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LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY

THE ADEQUACY OF PROCESSES RELATING TO

IDENTIFYING AND MANAGING CONTAMINATED SITES

IN THE A.C.T.

REPORT NO.12

OF THE

STANDING COMMITTEE ON PLANNING AND ENVIRONMENT

JUNE 1996

Resolution of appointment of the Standing Committee on Planning and Environment:

[that] a Standing Committee on Planning and Environment [be established] to examine matters related to planning, land management, transport, commercial development, industrial and residential development, infrastructure and capital works, science and technology, the environment, conservation, heritage, energy and resources...

[And that the committee] inquire into and report on matters referred to [it] by the Assembly or matters that are considered by the committee to be of concern to the community.

Minutes of Proceedings (Third Assembly) No.1 - 9 March 1995, amended 22 June 1995

Terms of reference for the inquiry that is the subject of this report:

To inquire into the adequacy of processes relating to identifying and managing contaminated sites in the ACT, and any other related matters.

Minutes of Proceedings (Standing Committee on Planning and Environment) - 7 April 1995

Committee Membership

Membership

Mr Michael Moore MLA (Chair) Mr Wayne Berry MLA (Deputy Chair)*

Mr Trevor Kaine MLA (Deputy Chair)**

Ms Lucy Horodny MLA Ms Roberta McRae OAM, MLA***

Secretary: Mr Rod Power Assistance: Ms Kim Blackburn and Ms Anne Munns

* Discharged 26 March 1996 ** Elected to the position of Deputy Chair on 29 March 1996 *** Appointed 26 March 1996

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TABLE OF CONTENTS Preface List of conclusions 1. INTRODUCTION ...........................................................................................1

Background ......................................................................................................1 Key documents .................................................................................................2 Layout of this report .........................................................................................4 Chronology of significant events .....................................................................4

2. SUBMISSIONS AND ORAL EVIDENCE BY THE PUBLIC......................8 Public knowledge of contamination.................................................................8 The stigma effect ............................................................................................10 Indemnification ..............................................................................................11 Liability ..........................................................................................................12 The duty of care of valuers.............................................................................12 Landfills..........................................................................................................13 Arsenic contamination: the health risk...........................................................13 Arsenic contamination: disruption of a neighbourhood.................................15 Arsenic contamination: the Government’s financial offer.............................17 Arsenic contamination: remediation compared to buyout .............................18 Arsenic contamination: public input into tests and remediation plans ..........19 Arsenic contamination: the actions of Government officials.........................19

3. THE GOVERNMENT’S SUBMISSION......................................................22 What residents living on contaminated blocks can expect from Government22 Public knowledge of contamination...............................................................24 The Government’s priorities ..........................................................................24 The Government’s legislative options............................................................25 Arsenic contamination: the investigation level ..............................................28 Arsenic contamination: the results of investigations .....................................28

4. GUIDELINES FOR THE ASSESSMENT AND MANAGEMENT OF CONTAMINATED SITES (1992).......................................................................30

Clean-up .........................................................................................................30 Public notification ..........................................................................................30 Planning issues ...............................................................................................31 Community involvement................................................................................31 Health monitoring...........................................................................................31 Soil barriers ....................................................................................................32 Naturally occurring materials.........................................................................33

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5. STRATEGIC PLAN FOR CONTAMINATED SITES MANAGEMENT, ADOPTED IN 1995...........................................................................................34

Past policy ......................................................................................................34 Government policy .........................................................................................34 Public knowledge of contaminated sites ........................................................34 Community input............................................................................................35 Legislative options .........................................................................................35

6. CHAIR’S STATEMENT (ON BEHALF OF THE STANDING COMMITTEE ON PLANNING AND ENVIRONMENT) TO THE LEGISLATIVE ASSEMBLY ON 22 JUNE 1995............................................36

7. THE MINISTER’S RESPONSE TO THE CHAIR’S STATEMENT, DATED 25 AUGUST 1995...............................................................................37

8. THE CONSULTANT’S FINAL DRAFT REPORT: ASSESSMENT OF CONTAMINATION ASSOCIATED WITH A FORMER SHEEP DIP SITE LOCATED AT THEODORE (AUGUST 1995).................................................38

Risk to health and/or the environment ...........................................................38 Causes of soil contamination..........................................................................39 Remediation options (in general) ...................................................................39 Remediation options at Theodore ..................................................................39 Consultant’s recommendation........................................................................41

9. DRAFT PROTOCOL FOR INVESTIGATING, ASSESSING AND MANAGING FORMER SHEEP DIP SITES......................................................43

10. THE GOVERNMENT’S OFFER OF BUYOUT, OR RELOCATION WHILE REMEDIATION TAKES PLACE (MARCH 1996)...........................44

11. DEED OF RELEASE (APRIL 1996)..........................................................46

12. REPORT BY ANUTECH PTY LTD (DATED 12 APRIL 1996) ..............47

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13. FIRST REPORT OF THE WATSON SCIENTIFIC EXPERT ADVISORY GROUP, DATED MAY 1996 ...........................................................................48

Evidence .........................................................................................................48 Conclusions of the Expert Group...................................................................48 The Guidelines and naturally occurring arsenic.............................................48

14. AUDITOR GENERAL’S REPORT ENTITLED MANAGEMENT OF FORMER SHEEP DIP SITES (REPORT NO.5, 1996) RELEASED ON 23 MAY 1996 ....................................................................................................50

Information about former sheep dip sites.......................................................50 Information to the public................................................................................50 Health effects..................................................................................................51 Environment effects .......................................................................................52 Buyouts and compensation to date.................................................................52 Remediation as an option ...............................................................................52 Government expenditure on buyouts and compensation ...............................53 Government expenditure on site assessments ................................................54 Audit recommendations to Government ........................................................54

15. CONCLUSION............................................................................................55

APPENDIX A - LIST OF WITNESSES...........................................................63

APPENDIX B - LIST OF SUBMISSIONS.......................................................65

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PREFACE

The Standing Committee on Planning and Environment is pleased to report on the adequacy of processes relating to identifying and managing contaminated sites in the A.C.T.

The committee’s report summarises all of the key documents brought to its attention. It is hoped that these summaries will greatly assist community understanding of the complex issues involved in managing contaminated sites.

The committee has carefully considered these key documents in reaching a number of conclusions, set out in the form of recommendations to the Assembly and the Government. These recommendations are listed overleaf.

The committee was told by the A.C.T. Government that it intends, following release of this committee’s report, to release a Discussion Paper on legislation intended to ensure protection, with respect to possible contamination, of buyers, owners and occupiers of land in the A.C.T. The committee urges the Government to speedily bring down its Discussion Paper so that suitable legislation can be introduced in 1996.

In relation to handling contamination from former sheep dips, the committee acknowledges the sincere and deep level of concern shown by Government officials in responding to a completely new problem for the A.C.T. The committee is aware that officials, and local residents, have been learning ‘as they go’. The committee appreciates that what residents want is summed up in the following testimony: Our only object is to ensure that our Blocks are given a clean bill of health and that the Government funds whatever remediation measures are necessary to achieve this outcome. [Transcript of Proceedings, p140]

The committee sincerely hopes this report will help to make the learning process speedier and more productive, and assist those residents whose properties are affected by contamination to obtain that ‘clean bill of health’ they deserve.

Mr Moore MLA (Chair)

- on behalf of the Standing Committee on Planning and Environment

24 June 1996

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LIST OF RECOMMENDATIONS (see final Chapter of the report)

Recommendation 1: The committee recommends that the Government facilitate access by officials and the public to up-to-date, ‘best practice’ in locating sites that might be contaminated.

Recommendation 2: The committee recommends that the Government institute appropriate procedures to provide public certainty that land, intended to be used for purposes other than those originally prescribed in a lease, is free of contamination.

Recommendation 3: The committee recommends that the Government introduce specific legislation to address the issue of contaminated sites rather than wait for integrated environmental legislation.

Recommendation 4: The committee recommends that the Government establish a contaminated sites register.

Recommendation 5: The committee recommends that the Government legislate to ensure that information about contamination and remediation is entered on Building Files and Land Use approvals, so that it is permanently available. The information should include a record that a particular property has been remediated to a specified standard, and by what means. Further, the information should include independent confirmation that the remediation has been completed satisfactorily, and this information be included as a clearance certificate.

In addition, the Government should introduce legislation: (a) to require that a person or firm found to be contaminating must meet the costs of assessment and necessary remediation and (b) to give the Government the power to order the cessation of serious polluting or contaminating activities

Recommendation 6: The committee recommends that the Government should quickly prepare an information package to be made available to all residents of an area affected by contamination. The information package should include information about the definition of contamination being used by the Government, information about the membership and function of the steering committee to advise on contaminated site management (A.C.T. wide) and on the local committee oversighting the way that contamination in a specific area is handled [see below], a copy of the Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites, a copy of the Government’s Strategic Plan for Contaminated Sites Management, a copy of the Auditor General’s report Management of Former Sheep Dip Sites, and a copy of this report by the Standing Committee on Planning and Environment.

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Recommendation 7: The committee recommends that the Government delete the requirement for confidentiality in the deed of release between Government and a leaseholder whose property is affected by contamination.

Recommendation 8: The committee recommends that the Government establish (a) a steering committee to oversight, and to advise the relevant Minister on, contaminated site management in the A.C.T., comprising community, Government and scientific representatives; and (b) a local oversight committee to deal with specific instances of contamination, to include local residents as well as Government officials and (where necessary) appropriate scientists. This local committee should be closely involved in decisions about remediation plans.

Recommendation 9: The committee recommends that the Government urgently announce its remediation plans for contaminated land, identifying the mechanisms and the timetable for remediation as well as how contaminated soil is to be transported and stored. In the case of contaminated land at Theodore and Watson, the committee considers the Government’s remediation plans should be announced during August 1996.

Recommendation 10: The committee recommends that the Government consider providing some financial recognition of the reduced amenity flowing from remediation works as they affect residents living on, or near, properties being remediated. One possibility is some alleviation of Government rates for the period of remediation.

Recommendation 11: The committee recommends that, until it is proven to be unwarranted, the Government use the same investigation levels and adopt the same contamination and remediation policies for sites with naturally occurring arsenic as it does for sites containing arsenic from former sheep dips.

Recommendation 12: The committee recommends that the Government quickly announce that it will permit only the same residential density and character on remediated land as was permitted before contamination was uncovered.

Recommendation 13: The committee recommends that the Government continue its present practice of directly negotiating the financial details of buyouts and/or remediation with affected residents, rather than utilising the services of an independent arbitrator. However, the Government should utilise the latter in the circumstances where direct negotiations with a leaseholder break down.

Recommendation 14: The committee recommends that the A.C.T. Government seek Commonwealth financial assistance to fund remediation and compensation where it can be shown the Commonwealth was the body approving residential development on contaminated land.

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Recommendation 15: The committee recommends that the Government formalise a Management Protocol for Handling Contamination and Remediation in the A.C.T., incorporating (among other matters) the recommendations of this report.

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Standing Committee on Planning and Environment

1. INTRODUCTION

Background

1.1. The Standing Committee on Planning and Environment, when commencing this inquiry in April 1995, expected to report to the Assembly in a relatively short time on the adequacy or otherwise of the way the Government was handling problems in Theodore. These problems related to handling arsenic contamination on residential blocks, the arsenic itself coming from former sheep dips.

1.2. Following its invitation to the public to lodge submissions to the inquiry, the committee conducted a public hearing on 13 June 1995 at which evidence was taken from the persons and organisations listed in Appendix A. The committee considered the contents of the 11 submissions received by that date, and decided to make a statement about certain concerns in relation to the inquiry. On 22 June 1995 the Chair of the committee made a statement to the Legislative Assembly on behalf of the Standing Committee on Planning and Environment.

1.3. Almost on the day that the Chair made his statement, the Government lodged its submission to the inquiry. The Government’s submission is extremely detailed, comprising 23 pages of text and five attachments totalling over 150 pages. The submission deals with both broad policy themes and detailed management issues in relation to problems at specific sites: Tuggeranong Homestead, Ngunnawal, Isabella Plains/Chapman/Holder, Lyneham, Theodore and the A.C.T.’s landfills.

1.4. Members of the Standing Committee on Planning and Environment realised they needed time to carefully consider the many matters raised in the Government’s submission and in other submissions such as those from the Institute of Valuers, Mr McCann (a local valuer) and the Conservation Council.

1.5. Early in 1996 the committee became aware of contamination problems in Watson and Lyneham, again relating to possible arsenic contamination from former sheep dips. These problems have grown worse during the year. The committee held two public hearings to take evidence about the problems and accepted further submissions (listed at Appendix B). The Government commissioned some scientific studies into the problems and the results of those studies were forwarded to the committee. The outcome of problems in Watson was unknown at the time this report was finalised.

1.6. The committee did not want to delay the presentation of this report until the problems in Watson were resolved.

1.7. The committee considers that greater public debate is warranted on the specific problem of how to handle the problem of arsenic contamination from

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Inquiry into contaminated sites

former sheep dips and on how to handle contaminated sites in general. Without greater understanding of the issues, community misunderstanding and suspicion may worsen. Also, it is important that the A.C.T.’s legislators feel confident that all relevant issues have been exposed and debated before they vote on legislation to address contamination problems.

1.8. It is with these points in mind that the Standing Committee on Planning and Environment publishes this report. It summarises the key matters raised in a number of documents brought to the committee’s attention as well as in oral testimony given to the committee at public hearings.

1.9. The committee recommends that members of the public access this material and draw their own conclusions. The committee has authorised publication of all the material, though some of it is already in the public domain by means other than this committee’s authorisation.

1.10. All of the material can be sighted in the Committee Office of the Legislative Assembly. Some of the material (including a copy of the Guidelines for the Assessment and Management of Contaminated Sites) is available from the Contaminated Sites Unit, Homeworld Building, Tuggeranong 2901. The Auditor General’s report, Management of Former Sheep Dip Sites, can be purchased from the A.C.T. Government.

