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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-04-06 Daily Xml
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CONTAMINATION NOTIFICATION PROTOCOLS

Adjourned debate on motion of Hon. J.M.A. Lensink:

That the Statutory Authorities Review Committee inquire into and report on the operations of the Environment Protection Authority, particularly regarding public notification protocols of contamination.

(Continued from 23 March 2011.)

The Hon. CARMEL ZOLLO (16:00): I indicate that the government does not support this motion, for the following reasons:

the motion appears to be informed by inaccurate media reports that do not reflect the high standard of site contamination legislation and regulation in South Australia;

the government believes there is no need for an inquiry by the Statutory Authorities Review Committee in addition to the current review by the Auditor-General into the implementation of the site contamination legislation;

the motion makes assumptions about the roles and responsibilities of the EPA and councils in relation to site contamination that are incorrect and inconsistent with site contamination legislation; and

the motion implies links between contamination incidents in different geographic areas which do not exist.

It is noted that the Hon. Ms Lensink has relied heavily upon the daily newspaper to inform her motion, and I take this opportunity to correct a number of points she raised.

First, let me remind members that, in July 2009, it was this government that introduced legislation to manage site contamination, legislation that includes a mandatory duty to report harm to groundwater. South Australians are far more protected against the risks posed by groundwater contamination as a result of this government than they ever would be under a government led by the Liberals.

The Minister for Environment and Conservation is advised that the EPA has not known about risk to Edwardstown residents for 18 months, as has been repeatedly claimed by the opposition spokesperson, who is obviously not one to let the facts get in the way of a good story. The Minister for Environment and Conservation is advised that, in August 2009, the EPA, as the regulator, was notified of contamination to groundwater in accordance with the Environment Protection Act 1993 by Colonial First State consultants. The minister is advised that the groundwater assessment at that time was limited to the Hills site.

At the request of the EPA, further work was undertaken by the company involved. Specifically, a series of groundwater investigation wells were drilled and installed in an attempt to delineate the contaminant plumes over several stages. Analysis of samples collected from these wells progressively identified further off-site groundwater contamination. The risk assessments at this time showed no risk to human health.

Due to the increasing number of data gaps, the Minister for Environment and Conservation is advised that the EPA requested the company involved to ensure that the contaminant plume be fully delineated and a scientifically rigorous risk assessment report prepared. As a result of this additional work, the EPA was notified of a substantial groundwater plume extending well off site on 14 February 2011 in an area where there were registered bores. On 14 February 2011, the EPA was also presented with a risk assessment report that concluded that the concentration of the PCE had the potential to result in a risk to human health. The report recommended an assessment of indoor air quality.

It is grossly misleading to suggest that the government was aware of any health risk for 18 months—a bold-faced fabrication, I would have to say, by the opposition, which is more than happy to put fear, anxiety and concern in the community for what appears to be cheap political purposes.

The Hon. J.M.A. Lensink: Terrible.

The Hon. CARMEL ZOLLO: I am glad that the honourable member has acknowledged that it is terrible. The Minister for Environment and Conservation is advised that, once the EPA was in receipt of information that referred to the potential for risk to human health, it sought expert advice from the Department of Health. Health confirmed the potential for a risk to human health and the EPA responded by advising persons living within a defined area to cease drawing water for any purpose. The minister is advised that the EPA has been in consistent communication with households in the identified area, with three letters being sent to them since February this year.

The EPA has received positive feedback from those in the area, and those with specific concerns have had them addressed through direct discussions with EPA staff. I note the honourable member's comments relating to SA Health's advice that all South Australians should not use bore water until their bore is tested, and her statement that it is a butt-covering exercise. This is not a butt-covering exercise: it is advice provided to all people in all areas of South Australia in urbanised and non-urbanised areas, and it is not necessarily related to assessing groundwater due to industrial activity.

Groundwater in non-urbanised areas can contain substances that are not fit for certain uses. This may be due to naturally occurring chemicals such as arsenic or selenium or the salinity of the water drawn from the aquifer. It is the responsibility of the individual who wishes to use bore water to determine if that water is fit to use. If someone is new to an area it is still his or her responsibility. Secondly, to address the matters raised by the member in relation to Clovelly Park, the Minister for Environment and Conservation is advised that the EPA conducted extensive soil vapour and indoor air quality assessment in early 2009, as a result of which one apartment block was vacated.

