Draft Submission on the Proposed National Environmental Standard for Assessing and Managing

Draft Submission on the Proposed National Environmental Standard for Assessing and Managing Contaminants in Soil

March 2010

We thank the Ministry for the Environment for the opportunity to comment on this document.

Environment Southland would like to acknowledge the assistance of Environment Waikato and Auckland Regional Council in preparing this submission.

Our response to the request for submissions will be dealt with in broad terms addressing each section of the discussion document. We request the right to be heard in relation to this submission should the Minister decide to hold a hearing.

Executive Summary

Effects on human health of subdivision, land use change and development are the key concept leading to the creation of the proposed National Environmental Standard for Assessing and Managing Contaminants in Soil (“the NES”). The aim of the NES is to avoid, remedy or mitigate any human health impacts arising from these activities by providing a planning and regulatory framework for the management of potentially contaminated land, primarily by territorial authorities (TAs).

The NES does not consider or claim to consider environmental effects of contaminated land, nor does it assess aspects such as workplace safety and secondary exposure pathways such as ground and surface water contamination.

Responsibility for implementing the NES rests primarily with territorial authorities. The role of regional councils, if any, will be to continue to regulate and assess wider environmental impacts of hazardous land as well as investigating and registering potentially contaminated sites. However, it is anticipated that the NES will have a significant impact on regional councils due to a likely increase in information requests, extra investigations and assessment costs for information provided by landowners. For this council there is also the possibility of more consents being generated to cover monitoring and maintenance of contaminated sites, due to an increase in awareness and subsequent registration of contaminated land.

While Environment Southland appreciates and commends the intent behind the creation of the NES, we OPPOSE the proposed NES as it is drafted. This opposition is based on the premise that the NES:

• allows for use, development and subdivision of land without accounting for environmental impacts, particularly off-site and including health impacts for people using resources off-site;
• provides an arbitrary threshold for produce consumption without providing NewZealand-based evidence for this threshold;
• does not allow for councils to impose more stringent thresholds and mechanisms.
• does not adequately define itself as a partial standard for contaminated land;
• does not allow for regional councils to address environmental effects in conjunction with TAs or landowners;
• requires technical expertise for practitioners but does not define this expertise.
• provides guidelines for highly ecotoxic contaminants without providing sufficient guidance as to environmental effects assessments, and allows contaminants at thresholds which are likely to greatly exceed food safety guidelines in domestic situations;
• does not adequately consider unrecoverable costs to local government.
• does not delineate permitted/discretionary activity thresholds at suitable levels.

Environment Southland accordingly requests that the NES in its present form be reconsidered substantially. We further request that a further round of public consultation be engaged in, including Environment Southland as an interested party.

What is the problem?

Council Functions

The Resource Management Act 1991 tasks regional councils with the functions of identifying contaminated land and defines this as land which is contaminated such that it has significant adverse effects on the environment or is reasonably likely to have significant adverse effects on the environment[1]. By setting arbitrary values which take only human health into account, the NES poses a strong risk that human health impacts will become the default standard for assessing and managing contaminated land in New Zealand, to the detriment of the wider environment. We have primarily considered the NES in terms of its impacts on the ability of regional councils to fulfil their functions should the NES become regulation.

Need for holistic governance and assessments

The lack of guidance regarding environmental impacts / ecological receptors means that regional councils will continue to come into conflict with landowners and consultants regarding methodologies, use of various international guidelines used to assess contamination, and potentially with TAs who may not perceive an environmental risk. Essentially the NES is likely to do nothing to reduce the judgmental nature of contaminated land management at an ecological level and avoids completely the need for an integrated national framework to manage hazardous sites. This focus on human health at the expense of other factors also places the NES in direct conflict with the provisions of the RMA for environmental impacts to be considered by TAs under section 31.

We further question the change in focus from current government policy as expressed in the Ministry for the Environment’s Health and Environmental Guidelines for Selected Timber Treatment Chemicals.

Those guidelines express the following goals, which are still relevant and should be applied in the current NES context:

• “protection of the health of site users, appropriate to the current or intended uses of the site;
• protection of the on-site environment consistent with the intended land use (e.g. protection of plant life on residential or agricultural sites);
• protection of the off-site environment, by specifying appropriate criteria for surface water andgroundwater and for disposal of waste materials to
  landfills.[2]”

Environment Southland believes that the proposed NES does not adequately define priority problems and that a holistic approach to both human health and environmental impacts needs to be considered. The impacts of an increased demand for site assessments have not been adequately characterised, particularly in a country where there is a small contaminated land profession.

