Western Australia: Contaminated Sites Act 2003 (WA)

Western Australia Contaminated Sites Act 2003 Western Australia Contaminated Sites Act 2003 Contents Part 1 — Preliminary 1. Short title 2 2. Commencement 2 3. Terms used in this Act 2 4. Meaning of "contaminated" 5 5. Meaning of "owner" 5 6. Meaning of "owner, occupier, mortgagee or lessee of a site" 6 7. State bound 6 8. Object and principles of Act 6 9. Effect on other laws 7 10. Exemptions from Act 7 Part 2 — Reporting, classifying and recording sites Division 1 — Reporting of sites 11. Reporting of known, or suspected, contaminated sites 10 12. Programme for reporting sites 11 Division 2 — Classification of sites 13. CEO to classify sites 13 14. Classification of reported sites 14 15. Notice of classification is to be given 14 16. Site classified as possibly contaminated — investigation required 16 17. Database and records to be adjusted 16 Division 3 — Appeals against classification 18. Appeals against classification 17 Division 4 — Contaminated sites database and other records 19. Contaminated sites database — public access 18 20. Other records to be kept 18 21. Public access to records 19 Part 3 — Remediation of contaminated sites Division 1 — Person responsible for remediation 22. Reference to person responsible for remediation includes all persons responsible 20 23. Sites classified as contaminated — remediation required are to be remediated 20 24. Who is responsible for remediation — hierarchy of responsibility 20 25. Person who caused, or contributed to, contamination — responsibility for remediation 21 26. Person who changes use of land — responsibility for remediation 22 27. Land owners — responsibility for remediation 23 28. Insolvent bodies corporate — responsibility for remediation 25 29. State — responsibility for remediation 27 30. Responsibility for remediation may be transferred 29 31. Mortgagee — responsibility for remediation 31 32. Orphan sites 31 Division 2 — Contaminated Sites Committee 33. Contaminated Sites Committee 33 34. Procedure of committee 33 Division 3 — Decisions as to responsibility for remediation 35. Decisions as to responsibility for remediation 34 36. Committee to make decisions as to responsibility for remediation 34 37. Notice to be given before decision made 34 38. Matters to be taken into account in making a decision as to responsibility for remediation 36 39. Notice of decision to be given 36 40. Appeal from decision as to responsibility for remediation 37 Part 4 — Investigation, clean up and hazard abatement notices Division 1 — General 41. Meaning of "notice" in this Part 38 42. Person to whom a notice may be given 38 43. Notice to be complied with 39 44. Auditor's report in relation to notice 40 45. Cancellation of notices 40 46. Notice may be amended, or additional notice may be given 41 Division 2 — Person on whom notice is binding 47. Person on whom notice is binding 41 48. Certain notices binding on new owners 41 Division 3 — Types of notices 49. Investigation notice 42 50. Clean up notice 44 51. Hazard abatement notice 46 Division 4 — Appeals from notices 52. Appeals from notices 47 Part 5 — Provisions relating to remediation and notices Division 1 — Powers of CEO in respect of remediation, investigation and ensuring compliance with notices 53. Powers in respect of remediation, investigation and ensuring compliance with notices 48 54. Where entry to a site, or the taking of action, to comply with notice or to remediate refused 50 Division 2 — Recovery of cost, and liability for losses, in some circumstances 55. State may recover cost in some circumstances 52 56. Person may recover cost in some circumstances 53 57. Liability for losses 54 Division 3 — Memorials 58. Memorial is to be lodged if notice given, or land classified as contaminated 55 59. Notice of memorial to be given 58 Division 4 — Contaminated Sites Management Account 60. Contaminated Sites Management Account 58 Part 6 — Certificates of contamination audit, exemption certificates and disclosure statements Division 1 — Interpretation 61. Meaning of "land" in this Part 61 Division 2 — Certificate of contamination audit 62. Request for certificate of contamination audit 61 63. Certificate of contamination audit 62 Division 3 — Disclosure regarding contamination, and exemption certificates 64. Disclosure statement made within 2 years of commencement of Act 64 65. Exemption certificates 66 66. Cancellation or amendment of exemption certificate 67 67. Appeals regarding exemption certificates 68 68. Disclosure required to potential owners of certain land before change of ownership occurs 69 Part 7 — Contaminated sites auditors Division 1 — Accreditation 69. Accredited auditors 70 70. Authority of accredited auditor 70 71. Offences relating to accreditation 70 72. No action may be taken with respect to accreditation 71 Division 2 — Mandatory auditor's reports 73. Certification of mandatory auditor's reports 71 74. Offences relating to mandatory auditor's reports 72 75. Self‑incriminatory information not exempt 73 76. Use of information 73 Part 8 — Appeals Division 1 — Appeals from decisions of the committee 77. Appeals as to responsibility for remediation and exemption certificates 74 78. Supreme Court to hear and determine appeals on questions of law 74 Division 2 — Other appeals 79. Lodging of appeals under section 18 or 52 75 80. Preliminary action in respect of certain appeals 76 81. Reports under section 80 76 82. Decision of committee 76 83. Implementation by CEO of decisions on appeal 77 Part 9 — Enforcement 84. Who can take proceedings for offences 78 85. Time for bringing prosecutions 78 86. Evidentiary provisions 79 87. Daily penalties 79 88. Attempt, incitement and accessory after the fact 80 89. Inspectors, authorised officers and analysts 80 90. Additional powers available to the court 81 Part 10 — General 91. Delegation 82 92. Other provisions of EP Act apply 82 93. CEO may request information on wells 82 94. False or misleading information 83 95. Victimisation 84 96. Confidentiality 85 97. Guidelines 86 98. Regulations 87 99. Review of Act 88 Schedule 1 — Classification of sites Schedule 2 — Matters in respect of which regulations may be made Division 1 — General Division 2 — Auditors and audits Notes Compilation table 93 Defined terms Western Australia Contaminated Sites Act 2003 An Act providing for the identification, recording, management and remediation of contaminated sites, to consequentially amend certain other Acts and for related purposes. Part 1 — Preliminary 1. Short title This Act may be cited as the Contaminated Sites Act 2003. 2. Commencement This Act comes into operation on a day fixed by proclamation. 3. Terms used in this Act (1) In this Act, unless the contrary intention appears — act includes an omission and extends to a series of acts or omissions; affected site means a site on which contamination is caused, or contributed to — (a) by contamination; or (b) by a substance, which has migrated to that site from another site (the source site); auditor means a person accredited under section 69 as a contaminated sites auditor; binding, in relation to a notice under Part 4, has the meaning given by section 47; CEO means the chief executive officer of the Department; CEO of the Health Department means the chief executive officer of the department principally assisting the Minister responsible for the administration of the Health Legislation Administration Act 1984; certificate of contamination audit means a certificate referred to in section 63; classify, in respect of a site, means to classify the site under Part 2; clean up notice means a notice referred to in section 50; committee means the Contaminated Sites Committee established under section 33; contaminated has the meaning given by section 4; database means the contaminated sites database kept under section 19; decision as to responsibility for remediation has the meaning given by section 35; EP Act means the Environmental Protection Act 1986; exemption certificate