proposed reforms to the contaminated land management act 1997 (nsw) robert wilcher...
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Proposed Reforms to the Contaminated Land Management Act
1997 (NSW) Robert Wilcher
herbertgeer.com.au
22 October 2008
This presentation
Current Act Contamination
EPA powers
SROH
Orders
Duty to report
Some implications
This presentation
Current Act v Changes in Bill Contamination
EPA powers
SROH
Orders
Duty to report
Some implications
Overall Regime
CLM Act/Reg EP&A Act SEPP 55 Guidelines POEO Act
Overall Regime
CLM Act/Reg EP&A Act SEPP 55 Guidelines POEO Act
SEPP 55 Guidelines Service station sites SROH/Duty to report Site Auditor Scheme Groundwater Mgt Other eg EPHC
Contamination
S.5 - defn
presence in, on or under the land
of substance
at a concentration above normally present in same locality
being a presence that presents a risk of harm to human health or any other aspect of the environment.
Contamination
S.5 - defn
presence in, on or under the land
of substance
at a concentration above normally present in same locality
being a presence that presents a risk of harm to human health or any other aspect of the environment.
No change in Bill
Ss.6-10 - Main functions of EPA
6. address contamination
7. SROH – act
8. No SROH – act?
9. SROH indicators
10.ESD
Ss.6-10 - Main functions of EPA
6. address contamination
7. SROH – act
8. No SROH – act?
9. SROH indicators
10.ESD
s.8
s.9
Ss.6-10 - Main functions of EPA
6. address contamination
7. SROH – act
8. No SROH – act?
9. SROH indicators
10.ESD
s.8 New concepts re
significance
s.9
Significantly contaminated
s.9 SROH- EPA• harm caused• toxic • exposure pathways • land use • approved uses • migration • guidelines
Significantly contaminated
s.9 SROH- EPA• harm caused• toxic • exposure pathways • land use • approved uses • migration • guidelines
s.12 Significant? – EPA:o guidelines o harm causedo toxic o exposure pathways o land use o approved uses o migration
EPA Powers – management
s.15 – Investigation Area Decl
→ EPA Rble grds SROH
s.17 – Investigation Order
s.21 – Remediation Area
s.23 – Remediation Order
EPA Powers – management
s.15 – Investigation Area Decl→ EPA Rble grds SROH
s.17 – Investigation Order
s.21 – Remediation Area Decl → If SROH “has been found”
s.23 – Remediation Order
S.10 – Preliminary Investigation Order → No Rble grds issue → EPA may direct any person…
(3) PIO may be served on any person(a) EPA Rbly suspects responsible(b) owner(c) notional owner(d) person whose activities generated
same contaminating substance (e) public authority
Q: only these?
EPA Powers – management
s.21 – Remediation Area Decl
→ If SROH
s.23 – Remediation Order
EPA Powers – management
s.21 – Remediation Area Decl
→ If SROH
s.23 – Remediation Order
S.11 – Declaration
If the EPA has reason to believe that land is contaminated and that the contamination is significant
enough to warrant regulation
→ EPA may declare the land to be significantly contaminated land.
EPA Powers – management
s.21 – Remediation Area Decl → If SROH “has been found”
s.23 – Remediation Order
NB: s.11 declaration: ↔- not reliant on PIO- s.12 assessment of significance
S.11 – Declaration
If the EPA has reason to believe that land is contaminated and that the contamination is significant
enough to warrant regulation
→ EPA may declare the land to be significantly contaminated land.
EPA Powers – management
s.23 – Remediation Order
(a) carry out remediation and other action
(b) submit for the EPA’s approval a plan of remediation
s.25 list of actions
EPA Powers – management
s.23 – Remediation Order
(a) carry out remediation and other action
(b) submit for the EPA’s approval a plan of remediation
s.25 list of actions
S.15 – Management Order
(a) carry out action re management of land
(b) submit for the EPA’s approval a plan of management
EPA Powers – management
s.23 – Remediation Order
(a) carry out remediation and other action
(b) submit for the EPA’s approval a plan of remediation
s.25 list of actions
S.15 – Management Order
(a) carry out action re management of land
(b) submit for the EPA’s approval a plan of management
s.15 actions investigation; remediation; monitoring fence/containment/treatment etc (bigger list)
Orders - Responsibility
s.12 - principal responsibility
s.13 – responsible for SROH if:(a) conversion of substance (b) change in pre-existing
contamination (c) change in the approved use
Orders - Responsibility
s.12 - principal responsibility
s.13 – other:(a) conversion of substance (b) change in pre-existing
contamination (c) change in the approved use
s.6 list
(1) A person is responsible for contamination of land (whether or not significant) if any one or more of the following is true …
Q: is list exhaustive?