The Department of Health provided advice that, based on the results of testing done, there was no human health concern to other tenanted properties in the neighbourhood. There is no basis upon which to claim that there was a failure to advise residents of any risk. Thirdly, there is no basis for concern regarding the spread of contamination from the former Hills site to Clarence Gardens and Melrose Park. As advised to Mitcham council on 21 February 2011, the groundwater flow direction is known to go from east to west.

Any contamination from the former Hills site will move in the direction of the groundwater flow. Therefore, further assessment upstream of the former Hills site is not considered necessary at this time. I would have to say that it is yet another example of unfounded fearmongering by the opposition. It is important to note that the EPA's role as the regulator is to oversee a system which creates an obligation on the polluter or the owner of a known polluted site to advise authorities, that is, ensure the responsible party does a risk assessment and, if risks are identified, manages the risks, including communicating with the affected community.

The new site contamination provisions were fully commenced in 2009 as part of a legislative reform package that not only amended the Environment Protection Act and its regulations but also made significant changes to the Land and Business (Sale and Conveyancing) Regulations to ensure that purchasers of land are made aware of potential site contamination. The government also foreshadowed changes to development legislation to ensure that contamination issues are considered appropriately as part of the development assessment process.

These reforms are on par with the best in Australia and the world. The legislation clearly sets out the roles and responsibilities in relation to site contamination, including liability for contamination and responsibility for notification to the regulator. The member asked: at what point should people be notified about potential hazards to their health? The EPA has developed a risk-based framework for the assessment and remediation of groundwater contamination to ensure the protection of human health and the environment.

The assessment component incorporates a risk assessment process. Where the risk assessment process identifies a risk to human health and/or the environment, remediation may need to be carried out and appropriate communication to affected persons undertaken. Putting it simply, the answer is that the EPA provides notification once it is aware that there is a potential for harm.

The Minister for Environment and Conservation is advised that how this communication occurs is decided on a case-by-case basis. Sometimes the EPA will take the lead, particularly if it has made a decision to advise restricted bore access; on other occasions the responsible company will undertake the communication. Some current examples include Monroe contacting residents in the Clovelly Park area to inform them of further monitoring that is going to take place soon; Origin having an open day in Port Pirie—this would have already occurred—to discuss next steps with the local community; and Colonial First writing to neighbouring residents informing them of the remediation that was taking place at the former Hills site very recently. Indeed, I assume that this has also taken place.

As outlined when referring to the EPA's actions in relation to the contamination at the former Hills site, the EPA works closely with the Department of Health, underpinned by a memorandum of agreement, to ensure that it has the correct expert health advice from which to determine next steps. It is important to remember that groundwater contamination does not automatically create a hazard to health. There needs to be actual or potential harm to a receptor (that is, people and/or the environment) before a health hazard is considered likely. With groundwater contamination there are many aspects to consider: the depth of the aquifer, whether the water from the aquifer is accessed in any way, the likelihood of vaporisation and other such variations.

The legislation minimises the risk of community exposure to contaminants by requiring notification of potential contamination in specified circumstances and by providing appropriate powers to the EPA to make sure contamination is appropriately managed by responsible parties when identified. This does not guarantee that all risks are identified, because there are limits to knowledge about historic contamination. To identify and assess all contaminated land parcels is cost-prohibitive and not practical. Members of the community retain some responsibility to protect themselves; for example, by not assuming groundwater is fit for use unless appropriately tested.

As the Minister for Environment and Conservation has stated, it is the government's expectation that the EPA continually review all of its practices to ensure their efficacy and appropriateness, and the promulgation of information to the public concerning contamination falls within this. There is no evidence before the parliament to suggest that the current practices of the EPA, which involve advising residents once it is established by advice from the Department of Health that a risk exists, are deficient.

As I have mentioned, the government does not support a motion to require the Statutory Authorities Review Committee of this parliament to review a matter on the basis of what is, at best, misinformation.

The Hon. M. PARNELL (16:14): Public notification of pollution or land contamination is not a new issue, but it has come to a head recently over a number of groundwater contamination issues, and, in particular, the recent incident at Edwardstown. There were earlier incidents at Beverley in the western suburbs and at Port Pirie, and many others. In fact, it has been estimated that, given the propensity of underground fuel tanks to leak, most former petrol station sites in Adelaide are, in fact, contaminated sites.