Key documents

1.11. The key documents brought to the committee’s attention during the course of this inquiry are:

• submissions by the public to the Standing Committee on Planning and Environment (29 submissions comprising many pages)

• submission by the Government, comprising:

- text of the submission (23 pages)

- an Appendix entitled ‘Theodore - A Case Study’ (14 pages) which has the following four attachments:

: letter dated 14 February 1995 to the Theodore Action Group from the Acting General Manager of the Contaminated Sites Unit (six pages)

: response to allegations made to the Standing Committee on Planning and Environment in various submissions, and in evidence given on 13 June 1995 (ten pages)

: technical issues relating to the assessment of contamination associated with the former sheep dip in Theodore (six pages)

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: letter dated 11 may 1995 to Theodore residents from the Acting General Manager of the Contaminated Sites Unit (one page)

- an Appendix reproducing the Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites, adopted by the Australian and New Zealand Environment and Conservation Council and the National Health and Medical Research Council (dated January 1992) (65 pages)

- an Appendix outlining the results of initial sampling at Theodore, Holder, Chapman and Isabella Plains, by A.C.T. Health (dated 16 September 1994) (one page)

- an Appendix outlining the Draft Strategic Plan for Contaminated Sites Management, prepared by the A.C.T. Government and released for public comment in October 1994 (30 pages)

- an Appendix setting out the A.C.T.’s Strategic Plan for Contaminated Sites Management, adopted in 1995 (27 pages)

• Transcript of Proceedings (that is, the oral record) of the five public hearings conducted by the Standing Committee on Planning and Environment (175 pages)

• Chair’s statement (on behalf of the Standing Committee on Planning and Environment) to the Legislative Assembly on 22 June 1995

• the Minister’s response to the Chair’s statement, dated 25 August 1995

• the consultant’s Final Draft Report: Assessment of Contamination Associated with a Former Sheep Dip Site Located at Theodore (August 1995) [two volumes]

• procedural process for investigating a former sheep dip site, provided to the Standing Committee on Planning and Environment by the Government in April 1996 (entitled Draft Protocol for Investigating, Assessing and Managing Former Sheep Dip Sites) (three pages)

• the Government’s offer of buyout, or relocation while remediation while takes place, attached to one submission to the Standing Committee on Planning and Environment (dated March 1996) (three pages)

• draft deed of release between the Government and the leaseholder of a property with high arsenic readings, provided to the Standing Committee on Planning and Environment by the Government in April 1996 (four pages)

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• report by ANUTECH Pty Ltd dated 12 April 1996, being a consultancy report prepared by Dr Tony Eggleton on the identification of arsenic in the A.C.T. (17 pages)

• first report of the Watson scientific expert advisory group, dated May 1996 (commissioned by the A.C.T. Government) (12 pages)

• Auditor General’s report entitled Management of Former Sheep Dip Sites (Report No.5, 1996) released on 23 May 1996 (75 pages).

Layout of this report

1.12. The key points of each document, as the committee sees them, are laid out in the following chapters of this report.

1.13. The definitions of ‘contaminated’ and ‘remediation’ accepted by the committee are those used in the Guidelines for the Assessment and Management of Contaminated Sites, namely: contaminated: a condition or state which represents or potentially represents an adverse health or environmental impact because of the presence of potentially hazardous substances.

remediation: the clean-up or mitigation of pollution or of contamination of soil by various methods.

1.14. The Guidelines note that: The main concern with contaminated soil is that the presence of some contaminants can pose immediate or, more likely, long term threats to human health, plants and animals and to the amenity of the land...

The goals of contaminated site assessment and clean-up should be to:

- render a site acceptable and safe for the long term continuation of its existing use;

- minimise environmental and health risks both on and off site;

- maximise to the extent practicable, the potential future uses of a site... [or, in New Zealand] to achieve a standard that minimises risks to human health and the environment, consistent with the existing and likely future use of the site, and in accordance with a system to inform future landowners that the clean-up has been conducted to an extent consistent with particular land uses.

1.15. The final chapter of this report sets out the committee’s recommendations, based on a reading of all of the above material.

Chronology of significant events

1.16. The committee provides the following chronology of significant events affecting the location and management of contaminated sites in the A.C.T.

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CHRONOLOGY

DATE KEY EVENT

1950s onward Extensive residential development on former sheep stations in the A.C.T.

1977 Explosion and fire in the basement of the Centre Cinema in Civic, causing one death. Source was a petrol flume from a service station across the road. The Government’s Office of the Environment [OOE] participated in the development of industry guidelines to control the potential for contamination of groundwater by escape of petrol.

March 1994 The possibility of arsenic contamination from a disused sheep dip at Tuggeranong Homestead was brought to the attention of the OOE. Test results, showing high arsenic levels, were received in May.

May 1994 A sheep dip site was identified at Ngunnawal. It was found that the dip and soil had been dumped, without permission, at West Belconnen Landfill. Adjoining properties were tested and found to be uncontaminated; the property on which the sheep dip was located needed additional remediation as of June 1995.

May to July 1994 Government officials search records to identify all sheep dip sites in the A.C.T., especially on residential land. Officers from the OOE undertook field searches and investigated anecdotal evidence. By June 1995, 100 sites were found of which 16 were in urban areas and 5 were located under houses.

August 1994 A Task Force was commissioned to develop appropriate policies to address contaminated sites issues

September 1994 Test results available for soil in residential areas of Theodore, Holder, Chapman, Isabella Plains and Lyneham. Levels of arsenic contamination significantly above the health investigation level were detected in Theodore and two leaseholders were relocated

October 1994 Consultant commissioned to investigate contamination at Tuggeranong Homestead

November 1994 Government adopts the option of offering to buyout residents affected by contamination

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November 1994 Government officials met Theodore residents.

December 1994 Contaminated Sites Unit formed within the A.C.T. Government, to identify, assess and remediate contaminated sites - and develop policy for contaminated site management

January 1995 A sheep dip at Lyneham, originally thought to be under a road, was found to be amongst residences.

February 1995 Consultant submits report on contamination at Tuggeranong Homestead. Results of further tests in Theodore made available to residents.

February 1995 Government includes compensation with buyout offers

March 1995 Sampling conducted at Lyneham

April 1995 Offers of buyout now include the option of remediation and retaining the family home. Two Lyneham leaseholders offered buyout or temporary relocation while remediation takes place.

April 1995 Standing Committee on Planning and Environment commenced its inquiry into the adequacy of processes relating to identifying and managing contaminated sites in the A.C.T.

May 1995 Results of further tests in Theodore made available to residents.

May 1995 First public hearing by the Planning and Environment Committee

May to June 1995 Sampling conducted at Isabella Plains, Chapman and Holder.

June 1995 Second public hearing by the Planning and Environment Committee

August 1995 Residents of Holder, Chapman and Isabella Plains given results of tests for arsenic contamination on their properties. One Holder leaseholder offered buyout.

August 1995 Consultant submits report on contamination and remediation at Theodore to the A.C.T. Government

September 1995 Third public hearing by the Planning and Environment Committee

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November 1995 to January 1996

More sheep dip sites are found in urban and residential areas including Watson

March 1996 Fourth public hearing by the Planning and Environment Committee

April 1996 Consultant submits report to the Government on identifying arsenic in the A.C.T.

April 1996 Government announces that it is withdrawing offers of buyout to several Watson leaseholders, due to uncertainty whether high arsenic readings were caused by naturally occurring arsenic rather than arsenic from sheep dips. Government announces the establishment of an expert advisory group to examine Watson test results.

May 1996 Fifth public hearing by the Planning and Environment Committee

May 1996 First report of the Watson scientific expert advisory group

May 1996 Auditor General releases report on Management of Former Sheep Dip Sites

June 1996 Release of this report by the Standing Committee on Planning and Environment

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2. SUBMISSIONS AND ORAL EVIDENCE BY THE PUBLIC

This chapter examines the written submissions and oral evidence provided to the committee. Unless otherwise stated, quotations are taken from written submissions.

Public knowledge of contamination

2.1. A number of submissions expressed concern at the inadequate information available to the public about areas of the A.C.T. that might be contaminated.

2.2. Mr McCann, a local valuer, stated:

Health is the critical issue in the short term, notwithstanding that the economic factors are significant thereafter. The purchasing market and the mortgage industry must have confidence that the procedures to be adopted within the A.C.T., in regard to identification and ongoing management of contaminated sites, will give ready access to knowledge that a site is or is not, or has but is now not, contaminated.

2.3. Mr McCann noted that, in the absence of a contaminated sites register, valuers have been unable to identify where the sheepdip sites are located, nor which were the two houses sold in Theodore that were on or near former sheep dips: When we asked for the identification of the sites and the sales so that we could actually go and test the argument that the diminution in value of property or the emotion of the market had not been as great as originally intended, a veil of privacy was laid across it and we could not find out... We were most interested to test the allegation that the two properties that had been sold had not been significantly diminished in value so that we could start forming a view about the market’s interpretation about remediated sites.1

2.4. In Mr McCann’s view, a register of contaminated sites would be similar to the present Heritage Register: We [valuers] keep current lists of heritage registers and...interim listings. We do that by keeping in contact with the Heritage people and watching the press...

[In relation to notification on the register, Mr McCann said] until there is clarification that a site is contaminated and is a health risk - the health risk is the critical issue - then I do not believe that there should be public disclosure.2

2.5. Mr McCann considered that such a register would complement information upon the building file pertaining to a particular Block. He noted: When the Centre Cinema had the unfortunate petroleum-based explosion, two things occurred. There was a fair amount of correspondence on the building file. One of the normal searches by anybody who went to buy that property would have been an

1 Transcript of proceedings, p69 and p73 2 Ibid pp71-72

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inspection of the building file... When the Mobil service station across the road ceased operation and the Crown lease was regranted with the new development rights, the lease had a clause saying that this site formed part of the Civic petroleum flume and therefore there were certain requirements to take care in the excavation of the subsoil. There is still a requirement for a sump in the bottom basement of the building, which has all the red lights, triggers and whatever, and is regularly pumped out... That is one issue. When we had the issue of asbestos in residential housing, there was a notation on the building file’.3

2.6. Mr McCann added that remediated land: still should be shown on the register as redeemed land. We [valuers] can then refer to it as redeemed land and suggest to the party[interested in purchasing it] that they satisfy themselves whether there is further risk or not.4

2.7. The Conservation Council supported this approach.5

2.8. Mr McCann considered that as soon as ‘an allegation or risk of contamination’ has been raised, ‘speedy geotechnical advice’ should be obtained to determine ‘the extent of the immediate health risk; the timing and scope of remedial work; [and the ] liability’. Mr McCann called on the A.C.T. Government to ensure, by appropriate geophysical studies, that land it intends to release for development is free of contamination.

2.9. The Institute of Valuers stated: In the A.C.T. there is no public access to Building Files and Land Use approvals, hence the property professional cannot look into the history of past uses of a site. There is also no public information on pollution control licences issued to allow the operation of certain discharges from industrial properties. A contaminated sites register for the A.C.T., similar to those run by environmental authorities in Victoria and Queensland, is essential.

2.10. The Conservation Council called for legislation covering contaminated sites ‘to be urgently prepared and - at a later stage - to be included in a package of integrated environmental protection legislation. The legislation should provide for open access to relevant data and open standing in the appeals/review process. The Council wants the legislation to enable any ‘land use or planning processes that may be affected by site contamination’ to be put on hold. Also, the Council wants public registration of ‘any potentially polluting practices or processes that may cause contamination’.

2.11. The Conservation Council suggested that possible contaminated sites are industrial and urban, as well ‘the agricultural sites’ that include: sheep dips, spray races, farm rubbish dumps, crop chemical spraying sites, weed chemical spraying sites and sites where chemicals have been used in plantation forestry.6

3 Ibid p70 4 Ibid p72 5 Ibid p84 (Ms Grinter)

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2.12. The Democrats and the Conservation Council stated their belief that a more efficient process to locate and remediate contaminated sites is needed. Minders of Tuggeranong Homestead and a Tuggeranong resident were among submitters calling for all test results to be publicly disclosed. The Tuggeranong resident submitted that, whereas Government officials advised only the people whose homes adjoined properties being tested, ‘all residents in the neighbourhood had the right to be informed of the issue’.7

The stigma effect

2.13. Several submitters considered that the stigma effect of living near sites thought to be contaminated was far more serious than the Government realised.

2.14. The Institute of Valuers submitted that stigma: is an intangible factor that may not be measurable in terms of cost to cure but may have a real impact on market value. It arises from the effect of present or past contamination upon the market’s perception of the property and represents a discount, beyond the direct and indirect costs likely to be incurred, required to compensate for the risks associated with contaminated or previously contaminated property.

Stigma makes property less desirable, even when a complete remediation or clean-up has been carried out. That is, where there is a market perception that clean-up has taken place, the market will often pay less than normal unaffected values. This situation is similar to obsolescence and represents a lingering detriment to a property. In some cases the stigma effect is transitory.

The stigma effect on value may be out of proportion to the cost to cure the problem, and can persist at varying levels for many years.

2.15. Support for the Institute’s view came from a Theodore couple, who submitted that: because the two sides of our property are bordered by the four known contaminated properties, our property is now worthless on the resale market. [Further,] many of our friends now refuse to visit us in our own home because of the perception that our property is contaminated...

We would like the A.C.T. Government to buy us out so we can be relocated to a property where we are not exposed to any form of contamination, no matter how little or how much.... [But] the Government refuses to consider buying our property because ‘it is not contaminated’. At the same time we are not able to sell our property so we can personally remove ourselves from any future problems that may result from the contamination because our property is bordered by the four properties with levels of arsenic above the recommended health safety level of 100 parts per million. We find ourselves trapped because of a situation for which the Government is responsible, but for which it categorically refuses to accept liability.8

6 Ibid p77 (Mr Darlington) 7 Mr & Mrs Brown 8 Ibid

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2.16. Another Theodore couple submitted that the Government should purchase land around a contaminated site to form a ‘buffer zone’.9

2.17. The Institute of Valuers pointed out: several years ago we had the Cinema Centre, where there was petrol under that site. That petrol was not from that site; it was from a site across the road. Probably from that you ask just how broadly the radius of that petrol goes. The impact can be broader than merely one specific location, and certainly on a property value basis that stigma would erode values for some component.10

2.18. Some submitters were particularly concerned about the stigma effect on properties with arsenic contamination levels between the environmental investigation level of 20 ppm and the health investigation level of 100 ppm.11 A Watson resident told the committee: There is no remediation for those [properties] that are partly toxic, so they just remain partly toxic. In some respects that is worse than the full toxic sites because at least they are remediated and hopefully they will get some certificate or something to say, “Look, this has been remediated”.12

2.19. Mr McCann told that committee that, in relation to valuing houses that have been cleared of asbestos: We have found that in a buoyant market it does not seem to be a major issue, but in a tight market such as we have at the moment people are nitpicking and therefore it is a negotiating point...

[In relation to whether the stigma effect extended beyond the immediately affected house, Mr McCann added] the house next-door that did not have the asbestos did not seem to have a problem, notwithstanding the emotional response to what might be in the air. [It was a case of] either you have it [the contamination] or you do not.13

Indemnification

2.20. Some submitters called upon the Government to guarantee that no lease holder suffered any economic loss. A Theodore couple living on a site found to be contaminated expressed concern that the Government had refused to indemnify them for future personal injury claims arising out of the possibility that children minded at their home, while it operated as a day care business, might later show signs of contamination: Most of the young children have been playing in the backyard near the fence dividing the boundary to Block 19 where levels much above the health investigation levels were discovered...

9 Mr & Mrs McDonnell 10 Transcript of proceedings p40 (Mr Sirel) 11 Mr Dunstone, Mr & Mrs McCutcheon and Ms McCutcheon, Mr & Mrs O’Brien, Ms McKenzie 12 Transcript of proceedings p100 (Mr Dunstone) 13 Ibid p73

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[the Government] has refused to indemnify [us] for any future personal injury claims by the parents/children whom [my wife] has cared for... [yet] someone has to be liable if something happens at a later date.14

Liability

2.21. The Institute of Valuers told the committee that: Depending upon the relevant legislation, it is usual that the responsible party bear the clean-up costs of contaminated properties. Where responsibility cannot be determined, the chain of title is generally followed with the current owner most likely to be liable.

