Michelle Lensink

Environment Protection (Site Contamination) Amendment Bill

This speech indicates the Liberal Party's support for the Environment Protection (Site Contamination) Amendment Bill.

The Hon. J.M.A. LENSINK: I indicate the Liberal Party’s support for this bill, contingent upon certain amendments being included in the bill—and I will go into them in some detail later. This bill has had a very long gestation. South Australia is the last jurisdiction in Australia to enact a piece of legislation that deals with site contamination prior to the implementation of the Environment Protection Act. My understanding is that the EPA is unable to pursue certain polluters who polluted pre 1995. As many people would understand, there are winners and losers in these situations, but the community recognises that we need to take action to clean up these sites. I am pleased that the bill takes a riskbased approach—which is quite pragmatic—in that if the pollution is not causing anyone or the environment any harm it does not need to be cleaned up to a pristine state, whereas that has been the case in other jurisdictions and it has proven to be incredibly costly and not very useful. In that sense the priority is that the resources to be applied to cleaning up pollution will be applied to those areas of priority.

I thank members of the EPA and the minister for their cooperation in helping me to understand this legislation, which, I think, is technical in many ways, and also a range of stakeholders whom I have met over the break and who have given me their opinion on the bill. I would like to go into those areas, just for the record. Business SA is generally supportive of the bill, believing it provides clarity regarding retrospectivity, and it has no outstanding issues with any particular clause of the bill, having put in substantial submissions to previous iterations of the bill. The Local Government Association is also generally supportive, although it has some concerns and has flagged a couple of areas in which we will be proposing amendments. The Engineering Employers

 Association is the only organisation I consulted with that is quite opposed to the bill, on the basis of retrospectivity. The Property Council is supportive because it believes it gives certainty to the property sector, but it would like some amendments, and the Housing Industry Association supports the introduction of a legislative measure to address contamination but has some concerns with the audit process. Master Builders supports the bill but would like amendments regarding the EPA powers, and the Motor Trades Association supports the bill but would like some reassurance that an owner’s efforts to do the right thing will also serve as a defence. That is the broad range of stakeholders with whom we have consulted.
I now turn to the major elements of the bill, but I will not go into it in great detail because I believe it is the role of the government to outline these. In relation to the divisions, there is a definition of site contamination which will be contained in new section 5B of the Environment Protection Act.

Notifications are contained in section 83A regarding underground water, and division 1 relates to the interpretation and application of site contamination. Division 2 relates to appropriate persons to be issued with orders and liability, division 3 to orders and other action to deal with site contamination, division 4 to site contamination auditors and audits, and division 5 to reports by site contamination auditors and consultants.
I understand that local government has had some responsibility for monitoring sites through development approval processes; however, local government (being as diverse and as diversely staffed as it is) can be highly variable between local government jurisdictions, and this bill is intended to ensure that site contamination issues are considered if and when land is rezoned.

Site contamination is one area that has benefited from escalating property values. The rezoning of some of our former industrial and commercial areas for residential developments—particularly areas close to the CBD with high market demand—means that the escalating prices have allowed the costs of remediation to be absorbed without the necessity for government intervention. The EPA provided a number of examples, in the briefing, where the price of the land ended up taking care of that funding issue.

 I understand that, because the bill is risk based, it does not say that site contamination is the same as polluter-pays and, therefore, it is not dependent on what pollution exists at the site. For instance, a site may contain any volume of carcinogens but, if no person is to enter it and the pollution is not harming the environment, it will not be considered to be contaminated. The issue depends on what the site is to be used for—in particular, if the site is to be developed or redeveloped for sensitive land use (that is, residential, primary school, a child-care centre or nursing home) the site contamination process will be triggered. The standards for industrial-zoned land, obviously, are not as high as they are for sensitive land use.

There is the issue of who will be asked to assess site contamination and clean it up—that is, who pays—and this is one of the areas that many of us struggled with in terms of the innocent owner versus the concept of ‘buyer beware’. I understand that, in the first instance, the notice will be served on the appropriate person, that is, either the original polluter (the person whose activities introduced the chemicals to the source site) or, if that person is unavailable, the owner of the source site.

These provisions will not proceed if the appropriate person has died or, in the case of a body corporate, ceased to exist, cannot be located or does not have the financial resources. Furthermore, a person who brings about a land use that is a rezone that results in site contamination becoming relevant (for instance, a developer who wants to convert an old industrial site into residential housing) will be deemed to have caused site contamination.

So, the issue of the appropriate person, as I said, is a somewhat vexed area in that there are people who believe that people who introduce contaminants at a time and in a means that was acceptable at the time should not be punished, versus those who say (such as in the case of Mobil, which I understand will be captured by this legislation) that such people ought to be made to clean it up if they did not take appropriate measures or were perhaps in some way careless in the way that they disposed of waste, particularly noxious waste.

In regard to the issue of the innocent purchaser, many would say that you should exercise due diligence, which means that you should examine it properly. On this side of the council we believe that it should not necessarily be a function of the EPA to determine who should be liable and what is a genuine arm’s length sale and that it should be a matter for the courts to determine, because for many hundreds of years the courts have been utilised to determine particular issues in relation to the law of contract and we do not see that that should be taken away from the courts and placed in the hands of the EPA, which probably does not have the resources to fulfil its current set of tasks, let alone take on additional areas of responsibility.

 I have stated that I am appreciative of the minister’s comprehensive replies to a number of questions raised by my colleagues and others but, for the record, I will ask them again so she can address them in her response before we go into committee. They are:

If someone disposed of waste in accordance with community expectations and the environmental standards of, say, 40 or 50 years ago, will they be liable for clean-up at today’s costs?

How is it to be calculated that an individual is in a financial position to pay for a clean-up some 40 to 50 years later?

What is the impact of this legislation on the Port Stanvac site and Mobil?

Do rural property owners need to identify buried rubbish, chemicals, old vehicles and the like, usually from the activities of previous generations and, therefore, dig up their whole property?

As a hypothetical, if someone owned a property on which they polluted, say, 30 years ago, and sold their land based on a discounted value, say, 10 years ago, and it has subsequently been sold five times to different owners, if that polluter is still alive and has sufficient funds, could they potentially be pursued to pay for the clean-up? Also, what would be the likely sequence that would lead to this outcome?

If the owner of the source site is too poor to pay, how will the government assess this, and under what circumstances will the government pay for the clean-up?

Can the minister provide examples or hypotheticals of sites which currently cannot be pursued by the EPA until the legislation is amended?

Can the minister provide the locations of the six sites in the EPA briefing, which is page 3 of the benefit cost analysis attachment provided at the briefing?

There were also some issues that the minister took the initiative of raising in her correspondence to me, which were: clarification of the roles of the bill and planning system, planning process and audit system; potentially contaminating activities; and auditors and the cost of development—the auditors being one of the issues that was raised in our consultations as being of concern to various industry groups in particular.

I flag that instructions have been sent to parliamentary counsel that the clauses that we will be seeking to amend are, first, in relation to section 5B. Secondly, the issue of the language of the bill ‘actual or potential harm to water that is not trivial’ and clauses 103D, 103E, 103F and 106 are areas in which we will be seeking amendment. An additional question is whether a draft of the regulations is available because, when this bill comes into operation, a significant amount of the implementation of this bill depends on the regulations. With those comments, I endorse the bill.

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