Part 5Site contamination

Part 5—Site contamination Division 1—General provisions supporting Part 10A of Act 47—Occupier (section 103A) (1) For the purposes of the definition of occupier in section 103A of the Act, a person is to be taken to be an occupier of land if the person owns, or has operational control of, a tank or pipeline, or any works or structure, that— (a) is installed on or traverses the land, whether below or above the ground; and (b) is used to store or convey chemical substances or for some process employing chemical substances. (2) For the purposes of subregulation (1), a person has operational control over a tank, pipeline, works or a structure if the person has the authority to introduce and implement environmental or health and safety policies or any other operating policies for the tank, pipeline, works or structure. 48—Potentially contaminating activities (sections 103C and 103H) (1) For the purposes of sections 103C and 103H of the Act, the following activities are prescribed as potentially contaminating activities: (a) an activity of a kind set out in Schedule 3 clause 2, undertaken in the course of a business; (b) any other activity (other than an activity of a kind excluded under Schedule 3 clause 2 from the ambit of potentially contaminating activities) undertaken in the course of a business involving— (i) the manufacture, production (including as a by‑product or waste) or recycling of a listed substance or a product containing a listed substance; or (ii) the storage at a discrete premises of the business of— (A) 500 litres or more of a liquid listed substance; or (B) 500 kilograms or more of a listed substance other than a liquid; (c) a domestic activity of a kind set out in Schedule 3 clause 3. (2) However— (a) the Authority may determine that an activity of a kind referred to in subregulation (1)(a) is not a potentially contaminating activity if the Authority is satisfied that the activity has been carried on in such a manner or on such a scale as to present a negligible risk of site contamination; and (b) the Authority may determine that an activity of a kind referred to in subregulation (1)(b) is not a potentially contaminating activity if the Authority is satisfied that the relevant listed substance has, at all times while at the premises of the business, been contained or incorporated in a product (other than a product that itself is or comprises a listed substance) or container— (i) in insignificant concentrations; or (ii) in such a way as to present a negligible risk of escape of the substance to the environment. (3) For the purposes of this regulation, a reference to a discrete premises of a business is, in the case of activities authorised by a licence— (a) a reference to each location specified in the licence at which activities authorised by the licence may be undertaken; or (b) if various places are specified in the licence as a single location at which activities authorised by the licence may be undertaken—a reference to the various places taken together. (4) To avoid doubt, an activity of a kind referred to in subregulation (1)(a) or (b) is not precluded from being undertaken in the course of a business merely because it is undertaken for the purposes of research. (5) In this regulation— recycling includes reprocessing, recovery and purification. 49—Causing site contamination (section 103D) (1) Subject to this regulation, the commencement or revival of a particular use of a site is a prescribed change of use for the purposes of section 103D(2) of the Act if— (a) the use supersedes a previous use of the site; or (b) the commencement of the use or the revival of the use follows upon a period of non-use; or (c) the use is additional to a previously established use of the site which continues despite the commencement of the new use. (2) The revival of a use of a site after a period of discontinuance will be regarded as the continuation of an existing use unless— (a) the period intervening between the discontinuance and revival of the use exceeds two years; or (b) during the whole or a part of the period intervening between its discontinuance and revival, the use was superseded by some other use. 50—Liability for property damage etc caused by person entering land—exemptions (section 103M) (1) A person is exempt from the application of section 103M(2) of the Act if the person enters or does anything on land on behalf of the occupier of the land in order to carry out— (a) the requirements of a site contamination assessment order or site remediation order that has been issued to the occupier; or (b) a voluntary site contamination assessment proposal or voluntary site remediation proposal that has been approved by the Authority on the application of the occupier. (2) A person is exempt from the application of section 103M(3) of the Act if the person enters or does anything on land on behalf of the owner of the land in order to carry out— (a) the requirements of a site contamination assessment order or site remediation order that has been issued to the owner; or (b) a voluntary site contamination assessment proposal or voluntary site remediation proposal that has been approved by the Authority on the application of the owner. Division 2—Site