Guideline for contaminated land professionals

Transcription

1 Guideline for contaminated land professionals

2 Prepared by: Waste and Land Contamination Assessments, Department of Environment and Heritage Protection The State of Queensland (Department of Environment and Heritage Protection) 2012 Copyright inquiries should be addressed to or the Department of Environment and Heritage Protection, 41 George Street, Brisbane QLD 4000 Disclaimer This document has been prepared with all due diligence and care, based on the best available information at the time of publication. The department holds no responsibility for any errors or omissions within this document. Any decisions made by other parties based on this document are solely the responsibility of those parties. If you need to access this document in a language other than English, please call the Translating and Interpreting Service (TIS National) on and ask them to telephone Library Services on This publication can be made available in an alternative format (e.g. large print or audiotape) on request for people with vision impairment; phone or <library@ehp.qld.gov.au>. Citation EHP Guideline for contaminated land professionals. Brisbane: Department of Environment and Heritage Protection, Queensland Government. October 2012

3 Contents Part 1 Contaminated land policy and legislative framework Introduction Purpose Environmental Protection Act Environmental duties Contaminated land (Chapter 7, Part 8) Offences Sustainable Planning Act 2009 (SPA) Integrated development assessment system (IDAS) National Environment Protection (Assessment of Site Contamination) Measure Other guidelines National guidelines Asbestos policy...5 Part 2 Roles and responsibilities Introduction Administering authority Prevention of contamination EMR/CLR Assessment and approval of reports and site management plans Suitability statements Compliance Area management advices Local government Notification Development assessment managers Land owner and occupier Notification Notices to be given Site management Site compliance...9 Part 3 IDAS Introduction Stages of IDAS IDAS roles Pre-IDAS assessment Assessment under IDAS Preliminary approvals Administering authority as assessment manager Local government as assessment manager...11 Part 4 Land assessment and remediation process...12 iii

4 1 Introduction Development approval process Professional requirements Suitably qualified persons Statutory declarations Staged assessment and remediation process Preliminary site investigation Detailed site investigation Health and environmental risk assessment and development of a remediation action plan Implementation of a remediation action plan and preparation of validation report Site management plans (SMPs) Presentation of analytical results and bore logs...15 Part 5 Contaminated soil disposal Introduction When a disposal permit is required Applying for a disposal permit Deciding an application for a disposal permit Waste reduction targets Waste and resource management hierarchy Soil treatment and the ASC NEPM 1999 hierarchy of remediation options Soil separation...18 References...19 Legislation...20 Appendix 1 Contaminated land assessment process...21 Appendix 2 Reporting requirements checklist...22 Appendix 3 Sample draft site management plan...29 iv

5 Guideline for contaminated land professionals Part 1 Contaminated land policy and legislative framework 1 Introduction Contaminated land means land contaminated by a hazardous contaminant (such as heavy metals, asbestos, pesticides and/or hydrocarbons) which may pose a risk to human health or the environment. Land contamination, which is predominantly a historical problem, may result from poor environmental management and waste disposal practices or accidental spills in industrial or commercial activities. In some cases, land may have been contaminated by activities not known to be dangerous at the time, often involving chemicals which have since been banned or are now subject to much stricter controls. Contaminated land is managed in Queensland under a range of documents including the: Environmental Protection Act 1994 (EP Act) National Environmental Protection (Assessment of Site Contamination) Measure 1999 (ASC NEPM 1999) (NEPC 1999a). It should be noted that at the time of publication of this guideline, the ASC NEPM 1999 was under review. The current published version of the ASC NEPM (or equivalent) should be used in all situations Guidelines for the Assessment of On-Site Containment of Contaminated Soil (National Containment Guidelines) (ANZECC 1999) Health Screening Levels for Petroleum Hydrocarbons in Soil and Groundwater (CRC CARE Health Screening Levels) (Friebel and Nadebaum 2011) Canada-wide standard for petroleum hydrocarbons (PHC) in soil (CCME 2008) Guidelines for the Assessment, Remediation and Management of Asbestos-Contaminated Sites in Western Australia (WA Asbestos Guidelines) (DoH and DEC 2009). Land development and development approvals in Queensland are coordinated under the Sustainable Planning Act 2009 (SPA) by an assessment manager (usually the relevant local government) with referral agencies assessing applications against the requirements of legislation and planning schemes. The rationale, intent and requirements of this legislation and guidelines are outlined in Part 1 of this guideline. 1.1 Purpose The purpose of this guideline is to establish best practice for managing land contamination through the planning and development control process. These guidelines have been prepared particularly for use by contaminated land professionals but are also likely to be useful to other industry groups, planning authorities, developers, lenders, property insurers and valuers, property owners and other members of the community. 2 Environmental Protection Act Environmental duties Many activities may result in environmental harm being caused. Chapter 7, Part 1 of the EP Act addresses this potential by imposing two main duties: the general environmental duty (GED) and the duty to notify. These duties are relevant to all persons undertaking notifiable activities or managing sites on the Environmental Management Register (EMR) or Contaminated Land Register (CLR) General environmental duty (GED) Section 319 of the EP Act states that all persons in Queensland have a GED. This means that everyone is responsible for the actions they take that affect the environment. Before a person carries out an activity (including a notifiable activity) that causes or is likely to cause environmental harm they must take all reasonable and practicable measures necessary to prevent or minimise the harm. For example, hazardous contaminants must not be indiscriminately or negligently released onto land. To determine what actions need to be taken to meet the GED consider: the nature of the harm or potential harm the sensitivity of the receiving environment the current state of technical knowledge for the activity 1

