Upcoming Mallesons seminarsOwners, occupiers, developers and financiers of land if the land may be affected by contamination
What do you need to do?Review the draft guidelines and consider whether to make a submission to the EPA. Submissions must be made by 28 April 2009.
Bridget Phelan
Senior Associate
Rebecca Dixon
Senior Associate
Rebecca Dixon
Senior Associate
T +61 2 9296 2287
Bridget Phelan
Senior Associate
T +61 2 9296 2425
Draft Guidelines have been released on the “duty to notify” the Environment Protection Authority (EPA) of contaminated land. The Guidelines build on significant amendments to the duty to notify, in section 60 of the Contaminated Land Management Act 1997, which were passed by the NSW Parliament in December 2008.
The previous duty to notify required an owner or a polluter to notify the EPA if they became aware that land was contaminated in such a way as to present a “significant risk of harm” (SROH). The amendments removed the SROH test and introduced a different threshold for when a person must notify the EPA. (For an explanation of the changes made by these amendments, see our 10 December 2008 alert).
The new section 60 has a number of triggers for notification but each of them depend on the contamination exceeding levels in the Guidelines. It is only now that the draft Guidelines have been released that the real impact of the new duty to notify can be considered.
The draft Guidelines are highly prescriptive and complicated. There are now five different categories of contamination with different criteria applying to each:
- on site soil contamination
- off site soil contamination
- contamination of neighbouring land
- contamination of groundwater, and
- discharge of surface water or ground water into surface water.
Appendix A to the draft Guidelines then contains tables of potential contaminants and the varying levels of each which will trigger notification for each category. Whilst this, on one view, may import more certainty into the test, often this will not be the case because each of the above categories includes a concept of “foreseeability”. For example, with respect to groundwater, according to the draft Guidelines, the duty to notify is only triggered if the contaminant has entered or will foreseeably enter the groundwater at concentrations which are, or will foreseeably be, above the specified concentrations and the concentration will foreseeably continue to remain above the specified concentration.
If you could like to make a submission on the draft Guidelines, submissions must be made to the EPA by 28 April 2009.