2.22. Mr McCann noted that, in terms of sites contaminated after the issue of a Crown Lease, any contamination ‘is most likely’ due to the Crown Lease and/or users of the site. In terms of sites contaminated prior to the issue of a Crown Lease, Mr McCann submitted that: the A.C.T. Government should accept immediate liability, rather than the Crown Lessee undertake an expensive and lengthy litigation to prove liability.. [This is because] Crown Leases are purchased from the A.C.T. and former Commonwealth Government in good faith that the land is not contaminated.

Compensation should be payable for disturbance including vacating the premises until works of rectification are completed, cost of rectification and any ongoing value loss arising from market knowledge of its former contamination.

2.23. Mr McCann told the committee that: if any Government or any company has contaminated land, then they should show it on their accounts as a contingent liability... I certainly have a view that whatever cost is going to be incurred by the community should be well and truly transparent and should be shown in the accounts as a contingent liability...

The first step is disclosure. The second is to put it on the accounts.15

The duty of care of valuers

2.24. The Institute of Valuers and Mr McCann pointed to the professional duty of valuers to provide competent, thorough advice to clients about the full circumstances of a property’s condition, including whether there is a risk of contamination.

2.25. The Institute notes that valuers can do this at present ‘by reasonable site inspection and enquires of appropriate authorities’ but this is inadequate. The Institute says that a valuer should look at a property’s: present and past land uses; processes and/or activities carried out on the site; major processes and/or activities that were carried out near the site; locations within the site of each process and/or activity; duration of each process and/or activity; waste

14 Mr & Mrs Ahmad 15 Transcript of proceedings p69 and p74

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disposal activities; source and effluent migration pathways; presence and purpose of underground tanks; signs of spills of hazardous materials.

2.26. If contamination is suspected, the Institute recommends that the valuer suggest to a client that a detailed scientific study be undertaken, to include: any or all of the following: historical land use survey; environmental risk inventory; evaluation of special contaminants such as asbestos, PCBs, acids, poisons such as arsenic, and radionuclides; remote sensing surveys; surface soil and water sampling and laboratory analysis; sub-surface soil sampling and laboratory analysis; groundwater sampling and laboratory analysis; a health and safety plan.

Landfills

2.27. Two submitters specifically pointed to possible problems at Canberra’s landfill sites.

2.28. The Belconnen Community Council considered that the Belconnen Tip should be relocated away from the catchment of the Murrumbidgee River. Minders of Tuggeranong Homestead submitted that, when contaminated soil is dumped at tips, the resultant leaching problem is serious.

2.29. The committee was told by Dr Howard, a hydrogeologist, that the managers of Canadian landfills accept that leaching from the landfills will occur: We recognise that this stuff is going to move and we chemically treat our landfill leachate very early so that when it does get released from the landfill, and it will - landfill liners are going to last for only 50 years - the dilution capacity of the groundwaters is sufficient to prevent any serious impact on the ground water quality.16

Arsenic contamination: the health risk

2.30. Many submitters observed that the level at which arsenic becomes a danger to human health appears unclear.17 This may reflect the fact that: the kind of information we glean on arsenic toxicity has been gained largely on the basis of industrial exposure. In industry, the exposures to metal have been something like a hundred times greater than exposures people would be likely to have at the various sites in Canberra. The types of health effects associated with arsenic have been dose-related and they have been in people who were basically working in arsenic dust for a long period of time.18

2.31. In relation to international experience of possible sheepdip contamination, Professor Moore (a toxicologist) said:

16 Ibid pp8-9 17 Theodore submitters, along with Watson residents: Mr & Mrs Lean, Mr & Mrs McCutcheon and Ms McCutcheon, Mr & Mrs Conroy, Ms O’Connell and Mr Allnutt, Ms McKenzie. 18 Transcript of Proceedings p14 - Professor Moore (National Research Centre for Environmental Toxicology, University of Queensland)

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there is no evidence, particularly in other societies that have dipped sheep and cattle with arsenic compounds, that there have been any health effects associated with it.19

2.32. Professor Moore added: I think the critical issue is bio-availability. The evidence that we seem to be hitting at the present time is that the arsenic in these [Canberra] soils is relatively not bio-available. That means that, although the toxin is there, there is no evidence that the toxin is actually making the transfer from the exposure site into people’s bodies.20

2.33. In relation to experience with other sources of contamination, Professor Moore observed: PCBs, asbestos and the like have to be contained in a contaminated material site. In terms of long-term human hazard, I would be much happier with arsenic-contaminated material close to me than asbestos-contaminated material close to me, because the hazard associated with PCBs or asbestos is vastly greater than the hazard associated with arsenic.21

2.34. Many residents were more anxious about the effects of arsenic than the above suggests. A Watson resident stated that residents ‘want to know what quantities of soil, at varying levels of arsenic, have to be eaten to produce significant health risks’.22 A Theodore resident worried about the possible link between arsenic contamination of his property and his child’s birth defect (spina bifada).23

2.35. Also, some residents queried whether the level of anxiety caused by the Government’s handling of arsenic contamination was not greater than that caused by arsenic itself: We wonder if anyone sat back and assessed the potential damage to mental and emotional health of those concerned and weighed that against any possible risk from arsenic poisoning. Did anybody think about that?

Watson has been settled for over 30 years. People have lived there for that period and raised children in that period. We have no evidence of the results of arsenic toxicity. Did anybody think that in those circumstances perhaps they should not be investigating at all?... Were the pros and cons considered... by Cabinet?24

2.36. The anxiety about the effect of arsenic on human health particularly applies to naturally occurring arsenic relative to man-caused arsenic (such as from sheep dips).25 In relation to the Government’s withdrawal of buyout offers on some Watson properties until scientists clarify whether natural arsenic is as dangerous as sheepdip arsenic, a Watson resident stated:

19 Ibid, p22 20 Ibid p23 21 Ibid p25 22 Ibid p143 (Mr O’Brien) 23 Ibid p37 (Mr McDonnell) 24 Ibid p141 (Mr O’Brien) 25 Mr & Mrs O’Brien and many other signatories (28/4/96), National Toxic Network

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We fail to understand the differences between natural arsenic toxicity and that derived from sheep dips. Only a few weeks ago, residents with arsenic levels of plus 100 ppm were told by the Government toxicologist that the evacuation and demolition of their homes was essential from a public health standpoint. Now the Government is stating, in respect of the same blocks, that the future investigations will include an assessment of the potential health risk, if any, of the naturally occurring arsenic. It is perhaps not surprising that people feel totally bemused at this.26

2.37. Most submitters considered that the Government should apply the same investigation levels for both sources of arsenic. Ms Grinter, for the National Toxic Network, expressed: concerns regarding any proposals to carry out a site specific risk assessment on the Watson site thereby putting aside National Health and Medical Research Council health level of 100 ppm arsenic in soil.

The issue of bioavailability of arsenic (and now lead)... has already been addressed in the development of the national health standard. People, in particular children, should not be put at risk by being exposed to above these levels while further studies are carried out.

Arsenic contamination: disruption of a neighbourhood

2.38. Most submitters from Watson commented on the extent of disruption caused by the problem in their suburb which, unlike the Theodore case, extends over several streets and includes parkland.

2.39. Questions were asked about the look of a suburb undergoing remediation over a prolonged period of time, with vacant houses and construction sites being the dominant feature along with an absence of mature trees and, perhaps, any trees at all. Concern was raised about the effect of truckloads of contaminated soil being moved through Watson and adjoining suburbs as large-scale remediation occurred.27

2.40. In relation to the time necessary for remediation, some Watson residents commented that ‘figures of between two and five years have been quoted’.28 Other Watson residents observed that some houses to be remediated may remain unoccupied for ‘some unspecified length of time’.29 These same submitters thought that ‘disturbance of the soil [during remediation] will in fact greatly increase the exposure of residents to the arsenic and will be a greater health risk during the remediation period’.

2.41. A Theodore resident told the committee that, though he was unaffected by the nearby sheep dip as a health hazard, ‘certainly we would be affected by

26 Transcript of Proceedings pp140-141 (Mr O’Brien) 27 Mr & Mrs Lean, Mr & Mrs McCutcheon and Ms McCutcheon, Mr & Mrs Conroy, Ms O’Connell and Mr Allnutt, Ms Gillard, Ms Pearson and R and T Fletcher 28 Mr & Mrs McCutcheon and Ms McCutcheon 29 Ms O’Connell and Mr Allnutt

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disruption to the environment by possible remedial action’.30 Similarly, some Watson residents were concerned about the effect of ‘the drift of the contaminated soil via air movement’ (during remediation) and ‘the likelihood of contamination leaching if we should have a prolonged dry spell or wet spell during remediation’.31

2.42. In relation to the removal of mature trees, Watson residents submitted: Professional advice indicates that there is no need to remove any trees from the affected sites as the uptake by the trees of the arsenic is limited and would pose no health threats to any member of the community.

We therefore ask the Government for an undertaking that the trees will not be removed.32

2.43. Some Watson submitters also commented that the Government has not indicated how it intends to remediate public parkland that is contaminated.33

2.44. Further, many Watson residents were anxious about the nature of residential development that might be permitted after remediation was completed. There appears to be deep suspicion that the Government will permit denser forms of residential development than were permitted before contamination was found.34

2.45. A further reason for community disruption was said to be the absence of information about whether the Government intends to issue a certification of uncontaminated land following remediation.35 A Theodore couple submitted that: On completion of... [a testing program], it would be appropriate to provide to residents and property owners an area map, showing contaminated sites by Block and Section number, and a health report relating to the Block on which they reside.36

2.46. In addition, some Watson residents asked ‘where information associated with each site will be stored’ for record purposes and asked whether those records will ‘be protected under the Freedom of Information Act’.37

30 Transcript of Proceedings p58 (Mr Martin) 31 Mr & Mrs McCutcheon and Ms McCutcheon 32 Ibid 33 Ms O’Connell and Mr Allnutt, Ms Pearson and R and T Fletcher 34 Mr & Mrs Lean, Mr & Mrs McCutcheon and Ms McCutcheon, Mr & Mrs Conroy, Mr Dunstone, Ms O’Connell and Mr Allnutt, Mr & Mrs O’Brien, Mr & Mrs Brake, Ms Gillard, Ms Pearson and R and T Fletcher, Mr & Mrs Hildyard. 35 Ms O’Connell and Mr Allnutt, National Toxic Network, Mr & Mrs Hildyard, Mr O’Neill 36 Mr & Mrs W Wilson 37 Mr & Mrs McCutcheon and Ms McCutcheon

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Arsenic contamination: the Government’s financial offer

2.47. Many submitters were concerned about the nature of the Government’s financial offer to leaseholders of contaminated properties.

2.48. Ms Grinter, for the National Toxic Network, submitted that: no resident bought into Watson knowing that the land was contaminated and whether or not the contamination is man-made or natural is irrelevant, people are entitled to a safe and uncontaminated home site.

2.49. Many submitters stated that the Government’s policy of basing its payout offer on the market value of a property (with some adjustments noted below) means that residents are paid inadequate compensation. This is ‘because we are not willing sellers, [hence] we believe that replacement cost would be fairer’ than market value’.38 A Watson resident submitted that: some form of ‘replacement valuation’ should be adopted which would consist of the market valuation plus a depreciated valuation for... improvements [that residents have made ‘for lifestyle reasons’]. If such an approach had been adopted with me, it is highly likely that I would have been a ‘willing seller’ [rather than an unwilling seller].39

2.50. Another Watson resident submitted: The principle should be that of replacing for residents as near as possible to what the Government, through no fault of the residents, is finding it necessary to take away. If that means meeting the cost of getting them back to the same site with a similar house and garden (as far as is practicable), then so be it.40

2.51. The same submitter disparaged ‘the grossly inadequate offer of around $80,000 to rebuild one’s home on a block cleared of all vegetation and with all improvements removed’. However, other Watson residents submitted that: The Department’s compensation package of market value plus $15,000 plus $5,000 per occupant appears generally to be a reasonable one... [but] many residents have invested heavily in their homes solely because they intended to remain there for the foreseeable future... [and therefore it is appropriate to supplement the existing compensation policy by providing] that compensation should also be made available where (i) validated expenditure has been incurred in the recent past, say three-five years, and (ii) qualified valuers agree that these expenditures are not wholly reflected in “market values” based on comparable sales.41

2.52. Ms Grinter, for the National Toxic Network submitted that: full replacement cost is a more appropriate and fairer means of dealing with buyout. Certainly those residents in northern NSW who have held out against Government

38 Mr & Mrs Conroy, Mr Dunstone, Mr & Mrs O’Brien, Mr & Mrs Brake, Ms Gillard, National Toxic Network, Mr & Mrs Hildyard. 39 Dr Howden 40 Mr Dunstone 41 Mr & Mrs O’Brien

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pressure to accept market value have now commenced negotiations with the NSW State Government for buyout at replacement costs.

Arsenic contamination: remediation compared to buyout

2.53. Several submitters considered that the Government’s policy and practices did not encourage residents to favour remediation compared to buyout. One Watson resident stated that: For the buyout sites, one of the problems that I see is the lack of certainty and knowledge of what is going to happen in the future. That is driving people’s decisions to sell out and not come back.42

2.54. The same resident added that residents who choose to remain while their own or adjacent properties are remediated should be encouraged in some way, perhaps by some adjustment of their rates - on the same basis that ‘property in a newly developed area [has] lower [rates] reflecting the lower [amenity] value of the block of land’.43

2.55. A particularly critical comment on the buyout options was the following: The ‘remediation’ option as offered was not even remotely acceptable for us nor for all of the affected residents with whom we have discussed this. The most likely scenario was: wait for an uncertain period needed to establish the site management plan (perhaps six-nine months or more), wait around a while longer whilst tenders were let, move to a rented house of unknown quality for an uncertain period whilst the site is cleaned up and a house rebuilt..., negotiate with the A.C.T. Government over the specifications of the house to be rebuilt noting in particular that residents have been told that the house will be rebuilt to a maximum value of $80,000 and that most people know that their current residence could not be rebuilt for that sum, move back to a neighbourhood that has been ‘scorched earth’ so that the streetscape is much less attractive than it was, into a neighbourhood of uncertain character because we don’t know what’s going to be done with the land after remediation, into a community that is very different to the one we settled in because of the residents who have left, then try to re-establish a garden in soil of uncertain capacity to grow plans, re-establish a home, then at a later date when we want to sell, face the likelihood of much reduced real estate value because the locale will have a stigma. In addition to all this, the process will involve considerable negotiations with the A.C.T. Government authorities over issues with little on no precedent...44

2.56. A Lyneham resident explicitly queried the apparent emphasis upon buyouts: I feel it is a shame for houses to be bulldozed... and I wonder what alternatives there are... I would rather see some skimming operation of say six inches to 12 inches than a three metre hole.45

42 Transcript of Proceedings p99 (Mr Dunstone) 43 Ibid p102 44 Dr Howden 45 Mr O’Neill

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Arsenic contamination: public input into tests and remediation plans

2.57. Many submitters pointed to what they saw as inadequate provision for public input into decisions about contamination testing and remediation plans.

