Event Details
Transcript:
00:00:03.327 - S1
Hello. Welcome to the latest in our Norton Rose Fulbright podcast series Catching Up on Contamination. As usual, I'm here with Sarah Mansfield, Special Counsel in the Environment and Planning team. And today we have probably a slightly different topic from what we normally talk about. Probably some people might say a slightly sexier topic. We're normally talking about waste and pollution and of course, of course contaminated land is at the heart of everything - a cleaner topic. a cleaner topic. That's right. But today, in fact, we're going to talk about climate change, but not climate change as you know it. We're talking about climate change in the context of contamination, and we're going to explore the connection between the two, the impacts of climate change on contaminated land, on the remediation industry, and hopefully open up a discussion about an issue that I don't think has been really, really explored to any extent within our industry. So our aim today is to just give you some food for thought. I spoke at an ALGA event in Perth a couple of weeks ago where this topic was discussed and there is a lot of interest and I think a lot of people having light bulb moments as they realise that that it will impact our industry. So again, as I said, our aim, as was the same with the ALGA event, was to just stimulate the discussion and get people thinking. So first of all, why, also,we decided to do this. What's what's led to this, I think more impetus in the market, in the industry, in community about climate change generally. And in the New South Wales, the EPA released for the first time its Climate Change Policy and Adaptation Plan as a result of a judgement handed down by the Chief Judge of the Land and Environment Court, who said basically that the EPA needed to have a policy. So the EPA couldn’t say, “Well, look,this is a national issue. [It’s] not only our role”, the EPA was required to confront this issue head on, which it has done, and issued the policy and an action plan. But it's obviously at this stage in its early iterations, it doesn’t touch on contaminated land at this point, But while it doesn’t touch on it, but does refer to contaminated land. And I think you can draw from it the fact that that will be next in line of actions that the EPA would take in relation to climate change. But at this point, it's focusing really on emissions, climate change emissions from a company,from an enterprise, and in particular from a company that has an environment protection licence or an EPL from the EPA. And so it’s requiring all licensees to come up with things called a CCMAP, which is a Climate Change Mitigation and Adaptation Plan, talking about, in which it is the licensee is required to measure, or begin measuring and providing data about its emissions and talking about its plans to adapt and mitigate those emissions. So in terms of EPL holders for activities like contaminated soil treatment works, obviously it's going to hit sooner rather than later. And so we'll talk a bit later on about what that might look like. But it's kind of early days as far as the EPA's regulation goes. So what we're not talking about today is that sort of emission measurement, net zero Paris agreement, that sort of thing. We are talking about climate change and its impacts on the contaminated land industry, on remediation projects, on properties in general, and changes we will need to make within our industry to, sort of, start moving towards a scenario where we're already facing liability, but we will be regulated sooner rather than later. So that said, as a brief introduction, I'm going to throw to Sarah now to set the scene, I guess, with what, what are the risks that climate change poses to the contaminated land industry and those of us practising in that industry. So when people talk about climate risks.
00:04:10.727 - S2.
