Andrew Miller, Senior Manager, Contaminated Sites Department of Environment Regulation

Transcription

1 Andrew Miller, Senior Manager, Contaminated Sites Department of Environment Regulation 1

2 Key features of the CS Act Responsibility for remediation Site classifications Disclosure obligations Access to information CS Act Review New guidelines Photo: DER 2

3 Key features Section Duty to report known and suspected contaminated sites s 11 Establishes a process for the risk-based classification of sites s 13 Makes information available to the public s Establishes a hierarchy of responsibility for remediation s Allows for responsibility for remediation to be assigned and transferred s 30 Creates protection for new owners by requiring disclosure before settlement s 68 Allows DER to issue regulatory notices to require investigation, and where necessary, remediation s Establishes a contaminated sites auditor scheme s

4 One of the principles of the Contaminated Sites Act 2003 (CS Act) is to ensure that those who generate pollution should bear the cost [s 8]. The Act introduced a hierarchy of responsibility for remediation 4

5 1. Person who caused or contributed to the contamination [s 25] 2. Person who changes land use to a more sensitive land use [s 26] 3. Owner or occupier [s 27] includes mortgagee in possession 4. Directors of insolvent body corporate [s 28] 5. The State 5

6 Responsibility is determined by the independent Contaminated Sites Committee In the absence of evidence (baseline or other environmental investigations) responsibility assigned to all potential contributors and/or land owners on a percentage occupation basis Result: owners/companies can end up being held responsible for some or all pre-existing contamination 6

7 Cause of contamination Responsibility for costs Historic operations Your operations Your responsibility New owner unable to distinguish between historic impacts and their operational impacts 7

8 Cause of contamination Responsibility for costs* Historic operations Your operations Historic operations Your operations New owner conducts baseline environmental survey to delineate historic impacts *If historic polluter can be found and made to pay 8

9 Classification Report not substantiated Possibly contaminated investigation required Not contaminated unrestricted use Contaminated remediation required Contaminated restricted use Remediated for restricted use Decontaminated Response No action required Investigation required No action required Remediation required Comply with restrictions Comply with restrictions No action required 9

10 contaminated-remediation required contaminated-restricted use 331 remediated for restricted use 376 possibly contaminatedinvestigation required decontaminated not contaminatedunrestricted use report not substantiated

11 Landowners must provide written disclosure at least 14 days before the completion of a transaction New DER guidance* - clarifies that disclosure is provided at least 14 days before: settlement date for a sale the date the mortgage is registered for a mortgage the date the lease is signed for a lease Concurrent disclosure may be required Purchaser provides disclosure to mortgagee in anticipation of becoming the site owner and taking out a mortgage * Out soon for public comment 11

12 704 Land owner duty to disclose at least 14 days before a relevant transaction 2253 No disclosure duty 12

13 Option Information available Time frame How to access On-line public database Basic summary of records (BSR) C-RR, R- RU, C-RU immediate DER website Free BSR request DSR request BSR for all classified sites BSR for all classified sites plus access to technical reports and more working days Submit Form 2 to DER, $30 45 days Submit Form 2 to DER, $300 13

14 Option Information available timeframe How to access FOI Landgate Information not available by BSR or DSR BSR for sites classified as C-RR, R-RU, C-RU 45 days FOI application form (fees apply) ~ 60 mins Landgate website (fees apply) 14

15 704 sites listed on DER public database and available via Landgate property interest report: C-RR, C-RU and RRU 2253 sites not listed on DER public database or available via Landgate: PC-IR, Decon, NC-UU and RNS 15

16 an owner or occupier of the site a person who knows, or suspects, that he or she has caused, or contributed to, the contamination an auditor engaged to provide a report that is required for the purposes of this Act in respect of the site s11(4) reporting of known, or suspected contaminated sites 16

17 auditors community legal group developers environmental consultants industry local government peak bodies professional association state government support (15) neutral (1) against (20) Are you supportive of extending the duty to report to include an environmental consultant? 17

18 Environmental consultants have a professional duty of care to ensure that their procedures are consistent with protection of human health and minimising detrimental impacts to the environment. DER expects that environmental consultants will provide their clients with progress reports (including results) of site investigations to enable the client to fulfil their reporting duties. It is not good practice for a consultant to wait until the relevant technical report is completed before informing their client of the presence of known or suspected contamination and/or providing advice on whether the site should be reported to DER as a known or suspected contaminated site. DER (2015) Identification, reporting and classification of contaminated sites in Western Australia 18

19 No change to the 7 classifications Clarification of action required More certainty over timeframes New guidance Identification, reporting and classification of contaminated sites in Western Australia 19

20 No change to current appeal/decision arrangements Recommended measures to improve the timeliness of Committee decisions on responsibility for remediation Publish detailed procedures for decisions on responsibility for remediation Review the effectiveness after 2 years of operation 20

21 Known & suspected contamination Duty to report - progress reports to clients 21

22 Contaminated Sites Management Series Year Assessment Levels for Soil, Sediment & Water 2010 Potentially Contaminating Activities, Industries and Land Uses 2004 Development of Sampling and Analysis Programs 2001 Reporting of Site Assessments 2001 Use of Risk Assessment in Contaminated Site Assessment 2006 Community Consultation 2006 Contaminated Sites Auditors: Guidelines for Accreditation, Conduct and Reporting

23 Assessment levels SAPs Risk Assessment Activities/land uses Reporting Consultation Assessment and management of contaminated sites Dec

24 Reporting known & suspected sites Certificate of Contamination Audit Disclosure statements Identification, reporting and classification of known and suspected contaminated sites

25 Assessment and management of contaminated sites Assessment levels Refers to NEPM tables Non potable use of (ground)water updated) Ecological investigation levels (EILs) background data sources, reference sites, limitations and acid sulfate soils Sampling and analysis Representative data collection based on conceptual site model Hotspot table out Risk assessment of petroleum hydrocarbons Vapour intrusion advances 25

26 Identification, reporting and classification of contaminated sites in Western Australia Examples of known and suspected contamination Duty to report known and suspected contaminated sites Action required in response to site classifications Also see appendix Environmental consultants to provide progress reports to clients Timeframes for reporting Penalties for providing false or misleading information Prioritisation based on risk Timeframes for action 26

27 DER welcomes feedback to: DER guidelines available at: 27