This guide explains the law covering the identification and Management of contaminated land in South Australia.
What is Site Contamination?
Contaminated land has become an increasingly important environmental, health, economic and planning issue in Australia over the past few years. With changing community standards and the redevelopment of former industrial and agricultural land, there is increasing recognition of the problems associated with contaminated sites. The environmental implications of chemically contaminated land have now become a worldwide issue and in response many countries, including Australia, have developed a range of approaches to deal with the associated problems.
Contamination will exist at a site if chemical substances introduced to the site are present on or below the site in concentrations above background levels resulting in:
- actual or potential harm to the health or safety of human beings that is not trivial, taking into account current or proposed land uses; or
- actual or potential harm to water that is not trivial; or
- other actual or potential environmental harm that is not trivial, taking into account current or proposed land uses (s 5B Environment Protection Act 1993).
Why does Site Contamination need to be managed?
The potential impacts of site contamination are of major concern. If it is not adequately recognised, considered and addressed there may be a resulting risk to human health and the environment.
Site contamination may affect current or proposed site uses and should be considered:
- in the subdivision, development and redevelopment of land;
- any change in the use of the land, eg commercial to residential, or one form of commercial to another (eg service station to office);
- where additions and alterations may be proposed to existing landforms, structures and buildings, and the sale and purchase of land and properties.
Who is responsible for managing site contamination?
The Environment Protection Authority (EPA) provides advice and guidance to ensure that site contamination is recognised, considered and addressed for all new developments throughout South Australia. The EPA has the power to issue a site contamination order, which requires a person to undertake an assessment of the nature and extent of the contamination, or a site remediation order, which requires a person to remediate the contamination of a site. The EPA also has the power to partially or fully prohibit the taking of water affected by site contamination (s 103S).
How does South Australian legislation manage site contamination?
The Environment Protection Act 1993 includes provisions which assign responsibility for site contamination, establish a statutory audit system for South Australia and give the EPA powers to deal with site contamination. This legislation forms part of a set of measures to ensure that site contamination is adequately managed in South Australia.
What is the Site Contamination Audit System?
The site contamination audit system is a key strategy to aid in the management of site contamination in South Australia. The legislative framework for the statutory audit system is established in the Environment Protection Act 1993 (EPA Act) (s 103T) and the Environment Protection Regulations 2009. The audit system became operational on 1 July 2009.
The EPA is responsible for administering the site contamination audit system. The EPA maintains the integrity of the system by allowing only accredited individuals inspect possible site contaminations and ensuring site contamination audits are carried out in accordance with the legislation and guidance issued or approved by the EPA.
Site contamination assessment orders (ss 103I, J)
These are orders requiring the appropriate person to undertake an assessment of the nature and extent of the contamination on the site.
Site contamination remediation orders (ss 103K, L)
These are orders requiring the appropriate person to remediate contamination of a site. Remediate does not necessarily mean the total clean-up of the site but may involve removing the majority of contaminants and managing the remaining contaminants on site.
Special Management Areas (s 103O)
If the EPA believes that widespread contamination exists, or that site contamination exists in a number of areas as a result of the same contaminating activity, it may declare these areas ‘special management areas’. Once an area is so declared, the EPA conducts a program consisting of publicising the issue, setting up consultative processes between itself and relevant interest groups and endeavouring to bring about environment performance agreements or other voluntary agreements to deal with the site contamination.
What is the assessment of site contamination?
The assessment of site contamination is a process incorporating a set of formal methods used for determining the nature, extent and amount of existing chemical substances, and the actual or potential risk to human health or the environment on or off-site resulting from those substances.
When should an assessment of site contamination be undertaken?
A person need not be issued with a site contamination order or remediation order. A person can carry out an assessment in accordance with an approved voluntary site contamination assessment proposal (s 103I). The assessment of site contamination should be undertaken whenever contamination has been identified at a site, or when there is a reasonable suspicion of site contamination arising from a current or previous activity or use of the site.
Schedule A of the National Environment Protection (Assessment of Site Contamination) Measure (NEPM) sets out the recommended process for assessment. Planning Advisory Notice 20 of the Development Act 1993 provides a list of potentially contaminating activities and land uses that should be used by planning authorities and others to determine the need for an assessment of site contamination.
Who can undertake assessment of site contamination?
Site contamination assessment is a complex and specialised professional area involving a number of disciplines. As a result a site contamination assessment should only be undertaken by environmental auditors and consultants who have a range of competencies and relevant qualifications and experience. Site contamination consultants are specifically defined in the Environment Protection Act 1993 as people who assess the existence or nature or extent of site contamination (s 103V).
Who is liable for site contamination?
Where the site contamination is certain, the person who caused the site contamination is liable (s 103D). There is a clear hierarchy established within the Act regarding the determination of the appropriate person who can be issued with a site contamination assessment order or a site remediation order by the EPA (s 103C). The appropriate person is:
- The person who caused the site contamination (the original polluter); or in the event that it is not practicable to issue the order to that person,
- The owner of the site (with limitation to their site), but only in the event that:
- They knew, or ought reasonably have known, that chemical substances were present, or likely to be present, at the site, or
- Before they acquired the site or whilst they owned the site, they knew, or ought reasonably have been aware, that the activity that caused the site contamination had been or was being carried on at the site and that the activity was a potentially contaminating activity as prescribed by regulations under the Act.
The original polluter can be ordered to assess and remediate any surrounding land affected by the migration of chemical substances. In all cases, reasonable attempts will be made to find and issue the order to the original polluter. If the site owner is not the original polluter, the order is limited to the owner’s site.
If site contamination would not have resulted at a site except for certain changes in land use, the person who bought about the change of the use can be taken as the person who caused the site contamination (the original polluter).
A person to whom a site assessment order or a site remediation order is issued may appeal to the Environment, Resources and Development Court (ERD Court) against the order within 14 days of the order being issued.
What should I do if I suspect site contamination?
It is an offence not to notify the EPA of contamination or threatened contamination of underground water which comes to the attention of an owner or occupier of a site or a site contamination auditor or consultant (s 83A). Failure to notify attracts a penalty of $60,000 for a natural person or $120,000 for a body corporate. A person does not have to notify where they have reason to believe that the EPA is already aware of the contamination.
A person must not make a statement that the person knows to be false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information furnished to a site contamination auditor or site contamination consultant that might be relied on by the auditor or consultant in preparing a report relating to site contamination (s 103ZB).
Where can I get access to public information on site contamination?
For more information on details of site contamination notified to the EPA, details of any orders issued by the EPA with regard to site contamination, and other reports please see the EPA’s public register. Access is available to the public register by paying a fee. Contact the EPA Public Register Officer on (08) 8204 9128.
The Environmental Defenders Office (SA) inc, (EDO) is a non-profit community legal centre offering free advice to individuals and groups on all matters of environmental law. The EDO operates an advisory on Thursday evenings between 6-8PM at: 408 King William St Adelaide SA 5000 Fax +61 (08) 8410 3855. Appointments are necessary and must be made by ringing 8410 3833 or freecall 1800 337 566. It is not a substitute for proper legal advice. Important legal details have been omitted to provide a brief overview of this law. Contact the EDO or your solicitor for more detailed legal advice about your specific problem. This guide was funded by a grant from the Law Foundation of South Australia.