Contaminated Land Update

There have been a number of recent developments, at both a state and national level, which have significant implications for the day to day management of contaminated sites.

This is what you need to know.

Why is PFAS an issue?

Per- and poly-fluoroalkyl substances (PFAS) contamination is caused by a range of activities. The most well-known source of PFAS contamination is the manufacture and use of aqueous film forming foams (AFFF). AFFF is an extremely effective fire suppressant, and was widely used for over 60 years to extinguish fires, and in fire training activities.

However, AFFF is far from the only source. PFAS contamination is also caused by, amongst other things, chrome plating operations, textiles manufacturing, mists suppressants and food packaging.

It is clear that PFAS can persist in humans, animals and the environment. However, there is no definitive evidence that PFAS exposure is harmful to human health.

As a consequence of the widespread historical use of PFAS in Australia since the 1950s, and the potential risks (although unproven) to human health and the environment, PFAS contamination is a significant national issue.

As demonstrated by the class actions commenced around the world in relation to PFAS contamination, including in Australia, it is also a potential source of significant civil liability, especially for those who have caused PFAS contamination. In addition, PFAS contamination may trigger statutory obligations on the part of those responsible for PFAS contamination, and the owners of PFAS contaminated sites, including to report contamination, and undertake investigation, management and remediation works.

What’s new, and why is it relevant to you?

With a view to providing some guidance on this significant national issue, on 16 February 2018, the Commonwealth, State and Territory environment ministers endorsed Australia’s first PFAS National Environmental Management Plan (NEMP), and in late February 2018, they entered into the Intergovernmental Agreement on a National Framework for responding to PFAS contamination.

The NEMP is the first national ‘blue print’ for the regulation of PFAS contamination and will inform the approach taken by regulators across Australia.

The NEMP may help you to anticipate the actions of regulators, and take a proactive approach in relation to an issue which is catching many unawares.

What you need to know:

• Is PFAS an issue?– Appendix B of the NEMP contains a comprehensive list of the activities known to cause PFAS contamination, and is a good starting point when determining whether or not a property may be impacted by PFAS contamination. However, keep in mind:
  
  
  • PFAS is highly mobile, and if your property is near other properties with a history of PFAS contaminating activities, your site may be impacted by PFAS. As such, it may be necessary to consider the historical uses of surrounding sites, as well as the activities carried out on your own site;
  • If there was a fire at the site at any time since the 1950s, AFFF may have been used, and this should also be considered when determining whether or not a property may be impacted by PFAS contamination.
• Own multiple sites potentially impacted by PFAS but don’t know where to start? – The NEMP acknowledges that PFAS contamination impacts a huge number of sites, and that it is not practical for landowners to seek to deal with every site at once. However, that is not an excuse to do nothing. Sites need to be assessed at a high level and then prioritised based on the outcomes of that assessment. Guidance as to how to carry out this prioritisation exercise is contained in the NEMP, including at section 7.

• When to talk about PFAS? - The NEMP emphasises that regulators, throughout Australia, expect both government and industry to communicate early and often about PFAS contamination with potentially affected communities. The NEMP states that the community should be provided with clear information regarding the uncertainties associated with the risks of PFAS exposure, and the steps being taken in response to those risks. Whilst the EPA will not inform the community for you, it wishes to be involved in the planning for community engagement.

• Are you storing PFAS? - There are only extremely limited options for disposing of PFAS. This means that many, whilst no longer wishing to use AFFF or other PFAS containing materials, are forced to store remaining stocks onsite. The environmental regulators throughout Australia are developing “inventory teams”, who will request, or require, information from relevant industries regarding any PFAS containing substances they may be storing. In this circumstance, it is prudent to ensure that, before the EPA comes knocking:
  
  
  • You know whether or not you are storing PFAS containing materials; and
  • If you are, that you have appropriate measures (which are clearly documented) to manage the risks associated with storing PFAS, including spills and escapes.
• Thinking about selling or developing? - Purchasers, and planning authorities, now routinely ask about PFAS, and it is always preferable to be able to answer any such questions quickly and accurately. If PFAS contamination is present, this need not necessarily preclude the sale or development of a site. However, it is a matter which will require a considered strategy, and will be more difficult to address in a purely reactive manner.