6 the likelihood of successful application of the different measures to prevent or minimise environmental harm that might be taken the financial implications of the different measures as they would relate to the type of activity Duty to notify Land contamination may result in serious or material environmental harm. Chapter 7, Part 1, Division 2 of the EP Act establishes a duty to notify such harm. The duty to notify applies to land owners, land occupiers and persons who are engaged as suitably qualified persons (SQPs) or third party reviewers (TPRs) when they become aware of actual or potential serious or material environmental harm. The duty to notify may be established under either section 320B, 320C or 320D of the EP Act. The duty to notify is fully outlined in the guideline, The duty to notify of environmental harm (DERM 2011). Material and serious environmental harm are defined in sections 16 and 17 of the EP Act respectively as: 16 Material environmental harm (1) Material environmental harm is environmental harm (other than environmental nuisance) (a) that is not trivial or negligible in nature, extent or context; or (b) that causes actual or potential loss of damage to property of an amount or, of amounts totalling, more than the threshold amount but less than the maximum amount; or (c) that results in costs of more than the threshold amount but less than the maximum amount being incurred in taking appropriate action to (i) prevent or minimise the harm; and (ii) rehabilitate or restore the environment to its condition before the harm. (2) In this section maximum amount means the threshold amount for serious environmental harm. threshold amount means $5,000 or, if a greater amount is prescribed by regulation, the greater amount. 17 Serious environmental harm (1) Serious environmental harm is environmental harm (other than environmental nuisance) (a) that is irreversible, of a high impact or widespread; or (b) caused to an area of high conservation value or special significance; or (c) that causes actual or potential loss or damage to property of an amount of, or amounts totalling, more than the threshold amount; or (d) that results in costs of more than the threshold amount being incurred in taking appropriate action to (i) prevent or minimise the harm; and (ii) rehabilitate or restore the environment to its condition before the harm. (2) In this section threshold amount means $50,000 or, if a greater amount is prescribed by regulation, the greater amount. 2.2 Contaminated land (Chapter 7, Part 8) Chapter 7, Part 8 of the EP Act contains the contaminated land provisions. These provisions adopt the concept of risk management through the development of two registers for the recording of land. Sites are recorded on the EMR and CLR registers on the basis of risk assessment. 2

