Contaminated land: Role of the Environment Protection Authority

The Contaminated Land Management Act 1997 (CLM Act) sets out the role of the EPA and the rights and responsibilities of parties it might direct to manage significantly contaminated land.

A number of amendments to the CLM Act commenced on 1 July 2009. These included

  • streamlining the investigation and remediation stages
  • removing references to 'significant risk of harm'
  • enabling the EPA to issue preliminary investigation orders
  • expanding the range of persons that the EPA can order to investigate or remediate a site
  • enabling the Minister to enter into offset arrangements where remediation will take a long time to complete
  • removing the 'no knowledge' defence for directors
  • changes to voluntary investigation and remediation proposals

The Contaminated Land Management Regulation 2013 (CLM Reg) prescribes a number of matters for the purposes of the CLM Act.

Significantly contaminated land

If the EPA has reason to believe that land is contaminated and that the contamination is significant enough to warrant regulation, the agency may declare the land to be 'significantly contaminated land'.

The former declarations of land as investigation areas and declarations of remediation sites are taken to be declarations of significantly contaminated land on or after 1 July 2009.

Section 12 of the CLM Act defines matters to be considered by the EPA in assessing a site to determine whether or not to declare the land to be significantly contaminated including

  • whether the substances have already caused harm
  • whether the substances are toxic, persistent or bioaccumulative or are present in large quantities or high concentrations or occur in combinations
  • whether exposure pathways are available to the substances (that is if there are routes open to the substances allowing them to move from the source of contamination to human beings or other aspects of the environment)
  • whether the uses to which the land are currently being put are likely to increase the risk of harm from the substances to uses on adjoining land (such as child care, dwellings or domestic food production)
  • whether the approved uses of the land and land adjoining it are such as to increase the risk of harm from the substances
  • whether the substances have migrated or are likely to migrate from the land
  • any relevant guidelines

Along with the matters listed in section 12 of the CLM Act, the EPA may also consider site-specific factors which were unchanged in the 2009 amendments to the Act.

Flowchart of the principal steps in EPA's regulaton of contaminated land

Principal steps in EPA's regulation of contaminated land

Notification policy

The EPA notifies those responsible for significant contamination, owners, occupiers and local authorities once it has declared significantly contaminated land. The declaration is a means of informing affected parties and the broader public about the contamination.

The declaration is published in the NSW Government Gazette and online via the contaminated land management public record as well as via direct consultation with identified interested parties.

The EPA has developed a policy for publishing notices about land regulated under the CLM Act.

Duty to notify

Anyone whose activities have contaminated land and owners of land who become aware, or ought reasonably to be aware, that the land has been contaminated must notify the EPA as soon as practicable after becoming aware of the contamination, if the contamination meets certain criteria. The duty to notify is a requirement under section 60 of the CLM Act. A person has a duty to notify if that person ought reasonably to have been aware of the contamination. The site contamination notification form (PDF 194KB) may be used to inform the EPA.

Guidelines on the Duty to Report Contamination under the CLM Act provides information on two key aspects of the duty to report contamination. The guidelines set out the duty of landowners and those whose activities have contaminated land to report to the EPA. This includes a range of considerations for those who encounter land contamination (including particular trigger levels for various contaminants) and information on how to proceed where there is uncertainty. The guidelines also outline how the EPA assesses and determines whether or not contamination is significant enough to warrant regulation.

Preliminary investigation orders

The EPA may require certain persons to carry out a preliminary investigation of land if it reasonably suspects the land is contaminated. The EPA may require them to

  • investigate whether the land is contaminated with the substances that the EPA reasonably suspects contaminated the land
  • investigate the nature and extent of any contamination
  • provide the EPA with information with respect to the investigation.

Preliminary investigation orders are intended to provide a 'snapshot' for the EPA to determine whether the land is contaminated and, if so, whether it is significant enough to warrant regulation.

If the findings of the preliminary investigation lead the EPA to believe that the land contamination is significant enough to warrant regulation, it may declare the land to be significantly contaminated land.

Management orders

The EPA may order certain persons to manage the significantly contaminated land in the following hierarchy (as far as practicable)

  1. those responsible for the contamination
  2. the landowner
  3. the notional owner

A management order can include actions to investigate and/or remediate the land. The former investigation orders and remediation orders are taken to be management orders on or after 1 July 2009.

Voluntary management proposals

The EPA may approve a voluntary management proposal for the management of significantly contaminated land (with or without conditions). Anyone can put forward a voluntary management proposal.

The former voluntary investigation proposals and voluntary remediation proposals to which the EPA had agreed are taken to be approved voluntary management proposals on or after 1 July 2009.

Cost Recovery

Section 34 of the CLM Act allows for the EPA to recover administrative costs associated with

  • the preparation and serving, monitoring action and seeking compliance of an order under Part 3 of the CLM Act; or
  • the assessing and settling of terms, monitoring action and seeking compliance of any voluntary management proposal; or
  • any other matters associated with, or incidental to, an order or voluntary management proposal

The rate of cost recovery is prescribed under clause 4 of the CLM Reg. As per the Contaminated Land Management (Adjustable Amounts) Notice 2018 (PDF 27KB) from 1 September 2018, the rate is $93 per hour.

For more information see When does cost recovery apply under the Contaminated Land Management Act 1997.

The Protection of the Environment Operations Act 1997 also provides for cost recovery under Part 4.5 through compliance cost notices that may be issued in respect of monitoring actions and ensuring compliance with prevention, clean-up and noise control notices.

Offset programs

The Minister for the Environment can allow those responsible for significantly contaminated land to implement offsets to mitigate the impact of contamination. Importantly, offsets are not an alternative to the remediation of significantly contaminated land.

The framework for the implementation of offsets outlines the key factors to be considered in the development of an offset program.

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