Federal Register of Legislation - Australian Government

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Measures as amended, taking into account amendments up to National Environment Protection (Assessment of Site Contamination) Amendment Measure 2013 (No. 1)
Administered by: Environment and Energy
Registered 03 Jun 2013
Start Date 16 May 2013

Commonwealth Coat of Arms

National Environment Protection (Assessment of Site Contamination) Measure 1999

as amended

made under section 14(1) of the

National Environment Protection Council Act 1994 (Cwlth), the National Environment Protection Council (New South Wales) Act 1995 (NSW), the National Environment Protection Council (Victoria) Act 1995 (Vic), the National Environment Protection Council (Queensland) Act 1994 (Qld), the National Environment Protection Council (Western Australia) Act 1996 (WA), the National Environment Protection Council (South Australia) Act 1995 (SA), the National Environment Protection Council (Tasmania) Act 1995 (Tas), the National Environment Protection Council Act 1994 (ACT) and the National Environment Protection Council (Northern Territory) Act 1994 (NT)

Compilation start date:                      16 May 2013

Includes amendments up to:               National Environment Protection (Assessment of Site Contamination) Amendment Measure 2013 (No. 1)

This compilation has been split into 22 volumes

Volume 1:       sections 1–6, Schedules A and B

Volume 2:        Schedule B1

Volume 3:        Schedule B2

Volume 4:        Schedule B3

Volume 5:        Schedule B4

Volume 6:        Schedule B5a

Volume 7:        Schedule B5b

Volume 8:        Schedule B5c

Volume 9:        Schedule B6

Volume 10:      Schedule B7 - Appendix 1

Volume 11:      Schedule B7 - Appendix 2

Volume 12:      Schedule B7 - Appendix 3

Volume 13:      Schedule B7 - Appendix 4

Volume 14:      Schedule B7 - Appendix 5

Volume 15:      Schedule B7 - Appendix 6

Volume 16:      Schedule B7 - Appendix B

Volume 17:      Schedule B7 - Appendix C

Volume 18:      Schedule B7 - Appendix D

Volume 19:      Schedule B7

Volume 20:      Schedule B8

Volume 21:      Schedule B9

Volume 22:      Endnotes

 

Each volume has its own contents

 

 

 

About this compilation

The compiled instrument

This is a compilation of the National Environment Protection (Assessment of Site Contamination) Measure 1999 as amended and in force on 16 May 2013. It includes any amendment affecting the compiled instrument to that date.

This compilation was prepared on 22 May 2013.

The notes at the end of this compilation (the endnotes) include information about amending Acts and instruments and the amendment history of each amended provision.

Uncommenced provisions and amendments

If a provision of the compiled instrument is affected by an uncommenced amendment, the text of the uncommenced amendment is set out in the endnotes.

Application, saving and transitional provisions for amendments

If the operation of an amendment is affected by an application, saving or transitional provision, the provision is identified in the endnotes.

Modifications

If a provision of the compiled instrument is affected by a textual modification that is in force, the text of the modifying provision is set out in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled instrument has expired or otherwise ceased to have effect in accordance with a provision of the instrument, details of the provision are set out in the endnotes.

 

 

  

  


 

Table of provisions
National Environment Protection 
(Assessment of Site Contamination) Measure 1999
                                                                                                                                  Page

Contents

Preliminary                                                                                                                                                           1

1............ Citation.......................................................................................................................... 1

2............ Commencement............................................................................................................. 1

3............ Definitions..................................................................................................................... 1

Head of power for making this Measure                                                                                           4

4............ Head of power............................................................................................................... 4

Purpose and desired environmental outcome of the Measure                                              5

5............ Purpose and desired environmental outcome................................................................. 5

Assessment of Site Contamination Policy Framework                                                              6

6............ Assessment of site contamination principles................................................................. 6

(1)......... Individual responsibility................................................................................................ 6

(2)......... Implementation of jurisdictional responsibility.............................................................. 6

(3)......... Prevention..................................................................................................................... 6

(4)......... Regulatory control of site contamination....................................................................... 6

(5)......... Planning and development............................................................................................. 6

(5A)...... Decommissioning of industrial activities....................................................................... 6