contamination auditors Subdivision 1—Accreditation 51—Eligibility for accreditation (1) A person is eligible for accreditation as a site contamination auditor if the person— (a) has the qualifications, experience, knowledge, understanding and ability set out in subregulation (2); and (b) is a fit and proper person to be accredited. (2) An applicant for accreditation must— (a) have a tertiary qualification approved by the Authority in a relevant discipline; and (b) have a total of at least 8 years of experience in the assessment and remediation of site contamination; and (c) have knowledge and understanding at a level satisfactory to the Authority of— (i) the provisions of the Act and these regulations relating to site contamination assessment, remediation, audits and auditors; and (ii) codes of practice, guidelines and standards prepared or approved by the Authority that apply to site contamination assessment, remediation, audits and auditors; and (iii) the field of site contamination assessment and remediation; and (d) have a demonstrated ability to put the knowledge and understanding referred to in paragraph (c) into practice, to a degree satisfactory to the Authority. (3) For the purposes of determining whether a person is eligible for accreditation under subregulation (1), the Authority may, without limitation, take into account the following: (a) any recommendations made in relation to the person by an accreditation committee; (b) any offence committed by the person against the Act, these regulations or legislation similar to these regulations in force in another State or a Territory of the Commonwealth; (c) any offence punishable by imprisonment committed by the person; (d) the cancellation or suspension of accreditation or similar authority held by the person, or the disqualification of the person from practising as a site contamination auditor, under these regulations or under legislation similar to these regulations in force in another State or a Territory of the Commonwealth; (e) whether, during the period of 10 years preceding the application for accreditation, the person has been an undischarged bankrupt or subject to a composition or deed or scheme of arrangement with or for the benefit of creditors. 52—Application for accreditation (1) An application for accreditation must— (a) be made to the Authority in the manner and form approved by the Authority; and (b) be signed by the applicant and completed in accordance with the instructions contained in the form; and (c) subject to subregulation (2), be accompanied by the fee for an application for accreditation as set out in Schedule 4. (2) The application fee referred to in subregulation (1)(c) is not payable in respect of a person entitled under the Mutual Recognition Act 1992 of the Commonwealth, as adopted by the Mutual Recognition (South Australia) Act 1993, to be registered (as defined in that Commonwealth Act) in this State as a site contamination auditor. (3) An applicant for accreditation must— (a) consent to the conduct by the Authority of inquiries relating to any accreditation or similar authority held at any time by the person under these regulations or under legislation similar to these regulations in force in another State or Territory of the Commonwealth; and (b) provide the Authority with any information required by the Authority (verified, if the Authority so requires, by statutory declaration) for the purposes of determining the application including (without limitation) criminal record checks relating to the applicant; and (c) supply the Authority with 1 or more digital photographs of the applicant as specified by the Authority. (4) The Authority may, on receipt of an application for accreditation under this regulation, refer the application to an accreditation committee and request the committee's written recommendations in relation to the application within a period specified in the notice (being not less than 14 days after referral of the application to the committee). 53—Grant of accreditation (1) The Authority may refuse an application for accreditation if— (a) the person has not made due application for accreditation under this Division; or (b) the applicant has not complied with a requirement of this Part or a requirement of the Authority made in connection with the application; or (c) the Authority is not satisfied that the applicant is eligible for accreditation. (2) The Authority is not required, if it has assessed a person's qualifications, experience, knowledge, understanding or ability to be appropriate for accreditation, to assess the person's qualifications, experience, knowledge, understanding or ability again on a subsequent application by the person for accreditation (or renewal of accreditation). (3) The Authority may decline to grant accreditation unless or until the fee for the grant of accreditation as set out in Schedule 4 is paid. 54—Conditions of accreditation (1) The Authority may impose— (a) a condition requiring the person to undertake ongoing professional development; and (b) any other conditions the Authority thinks fit. (2) Without limiting the effect of subregulation (1), the Authority must make it a condition of every accreditation that— (a) the holder of the