File No: 47 07 10
Document No: 1655714
Enquiries to: Michelle Begbie
X April 2010
Ministry for the Environment
P O Box 10362
WELLINGTON 6143
SUBMISSION on the PROPOSED National Environmental Standard for ASSESSING AND MANAGING CONTAMINANTS IN SOIL
Thank you for the opportunity to submit on the proposed National Environmental Standard for Assessing and Managing Contaminants in Soil. Please find attached Environment Waikato’s submission.
Please note that this feedback has been prepared by Environment Waikato staff, and has not been considered by elected representatives.
If you have any queries regarding the content of the feedback please contact Michelle Begbie on (07) 859 0510 or by email .
Yours faithfully
Vaughn Payne
Group Manager – Policy and Transport
Doc # 1655714 Page 19
SUBMISSION ON THE NATIONAL ENVIRONMENTAL STANDARD FOR ASSESSING AND MANAGING CONTAMINANTS IN SOIL
TO: Ministry for the Environment
P O Box 10-362
WELLINGTON 6143
FROM: The Chief Executive Officer
Environment Waikato
PO Box 4010
HAMILTON EAST 3216
Waikato Regional Council (“Environment Waikato”) appreciates the opportunity to comment on the Proposed National Environmental Standard for Assessing and Managing Contaminants in Soil. This submission provides general comments and specific issue analysis as requested by the Ministry for the Environment.
1.0 General Comments
We thank the Ministry for the Environment for the opportunity to review and comment on the proposed National Environmental Standard for contaminants in soil.
In general we support the main intent of the NES, which is to provide territorial authorities with planning tools to facilitate the human health related aspects of their contaminated land functions given in RMA s31(b)(iia). One result of this will be standardisation in the management and regulation of contaminated and potentially contaminated sites across the country.
We appreciate that years of background work have been involved, and commend Ministry for the Environment staff for their dedication to the task of improving the policy framework for contaminated land management in New Zealand. We also appreciate that the NES is intended to be specific to territorial authority contaminated land functions and is not intended to solve all issues raised during management of contaminated land, such as protection of off-site receptors or groundwater.
We are pleased to see that the NES supports good working relationships and collaboration between regional and territorial authorities.
However, there are two significant issues that we would like to see addressed before the proposals proceed to a regulation:
· Inclusion of a provision that would enable territorial authorities to consider protection of environmental receptors on a case by case basis, where this is warranted and back by appropriate technical justification. We suggest a mechanism for this below (see part 2.1)
· Ensuring that properties approved for residential and rural residential use are suitable for growing vegetable produce, where this is defined as produce that is likely to meet food standards. This primarily relates to the ‘reasonable expectations’ of property owners, as well as the fact that some home produce is sold. Discussion on this point can be found in part 2.7.
Beyond these we also raise a number of other issues which we would like Ministry staff to consider.
Our submission is structured into four broad parts: this introduction and general comment; the derivation and application of the proposed Soil Guideline Values; proposed planning controls, and finally a summary including recommended adjustments to the NES. Recommendations throughout the document have been highlighted for ease of reading.
2.0 Proposed Soil Guideline Values (SGVs)
2.1 Potential for NES to subvert the purpose of the RMA
The purpose of the RMA (s5) is: “…to promote the sustainable management of natural and physical resources [where] sustainable management includes […] safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and avoiding, remedying, or mitigating any adverse effects[1] of activities on the environment”[2]. Contaminated land functions of territorial authorities under s31(b)(iia) of the RMA are control of any actual or potential effects of the use, development, or protection of land, including “for the purpose of […] the prevention or mitigation of any adverse effects of the development, subdivision, or use of contaminated land”.
There is nothing in RMA s31 which specifies that territorial authorities should restrict their considerations to human health, and neglect to consider effects of contaminants in soil on environmental receptors in situ. We appreciate that Ministry for the Environment staff will already appreciate this. These comments apply particularly to environmental issues associated with presence of hazardous substances in soil that are not linked to identified discharges, and can not be readily controlled by regional councils.
