PROPOSED NEW REGULATION:- ENVIRONMENTAL QUALITY (POLLUTION OF THE SOIL) REGULATIONS 201X PERATURAN-PERATURAN KUALITI ALAM SEKELILING (PENCEMARAN TANAHTANIH) 201X
INTRODUCTION Malaysia has not inherited such a frightening legacy of contaminated land as in other developed countries. Many sites such as motor workshops, petrol stations, fuel depots, railway yards, landfills, industrial sites and ex-mining land can be potential contaminated sites. Little work carried out in identifying contaminated sites. Land contamination normally goes unnoticed. Severe land contamination will have significant impacts on human health and the environment Significant liability issues associated with land contamination unlike wastewater discharge or air emission, land contamination stays long after chemicals releases. There is no regulation on CLM developed in Malaysia.
SOIL POLLUTION CONTROL BY EQA, 1974 Section 24 of the Environmental Quality Act 1974 states that; (1) No person shall, unless licensed, pollute or cause or permit to be polluted any soil or surface of any land in contravention of the acceptable conditions specified under section 21. (2) Not withstanding the generality of subsection (1), a person shall be deemed to pollute any soil or surface of any land if (a) he places in or on any soil or in any place where it may gain access to any soil any matter whether liquid, solid, or gaseous; or (b) he establishes on any land a refuse dump, garbage pit, soil and rock disposal site, sludge deposit site, waste injection well or otherwise used land for the disposal of or a repository for solid or liquid wastes so as to be obnoxious or offensive to human beings or interfere with underground water or detrimental to any beneficial use of the soil or the surface of the land. 3
PENALTY EQA, 1974 Section 24 Compounding of offence shall not exceed RM 2,000 Any person who contravenes this section shall be guilty of an offence and shall be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a period of not exceeding five years or both and to a further fine not exceeding one thousand ringgit a day for every day that is continued after a notice by the Director General to cease the act specified therein has been served 4
REFERENCES TO SIMILAR REGULATIONS IN OTHER COUNTRIES The regulation and framework was formulated by referring to countries that used risk-based approach in their regulation; Australia New Zealand United States United Kingdom Netherlands Taiwan - Risk-Based Concentrations (RBC) Other ASEAN countries Jepun - Thailand & Singapore OHT 5
GUIDELINES Contaminated Land Management and Control Guidelines No. 1: Malaysian Recommended Site Screening Levels for Contaminated Land; Contaminated Land Management and Control Guidelines No. 2: Assessing and Reporting Contaminated Sites; dan Contaminated Land Management and Control Guidelines No. 3: Remediation of Contaminated Sites. OHT 6
REGULATIONS PART 1 PRELIMINARY Regulation 1. Citation and commencement Regulation 2. Interpretation PART 2 - ADMINISTRATION Regulation 3. Application PART 3 - PREVENTION ON POLLUTION OF THE SOIL Regulation 4. Prohibition of Pollution of the Soil Regulation 5. Liabilities of Polluter PART 4 - REQUIREMENTS FOR CONTROL ON POLLUTION OF THE SOIL Regulation 6. Responsibility to Notify Pollution of the Soil Regulation 7. Responsibility to Perform Initial and Detailed Assessments Regulation 8. Responsibility to Perform Risk Assessment 7
REGULATIONS (continue) Regulation 9. Responsibility to Provide Information to the Department of Environment Regulation 10. Responsibility to Remediate Pollution of the Soil Regulation 11. Remediation Action Plan Regulation 12. Management of Contaminated Soil and Abstracted Contaminated Groundwater Regulation 13. Registered Consultant PART 5 GENERAL PROVISIONS Regulation 14. Compounding of offences Regulation 15. General Penalty 8
PART 1 PRELIMINARY Regulation 1 - Citation and commencement 1. These regulations may be cited as the Environmental Quality (Pollution of the Soil) Regulations 201X. Regulation 2 - Interpretation There are 16 interpretations, among others; pollution of the soil means a site at which substances occur at concentrations above natural background level occurring metal or substance concentrations and pose or are likely to pose an immediate or long term hazard to human health or the environment or exceed concentration specified in the Site Screening Levels. 9
PART 2 ADMINISTRATION Regulation 3 - Application 3. These Regulations shall apply to any land which:- (a) currently being used or was previously used, to perform polluting activities with the potential to cause soil and groundwater contamination; or (b) involves with the change of land used from polluting activities to non polluting activities or from non polluting activities to polluting activities. 10