accreditation will, when acting as a site contamination auditor, act diligently, impartially and conscientiously; and (b) the holder of the accreditation will maintain arrangements enabling the holder to have access, from time to time as necessary in the course of carrying out site contamination audits, to a team of persons, constituted in a manner approved by the Authority, to provide technical expertise in fields outside the holder's personal expertise; and (c) the holder of the accreditation will not, when acting as a site contamination auditor, fail to comply with any guidelines issued from time to time by the Authority (insofar as they may be relevant in the circumstances of any particular case); and (d) the holder of the accreditation will hold or be covered by a professional indemnity insurance policy approved by the Authority; and (e) the holder of the accreditation will have an identity card issued by the Authority available for inspection at all times when present as a site contamination auditor at a site the subject of site contamination assessment or remediation; and (f) if the holder of the accreditation is charged with or convicted of— (i) an offence against the Act, this Part or legislation similar to this Part in force in another State or a Territory of the Commonwealth; or (ii) an offence punishable by imprisonment, the person will, within 14 days, give written notice of the charge or conviction to the Authority containing details of the offence; and (g) if the holder of the accreditation— (i) is dismissed from employment in response to allegations of misconduct; or (ii) resigns from employment following allegations of misconduct, the person will, within 14 days, give written notice of that fact to the Authority. (3) The Authority may, by written notice, vary or revoke a condition, or impose a condition, of a person's accreditation as a site contamination auditor. (4) A condition may only be imposed or varied— (a) on application by the site contamination auditor or with the auditor's agreement; or (b) after giving the site contamination auditor reasonable notice of the proposed condition or variation and allowing the auditor at least 14 days within which to make submissions to the Authority in relation to the proposed condition or variation. 55—Offence to contravene certain conditions of accreditation If a site contamination auditor contravenes a condition of the person's accreditation that requires the Authority to be notified of a matter or imposes a restriction on the work undertaken by the person, the person is guilty of an offence. 56—Annual fee (1) A site contamination auditor must, on or before the date falling 1 month after each anniversary of the grant of accreditation (other than in a year in which the accreditation is due to expire), pay to the Authority the annual fee for accreditation as set out in Schedule 4. (2) If an accredited site contamination auditor fails to pay a fee in accordance with this regulation, the Authority may, by written notice, require the auditor to make good the default and, in addition, to pay to the Authority as a penalty for default $20 plus 1% of the annual accreditation fee for the first month (or part of a month) for which the default continues and 2% of the annual fee for accreditation for each further month (or part of a month) for which the default continues. 57—Term and renewal of accreditation (1) Subject to this Part, accreditation remains in force for a term not exceeding 5 years determined by the Authority and specified in the accreditation on its grant or renewal. (2) An application for renewal of accreditation must— (a) be made not less than 90 days before the expiry of the accreditation; and (b) be made to the Authority in the manner and form approved by the Authority; and (c) be signed by the applicant and completed in accordance with the instructions contained in the form; and (d) be accompanied by the fee for renewal of accreditation as set out in Schedule 4. (3) The Authority may, at the Authority's discretion, determine a late application for renewal provided that the applicant pays, in addition to the fee for renewal of accreditation, a late fee comprised of $20 plus 1% of the fee for renewal of accreditation for the first month (or part of a month) for which the application is late and 2% of the fee for renewal of accreditation for each further month (or part of a month) for which the application is late. (4) The Authority may, on receipt of an application for renewal under this Division— (a) refer the application to an accreditation committee and request the committee's written recommendations in relation to the application within a period specified in the notice (being not less than 14 days after referral of the application to the committee); and (b) require the applicant to provide any information required by the Authority (verified, if the Authority so requires, by statutory declaration) for the purposes of determining the application including (without limitation) criminal record checks relating to the applicant; and (c) refuse to renew the applicant's accreditation on any ground on which an application for accreditation may be refused under regulation 53 or on which accreditation may be cancelled under regulation 58. 