Draft position statement: management of asbestos-contaminated sites

Request for feedback

This draft position statement replaces the position statement on the Guidelines for the Assessment, Remediation and Management of Asbestos Contaminated Sites in Western Australia published by the EPA on 14 April 2022.

The position statement has been updated in response to comments from industry stakeholders, including contaminated land consultants and site auditors. The revised draft position statement better reflects industry best practice, and supports the NSW Government’s commitment to moving to a circular economy.

We are seeking stakeholder feedback on the draft position statement prior to publication.

Send your feedback to us at CLM.Consultation@epa.nsw.gov.au
The closing date for consultation is 15 June 2023.

NSW regulatory framework

In NSW, the remediation of sites contaminated with asbestos can be regulated under the Contaminated Land Management Act 1997 (the CLM Act) and/or the planning framework, depending on the significance of the contamination and how it will be managed.

Land that is significantly contaminated as a result of poor historical on-site management of asbestos materials is generally regulated by the EPA under the CLM Act.

Contaminated sites that do not pose an unacceptable risk under their current or approved use are generally regulated by planning authorities under the Environmental Planning and Assessment Act 1979, including the State Environmental Planning Policy (Resilience and Hazards) 2021 and the Managing Land Contamination – Planning Guidelines (PDF 218KB).

Land that is impacted as a result of asbestos waste from an offsite source is generally regulated under the Protection of the Environment Operations Act 1997 (POEO Act) and associated waste legislation.

Remediating sites contaminated with asbestos

Assessment and remediation of asbestos- contaminated sites should be risk-based and take a weight of evidence approach, based on a site’s history and Conceptual Site Model (CSM).

Remediation of asbestos-contaminated sites generally involves the management of media, usually soil, that contains asbestos fibres (friable) and/or fragments of asbestos containing material (ACM) (non-friable), present either on or below the surface.

Management of legacy asbestos-contaminated soil may include:

burial on-site in a containment cell that has received any necessary approvals, or by capping with materials that do not contain asbestos
remediation of asbestos-contaminated soil by removing visible non-friable asbestos from the soil
offsite disposal of asbestos-contaminated soil to a landfill licensed to accept asbestos waste.

Once completed, the remediation must be independently ‘validated’ to ensure that the management objectives have been achieved, including whether the site is suitable for the current, approved or proposed use.

When can asbestos-contaminated soils be buried?

In NSW, asbestos-contaminated soils can be capped, or contained elsewhere on the same site (or in some cases in geographically distinct areas that form part of a single remediation project), but only if the following requirements are met:

if capped, they are capped with lawfully applied materials that do not contain asbestos
if contained:
- the containment is only used to contain asbestos-contaminated soils disturbed as part of the site remediation
- the containment has appropriate development consent and/or complies with relevant planning legislation
capping and/or containment is an appropriate remediation strategy supported by a remedial action plan and an ongoing Environmental Management Plan (EMP)
the on-site use (including any escape of asbestos) must not harm, or be likely to harm, the environment (POEO Act s 115 & 116)
it meets any other relevant requirements.

Guidance for design and construction of on-site containment cells is found in the Guidelines for the assessment, remediation and management of asbestos contaminated sites (WA Dept. Health, 2021) (the WA Asbestos Guidelines) and the 1999 ANZECC Guidelines for the Assessment of On- Site Containment of Contaminated Soil.

See the EPA'S Guidance on preparing EMPs for contaminated land (PDF 321KB).

When can asbestos-contaminated soils be remediated?

Asbestos-contaminated soils cannot be remediated under the NSW resource recovery framework.

Soils containing asbestos at levels that are above the Health Screening Levels (HSLs) in the National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM) (April 2013) for the approved land use are not permitted to be used, either on-site or offsite.

