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The Contaminated Sites Act 2003 (WA) will (finally!) come into force in Western Australia on 1 December 2006. The Act may affect you if you are in one of the following five categories: you have, or will, cause or contribute to land or water being contaminated, you own a contaminated site, you occupy or control a contaminated site, you are a mortgagee of a contaminated site or you are a director of, or a related corporation of, a corporation listed in the previous four categories.
If you are in one of the above categories, then there are five things you should know about the Act.
1 What are contaminated sites?
2 Who has to report contaminated sites?
3 How will contaminated sites be classified, and what consequences will classification have?
4 Who has to remediate classified contaminated sites?
5 What are the procedures and penalties when dealing with contaminated sites?
1 What are “contaminated sites”?
The Act regulates “contaminated sites”. A “site” is an area of land or water in Western Australia, including surface water, groundwater and offshore areas out to 3 nautical miles. A site is “contaminated” if it has a substance in it at above background concentrations which presents or has the potential to present a risk of harm to human health or the “environment”. The environment includes living things and their physical and biological surroundings, and interactions between these.
The Department of Environment and Conservation (DEC)’s Guidelines for “Potentially Contaminating Activities, Industries and Land uses” and “Reporting of Known or Suspected Contaminated Sites” help determine whether a site is contaminated.
2 Who has to report contaminated sites?
One of the main purposes of the Act is to permit DEC to develop a database of contaminated sites in the state. The Act imposes wide reporting obligations by requiring the following people to make initial reports of known or suspected contaminated sites to the DEC:
- any person who knows or suspects they have (at any time in the past) caused or contributed to contamination on a site (even if they no longer own or occupy the site)
- owners (including mortgagees in possession) who know or suspect contamination of their site, and
- occupiers of (or people in control of) sites which they know or suspect are contaminated.
The Act provides an initial six month period for contamination to be reported. This means all existing contamination, and contamination caused in the next few months, has to be reported by 1 June 2007. If you don’t believe you can report by that time, you can apply for a customised reporting program.
For contamination caused after 1 June 2007, if you know that you have caused the contamination, you must report the site to DEC within 21 days of knowing. If you merely suspect a site is contaminated, you must report the site as soon as is reasonably practicable.
You will not have to report a site if you have reasonable grounds to believe it has already been reported by someone else.
3 Classification - how will it happen and what will it mean?
Once a report of contamination is made, the site will be “classified” by the DEC, usually within 45 days. (Then in some cases, classifications can be appealed to the Contaminated Sites Committee.) There are seven potential classifications, but those of most concern are:
- contaminated - remediation required
- contaminated - restricted use
- remediated for restricted used
- possibly contaminated - investigation required.
Memorials will be lodged on the titles to all land that is subject to these classifications. No authorities will be able to issue subdivision or development approvals for these sites without considering DEC’s advice about the contamination. Details about sites with the first three classifications above will be available in a free public database. Details of all reported sites will be available to the public via a basic search (at cost of $30) or detailed search (at cost of $300).
4 Who has to remediate classified contaminated sites?
Sites classified “contamination -remediation required” will need to be remediated. The timeframe for action will depend upon the risk the contamination poses. Some contamination may be able to be managed in accordance with normal operations, while other sites will need to be remediated immediately. The DEC’s Guideline “The Use of Risk Assessment in Contaminated Site Classification” helps determine this
Where remediation is required or desired, the Act sets out a basic “hierarchy of responsibility” of those who will be responsible. Depending on the circumstances, the hierarchy of who may be responsible will usually be:
- people who wish to develop and thus change the use of the site
- owners (including mortgagees in possession) who bought/came into possession of the site before 1 December 2006 with knowledge/suspicion, or reasonable grounds for knowledge/suspicion, of the contamination;
- polluters who caused or contributed to the contamination (however for contamination caused before 1 December 2006, people will only be responsible for causing the contamination if it occurred because of an act they did without lawful authority, such as pollution caused without a licence);
- most other owners (including mortgagees in possession) (however owners may be able to obtain an exemption from responsibility if they did not cause/contribute and did not have reasonable knowledge/suspicion of the contamination, and apply for the exemption by 1 December 2008);
- owners and occupiers who are issued with a statutory notice by the DEC to remediate (however if these people wouldn’t otherwise be “responsible”, they can seek compensation for complying with the notice from any others who are “responsible”) and
- the state (however if the state becomes responsible, it can create a charge over the land to secure its costs of investigation and remediation, and in some cases compulsorily acquire the land).
(Note that directors and related corporations can also be liable in some circumstances if the responsible corporation is insolvent.)
In specific cases the Contaminated Sites Committee will be able to decide about who is responsible if there is some doubt about it, or if no commercial arrangement can be reached. If a commercial arrangement is reached by which the parties wish to apportion their responsibilities other than in accordance with the Act, they must have prior approval from DEC.
5 New procedures and penalties for dealing with contaminated sites
The Act provides the following new procedures when dealing with contaminated sites:
- any transaction which will involve the sale, lease or mortgage of a contaminated site must include formal disclosure (Form 6) of the contamination at least 14 days before completion; and
- mortgagees who take possession of a contaminated site will have 45 days to apply to the Minister for the Environment to transfer their responsibility for the site to the state (by either transferring the site or creating a charge over it).
Penalties of up to $1.25 million apply if you fail to report a site or give a misleading report, and up to $2.5 million if you fail to comply with a statutory notice. Directors and managers are usually liable for the offences a corporation commits.