Managing Risks associated with Land Contamination

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Guidance for Local Government

• Managing Risks associated with Land
  Contamination
• December 2006
• EPA Regulatory Framework
• Jean Meaklim
• Project Manager Health Risk, Env Audit Unit
• Chris McAuley
• Manager Environmental Audit Unit

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Background
o     Land contamination emerged as a major
environmental and land management issue over the
last 2 decades o    Rezoning of former
industrial or mining land for new uses esp
residential subdivisions or other sensitive uses
- resulted in exposure of people to contamination
(eg. former battery factory in Ardeer) o  
Contamination is not confined to industrial
and mining land but could include any site
where chemicals and wastes were or are handled,
stored or disposed

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EPA Regulatory Framework

• Environment Protection Act 1970
• Environmental Audits Part IXD
• Control of Solid Wastes Pollution of Land
  Part VII
• Pollution Abatement Notice (PAN) S. 31A
• Minor Works PAN S. 31B
• Notice to clean up pollution S. 62A
• State Environment Protection Policy 2002 (SEPP)
  Prevention Management of Contamination of Land

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EPA Regulatory Framework

• Environmental Audits Part IXD
• Environmental Auditors Appointed by EPA, under
  EP Act
• Based on evidence of high level of
  competency (technical, legislative
  obligations)
• Appointed auditors list on www.epa.vic.gov.au/Env
  Audit/
• Must conduct audits according to EPA guidelines

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What is an Environmental Audit?

• Environmental Audit 53X (Contam Land)
• Independent assessment of the condition of a site
  and opinion about the sites suitability for use.
• Purpose Identify - environmental quality of a
  segment of the environment (the site) inc.
  soil, groundwater, air and
• - any detriment to beneficial uses of the
  site.
• Results in Certificate or Statement of
  Environmental Audit

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What is an Environmental Audit?

• Environmental Audit 53V (Risk of Harm)
• An assessment of the nature and extent of harm
  (or risk of harm) to the environment posed by an
  industrial process or activity, waste, substance
  or noise
• Can have a very narrow or broad scope

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Environmental Audits 53 (X)

• Certificates and Statements of
• Environmental Audit
• Certificate of Environmental Audit (CEA) the
  site is suitable for any beneficial use (wrt its
  environmental condition)
• Statement of Environmental Audit (SEA) the site
  is not suitable for any/all beneficial uses,
  there may be some restrictions on the use of a
  site (wrt its environmental condition)
• But the site may be suitable for the proposed
  use, with or without certain conditions

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Environmental Audit (53 X)

• Statements of EA - Conditions
• Where a Statement of EA is issued, it typically
  states Site is not suitable for any/all
  beneficial uses (wrt its environmental condition)
• - But is suitable for the proposed use (eg,
  high-density residential) with (certain)
  conditions
• Eg - That the site remain covered with
  impervious capping (eg, concrete, asphalt, 0.5 m
  clean soil)
• - That clean fill be brought in to cover any
  exposed garden areas
• Any Statement conditions should be included on
  permits Auditor to discuss with Council if
  necessary

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Auditor vs. Site Assessor

• Competent Site Assessor consultant
• Not acting under EP Act
• May also be an auditor, but not acting in that
  legislative capacity
• May be engaged to provide an opinion or guidance
  on whether land might be potentially contaminated
  / whether a full audit is required / give advice
  on the level of assessment needed
• If an applicant submits environmental
  assessment (not audit) by an assessor acting
  as their advocate, PA or RA may require the
  applicant to contribute financially to an
  independent review of assessment for Council
• To contact suitably qualified site assessor
  ACLCA (Aus Contam Land Consultants Assoc) Vic
  www.aclca.asn.au Ph 9509 5949.

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Regulatory Framework

• Control of Solid Wastes Pollution of Land
  Part VII
• S. 44 Discharge or deposit of waste onto land to
  be in accord w SEPP or Waste Mgt Policy, and
  comply with acceptable standards
• S. 45 Pollution of land A person shall not
  pollute land so that the land (is)
• noxious or poisonous or harmful to humans
• poisonous or harmful to animals, birds or
  wildlife, or plants
• obnoxious or offensive to the senses.
• Consider when planning for a site use what is
  the sites impact on the environment?

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Regulatory Framework

• Pollution Abatement Notice (PAN) S. 31A
• Minor Works PAN S. 31B
• If a process or activity on a premises has caused
  or likely to cause pollution or failure to
  comply with any standard or requirement in
  regulations or policies EPA may serve a PAN on
  the occupier.
• May require occupier to carry on, modify or
  control the process or activity take measures
  including installation, /or operation of any
  plant or apparatus as specified comply with any
  standard or requirement in regulations or
  policies or condition in a licence or permit
  carry out a monitoring program and to give EPA
  specified results, measurements and information.
• May be used to implement Audit Statement
  conditions (eg, for ongoing groundwater
  monitoring)

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Regulatory Framework

• Notice to clean up pollution S. 62A
• Where pollution has occurred on a site, or
  industrial waste or hazardous substances have
  been abandoned, EPA may direct the site occupier,
  or person who caused or permitted the pollution,
  or who dumped the waste, to take cleanup measures
  as specified.
• These can include any conditions, requirements,
  restrictions on use, etc, as the Authority thinks
  fit.
• The cleanup measures are to performed as
  specified, notwithstanding anything to the
  contrary in the Planning Environment Act 1987
  or any regulation, planning scheme or permit made
  under that Act.

