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WA on the contamination trail
INDIVIDUALS AND companies in Western Australia will have to disclose sites they suspect are contaminated as of 1 June or risk substantial fines from the Department of Environment and…
Lawyers Weekly
INDIVIDUALS AND companies in Western Australia will have to disclose sites they suspect are contaminated as of 1 June or risk substantial fines from the Department of Environment and Conservation.
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These laws may refer to contamination which occurred as long as 20 years ago, and hold the owner, occupier and anyone who caused or contributed to the contamination separately liable if they fail to report, according to a Clayton Utz partner based in Perth.
Brad Wylynko, head of the firm’s WA environment and planning team, said the last environmental report issued by the government estimated there were 1500 contaminated sites in that state.
These include the more obvious activities associated with petrol stations and mine sites, but can extend to market gardens, drycleaners and tanneries. Some of these may be in operation now, or may not have been used for those purposes for two decades.
The penalties for failing to report are steep, too: a company may have to pay up to $1.25 million, whereas an individual may be liable for $250,000.
“The obligation is on an owner, an occupier and a person who may have caused or contributed to the pollution. And each of them has an obligation independently,” he said.
“So even if the owner has reported a site, because they know or suspect it is contaminated, whoever might have done that 15 years ago, for example, also has that obligation to report.”
According to Wylynko, though there are many guidelines in place, doubt remains over the definition of suspicion in the provisions.
“There is no further definition in the legislation, and it is unique in Australia, so we will have to wait to see what the court says,” Wylynko said.
“We don’t know just how quick the department is going to be to prosecute somebody who didn’t report a site on a mere suspicion.”
The legislation comes into force in 1 June this year, after a six-month grace period was put in place in December 2006.
As of June, individuals or companies that know that a site is contaminated have 21 days to report it. If this is just a suspicion, then it must be reported as soon as is reasonably practicable, Wylynko said.
“That’s where WA has cast the net much wider than in the eastern states. None of the eastern states has a requirement that you report merely suspected contaminated sites,” he said.