S.6(2) - a person is also responsible if…
Orders - Responsibility
s.6(1) responsible for contamination ifa) cause contaminationb) convert substancec) owner/occupier failed to take reasonable steps to prevent
contamination when knew/ ought reasonably to have known that contamination would occur
d) the person carried on activities on the land that generate or consume(i) the same contaminating substances, or(ii) substances that may be converted, by natural reaction, into the
contaminating substances- unless person did not cause contamination
Orders - Responsibility
s.6(2) also responsible for significant contamination if significant contamination resulted from:
(a) change in pre-existing contamination
(b) change in the approved use
Orders – “Appropriate person”
s.12(2)
An appropriate person is to be chosen from among the following interested persons in the following order:
(a)principal responsibility, binp(b)owner, binp(c) notional owner
Orders – “Appropriate person”
s.12(2)
An appropriate person is to be chosen from among the following interested persons in the following order:
(a)principal responsibility, binp(b)owner, binp(c) notional owner
s. 13(2)
The EPA is to choose the appropriate persons from among the following persons:
(a) person responsible (b) owner (c) notional owner
s.13(3): hierarchy of (a) over (b) over (c) “as far as practicable”
Orders – “Appropriate person”
No concept of principal responsibility
→ any person responsible can be ordered
→ more than one person can be ordered
VRA’s and VMP’s
s.19 – voluntary investigation proposals (ever used?)
s.26 VRA’s – EPA agrees
s.26(2) – no EPA order if if remediation is carried out in accordance with VRA
VRA’s and VMP’s
s.19 – voluntary investigation proposals (ever used?)
s.26 VRA’s – EPA agrees
s.26(2) – no EPA order if remediation is carried out in accordance with VRA
s.17 – voluntary management proposals
EPA approvesEPA may serve MO re VMP land if:- orderee not a party to VMP- orderee is a party to VMP, but:
(i) VMP terms not carried out, or(ii) order re matter that is not adequately
addressed by the VMP, or(iii) its approval to the proposal was given on
the basis of false or misleading information.
Duty to report
s.60
(1) person who becomes aware that its activities have contaminated the land & SROH
(2) owner of land who becomes aware that the land has been contaminated & SROH
Duty to report
s.60
(1) person who becomes aware that its activities have contaminated the land & SROH
(2) owner of land who becomes aware that the land has been contaminated & SROH
s.60
Radically changed
Duty to report
New s.60(1) a person whose activities have contaminated land
(2) owner of land that has been contaminated
(3) but only if…
Duty to report
s.60, contaminator/owner to report,
(3) but only if
(a) All are true:• contaminating substance will foreseeably enter neighbouring land,
the atmosphere, groundwater or surface water• regs / guidelines set levels• Levels foreseeably continue to exceed regs / guidelines
(b) Soil guidelines exceeded with human pathway;
(c) Other prescribed criteria met.
Duty to report
s.60, contaminator/owner to report
(4) A person is required to notify the EPA under this section as soon as practicable after the person becomes aware of the contamination.
(5) A person is taken to be aware of contamination for the purposes of this section if the person ought reasonably to have been aware of the contamination.
Duty to report
(9) The following are to be taken into account in determining when a person should reasonably have become aware of contamination:(a) the person’s abilities, including his or her experience, qualifications and
training,
(b) whether the person could reasonably have sought advice that would have made the person aware of the contamination,
(c) the circumstances of the contamination.
Abilities? Could (not should) take advice?
Implications
Greater EPA powers Focus on landowner – greater risk/obligation
