Consistency in Applying Queensland's EMR Removal Framework
The relationship between statutory definitions, risk assessment and professional judgement
Purpose
This paper does not advocate for more or less stringent criteria for removing land from the Environmental Management Register (EMR), nor does it propose changes to the National Environment Protection (Assessment of Site Contamination) Measure (ASC NEPM) risk assessment framework. Rather, it examines how uncertainty regarding the interaction between the Environmental Protection Act 1994 (Qld) (EP Act), the land registers, the ASC NEPM, the Queensland Auditor Handbook for Contaminated Land and guidance issued by the Department of Environment, Tourism, Science and Innovation (DETSI) can contribute to inconsistent decision-making by suitably qualified persons (SQPs) and contaminated land auditors assessing similar sites.
Low-level PFAS is a useful case study, but the issue applies more broadly to residual contamination in soil, groundwater and surface water.
The decision required by the EP Act
For complete removal from the EMR, the current DETSI guidance requires a contaminated land investigation document to demonstrate that no ongoing notifiable activity is being conducted and that the land is not contaminated land and is suitable for any land use. The statutory concept of 'land' extends to surface water, groundwater, and the airspace in and above the land.
This indicates that the central decision is not simply whether a chemical has been detected, whether an investigation criterion is exceeded, or whether the risks associated with a nominated use are acceptable. The central question is:
Does the land meet the EP Act definition of contaminated land?
Under the EP Act framework, contaminated land is land contaminated by a hazardous contaminant. A hazardous contaminant is a contaminant that, if improperly treated, stored, disposed of or otherwise managed, is likely to cause serious or material environmental harm because of its quantity, concentration or other relevant properties.
Application of these definitions necessarily requires context. Whether a substance is a hazardous contaminant cannot ordinarily be determined from its presence or concentration alone. The assessment may depend on its environmental setting, natural or anthropogenic origin, quantity, mobility, pathways, receptors, relevant environmental values and the likelihood and consequence of environmental harm.
The location of the substance can also affect the conclusion. A concentration that is natural or benign in one setting may represent contamination in another. The same issue arises with naturally occurring metals, nutrients, saline groundwater, urban fill and low-level anthropogenic substances.
Context extends beyond the nature and concentration of the substance itself. It may also include the depth at which contamination occurs, whether it is physically accessible, whether it can reasonably be disturbed through excavation or future development, and whether it can migrate beyond the land or be removed from the land. A contaminant present in accessible surface soils may warrant a different assessment to contamination occurring at depth, just as contamination that can readily move or be excavated may require different consideration to contamination that is effectively isolated.
Many contaminated land assessment criteria are developed for specific risk assessment purposes and exposure assumptions. Difficulties can arise when those criteria are subsequently applied as de facto thresholds for determining whether land is contaminated land, suitable for EMR removal, or capable of unrestricted future use.
This makes it important to distinguish between the presence of a substance; exceedance of a screening or investigation criterion; contamination; a hazardous contaminant; contaminated land; and land requiring continuing statutory management. These concepts are related, but they are not necessarily interchangeable.
The role of risk assessment
The ASC NEPM provides the nationally recognised method for assessing site contamination. It supports conceptual site models, source-pathway-receptor analysis, tiered assessment and refinement of initially conservative assumptions. An exceedance of a Tier 1 investigation criterion is therefore normally a trigger for further assessment, not necessarily a finding of unacceptable risk or a statutory determination that the land is contaminated land.
The ASC NEPM is nevertheless implemented through the legislation and guidance of each jurisdiction. Its role in Queensland must therefore be considered within the EP Act framework rather than independently of it. The Queensland Auditor Handbook for Contaminated Land describes the required content of contaminated land investigation documents, auditor certifications and audit reports, and expressly connects those requirements to both section 389 of the EP Act and the ASC NEPM.
In practice, however, different starting points can produce different outcomes. One practitioner may begin with the EP Act definitions and use the ASC NEPM to determine whether the statutory tests are satisfied. Another may begin with land-use suitability or a NEPM risk assessment and treat the finding of acceptable risk as the substantive endpoint. These approaches will often converge, but they may diverge for low-level or widespread contamination.
