To’ Puan Janet Looi and Syaida Majid examine the Contaminated Land Management and Control Guidelines.
 
INTRODUCTION
 
The Department Of Environment (“DOE”) made available on its website, a set of Guidelines on Contaminated Land Management and Control (“Guidelines”), which comprises 3 parts, namely:

Although the Guidelines were made available on the DOE’s website on 15 March 2011, the DOE has stipulated that the Guidelines have come into effect as of June 2009.
 
APPLICATION OF THE GUIDELINES
 
The contaminated land management framework applies to two main categories of land:

Guideline No.1 contains a list of activities or usages that could cause soil and groundwater contamination, such as agricultural use, fertiliser manufacturing, landfill site, motor vehicle workshop, asbestos production, petroleum industries, service station, formulation and storage of pesticides and recycling treatment or disposal of toxic wastes.
 
The DOE’s current position is that compliance with the Guidelines is voluntary in nature. The main purpose of the Guidelines is to establish a practical and nationally consistent framework for management of contaminated land in Malaysia and to obtain public feedback on the criteria, pending the issue of regulations on management of contaminated land under the Environmental Quality Act 1974.
 
GUIDING PRINCIPLES
 
The general guiding principles under the Guidelines are the “Polluter Pay Principle” and “Risk-Based Approach”.
 
The Guidelines recognise that the “polluter” may be the land owner, the property occupant/users and/or the chemical/product/waste owner.
 
The “Risk-Based Approach” refers to an approach that places emphasis on the potential current and future risks associated with the presence of contaminants in the soil and groundwater matrix. This approach applies to the various processes of contaminated land management, including contaminated land planning and management, site assessment, remediation and closure.
 
RESPONSIBILITIES OF PARTIES
 
Guideline No.1 imposes the responsibility on the current land owner to determine if there is any subsurface contamination in their land and to notify the DOE accordingly. If the contamination of the subsurface is not caused by the present or previous activities on the land, the land owner is further responsible for identifying the polluter who will then be responsible for the remedial actions to be carried out.
 
The current land owner will be responsible for remediation actions if the identified polluter is no longer in operation in Malaysia.
 
If there is a dispute as to the party who is responsible for cleaning up a contaminated site, the Director-General of Environmental Quality has the authority to decide the same.
 
Guideline No.1 also requires a seller or owner of land to disclose all soil and groundwater information relating to the subject land and the buyer to carry out a soil and groundwater assessment as part of the due diligence prior to the transaction.
 
SITE SCREENING LEVELS
 
Guideline No.1 sets out Site Screening Levels (“SSL”) as a criterion for screening. The SSLs were developed by reference to the Regional Screening Levels of the United States’ Environmental Protection Agency.
 
The guideline also stipulates that if a site clean-up is required, the responsible parties are required to justify that the selected Site-Specific Target Levels are protective of human health and ecological well-being. Alternatively, they may adopt the SSLs as the Site-Specific Target Levels, if the exposure scenario is consistent with the SSL’s exposure assumptions.
 
If the contaminant detected is not covered by the SSLs, the responsible party is to propose to the DOE appropriate SSLs based on other international standards, or may develop Tier 1 SSLs by referring to the risk assessment procedures in Guideline No.2.
 
ASSESSMENT AND REPORTING
 
Guideline No.2 sets out the approach to be adopted in assessing and reporting of lands that fall within Guideline No.1. In essence, the assessment is divided into 3 parts as discussed below.
 
Initial Assessment  
 
An Initial Assessment or Phase 1 Environmental Site Assessment (“Phase 1 ESA”) is required to be carried out in respect of land which is being (a) transferred; or (b) developed or redeveloped for a different land use purpose; or (c) used for polluting activities.
 
Detailed Assessment
 
A Detailed Assessment or Phase 2 Environmental Site Assessment (“Phase 2 ESA”) is required for land which is identified with potential contamination based on the findings of the Phase 1 ESA.
 
Risk Assessment
 
Risk Assessment is required for land which is detected with subsurface contamination at concentrations higher than the relevant SSLs or land that is intended to be cleaned up.
 
Risk Assessment is divided into 3 levels - Tier 1 to Tier 3, depending on the site complexities and estimation of contaminant concentrations at points at which an individual or population may come in contact with a chemical of concern that originates from the site.
 
