Manggala Resort & Spa, Kuantan, Pahang27 September 2016

LEGAL FRAMEWORK BRIEFING

ON CONTAMINATED LAND

MANAGEMENT IN MALAYSIA

&

LEAKING UNDERGROUND

STORAGE TANK GUIDELINES

Hazardous Waste DivisionDepartment of Environment Putrajaya

Hosted by the Department of Environment State of Pahang 1

• Introduction 1

• Legislation2

• Contaminated Land Management Framework

3

• Guidelines for Contaminated Land Management and Control in Malaysia

4

• Guidelines for Leaking Underground Storage Tank

5

• Conclusion6

OUTLINEOUTLINE

VISSION

Environmental Conservation for the Well-being of the People

MISSION

To ensure sustainable development in the process of nation building

FUNCTION

To administer and enforce the Environmental Quality Act 1974, and Section IV of the Economic Exclusive

Zone Act 1984

DEPARTMENT OF ENVIRONMENT MALAYSIA

1975-1986,MUI Plaza, KL

1986-2001,Wisma Sime Darby, KL

2001-2006,Presint 1, Putrajaya2010-current, Presint 4, Putrajaya

“Quite simply, Love Canal is one of the most appalling

environmental tragedies in American history. But that's not the

most disturbing fact. What is worse is that it cannot be

regarded as an isolated event. It could happen again -

anywhere in this country - unless we move expeditiously to

prevent it” Eckardt C. Beck, 1979.

Historical Cases of Land Contamination – Love Canal

4

Overview of the Canal area, 1927. The canal is again marked by the arrow. The northern branch of the Niagara River and GrandIsland, New York, are visible at the bottom of the photo. North is at top.(Source: http://ublib.buffalo.edu/libraries/projects/lovecanal/aerial_photos/aerial_1927.html)

LOVE CANAL

5

First developed by William T. Love, meant to be a dream community,

in 1892;

Love‟s idea was to tap into hydroelectric power by digging a short

canal between the upper and lower Niagara Rivers;

1910 - Love‟s project was abandoned;

1930 - 1950‟s Hooker Chemical (Occidental) used ditch to dump

chemical wastes in barrels (over 80 different chemicals, 20,000 tons);

1953 Land sold to city for $ 1;

In the late 50‟s, about 100 homes and a school were built at the site;

Aug 1, 1978, New York Times front page said the Hooker Chemical

Company using the Love Canal as an industrial dumpsite;

End of August 1978, all the residents in the Love Canals were

evacuated

LOVE CANAL – THE DREAM CITY

6

Chemicals Present at Love Canal

More than 80 compounds

Including, e.g., benzene, chlorobenzenes, thionyl

chloride and trichlorophenol (TCP)

Also present: dioxin – by product of TCP manufacture

Consequences: birth defects, miscarriage, high white-

blood-cell counts (pre-cursor of leukemia)

7

BACK HOME IN MALAYSIA

8

Mamut Copper Mine, Sabah

Illegal Dumping, Kelana Jaya

Scheduled Waste Drums, Tronoh Perak Oil Terminal, Pasir Gudang, Johor

INTRODUCTION

• Malaysia has not inherited such a frighteninglegacy of contaminated land as in otherdeveloped countries.

• Many sites such as motor workshops, petrolstations, fuel depots, railway yards, landfills,industrial sites and ex-mining land can bepotential contaminated sites.

• Little work carried out in identifyingcontaminated sites.

• A study on ‘Criteria and Standard for Managingand Restoring Contaminated Land in Malaysia’was commissioned under Night Malaysia Plan.

• Contaminated land is slowly gainingimportance in Malaysia.

WHY LAND CONTAMINATION IS A CONCERN?

– Groundwater is a precious natural resource.

• Used to be: groundwater = drinking water

• Now, groundwater drinking water

– Where have all the wastes gone?

• Kualiti Alam started its operations in 1996.

– Land is considered one of the limited resources – contaminated land depletes our land resources for other usages

– Land contamination normally goes unnoticed.