We are concerned that in operational practice, the focus on human health SGVs in the proposed national standard will inevitably result in territorial authorities neglecting to consider the effects of contaminants in soil on ecological receptors in the same soil, such as plants.
To the extent that a focus on human health is likely to institutionalise this practice, we suggest that operation of the national environmental standard may be in conflict with[3] the purpose of the RMA, the act that provides for national environmental standards to be developed. As time goes on, it would become progressively more difficult for regional councils or others to suggest that more stringent guidelines should apply to contaminants in situ in specific cases, without bringing in their own planning rules.
We understand that the intent of the proposed SGVs is along the lines “territorial authorities must at least meet this standard.” While this is a laudable aim, we are concerned that there is no requirement for territorial authorities to ascertain whether it is necessary to look any further than human health in specific cases, to establish that land is fit-for-purpose in relation to contaminants in situ.
In our reading of the RMA, the role of territorial authorities extends to ensuring a property is fit for purpose, and this includes both human and environmental receptors.
Summary
Implementation of the NES would ensure that territorial authorities manage risks to human health (at the point a land use consent is received) by ensuring SGVs for human health protection are met. We recommend that the NES toolkit also provide territorial authorities with an option to decline resource consent in cases where risks to ecological receptors in soil are deemed to be inconsistent with the proposed land use.
Such a provision would not detract from the importance of considering human health in the first instance, but would leave the door open for territorial authorities to consider ecological risks where valid evidence is brought that these are likely to pose a genuine problem. Operation of the NES could not then become a means of locking out potential consideration of ecological receptors, where such concerns have merit.
An alternative means of ensuring that the proposed NES remains consistent with the purpose of the RMA (in operational practice) would be to retain the proposed district plan provisions, but link these in the first instance directly to the guideline hierarchy document Contaminated Land Management Guideline (CLMG) #2.
Recommendation: Our view is that the best general approach would be to consider both human and environmental receptors, and derive a default guideline that is protective of both. However, in the absence of this – or in the interim – we think workable solutions may include providing territorial authorities with an option to decline resource consent where risks to plants etc may be inconsistent with the proposed land use, or by using guideline values already provided by CLMG #2[4].
2.2 Shift from previous policy
We note that the focus on human health deviates from previous contaminated land policy identified in Health and Environmental Guidelines for Selected Timber Treatment Chemicals (1997), also known as the Timber Treatment Guidelines (TTGs). We think this is relevant because the TTGs identify their own risk methodology as representing Government policy (Section 1.5.6 of the TTGs): “The guidelines are significant in that for the first time they set out a model of risk assessment adopted as Government policy for application to contaminated sites”.
Although errors have been identified in the TTGs in relation to derivations for some contaminants, the broad policy approach was to derive joint guidelines that would offer protection for both human health and ecological receptors. The NES work represents substantial updating of the human health risk assessment component of the TTGs, but at the same time abandons the wider framework which considers both human and environmental risk in the same guideline value.
We note also that this approach is out of kilter with Principle 1 of Contaminated Land Management Guidelines No. 2 - Hierarchy and Application in New Zealand of Environmental Guideline Values, which states that: “…it is important to consider all receptors (human and ecological) on and near a site.”
Of course, these provisions in both documents only reflect the purpose of the RMA, discussed above. To the extent that legislation defines current Government policy, it is not evident that baseline Government policy has actually changed.
Recommendation: That the final form of the NES is consistent with previous policy, and incorporates the recommendation above, which equally apply for this section.
2.3 Addition of further SGVs and incorporation of best science
The NES strives for a consistent approach to the regulation and management of contaminated and potentially contaminated land. However, consistency in land assessments will only be achieved across the 12 SGVs proposed for human health within the narrow scope defined by the NES. Once these SGVs are in place, it will be time-consuming and costly to add SGVs for other contaminants, and to alter the SGVs in response to new research (requiring a formal amendment to the NES).
