DECC was formed in April 2007, bringing together a number of agencies within the NSW environment portfolio. The Environment Protection Authority (EPA) still exists and retains its powers as a statutory entity. It forms part of DECC. In regulatory matters, certain DECC officers act as delegates of the EPA and certain DECC officers 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 DECC 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. Key amendments include:
- streamlining the investigation and remediation stages
- removing references to 'significant risk of harm'
- enabling DECC to issue preliminary investigation orders
- expanding the range of persons that DECC 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 1998 prescribes a number of matters for the purposes of the CLM Act.
Significantly contaminated land
If DECC has reason to believe that land is contaminated and that the contamination is significant enough to warrant regulation, DECC 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 1 July 2009.
Section 12 of the CLM Act defines matters to be considered by DECC in assessing a site to determine whether or not to declare the land to be significantly contaminated land. These matters include:
Along with the matters listed in section 12 of the CLM Act, the DECC may also consider site-specific factors. These matters remain unchanged under the amendments to the CLM Act.
Notification policy
DECC 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 Government Gazette and online via the contaminated land management public record as well as via direct consultation with identified interested parties.
See the Notification policy.
Duty to notify
Persons 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 DECC 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. DECC can be notified using the Site contamination notification form.
The Guidelines on The Duty to Report Contamination under the Contaminated Land Management Act 1997 provide information on two key aspects of the duty to report contamination. The guidelines set out the duty of landowners and persons whose activities have contaminated land to report to DECC. 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 DECC assesses and determines whether or not contamination is significant enough to warrant regulation.
Preliminary investigation orders
DECC may require certain persons to carry out a preliminary investigation of land if DECC reasonably suspects the land is contaminated. DECC may require persons to:
- investigate whether the land is contaminated with the substances that DECC reasonably suspects contaminated the land, and
- investigate the nature and extent of any contamination, and
- provide DECC with information with respect to the investigation.
Preliminary investigation orders are intended to provide a "snap shot" for the DECC to determine whether the land is contaminated and whether that contamination is significant enough to warrant regulation.
If the findings of the preliminary investigation lead DECC to believe that the land contamination is significant enough to warrant regulation, DECC may declare the land to be significantly contaminated land.
Management orders
DECC may order certain persons to manage the significantly contaminated land in the following hierarchy (as far as practicable):
- persons 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 1 July 2009.
Voluntary management proposals
DECC 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 the DECC had agreed are taken to be approved voluntary management proposals on 1 July 2009.
Offset programs
The Minister for Climate Change and the Environment can allow persons 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.