Environment Southland does not believe that the policy objective should be constrained to human health impacts only. In the absence of New Zealand-based site guideline values, we believe that the use of existing Ministry for the Environment guidelines and an overarching NES would be more likely to result in robust site assessments allowing for the full range of impacts to be identified and considered. This would also allow for less conflict during investigations and allow for more continuity between territorial and regional authorities.

In the past, the functions imposed on local authorities have not been well supported due to the vague framework for contaminated land management implemented under the RMA. A strong framework involving better direction to both levels of local government is required to ensure consistency in approaches to contaminated land management. The current discussion document does not encourage this and appears to promote human health on site at the expense of all other aspects. The document also fails to consider human health impacts on and off-site arising from activities such as food gathering from waterways, the effects of site development in terms of the wider environment, and the health of workers (including maintenance and excavation workers) on site. Furthermore, the site guideline values presented in the NES are capable of instigating adverse environmental effects on site even at the levels provided due to their ecotoxicity.

Managing land use and contamination

Changes in land use within sectors are unlikely to be adequately captured under the scenarios posed in this section of the discussion document. There is no incentive for territorial authorities to register activities such as sheep dips where land use is changing within a sector (i.e. dry stock to dairy), as this does not tend to trigger a land use consent and the NES appears to have declined to assess the impacts of contamination on agricultural lands. The changing profile of land use in Southland, in particular within the rural sector, means that much valuable information is likely to be lost, if this has not already occurred, with demolition of wool sheds, holding yards, chemical storage and associated structures.

The rationale provided that agricultural land is overseen by MAF and NZFSA seems tenuous given there is no supporting evidence to show that information regarding food supply contamination is traced to source or is even identified in the volumes dealt with even by large organisations. The impending merger of NZFSA into MAF serves to highlight an increasing risk of a lack of oversight being established in this area. Meanwhile, the historic location of sheep dips in particular can result in a high risk of contaminant discharge to waterways via sediment and runoff. In recent times this council has become aware of stock grazing at least one heavily contaminated rural site in the region.

The current lack of legal obligation to report soil contamination to councils is a key issue across the board in Southland. Information is regularly received years and even decades after it was first prepared, if at all. This poses a real issue for Environment Southland as it prevents us from adequately managing our region’s resources. We believe that an amendment to the RMA requiring reporting of contamination and contamination incidents may be required to better handle this issue.

Ability to assess contamination

There is a perceived lack of expertise at local government level in Southland. Appropriate District Plan provisions may provide valuable assistance to planners and other staff, and allow for better and more consistent training of those staff. However, the lack of definition and accreditation for “suitably qualified” persons makes it difficult to ensure that the engagement of consultants is robust. The size and nature of the contaminated land profession in New Zealand also makes it difficult to avoid conflicts of interest. The discussion document further fails to identify whether there is sufficient industry experience and availability to deal with implementation of the NES in the absence of such suitably qualified people being available on council staffs.

What are the options?

Legislative amendment

Amending the Resource Management Act so that the functions of investigating and identifying contaminated land became duties would provide for a greater political buy-in to funding and management of hazardous site programmes at both a regional and territorial level. However, better definition of what is required in order to adequately meet those responsibilities is needed. This could potentially be met by providing central government targets to be met by local government as was practiced in the United Kingdom.

A better awareness of the costs of investigating potentially contaminated sites is required. Under the present framework, Environment Southland recoups little of the cost of site investigation. If large scale and region wide investigations are needed, then some guidance and thought needs to be given to how some of this cost might be recovered, either from central government, or through ways which do not greatly impact the wider rating base.

Environment Southland considers that the current non-regulatory guideline approach is not functional in Southland, because:

• guidelines are not binding on local government or on landowners;
• there is no onus for the provision of information at any level;
• they do not provide surety for the bulk of HAIL activities in terms of contaminants and acceptable levels;
• they do not provide continuity due to differences in interpretation.

In Southland we are currently reviewing our first generation plans and policies. We desire guidance in how we deal with contaminated land issues robustly to avoid an unsatisfying framework of voluntary agreements with landowners, which has frequently failed to achieve the desired environmental outcomes (e.g. pesticide dump issues, service station monitoring issues). Such guidance necessitates a strong national planning framework which includes both levels of local government and allows for the full spectrum of environmental effects to be efficiently and effectively considered.

