Key aspects of the legislation
Definitions and related terms
Commencement December 2007 and 2009
A series of definitions have been inserted into section 3 of
the Environment Protection Act 1993 that relate to site
contamination. Selected definitions commenced 10 December 2007.
These were:
background concentrations
chemical substances
site
site contamination auditor
site contamination consultant
water
Circumstances where site contamination is deemed to exist are
also defined (section 5B) and came into effect on 10 December
2007. The remaining definitions will come into effect in 2009.
Powers to establish audit system
Anticipated commencement mid – late 2008
The legislation gives the EPA the powers to accredit auditors
for the purpose of preparing site contamination audit reports
(Division 4).
Assessment orders and site remediation orders
Anticipated commencement 2009
The EPA will have the powers to issue assessment and remediation
orders (sections 103H and 103J) to appropriate
persons.
Voluntary assessment and remediation proposals
Anticipated commencement 2009
In order to promote a cooperative approach between the EPA and
appropriate persons in managing site contamination, provision
has been included in the legislation for voluntary proposals (sections
103I and 103K). These proposals will operate in a similar way
to orders but will be developed through application and negotiation.
This addition to the legislation was made as a result of submissions
during the consultation process.
Responsibility for site contamination
Anticipated commencement 2009
The appropriate person to be issued with a site contamination
assessment order or a site remediation order will, in the first
instance, be 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.
Ability to transfer liability
Anticipated commencement 2009
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.
Duty to notify
Anticipated commencement 2009
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.
Special management areas
Anticipated commencement 2009
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.
Restrictions on taking of water
Anticipated commencement 2009
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).
Honesty in reporting
Commenced December 2007
Site contamination auditors or consultants will be 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.
Consequential legislative changes
Anticipated to occur 2008/2009
Changes are proposed to the Development Act 1993 and the regulations
under the Land and Business (Sales and Conveyancing) Act 1994
to support the changes to the Environment Protection Act 1993.
It is envisaged that the Development Act 1993 will be amended
so that planning authorities must require the submission of a
site contamination audit report for sites where a sensitive land
use is proposed (i.e. residential, primary school, pre school
or child care facility) and a prescribed potentially contaminating
activity has occurred or known site contamination is recorded
by the EPA. This will ensure that planning decisions where sensitive
land uses are proposed will provide a high level of protection
for human health and the environment and ensure the sites suitability
for its intended use.
Questions relating to environmental particulars prescribed in
regulations under the Land and Business (Sales and Conveyancing)
Act 1994 will also be updated to reflect the new information that
will be held by the EPA as a result of this new legislation.
This page was last modified 26-02-2008
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