means a certificate referred to in section 65; guidelines means the guidelines made under section 97; hazard abatement notice means a notice referred to in section 51; insolvent means — (a) in the case of a natural person — a person who is an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; and (b) in the case of a body corporate — a body corporate that is an externally‑administered body corporate within the meaning of the Corporations Act 2001 of the Commonwealth; investigation notice means a notice referred to in section 49; management plan means a plan for the investigation or remediation, or both, of a site; mandatory auditor's report means a report by an auditor that is required for the purposes of this Act or the EP Act; occupier, in relation to land, means a person in occupation or control of the land, whether or not the person also owns the land; orphan site has the meaning given by section 32(1); owner has the meaning given by section 5; person responsible, in respect of a site classified as contaminated — remediation required, means a person responsible for remediation of the site in accordance with Part 3; records means the information and documents to be kept under section 20; remediation in respect of a site that is contaminated includes — (a) the attempted restoration of the site to the state it was in before the contamination occurred; (b) the restriction, or prohibition, of access to, or use of, the site; (c) the removal, destruction, reduction, containment or dispersal of the substance causing the contamination, or the reduction or mitigation of the effect of the substance; (d) the protection of human health, the environment or any environmental value from the contamination; site means an area of land and includes — (a) underground water under that land; and (b) surface water on that land; source site means a site — (a) on which contamination; or (b) on which a substance, has originated and from which it has migrated to another site (the affected site) causing, or contributing to, contamination on that other site. (2) A word or expression used in this Act has the same meaning as it has in the EP Act unless — (a) this Act gives it another meaning; or (b) the contrary intention appears in some other way. [Section 3 amended: No. 40 of 2005 s. 4.] 4. Meaning of "contaminated" (1) In this Act — contaminated, in relation to land, water or a site, means having a substance present in or on that land, water or site at above background concentrations that presents, or has the potential to present, a risk of harm to human health, the environment or any environmental value. (2) However, land, water or a site, or land, water or a site of a prescribed class or description, is not contaminated where the regulations so provide. 5. Meaning of "owner" (1) In this Act — owner means — (a) in relation to freehold land — (i) a holder of the freehold; and (ii) a mortgagee in possession; and (b) in relation to Crown land — (i) the care, control and management of which has been placed in a management body, that management body; (ii) which is reserved, set apart or vested for, or dedicated to, the purposes of another written law, the person who is responsible for the administration of that Crown land while it is so reserved, set apart, vested or dedicated; (iii) which comprises all, or part, of an orphan site taken in accordance with section 32(4), the Minister; and (iv) other than land referred to in subparagraph (i), (ii) or (iii), the Minister for Lands, as referred to in section 7(1) of the Land Administration Act 1997. (2) In this section — Crown land and management body have the same respective meanings as in the Land Administration Act 1997. 6. Meaning of "owner, occupier, mortgagee or lessee of a site" In this Act, a reference to an owner, occupier, mortgagee or lessee of a site is a reference to each person who is an owner, occupier, mortgagee or lessee, as is relevant, of land that comprises all, or part, of the site. 7. State bound This Act binds the State. 8. Object and principles of Act The object of this Act is to protect human health, the environment and environmental values by providing for the identification, recording, management and remediation of contaminated sites in the State, having regard to the principles in the Table to this section — Table 1. The polluter pays principle Those who generate pollution and waste should bear the cost of containment, avoidance or abatement. 2. The principle of full life cycle costs The users of goods and services should pay prices based on the full life cycle costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any wastes. 3. The principle of waste minimisation All reasonable and practicable measures should be taken to minimise the generation of waste and its discharge into the environment. 9. Effect on other laws (1) The provisions of this Act are complementary to and not in derogation of the provisions of any other law of the State. (2) Without limiting the generality of subsection (1), this Act is not to be construed so as to prevent any person from being prosecuted under any other enactment for an offence punishable by this Act, or from being liable under any other law of the State to any other or higher penalty or punishment than is provided for the offence by this Act. (3) Nothing in this section affects the operation of section 11 of the Sentencing Act 1995. (4) Nothing in this Act affects any right a person has at law to prevent, control or abate contamination or to obtain damages. 10. Exemptions from Act (1) The Minister may, with the approval of the Governor, declare by order that all or any of the provisions of this Act specified in the order do not apply in respect of — (a) any specified area of the State; (b) any specified premises, act or thing; or (c) all premises, acts or things comprised in a specified class or situated in a specified area of the State, if, in the opinion of the Minister — (d) it is in the general interest of the public to do so; and (e) no significant risk to human health, the environment or any environmental value will fail to be dealt with under this Act as a result of the order. (2) Before making an order the Minister — (a) is to consult with the Minister responsible for the administration of the Health Legislation Administration Act 1984 and, if possible, reach agreement on any proposed aspect of the order relating to human health; and (b) may seek comments from any public authority or any person which or who has, in the opinion of the Minister, a direct interest in the proposed subject matter of the order. (3) The Minister may — (a) specify any conditions to which the order is subject; and (b) require specified persons or members of specified classes of persons to comply with any condition to which the order is subject. (4) The Minister is to fix the day on which an order made under subsection (1) comes into operation by notice to be published in the Gazette, unless the order is disallowed under section 42(2) of the Interpretation Act 1984 as applied by subsection (12). (5) The day fixed under subsection (4) is to be after there is no longer any possibility of the order ceasing to have effect under section 42(2) of the Interpretation Act 1984 as applied by subsection (12). (6) The Minister is to cause to be published in the Gazette in which an order is published a notice, for public information, setting out reasons for the making of the order. (7) Despite any other provisions of this Act, an order has effect according to its tenor subject to subsection (8). (8) An order ceases to have effect if — (a) a condition to which it is subject ceases to exist or is contravened; or (b) it is revoked under subsection (9). (9) Subject to subsection (10), the Minister may, with the approval of the Governor, by order revoke an order made under subsection (1). (10) Before revoking an order the Minister is to publish in the Gazette, at least 14 days before the day on which the Minister revokes the order, notice of the intention to revoke