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Contamination and Liability: What Councils Need to Know with Elizabeth Wild
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Elizabeth Wild has more than 30 years of experience in environmental law, with a particular focus on managing issues related to contaminated land and remediation law. She has worked with government clients, listed property trusts, property developers, and large manufacturing, transportation, energy, infrastructure and resources companies. Liz is recognized as a leading or pre-eminent practitioner in environmental law in all major directories, including Doyle's Guide, Chambers, The Legal 500 Asia Pacific, and Best Lawyers.
Liz advises on all legal and strategic aspects associated with contaminated land, including disputes regarding allocation of liability for contamination, obtaining planning and environmental approvals for the remediation and development of contaminated land, and transacting and negotiating the sale and purchase of contaminated sites. She has been involved in many of the landmark cases in this area and acts for polluters and claimants in numerous environmental disputes involving the torts of nuisance and negligence. She is recognized as an authority regarding legal liability for PFAS (per- and polyfluoroalkyl substances) contamination.
In this episode, Elizabeth shares practical legal insights into the key areas of risk and responsibility for councils involved in contaminated land management. She outlines how legal liability can arise for councils—even when they are not the polluter—and provides tips on how to reduce risk, particularly during development assessments and land transactions.
We also cover how to navigate the complexities of information disclosure, including when and how to share contamination information with potential buyers, developers, or the broader public. Liz highlights important real-world examples and discusses what councils should be sure to disclose during negotiations and approvals. She also explores the legal complexities of PFAS, including the question of when a duty of care arises and how liability is determined—particularly where knowledge of site contamination may not have been clear at the time.
Finally, Liz discusses the different considerations councils must make in the development assessment process to manage contaminated land risks in flood-affected areas and coastal erosion zones. Her insights offer a clear, grounded perspective on how councils can protect themselves while playing a proactive role in land remediation.
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Local Government NSW (LGNSW) hosts a free, online network for council staff on the topic of contaminated land. The network includes an online forum for collaboration, information sharing and announcements about contaminated land regulation, guidance and training opportunities. Monthly meetings are held on themes that were set by the network participants, with presentations from regulators, technical experts, and case studies by councils.
Since the contaminated land network commenced in December 2023, more than 50% of NSW councils have joined, with over 200 participants. Feedback shows that councils are benefitting greatly from the network meetings and discussion on the platform, and we are pleased to invite you to join us.
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Transcript
Introduction & Purpose
00:00:01
Speaker
Welcome to Contamination Station, safer environment together, a New South Wales EPA funded podcast. In these episodes, you'll hear from those working to implement contaminated land policies and procedures at the local level by sharing our stories, frustrations, wins and losses.
00:00:19
Speaker
Our aim is for this podcast to become a repository of information that will support those currently working to combat contaminated land and for those yet to come.
Expert Introduction: Elizabeth Wild
00:00:30
Speaker
In today's episode, I'm joined by Elizabeth Wild.
00:00:33
Speaker
Liz has more than 30 years of experience in environmental law, with particular focus on managing issues related to contaminated land and remediation law. She has worked with government clients, listed property trusts, property developers and large manufacturing, transportation, energy infrastructure and resource companies.
00:00:52
Speaker
Liz is recognised as a leading or preeminent practitioner in environmental law in all major directories including Doyle's Guide, Chambers, The Legal 500 Asia-Pacific and Best Lawyers.
00:01:04
Speaker
Liz advises on all legal and strategic aspects associated with contaminated land, including disputes regarding allocation of liability for contamination, obtaining planning and environmental approvals for the remediation and development of contaminated land, and transacting and negotiating the sale and purchase of contaminated sites.
Disclaimer on Views
00:01:23
Speaker
She's been involved in many of the landmark cases in this area and acts for polluters and claimants in numerous environmental disputes involving the torts of nuisance and negligence. She's recognised as an authority regarding legal liability for PFAS contamination.
00:01:38
Speaker
The views and opinions expressed in this podcast are solely those of the host and the guest as individuals and do not necessarily reflect those of the New South Wales EPA or any other organisation.
Key Legislation Overview
00:01:51
Speaker
Hello and welcome to this episode of Contamination Station, an EPA funded podcast. I'm your host, Chanel Gleeson-Willie, and our guest today is Liz Wild. Hi, Liz. Nice to have you.
00:02:03
Speaker
Chanel. Hi. Thank you. say So just to jump straight in with it, I'd like to acknowledge that the fact that there was a lot of legalese and references in our introduction for today's podcast.
00:02:14
Speaker
So to untangle that rain overload somewhat for our listeners, can you explain which other pieces of legislation we'll be referring to today and briefly which sections are utilised in remediation of contaminated sites?
00:02:28
Speaker
ah Yeah, I mean, we're we're lucky in New South Wales that there is a separate standalone act to govern and regulate contaminated land. So in a lot of other jurisdictions, they have it combined within their planning legislation.
00:02:39
Speaker
But in New South Wales, we have the Contaminated Land Management Act, which came in into force in, well, it's actually 1997, but it commenced operation in 1999 and has remained pretty fit for purpose
Landmark Legal Cases Discussion
00:02:52
Speaker
throughout that time. There's been there been a range of amendments that to tighten up some of the provisions, but it's largely remained as it was when it was introduced. so There is some overlap between that and the what we call the POEO Act, which is the Protection of the Environment Operations Act.
00:03:07
Speaker
That's the main piece of legislation that governs pollution incidents, and there is obviously some overlap between pollution and contamination. And there's also the planning legislation, which is particularly relevant when we're talking to the audience, some local councils, because they have that frontline role, obviously consenting to development um proposals.
00:03:26
Speaker
And so obviously the interaction between the planning regime and how contamination features within that is important to understand. So it's those, of the POEO Act, the Contaminated Land Management Act, the Environmental Planning and Assessment Act, and then a range of instruments under that legislation, including what was called CEP 55, which was remediation of contaminated land, but it's now, those sections are now in the CEP that's called the Resilience and Hazards CEP.
00:03:52
Speaker
Thank you. That will make things a lot clearer as we go through, I believe. I also mentioned that you've been involved in many landmark cases in the area of contaminated land management. Which cases specifically, and can you share a case study possibly?