Questions that are often asked when these issues come to light include: when did the authorities know there was a problem, and how long did they wait until they notified residents or others? We have just had remarkable response from the government trying to put a positive spin on everything that has gone on and trying to convince us that it was all under control. The reality is that, once pollution goes into groundwater, we know that it is going to spread.

The Hon. Carmel Zollo referred to some amendments that were made to the law. We also had amendments made over 10 years ago to the Environment Protection Act in relation to groundwater pollution, precisely because we know it does not stay put. It moves. The previous incident was again at Edwardstown—it was the Bridgestone leak—and, in that case, no-one notified the EPA because they did not have to. Until it was proved that it had left their site, there was no legal obligation to notify. We changed the law to make it a legal obligation to notify the EPA of pollution incidents precisely because groundwater pollution moves around, so I do not accept the semantic argument that the Hon. Carmel Zollo has put forward. My recollection is that it was the Hon. David Wotton who changed the law back in about 1997.

If this reference is successful, there are some key questions that need to be answered—not just the two that I raised: when did they realise there was a problem, and why did they wait so long before notifying people? Some of the other questions that need to be addressed are:

What is the process that the EPA goes through in deciding whether or not to notify residents?

What is the EPA's risk assessment framework?

How confident does the EPA need to be before it gives notification to residents of a possible problem?

How does the EPA use the precautionary principle?

As members would know, the precautionary principle is enshrined in the EPA's charter, as it were. It is in the objects section of the Environment Protection Act (section 10). One of their obligations is 'to apply a precautionary approach to the assessment of risk of environmental harm...' If you look at any of the literature on the meaning of the precautionary principle, you will find that a common element of all definitions is that lack of scientific certainty is no excuse for not taking action. You do not have to have every t crossed and every i dotted before you take action and, in this case, the action we are talking about is the notification of residents of a potential problem.

The precautionary principle is why we should be taking action on climate change; it is why residents of various parts of Japan are being warned not to go certain places, not to eat certain foods, not to drink certain water. It is the precautionary principle. One of the questions that I think the EPA needs to be asked in this inquiry is: how do they balance the right of people to know about potential pollution problems that might affect them or that exist in their neighbourhood with the EPA's natural desire not to unnecessarily alarm people?

I expect that the EPA will relish the opportunity to come into parliament and explain how it operates, how it works and what its position is on these matters. They will relish the opportunity to put this on the public record. So I do not accept the Hon. Carmel Zollo's implication that, because this is an opposition motion, it must of necessity be a witch-hunt. This is a genuine inquiry into how pollution events are notified.

I should also note that this reference to the Statutory Authorities Review Committee nicely complements the bill that I introduced recently in relation to the EPA's public register. I just mention in passing that the EPA have notified me that they do not want to discuss my public register bill; they prefer me to deal with the environment minister. That is fine; that is a position they can take. I look forward to a robust questioning of the Environment Protection Authority when they do come before the Statutory Authorities Review Committee.

The Hon. R.I. Lucas interjecting:

The Hon. M. PARNELL: I also make the point that—the Hon. Rob Lucas asked for questions; I am doing my best to assist the committee. I have put a number of questions on the record. But I also make the point that much of the information that people have been critical of the EPA for not releasing was in fact legally and technically available, if only we knew to ask for it. That is the nature of the public register. A lot of these contamination documents were technically publicly available on the register, if only you knew to ask.

I note that the EPA has now put up a website devoted to the Edwardstown contamination issue. The latest addition to this web page (I checked it just before coming into the chamber) is a copy of a letter that the EPA sent to residents last week updating them on the progress in relation to the testing of groundwater, the testing of the air quality and also the ongoing clean up of the former Hills site.

The EPA's current level of engagement with the community and with the general public through this website, I would suggest, is a direct result of the media's attention that has been paid to this issue. It is a welcome improvement. The problem is that in other cases you do not know what you do not know, and if you do not know what to ask for you will never get the information.

I think all honourable members would agree that it is unacceptable for members of the public to have to routinely contact the EPA with the question: have you added anything to the public register this week that impacts on my neighbourhood? It is a ridiculous situation. The EPA should routinely publish environmental information. It should do it promptly, it should do it on its website and should make it freely available, and that is what my bill provides for.

