Procedures for public land managers

Public land managers are responsible for the management of a large amount of land in NSW.

Public land portfolios may include sites where historic activities have contaminated the land. Public land managers have obligations to ensure any human health and environmental risks associated with land contamination are appropriately managed.

This information is for public authorities (for example, local councils or state government agencies) and public corporations who are responsible for managing public land.

Procedures for identifying and managing contaminated land

A broad set of model procedures has been developed for identifying and managing contaminated land. This allows public land managers to manage contaminated land while incorporating their own compliance needs, objectives, procedures, and commercial drivers.

The procedures consist of

  • a decision tree (PDF 182KB) that highlights key decision points, stages of management, and resources available
  • resource sheets that detail key considerations for a land manager at each stage in the management process, legislative obligations, guidelines, and other tools.

Resource sheets

Key considerations

Compliance

Determine the obligations for awareness and for responsible management of contamination to achieve compliance with relevant legislation

Corporate objectives

Establish any relationships between the management of contaminated land risks and the achievement of corporate objectives

Due diligence

Consider due diligence obligations for assessing and mitigating human health, environmental and business risks associated with contamination

Commercial

Consider commercial drivers for assessing contamination to facilitate property transactions, impact on property values and reduction in financial liabilities

Responsibility

Identification of parties responsible for any potential contamination

Legislation and standards

NSW Legislation

Contaminated Land Management Act 1997

The Act enables the EPA to respond to contamination that it has reason to believe is significant enough to warrant regulation.

The Act gives the EPA power to:

  • declare land to be significantly contaminated land
  • order a person to undertake a preliminary investigation of land that the EPA suspects to be contaminated
  • order a person to take management action in relation to significantly contaminated land
  • approve a voluntary proposal to manage significantly contaminated land
  • order that land that has been the subject of a management order or approved voluntary management proposal be subject to an ongoing maintenance order.

The hierarchy of people that the EPA may direct to take action is as follows:

  1. the person/s responsible for the contamination
  2. the owner/s
  3. the notional owner/s.

The EPA may also direct a public authority to carry out management action in relation to contaminated land. Those ordered to take management action may appeal against the order. They can also recover costs from the person/s responsible for the contamination in some circumstances.

Duty to notify

The Act requires landowners and persons who carry on contaminating activities to notify the EPA of the contamination of land in certain circumstances.

NSW site auditor scheme

The Act allows the EPA to accredit people as site auditors who can be engaged to review investigation, remediation and validation work done by contaminated land consultants. Site auditors must issue a Site Audit Statement indicating the land uses that any site is suitable for.

NSW Legislation

Environmental Planning and Assessment Act 1979

The Act provides for the development of State and Local environmental planning instruments. These instruments may contain requirements for the management of contaminated land.

The Act also requires determining authorities to take into account all matters likely to affect the environment (which generally includes contaminated land issues) when assessing activities.

NSW Planning has consolidated 45 existing state environmental planning policies into 11 new policies, effective from 1 March 2022.

NSW Legislation

State Environmental Planning Policy (Resilience and Hazards) 2021

This Policy replaces the State Environmental Planning Policy 55 – Remediation of Land. ‘Chapter 4 – Remediation of land’, of this new policy, contains planning provisions from SEPP 55, which provides a state-wide planning framework for the remediation of contaminated land and to minimise the risk of harm.

Chapter 4 imposes obligations on planning authorities to consider whether land is contaminated when assessing rezoning and development applications. It also establishes the types of remediation activities that require development consent.

NSW Legislation

State Environmental Planning Policy (State Planning Systems) 2021

This Policy replaces the State Environmental Planning Policy (State and Regional Development) 2011.

‘Chapter 2 – State and regional development’ contains planning provisions from the State and Regional Development SEPP and identifies state or regionally significant development, state-significant infrastructure, and critical state-significant infrastructure.

Schedule 1, clause 24 specifies when the remediation of contaminated land qualifies as state significant development.