– Severe land contamination will have significant impacts on human health and the environment

– Significant liability issues associated with land contamination – unlike wastewater discharge or air emission, land contamination stays long after chemicals releases.

WHAT IS CONTAMINATED LAND?

11

ContaminatedContaminated LandLand means a site at which a substances occur atconcentration:

Above the concentration at which the substance is normallypresent in or on the land in the same locality and pose orare likely to pose an immediate or long term hazard tohuman health or the environment; or

Exceed concentration specified in the Site Screening Levels(SSLs).

Industrial Area

Toxic & Hazardous Waste Storage

o Environmental Quality Act (EQA) being gazettein 14 March 1974 & came into force on 15 April1975.

o Objective - To prevent, abate, control pollutionand to enhance the quality of the environment,and for purpose connected therewith.

o Rationale - To address possible impact onhuman health as a result of increasingindustrialisation process in the early seventies& To establish a comprehensive legalframework to deal with environmentalproblems.

o Application - EQA is applicable to the whole ofMalaysia

12

ENVIRONMENTAL QUALITY ACT 1974 (ACT 127)

LEGISLATION

o Approach

• Remedial through Enforcement of EQA.

• Preventive such as:-

▫ land use planning;

▫ Environmental input to resource &regional planning; and

▫ Environmental Impact Assessment.

o Control Pollution through:-

• Standards

• Written permission

• Licensing

ENVIRONMENTAL QUALITY ACT 1974 (ACT 127)

13

IS SOIL POLLUTION CONTROL BY EQA , 1974 ?

14

(2) Not withstanding the generality of subsection (1), a person shall be deemed to pollute any soil or surface of any land if –

(1) No person shall, unless licensed, pollute or cause or permit to be polluted any soil or surface of any land in contravention of the acceptable conditions specified under section 21.

Section 24 of the Environmental Quality Act 1974 states that;

(a) he places in or on any soil or in any place where it may gain access to any soil any matter whether liquid, solid, or gaseous; or

(b) he establishes on any land a refuse dump, garbage pit, soil androck disposal site, sludge deposit site, waste injection well orotherwise used land for the disposal of or a repository for solid orliquid wastes so as to be obnoxious or offensive to human beingsor interfere with underground water or detrimental to anybeneficial use of the soil or the surface of the land.

15

Compounding of offence shall not exceed RM 2,000

Any person who contravenes this section shall be

guilty of an offence and shall be liable to a fine not

exceeding one hundred thousand ringgit or to

imprisonment for a period of not exceeding

PENALTY

EQA, 1974 – Section 24

five years or both and to a further fine not

exceeding one thousand ringgit a day for

every day that is continued after a notice

by the Director General to cease the act

specified therein has been served

Section 31 – require of a premises to install pollutioncontrol equipment, conduct a study on environmental risk,and maintain a monitoring program;

Section 33A - request for an environmental audit forpremises perceived to be polluting;

Section 34B - No person may deposit or dispose ofscheduled wastes except at prescribed premises;

Environmental Quality (Scheduled Wastes) Regulations2005;

Scheduled Wastes code SW408 – Contaminated soil,debris or matter resulting from cleaning-up of a spillof chemical, mineral oil or scheduled wastes.

Require specific way to adequate treat and disposeof the waste.

EQA, 1974 - RELEVANT SECTIONS

16

SCOPE OF APPLICATION

Framework applies to:-

1. Any land that are currently being used or werepreviously used, to perform potential polluting activities

Polluting activities define as any activities involvingmanufacture, store, use, handle and dispose ofchemicals and hazardous waste.

Activities with the potential to cause soil andgroundwater contamination.

2. Any land that will involve in a change of land use frompolluting activities to non polluting activities

17

18

LAND CATEGORIES

1.1. LandLand withwith identifiedidentified responsibleresponsible partyparty

Contaminated land will require site assessment andremediation in accordance with the three guidelinesproposed by Department of Environment (DOE).

2.2. LandLand withwith nono identifiedidentified responsibleresponsible party/party/ExludedExluded LandLand

Contamination that is not possible for clean up under thecurrent conditions due to technology and resourceavailability is economically not feasible to be assessedand remediated under the contaminated landmanagement (CLM) framework due to the scale ofeconomic impact on the country;

Applies for only agricultural land, municipal domesticwaste landfill, former mining land and orphan land; and

Requires a proposed risk management plan.

