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1997
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
In particular, the proposed Act:
(a)
sets out accountabilities for managing contamination if a significant
risk of harm is identified, and
(b)
sets out the role of the EPA in the assessment of contamination and the
supervision of the investigation, remediation and management of
contaminated sites, and
* Amended in committee--see table at end of volume.
(c)
provides for the accreditation of site auditors of contaminated land to
ensure appropriate standards of auditing in the management of
contaminated land, and
(d) aims to ensure that contaminated land is managed with regard to the
need to maintain ecologically sustainable development.
Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act.
Clause 3 states the objects of the proposed Act.
Clause 4 defines a number of terms used generally in the proposed Act.
Clause 5 defines contamination.
Part 2
Main functions of EPA under this Act
This Part summarises the cardinal duties and powers of the Environment
Protection Authority (EPA) under the proposed Act and outlines how the
EPA is to decide when contamination presents a significant risk of harm.
The EPA must (clause 6) examine and respond to reports of contamination
and, if the EPA has reasonable grounds to believe that the contamination
presents a significant risk of harm, may formally order an investigation
(clause 7). If land is found to be contaminated and to present such a risk, the
EPA may order remediation (clause 7). In other cases, the EPA may adopt
other strategies, but is not required to act (clause 8). Factors to be taken into
account in assessing a significant risk of harm are set out in clause 9, and
there is a general requirement that the EPA exercise its functions under the
proposed Act with regard to the need to maintain ecologically sustainable
development (clause 10).
Part 3
Investigation and remediation of contaminated
land
Part 3 provides details of the investigation and remediation procedures.
Explanatory note page 2
Division 1 Preliminary
In summary (clause 11), the EPA may declare investigation areas and
remediation sites, and make investigation orders and remediation orders.
Choice of the appropriate person to investigate or remediate must be
according to clause 12, interpreted in the light of clause 13 (dealing with
cases of indirect or delayed contamination). The principal contaminator is the
first choice, but if that person is not found or is insolvent, the owner of the
contaminated land is the next choice, followed by its notional owner
(defined in clause 14). An alternative to all these choices is to make the order
against a public authority.
Contributions from different parties towards the costs of investigation or
remediation are dealt with later (Division 6).
Division 2 Investigation
Details are given of the basis and procedure for declaring general
investigation areas (clause 15) and ending such declarations (clause 16) as
well as the making of investigation orders (clause 17) that require a person to
carry out specified actions (clause 18).
Division 3 Remediation
Details are given of the basis and procedure for declaring specific
remediation sites (clause 19) and ending such declarations (clause 20) as
well as the making of remediation orders (clause 21) that require a person to
carry out specified actions (clause 22).
The nature of remediation is outlined in clause 23. It includes a range of
actions besides full clean-ups, such as sealing off contamination, not
disturbing land, or fencing land off so that it cannot be disturbed.
Voluntary remediation is not restricted by the proposed Act, and the EPA may
agree with the parties to voluntary proposals not to issue remediation orders
against them (clause 24), but may still issue such orders in circumstances
falling outside the proposals (clause 25).
The EPA may require the continuation of remediation action (for example,
the maintenance of barriers created for the purposes of remediation). Those
requirements may be made by notice to owners or occupiers under clause 26
or by a type of positive covenant under clause 27.
Explanatory note page 3
Division 4
Action by public authority
Public authorities must comply with investigation orders (clause 29), though
they cannot be prosecuted for a failure to do so if they are not contaminators
or owners of the relevant land (clause 21 (5)). They may also under clause 28
carry out orders originally directed against other persons who have failed to
comply with those orders.
Division 5
Entry on land to investigate or remediate that or
other land
A requirement to investigate or remediate does not confer an ancillary power
to enter land. However, an occupier who refuses to permit entry may be
required to comply with that requirement instead (clause 30). On the other
hand, losses suffered by an occupier or owner because of investigation or
remediation carried out by another person may be recouped by the occupier
or owner (clause 31).
