Contaminated Sites

Between 2018–20, the number of notified and regulated contaminated sites steadily increased. This was matched by an increase in the number of remediated sites. The petroleum industry and service stations represented the largest number of sites declared significantly contaminated by the EPA.

Why managing contaminated land is important

Industrial, agricultural and other commercial activities can result in the discharge of substances to land which contaminate it by accumulating in soil, sediments, groundwater, surface water or air. Some of these substances can remain in the environment for a long time, have an adverse impact on human health or the environment and degrade the productive use of land or water.

Contaminated land must be managed to ensure there are no unacceptable risks to human health or the environment from the contamination and to ensure that land is suitable for its current or approved use.

The SoE Aboriginal Peoples Knowledge Group has noted that legacy land contamination can be an issue on Crown land transferred to Aboriginal people under the Aboriginal Land Rights Act 1983. This is a concern among Aboriginal communities and land holders.

Status and Trends

As at December 2020, 1,805 contaminated sites had been notified to the EPA, of which 388 required regulation. Of these regulated sites, 185 have been remediated.

Between January 2018 and December 2020, 139 new sites were notified to the EPA, of which 36 were significantly contaminated. Service stations and other petroleum industries accounted for 53% of the new sites (see Spotlight figure 9).

Pressures

Sites in the major coastal cities, particularly Sydney, are remediated more quickly than in rural areas as there is more demand for land in cities for residential and commercial development. However, the extent of contamination beneath the surface of the land is often difficult to identify and manage, so characterising the risks and costs of remediation can be challenging and time consuming.

Responses

The EPA manages land declared as ‘significantly contaminated‘ under the Contaminated Land Management Act 1997. Land that is not declared as ‘significantly contaminated’ is regulated by planning authorities, including local councils, who generally deal with the contamination under their planning and development processes.

To respond to the contamination challenges from service stations and petroleum industries, the NSW Government introduced the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation in 2008, which required operators of UPSS to install tanks and pipes for underground fuel systems in accordance with industry best practice, and to monitor those systems for leaks.

When the UPSS Regulation was first made, the EPA was declared to be the Appropriate Regulatory Authority (ARA) for all UPSS-related matters. On 1 September 2019, local councils resumed responsibility for regulating most UPSS sites in their local areas, which are mostly service stations. The EPA continues to publish technical and guideline documents to support management and clean-up of these sites.

In March 2021, the use of PFAS firefighting foam was banned in most situations to reduce its impact on the environment. However, it can still be used when responding to catastrophic fires by relevant authorities and exempt entities. The Protection of the Environment Operations (General) Amendment (PFAS Firefighting Foam) Regulation 2021, was published in March 2021 and is the first step in the NSW Government’s commitment to gradually replace PFAS-containing firefighting foams with appropriate alternatives.

The EPA is leading an investigation program to assess the legacy of PFAS use across NSW, focusing on sites where large quantities of PFAS were used in the past. As at June 2021, the EPA had conducted 914 investigations.

DPIE Crown Lands endeavours to identify and appropriately deal with contamination issues on land prior to determination of any Aboriginal land claim or transfer of ownership under the Aboriginal Land Rights Act 1983. Given the size and nature of the Crown estate, it is not always possible to resolve all issues prior to transfer, especially with illegal dumping which can occur at unknown locations. Since 2016 DPIE Crown Lands has adopted a Contaminated Land Management Strategy to help reduce occurrence of this issue and, where necessary, remediate contaminated sites to an extent consistent with their existing purpose or use. The onus to remediate or clean up transferred Crown Land (under the Aboriginal Land Rights Act) does not transfer with the land, foremost remaining with the person responsible for the contamination where land is determined to be significantly contaminated under the Contaminated Land Management Act.

Industrial, agricultural and other commercial activities can sometimes result in the discharge of substances to the environment which contaminate land by accumulating in soil, sediments, groundwater, surface water or air. Exposure to some substances may affect the health of people, animals or plants, and make land unsuitable for its current or intended use.

In some cases, the substances may be toxic, persistent, bio-accumulative or present in large quantities, high concentrations or in combination. There is a risk that substances may move from the source of the contamination through pathways such as groundwater, resulting in increased exposure to people and the environment.

Dealing with contaminated land is important to:

• protect human health and the environment
• make sure land is suitable for development or other uses
• enhance local amenity, for example ensuring suitable land can be used for recreation purposes such as parks

There are thousands of contaminated sites in NSW, often as the result of poor industrial chemical storage, handling and disposal practices. Many are large, complex sites that were previously used for:

• heavy industry such as gasworks or smelters
• petroleum infrastructure such as oil refineries and terminals.

There are also many smaller contaminated sites in urban and rural areas that were previously used for:

• agriculture such as dip sites, where persistent chemicals were used to treat livestock
• commercial purposes such as storage areas for chemicals at service stations or dry cleaners.

