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Review of the Contaminated Land Management Act and Contaminated Land Management Regulation

Contaminated Land Management Act amendments

The Contaminated Land Management Amendment Act 2008 (the amending Act) received assent on 10 December 2008, following an extensive period of consultation.

The amendments aimed to allow sites to be cleaned up more efficiently while reinforcing the 'polluter pays' principle. The amendments:

• introduced a new power to enable OEH to require certain persons to carry out a preliminary investigation of site contamination
• amalgamated the investigation and remediation stages into a single 'management' stage that can cover investigation, remediation or both
• removed the concept of 'significant risk of harm'
• enabled OEH to declare land to be 'significantly contaminated land' if it has reason to believe it to be contaminated and at a level significant enough to warrant regulation
• enabled management orders to be issued to those who are responsible for the contamination of the land
• enabled OEH to issue a management order or to withdraw its approval of a voluntary management proposal that has not delivered a satisfactory outcome in managing contamination
• enabled OEH to recover certain administrative costs associated with preliminary investigation orders and voluntary management proposals
• provided a more objective basis for the duty to notify OEH of contaminated land based on criteria listed in revised guidelines
• required land owners and those carrying out certain activities to notify OEH of contamination when it becomes aware, or ought reasonably to have become aware, of that contamination
• clarified that OEH and local authorities can disclose site audit statements and reports that relate to statutory site audits
• introduced a new power for the Minister to enter into offset arrangements where those responsible for the contamination can mitigate the impact of contamination if remediation is not feasible within a reasonable time
• expanded the penalty for providing false and misleading information to OEH.

Commencement

The majority of the provisions in the amending Act commenced on proclamation on 1 July 2009.

Some minor amendments commenced on assent of the CLM Bill on 10 December 2008, including:

• the introduction of a general offence for providing false and misleading information
• the removal of the 'no knowledge' defence for directors and others concerned with the management of a corporation that has contravened the Act or the regulations
• an amendment to enable OEH to make certain minor amendments to guidelines without public consultation
• changes to provisions relating to penalty notices.

Contaminated Land Management Act review process

The review of the Contaminated Land Management Act 1997 (CLM Act) was undertaken in 2003. The review reflected the commitment of the NSW Government to the ongoing improvement of the management of contaminated sites to ensure that human health and the environment are protected.

Public consultation was a very important aspect of the CLM Act review. The review process included the release of an issues paper in July 2003, followed by five public consultation meetings in Wollongong, Armidale, Newcastle, Parramatta and Sydney. In total, 135 participants attended these forums. They were run by an independent facilitator and were open to anyone who wished to contribute to the review of the Act. A further 13 written submissions were received by OEH from a variety of organisations and individuals.

Download: Issues paper (clmissuespaper.pdf; 195 KB)

A report summarising the findings of the CLM Act review was tabled in Parliament. It drew on the results of public meetings, written submissions and general feedback from the public and within OEH.

Download the report: Review of the Contaminated Land Management Act (clmreviewpaper.pdf; 238 KB).

Contaminated Land Management Regulation 2008

The Contaminated Land Management Regulation 2008 commenced on 1 September 2008. The Regulation is made under the Contaminated Land Management Act 1997 and remade, with some amendments, the Contaminated Land Management Regulation 1998.

Changes resulting from the new Regulation included:

• an increase in the fees in relation to accreditation of site auditors as well as the rate at which OEH may recover certain costs
• notification that land is contaminated is no longer required to be in a prescribed form, but given in a manner and form approved by OEH
• prescription of a number of offences under the Act for which a penalty notice may be issued.

This Regulation also contained provisions from the previous Regulation, including:

• the time within which an application for renewal of accreditation as a site auditor must be made
• the particulars to be included in a site auditor's annual return
• additional material that OEH is required to maintain a record of
• the time within which a statement of reasons for certain OEH determinations must be provided to those requesting them
• savings and formal matters.