the order so that persons likely to be aggrieved by that revocation may make representations in writing to the Minister. (11) A person must not contravene a condition to which an order is subject. Penalty: $250 000, and a daily penalty of $50 000. (12) Section 42 of the Interpretation Act 1984 applies to an order as if that order were regulations within the meaning of that section, except that the reference in section 42(1) of that Act to 6 sitting days is for the purposes of this section to be construed as a reference to 9 sitting days. (13) Nothing in this section affects or prevents the application of section 43(8)(d) of the Interpretation Act 1984 to regulations made under this Act. (14) In this section — specified means specified in the order. Part 2 — Reporting, classifying and recording sites Division 1 — Reporting of sites 11. Reporting of known, or suspected, contaminated sites (1) A person may report to the CEO any site that the person knows, or suspects, is contaminated. (2) A report is to — (a) be in the prescribed form; (b) contain a description of the location and extent of the site sufficient to identify it; and (c) summarise the information on which the person bases their knowledge or suspicion that the site is contaminated. (3) Except as provided in subsection (5), a person referred to in subsection (4) must report to the CEO any site that the person — (a) knows is contaminated, 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, as soon as it is reasonably practicable to do so. Penalty: $250 000, and a daily penalty of $50 000. (4) The following persons have a duty to report a site under subsection (3) — (a) an owner or occupier of the site; (b) a person who knows, or suspects, that he or she has caused, or contributed to, the contamination; (c) an auditor engaged to provide a report that is required for the purposes of this Act in respect of the site. (5) It is a defence to a charge of an offence under subsection (3) for the person to prove that the person knew or believed on reasonable grounds that — (a) the site had already been reported to the CEO; (b) the contamination, or suspected contamination, was caused by a discharge of waste of which the CEO had already been notified under section 72 of the EP Act; or (c) the site was, or was to be, reported under a programme approved by the CEO under section 12, or in a programme submitted for that approval and approval has not been refused. (6) A person does not contravene subsection (3), even though he or she does not comply with that provision, during the period of 6 months after the commencement of this Act. (7) The CEO is to ensure that each owner and occupier of a site in relation to which the CEO has received a report is informed in writing within 14 days after the day on which the report was received that a report has been made under this section or that reasonable attempts have been made to do so. (8) Subsection (7) does not apply in respect of an owner or occupier who made the report. (9) A person must not report a site — (a) maliciously; and (b) without reasonable grounds to believe or suspect that the site was contaminated. Penalty: $250 000. 12. Programme for reporting sites (1) The CEO may approve a programme for the identification and reporting of sites described in the programme if the CEO is of the opinion that it is necessary or desirable to do so due to the number of sites or the complexity of adequately identifying sites or the location and extent of sites. (2) A programme may be approved under subsection (1) only if the programme is submitted to the CEO for approval within 6 months after the commencement of this Act. (3) A programme submitted to the CEO is to specify — (a) the sites or types of sites to be identified and reported under the programme; (b) the methods to be used to identify the sites to be reported under the programme; (c) the timetable proposed for the identification and reporting of sites under the programme; (d) the time within which the programme is to be completed; and (e) reasons why it is considered necessary or desirable for the sites to be identified and reported under this section. (4) The CEO may, by written notice given to a person who has had a programme approved under subsection (1), amend the programme subject to subsection (5). (5) A programme is not to be amended so as to — (a) reduce the time within which the programme is to be completed; or (b) increase the extent of the identification or reporting to be carried out under the programme, unless the person who submitted the programme for approval has agreed in writing to the amendment. (6) A person who has had a programme for the reporting of sites approved under subsection (1) must ensure that sites are identified and reported — (a) in accordance with the programme; and (b) within the time specified in the programme for the completion of the programme. Penalty: $250 000, and a daily penalty of $50 000. (7) In subsection (6)(a) — programme includes, where relevant, a programme as amended under this section. Division 2 — Classification of sites 13. CEO to classify sites (1) Subject to this section, the CEO is to classify a site when required to do so under this Act, and may classify a site at any other time. (2) The CEO may classify a site more than once and a site is classified as of the classification most recently conferred on it. (3) The CEO is to classify a site as of the classification set out in the first column of Schedule 1 which corresponds, in the CEO's opinion, on reasonable grounds, to the criterion that applies to the site set out opposite the classification in the second column of that Schedule. (4) In classifying a site the CEO is to take into account — (a) any relevant guidelines; (b) currently accepted industrial standards; and (c) any other information the CEO considers relevant, with respect to the identification, assessment, classification or management of contamination. (5) Before classifying a site the CEO — (a) is to consult with the CEO of the Health Department and, if possible, reach agreement on the classification of the site; and (b) may seek comments from any public authority or any person which or who has, in the opinion of the CEO, a direct interest in the classification of the site. (6) If the CEO and the CEO of the Health Department cannot agree on the classification of a site the Minister and the Minister responsible for the administration of the Health Legislation Administration Act 1984 are to appoint a person to classify the site. 14. Classification of reported sites (1) After receiving a report under section 11 or 12 the CEO is to inquire into the report and unless the site is already classified is to classify the site — (a) within 45 days after receiving that report; or (b) if, in the opinion of the CEO, there are particular circumstances which make it difficult to classify the site within that time, within such further time as the CEO decides is necessary to classify the site. (2) The CEO is to cause written notice of a decision under subsection (1)(b) to be given, or to ensure that reasonable attempts have been made to do so — (a) to the same persons as are to be given notice of the classification of the site under section 15(1)(a) to (f); and (b) within 45 days after receiving the relevant report under section 11 or 12. 