Environment Southland agrees in principle with the concept of a National Environmental Standard, subject to the following conditions:

• an overarching policy statement may be required to provide better scope and definition to objectives;
• if the NES is to remain in its present form, its name needs to reflect its subject matter clearly – i.e. it is an NES for human health;
• consideration should be given to either introducing ecological values to the NES or to providing a further NES to allow for environmental and ecological impacts and management;
• an adequate provision to require reporting of site investigations to both levels of local government is required, possibly by amendment to the RMA. A requirement to advise of works being carried out would allow councils to follow up with landowners should information not be received in a timely manner.

The Proposed NES Planning Framework

Inadequacy of activity thresholds

Environment Southland believes that the proposed planning provisions are insufficient to obtain the desired environmental outcomes. In particular, we are concerned about the disconnection between human health and environmental impacts encouraging the development of land without sufficient control to its effects on the environment, people in the vicinity and even on site workers. Allowing the development of land which meets human health values, regardless of how those values are derived, is likely to result in the inappropriate development and use of land without adequate or appropriate remediation where this is required to avoid, remedy or mitigate environmental effects, including discharges to air and water, and the appropriate management of on site receptors.

There needs to be some mechanism by which regional councils are involved in this process and allow for adequate provision of information from landowners to fully assess and characterise contamination on properties – not just in the context of human health impacts. Ideally this involvement would be over and above affected party status to allow for sub-optimal developments to be refused if necessary. This need could possibly be partially covered by making the development of land which is contaminated to the level of adverse environmental effects a restricted discretionary or discretionary activity depending on whether remediation and subsequent robust validation procedures are to be carried out within appropriate timeframes. This would allow for regional council input to subdivision and development consents at a higher level.

This council understands that the out of scope matters covered in this section exclude those administered by regional councils. The restriction of scope to exclude groundwater and surface water receptors, while it appears sensible, is unlikely to result in TAs imposing restrictions to address effects on these receptors, particularly in a planning environment where no weight has been given to effects of contaminated land in the past. The use of water resources is arguably a function of human health and should accordingly be given some weight in rules.

We find that the requirement to provide information on a permitted status activity is inappropriate. As investigations will have already been carried out under the permitted activity status, if a report was withheld (generally because the land was found to be contaminated) it would be awkward for a council to refuse a retrospective consent to carry out the investigation works. Landowners would be unlikely to apply for consents where the work had already been carried out, leaving councils in the unfortunate position of having to take enforcement action relating to a permitted activity. We doubt that MfE’s intention was to create such a situation, where the expended effort is obviously disproportionate to the desired outcome.

Historic compliance with similar rules in regional plans has been sketchy and essentially related to landowner goodwill and / or desire to have land “cleared” as safe by councils. A legal obligation in line with those currently practiced in parts of Australia to report contamination and / or contamination incidents would be easier to enforce (refer to our previous comments regarding RMA amendments). This council has previously practiced enforcement discretion where spills have not resulted in contamination off-site and there is no reason why this would not continue under a similar regime.

Reports on findings should be provided to both levels of local government to prevent information from being siloed. A requirement for investigations to meet existing MfE guidelines would ensure consistency of information provided and that appropriate investigation methodologies are used.

In conjunction with the provision of work reports, a requirement to advise of the intention to carry out works could be imposed for 2-4 weeks prior to works. This would allow councils to note that works were being planned and ensure that all appropriate measures were being taken, as well as allowing a date stamp for ensuring that reports were provided. However, the permitted activity status for intrusive works does not allow either regional or district councils to recover costs incurred in monitoring such works.

The NES discussion document notes that the permitted activity would allow “small scale” and “temporary activities”, including removal of underground tanks. These terms need further clarification and we question whether the removal of underground tanks can be considered a “small scale” activity when frequently substantial contamination is only identified after tank removal is commenced. This can result in extensive intrusive works and large amounts of soil being removed for off site treatment and disposal. Intrusive works involving underground tanks can also result in groundwater impacts which would require careful management by regional councils.

Definitions are required for “small scale”, “large scale” and “temporary” to avoid equivocation in assessing compliance and the need for further consent. Furthermore, Environment Southland is in the process of notifying a plan change to make the removal of underground tanks a controlled activity. As the proposed NES does not allow for more stringent plan rules, this creates the risk that Environment Southland’s proposed rule will become ultra vires, even though the intention of the proposed rule is not to protect human health, but to avoid or mitigate wider environmental effects.

It is difficult to further quantify this council’s response to the proposed permitted activity rules as the soil guideline values remain open to dispute.