1. Proposed Reforms to the Contaminated Land Management Act 1997 (NSW) Robert Wilcher herbertgeer.com.au 22 October 2008

2. This presentation  Current Act  Contamination  EPA powers  SROH  Orders  Duty to report  Some implications

3. This presentation  Current Actv Changes in Bill  Contamination  EPA powers  SROH  Orders  Duty to report  Some implications

4. Overall Regime  CLM Act/Reg  EP&A Act  SEPP 55  Guidelines  POEO Act

5. 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

6. Contamination S.5 - def n 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.

7. Contamination S.5 - def n 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

8. Ss.6-10 - Main functions of EPA 6.address contamination 7.SROH – act 8.No SROH – act? 9.SROH indicators 10.ESD

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  s.9

10. 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

11. Significantly contaminated s.9 SROH- EPA harm caused toxic exposure pathways land use approved uses migration guidelines

12. Significantly contaminated s.9 SROH- EPA harm caused toxic exposure pathways land use approved uses migration guidelines s.12 Significant? – EPA: oguidelines oharm caused otoxic oexposure pathways oland use oapproved uses omigration

13. EPA Powers – management s.15 – Investigation Area Decl → EPA Rble grds SROH s.17 – Investigation Order s.21 – Remediation Area s.23 – Remediation Order

14. 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?

15. EPA Powers – management s.21 – Remediation Area Decl → If SROH s.23 – Remediation Order

16. 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.

17. 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.

18. 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

19. 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

20. 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)

21. 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

22. 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…

23. Orders - Responsibility s.6(1) responsible for contamination if a)cause contamination b)convert substance c)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

24. 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

25. 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

26. 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”

27. Orders – “Appropriate person” No concept of principal responsibility → any person responsible can be ordered → more than one person can be ordered

28. 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

29. 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 approves EPA 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.

30. 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

31. 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

32. 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…

33. 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.

34. 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.

35. 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?

36. Implications  Greater EPA powers  Focus on landowner – greater risk/obligation

37. Robert Wilcher rwilcher@herbertgeer.com.au (02) 9239 4517