The EPA has powers to direct responsible parties to manage significantly contaminated land under the Contaminated Land Management Act 1997 (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, it will be declared as 'significantly contaminated land'.
Section 12 of the CLM Act lists matters to be considered to determine whether or not the land is significantly contaminated, including whether
the substances have already caused harm
- the substances are toxic, persistent or bioaccumulative or are present in large quantities or high concentrations or occur in combinations
- exposure pathways are available to the substances
- the uses to which the land, and land adjoining it, are currently being put are likely to increase the risk of harm
- the approved uses of the land and land adjoining it are such as to increase the risk of harm from the substances
- the substances have migrated or are likely to migrate from the land
Site-specific factors may also be considered.
The former declarations of land as 'investigation areas' and 'remediation sites' are taken to be declarations of significantly contaminated land from 1 July 2009.
Steps to regulate contaminated land
Assessing notified sites
The EPA assesses and responds to notifications of contaminated land. When there is not enough information on the nature or extent of the contamination for a proper assessment, EPA will request additional information.
The EPA must first check that the notification is not a pollution incident. Pollution incidents, waste stockpiling, or dumping is managed under the Protection of the Environment Operations Act 1997 (POEO Act) and will be directed through the incident management process.
In most cases, the contamination does not pose a significant risk to human health or the environment. These sites may still need to be remediated, but can be done with any building or redevelopment of the land through the planning and development process. In these cases, the EPA tells the planning authority so that the information can be considered at the right time.
Where land has been assessed as significantly contaminated, the land will be managed under the CLM Act. Depending on the nature of the contamination, the EPA will work with
- NSW Health if there is an immediate or long-term threat to human health
- SafeWork NSW if there are occupational health and safety risks to workers
- Water NSW if there is an impact on groundwater quality
Notifying relevant stakeholders
The EPA notifies those responsible for significant contamination, landowners, occupiers, and local council when it has declared significantly contaminated land.
The declaration is published in the
Identified relevant parties are also consulted.
See notified and regulated contaminated land for more information on how the EPA notifies stakeholders.
Orders and management proposals
The EPA has a set of orders, or a management proposal, available to it to manage contaminated land. These are
- preliminary investigation orders
- voluntary management proposals
- management orders
- ongoing maintenance orders.
Complying with these is outlined in the Contaminated Land Compliance Statement (PDF 182KB).
The EPA can also recover costs for its work associated with orders and proposals.
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 on the investigation.
If the findings of the preliminary investigation lead the EPA to believe that the land contamination is significant enough to warrant regulation, it may be declared as significantly contaminated land.
Voluntary management proposals
A voluntary management proposal that outlines how the contamination will be managed can be submitted by anyone to the EPA. The EPA has the discretion to approve the proposal, with or without conditions.
In most cases, the EPA will invite a voluntary management proposal from a landowner or other responsible person. However, if a proposal is not provided, or finalised, within the required time, or there are non-compliances, the EPA may issue a management order instead
The former 'voluntary investigation proposals' and 'voluntary remediation proposals' which the EPA had agreed are taken to be 'approved voluntary management proposals' from 1 July 2009.
The EPA may order certain persons to manage significantly contaminated land in the following order (as far as practicable)
- those responsible for the contamination
- the landowner
- the notional owner (for example, financiers)
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' from 1 July 2009.
Ongoing maintenance orders
Ongoing maintenance orders may be issued for land that was subject to a management order or voluntary management proposal. A person who is the owner or occupier of the land must carry out long-term management of the land and all activities specified in the order (for example, undertake monitoring and provide reports with the results, and notify the EPA of any change of ownership or occupancy).
An ongoing maintenance order ends by a specific period, event, or set of circumstances.
The Minister for Energy and Environment can enter into an offset arrangement with the person responsible for contamination. These help communities affected by the contamination by providing things like shared facilities or environmental projects.
Offsets are not an alternative to remediating contaminated land.