Australia: Environment Update - Contamination Assessment

Important changes to contamination assessment guidelines, requirements for reporting contaminated sites and underground storage tank management.

• A Discussion Paper on options for amending the National Environment Protection Measure for the Assessment of Site Contamination (NEPM) was released for public comment in April 2006. Submissions closed on 2 June 2006.

• At this stage, it is too early to know what options may be adopted to change the NEPM (if any). However, it is important that companies and developers involved in managing and developing contaminated sites stay up-to-date with the potential changes to the NEPM and obtain technical and legal advice on their implications. It is possible that changes to the NEPM may impact on the costs and time involved in the investigation and remediation of contaminated sites.

• In December 2004 the NSW Department of Environment and Conservation (DEC) released Draft Guidelines for the Assessment and Management of Groundwater Contamination. Following a public exhibition and submission process in 2005, these Guidelines are expected to be made in mid-2006. New automatic triggers for reporting groundwater contamination will be likely to increase the number of section 60 notifications under the Contaminated Land Management Act 1997 (NSW) (CLM Act). Owners and occupiers should seek legal advice on obligations and risks relating to notifiable sites and sites that the DEC declares present a ‘significant risk of harm’ under the CLM Act.

• A new regulation for underground petroleum storage systems (UPSS) to be made under the Protection of the Environment Operations Act 1997 (POEO Act) will impose significant additional management and decommissioning requirements for UPSS, including underground storage tanks (USTs). The new regulation is expected to be made and come into force by September 2006.

The National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM) provides an overarching framework for the assessment and management of site contamination in Australia. It is supported by ten guidelines on various technical and administrative aspects of site assessment.

The National Environmental Protection Council (NEPC) is required to review this NEPM every five years. The first step in the review was the preparation of an Issues Paper which was released in May 2005. The Issues Paper assisted in the identification and discussion of key issues that are to be addressed by the review of the NEPM. Stakeholder comments were invited on the Issues Paper and 23 submissions were received. The results of the stakeholder submissions on the Issues Paper were analysed to provide the basis on which a Discussion Paper was then developed.

The Discussion Paper for the first NEPC review of the NEPM has now been released for public consultation. A copy of the Discussion Paper is available on the Environment Protection and Heritage Council website at: http://www.ephc.gov.au/nepms/cs/cs_review_2005.html.

The Discussion Paper examines the current issues relating to the derivation and use of ecological-based investigation levels (EILs), health-based investigation levels (HILs) and groundwater investigation levels (GILS) for the assessment of contaminated sites. It also discusses the inclusion of specific substances like asbestos, persistent organic pollutants and carcinogens in the investigation levels.

Issues raised in relation to the current EILs, HILs and GILs include:

• Eliminating generic EILs and adopting site-specific approaches for all sites that can be applied to a wider range of contaminants.

• Replacing HILs with 'acceptable levels' for various land uses in defined settings.

• Developing GILs from first principles that can be applied to a variety of groundwater ecosystems, beneficial uses and potential land uses.

Options for adding further substances to the existing investigation levels are considered in the Discussion Paper. If these options are implemented it will affect the investigation and remediation of contaminated sites in relation to the following substances:

• Carcinogenic substances. The NEPM currently provides limited guidance on carcinogenic substances. One option posed in the Discussion Paper includes developing HILs for certain priority carcinogenic contaminants.

• Total Petroleum Hydrocarbons (TPH). TPHs are commonly found in sites previously used for fuel storage and sales (such as former service stations). Submissions received by the NEPC support the assignment of investigation levels for aromatic components of petroleum mixtures as these contribute the most risk. However, the investigation levels and site criteria are still to be determined. Current options include adopting a standard with new analytical methods that allow better speciation of aliphatic and aromatic hydrocarbons. In other words, the revised NEPM could see an increase in the number of specific site criteria for TPH based contamination leading to greater clarity in conducting risk assessments.

• Fuel additives. Despite there being little data developed in Australia as to the scope of the fuel additive problem, there is consensus supporting the development of investigation levels for the most common fuel additives. Fuel additives, although often present in only small amounts, can present additional risks to human health and the environment from sites contaminated with fuels. Options being considered include the development of existing criteria for specified fuel additives, and deriving investigation levels for common additives.

