National standard to tackle contamination - sorting the mess or adding to it?

By Marija Batistich, Senior Associate | Wednesday 24 March 2010

After many years of procrastination by previous governments over dealing with land contamination in New Zealand, Environment Minister Nick Smith put a proposed national environment standard on the table on February 5.

Given the lack of regulation and absence of compulsory guidelines to manage soil contamination in the country, the announcement was ground-breaking in itself. Action is certainly overdue - but taking a closer look at Dr Smith's proposal we could be faced with as many new issues as are solved by the proposed standard. The lack of resources in local government to deal with contamination appears to have been addressed by passing the buck elsewhere – to landowners.

While responsibility for maintaining and updating contaminated site registers stays with regional councils, the extent to which these registers exist and are updated has varied greatly between regions. When contamination issues do arise and they need fixing, or as it is termed "remediation", there has been no set standard to meet. One of the biggest bugbears has been determining the level of remediation required in each case; having no set standards as to what is required in each situation all too often results in costly and frustrating disputes between authorities and experts working in the field.

The proposed National Environmental Standard for Assessing and Managing Contaminants in Soil clarifies many of the when, where, who and hows of the issue. Land affected or suspected of being affected by contaminants must be assessed at the time of its development – and if necessary, fixed to a specified standard to make it safe for the proposed use. Sounds simple enough apart from the definition of development being extremely broad - any change of use or simply an activity that disturbs the soil is like to be caught by the standards. Landowners could find themselves breaching the standard in terms of the reporting obligations without in any way being aware they are doing so. The sanctions for this include potential prosecution for a criminal offence for breach the RMA.

One of the biggest changes the standard will bring is in investigations and reporting. Soil investigation reports, for example, will be required to be supplied to territorial authorities or if the applicant doesn't want to do this they must apply for resource consent for a discretionary activity. It is unclear what controls there will be or could be over the quality of reports, follow up actions and what happens to these reports once they're received by councils - do they then form part of the property file for the site and remain on the public record? What if the landowner decides not to proceed with any works or development, does that potentially leave the site marred by a report prepared for one historical purpose? Local authorities will now be armed with a tranche of reports for sites they had previously most likely never even investigated. It is unclear whether one of the purposes of the proposed standard is to monitor compliance with the RMA in relation to unauthorised discharges of contaminants, and if so whether it is intended that the provision of reports will over ride the common law privilege against self-incrimination. This needs to be clarified in order that all parties are aware of their obligations and potential ramifications of this requirement.

A key motivation of the new standard is achieving a more unified and consistent approach to registering contaminated sites. Until now some councils have been maintaining their contaminated site registers better than others. The Auckland Regional Council, for example, has a register that is easily searched and regularly maintained. Other regional councils have a laissez faire approach, with some placing properties on the register in haphazard fashion and based on limited and often historic information.

The reality is that regional councils have never been properly funded to undertake this work, and monitoring and enforcement of contamination is rarely, if ever, undertaken unless complaints are made by third parties, or in the media. Given that territorial authorities will now require copies of site investigations to be provided before granting resource consents to certain activities, it may be more appropriate that the register be jointly maintained by the regional council and territorial authorities in an area.

Clearer directions are required to regional councils to determine the basis for listing sites on the contaminated site register, given the implications for such a listing. Councils should as a minimum be required to establish a reasonable likelihood of potential contamination as a pre-requisite to listing. This is not addressed in the standard, and arguably ensuring the properties are appropriately listed in the first place should be the starting point. There is currently no process specified to challenge a listing, and this currently may occur through informal direct discussions with a regional council. However in our experience it is rare for a regional council to remove a property from the list. This proposed standard is the first step toward seeking to unify and regulate the requirements for remediation, and such objectives are clearly worthwhile. But there is a way to go yet.

There is no question of the value of the objective of providing consistent planning controls for subsurface investigations, and for proposals to develop, use and subdivide land containing soil contaminants. A proposal to specify soil guideline values for 12 'priority contaminants' as a national benchmark will set limits for contaminants and go some way to establishing a framework in New Zealand within which contamination must be addressed and remediation required.

In reality the effect of the new requirements will be to increase the front end volume of information required to be provided as part of resource consent applications involving land with soil contaminants – at a time when streamlining of the consenting process is being advocated by the Government.

Let's do this but let's do it properly – and that means further clarity and checks and controls in the process. The Ministry for the Environment is seeking submissions on the standard by 19 April – and it's worth interested parties finding out more and having a say. More information is available at: www.mfe.govt.nz/publications/rma/proposed-nes-managing-contaminants-in-soil/

For further information, please contact:

Marija Batistich
Senior Associate