(6)......... Availability of site contamination information............................................................... 7

(7)......... Community engagement................................................................................................ 7

(8)......... Cultural and spiritual significance.................................................................................. 7

(9)......... Education....................................................................................................................... 7

(10)....... Site assessment process................................................................................................. 7

(11)....... Human health................................................................................................................ 7

(11A).... Work health and safety.................................................................................................. 7

(12)....... Environmental impact.................................................................................................... 7

(13)....... Data collection and chemical analyses........................................................................... 8

(14)....... Risk assessment............................................................................................................ 8

(15)....... Objectives of assessment............................................................................................... 8

(16)....... Attainment of environmental outcome........................................................................... 8

(17)....... Specialist areas.............................................................................................................. 9

(18)....... Heritage sites................................................................................................................. 9

(19)....... Best practice................................................................................................................ 10

Schedules to the Measure                                                                                                                           11

7............ Schedules.................................................................................................................... 11

8............ Stages of investigation................................................................................................. 11

Reporting                                                                                                                                                             12

9............ Reporting requirements............................................................................................... 12

Review of the Measure                                                                                                                                13

10.......... Review period............................................................................................................. 13

Schedule A—Recommended general process for assessment of site contamination    14

Schedule B—General guidelines for the assessment of site contamination           15

 

 


National Environment Protection (Assessment of Site Contamination) Measure 1999

 

Introductory note

Section 14 of the National Environment Protection Council Act 1994 and the equivalent provision of the corresponding Act of each participating State and Territory provides for the making of Measures by the National Environment Protection Council and the matters to which they may relate.  This Measure relates to the matters set out in paragraph 14(1)(d). 

The Measure is to be implemented by the laws and other arrangements participating jurisdictions consider necessary: see Section 7 of the Commonwealth Act and the equivalent provision of the corresponding Act of each participating State and Territory.

Preliminary

1  Citation

                   This Measure may be cited as the National Environment Protection (Assessment of Site Contamination) Measure 1999.

2  Commencement

                   This Measure commences on the date of gazettal of this Measure.

3  Definitions

                   This clause defines particular words and expressions used in this Measure. Definitions of other terms that are used in particular guidelines in Schedule B are set out in the relevant guidelines.

                   In the context of this Measure the use of the word “should” does not imply obligation, but rather provides for general guidelines for the assessment of site contamination.

                   In this Measure, unless the contrary intention appears:

Agency means a body or bodies of a participating State or a participating Territory which that State or Territory has nominated for the purposes of this Measure.

Assessment of site contamination means a set of formal methods for determining the nature, extent and levels of existing contamination and the actual or potential risk to human health or the environment on or off-site resulting from that contamination.

Background concentrations means the naturally occurring, ambient concentrations of substances in the local area of a site.

Chemical substance means any organic or inorganic substance, whether liquid, solid or gaseous.

Commonwealth Act means the National Environment Protection Council Act 1994 of the Commonwealth.

Contamination means the condition of land or water where any chemical substance or waste has been added as a direct or indirect result of human activity at above background level and represents, or potentially represents, an adverse health or environmental impact.

Ecological Risk Assessment is a set of formal, scientific methods for defining and estimating the probabilities and magnitudes of adverse impacts on plants, animals and/or the ecology of a specified area posed by a particular stressor(s) and frequency of exposure to the stressor(s).  (Stressors include release of chemicals, other human actions and natural catastrophes).

Epidemiology is the study of the distribution and determinants of disease in human populations.

Health Risk Assessment is the process of estimating the potential impact of a chemical, biological or physical agent on a specified human population system under a specific set of conditions.

Health Risk Management is the process of evaluating and implementing appropriate options to address risks identified from health risk assessments.  The decision making will incorporate scientific, social, economic and political information.  The process requires value judgements eg. on the tolerability and reasonableness of costs.

Investigation or Screening Level means the concentration of a contaminant above which further appropriate investigation and evaluation will be required.

Risk means the probability in a certain timeframe that an adverse outcome will occur in a person, a group of people, plants, animals and/or the ecology of a specified area that is exposed to a particular dose or concentration of a chemical substance, ie it depends on both the level of toxicity of the chemical substance and the level of exposure.