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Listing of sites with Notices

• Priority Sites Register (PSR)
• All sites subject to Notices related to land or
  groundwater contamination are listed on the PSR.
• View PSR listings via www.land.vic.gov.au or
  www.anstat.com.au
• Or link from EPA website epa.vic.gov.au/land/
• Note there is a charge to review the PSR,
  currently 17.50 - but changes imminent!
  Information soon to be freely available via EPA
  website.

Additional information about any site listed on
the PSR is available from relevant EPA regional
office.
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SEPP (Prevention and Management of Contamination
of Land) 2002

• o   SEPPs establish a principle of shared
  responsibility for all levels of Government,
  industry, business and people of Victoria
  clarifies the obligations of planning and
  responsible authorities
• o   SEPP (PMCL) - developed in consultation with
  stakeholders (incl Reference Group of DSE, MAV,
  Councils)

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SEPP (Prevention and Management of Contamination
of Land) 2002

• Clause 13 Planning authorities responsible
  authorities must ensure their actions under PE
  Act are consistent with SEPP
• Clause 14 Planning scheme amendments, planning
  permits and change of land use
• Prevention - impose any necessary permit
  conditions
• General Obligations - requires applicants to
  provide sufficient
• information, have regard to guidelines prepared
  by EPA /DSE etc
• Specific Obligations
• -    planning scheme amendments which
  allow a sensitive
• use, must have regard to Min Dir No. 1
• -    planning permit applications which
  allow a sensitive
• use, require, where appropriate,
  certificate/ statement of
• environmental audit

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Audits in Planning System

• When is an Environmental Audit necessary for a
  planning scheme amendment?
• As described under Ministerial Direction 1, for
  sensitive uses
• For agriculture, open space or other uses,
  planning authorities can require an environmental
  audit if it considers it appropriate

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Audits in Planning System

• When is an Environmental Audit necessary for a
  planning permit application?
• S. 60 of the Act requires the RA to consider the
  effects the environment may have on the use or
  development
• Cl 14(4) of SEPP clarifies that for a sensitive
  use, the RA is required to consider any
  significant effects of contamination by requiring
  a certificate or statement of EA indicating that
  the environmental conditions of the site are
  suitable for the sensitive use, prior to any
  buildings or works associated with the sensitive
  use commencing
• Other uses or developments proposed on
  potentially contaminated land can also include an
  element of risk, and should be considered in
  accord with S.60 of PE Act and SEPP Cl 14

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Identifying potentially contam land

• Refer to Planning Practice Note
• Determine if an Environmental Audit Overlay or
  other planning control exists on the site.
• Review the Priority Sites Register
  (www.land.vic.gov.au, www.anstat.com.au)
• Review list of Certificates Statements of
  Environmental Audit
• Review any site analysis presented under Clause
• 54 or 55 of VPPs (require issues of site
  contamination
• to be identified)
• Consider site history previous zoning / use
• Inspect site any evidence or reason to suspect?

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Identifying potentially contam land

• Particular types of land uses or activities can
  act as trigger to collect more information
  (Table 1).
• If this information not readily available,
  council (planning authority) may ask applicant to
  provide more information.

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Identifying potentially contam land
Table 1 Potential for contamination (p.
3)(extract) High potential for contamination
includes land used for         
Abattoir          Abrasive blasting         
Airport          Asbestos production/disposal   
       Asphalt manufacturing          Automotive
repair/engine works          Battery
manufacturing/recycling          Bitumen
manufacturing          Boat building/maintenance
         Breweries/distilleries         
Brickworks          Chemical manufacturing /
storage   
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Identifying potentially contam land (cont)

• Medium potential for contamination can be
  identified by certain types of activities carried
  out on the land, which may be incidental to the
  main site activity. The nature of the products
  used or stored, the quantity stored, and the
  location of use or storage should be considered.
  Such activities might include
•          Chemical storage
•          Fuel storage
•          Underground tank storage
•          Market gardens
•          Waste disposal
•          Other industrial activities

Low potential for contamination is likely to
exist if none of the identified uses or
activities in the High or Medium Potential
categories are known to have been carried out on
the land.
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Assessment Matrix

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Assessment Matrix

• The matrix (Table 2) provides a way to make a
  judgement about the type of assessment required
• Environmental audit
• Site assessment by a competent assessor
• Advice from a competent assessor
• General duty consider effects of environment
  on any development
• Planning Env Act S.12(2)b 60(1)a(iii)

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Information considerations - Summary

• Is the site contaminated?
• Is the site already covered by an EAO?
• Is it on Priority Sites Register?
• - Does it have a Certificate or Statement of Env
  Audit? What date?
• - Is any contamination indicated on planning
  Site Analysis?
• - What was site previous zone?
• - What was site use?
• - Any other information about activities carried
  out?
• (eg, historical society records, anecdotal
  evidence from current or former residents or
  workers) How reliable is this info?
• Is site to be used for sensitive use? Is there
  potential for site users to access soils?

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Dealing with consultants

• Identify your needs.
• Identify which consultants have the skills you
  need.
• Clearly define the scope.
• Take the opportunity to review drafts / progress
  reports to ensure that your needs are being met.

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Contacts for EPA

• www.epa.vic.gov.au
• Your local EPA Region
• Environmental Audit Unit
• Chris McAuley Manager
• environmental.audit_at_epa.vic.gov.au
• Report pollution1800 444 004 (regional
  Victoria)9695 2777 (Melbourne metro)
• EPA Information Centre9695 2722