Getting the right information in contaminated land reports

The NSW Environment Protection Authority’s (EPA) updated statutory guidelines on Consultants reporting on contaminated land came into force on 3 April 2020. They provide a reporting framework for consultants preparing contaminated land reports, as well as detailed checklists for complying with reporting requirements. The guidelines aim to ensure that reports contain the right information in a suitable format.

The guidelines overhaul and replace the ‘Guidelines for Consultants Reporting on Contaminated Sites’, published by the NSW Office of Environment and Heritage in 2011.

Who is affected by the changes to the guidelines?

Anyone involved in preparing or reviewing contaminated land reports in NSW will need to be across the detail of the updated guidelines and understand the key changes, including:

  • consultants preparing the reports
  • site auditor’s reviewing the reports
  • local councils considering the reports in making their decisions
  • lawyers reviewing these reports on behalf of their clients
  • inhouse environmental managers and others reviewing these reports for their organisation.

What are the key changes to the guidelines?

The 2020 Guidelines make significant modifications to the 2011 Guidelines, including:

  • advising consultants to take reasonable steps to draw their client’s attention to any potential duty to report contaminated land
  • renaming ‘Investigation stages’ as ‘Reporting Stages’ and expanding the number of reporting stages from 4 to 8
  • requiring a conceptual site model (CSM) at all stages of assessment
  • integrating data quality objectives in all stages of assessment
  • referencing the requirement for waste classification reports to be prepared if waste generated during remediation is required to be moved off-site for disposal or processing
  • referencing other relevant contaminated land guidance, policies and requirements throughout the guideline, e.g. the National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM), the Guidelines for the NSW Site Auditor Scheme and the EPA Contaminated Land Consultant Certification Policy
  • additional requirements for post remediation management and monitoring, including in relation to the content of an environmental management plan (EMP), and
  • providing a separate reporting checklist for each reporting stage that incorporates the changes.

Have the 2020 Guidelines placed a new obligation on consultants to advise clients of the duty to report?

No. There is currently no legal obligation on consultants to report contaminated land to the EPA or to advise their clients of the duty to report. The duty to report contaminated land under s 60 of the Contaminated Land Management Act 1997 (CLM Act) applies to landowners and persons whose activities have contaminated land.

In addition, if a site auditor concludes that a site they are auditing should be notified to the EPA, they must take reasonable steps to advise the person who commissioned the site audit of the duty to notify the EPA. A copy of the advice must be provided to the EPA at the same time it is provided to the person who commissioned the audit (see Section 3.8 of the Guidelines for the Site Auditor Scheme).

In contrast, the 2020 Guidelines provide best practice guidance for consultants advising clients in respect of potentially contaminated land. The guidelines state that:

‘Following any site investigations, consultants should take reasonable steps to draw their client’s attention to any potential duty to report contamination to the EPA in accordance with EPA Guidelines on the Duty to Report Contamination Under the Contaminated Land Management Act 1997 (EPA 2015) [emphasis added].’

While this guidance is welcome, consultants should be careful how they draw their client’s attention to any ‘potential’ duty to report and should refrain from definitively concluding that land is contaminated land for the purposes of s 60, or that the duty to report has been triggered. Determining whether land falls within the meaning of contaminated land, and whether a duty to report exists, under s 60 is both a legal and technical question, in that the results identified in consultants’ reports will need to be considered in the context of the statutory provisions. In particular, an exceedance of the contaminant level specified in the applicable guidelines may not trigger a duty to report. As such, where contaminated land may be an issue, consultants should let their client’s know of the ‘potential duty’ to report.

What are the new reporting stages?

The 2011 Guidelines categorised the process for reporting on contaminated land into the following stages:

  1. Preliminary site investigation
  2. Detailed site investigation
  3. Site remedial action plan
  4. Site validation and ongoing monitoring

The 2020 Guidelines significantly expand the number of stages and specify the objective of each stage at the outset.

