Changes to Contaminated Land Management Act

THE LATEST CHANGES IN CONTAMINATION OBLIGATIONS IN NSW:
DO YOU HAVE A DUTY TO REPORT?

Since December 2008, the Contaminated Land Management Act 1997 has been undergoing an overhaul, with new waves of provisions coming into force in December, then July. Significant changes have included:

• a change in the trigger for intervention by the EPA from “significant risk of harm” to “significantly contaminated land”;
• the introduction of Preliminary Investigation Orders to force a range of people to undertake investigation;
• “Management Orders” replacing “Investigation” and “Remediation” Orders;
• the removal of the “no knowledge” defence;
• the introduction of an offence for providing the EPA or a Site Auditor with false or misleading information;
• the introduction of Penalty Infringement Notices to enable certain breaches to be dealt with by way of fine rather than court; and
• the ability for the EPA to impose conditions on or revoke a voluntary proposal.

In addition, section 60, the provision imposing a duty to report contamination, has been amended. On 1 December 2009, new Guidelines under section 60 come into effect. The Guidelines provide further detail on:

• how to determine when to report, including a checklist for site owners and responsible people;
• the notification triggers, i.e. the concentration of contaminants. It should be noted that these are set quite low, especially in relation to groundwater, to trigger reporting in more cases;
• situations which are not intended to require reporting, such as diffuse urban pollution, the EPA is already involved, or a Site Audit Statement has been issued certifying the use of the land;
• the factors as to whether a person should have been “reasonably aware” of the contamination, such as their qualifications and training, whether they could reasonably have sought advice and the circumstances of the contamination;
• the form of the report to the EPA.

Failure to comply with this duty to report can result in prosecution by the EPA, with maximum penalties currently set at:

• Corporations: $165,000, with a further penalty of $77,000 for each day the offence continues; and
• Individuals: $77,000, with a further penalty of $33,000 for each day the offence continues.