There’s various terminology used,but they often refer to physical risks, transition risks and liability risks. The physical risks are, I guess, the physical changes in the environment as a consequence of climate change and in particular increase in global temperatures. So this means in real terms more severe flooding, erosion, subsidence, more severe storms, changes in ground waterflows, changes in surface water flows, sea level rises, and the list, the depressing list of physical impacts goes on and on and on and on. I recently read a statistic that said if there's 1.1m of sea level rise that would put 30,000km of roads in Australia at risk of inundation and as Many of the contaminated land procession would know is that under roads is a place in which contamination is often thought to be safely put. But I guess the physical risk is, well, if roads or other surfaces are being inundated, an increased frequency or increased severity is the underlying assumption that it was safe to put the contamination. Does that still ring true in the context of this changing environment? But there's also other physical risks associated with climate change and contamination. For example, it can affect the toxicity of contaminants, how they trap the speed at which they travel through the environment, the medium in which they travel through the environment. For example, when in Lismore, where there's been the recent flooding. A lot of contaminants and pollutants were mobilised and carried off site by those floodwaters, meaning that there was huge environmental cleanups in some circumstances. But it also affects the rate at which contaminants, contaminants break down and that they'reabsorbed into the environment. So there's all of these physical changes as a consequence of increased global temperatures and other associated impacts on the environment, which give rise to what is generally referred to as physical risks. Then transition risks generally refers to how government institutions, societies, communities, how they change their behaviour in response to climate change. So of particular relevance to contaminated land in New South Wales is planning control. So at the moment, under the what was formerly known as SEPP 55, what now known as the Resilience and Hazard SEPP. If you have a parcel of land in a flood prone area or an area that's in a coastal protection zone, then any remediation works you carry out on that property require development consent and a Category one remediation works. And in response to climate change, you can also see that more land might be considered to be designated as being part of those zones. So there will be practical changes in terms of the legal requirements that will relate to remediation works. In terms of how institutions might change their behaviour. Insurers, we know, are looking at this issue incredibly closely. Climate change has the potential to really change the risk profiles of many insurance products, including insurance products related to contamination and pollution. So previously or currently you can get types of insurance for known conditions, including known contamination conditions. And there has been examples of insurance being issued in relation to a containment cell. But you can see that insurers are going to be asking more and different questions about the suitability of that containment cell given the physical risks associated with climate change. And then thirdly is and this is the one that suddenly makes me sit up nice and straight are liability risk. Liability risks can refer to a range of things. But one thing that is certainly falling in this category is the liability of professionals. When we provide advice and services, What might have been sufficient ten years ago, five years ago, is not necessarily sufficient today. What you have to do to fulfil a duty of care is not fixed in stone. Rather, it must shift with the times. So that means lawyers, contaminated land consultants and a whole bunch of other professionals need to be taking into account the physical and transitional risks associated with climate change. Now, in order to ensure that they're adequately fulfilling their duty of care. This is also true potentially of landowners and polluters. What would have been considered perhaps sufficient in terms of capping and containing contamination on site or a contamination analysis? A risk assessment may not be sufficient today due to the physical risks of climate change having to now be taken into account. And if those risks aren't adequately taken into account, well then there's the good old torts of nuisance and negligence will potentially be applicable,because I think it’s fair to say, particularly given the level of publicity in New South Wales and throughout Australia more broadly about the impacts of climate change and how we are seeing more severe storms,more severe flooding, is that it is reasonably foreseeable that climate change is going to have these physical impacts on the environment. And then in terms of legislative liability under the Contaminated Land Management Act, if there's a change in circumstance that will, then means the EPA has the capacity to regulate sites that it previously ceased to regulate or previously didn't think warranted regulation. And so it’s never done under the CLM Act. And certainly if there's changes in circumstances, the EPA may choose to exercise its powers differently.
00:10:35.193 - S1
You mean if somebody completed a voluntary management proposal and cleaned up the site and then they were -
00:10:40.660 - S2
They were done?
00:10:41.260 - S1
And then the EPA decides, Well, actually,climate change is a real issue here. It could have an impact on where you’ve located that cell or remediated that site and they can reopen it under the Act. That’s right.
00:10:53.127 - S2
And also, if there’s, say, a VMP in place and there was an assumption that a containment methodology or a cap would have been suitable for 30 years or whatever the time frame was, that then due to increased erosion, flooding or any other physical risks associated with climate change, perhaps that is no longer adequate. And so it's that shifting standard, that assumption that things would be suitable for a certain period is perhaps going to be undone. Those underlying assumptions, because of the changing context of the environment may no longer hold true. And notwithstanding the fact you might have thought you'd closed out the regulation or you might have a site audit statement,if things have physically changed, then things have changed and then the EPA may regulate to take into account those change circumstances.
00:11:44.660 - S1
But based on what you’ve just said, Even if we're not at the point,which we're not, where the EPA is actively regulating the issue, or scrutinising climate change as an issue in remediation, there's liability here and now for those of us working in this industry to take responsibility to make sure we don't allow remediation to go ahead in inappropriate areas or with inappropriate methodologies because we face civil liability, we face litigation from third parties,from our clients, from others. If we are not considering the impacts of climate change on the work we do.