Reporting Stages Objective
1. Preliminary site investigation To assess whether contamination has the potential to exist on the site and whether further investigation is needed.
2. Sampling and analysis quality plan To provide the context, justification and details of the selected sampling and analysis approach.
3. Detailed site investigation To provide more complete and definitive information on issues raised in the preliminary site investigation.
4. Site specific risk assessment and modelling To further assess potential for harm to human health and/or the environment from a specific site.
5. Remedial action plan To set remediation objectives and document the process to remediate the contaminated site.
6. Site remediation and validation To detail the site work undertaken and demonstrate compliance with the remedial action plan for the site, and compliance with contaminated land guidelines and all other applicable regulatory requirements.
7. Environmental management plan To document mitigation measures and/or monitoring requirements, where full clean-up is not feasible, or on-site containment of the contamination is proposed.
8. Ongoing monitoring To document the proposed monitoring strategy (where required), parameters to be monitored, locations, frequency, decision process for additional actions and for ending monitoring, and reporting requirements.

Consultants’ reports may address one or more of these stages. The reports may be presented separately or combined; however, each report must stand alone.

What must an EMP cover?

The 2020 Guidelines provide some guidance on the content of an EMP. It must:

  • state its objectives
  • describe the nature and location of contamination remaining on site
  • describe what long-term site management is needed to ensure the ongoing protection of human health and the environment on- and offsite
  • describe a mechanism for enforcement of the monitoring, and
  • demonstrate the feasibility of implementing the plan over the long-term, eg. passive management systems usually require minimal maintenance and management, whereas active management systems usually involve mechanical components and/or require monitoring, regular maintenance and inspection.

In terms of enforcement, the checklist also provides that the EMP must specifically outline:

  • how affected stakeholders including potential purchasers will be notified of the existing/residual contamination and the environmental management plan
  • how the EMP will be communicated and made enforceable, including any financial assurance requirements (emphasis added), and
  • how stakeholders will be informed of changes to activities and/or responsible parties.

Although the policy objective of ensuring that EMPs are enforceable and feasible is understandable and important, it is questionable whether the implementation of that policy through EMP content requirements is prudent or appropriate – particularly when non-technical expertise is needed in order to properly address such matters (eg. legal, planning or financial expertise).

An alternative approach would be to address this objective through regulation, such as requiring that EMPs be included in the prescribed matters under s 59(2) of the CLM Act for planning certificates issued under s 10.7 of the EP&A Act, enabling EMPs to be registered on title, and prescribing specific EMP financial assurance requirements and mechanisms in the CLM Act or the Conveyancing Act 1919.

The EPA has indicated that it will develop separate detailed guidance on EMPs, including on the roles and responsibilities of stakeholders involved in the preparation of an EMP and when environmental and planning regulators (including councils) must be consulted.

What is a CSM and when is it required?

A CSM provides the framework for identifying sources of contamination, contaminant migration pathways, receptors and exposure mechanisms. It can be represented or illustrated in various ways, including text, tables, graphics, flow diagrams, site-specific plans and figures.

The 2020 Guidelines make CSM an essential part of all stages of site investigation. This is a positive step, since this was not adequately addressed in the 2011 Guidelines. The CSM may need to be updated as new information arises.

What are data quality objectives and when are they used?

Data quality objectives are performance and acceptance criteria that are:

  • developed during the planning of a site assessment, and
  • used to evaluate whether there is enough high quality data to support decision making.

The 2020 Guidelines integrate data quality objectives into all stages of reporting. The objectives may need to be revised following any changes to the CSM.

When are waste classification reports required in remediation?

The 2020 Guidelines remind stakeholders that a waste classification report must be prepared if waste generated during remediation requires off-site disposal or processing. A waste classification report confirms the classification of the waste as well as other matters such as the location of the site, potentially contaminating activities, quantity of the waste, contaminants tested, etc.

To avoid committing an offence under the Protection of the Environment Operations Act 1997 or the Protection of the Environment Operations (Waste) Regulation 2014, the waste generator/owner of the waste must ensure that waste is properly classified before it is disposed of, or taken to a recycling facility. Waste can only be taken to, and accepted at, a waste facility which is lawfully authorised to receive, re-use and/or dispose of that classification or type of waste.

Further guidance?

In response to submissions made during the consultation process for the 2020 Guidelines, the EPA indicated that it would:

  • develop separate detailed guidance on environmental management plans (see above)
  • consider developing additional guidance for business, councils and other stakeholders, and
  • consider developing further guidance for reports prepared for residential properties.

The EPA also noted that the 1995 Sampling Design Guidelines are currently under review and will be amended following public consultation.

We will keep you informed of any developments.

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