Guideline No.2 sets out the types of investigations that have to be carried out. For example, a Phase 1 ESA comprises a desktop study and site reconnaissance whereas a Phase 2 ESA requires installation of soil boreholes, ground water monitoring wells and soil and groundwater analysis. It also provides guidance on the factors that are to be considered when such investigations are being carried out.
 
REMEDIATION
 
Under Guideline No.3, remediation is required where:

Guideline No.3 also recommends that an immediate emergency response action plan be devised to contain physical threats/risks from sites that pose other immediate physical threats or risks.
 
Four steps are set out in Guideline No.3 for remediation actions:
 
Stage 1: Remediation Action Plan
Stage 2: Remedial Investigation, Feasibility Study and Remedial Design
Stage 3: Remedial Implementation
Stage 4: Post Remediation Evaluation
 
Remedial Action Plan
 
Guideline No.3 requires a Remedial Action Plan (“RAP”) to be prepared and submitted to the DOE for approval before any remediation action is implemented.
 
The RAP should contain the following:

Any subsequent changes to the RAP due to changes in site conditions or additional information obtained is to be reported and a revised RAP is to be submitted to the DOE for approval.
 
Remedial investigation, feasibility study and remedial design
 
Activities comprised in remedial investigations (“RI”) and feasibility studies (“FS”) include identifying and defining the scope of suitable treatability studies and identifying the optimal sequence of site actions and investigative activities. Unless otherwise specified, all RI/FS works are to be reviewed by a qualified remediation specialist or a contaminated land manager.
 
Based on the findings of the RI/FS, a remedial design is to be prepared by a qualified remediation specialist, reviewed by a contaminated land manager and submitted to the DOE. The design should include process design and take into consideration the need to comply with all relevant regulatory requirements such as air emission requirements, noise and vibration limits and discharge quality requirements.
 
Guideline No.3 also requires the remedial design document to demonstrate the calculation on the final concentrations of the contaminants to be achieved and an estimate of the remediation period based on the applicable design practices. 
                                                                                                           
Remedial Strategy & Action
 
Examples of containment of contaminant and remediation measures set out in Guideline No.3 include:

Guideline No.3 requires remedial measures for contaminated soil or groundwater to be carried out under environmental and specialist supervision to ensure that remedial measures are implemented in accordance with the RAP.
 
Post Remediation Evaluation
 
This phase involves the implementation of procedures to evaluate the effectiveness of the remediation work performed by confirming that the site complies with the clean-up criteria set out in the RAP.
 
Upon completion of the evaluation and adjustment phase, a site validation report is to be prepared by a qualified remediation specialist or remediation project manager, detailing the application of the RAP and any variances therefrom. Compliance with authorities’ requirements and documentary evidence to show disposal off site of any contaminated material is also required. The validation report is to be approved by a contaminated land manager before it is submitted to the DOE for final approval.
 
In the case of non-achievement of the targets, Guideline No.3 states that the reasons for this must be stated and additional site work proposed to achieve the targets listed.
 
Upon the completion of the post remediation evaluation, the polluter or responsible party is required to submit a project closure report to the DOE for approval. This report is to be prepared by a qualified remediation specialist and reviewed by a qualified contaminated land manager. The report is to contain the site remediation objectives and targets, scope of the remediation activities and findings of the post remediation evaluation.
 
On-going Monitoring and Management Plan
 
Guideline No.3 recommends on-going monitoring and a management plan for a site where:

A monitoring programme should set out details of the proposed monitoring strategy, what is to be monitored, the location and frequency of the monitoring and reporting requirements and the proposed period for reviewing the monitoring and management plan.
 
CONCLUSION
 
The Guidelines serve as a good guide to owners and users of land on the assessment process of land contamination and the possible remedial measures to be undertaken in order to minimise or reduce land contamination. Proper assessment and management of contaminated sites can assist in achieving sustainable development as well as bring Malaysia closer to the international standards. 
 
The Guidelines represent the first step taken by the DOE in managing land contamination in Malaysia. Although compliance with the Guidelines is presently voluntary, it is hoped that the relevant stakeholders will support the DOE’s efforts to achieve the aforesaid objective by complying with the Guidelines. It is said that the first step is always the hardest, but it is the only way to reach the second step!