Site means the parcel of land being assessed for contamination.

Unless otherwise stated, a term used in this Measure and in the Commonwealth Act has the same meaning in this Measure as it has in the Commonwealth Act.  The following terms are defined in subsection 6(1) of the Commonwealth Act:

Agreement means the Intergovernmental Agreement on the Environment made on 1 May 1992 between the Commonwealth, the States, the Australian Capital Territory, the Northern Territory and the Australian Local Government Association, a copy of which is set out in the Schedule to the Commonwealth Act.

Council means the National Environment Protection Council established by Section 8 of the Commonwealth Act and the equivalent provisions of the corresponding Acts of participating States and Territories.

National environment protection guideline means a guideline that gives guidance on possible means for achieving desired environmental outcomes.

National Environment Protection Measure (Measure) means a Measure made under section 14(1) of the Commonwealth Act and the equivalent provisions of the corresponding Acts of participating States and Territories.

Participating jurisdiction means the Commonwealth, a participating State or a participating Territory.

Participating State means a State:

                     (a)  that is a party to the Agreement; and

                     (b)  in which an Act that corresponds to the Commonwealth Act is in force in accordance with the Agreement.

Participating Territory means a Territory:

                     (a)  that is a party to the Agreement; and

                     (b)  in which an Act that corresponds to the Commonwealth Act is in force in accordance with the Agreement.

Head of power for making this Measure

4  Head of power

                   This Measure is made pursuant to section 14(1) of the Commonwealth National Environment Protection Council Act, and in particular, paragraph (d) of that section, and the equivalent provisions of corresponding Acts in participating States and Territories.

Purpose and desired environmental outcome of the Measure

5  Purpose and desired environmental outcome

             (1)  The purpose of the Measure is to establish a nationally consistent approach to the assessment of site contamination to ensure sound environmental management practices by the community which includes regulators, site assessors, environmental auditors, land owners, developers and industry.

             (2)  The desired environmental outcome for this Measure is to provide adequate protection of human health and the environment, where site contamination has occurred, through the development of an efficient and effective national approach to the assessment of site contamination.

Assessment of Site Contamination Policy Framework

6  Assessment of site contamination principles

                   The following principles should be observed in relation to the Assessment of Site Contamination:

(1)  Individual responsibility

                   The primary responsibility for ensuring the assessment of site contamination rests with the States and Territories, excluding sites owned by the Commonwealth which are the responsibility of the Commonwealth.

(2)  Implementation of jurisdictional responsibility

                   There should be a consistent approach to the assessment of site contamination across Australia but each participating jurisdiction may implement the necessary controls in its own manner.

(3)  Prevention

                   Contamination, or further contamination, of a site should be prevented.  Investigation or Screening Levels provided as part of this policy framework process should not be construed as desirable soil/water quality criteria or levels up to which contamination may be allowed to occur.

                   There should be no noticeable or measurable change in the characteristics of soil, or associated ground or surface waters.  It is recognised that certain activities will lead to the addition of substances to the soil which raise the background levels of soils.  These are valid and legitimate activities where they are undertaken in accordance with relevant laws and best practice guidelines.

(4)  Regulatory control of site contamination

                   Contaminated soil and associated ground and surface waters should be categorised by the nature and concentration of contaminants and subject to appropriate controls over their use, storage, transport and ultimate disposal.

(5)  Planning and development

                   Authorities of participating jurisdictions (at local and State government level) that consent to developments, or changes in land use, should ensure a site that is being considered for development or a change in land use, and that the authorities ought reasonably know if it has a history of use that is indicative of potential contamination, is suitable for its intended use.

(5A)  Decommissioning of industrial activities

                   Industries, including mining and mineral processing industries, are responsible for ensuring that, when equipment on a site is dismantled or a site is otherwise decommissioned, appropriate measures are taken to leave the site in a safe and stable condition in order to prevent or, as far as practical, minimise adverse long‑term environmental (physical, social and economic) impacts.