7 2.2.1 Inclusion of land on the EMR/CLR Division 2 of the contaminated land provisions of the EP Act provide for the recording of land on either the EMR or CLR. Land is placed on the EMR and/or CLR because a notifiable activity has been or is being conducted on the site or the land has been contaminated by a hazardous contaminant. A full list of notifiable activities is listed in schedule 3 of the EP Act. Hazardous contaminant is defined in schedule 4 of the EP Act as a contaminant other than an item of explosive ordnance, that if improperly treated, stored, disposed of or otherwise managed, is likely to cause serious or material environmental harm because of: its quantity, concentration, acute or chronic toxic effects, carcinogenicity, teratogenicity, mutagenicity, corrosiveness, explosiveness, radioactivity or flammability; or its physical, chemical or infectious characteristics. Environmental Management Register (EMR) The EMR is a land-use planning and management register. The EMR provides information on historic and current land-use including whether the land has been or is currently used for a notifiable activity or has been contaminated by a hazardous contaminant. Based on information provided to the Department of Environment and Heritage Protection (EHP), in most circumstances, sites recorded on the EMR don t pose a significant risk to human health and/or the environment under their current land use. However, it is possible that they may pose a risk to human health and/or the environment if the land use of these sites were to change. Hence, the appropriate investigation and, if necessary, remediation will be required to be undertaken before any change in land use takes place. Entry on the EMR does not mean the land must be cleaned up or that the current land use must stop. Contaminated Land Register (CLR) The CLR is a register of sites with proven contamination which are causing or may cause serious environmental harm or public health risk. Land is recorded on the CLR when scientific investigation shows it is contaminated and action needs to be taken to remediate or manage the land. Actions could include: technical measures to prevent the migration of contaminants full removal of contaminants and off-site treatment to prevent serious or material environmental harm or public health risks Investigation of land on the EMR Division 3 of the contaminated land provisions of the EP Act provides that investigations of land on the EMR may be undertaken by a person either voluntarily (normally in relation to a development application for an alternative land use) or upon request of the administering authority. Land can be removed from the EMR if the landowner or local government provides sufficient information to demonstrate to the administering authority that a notifiable activity has not occurred on the site and the land has not been contaminated. Details regarding the technical requirements for the investigation of land on the EMR are provided in Part 4 of this guideline Remediation of land Division 4 of the contaminated land provisions of the EP Act provides that the remediation of land on the EMR or CLR may be undertaken by a person either voluntarily (normally in relation to a development application for an alternative land use) or upon request of the administering authority. Land is removed from the EMR/CLR after remediation work is complete and a validation report has been submitted which satisfies the administering authority that the land is no longer contaminated. Alternatively, land can be transferred from the CLR to the EMR where a validation report can satisfactorily demonstrate that remediation has reduced contamination sufficiently that the environmental and human health risks from residual contamination can be managed under a site management plan (SMP). Details regarding the technical requirements for the remediation and validation of land on the EMR and CLR are provided in Part 4 of this guideline Site management plans Division 5 of the contaminated land provisions of the EP Act enable the preparation of SMPs for land on the EMR. In some cases it is not necessary or practical to remove all the contamination from a site in order to prevent environmental harm and/or public health risks. In such circumstances, the administering authority can approve SMPs for land which state how a site will be managed in order to prevent environmental harm or public health risks. Once approved SMPs are recorded on the EMR and are provided with any related search of the register. Details regarding the technical requirements for SMPs are provided in Part 4 of this guideline. 3

8 2.3 Offences The EP Act provides for a number of offences to act as a deterrent from causing environmental harm and for the efficient implementation of the legislation Contravention of a site management plan As discussed in section 2.2.4, sites on the EMR may be subject to a SMP. Under section 434 of the EP Act it is an offence to contravene a SMP. The maximum penalty for contravention of a SMP is $166,500 or two years imprisonment False or misleading documents The administering authority relies on the accuracy and veracity of reports submitted by clients, SQPs and TPRs when making environmental management decisions. In keeping with the ASC NEPM 1999, reports submitted to administering authority must be of a high professional standard. Under section 480 of the EP Act it is an offence to submit a document to the administering authority containing information that is false or misleading in a particular matter. The maximum penalty for supplying a document which is false or misleading is $166,500 or two years imprisonment. 3 Sustainable Planning Act 2009 (SPA) The purpose of SPA is to seek ecological sustainability by considering environmental factors in land use decision making and coordinating integrated development decisions. 3.1 Integrated development assessment system (IDAS) Chapter 6 of SPA establishes the IDAS a system for integrating state and local government assessment and approval processes for development (under s. 230 of SPA). Further information regarding IDAS is provided in Part 3 of this guideline or can be obtained from the Department of State Development, Infrastructure and Planning (SDIP) at (search guidelines ). 4 National Environment Protection (Assessment of Site Contamination) Measure 1999 The ASC NEPM 1999 (discussed in this section) and National containment guidelines, CRC Care Health Screening Levels and WA Asbestos Guidelines (discussed in section 5), or equivalent, are the minimum considerations for any site investigation report, validation report or site management plan. Not properly considering these documents when preparing contaminated land submissions is likely to result in either: a refusal of the application the requirement of another report the submission of additional information. Other guidelines and reference material, for example specific chemical toxicity assessments, may be used when preparing reports for the management of contaminated land where such material augments or enhances the information provided in the ASC NEPM The ASC NEPM 1999 was released in 1999 as the premier guidance document in Australia for the assessment of site contamination1. The ASC NEPM 1999 establishes a nationally consistent approach to the assessment of site contamination to ensure sound environmental management practices by the community, including regulators, site assessors, environmental auditors, landowners, developers and industry. In doing so it provides adequate regulation of human health and the environment where site contamination has occurred, through development of an efficient and effective national approach to the assessment of site contamination2. 1 Internet access 14 May 2012, 2 Internet access 14 May 2012, 4

