Changes to the assessment and management of asbestos in soil

August 2014

There has been much debate about the requirements for managing asbestos found in or on soil, with landowners and developers receiving conflicting advice and guidance as to their legal obligations. In particular, there has been a degree of confusion about whether or not asbestos found in soils should be notified to the NSW Environment Protection Authority (EPA) under the Contaminated Land Management Act 1997 (CLM Act).

The duty to report contamination arises when the land is contaminated at levels above those specified by certain guidelines, together with other relevant factors. Guidelines issued in March by the NSW Heads of Asbestos Coordination Authorities, entitled Managing asbestos in or on soil (Asbestos Guidelines), have provided some direction on the assessment and management of asbestos in soil and, specifically, when such asbestos should be notified to the authorities. However, they do not refer to specific levels of asbestos in soils, above which the requirement to notify the EPA is triggered.

Further guidelines, entitled Draft Guidelines on the Duty to Report Contamination under the Contaminated Land Management Act 1997 (Draft Duty to Report Guidelines), have now been issued by the EPA, which include reference to new criteria relating to asbestos, in line with the amended National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM). Once finalised, these Guidelines will provide further assistance in understanding the obligations to report asbestos contamination to the EPA.

The Draft Duty to Report Guidelines revoke the former Contaminated Sites: Guidelines on the Duty to Report
Contamination under the Contaminated Land Management Act 1997
, and:

  • detail the circumstances that can trigger the requirements to notify the EPA regarding contamination of land, including that associated with the presence of asbestos
  • set out the duty of landowners and those who have responsibility for contamination to report it to the EPA
  • outline how the EPA assesses and determines whether the contamination reported is significant enough to warrant regulation by the EPA.

Management of asbestos according to risk posed

The Asbestos Guidelines focus on the risk posed by asbestos to the health and well-being of humans, with the level of such risk being determined by reference to the likelihood of human exposure to asbestos fibres. Whether or not there is a requirement to take action depends on the form of the asbestos and its location, in terms of its depth within the soil.


Forms of asbestos

As the risk posed by asbestos is determined by reference to the potential for humans to be exposed to asbestos fibres, the Asbestos Guidelines draw a distinction between friable and non-friable asbestos in terms of the potential for each to generate airborne asbestos fibres.

Non-friable asbestos is asbestos bound in a matrix such as cement or resin. The potential for this type of asbestos to release fibres and pose a health risk to humans is relatively low. The most common type of non-friable asbestos is "fibro". Friable asbestos is asbestos that is not bound together, but is instead in a loose form. It can usually be crumbled or broken down using hand pressure, and therefore has the potential to generate significant quantities of airborne fibres and present a high health risk to humans.
 

Accessibility of asbestos in soil

Asbestos presents a risk to humans if fibres become airborne and are inhaled. Therefore, even if the asbestos is friable, it will not present a specific risk to human health if it is inaccessible.

Accordingly, under the Asbestos Guidelines, the location of the asbestos is another relevant factor in determining the risk posed, and the steps that should be taken to address that risk are dependent on the depth at which it is found in the soil.

As a starting point, if there is a risk that friable asbestos is present in surface soils, air testing should be undertaken to determine whether the fibres are airborne.

The following table summarises the additional steps that should be taken by reference to the various depths at which the asbestos is located:

Depth at which asbestos is found in soil Measures
<10 cms (ie on soil surface) Friable asbestos Non-friable asbestos
Isolate and secure the area by installing warning signs and a temporary barricade around the affected area.

 

If the non-friable asbestos is less than the equivalent of 10sqm of fibro sheet or fragments, then the fragments may be removed by hand-picking, tilling or screening (following suitable work health and safety practices). There shoul dbe no visible asbestos present on the surface. The collected asbestos should be wrapped in plastic sheeting and taken to an appropriate landfill.

 

 

Keep the soil damp to minimise the release of fibres into the air.

 

If the non-friable asbestos is greater than the equivalent of 10sqm of fibro sheet or fragments, then only a Class A or B asbestos removal licence holder may conduct the asbestos related removal work.

 

If able to do so, cover the area with plastic sheeting.

