New NSW contaminated land Bill will catch many unaware

Sydney, 27 June 2008: Landowners in NSW may not be aware of the extent of their obligations under a new bill on contaminated land - putting themselves at risk of large fines and remediation costs.

Clayton Utz environment and planning partner Peter Briggs says the Contaminated Land Management Amendment Bill 2008 (CLM Bill), which was tabled in Parliament on 26 June 2008, will not only impose tougher fines on polluters but will also cast a wider net in terms of what is considered 'contaminated' land. 

"If the CLM Bill is passed, any person or business that has ever owned land they know is or suspect of being contaminated would need to look closely at the new reporting obligations to see whether they have a duty to report to the NSW Environment Protection Authority," says Mr Briggs.

"They may have an obligation to report a site that previously fell outside the scope of contaminated land laws. Even if they were not responsible for polluting the site, under the proposed legislation, the EPA would have broader powers of enforcement which means land owners may find themselves bearing the brunt of any penalties and/or remediation costs."

The CLM Bill will replace the current objective "significant risk of harm test" with a subjective test based on whether the EPA considers the contamination is "significant enough to warrant regulation".  It will also change the current way of managing contamination by replacing investigation and remediation orders with "management orders". 

Importantly, the CLM Bill introduces a new power allowing the Minister to enter into offset arrangements with a polluter (for example, provision of community services or the establishment of environmental or resource projects) where it would not be practicable to remediate the contamination within a reasonable time.

Mr Briggs says that if passed into law, the CLM Bill's provisions will need to be considered very carefully by anyone wishing to contract out of liability for contamination in sale or lease contracts. The EPA will now have clearer powers to make orders despite any contract provisions which allocate contamination risk away from responsible parties.