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Australia – New National Contaminated Land Assessment Guidelines

3 June, 2013

 

Legal News & Analysis – Asia Pacific – Australia – Environment

 

What’s Happened?

 

On 16 May 2013, a new national environmental protection measure (NEPM) came into force for the assessment of contaminated land.

 

Who should read this?

 

Owners, former owners and lessees of contaminated sites, and investors in sites which are or may be contaminated.

 

Why?

 

The new NEPM is likely to add substantially to the cost of contaminated site assessments.

 

Background

 

The new NEPM has been made by the National Environment Protection Council (NEPC).

 

The NEPC was established in 1994 by the National Environment Protection Council Act 1994 (Cth) and by complementary State and Territory legislation.

 

The NEPC is comprised by Commonwealth and State Ministers and operates under the umbrella of the Environment Protection and Heritage Council (EPHC) which was formed in June 2001 by COAG.

 

The National Environment Protection Council Act 1994 (Cth), and the complementary State and Territory legislation, allows the NEPC to make NEPMs and to vary them. Several NEPMs have been made to date. They include the National Environment Protection (Assessment of Site Contamination) Measure (1999 Site Contamination NEPM), made on 10 December 1999.

 

The NEPM which came into effect on 16 May 2013 (New Site Contamination NEPM) is by way of variation to the 1999 Site Contamination NEPM.

 

Details

 

The New Site Contamination NEPM is a voluminous document (full text available online1). 

 

It makes substantial changes to the 1999 Site Contamination NEPM (an overview of the changes are available online2).

 

The New Site Contamination NEPM revises a large number of the definitions and principles which were contained in the 1999 Site Contamination NEPM.

 

More significantly, it substitutes the guidelines which were operative under the 1999 Site Contamination NEPM with a range of new guidelines, including new guidelines on ‘investigation levels’ for soil and groundwater contamination, and on ‘risk-based assessment’ as well as others. According to the Explanatory Statement for the New Site Contamination NEPM3 the application of these new guidelines may result in an increase in site assessment costs of up to 10% to 15%.

 

 The new guidelines concern:

 

  • investigation levels for soil and groundwater;
  • site characterisation;
  • laboratory analysis of potentially contaminated soils;
  • the methodology for site-specific health risk assessment;
  • ecological risk assessment;
  • the methodology to derive ecological investigation levels in contaminated soils;
  • ecological investigation levels for arsenic, chromium (III), copper, DDT, lead, naphthalene, nickel and zinc;
  • the framework for risk-based assessment of groundwater contamination;
  • the derivation of health investigation levels;
  • community engagement and risk communication; and
  • competencies and acceptance of environmental auditors and related professionals.

 

Next Steps?

 

The manner and timing with which the NEPM will take effect differs in the various Australian jurisdictions. However, each jurisdiction has the “intention [to] implement [the new NEPM], by such laws…as are necessary”4, and each jurisdiction must report to the National Environment Protection Council (NEPC) by 30 September 2013 on the implementation of the new NEPM5.

 

When these various changes occur, the guidelines applicable to various aspects of contaminated site identification and management will change in accordance with the new NEPM.

 

The process applicable to the adoption of the NEPM in NSW is endorsement of the new NEPM under section 105 of the Contaminated Land Management Act 1997 (NSW) by publication in the NSW Gazette. Gazettal has yet to occur. In the meantime, the NSW EPA proposes to adopt the NEPM as a matter of policy.

 

The process applicable to the adoption of the NEPM in Victoria is amendment of State Environment Protection Policy (Prevention and Management of Contamination of Land) 2002 (SEPP) to incorporate the NEPM amendment or vary the SEPP so as to ensure consistency with the NEPM amendment. Other legislative instruments may also need review

 

In Queensland, the NEPM will be implemented through amendments to the Guideline for Contaminated Land Professionals (2012); the Guideline for assessing qualified persons according to Sections 381, 395 and 410 of the Environmental Protection Act 1994; and the Operational policy: Third party reviewers.