00:04:07
Speaker
Yeah, I mean, there haven't really been that many cases in this area. It's still, I guess, still, even though that Act has been, in the Contaminated Land Management Act been in place for some time, the law is still developing and we're not quite as litigious as the US, although we are seeing now the the rise of the class action, the contaminated land class action in Australia, and that's going to be really interesting to follow. But the first case that I was involved in, which is really, I think probably one of the first main cases in this area was called Charbon Haulage against EES and Caltex. And that was, gosh, that was a few years ago now. it it can I'll talk about that in a moment, but it came off the back of, I think, the
00:04:47
Speaker
Local council audience here will probably be familiar with the Alec Finlayson case, which was that really the first litigation in this in this space where council found itself at the receiving end of an action based on plan and consent they gave to a site that turned out to be contaminated.
00:05:03
Speaker
So that was like the granddaddy of all these cases. And then that led to some legislation being introduced to protect councils to an extent. I won't go back over that, over the mists of time, but the first case I was involved in was this Chubb and
Remediation Practices Explored
00:05:16
Speaker
Horlidge case. And that dealt with my client had purchased a site that had previously been a contaminant and so previously been a service station and settlement was to occur when the vendor produced a report saying that the site was suitable for the proposed use, which was actually originally going to be residential use, but then changed to commercial use.
00:05:36
Speaker
And when my client got on site, there were a bunch of workers who were actually taken to hospital because the fumes on the site when they started excavating were fairly significant. And so we brought an action against the vendor and the consultant on the basis that the report alleged that the site was safe and had been remediated. In fact, it wasn't. So that case involved negligence, misleading and deceptive conduct and ah and a contractual action as well. And we my client was successful at first instance, but unfortunately it was overturned on on appeal for a range of a range of reasons, which I don't think would probably, if that case was being heard today, I'm not sure that that result would have would still stand. I think at the time that was heard, there was not a lot of knowledge about contamination and
00:06:21
Speaker
when we were on appeal in the Court of Appeal, sorry, no, it was the full federal court because because it's misleading and deceptive conduct without getting too legalistic. That's a federal piece of legislation.
00:06:32
Speaker
And I think there was some challenges with, I guess, communicating contaminated land, contaminating groundwater back in the early days. So and maybe it's just me which thinking that we'd get a different result today, but I think we probably would.
00:06:45
Speaker
A couple of other cases I've run similar facts situations. And then just to raise one that's it's a different situation, it was Jeffman and the EPA. And in that case, my client was remediating a site and they wanted to remediate in a particular way. They wanted to use a form of remediation called EISB, which is quite a sustainable form of remediation where you put it in layman's terms, introduce bugs onto the site and they eat the contamination. That's my very layman's way of of explaining it.
00:07:13
Speaker
And that case involved the adjoining owner thought that that wasn't quick enough. They wanted us to do something that was more of a hit it hard and hit it quickly with a thermal approach. And we went to court to try and, you know, to fight for the right to do the remediation we wanted to do and the court the court upheld that and allowed my client to do yeah EISB.
00:07:36
Speaker
And he, Judge Preston, Brian Preston, who's the chief judge of the Land and Environment Court, he basically said that the person funding the remediation has the right to determine how it's to be done unless it was, he he the person was proposing something very unreasonable or that would take, you know,
00:07:51
Speaker
a million years to finish. So that was quite an interesting case because it did stand for that principle that you do get the right to, unless there's a really good reason not to, that the the proponent does have the right to choose the remediation methodology that they're going to use.
00:08:05
Speaker
So that's just a couple.
Councils' Roles and Challenges
00:08:06
Speaker
As I said, class actions is where things are heading in this space and that's very much in the PFAS space. Class actions are foot against the manufacturers of PFAS chemicals, but that's for another podcast probably.
00:08:19
Speaker
A long one to answer. ah Councils are often at the front line of managing contaminated land, whether that's through planning approvals, land ownership themselves or enforcement roles.
00:08:30
Speaker
But the legal framework can be very complex and high stakes. From your perspective, what are the key legal issues councils should be aware of when dealing with contaminated land? You're right, Jeannol, it is a complex area because councillors do wear so many hats and and they they play a number of roles in this space.
00:08:49
Speaker
So the first one you have them as consent authority when they're assessing development applications and they need to consider the SEP that I mentioned earlier, that resilience and hazard SEP, and they need to take into account when they're carrying out any of their planning functions They need to consider whether the site's contaminated when they determine whether or not to give consent.
00:09:09
Speaker
And so there's a level of, as I guess, awareness that needs to be needs to exist within the council of when to spot potential for contamination because It's not every development application that you'd ever require somebody to go off and get a stage one or stage two which preliminary site assessment or or detailed site assessment for contamination.
00:09:30
Speaker
So your average residential development application, you you probably won't be doing that. But obviously so when you're talking about commercial or industrial land, councils will need to consider whether contamination is an issue.
00:09:41
Speaker
So understanding the triggers for that and what level of ah information, how comprehensive information needs to be is something councils need to look at. And if there's not somebody within the council that has that ability to has the expertise to determine that, then obviously an environmental consultant or some other expert could assist in that regard.
00:10:00
Speaker
And then there's that extra layer, okay, you need you might need an environmental assessment report. Do you need to have a side order to audit that report? So there's that level, there's it in that role as consent authority, it's determining when you need information and what level of information you need and whether you need that independent review by a side order. So that's one issue that councils have to grapple with.
00:10:22
Speaker
I guess the other role they play as a holder of a whole lot of information, when somebody wants to buy a site, for example, they'll apply for a planning certificate, what used to be called the old Section 149 certificate, now a 10.7 certificate.
00:10:38
Speaker
And that happens routinely. There's a certain level information that has to be attached on those certificates. When you put a contract for sale together, you've got it we've got to include the basic planning certificate.
00:10:48
Speaker
You can include the slightly more detailed one, which is that there's a 10.72 and a 10.75. And so councils, I think it's a challenge for them how much information to include on those planning certificates.
00:11:00
Speaker
So there is a requirement that if site's affected by contamination, the council is required to disclose any information they have in that regard. But there's a very wide, I guess, variation between councils and the level of information they provide. Some councils provide a whole lot of information, others don't provide any information and there's a whole range in between.
