Australia: Significant Legislative Changes To The Regulation Of Contaminated Land In NSW

Last Updated: 4 February 2009
Article by Jacinta Studdert and James Smith

The Contaminated Land Management Amendment Act 2008 (NSW) was passed by the New South Wales Parliament in December 2008. A number of significant provisions were assented to on 10 December 2008, however, the majority of the amendments are still to come into force, giving industry an opportunity to prepare for the changes.

After an extensive consultation process and amendment to the Draft Contaminated Land Management Amendment Bill 2007 (Bill) the Contaminated Land Management Amendment Act 2008 (NSW) (Amendment Act) has now passed through both Houses of the New South Wales Parliament. The Amendment Act is the product of the first major review of the Act since it was introduced ten years ago. Amongst other things the amendments have significantly enhanced the EPA's powers to require the investigation of contaminated land, extended the duty to report land contamination and changed the test for determining when land is contaminated and can be regulated. The Amendment Act also confirms the "polluter pays" principle, that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement of the contamination. The principal changes are summarised below:

Preliminary investigation orders

The Amendment Act enables the EPA to order a broad range of persons to undertake a preliminary investigation to determine whether a particular site contains contamination. Such orders would specify the substance the EPA reasonably suspects contaminates the land and requires investigation. A person must not, without reasonable excuse, fail to comply with a preliminary investigation order.

Significant Risk of Harm Test

The Amendment Act has also given the EPA greater discretion to decide whether a site is contaminated and whether such contamination is significant enough to warrant regulation. The Amendment Act refers to "significantly contaminated land" rather then "significant risk of harm". 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.

Management Orders

The changes allow the EPA to regulate the investigation and remediation of "significantly contaminated land" simultaneously, with the support of management orders and/or approved voluntary management proposals as opposed to the previous two stage approach of separate investigation and remediation orders, thus arguably make the process more efficient and flexible.

Once the contaminated land is declared to be significantly contaminated 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 Amendment Act confirms that a management order can be issued to one or more persons who are responsible for the contamination. The Amendment Act 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. The Amendment Act has also imposed greater penalties for providing false or misleading information.

Importantly the previous protections provided by entering into a Voluntary Remediation Agreement under the previous Contaminated Land Management Act 1997 (NSW) have been removed, so that the EPA can now still issue an order or require ongoing management action to be undertaken regardless of the completion of a voluntary agreement.

Persons Responsible for Contamination

The Amendment Act has considerably broadened the range of categories of persons who can, in the first instance, be considered "responsible for contamination" and potentially the subject of a preliminary investigation or management order. For example, some of the additional categories now include:

  • the owner/ occupier who knew and failed to take steps to prevent the contamination;
  • a person whose actions/activities caused the contamination; and
  • a person whose activities on the land generate or consume substances that cause or may be converted to contamination.

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 Amendment Act says that persons will be taken to be "aware" of contamination if that person ought "reasonably" to have been aware of the contamination. The Amendment Act 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.

Environmental Offset Arrangements

The Amendment Act allows the Minister to enter into offset arrangements with those responsible for contamination, where it is not practicable to remediate the contamination within a reasonable time. Under these new provisions the contamination may be offset by providing community assistance. 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 passing of the Amendment Act brings greater certainty 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 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. Allowing preliminary investigation and management orders to be issued 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.

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Jacinta Studdert
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