Note: On 4 July 2020, the Environment Protection Authority issued notice No. 20204440 to amend Direction 10 (Item 1b Submission Date)
Note: On 8 August 2019, the Environment Protection Authority issued notice No. 20194429 to amend this management order.
Environment Protection Authority
Management order
(Section 14 of the Contaminated Land Management Act 1997)
Order Number 20181401; Declaration Number 21089; Area Number 3183
Service: By registered post
Orica IC Assets Pty Ltd (010 767 263)
Attention:
The Proper Officer
Level 3, 1 Nicholson Street
East Melbourne
Victoria 3002
A. Orica IC Assets Pty Ltd (ACN 010 767 263) (Orica) previously known as Incitec Ltd operated an ammonium nitrate facility at Lot 3 DP 234288 known as 15 Greenleaf Road, Kooragang Island NSW (the site). The site commenced production of ammonium nitrate for the purpose of fertiliser manufacture in 1969 and has operated under a number of related entities including Orica Australia Pty Ltd (from 2003), Industrial Chemicals Limited (from 2002) and Incitec Ltd.
B. The site is currently owned by Orica IC Assets Pty Ltd (ACN 010 767 263).
C. From approximately 1969 until 1994 a solution containing arsenic was used to scrub carbon dioxide from the process gas stream prior to the production of ammonia. During this period spent arsenic waste was disposed of into an arsenic disposal pit in the north-west of the site.
D. Groundwater is contaminated with arsenic at concentrations significantly exceeding the trigger values for the protection of aquatic ecosystems in the Australian and New Zealand Guidelines for Fresh and Marine Water Quality, Australia and New Zealand Environment and Conservation Council and Agriculture and Resource Management Council of Australia and New Zealand (ANZECC/ARMCANZ 2000).
E. Arsenic has migrated off the site in groundwater and may continue to migrate. The contaminated groundwater has impacted on the quality of waters and has contaminated other landholdings.
F. On 16 November 2005 the Environment Protection Authority (EPA) declared the site as a remediation site (Notice No. 21089) under the Contaminated Land Management Act 1997 (the Act) then in force.
G. On 5 December 2005 the EPA agreed to a Voluntary Remediation Proposal (Notice No 26061) by Orica under the Act then in force. The principal features of the proposal included the implementation of source remediation activities, assessment of groundwater remediation options and a desktop study and bench scale trials of Permeable Passive Reactive Barrier (PPRB) material and techniques. The proposal was completed on 8 December 2006.
H. Source remediation activities undertaken at the site in 2005 included the removal of arsenic contaminated soil and sludge from the former sludge disposal pit to the depth of the groundwater table, chemical stabilisation of removed material as required and offsite disposal of the treated waste at a licensed landfill.
I. On 8 December 2006 the EPA agreed to a second Voluntary Remediation Proposal (Notice No 26093) by Orica under the Act then in force. The principal features of the proposal included the preparation of an environmental management plan, monitoring of the migration of arsenic in groundwater, validation of a conceptual site model and implementation of a pilot trial to assess the practicability of arsenic immobilisation/ adsorption.
J. On 19 November 2008 the EPA agreed to a third Voluntary Remediation Proposal (Notice No 26109) by Orica under the Act. The proposal involved further work to develop two short listed options for remediation of the site, which were in-situ treatment of groundwater and extraction/ex-situ treatment of groundwater. The principal features of the proposal were the assessment and design of a hydraulic containment and groundwater treatment system to reduce the transport of arsenic in groundwater and assessment of in-situ treatment options.
K. On 1 July 2009 the Contaminated Land Management Amendment Act 2008 commenced and substituted new provisions for the management of contaminated land that are currently in force. The declaration of the site as a remediation site in 2005 is deemed to be a declaration of the site as significantly contaminated land under the current Act. Further, the second and third voluntary remediation proposals that had not been completed on 1 July 2009 were each taken to be an approved Voluntary Management Proposal (VMP) for the purposes of the current Act. These two proposals were both completed on 13 December 2010.
L. On 13 December 2010 the EPA approved a fourth VMP (Notice No 20101723) under the Act. The VMP involved a field trial of in-situ geochemical fixation of arsenic in groundwater.
M. A report titled Final Performance Monitoring Report, Field Trial for In-situ Geochemical Fixation of Arsenic; Kooragang Island dated 30 April 2013 was prepared on behalf of Orica.
N. A report titled Arsenic Groundwater Remediation – Feasibility Assessment dated 30 August 2013 (Orica 2013) was prepared by Orica to re-assess the feasibility of five short-listed options for the remediation of arsenic in groundwater at the site. The assessment included a bench-scale laboratory treatability testing program to assess the performance of zero-valent iron to treat arsenic in groundwater.
