Risk-Based Management of Historically Contaminated Land in NSW: An Analysis of the Regime Under the Contaminated Land Management Act 1997 (NSW)

Abstract

Risk based land management ('RBLM')is a relatively new policy domain within environmental policy and environmental management in highly industrialised countries. It seeks a 'better fit' between programmes for contaminated land management and other aspects of environmental regulation generally, whilst simultaneously advancing greater coherence and effectiveness within the sub-field of contaminated land management itself. RBLM aruges the overall efficacy of contaminated land management programmes being driven by well-structured programmes of risk-assessment, risk-based decision-making and risk-based corrective action, rather than by public alarm or media-driven panic as has generally obtained in the past. Theorists of RBLM argue that rigorous and socio-techically informed attention to issues of risk will ensure that scarce resources are used wisely (with land posing the most risk receiving the most attention) whilst solutions to contaminated land problems will also be made more sustainable given the well structured integration of technical, economic, social and legal points of view into the schemes of management that are subsequently approved. RBLM also seeks to consciously mobilise private entrepreneurship where it seeks to responsibly profit from rehabilitation of contaminated land. RBLM is under progressive implementation in Australia with NSW, Queensland, Victoria and Western Australia all having recently passed legislation to implement this approach to contaminated land management. This article provides a systematic discussion of the Contaminated Land Management Act 1997 (NSW), assessing the ways in which RBLM has been incorporated into the statute. The discussion proceeds against a background account of the historical origins of RBLM, its key conceptual elements, and the extent of the contaminated land problem in NSW.

Keywords: contaminated sites, contaminated land, environmental policy, lender liability, CERCLA, pollution control, remediation

JEL Classification: K32