• Asbestos. Asbestos currently receives very little consideration and no value for the HIL is provided in the NEPM. The establishment of soil guidelines has been complicated by the lack of data on the relationship between soil and air levels for respirable fibres. Possible options include the revision of the NEPM to provide further information on the investigation and assessment of asbestos and providing guidance as to quantitative assessment and a HIL.

• Persistent Organic Pollutants (POPs). Australia is a signatory to the Stockholm Convention on Persistent Organic Pollutants (POPs Treaty). There are six chemicals listed in the POPs Treaty for which Australia has no HILs, including dioxins and furans and there is currently no consistent national system for collecting information on all the POP chemicals. There was general support in submissions received by the NEPC for the development of HILs for those POPs that currently do not have one. POPs have been a contaminant of concern in remediation works conducted at Homebush and Rhodes Peninsula in Sydney.

• Assessment of impacts from volatile substances. The NEPM currently provides limited consideration of volatile substances due to the complexities of their environmental behaviours. Most notably, highly volatile substances (such as chemical solvents and certain hydrocarbons) are excluded from the current HILs. All respondents to the Issues Paper called for more guidance and models on the assessment of volatiles.

• Mixtures. Contaminated sites frequently contain mixtures of substances. These may be commonly occurring combinations arising from a single activity or a more unusual mix arising from multiple diverse activities at a site. Guideline values for soil contaminants are generally derived for single substances and there are no established techniques for deriving soil guidelines for mixtures. However, methodologies for dealing with mixtures have been developed for human health risk assessment. Options currently presented for consideration under the Discussion Paper include providing appropriate guidance on guideline values for soil contaminants involving mixtures.

At this stage, it is too early to know what options may be implemented to amend the NEPM. However, it is important that companies and developers involved in managing and developing contaminated sites keep up-to-date with the NEPM changes, and obtain technical and legal advice on the implications of the potential changes. It is possible that changes to the NEPM may impact on the costs and time involved in the investigation and remediation of contaminated sites.

In December 2004 the NSW Department of Environment and Conservation (DEC) released its Draft Guidelines for the Assessment and Management of Groundwater Contamination (Draft Guidelines). These closed for public comment in April 2005 and it is anticipated by the DEC that the Guidelines will be finalised in mid 2006.

The Draft Guidelines outline the DEC’s key principles for making decisions about contaminated groundwater in NSW. The purpose of the document is to assist contaminated land consultants and accredited site auditors, under the Contaminated Land Management Act 1997 (NSW) (CLM Act) as well as local councils, industry, water users and other members of the community in the assessment and management of groundwater contamination.

The Draft Guidelines provide detailed information on the principles which guide the assessment of groundwater contamination. The document also outlines scenarios where contaminated groundwater should be reported to DEC and provides guidance on appropriate clean-up actions.

To clarify the circumstances which DEC considers groundwater contamination to present a ‘significant risk of harm’ to human health or the environment, the Guidelines create automatic triggers for the notification of groundwater contamination. If any of the triggers are identified at a particular site, the contamination is considered to present a ‘significant risk of harm’ and must be notified to the DEC in accordance with section 60 of the CLM Act.

These automatic triggers in the Draft Guidelines require notification to the DEC when:

• Non-aqueous phase liquid contaminants are identified at a site; or

• Contaminants in groundwater are known, or are likely, to be migrating offsite at concentrations exceeding the groundwater assessment criteria.

The likely effect of these new triggers will be to increase the requirement for section 60 notifications. Failure to notify is an offence subject to penalties up to a maximum of $137,500 for a corporation and $66,000 for an individual. Notifications are required by an owner or occupier of a site ‘as soon as practicable’ after becoming aware that the contamination presents a significant risk of harm in accordance with the Contaminated Sites: Guidelines on Significant Risk of Harm from Contaminated Land and the Duty to Report, April 1999.

The requirement to notify a contaminated site to the DEC may cause delays in the rezoning and development of contaminated sites and potentially increase the costs of contamination investigation and remediation as a consequence of regulatory involvement. Owners and occupiers should seek legal advice on obligations and risks relating to notifiable sites and sites which the DEC declares to present a ‘significant risk of harm’ under the CLM Act.