O. As agreed with the EPA, Orica engaged an independent expert to undertake a review of the process undertaken by Orica and its consultants to assess options for managing arsenic in groundwater. The findings of the report are provided in Orica Kooragang Island Groundwater Remediation Feasibility Assessment, Independent Review of Assessment Process prepared by GHD dated March 2014.
P. On 28 July 2014, EPA issued Orica with Management Order No. 20131407. This required Orica to carry out the following:
1. Develop a workplan to determine a suitable remedial method to prevent the further offsite migration of arsenic in groundwater.
2. Prepare a Remedial Action Plan (RAP) for the selected remedial method.
3. Implement the proposed remediation works, including; obtaining consents from relevant planning authorities, preparing a Long Term Environmental Management Plan (LTEMP), operating and maintaining the installed system, and providing the EPA with a validation report of the completed works.
4. Develop and implement a groundwater monitoring program.
5. Update an existing Arsenic Environmental Management Plan prior to the commencement of operation of the remediation system to address risks to affected land users, landowners and stakeholders.
6. Prepare and provide to the EPA a communication strategy to ensure key stakeholders are kept informed on the progress of the remedial work.
Q. The selected remedial method is a hydraulic containment system employing a low-permeability barrier wall and cap. This method is described in “Orica Kooragang Island: Arsenic Management Order: Remedial Action Plan” (8 July 2016), prepared by Golder Associates.
R. Orica applied to the NSW Department of Planning and Environment (DPE) for planning approval to install a hydraulic containment system on 20 July 2016. The Environmental Impact Statement for the project was submitted to DPE on 16 February 2017.
S. The Environmental Impact Statement was publicly exhibited between 2 and 31 March 2017.
T. In April 2017, as part of the consultation process for obtaining planning consent for the hydraulic containment system, the DPE advised Orica that the EPA and DPE will require financial assurance for the long-term management of the system in accordance with Division 6A of the Act. This strategy was formalised in the Request for Response Submissions that was sent to Orica by DPE on 10 April 2017.
U. On 2 February 2018, the EPA met with Orica and DPE to discuss Orica’s financial assurance proposal as well as draft conditions of consent. The EPA has powers under the Act to require financial assurance for sites that are regulated under the Act. The EPA is proceeding with such an option by way of this Management Order (No. 20181401).
V. Management Order No. 20131407 is to be revoked following the issue of this Management Order (No. 20181401).
W. A number of actions from Management Order No. 20131407 remain ongoing or incomplete, including the implementation and validation of the remedial strategy, biannual groundwater monitoring, and communications with relevant stakeholders.
X. This Management Order (no. 20181401) incorporates incomplete and ongoing actions from Management Order No. 20131407.
Y. Under section 14 of the Act, the EPA may issue a management order to one or more appropriate persons. The EPA may choose a person who is responsible for the significant contamination of the land as an appropriate person (s 13 of the Act). Orica is responsible for the significant contamination of the land because it carried on activities on the land that utilised arsenic and it caused the contamination by its operation of the ammonium nitrate facility which leaked arsenic into the soil and groundwater. I determine Orica is the appropriate person to be the subject of this Management Order.
Z. Prior to the making of this Management Order, the EPA considered all submissions made as to whether a management order should be issued.
Land to which this Management Order applies
This Management Order applies to the land as identified on the declaration of remediation site number 21089 made on 16 November 2005 as amended by notice number 20184410 on 23 June 2018 as listed in the following table (the Land):
|
Description |
Address |
|
Lot 2 DP 234288 |
15 Greenleaf Road, Kooragang Island NSW |
|
Lot 3 DP 234288 |
15 Greenleaf Road, Kooragang Island NSW |
The EPA declared the contamination of the Land to be significant enough to warrant regulation. The EPA continues to believe that the Land is contaminated and that the contamination is significant enough to warrant regulation. In particular:
· Groundwater is contaminated with arsenic at concentrations significantly exceeding the ANZECC/ARMCANZ 2000 guidelines for the protection of aquatic ecosystems;
· Arsenic contaminated groundwater has migrated off the site and may continue to migrate. The contaminated groundwater impacts upon the quality of the waters and is contaminating adjacent land; and
· There are potential human and biota exposure pathways to the contaminants.
Under section 14(1) of the Act, Orica Australia Pty Ltd (ACN 004 117 828) is directed to do each of the following in relation to the Land:
1. Engage a Site Auditor accredited under part 4 of the Act
a) A Site Auditor is to be engaged to undertake an independent review of the implementation and validation of the works described in “Orica Kooragang Island: Arsenic Management Order: Remedial Action Plan” (8 July 2016)” (“the remedial works”).
b) The Auditor is to provide a Site Audit Statement (SAS) and Site Audit Report (SAR) following completion of the remedial works. The scope of the Audit is to include consideration of the suitability of the LTEMP to be prepared for the hydraulic containment system.
