Key changes under the new draft Site Auditor Guidelines

Last month the NSW Environment Protection Authority (EPA) released a draft version of the new Site Auditor Guidelines (the Draft Guidelines). The Draft Guidelines introduce new roles for EPA Accredited Site Auditors (Auditors), clarify the effects of different types of Site Audit Statements and provide some additional guidance in connection with Environmental Management Plans. Below we discuss some of the key changes.
 
New whistle-blower obligations for Auditors    
The Draft Guidelines impose disclosure obligations on Auditors. Importantly, if an Auditor becomes aware of any of the circumstances outlined in the table below, he or she must simultaneously notify in writing both the person who commissioned the audit (the Client), and the EPA. 

An Auditor must notify the Client and the EPA if the Auditor:
(a) concludes that a site should be notified to the EPA under Section 60 of the CLMA (ie because it is "significantly" contaminated);
(b) becomes aware of the potential for off-site migration of contamination;
(c) concludes there are risks associated with the vapour pathways; or
(d) concludes there are hazardous ground gases present under the audit site.


Waste

An Auditor must also simultaneously notify the client and the EPA if they become aware that waste is not being managed properly on the audit site.

Discussions with the EPA

If an Auditor is undertaking an audit of a site that has either been notified to, or is being regulated by, the EPA, the Auditor must contact the EPA to discuss the site before completing their audit.

What does this mean for you?

These changes signal a shift in the Auditor's role, and give Auditors a 'policing' obligation. Clients and their consultants will need to engage early and often with their Auditors to ensure there are no surprises and that the parties' expectations are aligned.

Site Audit Statements

The Draft Guidelines outline the following three forms of certification which an Auditor can provide.

If an Auditor certifies that ... then the Auditor declares that ...
a site is suitable for a specific use(s) subject to no conditions no further remediation or investigation or management of the site is needed to render the site fit for a particular use(s).
a site is suitable for a specific use(s) subject to an Environmental Management Plan there is sufficient information satisfying guidelines made or approved under the Contaminated Land Management Act 1997 (CLM Act) to determine that implementation of the environmental management plan is feasible and will enable the particular use(s) of the site without further investigation.
a site can be made suitable for a use(s) if remediated or managed in accordance with a specified plan there is sufficient information satisfying guidelines made or approved under the CLM Act to determine that implementation of the plan is feasible and will enable the particular use(s) of the site in the future.


What does this mean for you?

This new tripartite system signals a clear shift away from the current Section A and Section B Site Audit Statements. This will have implications for site audits currently underway, particularly where there is a contract for sale in place.

If your contract stipulates that a Section A or Section B Site Audit Statement must be obtained as a trigger to settlement, you may wish to consider approaching the stakeholders to discuss the impacts of these Draft Guidelines when they are implemented.

If you are negotiating a contract, the Site Audit Statement should be described in terms of outcome or result, and not by reference to whether it is a Section A or B Site Audit Statement, to remove any ambiguity.

Active and Passive Environmental Management Plans (EMPs)

The Draft Guidelines differentiate between passive and active systems to manage contamination under an EMP. Passive management systems require minimal management and maintenance (if any).

Active management systems may incorporate mechanical components or require ongoing operation, monitoring, maintenance and inspection. Active remediation systems are only to be considered where effective long-term management of the site is a feasible option.

Auditors are now required to include a statement in the Site Audit Statement noting whether any relevant EMP includes active or passive management systems.

What does this mean for you?

This change provides additional clarity about the nature and purpose of EMPs. It will also draw an incoming purchaser or occupier's attention to the type of ongoing management required on the site, especially if it is listed on the Section 149 certificate. This may have implications for property values, especially where there is an active EMP which may be regarded as a 'blight' on title given it is likely to include positive obligations.

We are grateful for the assistance provided by Sarah Hedberg, Law Graduate - Environment and Planning, in preparing this Insight.

Elizabeth Wild

Knowing the law is not enough – our value is in delivering our clients a commercial and practical solution.

Elizabeth Wild Partner

Liz is a member of the Board. She is a specialist in all areas of environmental law, with a particular focus on contamination and pollution. Liz is also the Head of our Property, Environment and Planning practice and recognised by her clients, peers and legal directories as a leader in her field.

Our clients call upon Liz to help them tackle environmental issues such as negotiating the sale and purchase of contaminated sites and obtaining planning and environmental approvals for the remediation and development of contaminated land. She also advises on environmental due diligence, licensing and compliance issues and pollution law, as well as drafting and implementing environmental management systems.

One of Liz's career highlights has been acting for Jeffman Pty Limited in an action it successfully brought against the NSW Environment Protection Authority in the first ever legal challenge under the Contaminated Land Management Act 1997 (NSW).

Liz acts for large manufacturing companies, government agencies, listed property trusts and property developers.  Her clients include Sydney Trains, RMS, Orora and the Department of Defence.

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Anneliese Korber

I believe in a collaborative and dynamic team achieving excellence for our clients.

Anneliese Korber Special Counsel

Anneliese specialises in environment and planning law and acts for a range of government authorities along with major corporations, developers and financial institutions. She has extensive transactional experience and is also an experienced litigator.

Anneliese specialises in environment and planning law acting for both a range of government authorities including Sydney Trains, RailCorp, Roads and Maritime Services and Transport for NSW and major corporations, developers and financial institutions.

Anneliese has extensive transactional experience, including advising on planning requirements for major projects and numerous other major developments under the Environmental Planning & Assessment Act 1979 (NSW). She also advises her clients on all aspects of contaminated land including purchase, disposal and ownership along with drafting remediation agreements, remediation contracts and negotiating with the EPA.

Anneliese is an experienced litigator, acting in or advising on all forms of environmental and planning disputes. She represents clients in the Land and Environment Court and Court of Appeal, covering matters relating to planning, compulsory acquisitions, licensing and enforcement issues, clean up and other notices, and various other matters under the Protection of the Environment Operations Act 1997 NSW.

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