The proposed NES encourages site specific risk assessments for contaminants, land uses and receptors outside the scope of the proposed NES, but it should be recognised that site specific assessments would be outside the capability (and financial constraints) of most land development projects, as the development of site specific SGVs would require the input of the toxicological working group into intake values etc.
While we believe that having a rigid approach for planning controls and district plan rules is appropriate, inserting SGVs as part of the NES is inflexible and would not allow the timely incorporation of new science. Authorities need to be able to respond quickly to new research and changing WHO reference doses/intake values; and don’t want regulations to lag behind because of delays in amending an NES. It is likely that future risk based decisions (which cannot ignore new science) could be in conflict with the legislation. An example of this is the time lag in amendments to the NES for Air Quality after changes in the guideline value for SO2 in air from WHO, which is now 5 times lower than the national standard.
There should be consideration to the long term improvement and scope expansion of the SGVs. We believe that the best way to achieve this would be to keep the SGVs outside of the NES, perhaps in an amended and updated version of CLMG #2; which is given effect to by the NES.
Recommendation: Incorporate SGVs into an amended version of CLMG #2 and direct the district planning controls in the NES to give effect to it.
2.4 Dropping the 50% produce ingestion values
For relevant land use scenarios, derivation of the human health SGVs includes an assumption that a certain proportion of food eaten by the property owner is grown on that property.
For reasons outlined in section 2.2 of this document, the current policy approach to this is defined in the Timber Treatment Guidelines (1997) (TTGs). This assumes that for some people, home produce may comprise up to 10% of their food intake, whereas for others, home produce may comprise up to 50% of total food intake. We support inclusion of the home produce pathway in derivation of SGVs.
Up until now, the 10% produce ingestion figure has been used to represent urban residential land use scenario, and the 50% produce ingestion figure (usually a lower guideline) has been used to represent exposure on the rural-residential (lifestyle block) scenario, or the area around a farm house.
We note a policy decision has been proposed to drop SGVs based on 50% home produce ingestion, under the NES. In our view this would be a retrograde step, for five reasons:
· As the NES discussion document notes, there is a lack of data about the exact amounts of home produce that people are eating, the proportion of people that 10% and 50% assumptions would be protecting, and likely future trends in home produce consumption. Conventionally, the appropriate risk-based response to lack of information is to opt for a precautionary approach.[5] By contrast, the NES proposal is to adopt less precaution than that which has previously applied, despite there being no data that would justify this relaxation in approach. Our view is that new policy should not be built on an information void.
· Anecdotal but persistent information suggests that more people are rediscovering the art of home vegetable production, and that future trends are likely to head in this direction. Reasons given include strained economic times, increased environmental awareness, desire for contaminant and residue-free foods, and a quest for more self-sufficiency as the population expands.
· Similarly, since the NES discussion document was released, we have received many comments about specific examples of people who are known to eat well over 10% home produce. Examples of 50% (and greater) do exist.
· Assuming that greater than 10% produce consumption is relatively common; the proposed NES does not provide direction to local authorities on how to manage this risk. In these instances, the consistency that the NES strives for will be lost and inequalities will arise in the management of these sites across the country.
· There is also an apparent trend towards pot-gardening. When plants are grown in pots, contaminant uptake is usually greater than it would be in the field. This means that the NES BCFs could easily under-estimate uptake that will occur when homeowners use their home soil for pot gardening, and a 50% ingestion scenario could help to counteract the under-estimate.
Summary
Since 1997, New Zealanders have been afforded with the protection offered by SGVs that allow for both moderate and high levels of home produce ingestion. In operational practice, the 10% home produce ingestion soil guidelines have mostly been used for urban residential land, and 50% guidelines have been used for rural-residential land. In the absence of better information about rates and future trends in home produce consumption, this precautionary approach should continue.