(6)  Availability of site contamination information

                   Without detracting from any obligation of disclosure, which may exist at law, all relevant information on site contamination should be accessible to the community and particularly to those who need to make informed decisions, for example, potential land purchasers.

                   Without detracting from any obligation of disclosure, which may exist at law, the owner of a contaminated site should inform any person who proposes to purchase or lease the site, of information from the assessment of site contamination.

                   Prospective purchasers of land should also make appropriate enquiries to satisfy themselves regarding the condition of a site and any financial liabilities that may apply for the current use or the proposed future use of the land.

(7)  Community engagement

                   If a community could reasonably have an interest in the potential site contamination, community engagement should start at an early stage of, and continue throughout, the process of assessment of site contamination.

(8)  Cultural and spiritual significance

                   Due regard should be given to sites of cultural or spiritual significance, in particular, the significance that indigenous people attach to land.

(9)  Education

                   Education programs should be implemented in the community, industry and all levels of government to raise awareness and understanding of site contamination issues, including the prevention of soil, air and water contamination.

(10)  Site assessment process

                   The recommended general process for the assessment of site contamination is shown in Schedule A. The assessment should be conducted by professionals who have the relevant qualifications, competencies and experience.

(11)  Human health

                   Human health should be a primary concern when assessing  land use and exposure scenarios.

                   There should be appropriate occupational health and safety measures (including training) for personnel involved in assessment of site contamination.

                   Community health assessment and monitoring for specific health effects may be warranted where appraisal has indicated a significant risk of exposure to contamination.

(11A)  Work health and safety

                   There should be appropriate work health and safety measures (including training) in place for any personnel involved in the assessment of site contamination, in accordance with the applicable work health and safety legislation.

(12)  Environmental impact

                   The assessment of site contamination should include a consideration of risks to water resources and other ecological risks.

                   During the assessment, the on‑site and off‑site impacts of contaminants should be appropriately managed to prevent adverse impacts, particularly impacts relating to air emissions, surface water and groundwater.

(13)  Data collection and chemical analyses

                   Site Assessors should develop data quality objectives and implement data quality assurance and quality control procedures that address sampling, contaminant identification and chemical analyses. These procedures should enable the evaluation of the precision and accuracy of results as part of the assessment of site risk.  All other aspects of the risk assessment process should also be subject to quality assurance.

                   Chemical analyses should be performed using approved standard methods and should be performed by laboratories accredited for those analyses in the particular environmental medium. Field analytical methods should be performed by appropriately skilled personnel using approved standard methods.

                   Laboratories should be accredited for relevant analytical procedures by the National Association of Testing Authorities, Australia (NATA), or by an organisation recognised under NATA’s Mutual Recognition Agreement (MRA) Network, or according to an appropriate standard dealing with laboratory quality assurance.

(14)  Risk assessment

                   The initial assessment of human health risks and ecological risks may be undertaken by comparing levels of contaminants on the site with appropriate investigation or screening levels or, if necessary, by undertaking a site‑specific risk assessment. The initial assessment may be followed by a more detailed assessment of human health risks and ecological risks.

                   An assessment of human health risks and ecological risks should, if practicable, take into account any additive, synergistic and antagonistic effects of mixing chemical substances.

(15)  Objectives of assessment

                   The purpose of site assessment is to determine whether site contamination poses an actual or potential risk to human health and the environment, either on or off the site, of sufficient magnitude to warrant remediation appropriate to the current or proposed land use.  In assessing that risk a balance is to be achieved between:

                        •  optimising the current or intended use of the site; and

                        •  adequately protecting human health and the environment.

                   The broader objective of assessment is to ensure:

                        •  that the people of Australia enjoy the benefit of equivalent protection from air, water and soil pollution wherever they live;

                        •  that the environmental values of water are maintained for future generations;

                          that the capacity of the soil is maintained for future generations; and

                        •  that there is consistency of approach between jurisdictions to aid government and business decision making.