PART 3 PREVENTION OF POLLUTION OF THE SOIL Regulation 4 - Prohibition of Pollution of the Soil 4. No person shall cause or pollute any soil or surface of any land in contravention of the concentration specified in accordance to Site Screening Levels. Note: Person refer to:- Land owner; or Land occupier; or Any polluter or potential polluter whom the Director General has reason to believe that the subject land has potential air, soil, surface water and groundwater impact 11
PART 3 PREVENTION OF POLLUTION OF THE SOIL Regulation 5 - Liabilities of Polluter 5. A Polluter shall be liable for: (a) all expenses incurred to investigate and perform remediation of pollution of the soil to achieve a remedial standard acceptable to the Director General as approved in the remediation action plan; and (b) any other direct expenses or loss incurred by affected human receptors or neighbouring land owners as a result of loss of income, temporary or permanent loss of access to their properties or destruction or alterations to their properties. Note: Polluter Pay Principle 12
PART 4 REQUIREMENTS FOR CONTROL ON POLLUTION OF THE SOIL Regulation 6 - Responsibility to Notify Pollution of the Soil 6. (1) Any land owner or land occupier who has a potential of contaminating soil and groundwater as listed in the First Schedule shall notify the Director General of the existence, or likely existence, of the contaminated soil. The notification shall be made within two years after the commencement of these regulations. (2) The notification given under subregulation (1) shall include the information provided in the Second Schedule. NOTE: Notification are as in Appendix B - Contaminated Land Management and Control Guidelines No. 1: Malaysian Recommended Site Screening Levels for Contaminated Land and notify through on line system. 13
PART 4 REQUIREMENTS FOR CONTROL ON POLLUTION OF THE SOIL Regulation 7 - Responsibility to Perform Initial and Detailed Assessment 7. (1) Where the Director General or any officer duly authorized has reason to believe that any soil may be polluted, he may direct in writing the polluter responsible for the contamination to perform an initial assessment on the identified site. (2) In the case where the initial assessment report under subregulation (1) shows that potential contamination may be present on the identified site, the polluter must perform a detailed assessment. The detailed assessment shall be performed within a period of 60 days from the date of the initial assessment report submitted to the Director General. (3) The initial assessment and detailed assessment shall be performed in accordance with the Contaminated Land Management and Control Guidelines No. 2: Assessing and Reporting Contaminated Sites 14
PART 4 REQUIREMENTS FOR CONTROL ON POLLUTION OF THE SOIL Regulation 8 - Responsibility to Perform Risk Assessment 8. (1) If a detailed assessment report of a site shows that contamination are detected at concentrations higher than the Site Screening Levels, the polluter shall perform a risk assessment in accordance with the Contaminated Land Management and Control Guidelines No. 2: Assessing and Reporting Contaminated Sites. (2) The Director General or any authorised officer is authorised to impose restriction on the use of a contaminated site as well as its surroundings, in the event that a risk assessment of the site shows that such site use restriction is required to reduce the risk of exposure to human health and environment. 15
PART 4 REQUIREMENTS FOR CONTROL ON POLLUTION OF THE SOIL Regulation 9 - Responsibility to Provide Information to the Department of Environment 9. (1) The polluter, after having performed an initial assessment, detailed assessment or risk assessment, are required to furnish the Director General on report within 30 days upon receipt of the assessment report from the registered consultant. (2) The Director General or authorised officer has the authority to request for any information deemed relevant to obtain a better understanding of the soil and groundwater condition of a site from any person as specified above. Note: The initial assessment / detailed assessment / risk assessment shall be submitted to DG within 30 days after completion of the report prepared by registered consultants. 16
PART 4 REQUIREMENTS FOR CONTROL ON POLLUTION OF THE SOIL Regulation 10 - Responsibility to Remediate Pollution of the Soil 10. The polluter shall carry out remediation on any of the following land: (a) Site which the detailed assessment report shows that the soil and groundwater concentrations are detected above the Site Screening Levels; or (b) Site that is concluded to pose unacceptable risk to human health and the environment based on the findings of risk assessment performed in accordance with the Contaminated Land Management and Control Guidelines No. 2: Assessing and Reporting of Contaminated Sites. 17