2.58. This lack of resident input led a Theodore resident to feel ‘a total sense of frustration and a lack of control of one’s destiny in the face of the immense resources and the machinery of Government’.46 Another Theodore resident felt that the Government saw contamination as ‘its problem’ rather than as ‘a joint problem where residents have as much to say and as much role to play as the Government’. This led to a “them and us” philosophy, where the Government concentrated on ‘a comprehensive process for the scientific and technical aspects but nothing for the people or the human side of it’.47

2.59. These Theodore residents, along with the Conservation Council, submitted that there should be community representation on a contaminated sites steering committee to oversight contaminated site management in the A.C.T.; and that, with respect to specific sites, local residents should be represented on a management steering committee. Further, this local steering committee should be ‘responsible for developing, implementing and monitoring the remediation process’.48

2.60. Residents of Watson similarly called for community input into all stages of the remediation process: ‘local residents and immediate neighbours [should] have direct input into development conditions for redevelopment sites’.49

Arsenic contamination: the actions of Government officials

2.61. Many submitters criticised the actions of Government officials handling the Theodore and Watson situations.

2.62. One Theodore resident was concerned that officials discussed ‘issues specific to other residents in the area with us and then ask[ed] us not to tell anyone what we had been told’ - leading to an impression that the officials wished to divide the local residents.50 He, and other Theodore residents, stated that officials failed ‘to monitor all phases of testing to see whether the contractors had done the work as directed’.51 A Watson resident similarly complained that Government officials: have shown that they cannot operate a scientific testing program, their project management skills are deplorable and they have shown a complete lack of concern

46 Transcript of proceedings p30 (Mr Brown) 47 Ibid pp54-58 (Mr Martin) 48 Mr Brown 49 Mr & Mrs O’Brien and many other signatories (28/4/96), Ms Pearson and R and T Fletcher 50 Mr Brown 51 Transcript of proceedings p28 (Mr Brown) and p37 (Mr McDonnell)

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with the impact of this on the welfare, including the financial welfare, of the residents of Watson.52

2.63. Theodore residents submitted that officials passed on wrong information about the direction in which sheep were herded into and out of the former sheep dip, and incorrectly advised them that arsenic contamination has no ill effect on humans.53.

2.64. Some submitters consider that the ‘Government tactics of insisting that the settlement terms remain secret are divisive and encourage suspicion of Government motives’.54 The Conservation Council stated that: The community consultation to date has tended to isolate and divide groups with similar contaminated sites problems in different geographic areas of Canberra, causing them to constantly revisit the same issues at each individual site rather than allowing the community to build on existing experiences and knowledge.

2.65. The Australian Democrats stated that the (former) Department of Environment, Land and Planning: is not adequately staffed to cope with multiple serious contamination sites. As a result of the above, it is taking too long for sampling, testing and reporting to take place.

2.66. The Conservation Council stated that’ the Contaminated Sites Unit has been under-resourced and hence has responded to urgent issues rather than to wider, long term problems of contamination - such as ‘issues of standardised soil testing, health testing, liability, compensation, remediation, consultation and the community’s right to know’. The Council added There is still no public register of sites, no decision on liability, compensation and remediation, no testing of possible biological effects on fauna and flora and no standardised soil or health testing regimes.

2.67. Mr McCann submitted that the Assembly’s Standing Committee on Public Accounts should investigate the ongoing cost of managing contaminated sites. This request will now proceed, following tabling in the Assembly of the Auditor General’s report Management of Former Sheep Dip Sites (dated 23 May 1996). By the rules of the Assembly, the Auditor’s report is automatically referred to the Public Accounts Committee for inquiry and report back to the Assembly.

2.68. Partly offsetting the remarks critical of officials, a number of submitters praised their efforts in trying to considerately handle some very difficult problems. A thoughtful and compassionate insight into the actions of officials was provided by the former Minister for the Environment, Mr Wood MLA, in a

52 Ibid p146 (Mrs Hildyard) 53 Mr & Mrs McDonnell and Mr Brown 54 Ms O’Connell and Mr Allnutt, National Toxic Network

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letter to the committee dated 4 September 1995. He defended the actions of officials in the following terms: For over seventy years of increasing residential development on, to quote a forgotten Federal politician, a ‘good sheep station ruined’, it was a grave oversight to overlook the certainty of the presence of sheep dips. It was my lot to deal with the affected residents.

There were no processes in place to handle this situation. They were developed as we went along and are being refined as taught by experience...

It was in those most difficult circumstances that we sent out officers to do that shocking but necessary act of knocking on strange doors and advising families of the problem. It is important to give credit to the people who did that. Though competent and professional, they were not trained for the task but they did it well...

2.69. Mr Wood added that the then Government moved quickly to address the problem of possible contamination from former sheep dips: The Government was determined that the residents would not face the prolonged agony that people in northern NSW endured before their Government accepted responsibility in similar circumstances. We made the offer to buy the properties very quickly, relocated families where necessary and made appropriate commitments to other residents in the vicinity (though not to their entire satisfaction).

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3. THE GOVERNMENT’S SUBMISSION

What residents living on contaminated blocks can expect from Government

3.1. The Government submission states that residents living on contaminated blocks can expect the following from the Government: - a detailed explanation of the process of assessment, remediation (if necessary), reassessment and validation of the site, and an indication of the time each stage will take;

- consultation over sampling points;

- information from A.C.T. Health on the possible health impacts of arsenic;

- to be fully informed of the results of any soil sampling; and

- compensation for any demonstrable long-term economic loss associated with proximity to the dip site.

In the event that results indicate some contamination, residents can also expect:

- Government funded consultations with a toxicologist (Professor Michael Moore) and consultant biochemist and clinical physician (Dr Peter Stewart);

- Government funded health testing (normally a urine test);

- analysis of garden produce;

- analysis and speciation of house dust and high surface readings to attempt to determine how bio-available the contaminant is;

- independent counselling, if desired, at Government expense; and

- remediation at Government expense.

In the event that results indicate contamination significantly higher than the health investigation level, residents can also expect:

- the offer of buy-out and/or temporary relocation immediately or during remediation.

3.2. In relation to compensation for those living near a contaminated site, the submission states that: The possibility of compensation for residents affected by their proximity to contaminated land is obviously an important aspect of contaminated sites management. The legal situation in Australia is unclear and the experience of case law is somewhat sketchy. In light of this, the Government has adopted a policy which it believes is fair and equitable in that it has offered compensation for any demonstrable, substantiated long-term economic loss associated with proximity to the contamination without the need for residents to enter into litigation...

3.3. An Appendix to the submission advised that, in relation to the two Theodore properties that adjoined contaminated sites but which had test results below both the health investigation level and the environment investigation level, the Government’s position was:

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Should either family wish to sell their properties, the Government would consider a claim for compensation if the family sustained a loss on sale due to their proximity to the dip site, in an arm’s length transaction.

3.4. Another Appendix to the submission provided the following information about the compensation paid out on a property in Theodore which tested above the health investigation level but below the level warranting buyout. The Government agreed to pay compensation to the lessee: for any loss in property value upon sale of the house which could reasonably be attributed to the contamination of the site, provided the sale was a genuine arms-length transaction, and the property was valued independently to determine its current market value as if the property were not contaminated or located near a contaminated site. The Government also agreed to payment of legal expenses and compensation for the net costs (ie taking into account any rent received on the property) of interest payments on the house for a limited period if there was a delay in sale associated with the contamination issue. The Government also agreed that the Territory should be prepared to advise any purchaser of the contamination independent of any advice provided by the vendor, and that the Territory must have the right of first refusal to purchase the property.

The residents subsequently accepted the Government’s offer. It is understood the agent marketing the property was subsequently instructed to disclose to any potential purchaser the extent of contamination (by making available the documentary evidence of test results) and inform any purchaser that the costs of any necessary remediation would be borne by the Territory.

3.5. In relation to remediation, the submission states that the Government considers that: each affected resident...[should] have a certificate of remediation and... this information should also be available to those other local residents who have been involved in the process.

3.6. The committee was told by a Government official that: In terms of certification of the blocks once they have been cleaned, the process we envisage for remediation is an audit done by an independent environmental auditor. Once contamination has been removed, the site would then be validated by, again, an auditor... to say that the site has been cleaned up.55

3.7. The same official stated, in relation to blocks that are partly contaminated: One of the things we have offered for some properties that are at the upper end, approaching the 100 ppm, is that we believe some remediation will be sensible on those blocks to give us a margin for saying that it is below the health investigation level but it is significantly below. Some of these offers have been made. The level we choose is, I suppose, around the halfway point between 20 and 100, which gives us a margin for error.56

55 Transcript of Proceedings p135 (Mr Bateson) 56 Ibid

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Public knowledge of contamination

3.8. In relation to a register of contaminated sites, the Government submission states: Provided that owners are required to disclose information about potential contamination prior to sale or rental and that the Government will also provide the information to other people with an interest in particular parcels of land, there are questions about the value of a generally available register of land under investigation but not confirmed to be contaminated.

3.9. In a letter to the committee dealing with the provision of information about individual buy-outs (dated 15 September 1995), the Government added: The Government believes that disclosure of the addresses of individuals living on contaminated sites would lead to identification of the individuals concerned... Information about the location of contaminated sites is provided to residents and owners of contaminated blocks, potentially contaminated blocks and surrounding residents...

Information about particular sites will also be given upon a specific request. If a person with an interest (or potential interest) in a site makes an inquiry about that particular site, the Government will make available any information it has that might suggest the site is contaminated.

You should note that if the Government decides that a register of contaminated sites should be established by statute, and that it should be open to the public, any disclosure made under such legislation would override the provisions of the Privacy Act as any disclosure would be a requirement of law.

3.10. An Appendix to the Government submission noted that residents of the two blocks in Theodore with high test results ‘requested that their privacy be respected and it was decided not to inform other residents until those two families were moved out’. Further: ‘As it was impossible to visit all residents at once, some individuals [in Theodore] found out from neighbours’.

3.11. Another submission stated that, when Government officials discussed test results in Theodore: many residents living with sight of the sheep dip sought further assurance and requested more sampling to be done. In view of the deep concern held by these people, an offer was made [and accepted] to investigate locations to be nominated by the residents.

The Government’s priorities

3.12. The Government outlined its priorities for 1995-96: (i) working with affected residents and their local communities to devise and implement appropriate remediation plans for each affected residential site;

(ii) the development of a discussion paper on legislation which will ensure legislative protection to buyers, owners and occupiers of land in the A.C.T.; and

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(iii) implementation of the Government’s strategic plan which, of course, will involve an ongoing program of identification and assessment of contaminated land in the A.C.T.

3.13. In March 1996 the committee was advised that the discussion paper: has been drafted but... we are waiting for the committee’s report... There are some issues we would deal with in the discussion paper on which we would like the benefit of the committee’s deliberations.57

The Government’s legislative options

3.14. The Government described its legislative options as follows: In 1992 ANZECC and NHMRC developed a common set of principles in the Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites to form the basis of actions when dealing with contaminated sites..

All [Australian] jurisdictions are operating with the ANZECC/NHMRC Guidelines as a basis for their professional and technical work to manage contaminated sites...

Queensland and New South Wales both have stand-alone contaminated sites legislation in place, while Victoria has overarching environment protection legislation with specific environmental policies addressing contamination. Western Australia seems to be moving at this stage towards stand-alone legislation, while in South Australia contaminated sites management is handled under health legislation. Neither the Northern Territory nor Tasmania have contaminated sites legislation in place... The [A.C.T.] Government is looking at integrated environment protection legislation which would make the Victorian model the most useful...

The Government is not attracted to the introduction of specific legislation covering contaminated sites...

The Government intends to examine the use of existing mechanisms, eg the Territory Plan, building records and lease purpose clauses to see if they can accommodate information on contamination rather than devise stand-alone legislation with the inevitable increase in costs to the community and further proliferation of legislation....

The Government has to balance the general community interest in relation to the community’s right to know and be protected from any potential adverse health impacts with other interests, including the interests of those people most directly affected by contaminated land... Clearly it is important that, where either the Government or the seller is aware of contamination or possible contamination, prospective buyers or renters should also be aware of this possible constraint.

Consistent with its polices of reducing red tape and not imposing additional costs on the community, the Government is attracted to the idea of using building files as the means of including information on existing contamination in residential areas. Such information would be routinely available to people with an interest in, say, purchasing a property but would protect the privacy of individual residents who did not wish to sell or rent. However, the Government will need to consider whether historical information on remediated land should be available, given possible adverse impacts on vendors and associated potential claims for compensation....

57 Ibid p134

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In relation to non-urban areas... the Government would include information on known contaminated sites by means of an overlay to the Territory Plan. The Plan would also specify the processes to be used to ensure that any contamination was appropriately remediated or managed before any changes to land use...

In addition, the Government proposes to require disclosure of other information which would warrant the investigation of the site (eg past use as a sheep dip or evidence suggesting PCB contamination) to people who have a clear interest, eg people who may be considering renting premises, people who may be considering buying a lease, or people who own or rent an adjacent lease where there are possible off-site impacts...

These provisions will of course also apply to the Government in its role as the manager or developer of land...

[In relation to funding,] the Government intends to examine its environment protection legislation with a view to ensuring that it has the power to require identifiable and solvent polluters to meet the costs of assessment and necessary remediation...

However, if it is the case that there are no risks to Occupational Health and Safety or public health, nor impacts off the site, the legislation may allow the polluter to defer the remediation until either:

- the polluter wishes to dispose of the site, or

- the polluter wishes to change to a land use where the existing level of contamination is no longer appropriate.

There are obviously some advantages for the polluter or land manager in this approach, but care will have to be taken, possibly by the imposition of a substantial bond, to ensure that the Territory’s interests are protected if this sort of deferral is allowed...

[In relation to contaminating and polluting activities,] the development of the integrated environment protection legislation will need to ensure that the Government can step in to prevent contamination and require the manger or owner of the land to cease the contaminated activity. While the existing water and air pollution legislation provides some powers in this area, the proposed legislation will explicitly cover land and groundwater.

Other key issues for further discussion in looking at legislative options... include:

- the adequacy of links between the integrated environment protection legislation and the Land (Planning and Environment) Act;

- appropriate time frames for Government responses to proposed sampling and remediation options;

- liability for clean up and for compensation to people exposed to contaminants on the site (workers, residents, visitors) or where there are off-site impacts;

- implementation of any national measures which are introduced by the National Environment Protection Council;

- implementation of any agreed future national policies on financial liability; prescribed Occupational Health and Safety standards for the workers involved in investigation and remediation of contaminated land;

- the best means of ensuring that potentially contaminating activities are adequately regulated and that approvals provide for adequate monitoring;

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- how to attribute costs between various occupants/polluters when there are site impacts from several sites;

- the level of consultation required to be undertaken by the polluter and/or owner/developer in relation to investigation options; and

- appropriate charges for these activities.

3.15. In March 1996 the Minister for the Environment advised the committee of his concern that the committee’s further round of public hearings will affect ‘one part of the Government’s legislation program’ as follows: The Government is committed to introducing integrated Environment Protection legislation [IEPL] which will, among other things, deal with the management of contaminated sites. You may recall that the Government has given a commitment that it does not intend to pre-empt the committee’s recommendations before finalising its policy positions on such issues as the form of a register, access to information and broad community input to remediation plans.

Given your committee’s intentions I believe it is appropriate for me to defer the contaminated sites component of the IEPL until the Government has the opportunity to consider your committee’s report.

