Contaminated soil not hazardous waste, says WorkSafe

WorkSafe New Zealand (WorkSafe) has released a policy clarification confirming that soil contaminated with hazardous substances by past work activities does not need to be managed as hazardous waste under the Health and Safety at Work (Hazardous Substances) Regulations 2017 (Regulations).

This policy clarification means that people disposing of contaminated soil do not need to classify, label, list on an inventory or have a safety data sheet for all of the hazardous substances present in the soil.

However, people conducting a business or undertaking (PCBUs) will still have general obligations under the Health and Safety at Work Act 2015 (HSWA), the Resource Management Act 1991 (RMA) and associated regulations when dealing with a contaminated site or handling contaminated soil.

People disposing of contaminated soil will not need to treat it as hazardous waste under the Regulations

From 1 June 2019, the Regulations will apply to the handling, storage and transportation of hazardous waste. Hazardous waste under the Regulations is defined broadly and includes waste that:

  • is created by a manufacturing or other industrial process; and
  • is, or is likely to contain, a substance that is hazardous due to its explosive, flammable, oxidising, toxic or corrosive properties.

The Regulations impose a number of duties on PCBUs when dealing with hazardous substances or wastes in the workplace. This includes requirements to label containers, keep an inventory and safety data sheets and provide information, training, and instruction to those who work with hazardous substances and / or wastes.

Contaminated soil typically contains a mixture of chemicals whose properties may alter over time. WorkSafe’s recent policy clarification that contaminated soil does not need to be managed as hazardous waste under the Regulations is a pragmatic and sensible approach to the difficulties associated with identifying the hazardous substances present in contaminated soil.

PCBUs will still have general obligations under the HSWA and RMA and associated regulations when dealing with a contaminated site or handling contaminated soil

The Regulations and WorkSafe’s policy clarification do not impact on the application of general workplace safety obligations under the HSWA and the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016, which continue to apply when workers are on a contaminated site or are handling soil contaminated with hazardous substances. This includes during the stages of remediation, excavation, testing and monitoring of the soil.

PCBUs (and landowners and others) must also continue to comply with the requirements of the RMA, particularly the Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011.

The Ministry for the Environment’s Our Land report released earlier in the year estimates that approximately 20,000 sites across New Zealand have been confirmed as contaminated from past land uses, but that the overall extent of land contamination is still unknown. Many regional councils have estimated that up to three times as many contaminated sites could be identified in their regions through further analysis and testing. It is unclear whether these figures include sites which contain soil contaminated with asbestos or asbestos-containing materials.

We regularly advise businesses on issues regarding contaminated land and hazardous substances. Please contact one of our experts if you have questions about how the Regulations may impact on your business or organisation.

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