9 In keeping with the National Environment Protection Council Act 1994, the administering authority has adopted the ASC NEPM 1999 for the assessment of contaminated land. A full list of the ASC NEPM 1999 technical guidelines (included as schedules to the ASC NEPM 1999) cover: the investigation levels for soil and groundwater data collection, sample design and reporting laboratory analysis of potentially contaminated soils health risk assessment methodology ecological risk assessment risk based assessment of groundwater contamination health-based investigation levels exposure scenarios and exposure settings community consultation and risk communication protection of health and the environment during the assessment of site contamination competencies and acceptance of environmental auditors and related professionals. 5 Other guidelines 5.1 National guidelines In 1999, The Australian and New Zealand Environment and Conservation Council (ANZECC) developed the Guidelines for the Assessment of On-Site Containment of Contaminated Soil (ANZECC 1999). These guidelines (or equivalent) must be considered in any contaminated land submission when on-site containment options for sites affected by contamination are being considered. AS : Guide to the investigation and sampling of sites with potentially contaminated soil - Non-volatile and semi-volatile compounds (Standards Australia 2005) and AS : Guide to the sampling and investigation of potentially contaminated soil Volatile substances (Standards Australia 1999) (or equivalent) must also be considered in the investigation and sampling of contaminated land. Further technical supporting documents are provided in the Contaminated Sites Monograph Series (El Saadi and Langley 1991; Langley and Van Alphen 1993; Edwards, Van Alphen and Langley 1994; Olszowy, Torr and Imray 1995; Langley, Markey and Hill 1996) and through the CRC Care Health Screening Levels (Friebel and Nadebaum 2011). Health impacts from petroleum hydrocarbon contamination should be assessed against Health screening levels for petroleum hydrocarbons in soil and groundwater in the CRC Care Health Screening Levels. Ecological impacts should be assessed using the Canada-wide standards for petroleum hydrocarbons (PHC) in soil (CCME 2008). Consideration also needs to be given to the physical and aesthetic impacts of petroleum hydrocarbons. 5.2 Asbestos policy There is currently no guidance available at the national level for the assessment, remediation and management of sites contaminated by asbestos. The administering authority regards the WA Asbestos Guidelines (DoH and DEC 2009) as current best practice and these must be used when preparing contaminated land submissions regarding asbestos contaminated land. 5

10 Part 2 Roles and responsibilities 1 Introduction Managing contaminated land involves all levels of government, industry, landowners, and the wider community. This part of the guideline sets out the responsibilities of government, landowners, industry and developers in the prevention, identification and remediation of contaminated land. 2 Administering authority The entity responsible for the administration and enforcement of the EP Act is the administering authority. While the administration and enforcement of many parts of the EP Act have been devolved to local government under section 514, the administering authority for Chapter 7, Part 8 of the EP Act is the chief executive of EHP. Despite being the administering authority for contaminated land matters, EHP enters into agreements with other state government agencies with specific expertise. Under a Memorandum of Understanding between EHP and Queensland Health, the Radiation Health Unit (RHU) is responsible for the assessment of land contamination caused by radioactive substances. In the case of UXO contamination, the administering authority works closely with the Department of Defence (Defence). Defence s role is to identify land affected by UXO and make preliminary assessment of the extent and nature of contamination. Under Commonwealth Government policy, Defence is responsible for disposal of discovered UXO. 2.1 Prevention of contamination The administering authority is responsible for the approval of many industrial activities which are able to cause environmental harm including land contamination. The administering authority sets conditions regarding the management of industrial raw materials and liquid and solid chemical wastes for such approvals to ensure that future land contamination from industrial activity is minimised. 2.2 EMR/CLR As the administering authority of Chapter 7, Part 8 of the EP Act, EHP is responsible for maintaining the EMR and CLR. As outlined in Part 1 of this guideline, the EMR and CLR are public access registers which members of the public can search and obtain extracts. EHP Factsheet 6: How to search the EMR and CLR and Factsheet 7: Results of a search of the EMR and CLR provide information regarding searching and obtaining extracts from the EMR and CLR (EHP in prep (a); EHP in prep (b)). 2.3 Assessment and approval of reports and site management plans Under the EP Act, a person can submit: a site investigation report (i.e. a scientific assessment to determine if contaminants are present on a site and, if so, whether the contaminants pose a risk to human health or the environment) a validation report about remediation work undertaken on a contaminated site a site management plan (SMP) which outlines how hazardous contaminants will be managed so that they do not pose a risk to human health or the environment. The administering authority is responsible for the assessment of these documents. This assessment generally includes ensuring that work has been carried out in accordance with the technical requirements of the guidance documents listed in Part 1, Section 1 of this guideline. After assessing and accepting these documents the administering authority may determine: land can be removed from EMR/CLR land should be moved to or from the EMR and CLR contaminated land can be adequately managed for a proposed land use. 6