PART 4 REQUIREMENTS FOR CONTROL ON POLLUTION OF THE SOIL Regulation 11 - Remediation Action Plan 11. (1) The Remediation Action Plan shall be prepared in accordance with the Contaminated Land Management and Control Guidelines No. 3: Remediation of Contaminated Sites and submit to the Director General for approval before any remediation action is carried out. (2) The polluter who is performing the site remediation shall submit in writing to the Director General a periodic update on progress of the remediation actions in accordance with the Contaminated Land Management and Control Guidelines No. 3: Remediation of Contaminated Sites. (3) Closure report shall be prepared in accordance with the Contaminated Land Management and Control Guidelines No. 3: Remediation of Contaminated Sites and shall submit to the Director General for approval. 18
PART 4 REQUIREMENTS FOR CONTROL ON POLLUTION OF THE SOIL Regulation 12 - Management of Contaminated Soil and Abstracted Contaminated Groundwater 12. A person must not use or dispose contaminated soil or contaminated water from a contaminated site without prior approval of the Director General. Note: Disposal of contaminated soil and contaminated water off site from the premises need to follow the procedure of Environmental Quality (Scheduled Wastes) Regulations 2005. 19
PART 4 REQUIREMENTS FOR CONTROL ON POLLUTION OF THE SOIL Regulation 13 - Registered Consultant 13. (1)For the purpose of carrying out an initial assessment or detailed assessments or risk assessment shall be performed by a registered consultant. (2) Notwithstanding subregulation (1), the registered consultant shall be registered in accordance with the Contaminated Land Management and Control Guidelines No. 1: Malaysian Recommended Site Screening Levels for Contaminated Land. 20
PART 5 GENERAL PROVISIONS Regulation 14 - Compounding of Offences 14. (1)Every offence which consists of any omission or neglect to comply with, or any act done or attempted to be done contrary to these Regulations may be compounded under Section 45 of the Act. (2) The compounding of offences referred to in subregulation (1) shall be in accordance with the procedure prescribed in the Environmental Quality (Compounding of Offences) Rules 1978 1. 21
PART 5 GENERAL PROVISIONS Regulation 15 - General Penalty 15. Any person who contravenes regulations 6, 7, 8, 9, 10, 11, 12, 13, and 14, shall be guilty of an offence and shall be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a period of not exceeding five years or both and to a further fine not exceeding one thousand ringgit a day for every day that the offence is continued after a notice by the Director General requiring him to cease the act specified therein has been served upon him. 22
IMPACT / STAKEHOLDERS RESPONSIBILITY Determine if there is any presence of subsurface contamination in their land. Determine if there is any unacceptable human health and ecological risk Propose a remediation action plan (RAP), implement, construct, operate and maintain appropriate remediation actions in order to address the risk arises from the presence of the identified subsurface contamination In the event if the current land owner(s) confirmed through properly conducted environmental site assessment, that the subsurface contamination is not caused by its current or historical onsite operation, it is the responsibility of the land owner(s) to identify the polluter(s) who will be directly responsible for the subsequent remediation actions to be implemented at the subject land property OHT 23
IMPACT / STAKEHOLDERS RESPONSIBILITY (CONTINUE) For land properties which are not identified with any potential subsurface contamination during the initial assessment, it is recommended to conduct minimum baseline environmental site assessment to establish the background level of subsurface soil and groundwater quality for future reference, this is especially applicable for land properties that will be used for activities of polluting industries. Land Transaction - It is the duty of the seller or owner of a land property to disclose all soil and groundwater information related to the subject land / It is the responsibility of the buyer of a land property to perform soil and groundwater assessment as part of the due diligence process prior to the transaction. OHT 24
SEKIAN, TERIMA KASIH WORKSHOP ON CONTAMINATED LAND MANAGEMENT IN MALAYSIA Tarikh: 07 December 2015 (Monday) Tempat: Auditorium EiMAS Ijan Khushaida Binti Mohd Jan e-mail: ijan@doe.gov.my Tel: 03-8871 2137