15. Notice of classification is to be given (1) As soon as is practicable after a site is classified, and in any event not later than 10 days after the site is classified, the CEO is to cause written notice of the classification of the site to be given, or to ensure that reasonable attempts have been made to do so, to — (a) each owner of the site; (b) an occupier of the site; (c) any relevant public authority; (d) any other person whom, in the opinion of the CEO, there is particular reason to notify; (e) a person who made the relevant report under section 11 or 12; and (f) in respect of a site classified as contaminated — remediation required, each person who, in the opinion of the CEO, may be a person responsible for remediation of the site. (2) Subject to subsection (3), notice of a classification may be given by way of — (a) a notice under Part 4; (b) a certificate of contamination audit, in respect of a classification referred to in subsection (3); or (c) any other written notice. (3) Written notice of a classification may be given by way of a certificate of contamination audit only where a certificate has been requested under section 62 and in respect of the following classifications — (a) not contaminated — unrestricted use; (b) contaminated — restricted use; (c) remediated for restricted use; (d) contaminated — remediation required; or (e) decontaminated. (4) Notice of the classification of a site as — (a) contaminated — restricted use; (b) remediated for restricted use; or (c) contaminated — remediation required, is to specify the restrictions on the use of the site. (5) Notice of the classification of a site is to — (a) state that the site has been classified under this Act; (b) state the category of classification of the site; (c) contain a description of the location and extent of the site sufficient to identify it; (d) provide brief reasons for the classification of the site, with reference to the guidelines and any standards or other information taken into account under section 13(4); (e) contain details of any appeal available under this Act in respect of the classification of the site, or the inclusion of land in the site; (f) briefly and accurately summarise the effects of section 68 if the site is classified as — (i) contaminated — remediation required; (ii) contaminated — restricted use; or (iii) remediated for restricted use. 16. Site classified as possibly contaminated — investigation required A site classified as possibly contaminated — investigation required is to remain so classified until classified as — (a) contaminated — remediation required; (b) contaminated — restricted use; (c) remediated for restricted use; (d) not contaminated — unrestricted use; or (e) decontaminated. 17. Database and records to be adjusted As soon as is practicable after classifying a site, and in any event not later than 10 days after doing so, the CEO is to ensure that the database and records are adjusted to reflect the classification. Division 3 — Appeals against classification 18. Appeals against classification (1) A person who reports a site under section 11 or 12 may appeal against a classification of that site as report not substantiated. (2) A person who is — (a) an owner; or (b) an occupier, who has been given notice under section 15(1)(b), of a site classified as — (c) possibly contaminated — investigation required; (d) decontaminated; or (e) not contaminated — unrestricted use, may appeal against the classification, or the inclusion in the site of land of which the person is an owner or occupier. (3) A person who is — (a) responsible for remediation; (b) an owner; or (c) an occupier, who has been given notice under section 15(1)(b), of a site classified as — (d) contaminated — remediation required; (e) contaminated — restricted use; or (f) remediated for restricted use, may appeal against the classification, or the inclusion in the site of land of which the person is an owner, occupier or responsible for remediation. (4) An appeal is to be brought, dealt with and determined in accordance with Part 8. Division 4 — Contaminated sites database and other records 19. Contaminated sites database — public access (1) The CEO is to keep an accurate and up to date contaminated sites database containing — (a) a list of all sites classified as — (i) contaminated — remediation required; (ii) contaminated — restricted use; (iii) remediated for restricted use; (b) a description of the location and extent of each of those sites sufficient to identify it; and (c) a description of the nature and extent of the known contamination of each of those sites. (2) The CEO is to ensure that members of the public have access, free of charge, to the contaminated sites database. 20. Other records to be kept (1) The CEO is to keep accurate and up to date records containing — (a) information on contaminated underground water; (b) copies of all of the following documents — (i) reports made under section 11 or 12; (ii) programmes for the reporting of sites approved under section 12; (iii) notices of the classification of a site given under section 15; (iv) notices given under Part 4; (v) management plans submitted to the CEO; (vi) sampling and analysis programmes given to the CEO under section 49(4)(d); (vii) memorials lodged under section 58; (viii) disclosure statements made under section 64; (ix) certificates of contamination audit; (x) exemption certificates; (xi) notices given under section 39(1); (xii) details of decisions published under section 83(2); (xiii) approvals given to the transfer of responsibility for remediation under section 30(1)(b) and (2); (xiv) agreements to a transfer of responsibility for remediation under section 31; (xv) written disclosures made under section 68; and (c) such other information and documents as the CEO considers appropriate. (2) The records may be wholly or partly compiled, recorded or stored in written form or on microfilm, or by electronic or other means or in any other form the CEO considers appropriate. (3) The records are to be retained by the CEO for such period as is determined by the CEO. 21. Public access to records (1) The CEO is to ensure that a person who has, in the prescribed manner, requested access to a summary of records in respect of land specified in the application, and paid any fee prescribed, is given access to, or copies of, the summary of records. (2) In this section — summary of records means a summary, or copies, of such information and documents from the records as are prescribed, in the form prescribed, for the purposes of this section. Part 3 — Remediation of contaminated sites Division 1 — Person responsible for remediation 22. Reference to person responsible for remediation includes all persons responsible (1) More than one person may be responsible for remediation of a site. (2) If more than one person is responsible for remediation of a site, each person is responsible for that remediation to the extent provided in accordance with this Part. (3) Unless the contrary intention appears, a reference in this Act to a person, or the person, responsible for remediation of a site, is to be construed as including each person responsible for remediation of the site to the extent that the person is responsible in each case under this Part. (4) A person's responsibility for remediation of a site under a provision of this Part is in addition to any other responsibility for remediation of the site that the person has under another provision of this Part. 23. Sites classified as contaminated — remediation required are to be remediated The only sites that are required to be remediated under this Act are sites classified as contaminated — remediation required. 24. Who is responsible for remediation — hierarchy of responsibility (1) A person is responsible for remediation of a site — (a) in accordance with section 25, if the person has caused, or contributed to, the contamination of the site; (b) in accordance with section 26, if the person is an owner or occupier of the site who has changed, or proposes to change, the use to which land that comprises all, or part, of the site is put; and (c) in accordance with section 27, if the person is an owner of the site, or of a source site. (2) Subsection (1) has effect subject to — (a) section 28; (b) responsibility of the State for remediation under section 29 (except where provision is made to the contrary in section 26(2)(b) and 27(1)(d)); (c) responsibility for remediation being transferred under section 30(1)(a); and (d) a decision made under section 54. [Section 24 amended: No. 40 of 2005 s. 5.] 