GENERAL GUIDING PRINCIPLES

1.1. PolluterPolluter PayPay PrinciplePrinciple

Define the responsibility for performing a siteassessment and remediation.

Polluter can be the land owner or land occupier or anypolluter of any land.

2.2. RiskRisk--BasedBased ApproachApproach

Highlights potential current and future risk associatedwith the presence of contaminants in the soil andgroundwater matrix.

recommended corrective actions to mitigate or controlincremental risk to the level acceptable from the humanhealth and ecological perspectives.

19

20

POLLUTER PAYS PRINCIPLE

The regulations to be promulgated will be retrospectively applied,

eg: identified responsible parties will responsible for clean-up despitethe regulations only comes into effect at a later date

Possible Scenario Responsibility

1. Land owner is the polluter Land owner.

2. Occupier is the polluter Land owner to relinquish, occupier to report &

clean up.

3. Previous occupier is the polluter and

still exist

Land owner to relinquish, previous occupier to

report and clean up.

4. Previous occupier is the polluter and do

not exist anymore

Land owner to resume all responsibilities under

CLMCG.

5. Multiple previous and current occupiers

including land owners are the joint

polluter

Land owner should take the lead in reporting and

carrying out the clean-up on behalf of all other

stakeholders.

6. Contamination by 3rd party (off-site

activities) and 3rd party is still in

operation

Land owner to relinquish and 3rd party to resume

all clean up responsibilities

7. Contamination by 3rd party (off-site

activities) that is no longer in existence

The respective land owner(s) are to be

responsible.20

21

GUIDELINES FOR CONTAMINATED LAND

MANAGEMENT AND CONTROL IN MALAYSIA

Three (3) series of guidelines were developed and published underthe Ninth Malaysia Plan (2006-2010) a study on the ‘Criteria andStandards for Managing and Restoring Contaminated Land inMalaysia’.

Download from DOE website ‘http://www.doe.gov.my/webportal/en/info-untuk-industri/contaminated-land-management-and-control-guidelines/

CONTAMINATED LAND

ASSESSMENT CRITERIA

Exceeding SSLs indicates potential subsurface contamination

Be noted that SSLs are not the national cleanup standards, it

is use in the process of identifying and defining areas,

contaminants, and conditions at a particular site.

Responsible parties need to justify clean up target levels

known as Site Specific Target Levels (SSTLs) that are

protective of human health and ecological well being.

Prescribed in the „Contaminated Land

Management and Control Guidelines No. 1:

Malaysian Recommended Site Screening

Levels for Contaminated Land‟

US EPA Regional Screening Levels has been

referred to as Site Screening Levels (SSLs)

SSTLs can be derived through scientifically

defensible risk assessment approach. 22

CONTAMINATED LAND

MANAGEMENT (CLM) FRAMEWORK

No

Contaminated Land

Management and Control

Guidelines No. 1: Malaysian

Recommended Site Screening

Levels for Contaminated Land

Contaminated Land

Management and Control

Guidelines No. 2:

Assessing and Reporting

Contaminated Sites

Contaminated Land

Management and Control

Guidelines No. 3:

Remediation of

Contaminated Sites

YesExceed

SSLs?

Project Closure

No

YesNo

Implement or

incorporate risk

control measures

Assessment and

reporting

contaminated land

Qualitative Risk

Assessment

No

Yes

No

Yes

No

Is it an excluded land?

Yes

Yes Ready for

typical CLM

cycle?

No

No

Yes

Yes

Implement risk control

measures

Yes

No

Continue with risk

control measures

Remediation & reporting

of contaminated sites

Need further

assessment?

Meet clean up goals

SSTLs?

Further remediation?

Risk control

measures needed?

Ready for proper

closure?

Ready for Closure?

