Section 60 of the Contaminated Land Management Act 1997 (NSW) (CLM Act) provides a framework for the reporting of contamination to the NSW Environment Protection Authority (EPA) where that contamination meets certain threshold requirements. The duty to report lies with both owners of land and persons whose activities have contaminated land.

Determining whether a person has a duty to report can be difficult to assess as there are often a myriad of background and factual matters to consider. For example, the duty to report asbestos has traditionally been difficult to assess because of its treatment under former versions of the National Environment Protection Measure (NEPM) and the likely exposure pathways. To assist persons assessing their obligations to report contamination, the EPA prepared the “Contaminated Sites: Guidelines on the Duty to Report Contaminated under the Contaminated Land Management Act 1997” which were published in 2009.

The EPA has now released “Draft Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997 (NSW)” (Draft Guidelines) which are intended to update and replace the 2009 guidelines. You can access the Draft Guidelines here.

The Draft Guidelines are substantially the same as the 2009 version except that they address:

  1. the NEPMas amended in 2013; and
  2. new assessment criteria in the NEPM relating to:
    1. asbestos;
    2. health screening levels for petroleum hydrocarbons;
    3. soil vapour;
    4. air quality; and
    5. revised criteria for health investigation levels (HIL).

The EPA has also helpfully added a number of examples in the Draft Guidelines which provide guidance on where there is likely to be an obligation on a person to further assess the contamination status of the land.

The opportunity to make a submission on the Draft Guidelines closes on 8 August 2014.