The SoE Aboriginal Peoples Knowledge Group has noted that legacy land contamination can be an issue on Crown land transferred to Aboriginal People under the Aboriginal Land Rights Act 1983. This is a concern among Aboriginal communities and land holders.

Many former industrial areas have been, or are being, remediated and redeveloped for high-density residential and commercial uses near infrastructure, transport and jobs, such as the clean-up of gasworks waste at the Barangaroo site in Sydney and the remediation of contaminated sediments adjacent to the former AGL gasworks at Kendall Bay.

The net number of EPA-regulated contaminated sites has seen a steady increase during the reporting period 2017 to 2020 (Figure 9.1).

Landowners and polluters have a duty to notify the EPA of land that is contaminated if the contamination meets certain triggers. To determine whether to declare land as ‘significantly contaminated’ and therefore subject to EPA regulation, the EPA assesses:

• whether the substances have already caused harm or are toxic, persistent or bio-accumulative
• whether the substances are present in large quantities or high concentrations or occur in combinations
• whether the substances can be transferred to human beings or features of the environment, for example, through contaminated groundwater or soils
• the current or future uses of the land and the adjoining land
• whether the substances are likely to migrate from the land (or already have migrated) (Contaminated Land Management Act 1997, section 12).

Between 1997 and end 2020 approximately 1,805 sites were notified to the EPA. Of these, 139 sites were notified between January 2018 and December 2020. Of these 139 sites, 36 were declared as significantly contaminated by the EPA.

The EPA regulates sites that are declared ‘significantly contaminated’ and requires the person responsible for the contamination, or the landowner, to remediate the land so contaminating substances do not further harm the environment or human health.

Contaminated land that is not declared as ‘significantly contaminated’ is regulated by planning authorities, including local councils, who generally deal with the contamination under the planning and development process.

Between 1997 and end 2020 the EPA regulated 388 significantly contaminated sites under the Contaminated Land Management Act 1997 and 185 sites were remediated.

Figure 9.2 shows that the total number of remediated and regulated sites rose steadily between 2005 and end 2020. Between January 2018 and December 2020, there were 36 newly declared sites under the Contaminated Land Management Act 1997 and an additional 30 sites were remediated.

Land declared to be significantly contaminated between January 2018 and December 2020 was associated with:

• service stations (47%)
• landfills (19%)
• the chemical industry (8%)
• other petroleum industries (6%)
• other industry (20%).

Since 2018, service stations and other petroleum industries have accounted for 53% of newly regulated sites, primarily in relation to UPSS.

In response to this, the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019 (UPSS Regulation) aims to minimise the risk to human health and the environment by requiring best practice design, installation, maintenance, and monitoring of UPSS in NSW.

Figure 9.3 shows fluctuations in the number and type of new sites regulated every year from 2005 to 2020. While service stations remain the largest category throughout, the number of newly regulated landfills increased significantly in 2020.

Between January 2018 and December 2020, remediation was completed at 30 regulated contaminated sites. The regulation of large complex sites is expensive, for example, the remediation of Barangaroo in Sydney cost approximately $100 million over seven years.

Figure 9.5 shows the number of sites remediated on an annual basis, from 2005 to 2020.

The main drivers for the remediation of contaminated land in NSW are development pressure and real estate values. Sites in the major coastal cities, particularly Sydney, are readily remediated as there is high demand for land for residential and commercial development, while in rural areas there is a lower demand for these types of development.

Assessing the risk from substances contaminating land relies on information being available about specific substances and ways in which they could negatively affect human health and the environment, for example, through groundwater contamination. The extent of contamination beneath the surface is often difficult to identify and manage, so characterising the risks and costs can be challenging.

Since the late 2000s, there has been a global push to embrace sustainable approaches to remediation that provide a net benefit to the environment. Consideration of the principles of ecologically sustainable development is an object of the NSW Contaminated Land Management Act 1997 and the EPA considers those principles when exercising its functions under the Act and seeks the implementation of those principles in the management of contaminated land by others.

Remediation of contaminated land is often expensive and the business or person who caused the contamination may no longer exist, for example because the contamination happened a number of years ago. Current owners of the contaminated land may not have the capacity to pay for the land to be remediated.

Contaminated land management framework

The NSW contaminated land management framework establishes a system that integrates environmental and planning processes and comprises two tiers:

• the regulation of significantly contaminated land under the Contaminated Land Management Act 1997
• the regulation of other contaminated sites that do not pose an unacceptable risk for the current or approved use, under the Environmental Planning and Assessment Act 1979 and State Environmental Planning Policy No 55 - Remediation of Land ().

NSW operates on the polluter pays principle, which means the clean-up and remediation of contaminated land is the responsibility of the polluter where they can be identified, or is the responsibility of the landowner if not.

