NSW seeks comment on Contaminated Land Management Amendment Bill

The NSW Department of Environment and Climate Change has made available for public comment the Contaminated Land Management Amendment Bill, which is a major overhaul of the Contaminated Land Management Act 1997 ("CLM Act").

The Bill proposes to collapse the current investigation and remediation processes under the umbrella of "Management of Contaminated Land", and will have some very important effects on anyone who has at any time owned or occupied land which could potentially be contaminated.

Some of the changes introduced by the Bill include the following:

• the Environment Protection Authority ("EPA") can now order a wide range of persons to conduct very costly "preliminary investigations" of a site to determine whether a land is contaminated, and the nature and extent of such contamination. This process will be more streamlined for the EPA, and will no longer involve a declaration of an investigation site
• the Bill clarifies who is "responsible for contamination". Under the proposed provisions, both an occupier or an owner of land can be held responsible for contamination in certain cases
• the current "appropriate person" test would be opened up, so the EPA would have access to a broader range of persons when deciding whom it will serve with an order to investigate or "manage" contamination
• the familiar "Significant Risk of Harm" test is to be scrapped. The Bill proposes to grant the EPA regulatory powers when contamination is "significant enough to warrant regulation" (for declaration of land as "regulated land")
• there are major changes to the requirement to notify the EPA of contamination issues. The CLM Act and its guidelines require actual knowledge or evidence that contamination of which a person is aware is presenting a significant risk of harm. The Bill changes this requirement by defining awareness of contamination as when a person "ought reasonably to have been aware of the contamination"
• the current "no knowledge" defence for directors/managers will be scrapped
• the penalties for failure to comply with management orders or the duty to notify the EPA have been increased from $137,500 to $165,000, and daily penalties as long as the offence continues increased from $66,000 to $77,000; and
• there are new provisions allowing recovery of compensation for the effects of contamination in certain cases.

There are other changes which could potentially affect your organisation. The new notification provisions could potentially require companies to conduct proactive investigations in situations where they have constructive knowledge of contamination.

The EPA invites comments and submissions in relation to the proposed Bill. Submissions may be made until the close of business on 12 October 2007. Please let us know if you have any questions relating to the Bill, or if you would like us to assist you in preparing a submission.