 

In Western Australia, the process of adoption of the NEPM will involve section 37A of the Environmental Protection Act 1986 (WA). Under that section, the Minister for Environment may, by notice in the Gazette, declare that a NEPM is taken to be an approved policy with the force of law. In any case, Guidelines have been prepared in Western Australia in line with the 1999 Site Contamination NEPM which will likely be revised to accord with the New Site Contamination NEPM, pursuant to the statement of intent in section 7 of the National Environment Protection Council (Western Australia) Act 1996 (WA). The Contaminated Sites Act 2003 (WA) is also currently under review.

 

In other jurisdictions, the processes for adoption of the NEPM are as set out in the following table:

 

 

 

Jurisdiction

 

 

 

 

 

Proposed (or potential)  arrangements for the implementation of the NEPM as varied

 

 

 

 

 

Commonwealth

 

 

 

 

 

 The NEPM will be implemented as guidelines under the NEPC Act 1994.

 

 

 

In the case of Australia’s Antarctic Territories, the current version of the NEPM was not relevant because very low levels of contamination are considered to be ecologically significant and therefore levels are set according to that specific context rather than using the generic ones in the NEPM.

 

 

 

 

 

Australian Capital Territory

 

 

 

 

 

Update the Contaminated Sites Environment Protection Policy, 2009 (ACT EPA) to reflect the latest version of the NEPM

 

 

 

 

 

Northern Territory

 

 

 

 

 

 No action is required as the NEPM is captured under the Waste Management and Pollution Control Act

 

 

 

 

 

South Australia

 

 

 

 

 

Seek the NEPM as varied to be made an Environment Protection Policy (EPP) under the Environment Protection Act 1993.

 

 

 

Revise relevant EPA guidelines.

 

 

 

Transitional arrangements will apply for site assessments already substantially commenced at the time the NEPM is varied until it is made an EPP under the Act.

 

 

 

 

 

Tasmania

 

 

 

 

 

 No action is required as a NEPM (and any amendment to it) is taken to be a state policy under the State Policies and Projects Act 1993

 

 

 

 

Endnotes

 

  1. The New Site Contamination NEPM, full text is available here.

     

  2. An overview of the changes to the 1999 Site Contamination NEPM are available here.

     

  3. Explanatory Statement for the New Site Contamination NEPM 

     

  4. See National Environment Protection Council Act 1994 (Cth) section 7(1): National Environment Protection Council (Queensland) Act 1994 (Qld) section 7: National Environment Protection Act 1994 (ACT) section 6; National Environment Protection Council (Northern Territory) Act 1994 (NT) section 7: National Environment Protection Council (Northern Territory) Act 1994 (NT): National Environment Protection Council (South Australia) Act 1994 (SA) section 7: National Environment Protection Council (Victoria) Act 1995 (Vic) section 7: National Environment Protection Council (New South Wales) Act 1995 (NSW) section 7: National Environment Protection Council (Tasmania) Act 1995 (Tas) section 7: National Environment Protection Council (Western Australia) Act 1996 (WA) section 7.

     

  5. See National Environment Protection Council Act 1994 (Cth) section 23: National Environment Protection Council (Queensland) Act 1994 (Qld) section 23: National Environment Protection Act 1994 (ACT) section 23; National Environment Protection Council (Northern Territory) Act 1994 (NT) section 23: National Environment Protection Council (Northern Territory) Act 1994 (NT): National Environment Protection Council (South Australia) Act 1994 (SA) section 23: National Environment Protection Council (Victoria) Act 1995 (Vic) section 23: National Environment Protection Council (New South Wales) Act 1995 (NSW) section 23: National Environment Protection Council (Tasmania) Act 1995 (Tas) section 23: National Environment Protection Council (Western Australia) Act 1996 (WA) section 23.

 

 

herbert smith Freehills

 

For further information, please contact:

 

Peter Briggs, Partner, Herbert Smith Freehills
peter.briggs@hsf.com

 

Tim Power, Partner, Herbert Smith Freehills
tim.power@hsf.com

 

John Taberner, Herbert Smith Freehills
john.taberner@hsf.com

 

Tony van Merwyk, Partner, Herbert Smith Freehills
tony.vanmerwyk@hsf.com

 

John Ware, Partner, Herbert Smith Freehills
john.ware@hsf.com

  

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