23 Jul 2015

New guidance on the duty to report contamination in NSW

by Claire Smith, Rebecca Davie

New Guidelines on the Duty to Report Contamination are in effect in NSW and may require notification of additional contaminated sites to the EPA.

On 3 July 2015, the new Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997 took effect, replacing the previous 2009 version.

A duty to report contaminated sites arises under section 60 of the Contaminated Land Management Act 1997 (CLM Act) where the contamination meets relevant criteria or triggers specified in a guideline. The duty may apply to a person whose activities have contaminated land or an owner of land that has been contaminated.

The Guidelines specify the trigger levels for reporting contaminated sites to the Environment Protection Authority under section 60 of the CLM Act and describe how the EPA evaluates the significance of contamination.

Overview of updated Guidelines on the Duty to Report Contamination

Compared with the 2009 guidelines, the updated Guidelines:

  • more comprehensively adopt the contaminant trigger levels in the National Environment Protection Measure for Assessment of Site Contamination (NEPM), which was updated in 2013;
  • include new guidance on groundwater, surface water, vapour intrusion and asbestos in soils; and
  • clearly state that in addition to the duty to report under section 60 of the CLM Act, a polluter or landowner may have other obligations, including a duty to report pollution incidents under the Protection of the Environment Operations Act 1997.

The penalties for a polluter failing to report contamination when required to do so have been updated. However, we note an error in the Guidelines that is inconsistent with section 60 of the CLM Act. The maximum penalty is $1,000,000 for a corporation (not $100,000 as published in the Guidelines).

Notification of asbestos

Following the update of the NEPM in 2013 (which includes health screening levels for asbestos), the EPA said that:

"In general, the presence of asbestos does not warrant that a site is notified to the NSW EPA under the CLM Act. Sites may be regulated under the CLM Act where the EPA determines that there is ‘significant contamination’ of land, such as where the scale and nature of the contamination is giving rise to actual or potential harm to human health or the environment. This could occur where there are elevated levels of asbestos fibres in air and the responsible party is not addressing the source of the risk."

This position has been refined in the Guidelines published this month, through the inclusion of a clear criterion for notification of friable asbestos contamination. Bonded asbestos cement and naturally occurring asbestos are not captured by the Guidelines.

Notification of asbestos contamination is required where:

  • friable asbestos is present in or on soil on the land; and
  • the level of asbestos in an individual soil sample is equal to or above the health screening level of friable asbestos in the NEPM; and
  • a person has been, or foreseeably will be, exposed to elevated levels by breathing them into their lungs.

Foreseeability of exposure or harm

The concept of "foreseeability" of exposure or harm is central to the duty to report under section 60 of the CLM Act. The Guidelines list a number of matters to consider in determining whether the presence of contamination or its migration is foreseeable, including:

  • the physical and chemical properties of the contaminants;
  • the quantity of the contaminants;
  • the location of the site;
  • the geological and hydrogeological conditions; and
  • the potential fate and transport mechanisms.

The Guidelines also call for a precautionary approach where insufficient reliable data is available. When determining the foreseeable movement of contaminants through various media, sufficient samples should be taken to allow verification of the extent of contamination. If sampling has not been undertaken, movement of contaminants at levels above the notification trigger values should be assumed.

Key actions for polluters and owners of contaminated sites

While it is likely that, at least since the publication of the updated NEPM in 2013, the criteria and triggers set out in the NEPM have been broadly used in assessing contaminated sites in NSW, we recommend that owners and polluters of contaminated sites that did not previously meet a threshold for reporting under section 60 of the CLM Act under the 2009 Guidelines reconsider their analysis of their duty to report contamination in light of updated thresholds.

This includes sites contaminated with substances for which there was no relevant trigger level (eg. asbestos) or where the trigger level may have changed under the new Guidelines (eg. through the inclusion of vapour intrusion criteria).

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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.