25. Person who caused, or contributed to, contamination — responsibility for remediation (1) A person is responsible for remediation of a site to the extent that the person caused, or contributed to, the contamination of the site after the commencement of this Act. (2) Subsection (1) applies whether the contamination resulted from an act that was done with lawful authority or without lawful authority. (3) A person who caused, or contributed to, the contamination of a site before the commencement of this Act is responsible for remediation of the site only to the extent that the person caused, or contributed to, that contamination by an act that was done without lawful authority. (4) This section does not apply if the contamination resulted from a reasonable act that was carried out in an emergency situation to save life or to protect property or the environment. (5) In this section — an act that was done without lawful authority, without limiting the meaning of the expression, includes an act — (a) that constituted an offence for which the person was convicted; or (b) that contravened — (i) any written law in force at the time the act occurred; or (ii) any contract, permit, lease, licence, standard, policy, direction, exemption, authority, approval or requirement, however described, that was given or made under a written law in force at the time the act occurred. (6) This section is subject to sections 26 and 27. 26. Person who changes use of land — responsibility for remediation (1) Where, after the commencement of this Act, an owner or occupier of a site has changed, or proposes to change, the use to which land that comprises all, or part, of the site is put, that person is responsible for remediation of the site to the extent that remediation is required because of the change, or proposed change, of use. (2) To the extent that the remediation is required because of the change, or proposed change, of use referred to in subsection (1) — (a) a person who caused or contributed to the contamination is not responsible for remediation of the site under section 25; and (b) the State is not responsible for remediation of the site under section 29(1)(a) or (b). 27. Land owners — responsibility for remediation (1) A person who became an owner of a site before the commencement of this Act is responsible for remediation of the site to the extent that — (a) the person knew, or suspected, or had reasonable grounds to know or suspect, that the site was contaminated at the time the person became an owner of the site; and (b) the person is an owner of the site, and, to that extent — (c) a person is not responsible for remediation of the site under section 25; and (d) the State is not responsible for remediation of the site under section 29(1)(a) or (b). (2) A person who — (a) became an owner of a site before the commencement of this Act and who did not know, or suspect, and had no reasonable grounds to know or suspect, that the site was contaminated at the time the person became an owner of the site; (b) becomes an owner of a site after the commencement of this Act; or (c) is an owner of a site and was an owner of that site at the time the contamination was caused, or contributed to, is responsible for remediation of the site to the extent that — (d) a person is not responsible under section 25 or 26; or (e) a person who is responsible under section 25 or 26 — (i) cannot, after reasonable attempts have been made, be identified or found or be made to assume responsibility for the remediation; or (ii) is insolvent and a person has not been made responsible in accordance with section 28, and to the extent that the person is an owner of the site. (2a) A person who, under subsection (1) or (2), is responsible for remediation of a site that is a source site is also responsible for remediation of a site that is an affected site to the extent that — (a) the contamination of the affected site is caused, or contributed to — (i) by contamination; or (ii) by a substance, which has migrated to the affected site from the source site; and (b) the person is an owner of the source site, but only to the extent that — (c) a person is not responsible for remediation of the affected site under section 25 or 26; or (d) a person who is responsible for remediation of the affected site under section 25 or 26 — (i) cannot, after reasonable attempts have been made, be identified or found or be made to assume responsibility for the remediation; or (ii) is insolvent and a person has not been made responsible in accordance with section 28. (2b) A person who is an owner of a site that is an affected site is not responsible for remediation of the site under subsection (1) or (2) to the extent that the contamination of the site is caused, or contributed to — (a) by contamination; or (b) by a substance, which has migrated to the affected site from a source site. (3) An owner within the meaning of section 5(1)(b)(i) or (ii) is not responsible for remediation of a site under this section to the extent in each case as is decided by the committee after taking into account the relevant circumstances and any matters prescribed for the purposes of this section. (4) A decision of the committee under subsection (3) is a decision as to responsibility for remediation to which Part 3 Division 3 applies. (5) A person is not responsible for remediation under subsection (2) or (2a) to the extent provided by an exemption certificate held by that person. [Section 27 amended: No. 40 of 2005 s. 6.] 28. Insolvent bodies corporate — responsibility for remediation (1) This section applies to and in respect of a body corporate which is a person responsible for remediation of a site under section 25, 26 or 27, or under this section and — (a) which is insolvent; or (b) in respect of which the committee has decided that the body corporate would become insolvent if it took action to remediate the site. (2) Subject to subsections (3) and (4) — (a) each person who was a director of an insolvent body corporate; and (b) each body corporate that was a related body corporate, for the purposes of the Corporations Act 2001 of the Commonwealth, of an insolvent body corporate, at the relevant time, may become a person responsible for the remediation if so decided by the committee, to the extent as is decided by the committee, after taking into account the relevant circumstances and any matters prescribed for the purposes of this section. (3) The persons referred to in paragraphs (a) and (b) of subsection (2) may not, as a result of the operation of this section, be jointly responsible for remediation of the site to a greater extent than the insolvent body corporate was responsible for remediation of the site. (4) Subsection (2) does not apply in respect of a person referred to in paragraph (a) or (b) of that subsection unless the committee has decided that — (a) the insolvency, or lack of solvency, of the insolvent body corporate is a result of deliberate conduct engaged in with, the committee has decided, the probable intent of avoiding responsibility for remediation under this Act; and (b) the person — (i) engaged in the conduct or knew, or had reasonable grounds to suspect, that the conduct was being engaged in; (ii) intended to avoid responsibility for remediation under this Act or knew, had reasonable grounds to suspect, or did not inquire as to whether, the conduct was being engaged in with the intent of avoiding responsibility for remediation under this Act; and (iii) was in a position to influence the conduct. (5) Where it is necessary to establish the state of mind of a body corporate in relation to particular conduct under subsection (4), it is sufficient that — (a) the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and (b) the director, employee or agent had the relevant state of mind. (6) A decision of the committee under subsection (1), (2) or (4) is a decision as to responsibility for remediation to which Part 3 Division 3 applies. (7) In this section — director has the same meaning as in the Corporations Act 2001 of the Commonwealth; engage in conduct includes failing or refusing to engage in conduct; insolvent body corporate means a body corporate referred to in subsection (1); relevant time means, in relation to a person who was responsible for remediation under — (a) section 25, when the act that caused, or contributed to, the contamination occurred; (b) section 26, when the change of use occurred; (c) section 27(1) or (2), when the person became an owner of the site; and (d) section 27(2a), when the person became an owner of the source site of the relevant affected site; state of mind of a person includes — (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person's reasons for the intention, opinion, belief or purpose. [Section 28 amended: No. 40 of 2005 s. 7.] 