58—Disciplinary action against site contamination auditors and voluntary suspension (1) The Authority may, if satisfied that there is cause for disciplinary action against a site contamination auditor, do 1 or more of the following: (a) suspend any accreditation held by the person; (b) cancel any accreditation held by the person; (c) disqualify the person from obtaining accreditation. (2) There is cause for disciplinary action against a site contamination auditor if the Authority is satisfied that— (a) the person— (i) obtained accreditation improperly; or (ii) has contravened the Act or this Part; or (iii) has contravened a condition of accreditation; or (iv) has ceased to undertake the activities authorised by accreditation; or (v) has not paid fees or charges payable under this Part to the Authority within the required time; or (b) events have occurred such that the person would not, if the person were to apply for accreditation, be eligible for accreditation. (3) A suspension under this regulation— (a) may be for a specified period, or until the fulfilment of specified conditions, or until further order of the Authority; and (b) may be expressed to have effect at a specified future time, or to have effect at a specified future time unless a specified condition is fulfilled. (4) A disqualification under this regulation may disqualify a person from obtaining accreditation— (a) permanently; or (b) for a specified period or until the fulfilment of specified conditions; or (c) until further order of the Authority. (5) The Authority must, before acting under this regulation— (a) give written notice to the site contamination auditor of the proposed action specifying the reasons for the proposed action; and (b) allow the site contamination auditor at least 14 days within which to make submissions to the Authority in relation to the proposed action. (6) The Authority may, on application by a site contamination auditor, suspend the auditor's accreditation for a specified period of not less than 3 months and not more than 2 years or the term of the accreditation, whichever is the shorter period, if the Authority is satisfied that the auditor does not intend to undertake site contamination audits during that period. (7) A person whose accreditation is suspended is taken not to hold accreditation for the period of the suspension. (8) However— (a) the person is taken to continue to hold accreditation for the purposes of the requirements of section 103Y of the Act (relating to furnishing the Authority with an annual return and notifying the Authority of a change in the person's particulars); and (b) the date of expiry of the person's accreditation remains unchanged despite the suspension. site contamination auditor means— (a) a person who is the holder of accreditation; or (b) a person who was formerly the holder of accreditation; or (c) a person who, although not the holder of accreditation, engaged in an activity for which accreditation was required (under section 103U of the Act). 59—Surrender of accreditation A person may, with the approval of the Authority, surrender the person's accreditation. 60—Return of certificate of accreditation and identity card (1) If accreditation of a person as a site contamination auditor is surrendered, suspended or cancelled, the person must, within 14 days, return the certificate of accreditation and any identity card to the Authority. (2) If, on an application under regulation 52, a certificate of accreditation or identity card has been issued to a person but the fee payable in respect of the person's application or accreditation has not been paid (whether because of the dishonouring of a cheque or otherwise), the person must, at the direction of the Authority, return the certificate or card to the Authority. (3) The Authority may issue to the holder of accreditation, on payment by the person of the fee for replacement of the certificate of accreditation or identity card as set out in Schedule 4, a certificate of accreditation or identity card in replacement of a current certificate of accreditation or identity card if satisfied that— (a) the current certificate or card has been lost, destroyed or damaged; or (b) any particulars appearing on the current certificate or card are incorrect. (4) If the Authority issues a replacement certificate of accreditation or identity card to a person, the person must, at the direction of the Authority, return any original (or previous duplicate) certificate of accreditation or identity card in the person's possession to the Authority. 61—Reviews (section 103V(2)(i)) (1) A person may seek a review by the South Australian Civil and Administrative Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 of a decision of the Authority— (a) refusing to grant an application by the person for accreditation or renewal of accreditation; or (b) determining the term of the person's accreditation; or (c) imposing or varying a condition of the person's accreditation or determining a matter in relation to such a condition; or (d) suspending or cancelling the person's accreditation or imposing a disqualification on the person. (2) Subject to this regulation, an application for review must be made within 1 month after the making of the decision. (3) The Authority must, if so required by the person, state in writing the reasons for the Authority's decision. (4) If the reasons of the Authority are not given in writing at the time of making the decision and the person to whom the decision relates (within 1 month of the making of the decision) requires the Authority to state the reasons in writing, the time for making an application for review runs from the time at which the person receives the written statement of those reasons. 