00:11:22
Speaker
And the challenge is... how much to disclose and what to disclose. there have been a couple of cases there where councils have been challenged for failing to disclose reports on contamination that they had within their within their knowledge.
00:11:38
Speaker
And somebody you know said that they went ahead and bought a site on the basis of thinking, well, council didn't tell me that, sorry, everything must be okay. And there was an action brought in that regard. So councils need to know, and again, there's no there's no easy answer to this and it often is,
00:11:53
Speaker
depends on what information council has and it depends on whether we're talking about an industrial site or whether we're talking about a residential site and you've got to balance that again against a landowner's interest so I know have been there are landowners that feel that you know if council's disclosing information that oh there's a possibility this site could be contaminated that will affect That could cause a purchaser to withdraw from a contract, could cause an issue with the value of the property.
00:12:22
Speaker
And so how much is too much and how much certainty does council have to have about the the information? Is it just we think there could be an issue or is it we have actual knowledge of an
PFAS Contamination Concerns
00:12:32
Speaker
issue?
00:12:32
Speaker
That should lead to them disclosing that information on the planning certificate and And then how you keep that information up to date. so You might have some information about something, but then that site might have been remediated.
00:12:43
Speaker
And so you're saying, well, this site could be contaminated, but things have moved on. The site, yes, might have been contaminated, but is now being cleaned up. So once you've got that information within council, keeping it updated and who keeps it updated and how accurate is it?
00:12:58
Speaker
These are whole all a range of issues that could expose councils to liability. So that that's a very tricky area and I don't think it's something I can answer conclusively during this podcast, but something for councils to be aware of.
00:13:11
Speaker
And then obviously when they're landowners, that throws them into a different category altogether. And when they're looking to divest land or acquire land, you know, it it raises a whole whole range of different issues that would affect anybody divesting or acquiring contaminated land. But councils certainly have that hat.
00:13:28
Speaker
to look at as well. So on that, are there any recent trends or cases that you can expand on more that you've seen that are shaping how councils approach contaminated land from a legal standpoint?
00:13:41
Speaker
I think that this issue about how much information councils do and should disclose is the hot topic at the moment and everyone is grappling with that. There was a paper put out by the EPA, I think probably two or three years ago now, maybe a bit longer,
00:13:57
Speaker
where the EPA undertook a review of information provided by councils on their planning certificates and it found a very, very broad range of different responses within each council. And I think that led to the EPA wanting to provide some assistance and funding to councils to help them get on top of this issue and perhaps try and bring some consistency or uniformity to that to that issue because those councils who've who've had to deal with contaminated land over a period of time, and that's often some of the metropolitan Sydney councils who've got industrial, you know, large industrial areas within their municipalities, are more, I guess, used to dealing with these issues and they've often brought on board experts in this area to help them guide that. But you've got other councils who haven't had the same kind of land uses and so i haven't had the opportunity to
00:14:51
Speaker
develop in-house expertise in this in this space. So I think councils are aware though, even if they're, everyone's going to have to deal with this at some point.
Liability in Property Transactions
00:14:59
Speaker
We touched very briefly on PFAS. I think PFAS is one of those issues, which even if you haven't got a history of industrial activities within your municipality, you'll often find PFAS in those perhaps some regional areas where you don't have other industrial activities because there's been maybe airport, regional airport, there's been some defence activities, there's been fires, bushfires where yeah know PFAS has been used to put you know in the in fire suppression or you've got yeah just fires that have occurred on properties where PFAS is now an issue and that how to grapple with that, and how do councils appropriately with the expertise they need to know when to when to request a PFAS investigation when they're assessing development applications, that's
00:15:44
Speaker
That's definitely going to be an issue that's on the rise. We've had the issues with the so-called mulch gate, asbestos in fill. That's affected a lot of properties and councils need to be equipped to to know you know how to deal with that.
00:15:57
Speaker
So it's not going to get, I guess the trend is it's not going to go away. It's only going to get more, become more of an issue for councils to deal with. Councils, are one thing I didn't mention before, councils also have a ah role as the appropriate regulatory authority.
00:16:11
Speaker
to enforce pollution legislation when the EPA, the EPA regulates sites that have environment protection licences, but the council is the is the regulator for pollution issues when you're dealing with non-licensed sites. So councils have to grapple with those powers as well, which again is ah is and another hat they wear.
00:16:31
Speaker
And that's not going away. That's definitely not going away either. No, if anything, it's probably a role that's increasing for councils, particularly regional councils. so Yeah. so how does liability for contamination typically get allocated in property transactions or development projects involving contaminated sites?
00:16:53
Speaker
That's a the very broad it broad question to be the broad answer and and very much depends on who the parties are and who the lawyers are, we'd have to say. And, you know, whenever I get involved in one of these projects,
00:17:03
Speaker
In a matter for a client who might be the vendor or the vendor purchaser or developer, my first question is what are they trying to achieve and what is the risk appetite of the client and what what market are we talking about?
00:17:18
Speaker
How much is it? It's a question of supply and demand. Is it a buyer's market? Is it a seller's market? And that'll determine how far you can go with seeking environmental warranties and indemnities. But a lot of what I do is negotiating those sorts of ah issues. And obviously, the vendor wants to pass on all the liability.
00:17:35
Speaker
The purchaser wants to take on none of the liability. So you're starting with fairly divided positions, but you know you're going to have to meet in the middle. And so The tricky issue is dealing with legacy contamination, past contamination, where you may not know exactly how impacted the site is.
00:17:52
Speaker
The days of sort of, I guess, ah just buying as is where is are very much a thing of the past. No purchaser is going to take that risk or if they do, they're going to hugely discount the price. And so...
00:18:07
Speaker
you end up, it's not in the vendor's interest to do that. And I always say to vendors, disclose, disclose, disclose. I mean the more you disclose, the better the position you're going to be in going forward because many vendors want to be able to, once the sale goes through, they want to know that this isn't going to come back and bite them in the future. So if you disclose everything and then and then the negotiation, instead of instead of spending all your time negotiating the warranties and indemnities,
00:18:32
Speaker
You actually, you know what you're dealing with, you know what contamination is there and and you spend the time working out who's going to clean up what. and you know And the days of also fully remediating a sign and selling it are probably also few and far between now because it's not a very sustainable way to deal with these sites because if you are bringing back, if you're doing a sort of scorched earth policy and fully remediating a site and then you have a developer that comes in and they've got to excavate to put in basement car parking or whatever it might be, they're going to undo everything you've done and be taking good stuff off site, disposing of clean fill and we really need to be...