Underground Petroleum Storage Systems regulation

In 2008 the NSW Government introduced the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2008, which required operators of UPSS to install tanks and pipes for underground fuel systems in accordance with industry best practice, and to monitor those systems for leaks.

When the UPSS Regulation was first made, the EPA was declared to be the Appropriate Regulatory Authority (ARA) for all UPSS-related matters. On 1 September 2019 local councils resumed responsibility for regulating most UPSS sites in their local areas. There are estimated to be about 3,500 council regulated UPSS sites in NSW, mostly service stations.

The EPA remains responsible for regulating about 1,000 UPSS sites that are:

• operated by a public authority
• subject to an Environment Protection Licence
• in the unincorporated areas of NSW

The EPA provided assistance to local councils to ensure a smooth transition from state to local regulator for UPSS sites. This included workshops, staff training, grant funding, new UPSS Guidelines and other resources.

Between 2011 and 2020 the EPA undertook over 600 site inspections in response to incidents, leak notifications and general enquiries about UPSS. This work involved close consultation and joint inspections with industry stakeholders and local councils.

The EPA is continuing to deliver a range of programs to help manage potential adverse effects from UPSS, including:

• A project to identify and review compliance at active UPSS sites in groundwater dependent communities
• A project to identify potential orphan UPSS sites across NSW.

Consultant certification

The EPA’s Contaminated Land Consultant Certification Policy was introduced in 2017 to help improve the minimum standard of contaminated land work in NSW. The Policy supports the development and implementation of nationally consistent certification schemes and encourages the use of certified consultants by the community and industry.

In 2021 the EPA surveyed a range of stakeholders, including consultants, local councils and landowners to determine whether the Policy is meeting its objectives. The survey found that the availability of certified consultants has increased significantly since the Policy’s introduction, and that there has been a notable increase in the quality of contaminated land reports. Also of note is that this improvement has not resulted in a corresponding increase in fees charged by consultants. The EPA has amended the Policy in response to submissions received, to reflect the changing needs of industry and the community.

Site auditor scheme

The NSW site auditor scheme improves public access to competent technical advice and provides increased certainty in the 'sign-off' of contaminated land assessments and remediation. The scheme provides a pool of accredited 'site auditors' who can be engaged to review investigation, remediation, and validation work done by contaminated land consultants.

The EPA undertakes assessment of applications to the site auditor scheme about every three years. New applicants to the scheme were invited in 2018, and three applicants were determined to be of a suitable standard to become site auditors and were accredited in June 2019.

The scheme is administered by the EPA under Part 4 of the Contaminated Land Management Act 1997 (CLM Act).

Guidelines and other documents

The EPA publishes several technical and guideline documents to support the proper management and clean-up of contaminated land in NSW. Since 2018 the EPA has published several new guidelines and updated existing ones to ensure that they continue to meet their objectives:

• The EPA’s Contaminated Land Management Compliance Statement () was published in 2018, and details the approach taken to compliance and enforcement of the contaminated land legislation in NSW. The overall objective of the EPA’s compliance activities in relation to contaminated land is to improve environmental and human health outcomes using a risk-based approach in conjunction with an escalating regulatory response to compliance breaches.
• The EPA’s Managing run-off from service station forecourts Practice Note () was published in 2019 to assist service station operators and consent authorities to plan for and manage run-off from hardstand areas of service stations.
• In 2020 the EPA’s Assessment and management of hazardous ground gases – Contaminated land guidelines () were revised to reflect changes in industry best practice and international standards.
• In 2020 the EPA published the revised Consultants reporting on contaminated land - Contaminated land guidelines (), which provide a reporting framework and information to ensure that reports prepared by consultants on the management of contaminated land contain the right information.
• The EPA commenced a review of its Contaminated Land Sampling Design Guidelines () in 2020. These guidelines help consultants to design appropriate sampling programs for contaminated sites, and to carry out analysis and interpretation of collected data.

Planning certificates

Information provided on planning certificates is the primary way potential landowners are made aware of actual or potential contamination of the land that they intend to purchase. Local councils are responsible for preparing planning certificates and ensuring that they contain the information that is required by law.

In 2020 the EPA conducted a review of contaminated land information on planning certificates in NSW, to better understand how NSW local councils present contaminated land information on their planning certificates.

The review identified a range of issues, including inconsistent information provided to the community on planning certificates. The EPA is proposing to publish a report that makes recommendations on how the identified issues can be addressed and provides guidance for councils regarding the presentation of contaminated land information.

