Site contamination legislation
Key aspects of the Environment Protection Act 1993
A series of definitions in section 3 of the Environment Protection Act 1993 relate to site contamination. These are:
- background concentrations
- chemical substances
- sensitive use
- site contamination audit
- site contamination audit report
- site contamination audit statement
- site contamination auditor
- site contamination consultant
Circumstances where site contamination is deemed to exist are also defined (section 5B) and came into effect on 10 December 2007.
The legislation gives the EPA the powers to accredit auditors for the purpose of preparing site contamination audit reports (Division 4).
The EPA has the powers to issue assessment and remediation orders (sections 103H and 103J) to appropriate persons.
In order to promote a cooperative approach between the EPA and appropriate persons in managing site contamination, the legislation provides for voluntary proposals (sections 103I and 103K). These proposals operate in a similar way to orders but are developed through application and negotiation.
The appropriate person to be issued with a site contamination assessment order or a site remediation order is, in the first instance, the person who caused the site contamination (the 'original polluter', section 103C). In the event that it is not practicable to issue the order to the original polluter then the owner of the site will assume responsibility for the contamination (with limitation to their site), but only in the event that:
- they knew, or ought reasonably have known, that chemical substances were present, or likely to be present, at the site, or
- that before they acquired the site or while they owned the site, they knew, or ought reasonably have been aware, that the activity that caused the site contamination had been or was being carried on at the site and that the activity was a potentially contaminating activity as prescribed by regulations under the Environment Protection Act 1993.
The EPA will in the first instance negotiate with appropriate persons before taking action, with a view to gaining agreement on the appropriate way forward to manage known or suspected site contamination. This may end up in formal voluntary agreements being entered into between the parties or orders being issued to the appropriate person.
The legislation makes provision for total or partial transfer of liability for site contamination in certain circumstances (section 103E). These circumstances include a requirement for full disclosure/arms length transaction agreements to be in writing. For agreements after the commencement of the legislation there is a requirement that any agreement be accompanied by a notice in a form approved by the EPA that outlines the legal effect of such an agreement. Agreements entered into after the commencement of the legislation will also be required to be lodged with the EPA with a specific form before they can take effect.
A new provision has been added to the legislation (section 83A) that requires a site owner, occupier, auditor or consultant to notify the EPA in writing of the existence of site contamination that affects or threatens underground water, as soon as possible after becoming aware of the site contamination. This is considered important as the prime method of migration of site contamination is through underground water, and notification will allow the EPA to ensure that any such site contamination is adequately assessed and managed to prevent its migration.
By notice in the Gazette, the EPA will have the ability to declare areas where site contamination exists in a wide or numerous areas, or is suspected to exist, as 'special management areas' (section 103N). This will allow the EPA to work with relevant stakeholders on forming agreements that will cover the assessment and remediation of any site contamination that is present within the gazetted area.
Where the EPA is satisfied that site contamination affects or threatens water, and that action is necessary to prevent actual or potential harm to human health or safety, it may prohibit or restrict the taking of water (through notice in the Gazette) (section 103S).
Site contamination auditors or consultants are required to specify the land use that was taken into account in forming an opinion as to the existence of site contamination in any written reports produced (section 103ZA). This will prevent confusion being created as to the existence of site contamination. For example, where an industrial site is considered for a sensitive land use, site contamination may not exist when the site is being used for industrial purposes, but may come into existence if the use becomes more sensitive.
It is also an offence under the legislation to provide false or misleading information (whether by inclusion or omission) to a site contamination auditor or consultant who is preparing a report in relation to site contamination (section 103ZB). This is considered necessary to ensure that the reports of auditors and consultants can be relied on to properly outline any health or environmental risks that may be present at a site.