3.16. In relation to contaminating and polluting activities, the submission stated that proposed legislation: will need to ensure that the Government can step in to prevent contamination and require the manager or owner of the land to cease the contaminating activity. While the existing water and air pollution legislation provides some powers in this area, the proposed legislation will explicitly cover land and groundwater...

3.17. An Appendix to the submission advised that: Whenever the Pollution Control Authority agrees to... issue a license which permits form of discharge, whether under the Water Pollution Act 1984 or the Air Pollution Act 1984, a notice is placed in the Canberra Times, stating that such a licence has been issued, and that any interested person may seek information about the details of the licence.

3.18. In relation to the legal responsibility of polluters, the submission stated: the Government intends to examine its environment protection legislation with a view to ensuring that it has the power to require identifiable and solvent polluters to meet the cost of assessment and necessary remediation. The complex issues of attributing financial liability in these sorts of cases are being addressed in national forums and the Government intends to implement agreed national approaches.

Should the assessment indicate that remediation also is required because of a demonstrated health or environmental risk, either on or off the site, the polluter will also be expected to meet costs of remediation to a level where certification can proceed.

However, if it is the case that there are no risks to Occupational Health and Safety or public health, nor impacts off the site, the legislation may allow the polluter to defer the remediation until either:

- the polluter wishes to dispose of the site; or

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- the polluter wishes to change to a land use where the existing level of contamination is no longer appropriate

and then undertake the assessment and remediation at that time.

Arsenic contamination: the investigation level

3.19. The investigation level used by the Government is that: determined by the Australian and New Zealand Environment and Conservation Council and the National Health and Medical Research Council. “Investigation Level” is defined as the concentration of a contaminant above which further investigation and evaluation is required. For arsenic, the environmental investigation level is 20 parts per million (ppm), while the health investigation level is 100 ppm. A test result that shows that a substance is above a health or environmental investigation level does not of itself indicate that a site is contaminated or that a health risk exists. Such a result instead indicates that, depending on assessment of a range of factors relevant to that site, there is a potential for the site to be classified as contaminated...

Arsenic contamination: the results of investigations

3.20. The Government advised that: whilst the levels of contamination so far discovered in the A.C.T. are well below the levels found in areas with a long history of heavily industrial uses in other States, some former sheep dip sites have showed levels of contamination which require remediation to ensure that there are no adverse impacts on human health...

to date, over 100 former sheep dips have been located in the Territory. Of these, approximately 16 are located in urban or suburban areas, with six sites located in residential areas, five of which may directly affect housing...

3.21. An Appendix to the submission stated that: The Government has undertaken an extensive search of aerial photographs, plans, old NCDC records and undertaken field examinations.

The Government’s own searches have located over 100 old sheep dip sites and more than 70 land fill sites, as well as other potentially contaminated sites.

3.22. At this stage, the only known contaminant in residential areas at levels above health investigation levels is arsenic.

3.23. An Appendix to the submission stated that the results of urine tests on residents of affected properties in Theodore ‘did not indicate any elevated arsenic levels’, nor did tests on home-grown produce show any ‘raised level of arsenic’.

3.24. In April 1996 the Government announced that some test results in Watson appeared to suggest that high arsenic readings may be due to naturally occurring arsenic rather than to arsenic from sheep dips. The Government’s response was in two parts. First, the Government announced that ‘until more is known about the effects of naturally occurring arsenic, the Government is to withdraw some offers [to purchase homes], subject to re-evaluation’. Second,

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the Government announced the establishment of ‘an expert advisory group to examinee findings of further testing for contamination in Watson’. The Government’s media release on the subject noted: Arsenic is a naturally occurring substance. While the levels [being investigated] are above the health investigation, it is important to understand that, even if naturally occurring arsenic has the same effects on humans as the chemical formulations used in sheep dips, the average person would have to consume a quantity of soil and rock before effects would become evident.58

3.25. A Government official told the committee: The threshold of 100 ppm has been taken by the Government as the threshold for buyout offers, provided that it is spread throughout the site - on the basis of the arsenic being sheep dip related, anthropogenic arsenic which is based upon studies of the toxicity of that arsenic coming from leachout from similar sites. Where the arsenic is naturally occurring, such studies have not been taken, and our [oral] advice from our toxicologists is that the results may very well be substantially different.59

3.26. The same Government official stated that he expected the additional tests would need to include actual ‘testing on animals to see how toxic the material being fed to them is’.60 The committee was told that the Government had not considered the issue of differentiating, in relation to any single property, between test results on naturally occurring arsenic as distinct to anthropogenic arsenic. Nor had officials considered ‘the mechanism’ enabling ‘everybody... [to] be clear on what the risk is [to human health] and... [how it will] be publicly acknowledged’.61

3.27. In relation to disposal of arsenic-contaminated soil, the committee was told: The West Belconnen Landfill site does have the capacity to take more dangerous material than anything we are going to find from the contaminated sheep dip site.62

58 Media release by the Minister for the Environment, Land and Planning (Mr Humphries MLA) dated 22 April 1996 (italics in original) 59 Transcript of Proceeding p164 (Mr Nicolson) 60 Ibid p166 61 Ibid p168 (Mr Turner) 62 Ibid p137 (Mr Nicolson)

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4. GUIDELINES FOR THE ASSESSMENT AND MANAGEMENT OF CONTAMINATED SITES (1992)

4.1. The Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites (dated January 1992) were adopted by the Australian and New Zealand Environment and Conservation Council and the National Health and Medical Research Council. The Guidelines provide a framework for the proper assessment and management of contaminated sites, Australia-wide. The A.C.T. Government and all other jurisdictions in Australia and New Zealand have agreed to the Guidelines. This chapter sets out their key features.

Clean-up

4.2. The Guidelines state that: the preferred order of option for site clean-up and management are:

- on-site treatment of the soil so that the contaminant is either destroyed or the associated hazard is reduced to an acceptable level, and

- off-site treatment of excavated soil which, depending on the residual levels of contamination in the treated material is then returned to the site, removed to an approved waste disposal site or facility or used as fill for landfill...

Polluted soil should be regarded as potentially hazardous waste and as such should be subjected to the same controls over its use, storage, transport and ultimate disposal as industrial waste.

Public notification

4.3. The Guidelines state: Site owners should be required to advise prospective buyers or developers that a site is contaminated...

Consideration needs to be given to amending legislation to require clean-up actions to be recorded on land titles or some other date base, along with the need for further clean-up action if land use is to be changed...

Development of inventories or registers of contaminated sites should be considered in order to:

- establish priorities for clean-up

- establish the resources necessary to approach this problem

- aid in assessing the potential hazards to human health and the environment

- assess suitable development on a site-specific basis with due recognition of economic and resource considerations

- establish the market for clean-up technologies... and inform potential purchasers.

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Planning issues

4.4. The Guidelines state that: Consideration should be given to clauses in planning systems indicating that any proposed redevelopment of sites for specified uses requires a permit or certificate to indicate either that a site is not contaminated or that the nature and extent of any contamination does not render it unsuitable for its intended use. It may also be appropriate for a caveat to be put on land which has been used for specified purposes...

Planning controls should effectively restrict future land uses to those which will not be adversely affected by the residual contamination...

The use of appropriate buffer zones to prevent potential contamination of residential or agricultural areas should be utilised.

Community involvement

4.5. The Guidelines state that: Community involvement is necessary from the earliest stages of contaminated site management.

The principles underlying this statement are the public’s right to know and the necessity for their involvement in the decision making process.

4.6. The Guidelines note that: ‘Aesthetic concerns and the stigma of living near a contaminated site may... influence public attitudes’.

Health monitoring

4.7. The Guidelines state: From Australian and international experience, health effects are likely to be found in only a very limited number of situations of extreme soil contamination. Subtle effects may only be able to be determined on a group basis rather than on an individual basis...

4.8. Further, the Guidelines advise that: Each identified chemical contaminant should be considered for its potential impact on humans and the environment.

This is generally done by looking at:

- the physiochemical characteristics of the chemical... and soil characteristics such as pH, clay content etc which may influence bioavailability and mobility

- the toxicity of the chemical to humans, animals and plants

- the likelihood of exposure of humans, animals or plants to contaminants in soil, air or water

- the natural background levels of the area, and

- bioaccumulation and biomagnification capacity...

The following issues are important to consider in exposure assessment from a public health perspective:

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- children usually receive a higher exposure to soil contaminants per unit body weight than adults

- soil ingestion by small children is usually by far the most important exposure route..

For the purpose of exposure assessment, it is recommended that a soil ingestion level for children (1-5 years) of 100 mg/day of soil from all routes is used. This incorporates a wide margin of safety (that is, it is a conservative estimate which overestimates typical exposures)...

In most situations, the person most exposed to contaminated soil will be a child aged 2 to 3 years...

Investigation levels will be determined taking into account:

- the bioavailability of a substance. The bioavailability should be assumed to be 100% if specific information is not available

- the Provisional Tolerable Weekly Intake or Acceptable Daily Intake as determined by the World Health Organisation...

- other potential sources of the substances that comprise a proportion of the Provisional Tolerable Weekly Intake or Acceptable Daily Intake (for example, background levels of the substance in soil, food, water and air...)

4.9. In relation to investigation level guidelines, the Guidelines state: [Investigation] levels should not be interpreted rigidly. A site with a median lead level of 290 will not be significantly different to a site with a median lead level of 310. The proposed land use, distribution of contaminants and the frequency distribution of elevated levels will be very important in interpreting the results for a site.

4.10. In relation to ‘background’ levels of contamination, the Guidelines state: “Background” is defined as the level of contaminants typically found in the vicinity of a locality, but away from a specific activity or site...

Soil barriers

4.11. The Guidelines state that: In determining the depth of a barrier the following factors should be considered:

- 0.5 metre depth of clean soil is unlikely to be penetrated with normal gardening activities

- the nutritional roots of vegetables are unlikely to extend below 0.5 metres. In Australia’s dry climate the root exploration depth will tend to be governed by the depth of water penetration from domestic watering which rarely penetrates deeper than 30cm. Larger fruit trees with more extensive root systems appear to have limited uptake of most contaminants...

Barriers may still leave larger shrubs and trees exposed to phytotoxic effects if their roots penetrate the contaminated zone.

Well maintained grass will cause a substantial reduction in exposure to contaminants in surface soil and may therefore provide an effective barrier in particular situations. The reduction of exposure from well-maintained grass is at least 80%.

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Naturally occurring materials

4.12. The Guidelines state that: Naturally occurring materials, such as mineralised rock and soils may also be a source of health and environmental concern in certain localities depending on the intended use of the land.

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5. STRATEGIC PLAN FOR CONTAMINATED SITES MANAGEMENT, ADOPTED IN 1995

5.1. The Strategic Plan for Contaminated Sites Management was adopted by the A.C.T. Government in 1995. The Plan sets out ‘the Government’s broad policy approach to the management of contaminated land’ involving ‘an integrated approach to planning, management and necessary remediation’.

Past policy

5.2. The Plan states that: The A.C.T. has dealt with contaminated sites on an individual basis [in the past]. In the absence of specific legislation, the provisions of the Water Pollution Act 1984, the Air Pollution Act 1984 and the Land (Planning and Environment) Act 1991 have been used to address individual sites. The Strategic Plan is designed to replace this case-by-case arrangement with an integrated approach which itself will be consistent with proposed new integrated environment protection legislation.

Government policy

5.3. The Plan states that: the Government’s position is that the polluter of land should pay clean-up costs wherever possible and similarly, where a lessee wishes to change the use of land to one which requires a higher standard of clean-up, the lessee would meet these costs. The Government proposes legislation to ensure that the community does not pay for investigations and remediation where the polluter is identifiable and solvent. However, in many cases, there is no longer an identifiable polluter, or the polluter is insolvent. Pending the introduction of legislation to deal with contaminated sites, the Government intends investigating all sites where human health or the environment may be at risk at its own expense.

The Government will also take responsibility for remediation of sites in residential areas where there is no identifiable polluter.

Public knowledge of contaminated sites

5.4. The Plan states: It is important that a consolidated listing of currently-known locations of potential contamination be prepared and systematically investigated where there are potential risks to the health of the A.C.T. community and/or the environment, and to ensure such sites are managed appropriately according to their land use.

A central repository of data will present an overall picture of the extent of possible contamination in the Territory and enable all Government departments and the general public to add to the information base and to access it on a controlled basis...

a listing of sites would also give the community information and improved confidence.

The Government is attracted to the option of including information on confirmed contaminated residential sites on the building file... Other contaminated land might be identified by means of a overlay to the Territory Plan. While it would be useful to maintain a register of suspected contaminated sites, the inclusion of such sites in a

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public register could have serious consequences for leaseholders, including possible economic effects which could be based on erroneous information.

The information on building files should include known contaminants, their precise level and location on relevant health and environmental investigation levels. Such information would be routinely available to people with an interest in, say purchasing a property, but would protect the privacy of individual residents who did not wish to sell or rent. However, the Government will need to consider whether historical information on remediated land should be available, given possible adverse impacts on vendors and associated potential claims for compensation.

Once a site has been remediated the file should include details of the results of post-remediation sampling.

Community input

5.5. The Plan states that the Government will: communicate directly with those people who are immediately affected by contamination or possible contamination of a site and provide comprehensive information about the contamination and the proposed management measures to be undertaken [and]

assist the community, the media and other stakeholders to understand the technical aspects and increase the level of participation in arranging management solutions to maintain trust and credibility...

Legislative options

5.6. The Plan states that: Existing legislation will be modified where necessary to establish the roles and responsibilities of polluters, land managers and lessees in investigation and remediation of contaminated land.

The Government’s discussion paper on legislative options will discuss:

- determination of liability for assessment of sites

- determination of liability for the cost of remediation

- the need for authorised persons to access sites for the purposes of testing

- information/site listing requirements, and

- the ability to deal with orphan sites [being a site where the person who caused the contamination is either unidentifiable or cannot be made to pay].

5.7. Further, the Plan states that legislation will include: the power to issue a notice, under the Polluter Pays Principle, requiring the polluter to develop a remediation program for the site and initiate remediation action.

5.8. Further, the Plan states that the Government will ‘develop and implement a waste manifest and tracking system’. Also, it is intended to: review current long-term storage facilities, determine their suitability and applicability to the storage of contaminated soils and estimate their capacity to meet future requirements.

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6. CHAIR’S STATEMENT (ON BEHALF OF THE STANDING COMMITTEE ON PLANNING AND ENVIRONMENT) TO THE LEGISLATIVE ASSEMBLY ON 22 JUNE 1995

6.1. The full text of the Chair’s statement to the Assembly on 22 June 1995 can be found in the Hansard for that day.

6.2. An important part of the Chair’s statement is reproduced below: The toxicologists [appearing before the committee] stated their view that, on the evidence analysed to date, there is no evidence of high levels of arsenic in people living on former sheep dip sites, nor is there evidence of undue contamination of food grown on these properties or their soil. Notwithstanding this view, the committee was told by some Theodore residents that they remain anxious about the health effects of the former sheep dips and about the process used by Government officials to investigate and inform their local community.

It is obvious to the committee that there remains a very deep level of anxiety among some Theodore residents about their future. It is also obvious to the committee that the Government should act quickly to settle this unease. It should not be allowed to fester indefinitely.

