Contaminated land: Role of the Office of Environment and Heritage
The Office of Environment and Heritage (OEH) was created in April 2011 as a part of the NSW Department of Premier and Cabinet. The Environment Protection Authority (EPA) is a constituent of OEH and retains a range of powers as a statutory entity. In regulatory matters, certain OEH officers act as delegates of the EPA and some are 'authorised' officers for the purposes of the Contaminated Land Management Act 1997 (CLM Act).
Legislation
The CLM Act sets out the role of the OEH and the rights and responsibilities of parties it might direct to manage significantly contaminated land.
A number of amendments to the CLM Act commenced on 1 July 2009. These included:
streamlining the investigation and remediation stages
removing references to 'significant risk of harm'
enabling OEH to issue preliminary investigation orders
expanding the range of persons that OEH can order to investigate or remediate a site
enabling the Minister to enter into offset arrangements where remediation will take a long time to complete
removing the 'no knowledge' defence for directors
changes to voluntary investigation and remediation proposals.
The Contaminated Land Management Regulation 2008 prescribes a number of matters for the purposes of the CLM Act.
Significantly contaminated land
If OEH has reason to believe that land is contaminated and that the contamination is significant enough to warrant regulation, the agency may declare the land to be 'significantly contaminated land'.
The former declarations of land as investigation areas and declarations of remediation sites are taken to be declarations of significantly contaminated land on or after 1 July 2009.
Section 12 of the CLM Act defines matters to be considered by OEH in assessing a site to determine whether or not to declare the land to be significantly contaminated including:
Along with the matters listed in section 12 of the CLM Act, OEH may also consider site-specific factors which were unchanged in the 2009 amendments to the Act.
Notification policy
OEH notifies those responsible for significant contamination, owners, occupiers and local authorities once it has declared that contamination is significant enough to warrant regulation. The declaration is a means of informing affected parties and the broader public about the contamination.
The declaration is published in the NSW Government Gazette and online via the contaminated land management public record as well as via direct consultation with identified interested parties.
OEH has developed a policy for publishing notices about land regulated under the CLM Act.
Duty to notify
Anyone whose activities have contaminated land and owners of land who become aware, or ought reasonably to be aware, that the land has been contaminated must notify OEH as soon as practicable after becoming aware of the contamination, if the contamination meets certain criteria. The duty to notify is a requirement under section 60 of the CLM Act. A person has a duty to notify if that person ought reasonably to have been aware of the contamination. The site contamination notification form may be used to inform OEH.
Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997 (09438gldutycontclma.pdf) provides information on two key aspects of the duty to report contamination. The guidelines set out the duty of landowners and those whose activities have contaminated land to report to OEH. This includes a range of considerations for those who encounter land contamination (including particular trigger levels for various contaminants) and information on how to proceed where there is uncertainty. The guidelines also outline how OEH assesses and determines whether or not contamination is significant enough to warrant regulation.
Preliminary investigation orders
OEH may require certain persons to carry out a preliminary investigation of land if it reasonably suspects the land is contaminated. OEH may require them to:
- investigate whether the land is contaminated with the substances that OEH reasonably suspects contaminated the land
- investigate the nature and extent of any contamination
- provide OEH with information with respect to the investigation.
Preliminary investigation orders are intended to provide a 'snapshot' for OEH to determine whether the land is contaminated and, if so, whether it is significant enough to warrant regulation.
If the findings of the preliminary investigation lead OEH to believe that the land contamination is significant enough to warrant regulation, it may declare the land to be significantly contaminated land.
Management orders
OEH may order certain persons to manage the significantly contaminated land in the following hierarchy (as far as practicable):
- those responsible for the contamination
- the landowner
- the notional owner.
A management order can include actions to investigate and/or remediate the land. The former investigation orders and remediation orders are taken to be management orders on or after 1 July 2009.
Voluntary management proposals
OEH may approve a voluntary management proposal for the management of significantly contaminated land (with or without conditions). Anyone can put forward a voluntary management proposal.
The former voluntary investigation proposals and voluntary remediation proposals to which OEH had agreed are taken to be approved voluntary management proposals on or after 1 July 2009.
Offset programs
The Minister for the Environment can allow those responsible for significantly contaminated land to implement offsets to mitigate the impact of contamination. Importantly, offsets are not an alternative to the remediation of significantly contaminated land.
The framework for the implementation of offsets outlines the key factors to be considered in the development of an offset program.
Page last updated: 14 June 2011