2. Implement works described in “Orica Kooragang Island: Arsenic Management Order: Remedial Action Plan” (8 July 2016).
a) Apply for necessary approvals from the relevant consent authorities for hydraulic containment works described in the RAP prepared by Golder Associates (8 July 2016). This may include approval from the Department of Planning and Environment, Newcastle City Council, NSW Office of Water and the EPA.
b) Construct the hydraulic containment system in accordance with the design specifications and requirements detailed in the RAP.
c) Prepare and submit to the EPA a validation report of the hydraulic containment system demonstrating that the proposed remediation infrastructure has been installed to the design specification.
d) Prepare a Long Term Environmental Management Plan (LTEMP) for any operational phase of the proposed hydraulic containment system and provide a copy to the EPA. The LTEMP will incorporate any long-term requirements for the ongoing monitoring, maintenance and restrictions on site activities permitted to be undertaken in the vicinity of the hydraulic containment system. The LTEMP should be revised based on monitoring results on a periodic basis with EPA approval.
e) Maintain the installed hydraulic containment system in a manner to achieve the remediation objective and in accordance with the LTEMP.
3. Groundwater Monitoring Program
Orica is to update the Groundwater Monitoring Program (GMP) for arsenic contamination and continue to implement routine groundwater monitoring at the site. The updated GMP must fit within the framework of the LTEMP described in item 2(d).
a) Results of groundwater sampling are to be provided to the EPA within eight weeks of completion of the sampling.
b) An annual summary report of the sampling is to be prepared, including commentary on any trends observed, implication of those trends on the remedial works and comparison of the results to ANZECC/ARMCANZ trigger values or other criteria agreed by the EPA. The report is to be submitted to the EPA within twelve weeks of completion of the final annual sampling round as specified in the GMP.
c) The GMP is to be reviewed every two years and the EPA is to be advised of any recommended changes. The GMP may be revised as required, with the EPA’s approval.
4. Update of Arsenic Environmental Management Plan
The existing Arsenic Environmental Management Plan must be updated prior to the commencement of operation of the hydraulic containment system to address risks to affected land users, landowners and stakeholders and should include the following as a minimum:
a) Names and contact details of persons to be contacted including Orica personnel and emergency authorities in the event of any offsite incident;
b) Names and contact details of persons to be contacted in the event of any emergency onsite or offsite; and
c) Procedures to be implemented in the event of arsenic contamination encountered in soil or groundwater offsite.
5. Financial Assurance
a) A financial assurance, in favour of the EPA and in the form of an unconditional and irrevocable bank guarantee, for the amount to be determined by the EPA in accordance with condition 5(b) below, must be provided to the EPA. The financial assurance is required to secure or guarantee funding for or towards the ongoing monitoring and maintenance of the hydraulic containment system in accordance with the requirements of the LTEMP. The financial assurance must contain a term that provides that any monies claimed can be paid to the EPA.
b) The EPA will determine the amount of financial assurance following receipt of the independent assessment of costs required by this clause. The amount of the financial assurance once determined will be imposed by a variation of this Management Order.
In accordance with section 42D(3) of the Act, Orica is required to obtain and submit to the EPA, 6 months following the submission of the SAR, an independent assessment of the cost associated with the ongoing monitoring and maintenance of the hydraulic containment system in accordance with the requirements of the LTEMP. The independent assessment of cost must:
i. be a reasonable estimate of the total likely costs and expenses that may be incurred in carrying out the ongoing monitoring and maintenance of the hydraulic containment system in accordance with the LTEMP;
ii. be audited by a Registered Company Auditor who is independent from and free of conflicts of interest with Orica so as to be able to exercise objective and impartial judgement in relation to the cost assessment; and
iii. document all cost inputs, representations and assumptions used in preparing the estimate.
c) Orica must, subject to Orica’s ASX continuous disclosure requirements, provide the EPA with reasonable notice of any proposed corporate restructure, scheme of arrangement or appointment of an external administrator that will or may directly or indirectly affect Orica’s short or long-term ability to fund the ongoing monitoring and maintenance of the hydraulic containment system in accordance with the requirements of the LTEMP.
d) The EPA may claim on or realise the financial assurance in accordance with section 42G of the Act if the EPA exercises its power under section 42F(1), in order to undertake the ongoing monitoring and maintenance of the hydraulic containment system in accordance with the requirements of the LTEMP.
