It’s time for a new remediation framework

In 1998 the Good Friday Agreement was signed in Northern Ireland, India and Pakistan tested nuclear devices, Google was founded, Viagra came onto the market, Titanic became the first film to make $1 billion, and a new planning framework for managing contaminated land was implemented in New South Wales.

Twenty years later and the contaminated land planning framework, consisting of SEPP 55 and the Managing Land Contamination Planning Guidelines, is about to get a revamp.

The Department of Planning and Environment has released draft documents in relation to a proposed new Remediation of Land SEPP (to replace SEPP 55) and new Contaminated Land Planning Guidelines (to replace the Managing Land Contamination: Planning Guidelines).  Submissions on those documents are open until 13 April 2018.

Although many of the concepts from the existing framework are proposed to be retained, there are some important changes. In this blog we have decided to focus on the proposed changes to the concepts of:

  • ‘category 1 remediation’ – remediation work that requires development consent; and
  • ‘category 2 remediation’ – remediation work that does not require development consent.

Changes to category 1 remediation – More remediation will require development consent. A changed emphasis from receptors to remediation method and complexity.

With the exception of development that is ‘designated development’, the current SEPP 55 definition of category 1 remediation focuses on the likely effect of the remediation on habitat, species or communities, and whether or not the remediation will be carried out within sensitive areas.

The Remediation of Land SEPP is proposed to contain a new definition of category 1 remediation, that contains a new focus on the proposed remediation method and complexity.  The changed definition will also:

  • align the terminology with that used in relevant legislation and environmental planning instruments (which is a significant improvement on the current definition); and
  • removes from the definition, remediation that is proposed to be carried out in a manner that does not comply with a council policy made under the contaminated land planning guidelines (which in our experience is frequently misapplied).

Some examples of what is proposed to be category 1 remediation, include:

Excavation, and removal from site, of contaminated soil, where the volume of soil to be excavated exceeds 3,000 cubic metres (m3) or where the area of excavation exceeds 3,000 square metres (m2)
Removal from site of stockpiled contaminated soil, or other waste materials including asbestos waste, where the volume of soil and/or material exceeds 3,000 m3
In-situ and ex-situ remediation of contaminated soil on site
Remediation of a site affected by hazardous ground gas
Remediation of a coal gasification (gasworks) or an oil-shale distillation site
Remediation where a long- term environmental management plan is or will be required
Remediation where confirmation of successful completion is dependent upon post-remediation monitoring
Remediation that will result in on-site containment of contaminated soil or contaminated groundwater, or both

We have some questions about the proposed drafting:

  • When assessing whether the volume of excavated contaminated soil exceeds 3,000 cubic metres or the excavation area exceeds 3,000 square metres, what is meant by ‘contaminated soil’? In our view, ‘soil’ would not include underground structures and would not necessarily include rock.
  • What happens if the requirement for an environmental management plan or post-remediation monitoring only becomes apparent while category 2 remediation is underway or complete? The new proposed guidelines state that in these circumstances: ‘…proponents must provide the planning authority with a notice of variation of remediation.’ But will development consent then be required?

Changes to category 2 remediation – More stringent requirements on remediation method, including submission of remediation plan and prescribed conditions.

Some of the main changes that are proposed to the concept of category 2 remediation are:

  • a requirement that the council notification of category 2 remediation work be accompanied by documents, including:
    • a certification from a certified contaminated land consultant that the remediation is in fact category 2 remediation work; and
    • a remediation plan that includes a description of the remediation method, treatment/disposal procedures, validation sampling and analysis to demonstrate remediation has been successful, and the site reinstatement that will be required; and
  • a requirement that all category 2 remediation work be carried out in accordance with standardised operational requirements that relate to: hours or operation, soil management, noise control, dust control, odour and tree protection.

We have some questions about the proposed drafting:

  • In circumstances where a number of the classes of category 1 remediation are subject to statutory interpretation (e.g. whether or not a development should be characterised as designated development, or whether or not the remediation would require development consent under another State environmental planning policy), will a certified contaminated land consultant be in a position to ‘certify’ that remediation is not category 1?
  • What ability will the EPA or a Council have to waive or vary the standard operational requirements for category 2 remediation work? For example, what if the prescribed hours of operation (being 7am – 6pm during weekdays) would cause more disturbance than if works were carried out overnight?

In summary, the new Remediation of Land SEPP will result in more remediation requiring development consent, and more stringent requirements where consent is not required.  We will await the final framework with baited breath and keep you posted. There is still time to make a submission.

This post was prepared by Joshua Same

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