11 Alternatively, the administering authority may determine that a document in the form submitted, is inadequate and: refuse it request a new document request additional information. 2.4 Suitability statements After considering a site investigation or validation report and any associated SMP, the administering authority decides whether the land is contaminated and for what uses it is suitable. The administering authority then prepares a suitability statement which is a brief report about the site and the uses for which the land is suitable. Suitability statements are issued to the landowner and the applicant (if this is a person other than the owner) and the LGA. 2.5 Compliance The administering authority takes a cooperative approach to managing and monitoring risks to Queensland s environment. Nevertheless, the community also expects the administering authority, as Queensland s lead environmental agency, to assess compliance in regard to contaminated land legislation to ensure individuals are discharging their duties and responsibilities appropriately. The administering authority is committed to the proactive management and monitoring of risks to Queensland s environment through the implementation of a compliance strategy founded on a targeted and transparent approach to compliance supported by a modern and strong enforcement capability. Where non-compliance matters are encountered, the administering authority will seek to implement a measured and appropriate response. The administering authority has published Enforcement Guidelines (DERM 2010a) which explain how it determines what enforcement action it will take in any given situation Compliance plans The administering authority publishes annual compliance plans which can be downloaded from (search compliance ). Under these compliance plans the administering authority is able to implement compliance actions relevant to the management of contaminated land. Such compliance actions may target: quality of investigation and validation reports provided remediation outcomes achieved implementation of SMPs Compliance notices Under the EP Act, the administering authority can issue notices requiring: site investigations where a preliminary investigation has shown that hazardous contaminants present (in accordance with section 376) land on the CLR to be remediated and a validation report to be submitted (in accordance with section 391) the preparation of a SMP where a site investigation has shown that land is contaminants present on land require management to make the land suitable for the proposed use (in accordance with section 405). Such notices are issued where there is serious or material environmental harm being caused or the potential for serious or material environmental harm to be caused by a site listed on the EMR or CLR. 2.6 Area management advices Area management advices (AMA) provide information on areas where there is a potential for widespread contamination but where detailed information is not available. An AMA is an administrative arrangement developed by the administering authority in conjunction with local government for use by planning authorities. 7

12 An AMA provides information to the community on dealing with land contamination in widespread areas. Such areas include: natural mineralisation where elevated concentrations of heavy metals may be found across a wide area but site specific information is not available former defence training areas where there is a possibility of UXO being found. 3 Local government Local governments have a pivotal role in the identification of contaminated land and in the decision making process for land use planning as assessment managers under IDAS. 3.1 Notification Under the EP Act, all local governments in Queensland are required to notify the administering authority of land that has been or is currently used for notifiable activities within their local government area. This is to enable it to be included on the EMR. This information is gathered by local governments through sources such as historical information, aerial photographs, local knowledge and town planning records. Following advice from the administering authority that land has been included on the EMR or CLR, the local government must maintain a record of this land for reference in land use planning and for decision making relating to development approvals. The information provided to local government regarding the inclusion of land on the EMR/CLR is for internal use only. Members of the public requiring information about land recorded on the EMR/CLR should be referred to the administering authority to complete a public search. 3.2 Development assessment managers Part 3 of this guideline outlines the process by which land use approvals are administered under IDAS. The role of assessment manager is crucial to IDAS, for a typical development application involving contaminated land, local government will undertake the role of assessment manager. 4 Land owner and occupier 4.1 Notification If the owner or occupier of land becomes aware that a notifiable activity is being carried out on the land or if the land has been, or is being, contaminated by a hazardous contaminant, under section 371 of the EP Act the owner or occupier must notify the administering authority within 22 business days. Notification under section 371 must be in the approved form. The maximum penalty for failing to give notification under section 371 is $10,000. More details on the notification process can be found on Factsheet 2 Notifiable activities (DEHP in prep (c)). 4.2 Notices to be given Occupancy agreements If land is recorded on the CLR and the owner of the land has entered into, or proposes to enter into, an agreement with another person about occupancy of the land, under section 420 of the EP Act, the owner must give written notice to the other person regarding the land being recorded on the CLR. The maximum penalty for not giving notice under section 420 is $5000. If the owner does not give notice as required under section 420 of the EP Act, the person who has entered into the occupancy agreement may terminate the agreement by written notice given to the owner within 10 days of becoming aware the land is recorded on the CLR Sale of land Under section 421 of the EP Act, anyone selling or otherwise disposing of land that is listed on the EMR or CLR is required to give written notice of the land s EMR status to any potential buyer. This ensures that potential buyers of land are aware of relevant past or present land use practices and any SMP before purchasing the property. The maximum penalty for not giving notice under section 421 is $

13 If the owner does not give notice as required by section 421 of the EP Act, the buyer may rescind the agreement by written notice given to the owner. On rescission of the agreement, any money paid by the buyer to the person must be refunded. 4.3 Site management When a development application is made for a material change of use to a more sensitive land use or for the reconfiguring of a lot; land that has been used for a notifiable activity or is recorded on the EMR or CLR will require an investigation and, possibly, remediation. The person making the development application (typically the landowner or occupier) normally commissions such investigation and remediation and, as part of the development approval, prepares a remediation action plan (RAP) for incorporation in a SMP. Site investigations, validation reports regarding the remediation of land and SMPs must be completed by SQPs. More details on the preparation of site investigation reports, validation reports and SMPs are contained in Part 4 of this guideline. 4.4 Site compliance As detailed in Part 1 of this guideline, under section 434 of the EP Act, a landholder or occupier is responsible for complying with any SMP approved and recorded on the EMR for the site. 9