 

 

Engage an independent expert as soon as practicable to provide specialist advice on
how to manage the situation. In NSW, only Class A asbestos removal licence holders are
permitted to conduct asbestos removal work or asbestos related work that involves friable asbestos.

 

10cm-50cm

A site-specific assessment should be undertaken to determine the appropriate management strategy for the asbestos material.

 

>50cm

The asbestos material should not be disturbed unless it is for the purposes of site remediation, redevelopment or site management. Any remediation work should be conducted in a controlled manner in accordance with protocols for contaminated sites assessment and management. To ensure current and future owners are aware of buried asbestos, its presence should be noted on the land title or other publicly available information document, such as the NSW section 149 certificate or its equivalent.

 

 


Regulation and notification requirements under the CLM Act

Under section 60 of the CLM Act, a person whose activities have contaminated land and/or an owner of land that has been contaminated each have a duty to report that contamination to the EPA. The CLM Act sets out certain circumstances in which contamination needs to be notified but there has been a level of uncertainty in relation to asbestos in soils, specifically against which standards the concentrations of asbestos in soil should be measured.

The Asbestos Guidelines have sought to clarify those circumstances. However, they do not refer to specific concentrations at which the requirements would be triggered, relying instead on the extent of the risk posed
by the asbestos. On this basis, they confirm that sites that contain non-friable asbestos do not need to be reported to the EPA and should be managed as per the measures outlined in the table above.

Sites containing friable asbestos do need to be notified if that asbestos is within the top 10cm of the soil and
is giving rise to elevated levels of airborne fibres. However, there is no specification as to what "elevated levels" means and this introduces a subjective element to the process, where the requirement to notify the asbestos is dependent on the risk that is considered to be posed.

The new Draft Duty to Report Guidelines seek to remove this subjective element by referring to specific levels set out in the NEPM, above which the requirement to notify the EPA is triggered.

Specifically, notification is required where each of the following circumstances exists:

  • friable asbestos is present in, or on, soil on the land
  • the concentration of asbestos in an individual soil sample is equal to or above the Health Screening Level of friable asbestos in soil specified in section 4.8, Schedule B1 of the NEPM
  • a person has been, or foreseeably will be, exposed to the asbestos fibres by breathing them into their lungs.

Implications for landowners

There is a useful flow-chart (see p4) included in the Draft Duty to Report Guidelines which sets out the decision process for use by landowners or responsible persons considering reporting contamination to the EPA under the CLM Act.

In relation to asbestos specifically, the Asbestos Guidelines also attach a flow-chart (see p9) which sets out the steps that should be taken if asbestos is discovered on a site.

There is a slight inconsistency between the two sets of Guidelines, with the Asbestos Guidelines requiring notification in slightly different circumstances to the Draft Duty to Report Guidelines. As the latter Guidelines are still in draft, the Asbestos Guidelines should continue to be referred to at this stage.

Accordingly, key questions for landowners, for the purposes of the CLM Act, are:

  • Is the material friable?
  • Is it located in the top 10cm of the soil?
  • Is it generating, or likely to generate, elevated airborne asbestos?

If the answer to all these questions is "Yes", the EPA must be notified.

If the answer to one or more of these questions is "No", further steps may be required, and the material may still need to be managed in accordance with the guidance set out in the table above.

Elizabeth Wild

Knowing the law is not enough – our value is in delivering our clients a commercial and practical solution.

Elizabeth Wild Partner

Liz is a member of the Board. She is a specialist in all areas of environmental law, with a particular focus on contamination and pollution. Liz is also the Head of our Property, Environment and Planning practice and recognised by her clients, peers and legal directories as a leader in her field.

Our clients call upon Liz to help them tackle environmental issues such as negotiating the sale and purchase of contaminated sites and obtaining planning and environmental approvals for the remediation and development of contaminated land. She also advises on environmental due diligence, licensing and compliance issues and pollution law, as well as drafting and implementing environmental management systems.

One of Liz's career highlights has been acting for Jeffman Pty Limited in an action it successfully brought against the NSW Environment Protection Authority in the first ever legal challenge under the Contaminated Land Management Act 1997 (NSW).

Liz acts for large manufacturing companies, government agencies, listed property trusts and property developers.  Her clients include Sydney Trains, RMS, Orora and the Department of Defence.

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