Legislation and liable persons
The Environment Protection Act 1993 (EP Act) defines that site contamination exists at a site if:
- Chemical substances are present on or below the surface of the site in concentrations above the background concentrations (if any), and
- The chemical substances have, at least in part, come to be present there as a result of an activity at the site or elsewhere, and
- The presence of the chemical substances in those concentrations has resulted in –
a. actual or potential harm to the health or safety of human beings that is not trivial,
taking into account current or proposed land uses, or
b. actual or potential harm to water that is not trivial, or
c. other actual or potential environmental harm that is not trivial, taking into account
current or proposed land uses.
Who is responsible
The original polluter has liability for contamination caused on and off the source site regardless of when it was caused. This means the person who caused the site contamination is responsible for implementing and funding the assessment, meeting the costs of an independent site audit by an accredited site contamination auditor and any subsequent management, containment or clean-up of the site. This may also include meeting the costs of and undertaking communication with the affected community.
Site contamination is often historical in nature, and the person (individual or company) who caused the site contamination may no longer exist or may not be the same person or company who currently own or occupy the site. If it is not possible to find that person or company, then liability passes to the site owner. However, the site owner's liability may be limited to only the owner's site itself (not off site) and liability is dependent on the owner's knowledge of the site contamination at the time of purchase.
A person can gain or divest liability for site contamination through a transfer of liability for site contamination agreement.
A person can also gain liability by causing site contamination through changing the land use.
A person who owns a site has obligations for reporting site contamination of groundwater to the EPA.
The appropriate person to be issued with a site contamination assessment order or a site remediation order is, in the first instance, the person who caused the site contamination (the 'original polluter' in section 103C).
In the event that it is not practicable to issue the order to the original polluter then the owner of the site will assume responsibility for the contamination (with limitation to their site), but only in the event that:
- they knew, or ought reasonably have known, that chemical substances were present, or likely to be present, at the site, or
- that before they acquired the site or while they owned the site, they knew, or ought reasonably have been aware, that the activity that caused the site contamination had been or was being carried on at the site and that the activity was a potentially contaminating activity as prescribed by regulations under the Environment Protection Act 1993.
The EPA will in the first instance negotiate with appropriate persons before taking action, with a view to gaining agreement on the appropriate way forward to manage known or suspected site contamination. This may end up in formal voluntary agreements being entered into between the parties or orders being issued to the appropriate person.
Ability to transfer liability
The legislation makes provision for total or partial transfer of liability for site contamination in certain circumstances (section 103E). These circumstances include a requirement for full disclosure/arms length transaction agreements to be in writing. For agreements after the commencement of the legislation there is a requirement that any agreement be accompanied by a notice in a form approved by the EPA that outlines the legal effect of such an agreement. Agreements entered into after the commencement of the legislation will also be required to be lodged with the EPA with a specific form before they can take effect.
Duty to notify
A new provision has been added to the legislation (section 83A) that requires a site owner, occupier, auditor or consultant to notify the EPA in writing of the existence of site contamination that affects or threatens underground water, as soon as possible after becoming aware of the site contamination.
This is considered important as the primary method of migration of site contamination is through underground water, and notification allows the EPA to ensure that any such site contamination is adequately assessed and managed to prevent its migration.
Special management areas
By notice in the SA Government Gazette, the EPA has the ability to declare areas where site contamination exists in a wide or numerous areas, or is suspected to exist, as 'special management areas' (section 103N). This allows the EPA to work with relevant stakeholders on forming agreements that will cover the assessment and remediation of any site contamination that is present within the gazetted area.
Restrictions on taking of water
Where the EPA is satisfied that site contamination affects or threatens water, and that action is necessary to prevent actual or potential harm to human health or safety, it may prohibit or restrict the taking of water (through notice in the Gazette) which sets up Groundwater Prohibition Areas (section103S).
Honesty in reporting
Site contamination auditors or consultants are required to specify the land use that was taken into account in forming an opinion as to the existence of site contamination in any written reports produced (section 103ZA). This prevents confusion as to the existence of site contamination. For example, where an industrial site is considered for a sensitive land use (such as a child care centre, housing or a school for example) site contamination may not exist when the site is being used for industrial purposes, but may come into existence if the use becomes more sensitive.
It is an offence under the legislation to provide false or misleading information (whether by inclusion or omission) to a site contamination auditor or consultant who is preparing a report in relation to site contamination (section 103ZB). This is considered necessary to ensure that the reports of auditors and consultants can be relied on to properly outline any health or environmental risks that may be present at a site.
If you have any questions please contact the Site Contamination Branch on (08) 8204 9934.