Insights

15/09/16

New Duty to Notify Contamination - NT Draft Contamination Guidelines

The Northern Territory Environment Protection Authority (EPA) has released the Draft Northern Territory Contaminated Land Guideline dated September 2016 (Contamination Guidelines) for public comment.

In summary, the EPA has adopted a position that the general environmental duty under the Waste Management and Pollution Control Act (WMPC) obliges people to notify the EPA of ‘potentially contaminated’ land. That duty would oblige the person responsible for contamination, and the land owner, to notify the EPA as soon as practicable after becoming aware that the land is ‘potentially contaminated’.

Companies that carry out potentially contaminating activities, or which own land upon which potentially contaminating activities are (or have historically been) carried out, should consider: (i) whether the EPA’s position would likely trigger an obligation on them to notify the EPA of ‘potentially contaminated’ land; (ii) their potential liability for regulatory action (or third party claims) arising from any such notification; and (iii) what steps they should be taking now to protect their business in relation to such risks.

Duty to Notify ‘Potentially Contaminated’ Land

Section 12 of the WMPC Act imposes a general environmental duty on all persons to take all measures that are ‘reasonable and practicable’ to prevent environmental harm. The Contamination Guidelines provides that the EPA considers ‘reasonable and practicable’ measures to include notifying the EPA when becoming aware that land is ‘potentially contaminated’.

The Contamination Guidelines provides that the person responsible for the contamination, and an owner of ‘potentially contaminated’ land, would be required to notify the NT EPA as soon as practicable after they become aware of the ‘potential contamination’.

The EPA’s position in the Contamination Guidelines extends the practical scope of the existing duty to notify pollution contained in section 14 of the WMPC Act which, in relation to contaminated land, obliges the person to notify the EPA if an incident occurs during the carrying out of an activity that may cause, spread or enhance contamination.

In terms of ‘potentially contaminated land’ the Contamination Guidelines provide that a person should notify the EPA if:

  • an incident occurs that may cause, spread or enhance contamination at a site;
  • the level of contamination is above specified trigger values with respect to a current or approved use of the land, and people have been, or foreseeably will be, exposed to the contaminant; or
  • the level of contamination is above specified trigger values and has entered, or will foreseeably enter land, neighbouring land, the atmosphere, groundwater or surface water.

The Contamination Guidelines also list situations not intended to be captured by the duty to notify as follows: 

  • widespread urban pollution that is not attributed to a specific industrial, commercial or agricultural activity;
  • sites with contaminants that exceed specified trigger values but which are not above ambient background concentrations.
  • sites on the EPA’s contaminated land register; and
  • stockpiles of waste that are subject to the WMPC Act.

Implications for your business?

Companies that carry out potentially contaminating activities, or which own land upon which potentially contaminating activities are (or have historically been) carried out, should consider: (i) whether the EPA’s position would likely trigger an obligation on them to notify the EPA of ‘potentially contaminated’ land; (ii) their potential liability for regulatory action (or third party claims) arising from any such notification; and (iii) what steps they should be taking now to protect their business in relation to such risks.

The EPA has attached a list of potentially contaminating activities at Appendix A to the Contamination Guidelines. The list contains a typical suite of industrial, commercial and agricultural practices which present contamination risks including (among other activities) abattoirs, automotive repair workshops, cement manufacturing, chemical treatment and manufacturing, electricity generation stations, intensive agriculture, landfill sites, oil/gas exploration and production, port/wharf facilities, railway facilities, service stations and fuel storage facilities.

We anticipate that any company that is associated with land that is being used for any industry, activity or land use listed in Appendix A to the Contamination Guidelines will be on the EPA’s radar in terms of compliance with its new interpretation of the general environmental duty under the WMPC Act.

Next Steps

The last date for submissions in response to the Contamination Guidelines is Monday 24 October 2016.

If you have any questions in relation to the implications of the Contamination Guidelines for your business, or would like any assistance with the drafting of a submission, please contact Ben Fuller.

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Special Counsel
+61 2 9263 4171
+61 459 200 037

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