14 Part 3 IDAS 1 Introduction Chapter 6 of SPA establishes the Integrated Development Approval System (IDAS) as a single, uniform system for development approval that enables referral agencies to have input in the assessment process. The system provides for the social, economic and environmental (including contaminated land) matters relevant to a development application to be coordinated through a single process. 2 Stages of IDAS The IDAS process can involve up to five stages, although not all applications will require all stages. The stages of IDAS are the: application stage where the application is lodged with the relevant assessment manager information and referral stage where the application is referred to relevant agencies and further information may be necessary to determine the application as requested and to assess the development proposal against relevant criteria notification stage where the public is made aware of the development proposal and is given an opportunity to make submissions regarding the proposal. The notification stage may be applicable to contaminated land applications but the administering authority is not involved and this stage is not always applicable. More information regarding the necessity for the notification stage should be sought from the relevant local government decision stage where the assessment manager makes a decision on the application including any requirements of referral agencies compliance stage for certain applications which can be assessed against clear technical standards which do not require the exercise of broad discretion. Contaminated land assessment does not lend itself to compliance assessment and this stage is not relevant to contaminated land applications. Therefore under many situations only three stages will be relevant to an application involving contaminated land ( application, information and referral and decision ). 3 IDAS roles IDAS defines the responsibilities for the respective participants in the process. Participants include: the applicant who makes the development application who is normally the landowner, land occupier or developer the assessment manager, typically the relevant local government, who accepts, coordinates and ultimately decides the application referral agencies, usually state government agencies, who assess the application against certain criteria. Referral agencies may be: - concurrence agencies who can direct the decision about the application e.g. require refusal or require conditions to be applied to any approval issued by the assessment manager (the administering authority is a concurrence agency for contaminated land matters) - advice agencies who cannot direct the decision about the application but can give advice to the assessment manager regarding the application. There are no advice roles regarding contaminated land matters. submitters who are members of the public who want to make submissions regarding the application because they believe the development will have an impact on them. Under IDAS, an application may be: approved as a development permit or a preliminary approval either with or without conditions refused. 10

15 4 Pre-IDAS assessment Most development applications regarding land included on the EMR or CLR will be made under IDAS as part of a development proposal. However, an application may be progressed under the EP Act not in conjunction with a development proposal or prior to the submission of a development application under IDAS. Where an application is made prior to IDAS, e.g. a site investigation report prepared by an SQP is submitted prior to IDAS, the administering authority can issue a site suitability statement and/or remove the site from the EMR and/or CLR. Where the site is removed from both the EMR and CLR or the proposed land use is consistent with a site suitability statement, a development proposal will not be required to be referred to the administering authority for contaminated land matters under IDAS. 5 Assessment under IDAS The administering authority will be a referral agency under IDAS for a development application for land which is on the EMR or CLR. In most cases the relevant local government will be the assessment manager for the application, however, in certain cases the administering authority will be the assessment manager. 5.1 Preliminary approvals A preliminary approval approves development but does not authorise assessable development to take place. The administering authority may require that any development approval issued by the assessment manager be only a preliminary approval. This is done when the land remains on the EMR and a SMP has not been approved to manage the use of the land and contaminants on the land consistent with the proposed land use. 5.2 Administering authority as assessment manager In certain circumstances, as outlined in sections and below, the administering authority may be the assessment manager for development applications involving land on the EMR or CLR Contaminated land as the only trigger under SPA In accordance with Schedule 6, Table 3, Item 9 of the Sustainable Planning Regulation 2009 (SP Regulation), the administering authority is the assessment manager for development applications where the only assessable development trigger is contaminated land. It should be noted that such instances are rare and advice confirming there is no other assessable development trigger should be sought from the relevant local government and the administering authority. Where this is confirmed, there is no need to progress applications under IDAS and the administering authority recommends applications be progressed under the EP Act alone (refer to Part 3, Section 4 Pre-IDAS Assessment) Multiple triggers for the administering authority In accordance with Schedule 6, Table 4, Item 1 of the SP Regulation, the administering authority is also the assessment manager for applications that involve only the following assessable development triggers: (i) an environmentally relevant activity for which the EHP is the administering authority under the EP Act (ii) development on contaminated land (iii) operational work that is tidal works or work carried out completely or partly within a coastal management district (iv) assessable development on a Queensland heritage place (v) assessable development under Schedule 3, Part 1 Table 4, Item 10 of SPA. It should be noted that such instances are rare and advice confirming there is no other assessable development should be sought from the relevant local government. Where this is confirmed, a development application can be submitted directly to the administering authority as the assessment manager. 5.3 Local government as assessment manager Under most circumstances, i.e. those involving multiple referral agencies, the relevant local government will be the assessment manager and the administering authority will be a referral agency. A flow chart showing the stages, processes and indicative timeframes for a development application involving contaminated land can be downloaded from the SDIP website after answering a series of questions regarding the attributes for the particular application. 11