Publication and notification are different but related matters. You cannot use publication as an excuse for not directly notifying those who have a right to be told what is happening in their neighbourhood. The people of Edwardstown did have a right to be told much earlier than they were that there was a problem (or a potential problem) with the groundwater beneath their homes, and this information would have been of most use to those with groundwater bores who could then have made up their own mind about whether or not to keep using this water.

In conclusion, I welcome this reference to the Statutory Authorities Review Committee. I look forward to hearing the evidence the committee receives and look forward to reviewing any recommendations the committee comes up with, including any minority reports. The Greens will be supporting the motion.

The Hon. R.I. LUCAS (16:22): I rise to speak briefly in support of the motion. As a member of the Statutory Authorities Review Committee I think it is probably important to give a perspective of someone who may well receive the reference and how perhaps it ought to be responded to by the Statutory Authorities Review Committee. I bow to the superior knowledge of my colleagues the Hon. Michelle Lensink and the Hon. Mark Parnell in relation to the specific issues of public notification protocols of contamination.

I point out to the committee that this motion, if passed, is that the Statutory Authorities Review Committee inquire into and report on the operations of the Environment Protection Authority, that is, all the operations of the Environment Protection Authority. The motion does note particularly regarding public notification protocols of contamination. The reason for my and my party's support is that, whilst the public notification of contamination protocols will be a focus, the review by the Statutory Authorities Review Committee is of all of the operations of the Environment Protection Authority.

It has, as its most recent report indicates, a considerable sum of money at its disposal—some $43 million worth of expenditure in 2009-10—and there will be important questions for the committee to see whether we are getting bang for our buck in relation to the money that is going into the Environment Protection Authority. Are the priorities that are being established by that authority the appropriate priorities?

Whilst there will be a particular focus on contamination, inevitably there will be questions of resources in terms of what the EPA can and cannot do, and that is why it will be important for the Statutory Authorities Review Committee to look at all the other things that the EPA says it is doing to see whether or not the priorities are being properly established by that authority in terms of its expenditure of $43 million. As a member of the committee that will certainly be a focus for me in terms of the evidence we take.

In speaking this afternoon, there are some specific aspects. In quickly looking at the annual report, I note, for example, that the retained earnings by the EPA last year in its accounts almost doubled from $3.1 million to $6.3 million. So, at a time when I am sure my friends in the Greens and others would be arguing that the EPA needs to do more in terms of the work it is tasked to do, it was actually accumulating or doubling its retained earnings within its accounts during that financial year.

We need to get behind not just that issue but, indeed, many other aspects of their publicly produced accounts to see, as I said, what it is they are doing with their $43 million, whether they have established appropriate priorities and, once those priorities have been established, whether they are being appropriately prosecuted in the public interest, in the interest of taxpayers, and in the interest, obviously, of protecting our environment.

The Hon. Mr Parnell referred to a number of examples, as did the Hon. Michelle Lensink, in relation to examples of contamination. One of the areas of interest to me is the extent of contamination at the site of the proposed Royal Adelaide Hospital. This has been an ongoing issue of some public interest, in terms of the extent of contamination on that site. Whilst I acknowledge a number of other areas of possible contamination have been mentioned during this debate, there are a number of others.

In relation to the Clipsal site, for example, in terms of a future major development of that particular site, the extent of contamination and the advice that the EPA has had and has publicised—the Hon. Mark Parnell again indicated (and this was news to me) that a lot of this information is already available if you just know where to ask—are issues we need to pursue with the committee. If there is information about the extent of contamination in relation to the North Terrace site of the hospital, or the Clipsal site, let's find out where it is at the moment and how we can make it more accessible and more readily available.

Let's get the questions answered in relation to the extent of contamination, particularly in relation to the Royal Adelaide Hospital site. Who will be picking up the responsibilities in relation to any identified costs for cleaning up the contamination? We have always been told that that was going to be a cost for the bidders for that site. We will certainly need to take evidence on the extent of the contamination and then, obviously, subsidiary questions can be asked as to who is going to meet the cost of the cleanup of any contamination on that particular site.

As I said, in speaking briefly to the committee, I conclude by saying that members, and those who observe this debate, ought to be aware that, whilst the motion does talk about public notification protocols of contamination, if the motion is passed it is to be an inquiry into and report on the operations of the EPA, and that encompasses everything the EPA does and every dollar it spends on any particular priority. As I said, if the motion is passed, that will be the task ahead of the Statutory Authorities Review Committee. I support the motion.

Motion carried.

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