The NSW DEC is proposing to make this new regulation that will be finalised in September 2006. The new regulation will mandate a preventative approach to minimise the risk of soil and groundwater contamination from leaking underground petroleum storage tanks (UPSS). Leaks from UPSS are potentially a significant source of groundwater contamination and remediation can be extremely costly, technically difficult and time consuming.

The proposed Protection Environment Operations (Underground Petroleum Storage Systems) Regulation 2005 (Regulation) will apply to persons with management and/or control of an UPSS and the occupier of premises in which a UPSS is located. The proposed Regulation is intended to complement the existing regulations relating to underground fuel tanks under the Occupational Health and Safety Act 2000 (NSW) (OHS Act) and Occupational Health and Safety Regulation 2001 (NSW) (OHS Regulation).

The current regime under the OHS Regulation includes general duties and specific requirements relating to underground storage tanks. These duties include requiring an occupier to ensure that any equipment used in connection with dangerous goods is disposed of or otherwise made safe (clause 174ZF of the OHS Regulation). If an underground storage tank (or partially underground or fully mounded tank) has been used to contain dangerous goods and two years have elapsed since any dangerous goods were last put in the tank, the occupier of the premises in which the tank is situated must remove any remaining dangerous goods from the tank and abandon it in accordance with Australian Standard 1940 The Storage and Handling of Flammable and Combustible Liquids and notify WorkCover within seven days of the abandonment (clause 174ZF(3) of the OHS Regulation).

The proposed Regulation goes further than the current OHS regime and prescribes pollution prevention requirements for occupiers of sites containing UPSS in NSW. These requirements are that:

• The design and installation of new UPSS meets standards consistent with the best available technology and practice.

• Leak detection systems and environmental monitoring programs be implemented for all UPSS (new and existing) to prescribe minimum standards which are set out in the Regulation, which are based on those used in the Australian Institute of Petroleum's Code of Practice (CP4) The Design, Installation and Operation of Underground Petroleum Storage Systems.

• Leaking UPSS are reported to the appropriate regulatory authority (initially the DEC and later councils) and repaired or replaced in accordance with the required standards, and the extent of any associated contamination is investigated, remediated to the extent required and the investigation and remediation validated.

• An operational environmental management plan be developed and implemented for all UPSS (new and existing) sites to ensure consistent operational standards across such sites within NSW (based on criteria set out in the Regulation).

• Appropriate standards of record keeping are set and implemented for all UPSS (new and existing) sites (eg, records on maintenance, monitoring, auditing and decommissioning of underground fuel tanks).

• Local councils are to be notified when a UPSS is removed or decommissioned and of validation confirming that no unacceptable level of contamination remains.

Amendments to the New South Wales Protection of the Environment Operations Act 1997 (POEO Act) commenced on 1 May 2006

The Protection of the Environment Operations Amendment Act 2005 (Amendment Act) commenced on 1 May 2006. The Amendment Act makes a number of significant changes including:

• Increased Penalties. The Amendment Act has increased fines payable by both companies and individuals. The maximum penalty payable for a Tier 1 offence now depends on the mind of the offender. If an offence is committed wilfully, the maximum penalty for a corporation is $5,000,000 and for an individual $1,000,000 and / or seven years imprisonment. If the offence is committed negligently, a corporation may be liable for a penalty of up to $2,000,000 and for an individual up to $500,000 and / or four years imprisonment. Penalties for Tier 2 strict liability offences, including water, air, land and noise pollution have also increased to $1,000,000 for a corporation and $250,000 for an individual.

• New offence of 'land pollution'. The Amendment Act introduces a new offence of ‘land pollution’. The maximum penalty for breaching this new provision for a corporation is $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues. An individual that breaches the provision may face a $250,000 fine, and in the event of a continuing offence an additional fine of $60,000 for each day the offence continues.

• Removal of defences available to directors and managers. Under the POEO Act where a corporation contravenes a provision of the Act, its directors and managers are presumed to have contravened the same provision unless they can establish a defence (section 169(1) of the POEO Act). The commencement of the Amendment Act has removed the ‘no knowledge’ defence previously available to directors and managers. This has increased the onus on directors and managers to establish that they were either not in a position of influence, or that they used all due diligence, to prevent the contravention by the corporation.

Further information on other changes to the POEO Act and the 2005 Waste Regulation can be found in our NSW Environment Update dated March 2006.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.