NSW Legislation

Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019

This Regulation sets out requirements for the installation, management, monitoring and decommissioning of underground petroleum storage tanks.

NSW Legislation

Work Health and Safety Act 2011

The Act requires a person conducting a business or undertaking to ensure a safe work environment for employees, and establishes requirements for the assessment and management of asbestos.

Australian Standard

Risk Management – Principles and Guidelines (AS/NZS ISO 31000:2018)

The Standard establishes processes for the identification, assessment, evaluation, control and monitoring of risks faced by organisations. The standard can be applied to assist in decision-making regarding contaminated land.

Australian Accounting Standard

Provisions, Contingent Liabilities and Contingent Assets (AASB137)

The Standard sets out requirements for the calculation of provisional and contingent liabilities.

Other considerations

Organisational Frameworks

Business Plans and Risk Frameworks

The organisational business plans of land owners typically set out corporate objectives that may influence the management of contaminated land.

Similarly, enterprise risk frameworks typically require the identification, evaluation and control of risks relating to health and safety, the environment, legal obligations, finances and reputation; all of which may be affected by contaminated land issues.

Key considerations

Site history

Establish whether a current or former land use has potentially caused contamination.

Indicators of contamination

Walkover the site and note the presence of former site infrastructure, odours, staining on the ground or die back of vegetation.

Relevant site information

Review any records relating to environmental assessment carried out at the site, and any chemicals currently/formerly used or stored on site.

Risks posed by the contamination

Consider the presence of any human or environmental receptors that could be affected by contamination.

Assessment requirements

In cases where the nature and extent of contamination is likely to be very minor (refer to the Tools) the owner may decide to perform minor remedial tasks to remove the contamination and its source.

Where contamination issues are likely to be more significant, a site assessment should be performed by a suitably qualified consultant. An assessment by a consultant may also be desirable to facilitate property transactions or to more accurately evaluate business risks associated with contamination.

Information management

Information collected during the review of records and the site walkover should be managed in a centralised system to maintain corporate knowledge.

Guidelines

Source

Resource

Department of Urban Affairs and Planning and NSW EPA 1998

Managing Land Contamination: Planning Guidelines (PDF 219KB)

This guideline aims to establish 'best practice' for managing land contamination through the planning and development control process. The guidelines provide advice to planning authorities on the early identification of contaminated sites, consideration of contamination in rezoning and development applications, recording and use of information, and ways to prevent contamination and reduce the environmental impact of remediation activities.

Table 1 and Appendix A are useful for identifying past site uses that may have contaminated land.

NSW EPA

Guidelines for Implementing the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019 (PDF 4MB)

This guideline provides background on the UPSS Regulation 2019 and documents best practice management to minimise the risk of pollution and contamination from leaking underground fuel tanks. The 2019 Guidelines replace the previous 2009 guidelines and the UPSS Technical Note: Site validation reporting and UPSS Technical Note: Decommissioning, abandonment and removal of UPSS.

Tools

Source

Resource

NSW EPA

Managing land contamination in NSW

The NSW EPA website provides background information on the management of contaminated land in NSW.

NSW EPA

Consultants and the site auditor scheme

The NSW EPA website has useful information on how to engage a consultant.

 

Indicators that further investigation is required

A range of indicators are provided below as guidance in determining whether a person should seek advice about site contamination for the purposes of section 60(9)(b) of the CLM Act. These examples are not exhaustive and do not constitute legal advice. The importance of seeking further advice about site contamination will depend on the particular circumstances in each instance and these may differ from the examples given below. Landowners and anyone carrying out potentially contaminating activities should obtain independent legal advice.

