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03 Sep 2009

Changes to contaminated land law in NSW have commenced: what are your obligations?

by Brendan Bateman, John Clayton, Ana Totoeva

Although the Guidelines on the Duty to Report Contamination are not in force, it would be prudent for people to gain an understanding of their potential obligations now.

The New South Wales Government has enacted significant amendments to the Contaminated Land Management Act 1997 (NSW) (CLM Act), which have now come into force as of 1 July 2009.

One of the key amendments is an extended duty to notify contamination to the Environment Protection Authority (EPA). In summary, a person who has contaminated land or a landowner of contaminated land has a duty to notify the EPA if:

  • A contaminant has entered or will foreseeably enter neighbouring land and the level of contamination will foreseeably be above a prescribed level; or
  • The guideline specifies a level of the contaminant in soils and the level of the contaminant in any part of the soil on that land is equal to or above that specified in the guideline and a person has been, or foreseeably will be, exposed to the contaminant.

Guidelines on the duty to report contamination

To give effect to the above amendment the EPA published Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997 on 1 July 2009. These Guidelines have statutory force and revoke and replace the previous guidelines, "Contaminated Sites: Guidelines on Significant Risk of Harm from Contaminated Land and the Duty to Report", published on 4 June 1999.

The Guidelines provide a guide to landowners on how the reporting obligation under the CLM (as amended) will be applied by prescribing certain notification triggers and other factors which will be taken into account in determining whether someone should have reported contamination. Consequently, a person whose activities have contaminated land, or an owner of land which has been contaminated, should have primary regard to the Guidelines in order to determine whether he/she has a duty to notify contamination in relation to that land.

Notification triggers

With respect to soil contamination, the Guidelines provide trigger levels in relation to the Health Investigation Levels specified in the National Environment Protection (Assessment and Site Contamination) Measure 1999 or (in relation to four particular contaminants) the Contaminated Sites: Guideline for Assessing Service Station Sites 1994. With respect to water contamination, notification is required if actual or foreseeable contamination of surface or groundwater is, or will foreseeably be, above the concentration levels specified in Appendix A of the Guidelines.

The situation where a contaminant has or will foreseeably enter neighbouring land (point (a) above) is also controlled with reference to the Health Investigation Levels specified in the National Environment Protection (Assessment and Site Contamination) Measure 1999 or the Contaminated Sites: Guideline for Assessing Service Station Sites 1994. Relevantly, the Guidelines elaborate on what "foreseeable" means for the purposes of that provision as well as the CLM Act generally.

When does the duty to report arise?

The duty to report arises when a landowner or a person whose activities have contaminated land:

  • is aware of the contamination; or
  • should reasonably have been aware of the contamination.

The legislation provides that the following factors are to be taken into account in determining when a person should reasonably have become aware of the contamination:

  • the person’s abilities, including his or her 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.

Although the Guidelines state that it is impossible to exhaustively list the factors that would lead to a conclusion that a person could reasonably have sought advice, that would have made them aware of the contamination, some relevant factors are outlined, including:

  • the circumstance of contamination or whether there is evidence of contamination;
  • the site history;
  • the activities carried out on the site; and
  • whether the person would have difficulty accessing the site to obtain information about contamination (eg. the person has no control or management of the site).

The Guidelines state that if a person is involved in potentially contaminating commercial or industrial activities on the site then they should seek advice about the existence of any contamination. Similarly, if potentially contaminating commercial or industrial activities have previously been carried out on the land, there is some evidence of contamination, and no prior contamination assessment has been conducted, the person should seek further advice about the site and determine whether there is any contamination.

When notification not required

The Guidelines also provide useful information on which scenarios the EPA does not intend to be captured by the duty to report. These are:

  • sites without offsite contamination where the onsite contamination is not likely to migrate to an adjoining property and the onsite contamination has been adequately addressed by the planning process under the Environmental Planning and Assessment Act 1979;
  • sites with substances that are at levels above the triggers but are below, or the same as, the natural background concentration;
  • sites that have already been notified to EPA under the CLM Act and there have been no change in circumstances;
  • sites subject to a declaration, an order or a proposal under the CLM Act;
  • sites formerly subject to a declaration under the CLM Act but where no potentially
  • contaminating activities have since been carried on; or
  • sites where a site audit statement has been issued and no potentially contaminating activities have since been carried on.

Commencement of Guidelines

The Guidelines state that:

"These guidelines take effect upon publication in the Government Gazette [1 July 2009], with the exception of Part 2 and Appendixes A and B of the Guidelines, which will take effect on 1 December 2009."

Part 2 and Appendixes 1 and 2 relate to the notification triggers for the duty to report contamination. In effect, this means that the relevant parts of the Guidelines which concern notification and the duty to report do not commence until 1 December 2009, despite the fact that the Contaminated Land Management Amendment Act 2008 has come into force and the Guidelines have been gazetted.

This is particularly problematic and an unsatisfactory position. For example, it is arguable that because the Guidelines have not commenced, there are no relevant notification triggers and therefore there is no legal obligation on anyone to report the presence of contamination on land until after 1 December 2009.

However, it would be prudent for people to gain an understanding of their potential obligations under these Guidelines now. The delayed commencement of the Guidelines presents an opportunity to review your position and if necessary conduct an appropriate site investigation or review. This is especially important as the obligation to report applies to a person who "should reasonably have been aware of contamination" which takes into account "whether the person could reasonably have sought advice that would have made the person aware".

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.