In this eBulletin, we look at when the recently amended National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM) will become law and what to do during the transition to the new standards. This is particularly relevant for site assessments that are currently underway in relation to minimising the risk of disputes.
We also examine some key considerations for land owners, developers, environmental consultants and auditors when assessing sites under the amended NEPM.
On 16 May 2013, the NEPM was updated1 to take into account scientific and technological advancements in the assessment of contaminated land. The NEPM is the primary national guidance for the assessment of site contamination in Australia.
The amended NEPM is expected to result in an increase in site assessment costs of up to 10-15%. However, these costs will be offset by reduced remediation costs in many cases.
When will the amended NEPM become law?
The amended NEPM will become law once it is incorporated into state and territory legislation. There is a 12-month period in which each state and territory will incorporate the changes.
The amended NEPM has already been enacted and is law in New South Wales,2 Tasmania3 and the Northern Territory.4 In Victoria, it is anticipated that the amended NEPM will become law through amendment to the State Environment Protection Policy (Prevention and Management of Contamination of Land) Act 2002 in September 2013.
The remaining states and territories are expected to enact the amended NEPM over the course of the next nine months.
What will happen during the transition?
From 16 May 2014, all site contamination assessment reports must be consistent with the amended NEPM unless alternative arrangements have been agreed with the relevant regulator.5
For those states and territories where implementation of the amended NEPM will take place over the coming months, there will be a period in which the assessment of sites will be subject to existing state and territory legal requirements despite the amended NEPM having been released.
Assessing contaminated sites - how to avoid a dispute
To avoid the potential for disputes, all parties involved in assessments of contaminated sites (owners, project managers, environmental consultants and auditors) should discuss which standards will be used and ensure that adequate consideration is given to the cost, desirability and legal obligations associated with using those standards.
For works that are currently underway, developers, environmental consultants and auditors need to reflect on the progress of each site assessment and assess whether or not there is a justifiable reason for relying on the old NEPM. If you wish to rely on the old NEPM you may be able to finalise and submit work that is already substantially progressed consistent with the old NEPM, provided that adequate justification is able to be provided.
Environmental consultants and auditors should be transparent with clients about likely increased costs in undertaking site assessments in accordance with the requirements of the amended NEPM and re-issue costs estimates to avoid disputes about fees.