62—Register of site contamination auditors (1) The Authority must keep a register of persons accredited under this Division. (2) The register must include, in relation to each accredited person— (a) the person's full name, personal address and business address (if any); and (b) the qualifications for accreditation held by the person; and (c) details of any specialist qualifications held by the person and determined by the Authority to be appropriate for inclusion on the register; and (d) details of any condition of the person's accreditation requiring supervision of the person or restricting the scope or type of work the person may undertake as site contamination auditor; and (e) the expiry date of the person's accreditation; and (f) the person's accreditation number; and (g) details concerning any disciplinary action taken against the person by the Authority under regulation 58, and may include other information as the Authority thinks fit. (3) The Authority may remove or correct an entry in the register as required without giving notice to any person. (4) The Authority must— (a) make a record of the full name of each site contamination auditor and the information entered in the register under subregulation (2)(b), (c), (d), (e) and (f) in relation to the auditor available for inspection on application to the Authority; and (b) make a record of the full name of each site contamination auditor and the information entered in the register under subregulation (2)(e) and (f) in relation to the auditor available for inspection on a website established by the Authority. (5) An apparently genuine document purporting to be signed by the Authority stating that, at a specified date, or during a specified period— (a) a specified person was accredited under this Division unconditionally or subject to specified conditions; or (b) a specified person was not accredited under this Division, will, in any legal proceedings, constitute proof of the matters stated in the document in the absence of proof to the contrary. Subdivision 2—Requirements applying to auditors 63—Annual returns by auditors (section 103Y(2)) For the purposes of section 103Y(2) of the Act, an annual return relating to site contamination audits for which a site contamination auditor is or was the responsible auditor must be in the form set out in Schedule 3 clause 5. 64—Notifications by auditors after commencement or termination of audit (section 103Z(3)) For the purposes of section 103Z(3) of the Act— (a) a notification by a site contamination auditor after the commencement of a site contamination audit for which the auditor is or was the responsible auditor must be in the form set out in Schedule 3 clause 6; and (b) a notification by a site contamination auditor of the termination before completion of a site contamination audit for which the auditor is or was the responsible auditor must be in the form set out in Schedule 3 clause 7. 65—Site contamination audit report summary and statement (section 103Z(4)) (1) A site contamination audit report required under section 103Z(4)(a) and (b)(i) of the Act must include a summary of the findings of the site contamination audit to which it relates that— (a) is in the form set out in Schedule 3 clause 8 for site contamination audit statements; and (b) is certified by the responsible auditor in accordance with the directions contained in the form set out in Schedule 3 clause 8. (2) A site contamination audit statement required under section 103Z(4)(b)(ii) of the Act in relation to a site contamination audit must comprise— (a) a copy of the summary in the site contamination audit report relating to the audit and itself be certified by the responsible auditor in accordance with the directions contained in the form set out in Schedule 3 clause 8; or (b) a photocopy, faxed copy or electronic copy of the summary as certified by the responsible auditor in accordance with the directions contained in the form set out in Schedule 3 clause 8. 66—Site contamination audit statements to be provided to prescribed bodies (section 103Z(4)) For the purposes of section 103Z(4)(b)(ii) of the Act, if— (a) an application for development authorisation under either the Development Act 1993 or the Planning, Development and Infrastructure Act 2016 relates to land the subject of a site contamination audit; and (b) a body other than the council for the area in which the land is situated is a relevant authority for the purposes of assessment of the proposed development under the Development Act 1993 or the Planning, Development and Infrastructure Act 2016 (as the case requires), that body is a prescribed body to which a site contamination audit statement must be provided in relation to that audit.