00:19:10
Speaker
one of the trends and I think rightly so is towards sustainable remediation and there's no point yeah doing the job twice and taking stuff off site twice when you can when you work in with a purchaser and you know what they want to do with the site you can save money but you can also make sure you're not duplicating the effort and you're doing if you can build in the remediation with the redevelopment that is obviously ideal doesn't always work out that way but If you can do that, if you know when you go to market, you know what what the purchase is likely to use the site for, you can ensure you're not over-remediating.
00:19:46
Speaker
I don't think any vendor should go to market without any information and leave it all up to the the purchaser to do the due diligence and find out what's there because that will obviously delay things. It will also mean that...
00:19:58
Speaker
a discount, more of a discount than you need to take on the on the site because purchasers are going to factor in that, the unknowns. And and and when they go digging, they're find stuff. Better if the vendor has done a comprehensive investigation and can present that to the purchaser and use that as ah as a starting point. But it really depends on the site and it depends on the nature of the purchaser and the vendor as to who's going to be liable for what.
00:20:21
Speaker
And with these in these days, it's also rare, certainly rare on the sites I work on, that the site, there's not going to be any residual contamination left there. in In many cases, it makes sense to leave it there and you've got to have an environmental management plan that records the record ah contamination that is remaining on site and perhaps has some restrictions on what you can and can't do there.
00:20:41
Speaker
And then negotiating that and who's going to be responsible if something goes wrong with that going forward. there's a lot of There's a lot of moving parts and and each transaction is different. Yeah.
00:20:52
Speaker
And if it was council, for instance, who was purchasing or divesting land with a history of contamination, would you say there's any, I guess, more complexity or other things that you might say about how they should do this?
00:21:07
Speaker
whenever you're using someone else's money, ratepayers' money, you've got to, think, an extra, there's an extra obligation there to make sure you don't you know inadvertently step into a disaster. In many cases, councils will knowingly take you on contaminated sites because it needs to be cleaned up and and council is really the only appropriate party to do that.
00:21:26
Speaker
But there's just no no substitute for knowledge, for informed decision-making. So, yes, it might be true that you're taking on a contaminated site, but as long as you know you're doing that, and you have the right team advising you, you absolutely would need an environmental consultant, probably a side auditor as well to really give you a comprehensive picture of what you're dealing with. And you might, that will lead to and be able to negotiate if it's a significantly impacted site, negotiating probably a better purchase price. You're using less rate payers money off front but with the knowledge that you're going to have to do some remediation.
00:21:59
Speaker
And you've got to have a very clear idea about why you're applying it and what you're going to do with that site. Is it going to be suitable if you're buying a site because you want to then use it for recreational playing fields or something? Is it going to be suitable for that use?
00:22:13
Speaker
Is there a way you can manage the contamination so you don't have to dig it all up and take it off site? Can you reuse some of the material elsewhere on the site? to build up levels or you you need to have you need to have knowledge about what you're dealing with in terms of the levels of contamination, what your end use is going to be and to what extent you can use what's already on the site to get your final land form or final land use so you're not spending...
00:22:40
Speaker
ridiculous amounts of money bringing in clean fill or disposing or fill that might otherwise be suitable for reuse. But knowing what your end use is, not just land banking and buying a site just for a rainy day, you've really got to know what the end use is going to be because that's going to inform how much you pay for it and and and what sort of you know advice you need from experts you know at the beginning of the process.
Litigation Trends in Contamination
00:23:01
Speaker
Selling a site, similarly, I think disclose everything that you possibly can. You don't want to be fighting an action later down the track because council, I mean, I think you've got that particular as a public authority and a very substantial obligation and responsibility to be selling, ah disclosing everything that might be impacting a site. So don't just rely on the purchaser to take the appropriate inquiries.
00:23:25
Speaker
Council should be knowing what they're transacting and and disclosing that to avoid costly litigation further down the track, but also just as a corporate citizen ah public authority, that duty of disclosure i think is is is definitely a higher duty that council has than just your average private citizen.
00:23:41
Speaker
Knowing what the past activities were, knowing what the history was, is vital to any assessment about what you're dealing with on a site. Yeah, definitely can't make any informed decisions if you don't have the full history.
00:23:52
Speaker
How often these days do you see disputes arise over liability between councils, developers or other third parties? And is that something that you think will be increasing or decreasing in the future?
00:24:04
Speaker
Well, I probably wouldn't have a job if it didn't exist and if it wasn't increasing. I i see it as getting, it's not going away. I think we are becoming, sadly, or it depends what your viewpoint is, we are becoming more litigious.
00:24:17
Speaker
But at the same time, we are becoming more educated about what the issues posed by contamination are. So as I said before, it would be a rare purchaser that would go in with their eyes closed and not be asking about contamination on a site. As I said, some residential sites, obviously.
00:24:34
Speaker
Obviously, you're not going to be doing yeah know you're not going to be getting site audit statements and that sort of thing. But any commercial industrial site, you'd be wanting to at least ask, but get a preliminary site investigation.
00:24:47
Speaker
There's some really good tools now that... give you that preliminary, I guess, assessment without having to go and dig holes on a site and and do invasive, intrusive investigations.
00:24:58
Speaker
You can do it get a preliminary site investigation done by a consultant. But even before that, there are organisations, think you might have spoken on this podcast to somebody from LotSearch previously, who provides that that sort of desktop review, but it's a very useful tool because it doesn't, what it does that is very helpful is it doesn't just look at the site that you're purchasing. You you get a snapshot of the area, of the of the surrounding sites because the thing about contamination that that can be incredibly lead to litigation and and to costly remediation is is when the contamination is in the groundwater and ah or surface water and moves off site.