It appears to the committee that some residents simply wish to leave the locality and will not feel at ease until they have been assisted to move to an entirely new location. Some of these same residents told the committee that they do not like Government proposals to buy contaminated land and develop it as a park once it has been remediated. They stated that they bought their properties, knowing that other residences would be alongside them, and this is the way they would like it to continue.

The committee considers that, in order to ease the anxiety of residents living in or near contaminated sites, the Government should move quickly to buy the two homes and land that have been the subject of extensive discussions but about which no agreement has yet been reached. The committee has heard that land valuations are a problem on contaminated sites. The Institute of Valuers stated this plainly, and the committee concurs. In relation to what value the Government should place upon homes whose owners simply want to move, it seems to the committee that this has to be the market value of the homes as though they were not affected by contamination. This is the only fair way for the Government to handle the problem.

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7. THE MINISTER’S RESPONSE TO THE CHAIR’S STATEMENT, DATED 25 AUGUST 1995

7.1. The Minister for the Environment, Mr Humphries MLA, responded to the Chair’s statement in the Assembly by way of a letter dated 25 August 1995.

7.2. The Minister’s letter stated (in part): the Government believes that there is no justification to purchase residences which are not contaminated...

the two blocks [referred to by the committee] have been extensively tested for arsenic contamination and results of that testing have shown that there is no contamination beyond the environment investigation level.

7.3. The Minister expressed concern about the precedent which might be set, noting that it ‘could create a significant potential liability’. The Minister considered that remediation of the contaminated properties will relieve local anxieties, along with the Government’s undertaking to ‘consider claims for compensation for any long-term economic loss which the residents suffered if they sold their houses’.

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8. THE CONSULTANT’S FINAL DRAFT REPORT: ASSESSMENT OF CONTAMINATION ASSOCIATED WITH A FORMER SHEEP DIP SITE LOCATED AT THEODORE (AUGUST 1995)

8.1. The consultant’s Final Draft Report into contamination at Theodore is dated August 1995 and is by CMPS&F Environmental. The report is important because it is the only detailed remediation plan so far brought to the committee’s attention by the Government. Its key points, as the committee sees them, are set out in this chapter.

8.2. The consultant’s area of study was: The study was centred on Block 18, Section 636 Theodore, which available information indicated was the site of the sheep dip. However, because of the potential for contamination to extend to adjoining properties, the study also involved investigations on a further 27 Blocks in the vicinity of Block 18 and the reserve on Budden Crescent. All Blocks are zoned residential, and are presently occupied, except for Blocks 18, 19 and 20. The residents of Blocks 18 and 19 have been relocated and the land and houses purchased by the Government. The residents of Block 20 have been temporarily relocated.

Risk to health and/or the environment

8.3. The consultant’s report states that: The first step in the risk assessment process it to determine whether the main potential impact is on human health or the environment.

The sites within the study area are located within an established residential area of Theodore. Additionally, the sheep dip was essentially a point, rather than a “broad-acre” source of potential contamination. The dip would represent a very minor portion of the total catchment area, and would have a negligible impact on the surrounding ecosystem, especially in cases, such as Theodore, where natural soil material contains higher clay content. In such cases, metals such as arsenic tend to absorb readily to such soil particles, resulting in lower leachability potential. Further, the site would not qualify as being an environmentally sensitive area as defined by the NSW Environment Protection Authority. An environmentally sensitive area is one which is located:

- within 40m of a natural water body or wetlands, or

- on a flood plain, or

- within a drinking water catchment area, or

- in a recharge area for groundwater resources either currently being exploited or which may reasonably be expected to be exploited in the future, or

- in an area with highly permeable soils.

Therefore, human health risks are considered to be the controlling consideration in determining soil quality criteria.

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Causes of soil contamination

8.4. The report states that: the two main factors determining the existing nature and extent of soil contamination are soil and dam sediment contamination from drainage from dip operations and distribution of contaminated soil and dam sediments during the redevelopment of the site from a rural to a residential use.

Remediation options (in general)

8.5. The report notes that: The ANZECC Guidelines state that the preferred order of options for site clean-up and management are:

- on-site treatment of the soil so that the contaminant is either destroyed or the associated hazard is reduced to an acceptable level, and

- off-site treatment of excavated soil which, depending on the residual levels of contamination in the treated material, is then returned to the site, removed to an approved waste disposal site of facility or used as fill for landfill.

Should it not be possible for either of these options to be implemented, then other options that should be considered include:

- removal of contaminated soil to an approved site or facility, followed where necessary by replacement with clean fill

- isolation of the soil by covering with a properly designed barrier

- choosing a less sensitive land use to minimise the need for remedial works which may include partial remediation, and

- leaving contaminated material in-situ providing there is no immediate danger to the environment or community and the site has appropriate controls in place.

Site remediation can be achieved by a number of different methods. For heavy metals the following approaches may be appropriate:

- in-situ capping and containment

- excavation/treatment and offsite disposal to landfill.

Soil which is excavated to be taken off-site may require stabilisation. This will reduce the potential leachability of contaminants, and therefore its potential to migrate away from the disposal location via groundwater movement.

Remediation options at Theodore

8.6. The consultant’s report states that: Remediation is defined as the removal of soil at a concentration of 100 mg/kg and greater, and replacing it with clean fill... sourced from offsite...

It is likely that some contamination exists below Weaver Crescent, however remediation is considered unnecessary because the roadway forms an effective and relatively permanent barrier to potential exposure. Management controls on works which result in disturbance of soils below the road is therefore required...

[The consultants] believe that the following three remediation and/or management control options are most appropriate for Theodore...

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Option 1 - remediation of contaminated soil except that below existing houses

... The houses would remain as semi-permanent barriers which will prevent exposure to any underlying arsenic contaminated soil. This option would not require demolition of houses, however a reinforced concrete ground slab would need to be installed below the house on Block 20, because this house is on brick piers and the soil surface below is currently exposed...

[The consultants] do not believe that any treatment of the soil would be required prior to disposal...

As contaminated soil will still exist at the sites under semi-permanent barriers, a management system would need to be established to safeguard for situations where the barrier may be breached (for example, redevelopment of the house, installation of underground services). A form of notification such as a caveat on the property lease would be required to avoid the possibility that future occupiers could bring contaminated soils to the surface unknowingly.

Option 2 - remediation of contaminated soil including that below some or all of the existing houses

... This would necessitate the demolition of some or all of the existing buildings and structures on Blocks 18, 19 and 20...

it has been assumed for costing purposes that areas under the houses would be excavated to 0.5m...

Option 3 - construction of exposure barriers

... A suitable exposure barrier could include a 0.5m thick layer of clean fill [or] a surface sealing system such as bitumen or concrete...

As with Option 1, a form of notification such as a caveat on the property lease would be required to avoid the possibility that future occupiers could bring contaminated soils to the surface unknowingly.

8.7. The approximate cost of each option is:

- Option 1: $261,000

- Option 2: $306,300

- Option 3: $132,600.

8.8. The advantages and disadvantages of each option are outlined in the following Table.

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ADVANTAGES DISADVANTAGES

OPTION 1

Full remediation except soil below houses

• The financial and social value of the existing houses would be retained because the houses would not be demolished.

• All contaminated soil will be removed except below the houses, therefore there would be very little restriction on residents’ day to day activities

• Lower remediation costs compared with Option 2

• Some contaminated soil will remain below the houses, therefore imposing planning and management controls and potentially restricting any further development.

• May results in devaluation of properties in the area because some contamination would remain on-site

OPTION 2

Full remediation including soil below houses

• All contamination would be removed, therefore all associated hazards and risks would be removed.

• There would be no future restrictions on residential redevelopment associated with soil contamination

• There would be significant costs associated with demolition of the houses.

• The financial and social value of the existing houses would be lost.

OPTION 3

Construction of exposure barriers

(a) 0.5m of clean fill

(b) site redevelopment incorporating exposure barriers

• Minimises the amount of potentially contaminated soil which must be removed and disposed. Therefore resulting in lowest cost of remediation

• Redevelopment associated with Option 3(b) may increase the social value of the Blocks to the general community by providing attractive amenities

• Development restrictions would be imposed to ensure that the integrity of the barrier is maintained.

• Management controls would need to be developed and stringently imposed to ensure that no underlying soil could be exposed.

• It would be difficult to enforce the management controls necessary for Option 3(a) on a privately owned residential property.

Consultant’s recommendation

8.9. The consultant concludes: Assuming that the landuse of Blocks 17, 18, 19 and 20 is to remain residential, then [we] recommend Option 1 (full remediation except for soil below existing houses) as the most appropriate remediation option... because:

- the only potentially contaminating soil remaining on the Blocks would be below the houses and is, therefore, unlikely to be disturbed except during major site redevelopment

- there would be no need for controls on the day to day activities such as gardening or landscaping

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- appropriate handling and disposal of any exposed soil during major redevelopment can be relatively easily controlled through conditional permits and approvals

- test results indicate that the arsenic is well bound into the soils and therefore the risk of migration of the arsenic below the houses would be low

- the cost of remediation works would be significantly lower than for Option 2 (full remediation including soil below existing houses) when the value of the existing houses is taken into consideration.

8.10. The consultant adds that it: cannot assess the potential for social and financial impacts on the local community which may result from some contaminated soil remaining below the houses and the need for some form of endorsement of the lease conditions for the Blocks.

8.11. The consultant notes that the remediation works should include: - completion of a detailed inventory and photographic record of all features on the site

- preparation and maintenance of access tracks to the site where required

- determination of pre-existing soil compaction at the various levels of soil to be excavated by compaction testing

- protection of all services or relocation for the period of remediation

- installation of temporary fencing or other barriers as may be required to prevent access to the excavation site

- drainage diversion works to ensure surface runoff does not enter the work area

- clearing and removal of surface features from the site as required

- excavation and stockpiling of clean soils; excavation of soils containing contaminants to the extent nominated in the remediation plan

- backfilling of excavations to the pre-existing level and pre-existing levels of compaction

- establish provision of temporary truck washing facilities to prevent transfer of potentially contaminated soils off-site

- reinstate and repair all site features destroyed, removed or damaged during the course of the works

- backfilling compaction and final site rehabilitation restoration corresponding to the original site conditions

- dust control during the course of the works

- noise control in accordance with the regulatory standards

- odour control as necessary

- preparation of detailed plans defining the extent of final excavations by location and depth.

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9. DRAFT PROTOCOL FOR INVESTIGATING, ASSESSING AND MANAGING FORMER SHEEP DIP SITES

9.1. The Draft Protocol for Investigating, Assessing and Managing Former Sheep Dip Sites was provided to the committee by the Government in 1996. The Protocol ‘serves as a check list of potential activities for officers of the Contaminated Sites Unit’. It describes what officials are to do when ‘oral or written notification of the existence of a potential former sheep dip site is given to the Contaminated Sites Unit’. Officials are to undertake: identification of physical location of site

site investigation [involving] develop brief and engage consultant; receive, review and approve sampling plan’; monitor progress of sampling; review sampling results; receive and review the consultant’s draft report; distribute consultant’s draft report; final report; develop site management plan and specification for remedial work; conduct final audit of the process; [and] issue clearance certificate

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10. THE GOVERNMENT’S OFFER OF BUYOUT, OR RELOCATION WHILE REMEDIATION TAKES PLACE (MARCH 1996)

10.1. The committee was provided with a copy, dated March 1996, of the Government’s offer of buyout or relocation while remediation takes place.

10.2. The letter enclosing the Government’s offer says that a leaseholder is to be shown ‘the sampling plan and the different levels at which the results were found’. The Government letter then states: As you have results above the health investigation level, the Department is prepared to carry out any recommendation on your block subject to your views and the consultant’s advice. This work would, of course, be at Government expense. Remediation is expected to involve significant removal of soil and restoration but this will be talked through with you in detail before the consultant finalises his report.

10.3. The letter offers consultation with the consultant toxicologists ‘to discuss any health-related questions you may have’. It also offers a urine test ‘to see whether there is any unusual level of arsenic in your body’, as well as tests on any garden produce.

10.4. The letter then gives details of the Government’s offer: In relation to your property, the Government is prepared to make the following offers:

(1) relocation at Government expense to a similar rental property from now until after remediation is complete.

If you accept this offer, the Territory will lease the alternative accommodation for you and arrange and pay for the removal and will meet all utility and other reasonable costs for the rental property

OR

(2) if you prefer, you can remain in the property until remediation is arranged. The Government will then arrange to relocate you to alternative accommodation on the same terms as set out above until all remediation and restoration is completed

AND/OR

(3) you may surrender your lease to the Territory and receive the following compensation:

(a) an agreed valuation for the property subject to verification by A.C.T. Valuations Office (subject to any adjustment for rates);

(b) a component of $15,000, representing the loss of your home;

(c) a component in recognition of disruption and dislocation caused by the discovery of levels of arsenic significantly above the ANZECCF-NHMRC health investigation level, based on an allowance of $5,000 in respect of each person ordinarily resident in the home; and

(d) any substantial economic loss.

The Territory will also meet all reasonable costs associated with the purchase of a new property of similar value including stamp duty, conveyancing costs, removal

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costs and any costs associated with the early payout and establishment of a new mortgage.

Obviously you will need to consider these options and may wish to seek legal advice on them. The Territory will reimburse you up to an amount of $2,000 for legal advice and fees associated with the surrender of your lease and purchase of a new property.

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11. DEED OF RELEASE (APRIL 1996)

11.1. The deed of release is between the lessee and the A.C.T. and ‘the A.C.T. Executive on behalf of the Commonwealth’. The deed states that both parties recognise: the land is contaminated and contains levels of arsenic significantly above the ANZECC-NHMRC health investigation level, apparently as a result of the land being on or near the site of a former sheep dip.

11.2. The deed states that the lessees: accept the Settlement Account in full and final settlement and satisfaction of all actions, proceedings, claims and demands (“Claims”) whatsoever which the Lessees and their children or any of them have or hereafter may have against the Territory, the Commonwealth or their respective officers, servants or agents, for all injury, loss or damage sustained by Lessees and their children or any of them as a result of or arising out of the matters described in the Recitals to this Deed.

Without limiting the generality of the foregoing, this release includes any Claims for financial or economic loss suffered by the Lessees, and compensation payable under the surrender of the lease pursuant to the Land (Planning and Environment) Act 1991, and any disruption, dislocation, stress or anxiety suffered by the Lessees or their children ...

11.3. The deed goes on to state that: The Territory will pay the following costs and expenses, in addition to those already paid by the Territory:

(a) in relation to the purchase of a new property in the A.C.T.: stamp duty on that purchase; establishment fees (if any) payable on any new mortgage loan taken out by the Lessees to enable them to purchase the new property; utility connection fees and reasonable legal fees and expenses for that purchase provided that if the purchase price exceeds $ , the maximum amount payable for each item will be based on a purchase price of $....

(b) removal charges for the move from the Land to the new property

(c) the early repayment fee (if any) payable upon the repayment of the Lessees’ existing mortgage loan over the land

(d) reasonable solicitor’s fees, not exceeding $2,000 associated with the Lessees obtaining legal advice on the Territory’s offer to pay compensation

(e) a valuation fee.