Minor indicators

  • Small quantities of chemicals
  • Small areas of stained soil
  • Minor flaking paint
  • Isolated fragments of asbestos
  • Small stockpiles of wastes

Major indicators

  • Large volumes of fuel or chemical storage (including radioactive)
  • Uncontrolled use of chemicals, particularly near water
  • Significant leaks or spills of liquids, including severely stained soils
  • Uncontrolled filling of the land
  • Significant stockpiles of waste materials
  • Large area of discoloured/odorous soil or surface water
  • Extensive flaking paint on structures
  • Large quantities of asbestos fragments

Key considerations

Expertise

Consider the type of expertise required to perform the site assessment. ‘Environmental Consultants’ typically perform assessments for a wide range of contamination issues, while

‘Occupational Hygienists’ are normally specialists in relation to asbestos.

Consider whether an accredited Site Auditor should be appointed to oversee the site assessment and any subsequent remediation works. Site Auditors can be required when works are regulated under the Contaminated Land Management Act 1997 or Environmental Planning and Assessment Act 1979 but can also provide great value where complex contamination issues exist, or where the property will be the subject of a high value transaction.

Ensure the person carrying out the environmental site assessment is suitably qualified and consider requirements for formal certification under an EPA-recognised scheme.

Understanding of the identified contamination

Ensure the person carrying out the assessment has access to all relevant property information, and clearly understands the long-term objectives for the property.

Perform the site assessment to determine the location and extent of the contamination, the fate and transport of the identified contaminants, and the impacts on the property management objectives.

Risks posed by the contamination

Consider evidence of harm to human health and/or the environment, potential exposure pathways and evidence of off-site impacts. Also consider any business risks that may arise due to the contamination, including legal, financial or reputational risks.

Assess whether any preventative actions can be implemented to avoid further contamination from occurring.

Reporting to EPA

Results of a site assessment may oblige the land manager to report the contamination under s. 60 of the Contaminated Land Management Act 1997.

Information management

Information generated through the site assessment should be managed in a centralised system to maintain corporate knowledge.

Financial liabilities

Consider any requirements for the calculation and reporting of financial liabilities associated with the contamination.

Guidelines

Source

Resource

NSW EPA

Consultants reporting on contaminated land: Contaminated land guidelines (PDF 1MB) (May 2020)

These guidelines  provide a reporting framework and information to ensure that reports prepared by consultants on the management of contaminated land contain the right information in a suitable format to inform and explain management decisions, document outcomes, and provide for efficient review by regulators, the site auditor and other interested parties.

NSW EPA

Guidelines for the NSW Site Auditor Scheme (PDF 1MB) 3rd edition

These guidelines apply to individuals seeking to be accredited as site auditors in NSW, to those already accredited, and other people with an interest in contaminated sites – such as consultants and local councils. The guidelines introduce the NSW Site Auditor Scheme and outline the process for accreditation and renewal of accreditation; conducting site audits and contamination assessment, remediation and management.

NSW EPA

Guidelines for the Assessment and Management of Groundwater Contamination (PDF 618KB) (March 2007)

These guidelines outline a best-practice framework for assessing and managing contaminated groundwater in NSW. The guidelines focus on groundwater pollution arising from point source contamination rather than on broad-scale groundwater issues arising from diffuse sources.

NSW EPA

Sampling Design Guidelines (PDF 2MB) (September 1995) (review and update being finalised)

These guidelines encourage the use of a statistically based approach to the design of sampling plans for contaminated sites and the interpretation of these samples for assessing and validating sites; and provide a convenient summary of statistical methods.

NSW EPA

Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997 (PDF 510KB) (September 2015)

These guidelines provide information on two key aspects of the duty to report contamination under the Contaminated Land Management Act 1997 . The guidelines sets out the duty of landowners and those who have responsibility for contamination to report it to the EPA. They also outline how the EPA assesses and determines whether contamination is significant enough to warrant regulation.

National Environment Protection Council

National Environment Protection (Assessment of Site Contamination) Measure 1999 (April 2013)

The National Environment Protection Measure consists of a policy framework for the assessment of site contamination, Schedule A (Recommended General Process for the Assessment of Site Contamination) and Schedule B (Guidelines).