29. State — responsibility for remediation (1) The State is responsible for remediation of a site to the extent that — (a) the contamination of the site was a direct and unavoidable result of a direction given, or an action carried out, by a public authority, other than a local authority, unless the contamination resulted from a reasonable direction given, or a reasonable act carried out, in an emergency situation to save life or to protect property or the environment; (b) the contamination was present, or was caused or contributed to by contamination that was present, on land that comprised all, or part, of the site and in respect of which a certificate of contamination audit was given which, at the time the certificate was given — (i) failed to identify the contamination due to a failure under section 63(4) to take into account — (I) any relevant guideline; (II) any currently accepted industrial standard; or (III) any other information contained in, or accompanying, the request for the certificate of contamination audit; or (ii) identified the contamination, but failed to classify the site as contaminated — remediation required, contamination — restricted use or remediated for restricted use as a result of that contamination being identified; (c) no other person is responsible for remediation of the site in accordance with section 24; (d) if it has been decided by the committee that a person who is responsible for remediation of the site in accordance with section 24 — (i) cannot be identified or found; or (ii) cannot be made to assume responsibility for the remediation, after reasonable attempts have been made to do so; (e) a person responsible for remediation of the site in accordance with section 24 is insolvent; (f) an owner is not responsible for remediation of the site in accordance with section 27(3); or (g) responsibility for remediation is transferred to the State under section 30(1)(b) or 31. (2) A decision of the committee under subsection (1)(d) is a decision as to responsibility for remediation to which Part 3 Division 3 applies. (3) The CEO is to take such action as the CEO considers necessary, with such assistance as the CEO considers necessary, to investigate and remediate a site for which, and to the extent to which, the State is responsible for remediation. (4) Subject to sections 87 and 88 of the EP Act, an authorised person or an inspector may assist the CEO to take any action under subsection (3), if the CEO so requests. 30. Responsibility for remediation may be transferred (1) A person responsible for remediation of a site may transfer that responsibility, or part of that responsibility — (a) to another person, with that person's written agreement; or (b) in prescribed circumstances, and with the written approval of the Minister, to the State. (2) An agreement under subsection (1)(a) is of no effect unless approved in writing by the CEO. (3) A transfer under subsection (1) is to be on such terms and conditions as the parties agree which may include — (a) the transfer of all or part of the relevant land; or (b) creating a charge on the relevant land. (4) When seeking approval from the CEO under subsection (2), the person responsible for remediation is to give to the CEO — (a) a statement — (i) to the effect that the person believes on reasonable grounds that the person to whom responsibility is to be transferred has sufficient financial capacity to carry out the remediation; and (ii) setting out the details of that financial capacity; and (b) a certificate of contamination audit in respect of the relevant land, or a request for a certificate of contamination audit under section 62. (5) If the CEO considers that there is not enough information about the financial capacity of the person to whom responsibility is to be transferred for the CEO to approve the transfer under subsection (2), the CEO may, by written notice, request — (a) that person; or (b) with the permission of that person, any other person, to provide additional information about that financial capacity. (6) A person must not provide information or make a statement under subsection (4) or (5) that the person knows is false or misleading in a material particular. Penalty: $250 000, and a daily penalty of $50 000. (7) Section 32(3) applies in respect of a charge on land under subsection (3)(b) if the charge is for the benefit of the State, or a public authority nominated by the Minister. (8) Where responsibility is transferred to a person or the State under this section, that person or the State becomes responsible for remediation under this Act to the extent set out in the agreement or approval of the Minister, as is relevant, and the person from whom the responsibility was transferred is no longer the person responsible for that remediation. 31. Mortgagee — responsibility for remediation (1) If a mortgagee in possession who is a person responsible for remediation of a site under section 27 so requests, that responsibility, or part of it, subject to agreement being reached under subsection (3), is to be transferred to the State. (2) A request is to be made — (a) in writing to the CEO; and (b) within 45 days after the day on which the person became responsible under section 27. (3) A transfer under this section is to be on the terms and conditions agreed by the Minister, which may include — (a) the transfer of all, or part, of the relevant land to the State, or a public authority nominated by the Minister; or (b) creating a charge on the relevant land, to secure the estimated costs of the remediation, in favour of the State or a public authority nominated by the Minister. (4) Section 32(3) applies in respect of a charge under subsection (3)(b). 32. Orphan sites (1) In this section — orphan site means all, or part, of a site for which the State is responsible for remediation in accordance with — (a) section 29(1)(c), unless the State is responsible for remediation under that provision due to the operation of an exemption certificate; (b) section 29(1)(d); or (c) section 29(1)(e), because a person responsible for remediation is insolvent and the person, within 45 days or such longer period as is approved by the CEO before the expiry of those 45 days, after the day on which the person became insolvent, has not transferred responsibility under section 30. (2) The Minister may, to secure the payment to the State of the cost of actions taken to investigate and remediate an orphan site, create a charge on land that comprises all, or part, of the orphan site in favour of the State or a public authority nominated by the Minister. (3) Whether or not a memorial has been registered under section 58, a charge on land for the benefit of the State, or a public authority nominated by the Minister, under subsection (2) or section 30(3)(b) or 31(3)(b) — (a) ranks — (i) equally with any other charge on the land created by an Act; and (ii) before any other encumbrance on the land, whether created or arising before or after the charge was created; and (b) remains on the land despite any disposal of the land, and section 110 of the Transfer of Land Act 1893 does not apply to the charge. (4) Subject to subsection (5), land — (a) that comprises all, or part, of an orphan site; and (b) in respect of which the State is responsible for all of the remediation, may be compulsorily