00:12:23.793 - S2
That's right. And I think when Iwas preparing for this talk, I sort of asked the devil’s advocate question:Well, the NEPM hasn’t changed. The EPA hasn't issued any specific contaminated land guidance. There's nothing specific to comply with per se. That's climate change related to the contaminated land industries. So do I need to do anything differently while such documents don't exist? And I think the fact is, is that these are.. we are aware of the physical changes and we need to take that information into account, I think. And there's potential liability now and there's also the potential for claims in the future. And you'd be well advised to look around the corner, know that this is coming down the pipeline and address and adapt your actions now so that you will be well placed to answer the potentially awkward questions that might be coming your way in the future. Because the physical risks associated with climate change are foreseeable now. So take that information into account.Don't bury your head in the sand.
00:13:31.527 - S1
Well, let's take that from the theoretical to the practical and talk about a real world scenario that we're dealing with all the time and that many people listening to this will be dealing.
00:13:41.393 - S2
Albeit one we've made up for the purposes of this.
00:13:43.660 - S1
No names will be will be given. Okay.So let’s say we’ve got a site. It’s an industrial, former industrial manufacturing facility on the Parramatta River. So right next to the river. And in the course of remediating this site, one of the options we're looking at isa containment cell on site because it doesn’t make sense to track a whole lot of this contamination off to landfill when it can safely be accommodated. But it has often been,as has been in the past, it would be considered an appropriate solution to put it in a containment cell on the site. So you’d go through the process of - you come up with a methodology you then need because it was along the river, you'd need to get consent from council for it as a category one remediation project. And so council then is required to look under the old SEPP 55. That’s now the Resilience and Hazard SEPP. They’re required to look at this to see whether it’s appropriate,to give you consent and if it’s deemed to be in one of these vulnerable coastal areas or coastal protection areas, Or flood zones, they’re required to have a look at it and consider now the impacts of the sighting of your containment cells. So to get that consent in the first place,you're going to have to, I guess, come up with or satisfy the consent authority that the design criteria that you’ve come up with are appropriate. So in the past, we might have looked at, say, a 1 in 100 year flood risk and designed that into the container itself. But with the impacts of climate change, we're not looking at that sort of time frame anymore. We might be looking at 1 in 50, 1 in 10. And if you look at last year,2 in 1 in many cases. So in fact, you’re going to have to look at a different design in order to satisfy the requirements under the SEPP. And if you are the consultant,you are, I guess, putting yourself at risk if you don’t design something that’s going to last a lot longer. And in the EMP that you will have, we all know for a containment. So you’ll need an EMP there. The EMP will have a monitoring regime and perhaps that monitoring regime now needs to take into account the fact that one of the things you need to monitor for is impacts from climate change. So changes in the levels of the river,greater storm event flooding, all sorts of impacts that we now need to consider and that will need to be factored into the design criteria, the mediation methodology itself and the EMP and the monitoring requirements for that containment cell. The site also needs to be signed off on all of this. The site auditor will need to be satisfied, although it doesn't say it at the moment, but it will have an obligation to say it’s suitable for the, you know, a suitable way forward. I would consider that another factor for site suitability now, from a climate change perspective.
00:16:54.327 - S2
So is it in truth suitable notwithstanding,not just due to the
00:16:58.993 - S1
contamination levels,but the NEPM levels, but is it suitable based on where it's located? And from a climate change perspective.
00:17:06.660 - S2
It has the risk profile of this land changed as a consequence of climate change? And if it's in a coastal area or near a water body, it may well have.