23

SITE SCREENING LEVELS (SSLs)

24

SITE INVESTIGATION & ASSESSMENT

Prescribed in the „Contaminated Land

Management and Control Guidelines No. 2:

Assessing and Reporting Contaminated Sites‟

Site assessment activities, i.e.:-

Initial Assessment (or Phase I ESA)

Detailed Assessment (or Phase II ESA)

Risk Assessment

25

Proceed to remediation

(Refer to Contaminated Land Management

and Control Guidelines No. 3: Remediation

of Contaminated Sites

SITE ASSESSMENT AND MANAGEMENT

PROCESS

No Further Action

Initial Assessment

[Phase I ESA]

Desktop Study

Site Reconnaissance

Develop Conceptual Site

Model (CSM), if applicable

Design Site Investigation

Program, if applicable

Reporting

Yes

No

Potential

contamination

identified?

Conduct a Baseline

Environmental Site

Assessment (BESA)

Data Quality Objectives

Safety and Health Concerns

Site Investigation Program

Field Measurement and

Laboratory Analysis

Data Interpretation

Revise CSM and Reporting

Note:

The detailed assessment can

be done as a one time exercise

or may be done in stages in

order to delineate the extent of

the contamination.

Exceed SSLs?

Yes

Need risk

assessment?

Tier 2 or Tier 3 Risk Assessment

Hazard Identification

Toxicity Assessment

Exposure Assessment

Risk Characterization

Objective: Determine if risk is

exceeded and establish site specific

clean up target level if there are

unacceptable risk encountered.

Exceed risk level?

Yes

No

Yes

No

Detailed Assessment

[Phase II ESA]Risk Assessment

26

SITE ASSESSMENT ACTIVITIES

Initial Assessment (Phase I ESA)

Historical Site Survey/desk top study

„Walkover‟ Assessment (site visits) to identify hazards, receptors etc

Formulation of initial Conceptual Site Model (CSM) (preferably diagrammatic for clarity)

Detailed Assessment (Phase II ESA)

Carried out after Phase 1 ESA when findings has shown that land is potentially impacted by onsite or offsite activities

Intrusive sampling (boreholes, trenches, sampling)

Chemical analysis of contaminants

Further refinement of CSM

27

Unsat. Soil

Zone

Affected Soil Capillary Retention /

Sorption / Biodegradation /

Volatilization

Surface Runoff

STUFF1 Spill partitions to air, water, soil.

Saturated Soil

Zone

Affected Groundwater

3 Spill can reach groundwater if sufficient fluidinfiltration.

2 Spill mass retained in soil.

Contaminant migration in the subsurface

28

CONCEPTUAL SITE MODEL (CSM)

Example:

1. UST leakage

2. Tanker

accident

3. Container

spillage

Example:

1. Leaching to soil

& groundwater

2. Dispersed by

wind

3. Flow into

surface water

Example:

1. Human

2. Ecology

3. Flora &

fauna

Source

Transport

Receptor

29

CONCEPTUAL SITE MODEL (CSM)

30

Risk Assessment

Land properties which are detected with subsurfacecontamination at concentrations higher than the SiteScreening Levels (SSL)

Process of estimating potential impact of contaminant onecosystem or human population under a specific set ofconditions

Allows most significant risks to be identified andaddressed and the more significant pathways to beidentified, facilitating effective targeting of risk mitigationstrategies

SITE ASSESSMENT ACTIVITIES

31

BASELINE ENVIRONMENTAL SITE

ASSESSMENT (BESA)

For land properties which are not identified with any

potential subsurface contamination during the initial

assessment, it is recommended to conduct minimum

baseline environmental site assessment to establish the

background level of subsurface soil and groundwater

quality for future reference, this is especially applicable for

land properties that will be used for activities of polluting

industries.

32

REMEDIATION

Remediation processes would apply for the

following scenarios:-

Site(s) with soil and groundwater

concentration detected above the SSLs

Site(s) that are concluded to pose unacceptable risk to

human health based on the findings of human health risk

assessment performed in accordance with the

„Contaminated Land Management and Control

Guidelines No. 2: Assessing and Reporting

Contaminated Sites‟

33

REMEDIATION PROCESS

Project Closure

Remediation Action

Plan

Review site information Establish clean

up targets and objectives Determine

remediation strategy Remediation

technology evaluation Reporting

Determine scope for RI/FS

Conduct RI/FS

Remedial Design

Pre-remediation

preparation

Remediation

Implementation

Determine post

remediation

program

Meet SSTL/

remedial

goal?