The distinction is especially important because 'acceptable risk for a nominated use' does not automatically answer whether the material is contaminated; whether the contaminant is hazardous within the statutory definition; whether the land is contaminated land; whether soil can be removed and managed as uncontaminated material; or whether the land is suitable for removal from the EMR.
Low-level contamination in soil and water
PFAS in groundwater exposes the difficulty clearly. Concentrations may exceed conservative water-quality criteria while the PFAS source is unidentified, regional or demonstrably upgradient. The affected groundwater may enter and leave a site at broadly comparable concentrations, no practical land-based remediation measure may be available, and the relationship between concentrations beneath the site and effects at an actual receptor may be uncertain.
This raises questions about which environmental values apply, where they are to be protected and where compliance should be evaluated. Possible assessment points include groundwater beneath the land, the cadastral boundary, the point of discharge, the nearest receiving water or the location of an actual or reasonably foreseeable use. The answer can materially change the assessment outcome, but it should not depend solely on which SQP or auditor is appointed.
Earlier departmental guidance expressly recognised matters such as reasonably foreseeable uses, natural background and ambient concentrations attributable to regional anthropogenic sources. The current removal guidance more directly expresses the endpoint as the land being 'not contaminated land' and 'suitable for any land use'. This increases the importance of explaining how site setting, environmental values, background conditions, source attribution and risk assessment are to inform that endpoint.
Low-level soil contamination presents the same underlying issue. Soil may be assessed as presenting an acceptable risk while uncertainty remains about whether it is 'contaminated soil', whether it may be moved from the land, and whether its presence prevents a finding that the land is not contaminated land. Industry material identifies significant debate about what concentration of PFAS makes soil contaminated, while movement of contaminated soil from registered land invokes additional controls.
Why site-specific regulatory advice is insufficient
Site-specific advice may be appropriate for genuinely unusual circumstances, but it is not a practical substitute for a clear decision framework. SQPs and auditors are expected to undertake assessments and certifications under the EP Act. They do not necessarily need to refer each difficult case to DETSI, and many matters proceed without direct regulatory involvement.
More importantly, the primary professional and statutory conclusions are made by the SQP and auditor. Auditor-certified CLIDs and site suitability statements provide the basis for amendments to the register, including removal or recording suitable uses. If the applicable policy boundaries are not clear, referring individual cases to DETSI cannot ensure that similar sites not referred to the department receive comparable treatment.
This issue is particularly important because SQP conclusions and auditor certifications are not merely advisory opinions. They form the basis upon which the contaminated land framework operates and directly inform regulatory outcomes, including decisions relating to EMR removal, site suitability and ongoing management requirements.
Professional judgement is essential to applying policy, but it is not a substitute for policy.
SQPs and auditors should exercise judgement about investigation adequacy, data quality, conceptual site models, uncertainty and risk-assessment assumptions. They should not be required to determine independently the policy boundaries of 'contamination', 'hazardous contaminant', 'contaminated land', the relevant point for protection of environmental values, or the circumstances in which acceptable risk supports EMR removal.
Need for a common decision framework
Greater clarity is needed about the sequence and relationship of the relevant decisions. A consistent framework should identify:
whether a substance is present above an appropriate natural or anthropogenic background;
whether it constitutes contamination in the site setting;
whether it is a hazardous contaminant under the EP Act;
whether the land consequently meets the definition of contaminated land;
how ASC NEPM risk assessment informs those determinations;
which environmental values and reasonably foreseeable uses are relevant, and where they are assessed;
how source attribution, regional contamination and practical manageability are considered; and
how these findings affect EMR removal, soil movement and any need for continuing statutory management.
This is not an argument for a predetermined outcome. It is an argument that equivalent evidence and circumstances should be assessed through the same decision-making framework. Similar sites should not reach materially different regulatory outcomes solely because different practitioners have adopted different interpretations of the relationship between the EP Act, the ASC NEPM and associated contaminated land guidance. Clearer policy would improve the consistency, transparency and predictability of outcomes for landowners, SQPs, auditors and DETSI, while preserving both the statutory protections of the EP Act and the risk-based methodology of the ASC NEPM.
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Christian Atkinson is a contaminated land auditor and a suitably qualified person for contaminated land assessment in Queensland with more than 30 years of experience. Any discussion is general and does not consider your specific circumstances. If you are considering acting on any matters discussed, you should seek advice from qualified and experienced professionals.
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