00:17:17.527 - S1
And is a passive EMP still appropriate given its location? Or do you need to do the clean up quicker or do you need to do more up front and leave less on site because of the location? And then what does that do to cost factors? If you’ve got a design build into the design and greater robustness to, I guess, withstand climate change, If you get to a point where actually taking the contamination off site and disposing of it in the old traditional Dos and Don’ts, maybe on a cost benefit analysis, that becomes more appropriate. So I think it’s going to throw out a whole lot of issues when you’re designing these things, you’ve got to look at - obviously one of things you need to look at all the options available to you and when you're doing that comparison cost, the cost differential may change the ongoing obligations may be so onerous because of climate change impacts that you might decide that it is better to do more upfront contamination. And this is, I think
00:18:13.260 - S2
A classic example of what the Academics call a transition risk, because we're in a very difficult period. We know of the physical changes associated with climate change are real and are happening and we don’t like them.But there’s a gap in the regulations. We don’t have good guidance. We don't have a body of evidence regarding how it is that we should specifically take these risks into account. We don't have that body of practice yet, but notwithstanding that imperfect information, and this is, to wheel out the old precautionary principle, which I like to do at every given opportunity, doesn't mean that you can put your head in the sand and ignore the fact that climate change is happening. You actually do have to take these risks into account as best you can. And you can’t say
00:19:03.327 - S1
Just because, well, we don’t know what’s going to happen in 30 years.
00:19:08.327 - S2
I’ll just do what I’ve been doing for the last 30 years
00:19:09.927 - S1
What you probably have to do is you will probably have to increase the period of monitoring that you’re requiring and the
00:19:17.727 - S2
Frequency of it.
00:19:19.260 - S1
The frequency and the inbuilt triggers for when you might need to take further action. So we are designing these things. Our industry designs those things for a long period of time for very good reasons, because we want them to last a long time. But because we don’t know what the impact of, say, a two degree temperature rise might be or.
00:19:38.260 - S2
Well, we have to make certain assumptions about that, how that will change the environment. I mean, if we're focusing on a containment cell example, but this is also true of environmental assessment and risk assessment. If we have temperature changes, how is that going to affect the breakdown of contaminants, how they’re absorbed into the environment by the ecosystems and And what happens to their broader breakdown products? Is it going to be - And those factors need to betaken into account as well. That’s a good point.
00:20:09.727 - S1
It is going to, I mean, the different criteria that you take into account when you're given timeframes and milestones, all of that will change with climate change. When you're looking at changing, when you're looking at choice of methodologies. Well, some of the some of the ones we've seen, you know, tossed out there in the past, like thermal as a way for treating contamination, given the huge amount of emissions created by that sort of technology - that’s probably a technology that just won’t cut it anymore. Anything that's too energy intensive, anything that's going to create emissions that we're trying to actually mitigate and reduce will probably not make it through the first cut of a remedial assessment.
00:20:58.127 - S2
Whereas, you know, previously that technology was, oh, it was fast, it was an aggressive way, it got rid of the contamination, hooray. But, you know, that was the.. in some cases sort of as the Rolls Royce way to do things, whereas, the well, and it was generally speaking quite fast, whereas other options will be more palatable, both from a social perspective,an EPA perspective, and a consent authority perspective, because that level of emissions you're not going to be well thought of.
00:21:31.193 - S1
So I mean, when you sum it all up, I mean,it's really another layer. It's just another risk and another factor that needs to be taken into account when you're working in our industry. So in that way it's not new, but it is something that is not currently in any of the guidance that we have seen. And I think it's going to be too late, certainly from a liability perspective to wait for the regulators to take action. I think it's something we need to be thinking about now and perhaps something that is right for some sort of industry guidance, as I said, ALGA is already onto it and has run a seminar in Perth on it, which has a lot of interest. But I think by the time we wait for some actual regulatory reform in this space, it's probably going to be too late. So it’s over to, I guess our audience and the industry to come up with some, I guess some self-education and awareness and parameters.
00:22:31.327 - S2
Yeah. But I think certainly for the moment,if in so many years down the track, if you were faced with a claim much better able to defend it, if you can document that climate change was considered and was taken into account as best as it could be based on the available information and guidance, which is far from perfect than for it not to be considered at all. But far happier to defend the first scenario than the complete blank slate because then there's no attempt to address it. Yep.
00:23:11.327 - S1
I mean, we could talk for days about this,but as I said at the beginning, we're really hoping just to stimulate some thought about this and some discussion amongst the issue around the corner. And so as always, we are delighted when we receive any feedback, emails and questions. Given the size of this topic, we may well revisit it at a later date. But again, thank you for listening and we look forward to you listening the next in our series of podcasts.
