Changes to the EP&A Act –Planning Certificates
In November last year, the NSW Government passed legislation to update the Environmental Planning and Assessment Act 1979 (EP&A Act). The changes to the Act commenced on Thursday 1 March 2018. The Department of Planning & Environment have created a Guide to the updated Environmental Planning and Assessment Act 1979.
One of the key provisions in the current EP&A Act relevant to contaminated land management is section 149 - Planning Certificates. Under this provision local councils are required to include advice on a planning certificate for any property on prescribed matters, such as the existence of a council policy to restrict the use of land. This includes restrictions on land use due to risks from contamination.
Under the new structure and numbering system in the amended Act, the provisions for Planning Certificates are now at section 10.7. The wording of the provision remains the same, except for the previous reference to Part 7A which has been replaced with a reference to Schedule 6 in the amended Act. This relates to council liability for advice provided on a planning certification on contamination.
The EPA is progressively updating our website, guidance and other documents to reflect this change. However, all references to s. 149 planning certificates will be taken to be a reference to s. 10.7 planning certificates and vice versa.
PFAS National Environmental Management Plan
PFAS is an abbreviation for per-and poly-fluoroalkyl substances. Some PFAS have been globally identified as chemicals of concern to human health and the environment, particularly due to their persistence and bioaccumulation.
Australia’s Environment Ministers have endorsed the first PFAS National Environmental Management Plan (NEMP). The PFAS NEMP provides governments with a consistent, practical, risk-based framework for the environmental regulation of PFAS-contaminated materials and sites.
The PFAS NEMP has been developed as an adaptive plan, able to respond to emerging research and knowledge. It represents a how-to guide for the investigation and management of PFAS contamination and waste management, including recommended approaches, which will be called upon to inform actions by EPAs and other regulators.
New Approved Contaminated Land Notification Form
Under section 60 of the Contaminated Land Management Act 1997 (CLM Act), a person whose activities have contaminated land or an owner of land that has been contaminated must notify the EPA.
The NSW EPA has recently approved an updated contaminated land notification form. The form now includes a link to the Duty to Report Contamination Guidelines and requests supporting sources of information.
The updates are intended to increase the quality of information submitted with the form by providing more guidance on notification requirements. Better and more timely delivery of information will assist the EPA in assessing the notification.
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.
Recognition of merged consultant certification scheme and certification policy
The EPA requires all reports submitted to the EPA to comply with the requirements of the Contaminated Land Management Act 1997 (CLM Act) to be prepared, or reviewed and approved, by a certified consultant.
The Contaminated Land Consultant Certification Policy clarifies the EPA’s position on the certification of contaminated land consultants. The policy supports the development and implementation of nationally consistent certification schemes in Australia, and encourages the use of certified consultants by the community and industry.
The Environment Institute of Australia and New Zealand (EIANZ) Certified Environmental Practitioners Scheme (CEnvP) Contaminated Land specialisation and the Site Contamination Practitioners Australia (SCPA) scheme have recently merged to form a new ‘Site Contamination’ specialist certification operating under CEnvP. The EPA previously recognised the two separate schemes. Having reviewed the criteria for the merged scheme, the EPA considers it suitable for EPA recognition.
The EPA continues to recognise the Soil Science Australia (SSA) Certified Professional Soil Scientist Contaminated Site Assessment and Management (CPSS CSAM) certification scheme.
Have your say: Proposed Remediation of Land SEPP and Guidelines on exhibition
For almost 20 years the State Environmental Planning Policy for the Remediation of Land, SEPP 55, and the associated Managing Contaminated Land Planning Guidelines, have provided the planning framework for the management of contaminated land in NSW.
The Department of Planning and the Environment (DPE) is exhibiting an Explanation of Intended Effects (EIE) for a new Remediation of Land SEPP as well as draft revised planning guidelines to assist planning authorities to address land contamination issues when dealing with rezoning or development applications and assess development applications for remediation works. The EPA has worked with DPE in the review of the planning guidelines to ensure the documents are clear, up-to-date and in line with current legislation requirements.
Stakeholders and the community are invited to consider the Explanation of Intended Effect and the draft Guidelines and make a submission on any of the proposed changes. Exhibition is open until 31 March 2018.
Minor amendments to the Contaminated Land Management Act
In 2017, the NSW Parliament passed the Crown Land Legislation Amendment Act 2017 to make changes to legislation that deal with Crown land as a result of the consolidated management of the state’s Crown lands under the Crown Land Management Act 2016. The legislation is expected to commence in 2018 and will make minor amendments to the Contaminated Land Management Act 1997 (CLM Act) relating to Crown land. Under these amendments, the NSW EPA is to become the local authority under the CLM Act for land in the Western Division that is not within a local government area.
New cost recovery and site auditor accreditation fees
Cost recovery fees
If you are issued an order requiring you to investigate, manage, remediate or maintain contaminated land, or a voluntary management proposal (VMP) approval by the EPA, the administrative costs associated with the order or approved VMP can be recovered from you by the EPA. From 1 September 2017, a new cost recovery fee of $90 per hour will apply.
See more information on when cost recovery applies
Site auditor fees
New fees will also apply under the NSW Site Auditor Scheme from 1 September 2017. The new application fee for accreditation under the Scheme will be $1,103 and the new accreditation fee for a period of one year or less will be $7,710.
The new fees are listed in the annual notice of adjustable amounts: Contaminated Land Management (Adjustable Amounts) Notice 2017, available at https://www.legislation.nsw.gov.au#/view/regulation/2017/428/full
For more information, please contact the EPA at contaminated.sites@epa.nsw.gov.au
Contaminated Land Management Act Amendments
Investigation powers
EPA officers authorised under the Contaminated Land Management Act 1997 (the CLM Act) now have the same investigative powers as officers authorised under the EPA’s key environmental legislation, the Protection of the Environment Operations Act, POEO Act.
If you receive a notice from the EPA requesting information about a contaminated site it will no longer be issued under the CLM Act (former sections 77 or 78). The EPA will issue the notice using the powers to request information in section 191 or 193 of the POEO Act.
The investigative powers of the POEO Act (Chapter 7) were extended to the CLM Act from 1 June 2017, including the powers to request information.
Other proposals to amend the CLM Act
There were some proposed changes to the CLM Act that did not proceed. This included a proposed new regulatory tool called management agreements. As such, the EPA will continue to regulate land declared as ‘significantly contaminated land’ using either a management order or approved voluntary management proposals.
New requirements for reporting to the EPA: transition period ends
The 24-month transition period to prepare for the EPA’s policy requiring certified reports ended on 30 June 2017. To avoid unnecessary delay, ensure any reports you submit to the EPA to comply with the requirements of the Contaminated Land Management Act 1997 (CLM Act) are prepared, or reviewed and approved, by a certified practitioner from a Consultant Certification Scheme recognised by the EPA.
Contaminated land consultant certification schemes were developed to ensure that consultants dealing with contaminated sites have the necessary competencies to carry out this work. The site auditor scheme page has information about recognised Consultant Certification Schemes, and the details of the type of reports covered by the EPA’s policy.
The EPA’s early review of the policy has found reasonable uptake of the schemes by environmental practitioners.
Director Contaminated Land Management
Arminda Ryan has been appointed as Director Contaminated Land Management within the EPA’s Hazardous Incidents and Environmental Health Branch.
This role is responsible for the management of significantly contaminated land in NSW, the administration of the NSW Site Auditor Scheme, policy development and reforms for the contaminated land management framework in NSW, as well as development and implementation of preventative programs.