11.4. Also, the deed states that: The Lessees agree that they will not, without the prior written consent of the Territory, disclose to any other person any information concerning the size of the settlement amount provided that this clause does not apply to:

- any information which is in the public domain, other than due to a breach of this clause, or

- any disclosure which is required by law.

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12. REPORT BY ANUTECH PTY LTD (DATED 12 APRIL 1996)

12.1. The ANUTECH report was entitled Report on Assessment of Data Relating to Arsenic Levels in Watson and was written by Dr Tony Eggleton, Centre for Australian Regolith Studies at the ANU.

12.2. The report notes that ‘no records of arsenic analyses of Canberra rocks are available’. The report considers it likely that ‘the arsenic in the [Watson] area could have a geological origin’ rather than an anthropogenic source such as a sheep dip. The report recommends further sampling and testing to confirm this hypothesis.

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13. FIRST REPORT OF THE WATSON SCIENTIFIC EXPERT ADVISORY GROUP, DATED MAY 1996

Evidence

13.1. The Expert Group considered the results of all samples taken at Watson, amounting to ‘about 450 boreholes and about 1500 samples’.

Conclusions of the Expert Group

13.2. The conclusions of the Expert Group are that: The major source of the arsenic at Watson is likely to be naturally occurring within the rocks and soil. There is also likely to be arsenic in the soil in some sections of the site as [a] result of those sections’ earlier use as a sheep dip.

Arsenic contained in soils from former sheep dips has been demonstrated to be marginally toxic to humans in some circumstances, if consumed. Overall health risk to humans in most sites appears to be extremely low.

The arsenic present in its natural form is likely to be held within the rocks and soil and is unlikely to become more readily available.

There are several examples of extensive similar residential development over gossans [a geological formation] in Australian and elsewhere [including Captains Flat, Broken Hill, Bendigo and Ballarat] and the Group is not aware of any identified health risks specifically attributed to living in nor over these areas...

There is no evidence to date from test results from urine and vegetation samples of any effect on human health or the ecology from arsenic within the Watson study area.

The Expert Group recommends that the following investigations be carried out to confirm the conclusions arrived at by the Group and to assess further any risk to human health:

- undertake laboratory testing to determine the bioavailability and toxicity or the arsenic and other metals, if detected

- further investigate levels and extent of other heavy metals present using existing samples

- carry out a full risk assessment to determine environmental and health risks arising from soil contamination by metals in the Watson study area

- review records of geologically similar mineralised zones to determine their frequency of occurrence and any reported health effects.

The Guidelines and naturally occurring arsenic

13.3. The Expert Group states:

that a proposed framework for environmental risk assessment does not currently recognise sites with naturally elevated levels of contamination as distinct from anthropogenically contaminated sites when applying the risk assessment framework to determine the actual risk to the environment (health

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and ecological). The A.C.T. has brought the issue to the attention of the National Health and Medical Research Council and the Expert Group.

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14. AUDITOR GENERAL’S REPORT ENTITLED MANAGEMENT OF FORMER SHEEP DIP SITES (REPORT NO.5, 1996) RELEASED ON 23 MAY 1996

14.1. The Auditor General’s report: presents the results of a performance audit of the management of matters arising from the detection of arsenic in the soil at former sheep dip in the A.C.T. The audit commenced in August 1995 and was substantially completed by November 1995. Some aspects of the audit were revisited between January and April 1996 following the identification of a site in the suburb of Watson.

Information about former sheep dip sites

14.2. The Auditor found: that activities in relation to former sheep dip sites are generally being managed effectively...

There is a high level of assurance that most former sheep dip sites in the Canberra City region have been located... 142 former sheep dip sites have been located in the A.C.T...

Geographic co-ordinates have been used to pinpoint the location of former sheep dip sites and these are eventually to be recorded in a permanent reference of potentially contaminated sites (including non-arsenic sites). This recording of the information should prevent inappropriate land use in future, however, details of the reference facility have yet to be decided by the Government.

Information to the public

14.3. The Auditor found: There are... aspects where effectiveness [of the process] could have been significantly improved, particularly in the area of providing relevant and accurate information to residents and the public in a clear and positive manner...

[For example] at the time that arsenic was first found in the soil at Theodore and communication with the public became necessary, the Department lacked a strategy for managing its contact with the local community; [and]

although the Department is now providing information on compensation arrangements and services provided to residents, adequate information on health risks, timetables, remediation processes and other matters is apparently not being provided and this is preventing residents from making fully informed decisions about accepting buyout offers or choosing less costly remediation options...

The delay in making decisions [about, for example, the type of remediation and its timing] has contributed to residents’ perceptions that they are not being provided with timely and adequate information... It should be noted, however, that decisions to make buyout offers have in, in the opinion of the audit, been made too quickly.

14.4. The Auditor notes that Theodore residents ‘fear that disclosing’ even the low readings of arsenic found on their blocks ‘will drive down the price which potential purchasers would be willing to pay for their residences’. And:

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Because of this, residents feel a necessity to pursue deeper and more extensive remediation to gain a clean bill of health on their properties and if they cannot achieve this through negotiations they consider that litigation may be their only remaining option...

The Department... [states that] residents with less than 100 ppm arsenic in their soil are not required to [declare the readings to potential purchasers] but this does not seem to have been effectively communicated to at least some of the affected residents.

14.5. The Auditor notes that some Watson residents considered: the option of remediation only was discouraged by the Government... [in part because the residents understood] that the remediation process would devastate their properties. Sites would be cleared of all vegetation (and possibly buildings) and the soil would be replaced to a depth of three metres. Residents were not advised about likely remediation timetables...

[Further,] there was uncertainty about the Government’s plans for the neighbourhood and the public identification of affected blocks. Residents mentioned fears of future medium or high level development on the remediated blocks, possible bars on selling affected properties and of the labelling of properties as “toxic sites”, [and]

although specialist medical advice was that the level of risk was low, residents were concerned that this advice appeared to be inconsistent with the Government’s approach of encouraging residents to move out. One resident asked, “If there is no health risk, why are they hysterical?”...

The residents reported that because of the many uncertainties, their general perception was that it would be less trouble to cut their losses by accepting a buyout offer and moving out, rather than stay in the area, however much they liked it.

Health effects

14.6. The Auditor’s report states that: no urine tests conducted on persons residing on or near former sheep dip sites have found arsenic above normal background levels...

low concentrations of arsenic in soil create little or no risk as soil particles would not be eaten by people in anything like the amounts needed to adversely affect health, and

because of some possibility that large amounts of soil could be eaten by small children, there may be some increased level of health risk for young children...

Research has found that young children can typically swallow up to about 100 mg of soil (about a fortieth of a teaspoon) per day. If the soil swallowed contained 100 to 120 ppm of arsenic, the amount of arsenic ingested (12 ug) [a microgram (ug) is a millionth of a gram] would only be slightly greater than the amount ingested in food. Even when combined with the amount available in food, it would still be well below the Provisional Tolerable Weekly Intake [set by the World Health Organisation] of 28 ug/day...

Doses of 600 to 700 ug/kg/day may be fatal. That is the equivalent of feeding approximately five tablespoonfuls of soil with a concentration of 100 to 120 ppm to a two year old child weighing about 13kg...

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Environment effects

14.7. The Auditor notes: Because arsenic is bound to soil particles and is therefore generally in an insoluble form, the levels of arsenic in edible plants will be low, even when crops are grown on contaminated soil.

In the A.C.T., extensive testing of home vegetables grown on former sheep dip sites found only one sample with a measurable concentration of arsenic. This concentration, however, was six times below the acceptable level described in the appropriate Australian Standard for food consumption...

Buyouts and compensation to date

14.8. The Auditor’s report states that buyouts and compensation to date total:

- three properties in Theodore,

- five offers in Lyneham, two of which involve buyout and/or remediation, whereas three involve remediation only,

- 24 offers in Watson, 15 of which involve buyout and/or remediation compared to nine involving remediation only

- three offers in other sites, one of which involves buyout and/or remediation whereas the other two involve remediation only.

14.9. The Auditor comments that ‘although the buyouts at Theodore were completed in early 1995... no remediation work had commenced’ by April 1996.

14.10. The Auditor’s report notes that: It is arguable that the main costs of buyout - that is, the actual property costs - can be recovered. Once remediation has been completed (and assuming that houses are not demolished), properties can be re-sold and much of the buyout cost recovered. However, this view is hypothetical as to what future actions will be. There is no certainty that the properties concerned will be re-sold. Whatever happens in the future, buyout requires that expenditure be made now....

The main criterion for offering relocation and buyout, or relocation during remediation, was that there was at least one sample result from a property which was significantly in excess of 100 ppm... [It is Audit’s view that such a sample reading] should generate a site assessment, not a buyout offer [in accord with the Guidelines]....

Remediation as an option

14.11. The Auditor’s report notes that: From April 1995, offers of buyout have included the option of remediation without buyout. This is to assist residents who prefer to retain their homes...

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Remediation involves the removal of soil containing arsenic and replacement with clean soil. Where sites will have to be remediated, the remediation only option is less expensive as it does not require the purchase of properties. Under the remediation option, the Government remediates the properties, providing alternative accommodation during the remediation.

There is a perception, however, on the part of some residents that the Department is discouraging the remediation only option.

Government expenditure on buyouts and compensation

14.12. The Audit provides the following summary: To date, offers of buyouts (including compensation) have been made for 21 properties, however five of these have been withdrawn leaving 16 offers effective. Nine of the buyout offers have been accepted with expenditure aggregating to almost $1.9m. The remaining seven outstanding offers involve approximately $1.6m...

[So] to April 1996, a total of $2.6m had been expended or committed in relation to former sheep dip sites...

In total [in Theodore], the amount paid for buyouts and other compensation for the three properties was $664,989, an average of approximately $220,000 per house...

The offers to provide compensation (including buyouts) were made without obtaining legal advice on a case by case basis on legal liability [and]

the offers of buyouts and compensation were made without assessments of health and environmental risks being completed... Consequently, until recently, less costly options have not been considered including remediation only...

[Further,] on the basis of available evidence, the decision to offer the option of buyouts to Theodore residents was not necessary to protect the physical health of the residents concerned. Departmental records indicate that the decision was taken to protect their psychological health and to limit the effects that stress may have caused.

In relation to the houses which have been bought out at Theodore, the final consultants’ advice was that the houses do not need to be demolished. An acceptable level of safety can be achieved by removing the affected soil and replacing it with clean soil. Soil beneath houses need not be removed unless the houses are demolished for other reasons...

The conclusion drawn in regard to efficiency and economy is that the most efficient and economic means of achieving objectives have not always been used and to date unnecessary expenditure of around $400,000 has been incurred or committed. [This is based on expenditure at Tuggeranong Homestead, on extra sampling boreholes at Theodore, ‘the unnecessary purchase of a residence at Theodore’ and ‘the premature offer of buyout of a property at Watson’.] Unless current practices are changed, further unnecessary costs will be generated.

If the NSW formula for buyouts had been adopted, a further $400,000 less expenditure would have been incurred or committed... The offer of buyout in NSW consists of:

- legal fees and costs associated with the purchase of a new property

- removal costs to $750 and

- buyout of property at unaffected market value. Residents do not receive temporary accommodation and associated costs or compensation...

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Government expenditure on site assessments

14.13. The Auditor’s report notes that Departmental staff have undertaken preliminary sampling in some suburbs but that ‘specialised contamination consultants are usually engaged to perform detailed site assessments. As of April 1996, the costs of the latter are:

- $24,100 for a preliminary report on Tuggeranong Homestead

- $16,455 for a preliminary report at Ngunnawal

- $100,636 for a final draft report at Theodore

- $42,433 for a preliminary report at Lyneham

- $97,500 for a preliminary report at Holder, Chapman and Isabella Plains

- $176,389 at Watson (not completed), and

- $36,740 at Downer (not completed).

Audit recommendations to Government

14.14. The Auditor’s report recommended that: - site assessment reports which provide health and environmental risk assessments information on the extent of contamination, the costs of remediation and options to manage contamination and the extent of legal liability should be promptly obtained and considered prior to each decision being made whether to offer buyout, remediation and/or compensation;

- the Department should accelerate its decision-making processes so that it can provide timely and authoritative information on health risks, timetables, remediation processes and other relevant matters to residents living on or near former sheep dip sites so that the residents can be fully informed why buyout and compensation offers are or are not being made, and also on any remediation processes which may be considered necessary; and

- in cases where low arsenic readings have been taken from residential blocks at a level which indicates that no actual risk to human health exists, owners need promptly to be assured that the market value of their homes will not be affected through disclosure to potential buyers of the existence of the low level readings.

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15. CONCLUSION

15.1. As stated in the Preface and in Chapter 1 of this report, the committee here outlines recommendations based on a reading of all the material summarised in preceding Chapters.

15.2. In relation to locating contaminated sites, the committee understands that various techniques exist to improve the speed with which contaminated sites might be identified. The committee’s attention has been drawn to a local firm which integrates remotely sensed data for soils, landuse and other activities.63 Members of the committee question whether Government officials have had the opportunity to be informed about the latest technological data processing capabilities now available and which, the committee understands, are able to be adapted to locate sites that might be contaminated.

Recommendation 1: The committee recommends that the Government facilitate access by officials and the public to up-to-date, ‘best practice’ in locating sites that might be contaminated.

15.3. Clearly it is prudent for the A.C.T. Government to be absolutely certain that land it intends to release for residential development is free of contamination. The committee expects the A.C.T. Government to provide such certainty by adopting appropriate investigation procedures.

15.4. The same comment applies to land that the Government permits to be used for purposes other than those originally prescribed in a lease - such as residential settlement on, for example, land that has been used for a Drive-In Theatre, or office and residential use of land previously used for petrol stations.

Recommendation 2: The committee recommends that the Government institute appropriate procedures to provide public certainty that land, intended to be used for purposes other than those originally prescribed in a lease, is free of contamination.

15.5. In relation to public knowledge about sites that are, or might be, contaminated, the committee heard sufficient evidence to convince it of the desirability of making the maximum amount of information available to the community and investors about the condition of any particular property in the A.C.T. Given the distress caused to residents of properties found to be contaminated, and the distress caused to other residents in their vicinity, the committee considers the Government should introduce specific legislation to address the problem of contaminated sites.

63 Environmental Research and Information Consortium Pty Ltd

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Recommendation 3: The committee recommends that the Government introduce specific legislation to address the issue of contaminated sites rather than wait for integrated environmental legislation.

15.6. The committee accepts the validity of the following statement taken from the Government’s Strategic Plan for Contaminated Sites Management: A central repository of data [about contaminated sites] will present an overall picture of the extent of possible contamination in the Territory and enable all Government departments and the general public to add to the information base and to access it on a controlled basis... a listing of sites would also give the community information and improved confidence.

15.7. The committee understands that care needs to be taken in defining the circumstances in which any particular site might be assessed as a ‘possibly’ contaminated site. There should be a requirement for reasonable grounds to exist before a property is placed into this category. In terms of matters brought to the committee’s attention during this inquiry, it would seem reasonable, at this stage, for all of the former sheep dip sites to be shown as ‘possibly contaminated’ and hence put on ‘a central repository of data’. Also, all sites that are subject to pollution control licences should appear on the register.

Recommendation 4: The committee recommends that the Government establish a contaminated sites register.