Division 6
Cost of investigation or remediation
The costs associated with investigation and remediation orders may be
recovered (EPA administrative costs under clause 32, public authorities'
substantive costs of compliance under clause 33 and other persons'
substantive costs of compliance under clause 34). Ultimately it is the persons
responsible for the contamination who have the responsibility to pay, but if
some or all of them cannot pay or cannot be found, some or all of the costs
may remain with the owner.
A public authority has priority over a person holding a security over land
remediated by the authority if the land is disclaimed as onerous property
(clause 35). A personal representative's or trustee's liability cannot extend
beyond the value of the property that may be disposed of by him or her
(clause 36).
A costs notice served by a public authority may be registered by the
Registrar-General (clause 37) to create a charge on the land investigated or
remediated (clause 38) that has priority over all other encumbrances.
Regulations may be made providing for the removal of the charge (clause
39).
A public authority that recovers any money in respect of the authority's
investigation or remediation of land must pay the money into the
Consolidated Fund if the authority's relevant costs were originally met by an
appropriation from that Fund (for example in the case of "orphan sites", the
owners and contaminators of which are untraceable): clause 40.
Explanatory note page 4
Division 7 General
Ancillary provisions:
(a) make it clear that more than one notice, declaration or order may be
issued under Part 3 (clause 41) and that notices, declarations and
orders may be varied or revoked (clause 42), and
(b)
prohibit the obstruction of persons carrying out orders (clause 43), and
(c)
prohibit the making of false reports (clause 44).
Part 4
Audit of investigation or remediation
This Part sets standards for the audit of investigation or remediation of
contaminated land (site audit and other terms being defined in clause 45),
particularly but not exclusively when the audit is carried out to satisfy some
statutory requirement (clause 46). Matters to be taken into account in site
audits and in statements prepared in relation to them are specified in
clause 49.
A scheme for the accreditation of site auditors is set up (applications are
made under clause 47, accreditation is granted under clause 48 and
accreditation may be suspended or revoked under clause 54). A person must
not falsely pretend to be an accredited site auditor (clause 55).
Site auditors must under clause 50 let the EPA know when they conduct an
audit for the purposes of a statutory requirement, prepare site audit statements
for all audits, and give the EPA and local authorities copies of statements of
audits conducted for the purposes of a statutory requirement. They must
make annual returns (clause 51), avoid conflicts of interest (clause 52), and
not make false audits or statements (clause 53).
Part 5
Information
The EPA is to maintain a record of declarations and orders made under Part 3
and site audit statements furnished under Part 4, but only while they are
current (clause 56). The record is to be open for inspection by the public.
Local authorities are to be informed by the EPA of declarations and orders
(clause 57).
A person who carries on an activity on land that has contaminated it in such a
way as to present a significant risk of harm, and an owner of land who knows
of an activity that has contaminated the land at any time in such a way, have a
duty to inform the EPA of the contamination (clause 58).
Explanatory note page 5
Part 6
Appeals
A person ordered to investigate or remediate may appeal to the Land and
Environment Court against the order (clause 59). The appellate powers of the
Court are outlined in clause 60.
Part 7
Orders against directors or companies to
investigate or remediate at own expense
Provision is made to deal with certain cases of evasion by corporations of
their obligations under investigation or remediation orders.
If a corporation is wound up to avoid compliance with an order, a director
(clause 61) or holding company (clause 63) may be ordered by the Land and
Environment Court to comply with the order instead.
If contaminated land is disposed of to avoid compliance with an order, a
director of the corporation that disposed of the land may be similarly ordered
to comply (clause 62).
Part 8
Evidence
Part 8 contains provisions (including definitions in clause 64) relating to
presumptions as to certain matters:
(a) responsibility for contamination of land (clause 65),
(b) ownership or occupation of land (clause 66),
(c) appointments of various officers (clause 67),
(d) authenticity and authorship of documents and signatures (clause 68),
(e) various matters set out in certificates (clause 69),
(f) authenticity and correctness of scientific analyses and reports (clause
70).
Part 9
Authorised officers
Division 1
Administration
Authorised officers may be appointed for the purposes of the proposed Act
(clause 71), with unrestricted authority or subject to limits (clause 72) and
must be issued with proof of identity and show it when appropriately asked to
do so (clause 73).