16 Part 4 Land assessment and remediation process 1 Introduction Reports prepared regarding the assessment and remediation of contaminated land must contain sufficient and appropriate information to enable efficient review by the administering authority. Assessment and remediation of contaminated land is conducted through a site-specific approach and in accordance with guidance documents listed in Part 1, Section 1 of these guidelines. Successful assessment and remediation of land on the EMR and CLR may result in the removal of land from the EMR and/or CLR or the approval of a SMP to enable a more sensitive land use. 2 Development approval process The development approval process under IDAS is outlined in Part 3 of this guideline. To prevent unnecessary costs and delays, it is recommended that consideration be given to land contamination issues early in development planning. Incomplete assessments will result in requests for additional information. There is always a risk that development works will uncover undetected contamination which will result in alterations to RAPs. However, complete and accurate site assessment work will reduce the risk of uncovering previously undetected contamination. The staged contaminated land assessment process (outlined in Part 4, Section 4) enables changes to be made throughout the development approval and site works staged. 3 Professional requirements The EP Act requires certain professional requirements for persons preparing site investigation reports, validation reports and SMPs. These requirements are briefly outlined in sections 3.1 and 3.2 below, however, more detail is available in the Guideline: Assessing qualified persons according to sections 381, 395 and 410 of the Environmental Protection Act 1994 (DEHP in prep(d)). In order to improve the assessment and management of contaminated land an optional third party review (TPR) system has been introduced. This process has been developed in accordance with the ASC NEPM 1999 Schedule B(10) guideline on Competencies and acceptance of environmental auditors and related professionals. Full details of the TPR process are contained in Operational Policy Third party reviewer terms of reference (DERM 2010b). 3.1 Suitably qualified persons Sections 381, 395 and 410 of the EP Act require persons who prepare site investigation reports, validation reports and SMPs respectively to be SQPs. To be an SQP, the individual must be a member of a prescribed organisation and have the relevant qualifications and experience in keeping with the ASC NEPM 1999 and relevant to the contamination issues raised by a particular site. The assessment of contaminated land is a specialised professional area involving a number of disciplines. SQPs must have a range of competencies and be able to recognise the need for supporting professional advice beyond their expertise when assessing contamination and its effects on human health and the environment. 3.2 Statutory declarations Under sections 383 and 395 respectively, site investigation and validation reports must be accompanied by statutory declarations from both the applicant (the person to whom all information about the investigation is directed) and the SQPs (only one statutory declaration is required where the applicant and SQP are the same person). Where an SQP uses a professional support team (defined in the Guideline: Assessing qualified persons according to sections 381, 395 and 410 of the Environmental Protection Act 1994 (DEHP in prep(d)) there are specific requirements to be met to provide assurance to the administering authority that all the relevant qualifications and experience are available to the SQP to complete works on and assessment of a particular site. 4 Staged assessment and remediation process Contaminated site management is broadly classified into four stages: Stage 1 preliminary site investigation Stage 2 detailed site investigation 12