Under the contaminated land regulatory framework, soils containing asbestos at levels that are above the NEPM HSLs may be remediated for use on the same site where:

they relate to remediation of historic or legacy contamination associated with past site uses, rather than illegal waste dumping activities
the asbestos is not in friable condition or defined as asbestos fines or fibrous asbestos (AF/FA)
the remediation has appropriate development consent and/or complies with relevant planning legislation
remediation is undertaken in accordance with a remedial action plan that has been written or approved by an EPA-accredited site auditor or a consultant certified under the EPA's Contaminated land consultant certification policy (PDF 677KB)
it meets any other relevant requirements.

The purpose of remediating asbestos- contaminated soil is to reduce asbestos to levels that are within the HSLs in the NEPM for the approved land use for that site.

Soil remediation may include, but is not limited to, the removal of bonded (non-friable) ACM fragments from the soil, either via mechanical means (screening) or hand-picking (emu-picking).

Emu-picking is also permitted to remove visible bonded asbestos from the surface of a contaminated site for determining the asbestos contamination of soil for the purposes of HSLs, as per Section 4.8, NEPM Schedule B1, Volume 2.

Sampling for assessment and validation purposes should be undertaken as per the EPA’s Contaminated land guidelines: Sampling design part 1 – application (PDF 148KB).

Are asbestos-contaminated soils that have been remediated a reusable resource or a waste?

This is determined by how the soils are managed.

Remediated soils that are taken offsite are waste, and must be taken to a facility authorised to lawfully accept that waste.

Remediated soils cannot be used under the NSW resource recovery framework.

Remediated soils can be used on-site under the contaminated land regulatory framework, if certain conditions are met.

Under what conditions can remediated soils be used under the contaminated land regulatory framework?

Soils that have been remediated to reduce asbestos to levels that are within the HSLs in the NEPM for the approved land use may be disturbed, moved to another area of the same site, stockpiled or used on the same site as long as the following conditions are met:

they were not received from offsite
the site is not a scheduled waste facility
no other requirements or restrictions under other legislative instruments prevent the intended continued use of the soils (e.g. planning legislation, development consent conditions or WHS laws)
the owner of the material remains the same and it is the owner that is proposing an on-site use for the soils
the on-site use (including any escape of asbestos) must not harm, or be likely to harm, the environment (POEO Act s 115 & 116)
the manner of the soil’s disturbance, movement and stockpiling does not give rise to a risk of land and/or water pollution or otherwise cause an alteration in the environment such that the soil would meet paragraph (a) of the definition of ‘waste’ in the POEO Act.

Can I use clean-up goals that vary from the HSLs?

The WA Asbestos Guidelines allow for asbestos screening levels to be adjusted to develop site- specific clean up goals based on parameters such as soil character/texture (including moisture content), depth and lateral spread of contamination, asbestos mineralogy and analytical methods.

Given the variability and uncertainty of these parameters, the EPA does not support the development of site-specific clean up goals for asbestos-contaminated soils based on these parameters.

The EPA supports assessment using a robust CSM (prepared by a suitably qualified and experienced person) that includes consideration of site-specific exposure scenarios to understand and manage risks to human health.

Do the WA Asbestos Guidelines apply in NSW?

The EPA supports the approach to managing asbestos contaminated soil set out in the NEPM.

The NEPM is an ‘approved guideline’ under section 105 of the CLM Act, but the WA Asbestos Guidelines are not.

Whilst the EPA generally supports the approach detailed in the WA Asbestos Guidelines, consultants should not assume that a guideline drafted by a different jurisdiction can be relied upon to support any departure from NSW legislative requirements.

Future considerations

The EPA regularly reviews its legislative framework and liaises with other jurisdictions to ensure we continue to apply the latest scientific findings and respond to industry best practice.

The EPA is working with the NSW Asbestos Coordination Committee (NACC), SafeWork NSW and other agencies to develop detailed guidance on the management of asbestos-contaminated soils.

The Office of the Chief Scientist and Engineer (OCSE) will be providing advice on the risks associated with the processing and reuse of asbestos waste and asbestos-contaminated soils. We will provide further guidance on this issue after the OCSE has provided its advice.

Contact us

If you have any questions about the information in this Position Statement, please contact the EPA on 131 555 or via email at info@epa.nsw.gov.au