We looked at the Bill in-depth here.

Now that the Bill has been passed, you will need to consider:

  • could your business' past activities make it "responsible for contamination"?
  • are you on notice of facts which could require your company to investigate and/or report contamination to the EPA?
  • can the EPA require you to conduct investigations or conduct remediation under the new laws, where it couldn't require you to do so under the current laws?
  • should you be expanding your contaminated land due diligence?

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.