(16)  Attainment of environmental outcome

                   In general, to achieve the desired environmental outcome, the process of the assessment of site contamination should be placed within the context of the broader site assessment and management process.  In particular, in assessing the contamination, the site assessor and others should take into account the preferred hierarchy of options for site clean-up and/or management which is outlined as follows:

                        •  on-site treatment of the contamination so that it is destroyed or the associated risk is reduced to an acceptable level; and

                        •  off-site treatment of excavated soil, so that the contamination is destroyed or the associated risk is reduced to an acceptable level, after which soil is returned to the site; or,

                   if the above are not practicable,

                        •  consolidation and isolation of the soil on site by containment with a properly designed barrier; and

                        •  removal of contaminated material to an approved site or facility, followed, where necessary, by replacement with appropriate material;

                   or,

                          where the assessment indicates remediation would have no net environmental benefit or would have a net adverse environmental  effect, implementation of an appropriate management strategy.

                   When deciding which option to choose, the sustainability (environmental, economic and social) of each option should be considered, in terms of achieving an appropriate balance between the benefits and effects of undertaking the option.

                   In cases where no readily available or economically feasible method is available for remediation, it may be possible to adopt appropriate regulatory controls or develop other forms of remediation.

                   It should be emphasised that the appropriateness of any particular option will vary depending on a range of local factors.  Acceptance of any specific option or mix of options in any particular set of circumstances is therefore a matter for the responsible participating jurisdiction.

(17)  Specialist areas

                   In the assessment of site contamination the following sources are recognised as requiring specialised forms of assessment and initially, information should be sought from the relevant environmental protection agency for advice on assessing sites with:

                     (a)  unexploded ordnance;

                     (b)  radioactive substances;

                     (c)  pathogenic materials and waste;

                     (d)  contaminated sediments;

                     (e)  explosive gas mixtures.

                   Consideration should be given to the physical, and/or chemical properties of the soil and associated ground and surface waters, including naturally elevated contaminant levels or acid sulfate characteristics, where they have the potential to adversely impact on the current or proposed land-use.  In particular, the impact of such physical and/or chemical properties of the soil and associated ground and surface waters on the risk posed by such sites should include appropriate environmental impact assessment within relevant jurisdictional legislative requirements.

(18)  Heritage sites

                   Heritage values should, wherever possible, be assessed prior to any physical assessment of contamination of a site. Where appropriate, advice should be sought from the local representatives of the National Congress of Australia’s First Peoples, the Australian Heritage Council, jurisdictional heritage bodies and local councils.

(19)  Best practice

                   In observing the principles and guidelines in this Measure, each participating jurisdiction should give consideration to the most current advice and best practice.

Schedules to the Measure

7  Schedules

                   This Measure contains the following Schedules:

(1)  Schedule A

                   Schedule A in this Measure identifies the general process for the Assessment of Site Contamination.

(2)  Schedule B

                   Schedule B in this Measure identifies general guidelines for the Assessment of Site Contamination.

8  Stages of investigation

                   Schedule A shows the staged site assessment process indicating which general guidelines are applied to preliminary and detailed site investigations.

                   The preliminary investigation usually involves:

                     (a)  establishing a site history to identify the characteristics of the site (such as the location and layout of the site, the building construction on the site, the geological setting, current and past activities at the site, current and past uses of the site, and heritage considerations); and

                     (b)  inspecting the site; and

                     (c)  interviewing representatives for the site.

                   Investigations are usually confined to areas where potentially contaminating activities have occurred and involve a site history-based sampling plan.  The preliminary investigation and initial assessment of site contamination should consider the possibility of all forms of potential contamination based on past land use.  The preliminary investigation should be sufficient to identify  whether contamination exists on the site.  Contamination may not be completely delineated at this stage.

                   A detailed investigation is required when the results of preliminary investigation are insufficient to enable site management strategies to be devised.  Potential or actual contamination will need further evaluation. Potential contamination may have been indicated by the presence of unexpected underground structures (eg. underground fuel or chemical storage tanks) or by the presence of imported fill (eg. ash, odorous material or various types of refuse) or staining of soil.  Actual contamination may have been detected in the form of contaminants which are not naturally occurring or as elements or compounds which are above background levels or exceed the applicable investigation or screening levels.

                   Depending on the proposed use and the results of initial site history investigations, the assessment of a site may involve both preliminary and detailed investigations.