15.8. The committee accepts the viewpoint of valuers appearing before it that information about contamination should not be confined to a contaminated sites register but also should be placed on the files pertaining to particular properties. Also, the committee accepts that the information should include, not only details of any contamination, but a record of what remediation was undertaken on the properties. The information would provide residents whose properties are, or might be, contaminated with that ‘clean bill of health’ (or clearance certificate) which many sought in representations before the committee. Further, the committee agrees with the Government’s intention, set out in the Government’s submission, to obtain independent confirmation that a particular site has been remediated.

15.9. In addition, the committee agrees with the Government that legislation dealing with contamination should prescribe that a person or firm found to be contaminating must meet the costs of assessment and necessary remediation, and that the Government should have the power to order the cessation of serious polluting or contaminating activities.

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Recommendation 5: The committee recommends that the Government legislate to ensure that information about contamination and remediation is entered on Building Files and Land Use approvals, so that it is permanently available. The information should include a record that a particular property has been remediated to a specified standard, and by what means. Further, the information should include independent confirmation that the remediation has been completed satisfactorily, and this information be included as a clearance certificate.

In addition, the Government should introduce legislation: (a) to require that a person or firm found to be contaminating must meet the costs of assessment and necessary remediation and (b) to give the Government the power to order the cessation of serious polluting or contaminating activities

15.10. While supporting the concept of making information available to a local community affected by contamination, Government officials who appeared before the committee stated that an information package had not so far been developed. In view of the distress caused to residents living on, or near, contaminated sites - and in view of the general public interest in knowing where contamination exists and how it is being handled - the committee considers that an information package should be prepared.

Recommendation 6: The committee recommends that the Government should quickly prepare an information package to be made available to all residents of an area affected by contamination. The information package should include information about the definition of contamination being used by the Government, information about the membership and function of the steering committee to advise on contaminated site management (A.C.T. wide) and on the local committee oversighting the way that contamination in a specific area is handled [see below], a copy of the Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites, a copy of the Government’s Strategic Plan for Contaminated Sites Management, a copy of the Auditor General’s report Management of Former Sheep Dip Sites, and a copy of this report by the Standing Committee on Planning and Environment.

15.11. Some residents told the committee they were concerned about the confidentiality provisions in the Government’s deed of release (containing the Government’s offer of buyout to a leaseholder whose property is contaminated). The committee considers that information about the agreed market value of a contaminated property, and associated disbursements, properly belongs in the public domain. While the committee appreciates that an individual leaseholder may wish to keep some financial details of the deed of release confidential, the committee considers such constraints upon public release should not originate on the Government’s side. The committee was told that the property market needs this sort of information if it is to properly evaluate the effects of contamination and remediation upon the A.C.T. property market.

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Recommendation 7: The committee recommends that the Government delete the requirement for confidentiality in the deed of release between Government and a leaseholder whose property is affected by contamination.

15.12. In relation to public input into tests for contamination and remediation plans, the committee considers that much of the concern expressed by residents about the action of officials would have been eased had the residents been included, at an early stage, in deliberations about the testing and remediation programs. The inclusion of residents should apply, not just at the local level dealing with a specific area of contamination, but across the A.C.T. The committee considers that wider public understanding of contamination problems and deeper confidence in the way contamination is being handled, will follow from community participation in the body making recommendations to Government about the broad handling of contamination.

Recommendation 8: The committee recommends that the Government establish (a) a steering committee to oversight, and to advise the relevant Minister on, contaminated site management in the A.C.T., comprising community, Government and scientific representatives; and (b) a local oversight committee to deal with specific instances of contamination, to include local residents as well as Government officials and (where necessary) appropriate scientists. This local committee should be closely involved in decisions about remediation plans.

15.13. In relation to remediation, members of the committee were disturbed to learn that the three Theodore properties bought by the Government (two purchased in November 1994 and one purchased in February 1995) have not been remediated. The consultant’s final report on remediation strategies for these Theodore properties was summarised in an earlier chapter of this report. It sets out three remediation options and recommends the option involving removal of all soil around the homes - though not their demolition. The consultant’s report is dated August 1995. The consultant’s report suggests that advice given by Government officials to a number of Watson residents , namely that their homes will have to be demolished, might be premature.

15.14. The committee is concerned about remediation plans that involve bulldozing residences. The committee considers the Canberra community would want to be certain that all other options had been carefully considered before this option is chosen. In this regard, the committee particularly notes the statement in the Guidelines for the Assessment and Management of Contaminated Sites that ‘0.5m depth of clean soil is unlikely to be penetrated with normal gardening activities’ and that ‘the reduction of exposure from well-maintained grass is at least 80%’.

15.15. The fact that no remediation of any land has commenced means that residents remain deeply uncertain about what is involved in remediation and

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hence, might have been encouraged to accept buyouts rather than to remain on their blocks.

Recommendation 9: The committee recommends that the Government urgently announce its remediation plans for contaminated land, identifying the mechanisms and the timetable for remediation as well as how contaminated soil is to be transported and stored. In the case of contaminated land at Theodore and Watson, the committee considers the Government’s remediation plans should be announced during August 1996.

15.16. From information obtained during its inquiry, the committee now appreciates that residents living near properties being remediated for arsenic contamination may have a greater exposure to ill effects than they have before the land is remediated. This is because of the likelihood that contaminated soil and dust will travel more widely due to soil being disturbed, air movement, removal of vegetation and possibly the demolition of houses.

15.17. As a result, nearby residents will suffer a reduced amenity on two counts. One is health and the other is amenity. The latter involves loss of neighbours and established treescape, et cetera. The committee considers the Government should consider whether some reduction of Government rates is warranted for the period of remediation.

Recommendation 10: The committee recommends that the Government consider providing some financial recognition of the reduced amenity flowing from remediation works as they affect residents living on, or near, properties being remediated. One possibility is some alleviation of Government rates for the period of remediation.

15.18. In relation to arsenic contamination, the committee considers unwise the Government’s peremptory decision to rescind buyouts at Watson, on the basis that high arsenic readings on the properties might be due to naturally occurring arsenic rather than to arsenic from former sheep dips. The Government’s sudden and unexpected decision not only financially inconvenienced a number of Watson residents but also added to community anxiety about the health effects of arsenic. The committee appreciates the fact that the Guidelines do not address the health consequences of living on, or near, naturally occurring arsenic. It seems that this issue is a new one for Governments across Australia. The committee understands that it will take some time to establish whether naturally occurring arsenic does have damaging health effects on humans.

Recommendation 11: The committee recommends that, until it is proven to be unwarranted, the Government use the same investigation levels and adopt the same contamination and remediation policies for sites with naturally occurring arsenic as it does for sites containing arsenic from former sheep dips.

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15.19. The committee appreciates the particular problems existing for residents whose properties, when tested for arsenic, disclose test results above the environment investigation of 20 ppm but below the health investigation level of 100 ppm. Some residents described this situation as being sort of ‘half-toxic’, in that the results may stigmatise a property while being too low for a Government buyout. It was suggested that the Government could fund the removal of topsoil on these properties and provide clean soil.64 The committee is unsure, at this stage, of the best way that Government can assist these leaseholders. At the very least, the Government should do more to publicise the fact that the investigation levels it is using indicate the potential for contamination to be present rather than the fact of contamination.

15.20. In relation to what type of development should be permitted on remediated land, the committee understands the deep anxiety of residents of both Theodore and Watson that the Government might permit a denser form of residential settlement after remediation is complete, than it allowed before. The committee is aware that the nature of subsequent development depends in part on which remediation option is chosen. The consultant’s report on remediation options for the Theodore properties concluded that the cheapest option was to construct ‘exposure barriers’ such as ‘clean fill [or] a surface sealing system such as bitumen or concrete’. However, if residential development is to be permitted on the remediated sites, then the consultant considered the preferred option was to remediate all contaminated soil except that below existing houses.

15.21. It seems to the committee that resident anxiety will quickly be alleviated by a prompt Government announcement that it will permit only the same type of development on a remediated site as was allowed before contamination was discovered.

Recommendation 12: The committee recommends that the Government quickly announce that it will permit only the same residential density and character on remediated land as was permitted before contamination was uncovered.

15.22. In relation to the financial details of buyouts, the committee was told by some residents that they would feel happier if negotiations about buyouts and/or remediation were handled by an independent arbitrator rather than by Government officials directly, as happens at present. Other residents favoured the present approach. On balance, the committee favours continuing with the present approach, because it permits greater flexibility in meeting different personal circumstances. By contrast, residents would have to accept the result of a tribunal (that is, either take it or leave it). However, the committee acknowledges that there may be a case for using an independent arbitrator if direct negotiations break down.

64 Transcript of Proceedings p102 (Mr Dunstone)

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Recommendation 13: The committee recommends that the Government continue its present practice of directly negotiating the financial details of buyouts and/or remediation with affected residents, rather than utilising the services of an independent arbitrator. However, the Government should utilise the latter in the circumstances where direct negotiations with a leaseholder break down.

15.23. In relation to possibly showing the cost of contamination in the financial accounts of the A.C.T., the committee is interested in the way that accrual accounting, now being introduced in all Government agencies, might facilitate the identification of public assets - and liabilities such as contaminated land. The committee expects that the Government, in recording the value of its land asset, will also record any contingent liability brought about by contamination and the consequent cost of remediation. The committee requests that the Government address this issue in its response to this report.

15.24. In relation to the Government’s administrative arrangements in relation to handling contamination issues, the committee was disturbed to learn during the inquiry that the inter-departmental committee on contaminated sites does not meet often and, in 1995, was largely restricted to the then Department of Environment, Land and Planning and the Department of Health: The committee was told that: ‘Even Urban Services have only a small role to play until there is actual remediation and it is proposed that soil be moved somewhere’.65 The committee notes that recent changes to Government administration have brought the Contaminated Sites Unit into the Urban Services portfolio (which is an improvement), but this has separated it from the officials handling the proposed environment legislation. The evidence given to the committee (including the findings of the Auditor General) indicates that officials handling contaminated sites have not been in close touch with officers of the Attorney General’s Department. There appears to be scope to improve the coordination of the various Government bodies involved in handling contamination and remediation issues.

15.25. Further, there may be a need to boost the human and organisational resources available within Government to address these issues. Members of the committee appreciate the emotional and physical demands made upon Government officials by the unexpected nature of contamination problems in recent years. The committee requests that the Government respond to the issue of appropriate administrative resources, and their coordination, in its formal response to this report.

15.26. In addition, the committee considers that decisions about the way that contamination problems are handled and which remediation strategies are

65Ibid p66 (Ms Webb, then Department of the Environment, Land and Planning)

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appropriate should be made at the topmost level, that is, by the relevant Minister.

15.27. In relation to the Commonwealth’s prior responsibility for land management in the Territory, the committee appreciates the point made by a several witnesses that the Commonwealth Government was responsible for land management during the time that, for example, the sheep dips operated and was the body responsible for releasing that land for residential development. The committee considers it reasonable for the Commonwealth to assist in meeting the cost of remediation in such cases.

Recommendation 14: The committee recommends that the A.C.T. Government seek Commonwealth financial assistance to fund remediation and compensation where it can be shown the Commonwealth was the body approving residential development on contaminated land.

15.28. Finally, the Government considers that most of the above recommendations fit into what might be termed a Management Protocol for the handling of contamination and remediation issues in the A.C.T. Such a Protocol, based on these recommendations, might guide the Government in its handling of contamination issues and provide the Canberra community with some certainty about the processes being used to locate and manage contamination.

Recommendation 15: The committee recommends that the Government formalise a Management Protocol for Handling Contamination and Remediation in the A.C.T., incorporating (among other matters) the recommendations of this report.

Michael Moore Chair 24 June 1996

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APPENDIX A - LIST OF WITNESSES 5 May 1995

Associate Professor Ken Howard (University of Toronto, and Visiting Fellow at the ANU’s Centre for Resource and Environmental Studies)

13 June 1995

A.C.T. Government - Ms Webb (Director, Environment and Culture Division, then Department of the Environment, Land and Planning) and Ms Jamieson (Acting Director, Contaminated Sites Unit of then DELP)

Mr Ahmad

Australian Institute of Valuers and Land Economists, ACT Division - Mr Sirel (President)

Belconnen Community Council - Mr Minto, Dr Watson and Mr van der Vliet

Mr Brown

Mr Martin

Mr McDonnell

Professor Moore and Dr Stewart (toxicologists advising the Government and residents)

1 September 1995

A.C.T. Government - Ms Webb (Director, Environment) and Mr Bateson (Manager, Contaminated Sites Unit)

Conservation Council of the South-East Region & Canberra (Inc.) Mr Darlington and Ms Grinter (for the National Toxic Network)

Mr McCann (McCann and Associates)

29 March 1996

A.C.T. Government - Mr Nicolson (director, parks and conservation, department of urban services) and Mr Bateson (manager, contaminated sites unit)

Mr Brake

Mr Conroy

Mr Dunstone

Ms Gillard

Ms Grinter (national toxic network)

Dr Howden

Mr O’Brien

Ms O’Connell

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3 May 1996

A.C.T. Government - Mr Turner (Chief Executive, Department of Urban Services), Mr Nicolson (Director, Parks and Conservation Service, DUS) and Mr Bateson (Manager, Contaminated Sites Unit)

Ms Grinter (National Toxic Network)

Watson residents: Ms O’Connell, Ms Hilldyard, Ms Law, Ms Lean, Mr McLenaghan, Mr O’Brien

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APPENDIX B - LIST OF SUBMISSIONS

1995 submissions

ACT Government (Contaminated Sites Unit of the former Department of the Environment, Land and Planning)

Mr Ahmad (a Theodore resident)

Australian Democrats ACT

Australian Institute of Valuers and Land Economists (ACT Division)

Belconnen Community Council [BCC]

Mr Brown (a Theodore resident)

Conservation Council of the South-East Region and Canberra (Inc.)

Minders of Tuggeranong Homestead [MOTH]

Mr & Mrs McDonnell (Theodore residents)

Watson Community Association

1996 submissions

Mr & Mrs Brake

Mr & Mrs Conroy

Mr Dunstone

Ms Gillard

Mr & Mrs Hildyard

Dr Howden

Mr & Mrs Lean

Mr & Mrs McCutcheon

Ms McKenzie

National Toxic Network (Ms Grinter), two submissions

Mr & Mrs O’Brien

Ms O’Connell and Mr Allnutt

Mr O’Neill

C Pearson, R & T Fletcher

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submission signed by Mr & Mrs O’Brien, Mr & Mrs McCutcheon, A McCutcheon, Mr & Mrs Hildyard, Mr Thompson, Ms Kyburz, Mr & Mrs Law, Mr & Mrs Sutton, Ms O’Connell, Mr Allnutt, Dr McKenzie, Ms Rendle-Short, Mr Howlen, Ms Sharman, Mr & Mrs Brake, Mr Caputo, Mr & Mrs McNarn, Mr Fletcher, Ms Pearson, Ms Gillard, Mr & Mrs Conroy, Ms Fahrlander,, Mr Kennedy, Mr & Mrs Wilkin, Mr & Mrs Poulakis, Mr & Mrs Hyblewski, Mr & Mrs McLenaghan, Mr & Mrs Lean, Ms Berryman

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