Yes

No

Remedial Investigation/

Feasibility Study/ Remedial

Design

Remediation

Implementation

Post Remediation

Evaluation

34

CONTAMINATED LAND CLOSURE

Submit the Closure Report to DOE, consists of:-

Objective - to summarize project information into a

single, succinct, summary report

Documents what was planned, what was actually

completed and what remains outstanding

Identifies any post-remediation requirements for the site:

o Long-term monitoring

o Risk management features

o Permanent site features that need to be protected and

maintained

Restrictions to site use

35

LAND TRANSACTIONS

It is the duty of the seller or owner of a land property to

disclose all soil and groundwater information related to

the subject land.

It is the responsibility of the buyer of a land property to

perform soil and groundwater assessment as part of the

due diligence process prior to the transaction.

Agricultural Land Oil Tank

underground storage tank

Illegal Dumping of Scheduled Waste

Oil Terminal

36

QUALIFICATION REQUIREMENTS

All consultants or individual involved in the assessment and

remediation of the contaminated land management shall

fulfill the qualification requirements and registered with the

DOE.

All consulting firms performing any activities under the

contaminated land management framework shall be

registered with the DOE.

37

LEAKING UNDERGROUND STORAGE TANK

GUIDELINES

38

SCOPE OF APPLICATION & DEFINITION

Only limited to Underground Storage System installed at

retail service station for petroleum hydrocarbon;

Tank owner/occupier‟s responsibility to ensure UST Systems

are in good condition;

„Underground Storage Tank‟ - as tank and any underground

piping connected to the tank;

„Underground Storage System‟ - all underground storage

facilities that comprises of tank and the associated piping

and fixture which are completely or partially buried in the

ground, and contain or intended to contain hazardous

chemical or petroleum hydrocarbon.

39

OHT 40

OHT 41

OHT 42

Bahagian Bahan Berbahaya OHT 43

Bahagian Bahan Berbahaya OHT 44

Bahagian Bahan Berbahaya OHT 45

DEFINITION

USTs are susceptible to corrosion and may often lead to soil

and groundwater contamination when it leaks

Undetected accidental leaks may pose a significant risk to

surrounding water, groundwater resources and human

receptors living in close proximity to the UST

46

APPLICABLE LEGISLATIONS/CODE OF PRACTICES

Petroleum (Safety Measures) Act 1984

Environmental Quality Act 1974

[Section 24: Pollution of soil is prohibited (which can be applied in the case of

a leaking UST) and a fine not exceeding RM 100,000 or imprisonment not

exceeding 5 years can be imposed to the offender]

Environmental Quality (Scheduled Wastes) Regulations 2005

[Regulations 14: Addresses spill or accidental discharge during the transport

of scheduled waste. The waste contractor has the responsibilities to contain,

clean up, recover and conduct further studies to determine impact of spillage

or accidental discharge. Contaminated soil is classified as Scheduled Wastes

code SW408]

Contaminated Land Management and Control Guidelines 2009

[Guidelines No. 1, Section 2.3: It specifies that it is the responsibility of the

land owner(s) to notify DOE on any subsurface contamination (Leaking UST)

related to its land property]

47

APPLICABLE LEGISLATIONS/CODE OF PRACTICES

MS 761:1982 - Code of Practice for the Storage and Handling

of Flammable and Combustible Liquids

[Covers all petroleum storage and handling facilities, ie. containers & portable

tank storage, industrial plants, bulk plants, service stations, processing plants,

refineries: chemical plants & distilleries, storage on farms & isolated

construction projects]

MS 761:1982 - Tanks and piping technical specifications

(generally reference to international tank specifications)

Tank features for pollution prevention:-

• Corrosion prevention

• Overfill protection

• Limited details on leak detection – manual gauging

48

LUST MANAGEMENT FLOWCHART

49

Leak Detection

NotificationSite

InvestigationCorrective

ActionClosure

Leak Detected

Rapid

Assessment

Notify DOE

Immediate

action?