                   Many site investigations proceed in multiple stages due to the complexity of the site and the discovery of unexpected contamination, or as investigation funds become available.  Site investigators should obtain and consider all site information available to minimise the number of site visits and costs associated with the mobilisation of field investigation teams.

Reporting

9  Reporting requirements

             (1)  It is intended that each participating jurisdiction submit a report on the assessment of the implementation and effectiveness of the Measure, including compliance with the Measure, under Section 23 of the Commonwealth Act and similar provisions in the corresponding Acts of each participating State and Territory.

             (2)  It is intended that a report under subsection (1) be submitted to the Council by 30 September immediately after each reporting year. 

             (3)  In this clause ‘reporting year’ means a year ending 30 June.

Review of the Measure

10  Review period

                   This Measure will be subject to a review every 10 years after the measure was last amended, or within any lesser period determined by the Council, which will consider:

                     (1)  the effectiveness of the Measure in achieving the desired environmental outcome set out within it;

                     (2)  the resources available for implementing the Measure; and

                     (3)  the need, if any, for amending the Measure (in accordance with the Act), including:

•        whether any changes should be made to the Schedules; and

·                 whether any changes should be made to improve the effectiveness of the Measure in achieving the desired environmental outcome set within it.


Schedule ARecommended general process for assessment of site contamination

  

Schedule BGeneral guidelines for the assessment of site contamination

  

The following general guidelines provide guidance on the possible ways of achieving the desired environmental outcome (PART 3 of the Measure) for the assessment of site contamination and should only be considered in relation to the assessment of site contamination.

 

Index of guidelines

Schedule B1—Guideline on Investigation Levels for Soil and Groundwater

Schedule B2—Guideline on Site Characterisation

Appendix A Possible analytes for soil contamination

Appendix B Data quality objective (DQO) process

Appendix C Assessment of data quality

Appendix D Example data presentation on scale drawings and borehole logs

Appendix E Dioxins and dioxin‑like compounds

Schedule B3—Guideline on Laboratory Analysis of Potentially Contaminated Soils

Appendix A Determination of total recoverable hydrocarbons (TRH) in soil

Schedule B4—Guideline on Site‑Specific Health Risk Assessment Methodology

Appendix A Structure of a risk assessment report

Schedule B5a—Guideline on Ecological Risk Assessment

Appendix A Summary of the EILs for fresh and aged contaminants in soil with various land uses

Appendix B Mixtures of chemicals

Schedule B5b—Guideline on Methodology to Derive Ecological Investigation Levels in Contaminated Soils

Appendix A Review and comparison of frameworks for deriving soil quality guidelines in other countries

Appendix B Method for deriving EILs that protect aquatic ecosystems

Schedule B5c—Guideline on Ecological Investigation Levels for Arsenic, Chromium (III), Copper, DDT, Lead, Naphthalene, Nickel and Zinc

Appendix A Raw toxicity for arsenic

Appendix B Raw toxicity for chromium (III)

Appendix C Raw toxicity for copper

Appendix D Explanation of the selection of the soil properties that control the added contaminant limits for copper

Appendix E Raw toxicity for DDT

Appendix F Raw toxicity for lead

Appendix G Raw toxicity for naphthalene

Appendix H Raw toxicity for nickel

Appendix I Raw toxicity for zinc

Schedule B6—Guideline on the Framework for Risk‑Based Assessment of Groundwater Contamination

Schedule B7—Guideline on derivation of health‑based investigation levels

Appendix A1 Derivation of HILs for Metals and Inorganics

Appendix A2 Derivation of HILs for PAHs and Phenols

Appendix A3 Derivation of HILs for Organochlorine Pesticides

Appendix A4 Derivation of HILs for Herbicides and Other Pesticides

Appendix A5 Derivation of HILs for PCBs and PBDEs

Appendix A6 Derivation of HILs for Volatile Organic Carbon Compounds

Appendix B Equations for derivation of HILs and Interim HILs

Appendix C Derivation of HILs for Generic Land Uses

Appendix D Blood lead model assumptions

Schedule B8—Guideline on Community Engagement and Risk Communication

Schedule B9—Guideline on Competencies and Acceptance of Environmental Auditors and Related Professionals