00:25:35
Speaker
And so you really need to know what's not just what on is on the site you're transacting but what's on surrounding sites and so in terms of disputes I guess if if you had to say what's the ripest area for disputes it's adjoining owners bringing actions against sites you know that they're adjacent to where contamination might have moved from that original site and moved in the groundwater under adjoining sites and keeps going to it finds you know to find an end point so you can have a whole lot of properties impacted so
00:26:05
Speaker
The third party liability is definitely the biggest exposure, bigger than any kind of prosecution action that could be taken for you know contamination. That's not going to go away. And it's sometimes, i mean, sometimes these things are obvious. Sometimes they're not, um again, talking about PFAS.
00:26:21
Speaker
You know, that is not, that's only so something no one would have asked about even five years ago. But now that's becoming a part of every due diligence investigation and can impact residential properties more so than I guess other, you know, yeah's it's it's generally obvious when an industrial activity is taking place on a site or nearby, but where PFAS impacts are not always as obvious. So that's added a new layer of complexity, I think.
00:26:47
Speaker
Yeah, and we've mentioned PFAS a few times now, so we'll jump into talking a bit more about that now. It is a growing concern for many councillors, ah as you've stated. What are some of the key legal considerations when dealing with PFAS impacted sites? Mm-hmm.
00:27:02
Speaker
Yeah, I mean, the the the most basic one is finding out whether is how how you know which sites might be impacted by it. I guess the most comprehensive document, regulatory document we've got is a document called the PFAS NEMP, which is the PFAS National Environmental Management Plan. And version three was just released about three weeks ago, I think.
00:27:23
Speaker
That's ah a joint effort of all a body called HEPA, which is the heads of EPA. So the heads of EPA in Australia plus New Zealand got together and produced this document, which is great because it's it's a group effort and we we suffer in Australia from some of the many benefits of a federal system but also some disadvantages when you're talking about area-like environment, you've got different different regulation, a different legislation in every state and and often some fairly significant inconsistencies.
00:27:52
Speaker
But I think the EPAs in in the various states and territories took the opportunity to try and come up with a ah consistent approach that led to the PFAS NEMP 3.0 we're on now.
00:28:03
Speaker
That provides a really useful list of I think it might be in one of the appendices of activities that could have led to PFAS impacts. So when back in the day when the contaminated land legislation first came out, there was some guidelines on ah contaminated managing contaminated land guidelines for councils that came out at the same time.
00:28:22
Speaker
And that had a helpful table, I think it's called Table A, that listed activities that could be associated with contamination. And then that still holds true. there' It's still a very useful list for councils to look at as a starting point.
00:28:34
Speaker
But similar to that list, the PFAS NEMP has a list of activities that could be associated with PFAS contamination, which is a very good starting point for councils. And many of the EPAs, and certainly our EPA here, has started ah an investigation program and they've started with a range of sites where PFAS is likely to exist, so airports,
00:28:57
Speaker
defence bases and a few other select sites where they think PFAS impacts are likely to be present. so the EPA is doing that at the same time against the backdrop and of ah of the NEMP and the other initiatives contained in the NEMP.
00:29:11
Speaker
But it's knowing which sites it makes sense for councils in their consent authority role to require investigation in relation to PFAS. And one one thing that but it will be helpful for councils is The side auditor guidelines in New South Wales now make it mandatory for side auditors to, when they're doing an audit, to require the consultant to tell, to comment in the in the report that they're auditing to confirm that they have looked for PFAS or they have considered, not looked, or necessarily they've considered PFAS.
00:29:46
Speaker
So in any situation where the council is getting a side audit statement as part of the its role as Consent Authority, they can rest assured that the side auditor will have at least made the inquiry with the consultant about whether PFAS is an issue.
Managing PFAS Risks
00:30:00
Speaker
So if the report's not audited, then not it won't be obligatory for a consultant not to look for PFAS, but it would be rare now for consultants to not at least ask the question, is there a PFAS impact here? So councils will be getting better information and information that that does deal with PFAS going forward.
00:30:20
Speaker
But I think it really is something that council should be asking for it when they're exercising their responsibilities under the resilience and hazard set to consider contamination when exercising their planning functions. I think they do need to ask.
00:30:32
Speaker
They do need to at least inquire about the potential for PFAS to exist.
00:30:38
Speaker
And I guess this brings me to the next point about litigation around PFAS. And I assume that it's there probably hasn't been very much of it. But currently, how is liability for PFAS contamination being treated under Australian law?
00:30:53
Speaker
I mean, PFAS contamination is just another form of contamination. So actions that will be brought will be the usual, you know, the misleading and subject conduct in in the context of ah of a sale. It will be the torts of negligence and nuisance allowing contamination to move.
00:31:08
Speaker
from your site to an adjoining owner's site which which is generally leads to a nuisance and negligence action. But what's interesting with PFAS, the question that always arises in those cases is, is there a duty of care and has that duty of care been breached?
00:31:21
Speaker
And when you're looking at a duty of care, you're looking at what someone really ought to have known, the level of knowledge, from which date somebody ought to have been aware that PFAS was an issue on their site and that's still an open question. In a range of the class the class actions that have been settled, the the Army defence-based cases, there was an agreed date from which the level of knowledge was deemed to have have accrued. But we're not just talking now about PFAS impacts from firefighting foam, which those cases involve. We're talking about PFAS contamination now from so many different sources.
00:31:57
Speaker
And so many, when you've got a lot of different sources, there'll be different levels of knowledge and awareness and when people first became aware. So there's going to be a whole lot of issues that arise there. Class actions is the growing area in this in this case and in this area. And what what's interesting with PFAS is in the US, the action has all been against the manufacturers of PFAS.
00:32:19
Speaker
So 3M and DuPont and range of other manufacturers of PFAS. In Australia, it's been against users of PFAS, so airports and defence. And it hasn't to this point been about product liability as it has been in the US.
00:32:35
Speaker
But we know that a class action has been filed in Australia against threen And so we're we're now on that trajectory. We're now on the product liability path following the US. So how broadly that will go, it remains to be seen. We have a different, I guess, legal system here in terms of When you're seeking damages in these cases in the US, obviously you have contingency fees where the lawyers get to keep third of the verdict and so you get massive claims, massive class actions.
00:33:07
Speaker
Contingency fees are only allowed in Victoria, in Australia. Here, but that they're not you can't charge contingency fees in New South Wales. But we have a range of litigation funding companies that are coming or are here already who can charge those sorts of, do those sorts of payment regimes.