Schedule B guidelines include:

  • Guideline on Investigation Levels for Soil and Groundwater
  • Guideline on Site Characterisation
  • Guideline on Laboratory Analysis of Potentially Contaminated Soils
  • Guideline on Site-specific Health Risk Assessment Methodology
  • Guideline on Ecological Risk Assessment
  • Guideline on Methodology to Derive Ecological Investigation Levels in Contaminated Soils
  • Guideline on Ecological Investigation Levels for Arsenic, Chromium(III), Copper, DDT, Lead, Naphthalene, Nickel and Zinc
  • Guideline on the Framework for Risk-based Assessment of Groundwater Contamination
  • Guideline on Derivation of Health-based Investigation Levels
  • Guideline on Community Engagement and Risk Communication
  • Guideline on Competencies and Acceptance of Environmental Auditors and Related Professionals.

ANZG

Managing Contaminated Land: Planning Guidelines

Australian and New Zealand Guidelines for Fresh and Marine Water Quality ANZG (August 2018)

The Water Quality Guidelines are an online resource. The revised Water Quality Guidelines replaced the ANZECC and ARMCANZ (2000) water quality guidelines in 2018. They are statutory guidelines approved by the EPA under section 105 of the Contaminated Land Management Act 1997.

NSW EPA

Assessment and remediation of Light Non-Aqueous Phase Liquid (LNAPL) contamination (PDF 320KB) (August 2015)

This technical note describes the steps the EPA expects to be taken to identify any release of Light Non-Aqueous Phase Liquid and the EPA’s general expectations in relation to the management and remediation of Light Non-Aqueous Phase Liquid contamination at a site.

NSW EPA

Resources for implementing the UPSS Regulation

Guidance to support consistent implementation of the UPSS Regulation 2019.

NSW EPA

Landfarming (PDF 913KB) (April 2014)

This best practice note outlines the EPA’s expectations for those who undertake soil remediation in NSW using landfarming. It aims to promote good practice and assist practitioners to comply with the requirements of the Protection of the Environment Operations Act 1997 particularly the uncontrolled release of emissions to air, land and water.

NSW EPA

Information for the assessment of former gasworks sites (PDF 367KB) (July 2005)

This resource provides Information about a broad explanation of the contamination associated with former gasworks sites. It includes background information about gasworks sites, a summary of existing guidance material to assist in the assessment of these sites and useful references for further reading.

NSW EPA

Underground Petroleum Storage Systems Guidelines  (PDF 4MB) (UPSS) (December 2020)

This resource provides background on the Underground Petroleum Storage Systems Regulation and guidance materials available for assessing sites with underground fuel storage.

NSW EPA

Vapour Intrusion (PDF 243KB) (September 2010)

This technical guidance provides an advisory note to assist practitioners on the assessment of vapour intrusion on contaminated land in NSW. It should be read in conjunction with national guidance documents, recognised industry best practice, standards and other technical publications.

NSW EPA

Assessment and Management of Sites Impacted by Hazardous Ground Gases (PDF 4.2MB) (May 2020)

These guidelines provide advice on recognising and appropriately managing risks due to hazardous ground gases during the assessment and remediation of potentially contaminated land or during the development of land adjacent to sites impacted by hazardous ground gases.

SafeWork NSW

Managing asbestos in or on soil

These guidelines provide general information on the assessment and management of asbestos in soil. The guidance provided in this document applies principally to legacies from poor historical onsite management of asbestos materials, and not to illegal disposal or landfilling activities related to waste generated offsite.

NSW EPA

Guidelines for Assessing Banana Plantation Sites (PDF 600KB) (October 1997)

These guidelines relate to sampling former banana plantation sites to estimate the extent of contamination posed by primary contaminants, specifically arsenic and organochlorine pesticides, and validating the remediation of sites, i.e. demonstrating that cleanup criteria have been met and that the site is suitable for residential use.

