Contaminated sites

Contributed by Jean-Pierre Clement and Golnar Nabizadeh and current to 1 September 2005

The Contaminated Sites Act 2003 (WA) (“the CS Act”) passed the WA Parliament in 2003. The CS Act establishes a system of registering contaminated sites and establishing responsibility for undertaking remediation. At the time of writing, the main provisions of the CS Act had not been proclaimed. This is expected to occur in the first half of 2005.

Sites may become contaminated in various ways, for example, by accidental spillage of chemicals, leaching of contaminants from land-fills, or pesticides and fertilisers diffusing through groundwater outside the area to which they were initially applied. Sites may remain contaminated for a long time, especially where there has been little control over how chemicals are treated and stored, for example, from petrol stations, automotive repairs and mineral processing sites.

The CS Act provides a means by which members of the public can report concern over a contaminated site. However, the Act operates concurrently with the common law and other legislation relating to contaminants such as radioactive materials (for example, the Radiation Safety Act 1975 (WA)).

What is a ‘contaminated site’?

A site is an area of land, including the groundwater and surface water(s.3). A site is contaminated when it has concentrations of a substance that present, or have the potential to present, a risk to human health, the environment or any environmental value that are higher than background concentrations (ss.3 and 4(1)).

Exemptions

MINISTERIAL EXEMPTION ORDER

The Minister for the Environment, with the Governor’s approval, may exclude any premises or part of the State from any or all of the provisions of the Act, if he or she believes that it is in the interest of the general public and that it does not present a significant risk to public health or the environment.

However, before making such an order, the Minister may seek comments from any member of the public or any person the Minister believes has a direct interest in the matter and must publish a public notice in the Gazette including reasons for making the order.

EXEMPTION CERTIFICATE

If a land owner suspects that his or her property may be contaminated, they may give written notice to the Contaminated Sites Committee within two years after the commencement of the Act that the person intends to make a disclosure statement (s.33).

After giving notice to the committee, the person has 12 months within which to make the disclosure statement. The committee can grant an exemption certificate if satisfied that the current owners did not cause, or failed to prevent, the contamination and did not know of the contamination at the time of purchase (s.65). If the committee refuses to give an exemption certificate, the owner may appeal against this decision within 21 days. (ss.67 and 77).

Reporting contaminated sites

MEMBERS OF THE PUBLIC

Any person may report to the CEO of the Department of Environment that the person knows, or suspects, a site is contaminated. Such a report must be in the prescribed form, identify the site and explain the basis for the knowledge or suspicion (s.11(1) and (2)). Evidence of contamination must be provided, such as:

• abnormal colouring or staining of the soil;
• odours emanating from the soil;
• evidence of off-site migration of chemicals into adjacent creeks, rivers or wetlands;
• historical, illegal or uncontrolled landfills on-site; or
• inappropriate waste disposal on site (such as soak wells or on-site burial).

Note that penalties apply if reports are made maliciously or on unreasonable grounds (s.11(9)).

OWNERS, OCCUPIERS ETC

An owner or occupier, a person causing contamination or an auditor reporting on contamination must report to the CEO any site that the person:

(a) knows is contaminated; the report must be made within 21 days after the day on which
the person first knew that the site was contaminated, or such later period as the CEO approves in writing before the expiry of that 21 days; or
(b) suspects is contaminated; the report must be made as soon as it is reasonably practicable to do so (ss.11(3) and (4)).

A report does not need to be made where the matter has already been reported to the CEO, or where there is a reasonable belief that a report had been made.

Failure to make a report when required to do so is an offence for which the maximum penalty is $250,000 with a daily penalty of $50,000 (five times these amounts for bodies corporate) (s.11). Note however that for the first six months after the commencement of the CS Act, there is a period of grace (s.11(6)).

Classification of sites

Within 45 days of receiving a report about a contaminated site (or such longer time that the CEO thinks necessary), the CEO is to classify the site as one of the following:

• Report not substantiated: no grounds to indicate possible contamination of the site;
• Possibly contaminated – investigation required: there are grounds to indicate possible contamination of the site;
• Not contaminated – unrestricted use: after investigation, the site is found not to be contaminated;
• Contaminated – restricted use: the site is contaminated but suitable for restricted use;
• Remediated – restricted use: the site is contaminated but has been remediated so that it is suitable for restricted use;
• Contaminated – remediation required: the site is contaminated and remediation is required; or
• Decontaminated: the site has been remediated and is suitable for all uses (Schedule 1).

Who is responsible for cleaning up the contaminated site?

The Contaminated Sites Committee investigates and decides whether a site is contaminated. The Committee must give notice of its decision to the people deemed responsible for remediation and ‘interested persons’. However, it is the Department of Environment that determines the extent to which the site must be remediated. Remediation applies only to sites that are classified as contaminated – remediation required, and includes such methods as restoration, restricted access to the site, and removal or destruction of any contaminants.

Responsibility for remediating a site is determined by the Committee in accordance with the following hierarchy:

1. Owner or occupier of the land who has changed, or proposes to change, the use of the land;
2. Owner of site who knew, or suspected, that the site was contaminated at the time of purchase;
3. The person responsible for the contamination;
4. Owner of site who did not know, could not reasonably have known, that the site was contaminated at the time of purchase; and finally
5. The State.

Appeals of decisions by the Contaminated Sites Committee

A person may appeal a decision of the Committee:

• to hold that person responsible for remediation; or
• not to issue an exemption certificate.

The appeal is heard by the Supreme Court and must concern a question of law (ss.77(1) and (4).