State Environmental and Planning Policy 55 is the key planning instrument in NSW which regulates the development and remediation of contaminated land, and it is set to change.

The proposed new State Environmental Planning Policy (SEPP), and the associated draft guidelines, if made, will result in significant changes as to how contaminated land in NSW is developed and remediated. Copies are available here.

Until 13 April 2018, any person may make submissions on the proposed new SEPP and guidelines. Submissions can be made here:

Some of the key changes in relation to which you may wish to comment are set out below:

• Development consent will be required more often

  The list of “category 1 remediation works”, being works which will require development consent, is proposed to be significantly expanded. As a consequence, it is predicted that the vast majority of remediation works in NSW will now require development consent. Local Councils are also set to lose the ability to determine the kinds of remediation works which require development consent.

  This element of the proposed reforms has led to a range of questions by the contaminated land industry, including whether planning authorities will be overwhelmed by an influx of development applications.

  Questions have also been raised about the inclusion in category 1 of all remediation works at sites which, once remediated, will be the subject of a long term environmental management plan (EMP).

  This aspect of the proposed reforms is potentially problematic, as at the time that the proponent is determining whether or not to lodge a development application, it may not know whether an EMP will be required. Whether or not an EMP is required is invariably dependent on how works progress. As such, the risk that proponents will need to stop and obtain development consent, when works are almost complete, leading to delay, inefficiencies and additional costs may be increased by the new SEPP.

• More robust notification procedures for remediation works not requiring consent

  In relation to remediation works which do not require development consent, the relevant local council must (as is currently the case) be notified of the commencement and completion of those works.

  However, under the proposed new SEPP, these notifications must be accompanied by written statements from a certified consultant. For example:

  • The pre-commencement notification must include a certification from a certified consultant that the works do not require development consent; and
  • The post completion notification must include a statement regarding the uses for which the land is suitable.

  Questions have been raised as to whether it is appropriate for a certified consultant to provide these statements, whether they will be made publicly available, and who can rely on them. In particular, certified consultants, whilst having specialised skills, are not necessarily experts in planning, and determining whether or not a development requires consent can be a complex process, particularly in cases where the “designated development” provisions may apply.

• Expanded role for certified consultants

  The role of certified consultants is set to expand.

  Not only are all reports submitted to a planning authority to be authored or reviewed by a certified consultant, there is scope for certified consultants to perform some of the functions traditionally reserved for site auditors, including reviewing the work of other consultants.

  If Councils are able to rely on a review by a certified consultant, instead of requiring a review by a site auditor, then this will represent a significant cost saving to proponents.

  However, there is a potential issue with this approach. A review by a certified consultant of another consultant’s work has the potential to constitute a “statutory site audit” within the meaning of the Contaminated Land Management 1997 (NSW) (CLM Act), if the review is required by the new SEPP or by a condition of a consent. It is an offence for someone to carry out a statutory site audit, who is not a site auditor. As such, the final terms of the new SEPP and the guidelines will need to be drafted with this issue in mind. In addition, planning authorities who wish to use certified consultants instead of site auditors, will need to be very careful about how they do so.

• Planning authorities to check their own records

  When considering applications for development consent, planning authorities are encouraged to check their own records for information relevant to the subject site, and adjoining sites.

  This may mean that a planning authority will raise issues based on information to which the proponent does not have immediate access. This risk may be reduced by:

  • thorough boundary testing; and
  • before lodging a development application, obtaining documents through the GIPA process in relation to adjoining sites.

Under section 60 of the CLM Act, a person whose activities have contaminated land, or an owner of land that has been contaminated, must report that land to the EPA, using the prescribed form.

The EPA has recently approved a new version of the prescribed form, a copy of which is available here. The differences between the old and new form are:

• The new form includes a link to the Duty to Report Contamination Guidelines;
• The new form requires supporting information to be attached, or if information cannot be attached, requires an explanation as to why this is the case.

The EPA will allow a short transition period between the use of the old and new forms. From 1 April 2018, all contaminated land notifications must be made using the new approved form.