What legislation applies?
The Environment Protection Act 1993 defines that site contamination exists at a site if:
- Chemical substances are present on or below the surface of the site in concentrations above the background concentrations (if any), and
- The chemical substances have, at least in part, come to be present there as a result of an activity at the site or elsewhere, and
- The presence of the chemical substances in those concentrations has resulted in —
a. actual or potential harm to the health or safety of human beings that is not
trivial, taking into account current or proposed land uses, or
b. actual or potential harm to water that is not trivial, or
c. other actual or potential environmental harm that is not trivial, taking into account current or proposed land uses.
‘Water’ is defined in the Environment Protection Act 1993 and includes surface waters, groundwater, water introduced to an aquifer and any artificially created body of water or stream for public use or enjoyment.
When did the current legislation come into operation?
Some selected definitions and the requirements for truth in reporting came into effect on 10 December 2007.
Provisions relating to the accreditation of auditors came into effect on 20 November 2008.
Remaining provisions came into operation on 1 July 2009.
Who is responsible?
Responsibility for site contamination is assigned in accordance with the 'polluter pays' principle.
Accordingly the original polluter has liability for contamination caused on and off the source site regardless of when it was caused. This means the person who caused the site contamination is responsible for implementing and funding the assessment, meeting the costs of an independent site audit by an accredited site contamination auditor and any subsequent management, containment or clean-up of the site. This may also include meeting the costs of and undertaking communication with the affected community.
Site contamination is often historical in nature, and the person or company who caused the site contamination may no longer exist or may not be the same person or company who currently own or occupy the site. If it is not possible to find that person or company, then liability passes to the site owner. However, the site owner's liability may be limited to only the owner's site and liability is dependent on the owner's knowledge of the site contamination at the time of purchase.
A person can gain or divest liability for site contamination through a transfer of liability for site contamination agreement.
A person can also gain liability by causing site contamination through changing the land use.
A person who owns a site has obligations of reporting site contamination of groundwater to the EPA.
If you are an owner of site that has site contamination, there may be a need to engage a site contamination auditor.