00:33:23
Speaker
So they are actively looking for classes and looking for defendants. So I think we're going to see more and more of that class action activity and then just a continuation of the usual contamination disputes because, as I said, PFAS is just another contaminant but it behaves differently and and is probably more widespread than the one we're used to dealing with.
00:33:45
Speaker
m So are there any recent legal precedents that councils should be aware of when managing PFAS risk? Probably too early to really say where the trends are. I think, I mean, I think it's very much council's, I guess, biggest touch point at the moment will be how much information to ask for when they're assessing development application, but also how much information to provide to to people seeking, you know, the planning certificates.
00:34:11
Speaker
what do they say? Do they now say all sites, they're required to say all sites that are near ah defence base, all sites that are near an airport, all sites that have been impacted by bushfires are now PFAS risk sites and do they have to disclose that or should they disclose that in a 10.7 certificate?
00:34:28
Speaker
Again, they they they're issues that are very I guess controversial but also require council to have a high degree of of of information to be able to provide that and to provide it consistently or do they just say we only provide where we've got the actual knowledge and so there are a range of issues that councils are going to have to consider and likewise in their role when they're actually a landowner or they're buying or selling land you know they're going to need to be asking questions about PFAS in their due diligence
Remediation Project Management
00:34:58
Speaker
activities. And it's not just, you know, was this site a known user of PFAS, but it could be, was there a fire yeah on this site where PFAS could have been used? So it's a full range of issues that you'd face with any other contaminant, but with a few little extra nuances because of the, I guess, ubiquitous nature of PFAS.
00:35:18
Speaker
When councils are involved in contaminated land remediation, what should they be mindful of from a legal and contractual perspective? I think in any contract that councils enter into, you've got to get scope right. And when you're talking about remediation, that is a ripe area for sort of scope creep.
00:35:37
Speaker
And you need to be very clear why you're remediating and for what purpose, you know, as I mentioned earlier, what's your end use going to be for this site? Because as you as you would know,
00:35:50
Speaker
There are different standards depending on what your end use is going to be. So a residential use is going to have a lower tolerance for contamination than commercial industrial use. And then there are different levels again for open space, public recreation. So councils need to get very clear what they are expecting to do with the land um so they're not paying over the odds for a, as I said earlier, a scorched earth kind of remediation where it doesn't need to be that sort of approach They also need to get very clear on how the how the contractor is going to charge for the work.
00:36:24
Speaker
And very important issue, the waste disposal or materials disposal provisions is if there's a lump sum, I've seen contracts where there's a lump sum price put in to dispose of waste and that can encourage cutting corners.
00:36:41
Speaker
I guess, and and and not and leaving leaving material site that really needs to go off site. But likewise, if you do it by a per ton waste disposal price, that can encourage overremediation. So you need to get very clear how that process is going to work.
00:36:55
Speaker
And I mentioned earlier, there are there are many ways to reuse material on site. Some material has to go off, like asbestos and other things, but there is a tolerance I mentioned a NEP before, there's a document called the NEPM, National Environmental Practice Measure on contamination Assessing Contaminated Sites.
00:37:13
Speaker
And that has levels, allowable levels for different contaminants depending on what the end use of the site is. And so not everything has to go off and some material can be reused safely on a site. So making sure there's and there's some clarity that you are you you want to encourage reuse where it's appropriate, but definitely not reusing certain materials that really need to go off site.
00:37:34
Speaker
I would say getting most councils would be well advised to have a side auditor involved in the process so you're not just relying on the consultant who might be supervising the remediation process but you're going to get that independent third party, you know,
00:37:49
Speaker
ah confirmation at the end of the process that the site is suitable for the proposed use. And that will give council comfort from, I think, a liability perspective going forward if these if it turns out the site wasn't appropriate or appropriately remediated, you've got some recourse to the auditor and you can satisfy lay payers that you've done with the remediation you save.
00:38:10
Speaker
And if you're going to get a side audit and get them involved really early, I've seen a lot of sites where the c side auditor is brought in at the very end of the process to to provide a side audit statement and the side auditor is not happy with the methodology that's being used and you end up having to sort of undo and redo some of the remediation. So getting the team right up front, getting a good a good environmental consultant who can who will generally, but they they're the ones who will be engaging the remediation contractor and that contractor will be working to the plan, the remediation action plan that the consultants come up with and getting that auditor involved to make sure they're happy with the proposed methodology.
00:38:48
Speaker
They also have to be satisfied, this is a matter I did for a local council actually, They need to be satisfied that any material that's brought onto the site has been appropriately certified as clean fuel for that site and they need to be satisfied that everything's been disposed off to an appropriate facility.
00:39:06
Speaker
If you bring them in at the last minute and those records haven't been kept properly, you might have to undo a lot of work that's already happened and that happened to a council, Sydney council where there were well in fact there were fraudulent records that there'd been some counterfeiting of waste disposal certificates and that caused an enormous mess so certainly many things to look out for when you're when you're engaging somebody to do these sorts of projects yeah because i guess the the costs then can increase significantly if you're having to do a lot of rework or you know undo things that have already been done and
00:39:43
Speaker
What other pitfalls do you often see when councils engage contractors or consultants for remediation projects? accepting the terms and conditions as is and not trying to negotiate them.
00:39:54
Speaker
There's a lot of stuff in those contracts and I've drafted many of them and and myself and and so I know what goes, i know what's in some of them that I, if I was acting for the person engaging in the contractor, I would negotiate.
00:40:07
Speaker
I would try and negotiate a different. And a classic one you see is if there is negligence on the part of the consultant or contractor, your rights are limited to a resupply of the services or to the cost your liability is capped at the cost that was paid for the job.
00:40:26
Speaker
Now, as you would know, but liabilities that can ensue from ah site that's not related properly and and you've left some contamination there or you've caused an environmental incident, they can be way, way more than the cost of the resupply of the work, so the cost of the job.
00:40:42
Speaker
And there's no real connection with the damage you can suffer. from a botched job or incident that occurs during the job to that there's no causal link. There's no connection between what do you pay for the job and what the consequences of ah ah of ah of a breach can be.
