18 June – BRIEF: Changes to the guidelines contained in the new s 60 of the Contaminated Land Management Act 1997  in NSW, have provided some breathing space to property owners.

The maximum penalty for failing to report a contaminated site to DECC is $165,000 with a further penalty of $77,000 for each day the offence continues.

An alert issued by Clayton Utz partner Peter Brigss and special counsel Claire Smith said that the guidelines would now come into force on 1 December instead of 1 July, after industry  representation to the Department of Environment and Climate Change.

“Following a recent meeting with DECC we understand that the guidelines will be released on or prior to 1 July 2009 and they will not be gazetted until 1 December 2009,” the alert said.

“The effect will be that the new reporting regime will take effect in December; and other changes to the CLM Act will come into force on 1 July 2009.

“The basic concept of the guidelines will remain unchanged from the previous draft. DECC will still require reporting when contaminants exceed trigger levels listed in Appendix A of the guidelines [which are based on a range of guidelines].”

The changes reflect industry concerns that the guidelines would result in “over reporting of sites.”
Examples of when investigation is not required include:

  • sites with groundwater contaminants that are above trigger levels but where detailed monitoring has both appropriately identified the nature and extent of the contamination and shown that contamination is unlikely to move offsite or pose onsite risks
  • restricted access industrial or commercial sites, without bulk storage of liquid chemicals, where there is no evidence of contamination.

“The changes to s 60 of the CLM Act together with the Guidelines, mean there will now be a duty to report sites where owners or polluters have constructive knowledge of contamination above trigger levels,” Mr Briggs said.

“A major consequence of the new regime is that proactive investigation of sites may be required. Site owners and persons who may have contaminated land, should take steps now to ensure they are ready under the new regime.”