taken under Parts 9 and 10 of the Land Administration Act 1997 as if for a public work within the meaning of that Act. (5) The power conferred by subsection (4) may be exercised only on the recommendation of the Minister. Division 2 — Contaminated Sites Committee 33. Contaminated Sites Committee (1) The Minister is to establish a Contaminated Sites Committee (the committee). (2) The committee is to consist of between 3 and 5 persons selected from a panel of names by the Minister each of whom, in the opinion of the Minister, has suitable expertise to make decisions for the purposes of this Act. (3) A panel of names from which a committee is to be selected is to — (a) contain the names of at least one legal practitioner and one auditor; and (b) be chosen and submitted to the Minister in accordance with the regulations. (4) The committee is to determine its own procedures. (5) A member of the committee is to be paid such remuneration and allowances as the Minister, on the recommendation of the Public Sector Commissioner, determines from time to time. (6) The Minister is to arrange for the committee to have, or to have the services or use of, staff or facilities to enable it to carry out its functions. [Section 33 amended: No. 39 of 2010 s. 89.] 34. Procedure of committee In making a decision under this Act the committee — (a) is to consult the CEO and may consult any other person it considers necessary to consult; and (b) is to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, is not bound by the rules of evidence and is to conduct its inquiries in any manner it considers appropriate. Division 3 — Decisions as to responsibility for remediation 35. Decisions as to responsibility for remediation In this Division — decision as to responsibility for remediation means a decision of the committee under section 27(3), 28(1), (2) or (4), 29(1)(d), 36(2) or 54(1)(c). [Section 35 amended: No. 40 of 2005 s. 8.] 36. Committee to make decisions as to responsibility for remediation (1) The committee is to make decisions as to — (a) who is responsible for remediation of a site; (b) the extent to which a person is, or persons are, responsible for remediation of a site. (2) The committee — (a) is to make a decision as to responsibility for remediation if it is requested to do so by an interested person; and (b) may make a decision as to responsibility for remediation on its own initiative. (3) In this section — interested person means a person who is prescribed as being an interested person for the purposes of this section. 37. Notice to be given before decision made Before making a decision as to responsibility for remediation in respect of a person, the committee is to give written notice to that person — (a) if the decision is proposed to be made in accordance with section 25, specifying — (i) the nature of the contamination that the committee reasonably suspects that the person caused, or contributed to; and (ii) the extent of the contamination that the committee reasonably suspects that the person caused, or contributed to; (b) if the decision is proposed to be made in accordance with section 25(3), specifying the act that the committee reasonably suspects the person carried out without lawful authority and giving details of — (i) the conviction of the person for the offence that was constituted by the act; or (ii) any contravention described in paragraph (b) of the definition of "an act that was done without lawful authority" in section 25(5); (c) if the decision is proposed to be made in accordance with section 26, specifying the change of use, or proposed change of use, to which the relevant land is, or is to be, put; (d) setting out any other matters regarding responsibility for remediation that are relevant; (e) informing the person that if the person wishes to disagree with any statements made in the notice the person may, within the time specified in the notice, make a written submission to the committee — (i) specifying any statement that the person disagrees with; (ii) giving reasons as to why the person disagrees with the statement; and (iii) providing any information or documents supporting the reasons given; and (f) briefly and accurately summarising the effect of section 38. 38. Matters to be taken into account in making a decision as to responsibility for remediation (1) A decision as to responsibility for remediation is to be made in accordance with Division 1 and the section which empowers the decision to be made. (2) In making a decision as to responsibility for remediation the committee is to take into consideration — (a) the contents of any notice given by the committee under section 37; and (b) any submission made to the committee referred to in section 37(e) and any information or documents provided in support of the reasons given in that submission, and may take into consideration any other matters the committee considers relevant. 39. Notice of decision to be given (1) The committee is to ensure that notice of a decision as to responsibility for remediation is given in writing to — (a) each person who the committee has decided is responsible for remediation; (b) each person in respect of whom the committee has decided there is to be a change in the extent of the person's responsibility for remediation; (c) in the case of a decision under section 28, the insolvent body corporate; (d) in the case of a request under section 36(2)(a) any person who made the request; (e) in the case of a decision under section 54(1)(c), the first person within the meaning of that section; and (f) each interested person, within the meaning of section 36(3). (2) A notice given under subsection (1) is to — (a) specify who is responsible for remediation and the extent of the responsibility; (b) specify the section of the Act under which the decision is made; (c) specify the reasons for the decision; (d) contain details of the appeal available in respect of the decision under section 77; and (e) contain any other details prescribed. (3) A notice given under subsection (1) has effect according to its tenor. 40. Appeal from decision as to responsibility for remediation A person who has been given a notice of a decision under section 39(1) may appeal against a decision of the committee in accordance with section 77. Part 4 — Investigation, clean up and hazard abatement notices Division 1 — General 41. Meaning of "notice" in this Part In this Part, unless the contrary intention appears — notice means any of the following — (a) a clean up notice, a hazard abatement notice and an investigation notice; (b) a notice amending such a notice. 42. Person to whom a notice may be given (1) The CEO may, in his or her discretion, give a notice to any of the following persons — (a) if given in relation to a site classified as contaminated — remediation required, a person responsible for remediation of the site; (b) a person who, in the opinion of the CEO, would be a person responsible for remediation of the site if the land to which the notice relates was land that comprised all, or part, of a site classified as contaminated — remediation required; (c) an owner or occupier of land that comprises all, or part, of the site to which the notice relates. (2) The CEO may give more than one notice in respect of particular land or a particular site or to a particular person. (3) A notice is to — (a) be in writing; and (b) contain details of any appeal available under this Act in respect of the notice. (4) Each owner and occupier of a site in relation to which a notice is given who has not been given the notice is to be provided with a copy of the notice by the CEO within 10 days after the day on which the notice was given, or the CEO is to ensure that reasonable attempts have been made to do so. (5) Before giving a notice the CEO — (a) is to consult with the CEO of the Health Department and, if possible, reach agreement on the requirements of the notice that relate to human health; and (b) may seek comments from any public authority or any person