6. Communication Strategy
The EPA have been provided with a Communications Strategy (Orica Communication Strategy: Arsenic Management Order No. 20131407, 10 December 2014) for the arsenic remedial program. The Communications Strategy:
a) Identifies key stakeholders, including the Orica Kooragang Island Community Reference Group (CRG), industrial neighbours, Newcastle City Council (NCC) and neighbouring communities;
b) Utilises a range of different communication measures to maximise access to information; and
c) Includes scheduled communication activities to update stakeholders of progress at regular intervals.
Orica are to continue to implement this communication strategy to ensure key stakeholders are kept informed on the progress of the remedial work under this Management Order.
7. All submissions to the EPA must be:
· posted to: Director Contaminated Land Management
PO Box A290, Sydney South, NSW 1232, or
· emailed to: contaminated.sites@epa.nsw.gov.au
8. Carry out directions consistent with EPA Guidelines
Carry out the actions required to be carried out by this Management Order consistent with any relevant guidelines made or approved by the EPA under s 105 of the Act.
9. Public access to information
Make available for inspection by any person, free of charge, any report on the actions taken under this Management Order, and provide a copy of such a report to any person for a reasonable fee.
10. Timing of the submission of reports required by this Management Order
The reports required by this Management Order must be submitted to the EPA in accordance with the following table as may be varied from time to time by the EPA in writing.
|
Item |
Report |
Submission Date to EPA |
|
1b |
Site Audit Report and Site Audit Statement |
Six months following submission of Item 2c |
|
2d |
Prepare LTEMP |
Two months prior to planned completion date for the installation of the proposed system. |
|
2c |
Prepare and submit to the EPA a validation report |
Three months following the completion of the construction of the hydraulic containment system. |
|
3a |
Results of sampling |
Within eight weeks of the completion of sampling |
|
3b |
Summary report of the groundwater sampling results including commentary |
Annually (within twelve weeks of the final sampling event for each year) in accordance with the GMP. |
|
4 |
Updated Arsenic EMP |
Two months prior to planned completion date for the installation of the proposed system. |
|
5b |
Financial Assurance Independent Assessment |
Three months following completion of Item 1b |
11. Timing of actions required by this Management Order
The actions required by this Management Order must be completed in accordance with the following table as may be varied from time to time by the EPA in writing.
All necessary steps are to be taken to ensure the remedial work is implemented and commissioned within 12 months after receiving regulatory approvals.
|
Item |
Action |
Completion Date to EPA |
|
1a |
Engage a Site Auditor accredited under Part 4 of the Contaminated Land Management Act 1997 |
Two months prior to the commencement of construction of the proposed system. |
|
2b |
Undertake proposed works in accordance with design specifications and requirements in the RAP |
Within 12 months of receiving regulatory approvals and landowner consent for the work |
|
2d |
Operate and maintain the installed system or process in a manner to achieve the remediation objective and in accordance with the LTEMP |
In accordance with the LTEMP, with periodic review of operation and monitoring. |
|
3a, 3b |
Undertake groundwater monitoring in accordance with the updated GMP |
In accordance with the updated GMP |
|
6 |
Implement activities in the communications strategy |
In accordance with the communications strategy schedule |
[SIGNED]
3 August 2018
ARMINDA RYAN
Director Contaminated Land Management
Environment Protection Authority
(by delegation)
NOTE:
Cost Recovery
Section 34 of the CLM Act allows the EPA to recover its costs in connection with the issue of, monitoring actions of and seeking compliance with a remediation order.
Information recorded by the EPA
Section 58 of the CLM Act 1997 requires the EPA to maintain a public record. A copy of this Management Order will be included in the public record.
Information recorded by councils
Section 59 of the Act requires the EPA to give a copy of this Management Order to the relevant local council. The council is then required to note on its planning certificate issued pursuant to s 10.7 of the Environmental Planning and Assessment Act 1979 that the land is currently subject to a management order. The EPA is required to notify council as soon as practicable when the Management Order is no longer in force and the notation on the s 10.7 certificate can be removed.
Relationship to other regulatory instruments
This Management Order does not affect the provisions of any relevant environmental planning instruments which may control the land on which the land is located or provisions of any other environmental protection legislation administered by the EPA.
Guidelines made or approved under section 105 of the CLM Act.
All the directions in this Management Order must be carried out consistent with guidelines made or approved under section 105 of the CLM Act. See http://www.environment.nsw.gov.au/clm/guidelines.htm.
Appeals against this decision
You can appeal to the Land and Environment Court against this Management Order. The deadline for lodging the appeal is 21 days after you were given notice of this Management Order.