Managing lead contamination

The EPA is undertaking a range of actions and programs to help manage historical lead contamination in NSW, including:

• Continuing to support and fund the Broken Hill Environmental Lead Program, which responded to rising lead blood levels in children in the Broken Hill area by remediating playgrounds and educating parents on safe use of these areas.
• Carrying out precautionary testing of surface soils in public, private and community spaces at Captains Flat in February 2021, to check for lead beyond the former Lake George Mine. The EPA also provided information to the community to keep them safe from lead.
• Working in partnership with local communities to review the management of soil contaminated with lead and lead slag as a result of operations from the former Pasminco Lead Smelter at Boolaroo.
• Continuing to undertake a lead safety and awareness campaign targeting people such as home renovators who are at risk of being exposed to lead contamination.

PFAS

The EPA is continuing to take a precautionary approach to managing the legacy of PFAS use across NSW, focusing its investigation on sites where usage of PFAS-containing products is the greatest. The NSW Government is working with all relevant government agencies through the NSW PFAS Taskforce to monitor the progress of investigations and to keep local communities informed.

The EPA has continued to inform the development of national policy, including the PFAS National Environmental Management Plan 2.0 () (the PFAS NEMP) and the National PFAS Position Statement (the Position Statement). The PFAS NEMP establishes a practical basis for nationally consistent environmental guidance and standards for managing PFAS contamination and was agreed to by the Heads of EPAs in October 2019 and has been endorsed by the NSW Government. The Position Statement was published in May 2020 under the Intergovernmental Agreement on a National Framework for Responding to PFAS Contamination, after having been endorsed by the NSW Government.

In March 2021, the Protection of the Environment Operations (General) Amendment (PFAS Firefighting Foam) Regulation 2021 (the Regulation) was published. The Regulation bans and restricts the use of PFAS firefighting foams in NSW, to reduce their impact on the environment, while still allowing their use for preventing or fighting catastrophic fires by relevant authorities and exempt entities. The Regulation constitutes the first step in the NSW Government’s commitment to supporting the objectives of the Position Statement. As part of the NSW Government’s support of these objectives, PFAS-containing firefighting foams will be gradually replaced with appropriate alternatives over time to help minimise risk to the environment.

The EPA is leading an investigation program to assess the legacy of PFAS use across NSW. With the assistance of the NSW PFAS Technical Advisory Group, which includes NSW Health, Department of Primary Industries. Office of the Chief Scientist & Engineer and the Office of Environment and Heritage, we provide affected residents with tailored, precautionary dietary advice to help them reduce potential exposure to PFAS contamination.

Current investigations are focused on sites where large quantities of PFAS may have been used in the past. The EPA has conducted 914 investigations to date, which are based on an assessment of source-receptor pathways. The NSW Government PFAS Investigation Program uses spatial information to monitor sites that may be contaminated with PFAS.

A map of the sites in NSW that may be contaminated with PFAS is available at: epa.nsw.gov.au/your-environment/contaminated-land/pfas-investigation-program.

Since the beginning of the NSW PFAS Investigation Program in 2016, assessing for PFAS has become more normalised across the contaminated land sector. Currently, there are over 70 EPA active investigation sites that are performing routine monitoring for PFAS compounds.

DPIE Crown Lands' Contaminated Land Management Strategy

DPIE Crown Lands endeavours to identify and appropriately deal with contamination issues on land prior to determination of any Aboriginal land claim or transfer of ownership under the Aboriginal Land Rights Act 1983. Given the size and nature of the Crown estate, it is not always possible to resolve all issues prior to transfer, especially with illegal dumping which can occur at unknown locations. Since 2016 DPIE Crown Lands has adopted a Contaminated Land Management Strategy to help reduce occurrence of this issue and, where necessary, remediate contaminated sites to an extent consistent with their existing purpose or use. The onus to remediate or clean up transferred Crown Land (under the Aboriginal Land Rights Act) does not transfer with the land, foremost remaining with the person responsible for the contamination where land is determined to be significantly contaminated under the Contaminated Land Management Act.

Emerging contaminants

The EPA will focus on legacy and emerging contaminants in its Strategic Plan for 2021–24. We plan to take action to prevent harm by targeting our efforts on high-risk legacy, current and emerging contaminants. This aims to:

• keep communities safe from harmful contaminants
• regulate in a way that mitigates risks from identified emerging and legacy contaminants
• support industry to identify hazards, assess the risks and implement effective controls to protect the environment and community from contaminants.

Regional capacity building

Obstacles to managing contaminated land in regional and rural areas have included:

• the lack of specialist technical skills
• misconceptions of regulatory liability
• a lack of financial and human resources to manage or apply appropriate planning considerations to contaminated lands.

A Council Regional Capacity Building Program is being implemented by the EPA to increase the capacity of regional councils to manage contaminated land and enable them to employ specialist technical staff to provide assistance and capacity building in contaminated land management.

The program will provide $1.4million annually over three years between 2019 and 2022 to support 63 regional councils. The program also offers additional support for regional councils as they resume regulatory responsibility of UPSS.