Introduction

The NSW Environment Protection Authority (EPA) has issued a ‘Draft guideline on the duty to report contamination under the Contaminated Land Management Act 1997’ (Draft Guideline) for consultation. 

The Draft Guideline proposes new contamination notification triggers relating to the identification of asbestos and vapour intrusion.  The Draft Guideline also incorporates the recent changes to the National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM) for assessing contaminated sites, which will replace the triggers which were previously identified in the guideline.

Please refer to our article on the recent updates to the NEPM for more information.

The Draft Guideline is an update of the current guideline, published in June 2009(2009 Guideline).  The EPA is considering comments until 8 August 2014.

The Draft Guideline comes at a time when the EPA is receiving scrutiny on its management of contaminated sites.  A recent report by NSW Auditor-General Grant Hehir reported the EPA had “no systematic processes for prioritising contaminated sites”.  This report also noted that there was a backlog of approximately 800 sites notified to the EPA under the 2009 Guideline which are awaiting assessment.  As a result, the public and local government may not have knowledge as to whether there is significant contamination at these sites. A copy of the Auditor’s Report may be found here.

Importance

The scope of the requirement to notify sites on which contamination is identified is relevant for landowners and occupiers of contaminated sites. It is also relevant for anyone undertaking due diligence for prospective purchase or use of land which may be contaminated. A change in the scope of the requirement to notify contamination may have the effect of capturing sites which were previously outside the scope of the guideline. 

This consultation process is an opportunity for the public to make submissions and monitor changes in the contaminated land regulatory framework.

Duty to report contamination

The Contaminated Land Management Act 1997, s60 imposes a positive obligation for a person who becomes aware of the existence of certain contamination to notify the EPA of that contamination. The Draft Guideline provides guidance on:

  1. the duty of landowners and those whose activities have contaminated land to report to the EPA, including particular trigger levels for various contaminants; and
  2. how the EPA assesses and determines whether or not contamination is significant enough to warrant regulation.

A failure to notify a site which is required to be notified under Contaminated Land Management Act 1997 is an offence with a maximum penalty of $165,000 in the first instance and $77,000 for each day the offence continues.

Proposed asbestos notification trigger

Under the Draft Guideline, notification of identified asbestos in, or on, soil must occur if: 

  •  friable asbestos is present;
  •  the concentration is equal to or above the health screening level identified in the NEPM; and
  •  a person has been, or foreseeably will be, exposed to the asbestos fibres by breathing them into their lungs. 

Notification will not be required for sites where there is only non-friable asbestos materials, naturally occurring asbestos or incidents of illegal asbestos dumping

Proposed vapour intrusion notification trigger

Notification will be required for sites on which a risk associated with an identified vapour inhalation pathway (also known as vapour intrusion) has been identified for actual or foreseeable contamination and where:

  • the individual soil vapour sample is equal to or above the level identified in the NEPM;
  • the concentration of the contaminant will continue to remain above the specified concentration; and
  • a person has been, or foreseeably will be, exposed to the contaminant or any by-product of the contaminant. 

The Draft Guideline provides guidance on the concept of “foreseeable”, which is used in the Contaminated Land Management 1997 to determine the likelihood of the presence of contamination or potential routes for migration.

Depending on the seriousness of the contamination and potential exposure, immediate action to reduce exposure may be required.

The Draft Guideline also provides new working examples for asbestos and air quality.

Proposed air quality recommendation

While the Draft Guideline does not require notification under s60 for contamination impacts on air quality (other than vapour intrusion), they do recommend that immediate action be taken.  The Draft Guideline states that if air quality is a risk to people breathing air, the EPA should be notified by calling the Environment Line, unless a s60 notification has already been submitted for the contaminated land.  Additionally, under the NEPM, immediate action should be taken where potentially explosive or acutely toxic gas concentrations are present in buildings or in-ground services.

Update following revision of the NEPM

The Draft Guideline amends the 2009 Guideline to refer to the updated NEPM as the location of the relevant trigger levels for certain contaminates. The 2009 Guideline contains specified levels for certain contaminates, however the Draft Guideline proposes that these will be removed.

A copy of the Draft Guideline may be found here.