Contaminated Land – Obligations to manage

In conversation, we discussed an old tannery site, and it occurred ‘obligation’ to manage was not understood, or meant different things to different people. For instance, a Carbon Manager would say it is more than accounting and reporting, it is about bringing about a change in thinking of the moral and legal rights in terms of the strategic directions to exist in a carbon constrained world – that is to manage the objectives of the change.  A Commonwealth Officer might say the extent to which an obligation requires management is highly dependent on the existing or proposed future need, and the management need is to present a number of risk of that that will be decided, or in turn generate obligations as a strategy. The later could be a recommendation to do nothing.  It gets down to the officer can say as no legal obligation exists, regardless of the evidence, we can do nothing until it requires management and the risks can in turn generate obligations for funds. Sounds familiar does it not!

Why funding as the trigger? It is the means of executive power.  What about the moral need to save the planet? The current trend is evaluations and the measure is the cost – benefit and reactions that convert into immediate comforts. Another issue is that we no longer learn by experiences, we are swayed by opinions and the need for immediate comforts.

If we concentrate this post on contamination of land, the decision-making, and factors of risk management, capability and efficiency of expenditure we can see an interesting overture of what is management. It we think of the range of historical uses for land that has resulted in a wide range of contaminates we can note examples of nuclear activities, military training, radio transmission, fire fighting, printing, fuel storage and numerous infrastructure responsible for hazardous materials. Then there is another problem where pre-existing contaminated sites are then used to add other contaminates with the justification it is already contaminated, so the risk is lower.  It might surprise you but in 2011 the Australian government audit of its properties found approximately 30% to have known contamination issues, and the remaining have issues yet to be identified. That is not a typo, it was written – yet to be identified, and much of the concern is waste dumping. If you wonder how many properties of concern in the audit, the Department of Finance and Deregulation’s 2011 Land Audit reported 1197 properties of which 355 are known and 842 are potential issues.

Asking the question on what is the legal obligation to act on the site, it was clear the Carbon manger and the government officer had a different management view. Yet, both claim a long term view. The former is the actions will ensure a long term benefit, the later saying funds would address the risks in the long run!

To analyse the obligations of the Commonwealth, there is no legal obligation to remediate because contamination is present..  The more likely driver is the presence of risks which can generate obligations to fund remediation. These risks can include:

  • Workplace, health and safety risks and associated legislative obligations;
  • Public safety risks and associated liability exposure;
  • Potential degradation of Commonwealth assets;
  • Ecological impacts; and
  • Off-site impacts beyond the boundary of Commonwealth Land.

The key to all above is the extent to which contamination requires management is highly dependent on the existing or proposed future use of the land. It is not the moral obligation to make it right.

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