Alert

Who does this affect?

Owners of land and people whose activities have contaminated land.

What do you need to do?

Read the Guidelines and review site history and activities. Consider engaging a consultant now to prepare for 1 December 2009, as after this time, it will be an offence not to report contamination if you ought to have known about it.

Authors
Bridget Phelan  
Senior Associate

Rebecca Dixon  
Senior Associate

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Debra Townsend  
Partner
T +61 2 9296 2341

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Significant changes to the NSW regime for contaminated land have now commenced. The Contaminated Land Management Amendment Act 2008 which we reviewed in our December 2008 alert has entirely commenced as of 1 July 2009, and the accompanying draft Guidelines we reviewed in our April 2009 alert have now been finalised.

This alert focuses on the new duty to report contamination, as this can only now be understood as a result of the publication on 1 July 2009 of the final Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act. However, the contaminated land regime as a whole has significantly changed as a result of the 1 July commencement of all of the amending legislation, and so we recommend you read our two earlier Alerts as the comments in them are still applicable.

Duty to Report

The new duty to report is now in force, although key provisions in the Guidelines will not commence until 1 December 2009. The duty applies to an owner of land or a person whose activities have contaminated the land. Failure to report is an offence incurring a fine of up to $165,000 for a corporation (and $77,000 for each day that the offence continues), and up to $77,000 for an individual (and $33,000 for each day that the offence continues).

The duty to report to the EPA only exists if certain matters in the Guidelines are met. In summary these are:

• the level of soil contamination exceeds that set out in the Guidelines for the current or approved use of the land, and people have been or foreseeably will be, exposed to the contaminant, or

• the contaminant has entered or will foreseeably enter neighbouring land, or the atmosphere, groundwater or surface water, and exceeds or will foreseeably exceed the level in the guidelines and will foreseeably remain above that level.

The Guidelines set out the levels for each of the 5 categories of contamination (‘onsite soil’, ‘offsite soil’, ‘foreseeable contamination of neighbouring land’, ‘groundwater’ and ‘surfacewater or groundwater discharging into surfacewater’). In addition to exceeding these levels, an assessment of foreseeability is required in each case. Under the Guidelines, “foreseeability” requires consideration of:

• the physical and chemical properties of the contaminants

• quantity of the contaminants

• location of the site

• geological and hydrogeological conditions, and

• the potential fate and transport mechanisms.

When do I have to report?

The duty to report applies as soon as practicable after the person becomes aware of the contamination. You do not need to have actual knowledge for the duty to apply to you. Importantly, the Act says that a person is taken to be aware if the person ought reasonably to have been aware, which in turn is based on:

• the person’s abilities including experience, qualifications and training

• whether the person could reasonably have sought advice that would have made the person aware of the contamination, and

• the circumstances of the contamination.

You have until 1 December 2009 (when all of the Guidelines will be in force) to consider the Guidelines and whether or not you should be reporting. Given the complexity of the Guidelines, many people will need to engage environmental consultants as part of the process. The Guidelines are complicated, but they do set out some examples of how they are to be applied, and a number of checklists which are a starting point for any assessment.

When DECC receives a report, it will assess it to see whether it considers the land to be “contamination significant enough to warrant regulation”. This will be determined by DECC on a case by case basis. If so, it may take actions including declaring the land to be “significantly contaminated land”, issuing management orders or approving voluntary management proposals.

Interestingly, the information you provide to DECC as a result of your duty to report is not admissible in evidence in any proceedings against you (apart from proceedings relating to the duty to report itself).