00:40:57
Speaker
And therefore, I would always be arguing that that clause should be set aside and that it should be there should be a either well obviously you want unlimited but if you can't get that there should be something there should be a a figure that's far in excess of the resupply cost of resupply of the services and that what what's a reasonable amount will very much depend on the nature of the job and the site that you're working on it certainly look at those terms and conditions and don't just accept them as he is and the consultant say these are our you know, boilerplate conditions, they can't be negotiated.
00:41:29
Speaker
Of course they can be. It's a contract. and Anything can be negotiated and you need to make sure that they match. they match Sometimes i've seen I've seen consultants who just attach their standard terms and conditions for every job and in some cases it's entirely inappropriate.
00:41:43
Speaker
And so you need to make sure that they fit the purpose and they reflect the the nature of the work that's being done. You want to make sure they've got appropriate insurance in place as well, public liability and and professional indemnity insurance and you want it you want to check that.
00:41:58
Speaker
um And that the scope the skype is appropriate for the job that you've asked them to do. There's a lot of a lot of these contracts also say that they're only, if they're providing a report, and mean not so much for a mediation job, but if you they're buy providing a report on assessing a site, they'll say it's only directed towards the person that pays. Only council can rely on it and nobody else. And that's just not appropriate.
00:42:23
Speaker
for a range of reasons and that can be negotiated as well. So always read them. Don't just accept that, oh, well, they're standard, they're going to be fine because they often won't be and they often won't be appropriate and they'll often mean that there's a big gap.
00:42:35
Speaker
There'll be a big live exposure there for council if things do go wrong. Is responsibilities, i guess it's another area where councils really need to be mindful of what's in those contracts. So how important is it for councils to clearly define the responsibilities in remediation contracts?
00:42:54
Speaker
A remediation contract is often not just one contract. There's often a range of contracts because you're going to often have, you're going to have all council there generally as the principal contractor. Then, well, it depends how it works. you could It might be that that all all the there's actually no direct contractual relationship between council and the remediation contractor. Council might contract with an environmental consultant and then that consultant will then have a contractual relationship with the remediation contractor and there's no relationship between council and the remediation contractor. And so if there's any breach, council will have to go via the environmental consultant.
00:43:30
Speaker
That might be something council wants. And in many cases, I can see why they might want to do that because the consultant might have a, it might be a much bigger outfit and might have much greater insurance, much higher insurance levels and council doesn't want to go chasing after the remediation contract. I mean, there are some very big contractors out there.
00:43:49
Speaker
but it might make sense for councillor to just have one one body that they deal with, one organisation, and then rely on that consultant for their expertise to direct the remediation contractor. Because i don't think many councillors are in a position to direct a remediation contractor on how to remediate a site.
00:44:08
Speaker
It's the environmental consultant that has that expertise. And so really, in my view, the counsellor should engage. but Again, and it might not make sense in every case, but I would advise counsellors generally to engage, to have a contractual relationship with the consultant and rely on them to have those other subcontracts sitting under their control rather than council having that direct relationship.
Climate Change & Contamination
00:44:33
Speaker
Thank That's, I guess, given us some great information around remediation. And it's an area that that I guess there's just so many things, so many possibilities of how it can be done well and how it can not be done well. So it's really good to hear your advice around that.
00:44:51
Speaker
I'd like to jump now into a topic that I find fascinating, which is climate change and how contamination and climate change are starting to interact, especially in the the legal field.
00:45:05
Speaker
So my first question is, with climate change increasing risks like flood-induced contamination or legacy landfill exposure, Are there evolving legal issues councils need to prepare for?
00:45:17
Speaker
And do you foresee regulatory frameworks changing to account for climate-related contamination risks? I mean, this is a huge issue and it's an emerging issue and ALGA, the peak industry body for contaminated land and mediation,
00:45:31
Speaker
Australasian Land and Groundwater Association, they're aware of this and they held a couple of seminars on this because everybody sees in a climate in in a climate or climate change, we're we this is only going to become a bigger issue because we're obviously seeing much more severe natural, well, how natural are they? But we say hello we're seeing much more climate-induced disasters, more frequent and more severe disasters What that means is as soon as you have, it particularly ah take a flood, for example, the ability of a flood to pick up and mobilize contamination is obviously enormous.
00:46:08
Speaker
And so you might find that where you thought the contamination existed is now, yes, it's there, but it's also widespread because these events, these flooding events just mean that you you are you are having the impacts felt on a much wider area because that contamination has been mobilized.
00:46:25
Speaker
So i think I think for councils having to deal with climate-induced events and what that has what impact that has for contamination, I certainly think there will be different considerations for councils in the development assessment process. And so they're going to have to look at when they're looking at developments in flood-affected areas.
00:46:44
Speaker
Obviously, there are far more considerations Flood affected areas, when they used to look at the one in 100 year risk for floods, we're now talking about you know the one in one year risk. And so the areas where floods are going to occur, obviously, are going to be far more widespread. Now, that's not necessarily a contamination issue, but any flood is going to mobilise contamination.
00:47:06
Speaker
you know, if you've got asbestos in soils, that that will be mobilised. I mean, PFAS is already mobile um and a lot of and contamination in in groundwater is obviously already an issue, but PFAS in surface water is going to be an issue with floods. and thats So I think the circumstances in which councils are going to have to consider contamination under the Resilience and Hazards step is just going to get but you're in bigger and bigger.
00:47:29
Speaker
Development in coastal on coastal areas, coastal erosion zones, obviously with climate change, the impacted areas. So the the the lines that councils are drawing for assessing developments in those coastal zones are getting more and more, moving more and more inland as we see the impacts from climate change.
00:47:47
Speaker
Is that a contamination issue? Not really, but it's just another issue to throw on these over- overworked councils that they'll need to have they'll need to have a look at so it's it's a somewhat separate issue but the ability of these events to mobilize contamination mean that councils are going to have to consider it in a wider range of on a wider range of sites yeah thank you is there any other practical advice that offer councils as they plan for these emerging challenges I have a lot of sympathy for councils. A lot of this must seem very overwhelming because it's yet another issue to to overlay on the responsibilities they already have.
00:48:24
Speaker
But I think getting on top of the information, the information they should be disseminating, I think is probably one of the biggest challenges they face because ratepayers have an expectation that they're going to be provided with information when it's relevant relating to contamination.
