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3.6 Remediation

Submitted by admin on Thu, 2009-10-01 13:05

Remediation of the effects of waste and pollution is the last resort in implementing the waste hierarchy. There is a large number of contaminated sites spread across the country, making this is an extremely important but highly under-regulated area. 

 
The Waste Act provides for the declaration of contaminated land and its remediation. If land is found to be contaminated, the Minister can order urgent remediation measures, stipulate a time-frame within which remediation must be accomplished, or only require that monitoring and risk management be undertaken. Land may still be transferred after being declared an investigation site, but the disclosure of its status and the notification of the Registrar of Deeds is required. The provisions for contaminated land in the Waste Act are retrospective and this is likely to be tested in court. 
 
Several prerequisites need to be met in order to give practically effect to the Act’s provisions, including:
  • The register of contaminated lands needs to be established and linked to the deeds register before investigation of suspected contaminated lands can take place. Standards for due diligence with respect to land transfers need to take these provisions into account.
  • Definitions, technical requirements and standards for both the identification and remediation of contaminated lands need to be developed – remediation standards are schedule to be finalized by April 2010. In the absence of local standards, international standards should be used as a reference point.
  • Potential issues of jurisdictional conflict will need to be resolved (both NEMA and the National Water Act contain provisions to address contaminated land).
  • An evaluation of the available airspace for the disposal of contaminated land needs to be conducted, noting that this is limited.
  • The NWMS must address the need to develop the specialist capacities in government required to manage complex decisions and monitor all the steps in the remediation process.

A risk-based approach to implementation of the provisions that is sufficiently flexible to accommodate a wide range of scenarios is required. Remediation requirements must be guided by the intended land use after remediation. It is recommended that exemptions from liability for remediation be considered for:

  • government bodies involuntarily acquiring ownership
  • persons who “innocently” acquired the land
  • sites contaminated only by migration from another site
  • consultants assisting developers in remediation of sites, provided there is no negligence
  • contractors and transporters who cause no additional contamination
  • secured creditors who act only to protect their financial interest
Where liability cannot be apportioned, a land remediation fund to cover the costs of state initiated remediation must be created. Where liability is identified, the consequences for the polluter of failure to remediate need to be defined.
 
The importance of the waste hierarchy and waste minimisation is a key consideration in the drafting of the NWMS. Given the economic consequences stemming from implementation of the waste hierarchy and the economic importance of the waste sector, the NWMS will balance the key principles of waste minimisation and reduction with economic feasibility and sustainability.