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.

Who can help

Rachel Devine

Partner - Environment and Planning

Rachel provides advice on all aspects of environmental and resource management law for private and public sector clients – from design through to approval, implementation and operation.

Rachel has advised extensively on requirements for resource consents, including major industrial and infrastructure projects, and implications of planning requirements. She has significant experience in obtaining complex environmental and project approvals for developers, and advises on other environmental issues including pollution licensing and contaminated land.

Her commercial experience means Rachel can provide practical, down-to-earth solutions to environmental problems in any context – corporate transactions, planning projects or site management.

In recognition of her environmental expertise, Rachel is President of the New Zealand Resource Management Law Association.

Rachel Devine

Partner


Environment and Planning
Auckland

P: +64 9 353 9912
M: +64 21 521 299
Email

Bianca Tree

Partner - Environment and Planning

Bianca is a specialist in resource management and environmental law. She provides advice on all aspects of the Resource Management Act 1991 and related legislation. She has experience across a broad range of development projects and environmental issues, including in the commercial, industrial, infrastructure, aquaculture, forestry and energy sectors. Bianca’s clients value her knowledge of their business and her clear commercial advice on resource consent and planning process.

Bianca has extensive experience of the Proposed Auckland Unitary Plan, with direct involvement in the regional policy statement, business, transport, heritage and air quality chapters. She also acted for several clients to achieve an uplift in zoning or area specific precinct controls.

Bianca also has experience in the related fields of the Public Works Act and the Local Government Act, including development contributions and private development agreements.

Bianca Tree

Partner


Environment and Planning
Auckland

P: +64 9 353 9784
M: +64 27 700 8883
Email

Clare Sinnott

Special Counsel - Environment and Planning

Clare is a Special Counsel in our environment team.

She has extensive expertise across the range of environmental work – from obtaining and managing designations, consents and other authorisations for infrastructure, commercial and industrial clients to advising on the environmental aspects of international financing arrangements.

She also advises on public law and Public Works Act issues.

From her experience in the state sector, Clare has in-depth knowledge of how central and local government work.

Clare Sinnott

Special Counsel


Environment and Planning
Wellington

P: +64 4 498 5020
M: +64 27 376 8824
Email

Stephanie de Groot

Senior Associate - Environment and Planning

Stephanie is a Senior Associate in the Environment Team. She specialises in providing advice on all aspects of environmental and resource management law to private and public sector clients including property developers, infrastructure providers and clients in the commercial, industrial, oil and gas, aquaculture and forestry sectors.

Stephanie is experienced in advising on a broad range of issues from consenting, planning and regulatory compliance through to due diligence for major acquisitions and divestments and environmental dispute resolution.  She regularly advises on complex and contentious matters.

Stephanie has a science background, and in addition to her legal qualifications has a bachelor of science majoring in geography and environmental science.  She also has previous experience in the regulatory services department of the Auckland Regional Council (now Auckland Council), contributing to the former air quality, industrial and trade processes and coastal teams.

Stephanie de Groot

Senior Associate


Environment and Planning
Auckland

P: +64 9 353 9765
M: +64 21 92 9296
Email

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