~~~
Explanatory note page 6
Division 2
Powers to require information or records
In certain situations, the EPA may require (clause 75) the provision of
information or records within the knowledge or control of a person (clause
78), or an authorised officer may make such a requirement (clause 76). A
manner and reasonable period for compliance must be specified (clause 77).
Whether a power of entry under proposed Division 3 has been exercised is
irrelevant to the operation of this Division (clause 74). Clause 78 also
provides that the person furnished with the material may require it to be
provided in written form and may copy it.
Division 3
Powers of entry and search of land
An authorised officer may enter land (clause 79), but if that means entering a
residence, only with a search warrant or the occupier's permission (clause
80). Once on the land, the officer may carry out examinations and do other
things specified in clause 81. Officers may apply for search warrants (clause
82) and may require the assistance of occupiers of premises entered by the
officers (clause 83). They must exercise care in entering and searching
premises (clause 84) and the EPA must (with certain exceptions) compensate
persons who suffer loss through damage caused when an officer exercises a
power of entry (clause 85).
Division 4
Powers to question persons
An authorised officer may require a person to provide answers and the EPA
may require a body corporate to nominate a representative to provide such
answers (clause 86).
Division 5
General
Offences of failing to answer questions, lying and obstructing under the Part
are set out in clause 87. Procedural and evidentiary provisions concerning
questioning are set out in clause 88.
Part 10 Offences
Division 1
Proceedings for offences generally
The courts that have jurisdiction over offences under the proposed Act
(clauses 89 and 90) and limitations for the bringing of prosecutions (clause
91) are specified.
Explanatory note page 7
Division 2 Who may institute proceedings for offences
The EPA is the normal initiator of proceedings (clause 92) for a breach of the
proposed Act or the regulations made under the proposed Act; but any person
may initiate proceedings with the leave of the Land and Environment Court if
the EPA does not do so (clause 93).
Division 3 Restraint of breaches without prosecution for
offence
Any person may seek an order against an actual or threatened breach of the
Act or regulations made under the proposed Act (clause 94).
Division 4 General
Clause 95 sets out matters to be considered in sentencing.
A director of a corporation that commits an offence is guilty of the same
offence as the corporation unless the director can disprove his or her guilt
(clause 96).
A defendant to any proceedings under a provision that provides a defence of
reasonable excuse has the onus of proving the defence (clause 97).
In dealing with an offence under the proposed Act, a court may, among other
things, dismiss a charge or conditionally discharge a defendant under section
556A of the Crimes Act 1900 or defer sentence under section 558 of that Act
(clause 98).
Part 11 Miscellaneous
The proposed Act binds the Crown (clause 99), provides for the resolution of
disputes between the EPA and other public authorities (clause 100), prohibits
false statements generally under the proposed Act (clause 101), makes it
clear that the EPA may conduct education programs about contamination
(clause 102), enables the EPA to make guidelines and sets out the procedure
for their making (clause 103), prohibits (with exceptions) the disclosure of
secrets learnt in the administration of the proposed Act (clause 104) and
provides various means for the service of notices under the proposed Act
(clause 105).
The operation of other Acts is not restricted (clause 106) and civil and other
remedies are not displaced (clause 107).
Explanatory note page 8
Clause 108 makes it clear that the notes in the text are not actually part of the
proposed Act.
Clause 109 is a regulation-making power.
Clause 111 is a formal provision giving effect to the various consequential
amendments set out in Schedule 1. The amendments include the repeal of
Part 5 of the Environmentally Hazardous Chemicals Act 1985, as that Part is
to be substantially covered by Part 3 of the proposed Act.
Clause 112 is a formal provision giving effect to the savings and transitional
provisions set out in Schedule 2.
Clause 113 is a standard provision requiring the Minister to review the
operation of the proposed Act after 5 years.
Schedule 1 Amendments is referred to under clause 111 above.
Schedule 2 Savings and transitional provisions is referred to under clause
112 above.
Explanatory note page 9