NSW EPA

Guidelines for the Vertical Mixing of Soil on Former Broad-acre Agricultural Land (PDF 152KB) (January 1995)

The guidelines are aimed at environmental professionals or council staff who want to investigate the feasibility of using vertical mixing, whether for large development projects or single building allotments. Vertical mixing of soil is essentially the process of remediating contaminated surface soils by mixing them with cleaner soils found at greater depths. The guidelines also contain a number of prerequisites for using vertical mixing.

NSW EPA

Guidelines for Assessing Former Orchards and Market Gardens (PDF 176KB) (June 2005)

These guidelines are primarily for local councils, the urban development industry, environmental consultants and other groups with an interest in site redevelopment. Using a mix of technical and nontechnical information, they provide basic guidance about the contamination issues to consider when deciding on the suitability of new uses for former orchard and market garden sites.

Australian Standards

Provisions, Contingent Liabilities and Contingent Assets (AASB137)

The Standard sets out requirements for the calculation of provisional and contingent liabilities.

Tools

Source

Resource

NSW EPA

Consultants and the site auditor scheme

The NSW EPA website has useful information on how to engage a consultant.

NSW EPA

Guidelines under the CLM Act

The NSW EPA website lists guidelines made or approved under s.105 of the Contaminated land Management Act 1997.

NSW EPA

Further guidance

The NSW EPA website lists further technical guidance on the assessment of contamination in NSW.

AIOH

Australian Institute of Occupational Hygienists

The Australian Institute of Occupational Hygienists website provides information on hygienists that satisfy the requirements for Australian Institute of Occupational Hygienists membership.

Key considerations

Remediation options

Remediation can be broadly considered as an action, or combination of actions taken to mitigate the risks associated with contamination. Remediation can range from administrative procedures (such as procedural changes), to engineering controls (such as fencing and signage) through to elimination (such as active removal or treatment of contamination).

In consultation with stakeholders (including the person responsible for the contamination if a third party) and an experienced environmental consultant, determine the most appropriate remedial strategy to address the contamination. The strategy can be documented within a remedial action plan (RAP), environmental management plan or other management action. The strategy should also carefully consider the safety, environmental and social impacts of performing the remediation.

Regulation

Remediation works may be regulated by the EPA under the Contaminated Land Management Act 1997 or by the appropriate planning authority during redevelopment of the land.

Consideration should also be given to any approval requirements under the Protection of the Environment Operations Act 1997 (such as an Environment Protection Licence) or the Work Health and Safety Act 2011 (such as SafeWork NSW (previously WorkCover) licences for asbestos removal).

Implementation

Appoint an experienced company, typically a ‘Remediation Contractor’ to implement the remedial action plan.

Ensure the person carrying out the remediation is suitably qualified and consider requirements for formal certification under an EPA- recognised scheme.

Site validation

Clean up the site to set validation criteria based on the proposed/current land use.

Information management

Information collected during the remediation works should be managed in a centralised system to maintain corporate knowledge.

Stakeholders

Active communication with stakeholders including the local community should be performed prior to, and during remediation.

Guidelines

Source

Resource

CRC CARE

Technical reports

CRC CARE's technical report series comprises a number of reports that address the technical aspects of the management and remediation of particular contaminants and remediation approaches.

CRC CARE

National Remediation Framework

Comprises modules and guidelines, available as 25 documents, for a nationally consistent approach to remediation of contaminated sites. The framework was developed to complement the National Environment Protection (Assessment of Site Contamination) Measure 1999 (April 2013), and together they provide comprehensive guidance for the assessment of site contamination and for the remediation and management of contaminated sites.

The framework has been endorsed as best practice by all jurisdictions; however, the framework is not approved as statutory guidance under the Contaminated Land Management Act 1997 and is therefore not mandatory to follow in NSW. The non-statutory nature allows sections or individual guidelines in the NRF to be reviewed and updated as required.