which or who has, in the opinion of the CEO, a direct interest in the site. (6) If the CEO and the CEO of the Health Department cannot agree on the requirements of a notice that relates to human health the Minister and the Minister responsible for the administration of the Health Legislation Administration Act 1984 are jointly to appoint a person to decide what the requirements of the notice will be. 43. Notice to be complied with (1) A person on whom a notice is binding must ensure that the requirements of the notice are complied with within such time as is specified in the notice. Penalty: $500 000, and a daily penalty of $100 000. (2) If a person — (a) is convicted of an offence under subsection (1) in respect of a notice; or (b) in the opinion of the CEO, has not complied with a requirement of a hazard abatement notice within such time as is specified in the notice, subject to subsections (3) and (4), the CEO may take such action as is necessary under section 53 to ensure that the requirements of the notice are complied with. (3) Before taking action under section 53 in the circumstances referred to in subsection (2)(b), the CEO is to give to the person, who in the opinion of the CEO has not complied with a requirement of the hazard abatement notice, written notice — (a) stating that in the opinion of the CEO the person has not complied with the requirement, or requirements, of the hazard abatement notice which is, or are, specified in the notice under this subsection; and (b) giving details of the proposed action. (4) Notice is not required to be given under subsection (3) if the Minister has given written approval for it to be dispensed with because, in the opinion of the Minister, there is an urgent need to take action to reduce or control the immediate and serious risk of harm to human health, the environment or an environmental value. 44. Auditor's report in relation to notice A notice is to require a person on whom the notice is binding to engage an auditor to report on the actions taken to comply with the requirements of the notice. 45. Cancellation of notices (1) A notice may be cancelled — (a) in relation to all persons on whom the notice is binding, by the CEO giving written notice of the cancellation to each of those persons; or (b) in relation to one or more of the person or persons on whom the notice is binding, by the CEO giving written notice of the cancellation to that person or each of those persons. (2) A notice that is cancelled under subsection (1)(a) is of no effect. (3) A notice that is cancelled under subsection (1)(b) in relation to a person is no longer binding on that person. (4) Each owner and occupier of a site in relation to which a notice is cancelled under subsection (1)(b) who has not been given written notice of the cancellation is to be provided with a copy of that notice by the CEO within 10 days after the day on which it was given, or the CEO is to ensure that reasonable attempts have been made to do so. 46. Notice may be amended, or additional notice may be given Where there is a requirement, or discretion, to give a notice under this Act, a notice amending the notice, or an additional notice of the same type, may be given. Division 2 — Person on whom notice is binding 47. Person on whom notice is binding Subject to sections 45 and 79(3) and the outcome of any appeal, a notice is binding on each person — (a) to whom it is given; and (b) on whom it is binding in accordance with section 48 or 54. 48. Certain notices binding on new owners (1) Subject to subsections (2) and (3), a notice — (a) in respect of which a memorial under section 58 is registered in respect of land; and (b) which is binding on an owner of the land, becomes binding on each person who becomes an owner of the land at the time that the person becomes such an owner. (2) A clean up notice, or an investigation notice, in respect of which a memorial under section 58 is registered in respect of land, does not become binding on a person who becomes an owner of the land because the person is a mortgagee in possession, until 45 days after the day on which the person became an owner of the land. (3) A clean up notice does not become binding on a person under subsection (2) if, and to the extent that, within that 45 days, the relevant responsibility for remediation is transferred to the State under section 31. Division 3 — Types of notices 49. Investigation notice (1) An investigation notice is to set out the requirements to be complied with to ensure that a site is investigated, monitored and assessed. (2) An investigation notice is to be given only if, in the opinion of the CEO, there are grounds to indicate — (a) the possible contamination of a site; and (b) that appropriate action to investigate, monitor or assess the site is not being, or has not been, taken. (3) An investigation notice — (a) is to specify — (i) the name and address of the person to whom it is given; (ii) the reason for which it is given; and (iii) a description of the location and extent of the site sufficient to identify it; and (b) is to describe — (i) the form of investigation, monitoring and assessment to be undertaken; and (ii) the content and form of information that is to be reported to the CEO. (4) Without limiting subsection (1) or (3), an investigation notice may require a person on whom it is binding to do one or more of the following — (a) to take such measures as the CEO considers necessary to investigate the nature and extent of contamination and its consequences; (b) to prepare a management plan and submit it to the CEO; (c) to monitor the effectiveness of actions taken under paragraph (a); (d) to prepare a sampling and analysis programme for investigating the nature and extent of contamination and give the programme to the CEO; (e) to prepare and implement a plan, in accordance with any relevant guidelines, for informing and consulting with the community regarding the investigation of the site; (f) to report to the CEO on any action taken under the notice and its outcome; (g) specify the time within which any requirement of the notice is to be complied with. (5) An investigation notice may require a person on whom it is binding to do any thing referred to in subsection (3) or (4) in accordance with an approval, direction or requirement of a type specified in the notice by a person specified in the notice. (6) If, in order to comply with an investigation notice, a person will need to enter land of which the person is not an occupier, the notice — (a) may require the person to make reasonable attempts to obtain, within the time specified in the notice, the permission of the occupier or owner, as is relevant, to enter the land to take action to comply with the requirements of the notice; and (b) if a requirement is made under (a), is to briefly and accurately describe the effect of subsection (7). (7) If a person on whom a notice, which has a requirement referred to in subsection (6), is binding fails to obtain the permission of the occupier or owner after making reasonable attempts to do so within the time specified in the notice, the person is to notify the CEO of that failure within 3 days after the latest day on which the person was required to obtain the permission. 50. Clean up notice (1) A clean up notice is to set out the requirements to be complied with to remediate a site. (2) A clean up notice may be given only — (a) in respect of a site classified as contaminated — remediation required; and (b) if the CEO believes, on reasonable grounds, that appropriate action to remediate the site is not being, or has not been, taken. (3) A clean up notice — (a) is to specify — (i) the name and address of the person to whom it is given; (ii) the reason for which it is given; and (iii) a description of the location and extent of the site sufficient to identify it; and (b) is to describe — (i) the form of remediation and monitoring to be undertaken; and (ii) the content and form of information that is to be reported to the CEO. (4) Wit