Stop & contain

releases

Emergency

Response

Notify BOMBA &

DOSH

Determine impact to soil

and groundwater

Need for

Corrective Action?

LUST

Deregistration

LUST

Registration

Implement Corrective

Actions

Meet SSTL?

Prepare Closure Report

Approved?

DOE

Within CLMCG framework

Alternative step

Yes

No

Yes

No

Publish three (3) series of ‘Contaminated Land Management and Control Guidelines’

- Reviewing the three (3) series of ‘Contaminated Land Management and Control Guidelines’;

- Strengthening the Draft Regulation of contaminated land

- The Gazzetement of Environmental Quality (Contaminated Land) Regulations 201X

DECISION- Advocacy- Enforcement

2018

2015

2017

2010

Introduction /

Implementation

Evaluation

& RIA

Authorization

ROAD MAP - IMPLEMENTATION OF LEGAL

FRAMEWORK ON CONTAMINATED LAND

MANAGEMENT IN MALAYSIA

2016

Reviewing

Guidelines

& Draft

Regulation

- Adoption of the three (3) series of ‘Contaminated Land Management and Control Guidelines’

50

CONTAMINATED LAND MANAGEMENT

GUIDELINES UTILISED BY OTHER AGENCIES

51

Published by Federal Department of Town

and Country Planning Peninsular Malaysia,

Ministry of Urban Wellbeing, Housing and

Local Government;

Approved by the Cabinet on October 7, 2011

and the 65th Council Meeting for Local

Government on March 21, 2012;

GP023 – Garispanduan Perancangan

Pengenalpastian Bagi Pembangunan Semula

Kawasan Brownfield

Legally binding with the Town and Country Planning Act

1976 (Act 172);

Used in Planning Development / Local Physical Plan;

GP023 – Garispanduan Perancangan

Pengenalpastian Bagi Pembangunan

Semula Kawasan Brownfield

52

Definition of brownfield area - an

abandoned developed area or an

area that have abandoned structure

or partially developed abandoned

area. This land area may or may not

be contaminated.

GP023 – Garispanduan PerancanganPengenalpastian Bagi Pembangunan Semula Kawasan Brownfield

53

Categories of Brownfield Areas:-

Category Types of Brownfield

A Former mining / quarrying land

BFormer landfill site that is already full / no longer

used on a permanent basis

CIndustries / business / housing / institutions area

that have been left for more than 10 years

D

Abandoned development projects that are not

completed within the period of implementation

for more than 10 years

ERow / lots of buildings that been completed but

abandoned for more than 10 years

FFormer depot / transport station, infrastructure and

utilities

CONTAMINATED LAND MANAGEMENT

GUIDELINES UTILISED BY OTHER AGENCIES

54

Published by Department of Standards Malaysia

MS 2547:2014 – Malaysian Standard„Landfill Safe Closure – Requirements‟

The environmental implication of contaminated land isa potential problem and DOE is now taking initiative todeal with it.

There is a need for Malaysia to develop its own criteriaand standards as a means for the protection andenhancement of contaminated land as well asdeveloping technologies to meet local needs.

There is a need to raise general awareness amongstthe public and overall capacity amongst professionals.

DOE looks forward to playing an important role, inpartnerships with others, in supporting, encouragingand promoting the importance of identifyingcontaminated land, managing and bringing back thesesites into beneficial uses that would eventuallycontribute to the overall betterment of ourenvironment.

CONCLUSION

55

DEPARTMENT OF ENVIRONMENT

Ministry of Natural Resources and Environment

Level 1 - 4, Podium 2 & 3,

Wisma Sumber Asli,

No 25, Persiaran Perdana, Precint 4,

Federal Government Administrative Centre

62574 Putrajaya, MALAYSIA

www.doe.gov.my

THANK YOU / TERIMA KASIHIjan Khushaida Binti Mohd Jan

e-mail: ijan@doe.gov.my

Tel: 03-8871 2137