00:48:40
Speaker
I think councils are just struggling with how to firstly how to get the information. And I know that they've had some, I know that talking about LotSearch again, LotSearch has been appointed by a range of councils to produce schematics of where, based on the data they have, about where sites might be impacted with contamination. So getting the data together,
00:48:59
Speaker
is their starting point for all councils. How you grapple with that, you know, is a different issue. But that knowledge is power and I don't think councils in a position to really address any of these challenges if they don't have a good database, bank of information. So I would be using that as a starting point, trying to get some good data on what they already have through the planning process but yeah a kind of forward-looking view of where the sites might be, where these issues are likely to to already exist.
00:49:28
Speaker
So that's that's a starting point and then from there, all these other issues sort of fall out of that. And then obviously when they're buying and selling sites, I mean the importance of having a good ah getting some good advice from a consultant um and a lawyer, don't want to be plugging the legal industry, but when you buy and selling these sites, you really do need to know what liabilities you might be inadvertent and taking on and and and grappling with that is is something that Oxford councils need to be aware of.
00:49:56
Speaker
So not, as I said, starting point in anything he is knowing what you're dealing with and getting that information together. And that is a challenge for councils. There is some funding provided by the EPA, I know, but that would be my that would be my main, I guess, the message I would leave councils with.
00:50:12
Speaker
Yeah, it's definitely a very important one because that's, I guess, accumulation of relevant data and then interpreting it because obviously not all natural hazards result in disasters because really what we term ah natural disaster at the moment or you know a climate-induced disaster only becomes a disaster when it's impacting on people and infrastructure and our way of life.
00:50:34
Speaker
If it happens somewhere where there's no one, then we don't really classify that as and as a disaster, do we? So yeah, understanding where these things can actually occur, as you were saying about collecting the data is just so important.
00:50:48
Speaker
Yeah, it's a challenge when, you know, you've got resource, you're constrained. I mean, and no one wants to see their rates go up. We've seen what's happened recently where that's happened in some councils. so And so the challenge to to to provide really good information and get really good data sets when you've got these cost of living pressures that everybody's feeling. i mean, it is a real challenge. but ah But, you know, you've got to start somewhere. And so, know, that would be
Global Responsibilities & Conclusion
00:51:13
Speaker
my advice to councils. Start with what you've got, analyse what you've already got and then move on from there.
00:51:18
Speaker
So for our final question in today's podcast, I'm going to throw you a curly one, but one that i guess I like to ask a few different people that I come across in our industry and the legal industry and surround pollution on a global scale.
00:51:32
Speaker
So the question is, Pollution on a global scale that has contributed towards climate change has historically been generated by first world countries, but the impacts of climate change were overwhelmingly affecting developing countries, such as island nations like Kiribati and other Pacific Island nations. So,
00:51:50
Speaker
What is your opinion on who holds the current legal responsibilities for remediation and compensation or assistance to those being affected and possibly displaced? And is this a pollution problem which should be fixed through legal mechanisms or potentially fixed in a ah better way through some other way?
00:52:09
Speaker
That's an excellent question. i mean, my personal view is that that countries like ours and other developed countries that have I guess, benefit from the development, from industrial, revolution post-industrial revolution developments.
00:52:23
Speaker
We do have an obligation towards other other countries that might not have might not have had the same benefits and yet are unduly impacted by it. And in particular, you mentioned Kiribati. I think what I see in the Pacific Island nations, the just terrible impacts of climate change that are only going to get worse, I think I see that as a global responsibility. And I am concerned with what you see happening in the world with some countries taking a very protectionist view of their own borders and not wanting to provide assistance outside of their borders. Now I understand everybody, we mentioned before, everybody's struggling with cost of living but that doesn't mean that you just turn your back on the rest of the world. I think we're all we all have a responsibility.
00:53:07
Speaker
I think a lot a lot of law firms are doing pro bono work in this space, helping Pacific Island nations deal with the impacts of climate change from offering legal advice on what they might be able to do. But I think probably...
00:53:21
Speaker
it's a much bigger issue than ah than any legal solution. Particularly we've got, there are a lot of weaknesses with the international legal mechanisms. The um UN type approaches just don't work. people Everyone's got to buy in and we have a lot of countries that don't want to buy in or those did buy in, now want out.
00:53:38
Speaker
So I'm not sure a legal mechanism is a way to deal with it. I think it really it really has to be funding and funding that is really practical and directed towards maybe maybe a pivot in those some of those countries away from industries that rely on so tourism industry might not be something that is that is going to be. That's obviously often the main source of income for many of those Pacific Island nations and with the impacts of climate change that probably needs to change, probably needs to be a focus on different industries or different
00:54:13
Speaker
different issues, relocating, relocating their citizens to other, you know, we have an obligation to to rehouse some of these people who are no longer going to to be able to live where they currently live. So there are a lot of responses that are not legal, but I see as sort of ethical and also just if you want to be, you know,
00:54:32
Speaker
We are – this is, i think, as as global citizens, we have an obligation to do something. But I am slightly alarmed with the trend, the global trend, away from that sort of a approach.
00:54:43
Speaker
I don't know if that answers the question, but certainly from a personal ah personal perspective, I very strongly feel that we have an obligation. Yeah, I definitely agree with you. I think we do. And we I think we have an obligation also to look at some alternatives to maybe the current way of thinking, such as how will people maintain their sovereignty if they are displaced because of climate change from from their home because they're unable to live there any longer.
00:55:09
Speaker
So those those are the types of things that I think will be some big questions for not too distant future. Yes, that's a whole other podcast, I think, Chanel. Yeah, you're right. It's a very good question, but a question does not have an easy answer.
00:55:24
Speaker
No, definitely not. Well, thank you so much for being my guest today, Liz. It has been really, really fun to have you here and to hear your opinions. Right. Thanks, Chanel. That wraps up this episode of Contamination Station.
00:55:36
Speaker
Thanks for listening. You've been listening to Contamination Station, Safer Environment Together, an EPA-funded podcast hosted by Chanel Gleason-Wiley.
00:55:48
Speaker
We hope you've enjoyed our chat and been inspired to continue working towards a safer environment together. We would love for you to stick around for the next episode. So keep those headphones on, grab another cuppa, and settle in for more insightful stories.