Article by Jacinta Studdert, James Smith and Susan Rose
Significant amendments to the Contaminated Land Management Act 1997 (CLM Act) were introduced in December 2008 as a result of the assent of the Contaminated Land Management Amendment Act 2008.
Strict reporting obligations imposed on landowners and those whose activities cause contamination under section 60 of the CLM Act were amongst the suite of legislative changes to contaminated land management as outlined in Deacons Legal Updates:
- 'Significant legislative changes to the regulation of contaminated land in NSW' published following the assent of the legislative changes under the Contaminated Land Management Amendment Act 2008 in December 2008; and
- 'Further update on the obligations of individuals and companies on the commencement of the Contaminated Land Management Amendment Act 2008 (NSW)' published upon the commencement of substantive provisions in July 2009.
The Duty to Report and the Guidelines
To assist individuals and companies to understand their reporting obligations under the CLM Act, the Department of Environment Climate Change and Water (DECCW) released the 'Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997' (Guidelines) in July 2009 under section 105 of the CLM Act.
On 1 December 2009, the substantive parts of the Guidelines are scheduled to commence, being Part 2 'Duty to Report Contamination' and the Appendices including the Notification triggers for groundwater and surface water and the Site contamination notification form.
Upon commencement of these parts, individuals and companies will be required under s 60 of the CLM Act to report contamination to the DECCW. Individuals and companies should be aware that:
- a person is required to notify the DECCW as soon as practical, after the person becomes aware of the contamination of land (s 60 (4) of the CLM Act);
- this requirement applies to a person whose activities have contaminated land and a land owner whose land has been contaminated, regardless of whether they were responsible for the contamination (s 60 (1) and (2) of the CLM Act);
- persons will be taken to be "aware" of contamination if that person ought "reasonably" to have been aware of the contamination (s 6(1)(c) of the CLM Act); and
- in reaching this conclusion, the DECCW will take 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 (s 60(9) of the CLM Act).
Section 2.2 of the Guidelines outlines factors to be considered in determining whether to report, including whether there are any indications of potential contamination based on the current and previous land uses and site inspections. The Guidelines also provide:
- a checklist on whether or not to report;
- information on the notification triggers and how they should be used; and
- examples of situations where the duty to report is not intended to be captured or the duty does arise.
Notification is required if a contaminant is present or will foreseeably be present at concentrations exceeding the levels set out in Appendix A of the Guidelines, combined with certain other "factors" as set out in section 2.3 of the Guidelines. The requirement to notify arises in relation to:
- onsite soil contamination;
- soil contamination of;
- neighbouring land;
- contamination of groundwater or surface water which is migrating off site; and
- the foreseeable movement of contaminants.
The acceptable level of soil contamination depends on the current or approved use. The lowest levels of contamination are specified for the residential use of land with accessible soil, followed by parks and recreational areas, residential with minimal soil access (such as apartments) and the highest levels specified for commercial and industrial land uses.
Failure to report contamination to the DECCW could result in substantial penalties of up to $165,000 for corporations and $77,000 for individuals, if convicted. Additional penalties of up to $77,000 for corporations and $33,000 for individuals may also be imposed for each day that the offence continues.
It is noted that except for proceedings relating to section 60 of the CLM Act, information provided by a person in complying with the section 60 duty to report is not admissible by the DECCW as evidence in any other proceedings against that person for offences under other environment protection legislation administered by DECCW (s 60(7) of the CLM Act).
How the DECCW assess the significance of contamination and whether regulation is warranted
Section 3.1 and 3.2 of the Guidelines sets out how the DECCW will assess the significance of contamination and whether regulation of the land by the DECCW is warranted, once a report under section 60 of the CLM Act has been made.
From 1 December 2009, individuals and companies will be required to notify the DECCW in circumstances where they either own land that is potentially contaminated (regardless of whether they caused the contamination) or where their activities have resulted in contamination. Determining whether you have a duty to notify is not always clear particularly in light of the new requirement to notify when you "ought reasonably to have been aware".
Where individuals or companies have not already done so, it will be essential to assess activities, identify potentially contaminated sites and notify when required.
In circumstances where you are not sure of your obligations, obtaining legal advice and engaging a suitably qualified contaminated land consultant to undertake any necessary sampling may be appropriate. Any expert advice provided will need to have specific regard to the CLM Act and Guidelines.
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.