17 Stage 3 health and environmental risk assessment and development of RAP Stage 4 implementation of RAP and preparation of validation report. The reports in the above stages may be prepared separately or combined in various ways, however, each report must be able to stand alone, containing sufficient information to be readily understood. Where relevant information has been included in previous reports, a summary of the report should be included in the current report. The following sections in this guide discuss the reporting requirements for each stage. At each stage the SQPs must present their findings clearly in a sound and reasoned manner. Uncertainties in the investigation need to be clearly identified. The basis for conclusions and recommendations must be included. Appendix 2 provides a reporting check list for reporting requirements to assist SQPs in the preparation of reports. The process by which these stages are integrated with SMPs (refer section 5 below) is outlined in Appendix 1 of this guideline. A checklist summary of each stage is included in Appendix 2. The most efficient use of resources during an investigation will require the development of data quality objectives (DQOs). AS & 2 and the ASC NEPM 1999 Schedule B(2) guideline on Data collection, sample design and reporting (or equivalent) must be used to assist with the determination of the DQOs and the most appropriate sampling pattern and density of sampling for the particular site under investigation. Reports provided will require any sampling and analysis to be completed in accordance with a sampling and analysis quality plan (SAQP). 4.1 Preliminary site investigation A preliminary site investigation report includes: all past and present potentially contaminating activities details of all potential contamination types discussion of the site condition preliminary assessment of the site contamination based on a basic sampling program to determine the presence of contamination an assessment of the need for further investigation. An essential part of a preliminary site investigation is the preparation of a comprehensive site history to identify all past and present potentially contaminating activities (including the potential for importation of contaminated fill). Information obtained from the site history research should be used to assess the potential for contamination on the site and determine the most appropriate locations for sampling. Submissions must incorporate investigation of the entire real property description area of the site and not be limited to the area of the notifiable activity. Only where a detailed, accurate and reliable site history is available may the investigation be confined to known areas of contamination risk. 4.2 Detailed site investigation A detailed site investigation is required when the results of a preliminary site investigation indicate potential or actual contamination (i.e. levels above health investigation levels (HILs) or environmental investigation levels (EILs) in Schedule B(1) guideline on the Investigation levels for soil and groundwater (ASC NEPM 1999), HSLs for petroleum hydrocarbons in the CRC Care Health Screening Levels and Soil Asbestos Investigation Criteria all site uses (SAIC-all site uses) in the WA Asbestos Guidelines. The detailed site investigation should delineate the lateral and vertical extent of contamination and provide information about: maximum, distribution and average concentrations of the various contaminants leachability and mobility of contaminants the presence of any phase-separated hydrocarbons potential for groundwater contamination potential for volatile organic compound migration into indoor spaces potential for adverse impacts on air quality on-site (e.g. asbestos) possibility of off-site migration through soil, surface water, groundwater or air dispersal potential impacts on public health, the environment and building structures. 13

18 The decision on how to proceed in the second stage of an investigation will be determined by site history, soil morphology and the need to sample the natural ground in cases where fill material is present. The extent of fill across the site should be delineated and representative samples collected from each fill type. Close sample spacing is required when delineating a known zone of contamination. Where a point source of contamination is identified, the extent and depth of the contaminated area needs to be defined by sampling, using the site history to guide the type and density of sampling. Surface and groundwater should be sampled where present if analysis of contaminant pathways suggests they may have been impacted by contaminants from the site. Some additional samples should be taken in areas not expected to be contaminated in order to establish local background levels. A RAP will be required to be implemented if the results of the detailed site investigation indicate that the site poses unacceptable risks to human health or the environment (see section 4.3 below). 4.3 Health and environmental risk assessment and development of a remediation action plan The results from the site investigation should be used to determine the health and environmental risks in accordance with the ASC NEPM 1999, the CRC Care Health Screening Levels and the WA Asbestos Guidelines. When the results of a contaminated site investigation and risk assessment indicate that some remediation is required before the site would be suitable for the current or proposed land use, a RAP will be required which includes: volumes of soil requiring remediation remediation goals that ensure the remediated site(s) will be suitable for the proposed use and will pose no unacceptable risk to human health or to the environment details of procedures and plans to be implemented to reduce risks to acceptable levels for the proposed site use environmental safeguards required to complete the remediation in an environmentally acceptable manner identification and proof of the necessary approvals and licences required by regulatory authorities were acquired, including soil disposal permits (full details regarding soil disposal permits are provided in Part 5 of this guideline). The presence of separate phase hydrocarbons and/or landfill gas requires careful consideration in regard to health, environmental, fire and explosive risks. The presence of separate phase hydrocarbons and/or landfill gas will likely necessitate active management to reduce any hazards. 4.4 Implementation of a remediation action plan and preparation of validation report It is essential to validate that a site has been satisfactorily remediated according to the objectives identified in the RAP. This is achieved by conducting a validation sampling program. Validation reports must document the remediation works (including soil disposal locations and volumes, transport details, etc) and statistically confirm that the site has been remediated according to the pre-determined remediation goals identified in the RAP. The extent and density of sampling required will be established in accordance with the DQOs for the project. 5 Site management plans (SMPs) SMPs are used to manage the environmental harm that may be caused by contamination of the land associated with the use or development of, or activities carried out on the land.. In many instances contaminants may be present on site (e.g. in deep soils below the ground) but, for the existing or proposed use, it may be more practical and present less environmental and/or health risk for the contaminants to be safely managed on-site under specified conditions. These conditions would form the body of a SMP for such a site. The legal requirements related to the use and approval of SMPs are described in Chapter 7, Part 8, Division 5 of the EP Act. Section 402 of the EP Act outlines the minimum requirements of a SMP as: (a) A statement of the objectives to be achieved and maintained under the SMP. (b) A statement of how the objectives are to be achieved and maintained. (c) Provision for the monitoring and reporting of compliance with the SMP. 14