NSW EPA

Guidelines for the NSW Site Auditor Scheme

These guidelines apply to individuals seeking to be accredited as site auditors in NSW, to those already accredited, and other people with an interest in contaminated sites – such as consultants and local councils. The guidelines introduce the NSW Site Auditor Scheme, and outline the process for accreditation and renewal of accreditation, conducting site audits and contamination assessment, remediation and management.

NSW EPA

Guidelines for the Assessment and Management of Groundwater Contamination (PDF 618KB) (March 2007)

These guidelines outline a best-practice framework for assessing and managing contaminated groundwater in NSW. The guidelines focus on groundwater pollution arising from point source contamination rather than on broad-scale groundwater issues arising from diffuse sources.

National Environment Protection Council

National Environment Protection (Assessment of Site Contamination) Measure 1999 (April 2013)

The National Environment Protection Measure consists of a policy framework for the assessment of site contamination, Schedule A (Recommended General Process for the Assessment of Site Contamination) and Schedule B (Guidelines).

Schedule B guidelines include:

  • Guideline on Investigation Levels for Soil and Groundwater
  • Guideline on Site Characterisation
  • Guideline on Laboratory Analysis of Potentially Contaminated Soils
  • Guideline on Site-specific Health Risk Assessment Methodology
  • Guideline on Ecological Risk Assessment
  • Guideline on Methodology to Derive Ecological Investigation Levels in Contaminated Soils
  • Guideline on Ecological Investigation Levels for Arsenic, Chromium(III), Copper, DDT, Lead, Naphthalene, Nickel and Zinc
  • Guideline on the Framework for Risk-based Assessment of Groundwater Contamination
  • Guideline on Derivation of Health-based Investigation Levels
  • Guideline on Community Engagement and Risk Communication
  • Guideline on Competencies and Acceptance of Environmental Auditors and Related Professionals.

ANZG

 

Australian and New Zealand Guidelines for Fresh and Marine Water Quality ANZG (August 2018)

The Water Quality Guidelines are an online resource. The revised Water Quality Guidelines replaced the ANZECC and ARMCANZ (2000) water quality guidelines in 2018. They are statutory guidelines approved by the EPA under section 105 of the Contaminated Land Management Act 1997.

WorkCover NSW

Managing asbestos in or on soil (March 2014)

These guidelines provide general information on the assessment and management of asbestos in soil. The guidance provided in this document applies principally to legacies from poor historical onsite management of asbestos materials, and not to illegal disposal or landfilling activities related to waste generated offsite.

WorkCover NSW

How to deal with asbestos 'fibro' in soil at home (January 2014)

This resource details advice on safely dealing with asbestos present in the home and when the services of a specialist asbestos removalists should be sought.

Key considerations

Site specific approach

Ongoing management is site specific and based on the outcomes of the remedial actions. Ongoing management options could include actions detailed in an environmental management plan, the maintenance of signage/do not disturb areas or Work Health and Safety policies.

Notification mechanisms

In some circumstances a notation on a planning certificate or a covenant registered on the land title is appropriate to notify of contamination. These include s.10.7(2) and 10.7(5) (previously s.149(2) and (5)) planning certificates under the Environmental Planning and Assessment Act 1979 and covenants registered on the land title under s.88B of the Conveyancing Act 1919.

Stakeholders

Communication with stakeholders should be maintained where ongoing management actions will have impacts on site usage.

Guidelines

Source

Resource

Department of Urban Affairs and Planning and NSW EPA 1998

State Environmental Planning Policy (Resilience and Hazards) 2021

Aims to establish 'best practice' for managing land contamination through the planning and development control process. The guidelines:

  • provide advice to planning authorities on the early identification of contaminated sites
  • consideration of contamination in rezoning and development applications
  • recording and use of information
  • ways to prevent contamination and reduce the environmental impact of remediation activities.

Section 5 of the guidelines contain information on the use of planning certificates.

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