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Recommendations

Legislation

Some of the issues that arose during the Mapua clean-up reflected a lack of understanding of the rights, obligations and powers exercised in the management of Resource Consents. Some of these might be clarified by legislative change.

Commercial-in-confidence information.

It is important for businesses with proprietary processes to protect their intellectual property. At the same time it is essential that this information is available when assessing environmental risk and determining consent conditions. In the case of Mapua it appears that the use of reagents in the EDL was considered proprietary information. While a mechanism was established to make this information available for the project design and compliance monitoring processes, this arrangement seemed clumsy.

In some jurisdictions access to proprietary information cannot be denied to the regulating body. Legislation protects the security of this information by providing legal sanctions preventing the unauthorized release of information gained in the regulatory process. Significant fines and jail terms may be provided. MfE should explore means to address this issue that, if widespread, could have significant implications for the regulatory processes of the RMA.

Right of entry for enforcement purposes

At stages in the Mapua remediation the right of entry of enforcement officers for the purpose of taking samples was debated. One issue appeared to be a conflict between the obligations of the occupier to insurance policy requirements, and the access for enforcement and monitoring purposes. There was legal debate during the clean-up about the application of S332 of the Resource Management Act and its interpretation.

These issues could be addressed by legislative change, or by the provision of guidance and information for practitioners.

I recommend that the Ministry address the issues raised during the Mapua project to clarify these elements of the legislation, by providing clear guidance on the implementation of legislation.

Enforcement

The Mapua site remediation exposed a number of areas in which enforcement could be improved and better supported.

Some systemic solutions are available. The Ministry, in conjunction with Regional Councils, has published comprehensive guidance on various RMA processes for practitioners, consent holders and the public. Included in this package are descriptions of the enforcement tools available, their use and rationale. This comprehensive package resulted from a review of the RMA in 2005, and so was not available at the inception of the project.

For complex consent cases, such as Mapua, a clear shared understanding of the enforcement and monitoring requirements is essential. These agreements may be difficult to reach, but are an important element of a ‘no surprises’ approach.

I recommend the Ministry consider providing guidance to assist a consent holder and a regional council to negotiate and clarify key enforcement and monitoring requirements and the administration of the consent under the RMA.

This approach would be particularly valuable in the case of complex sites such as Mapua where considerable adaptive management is needed and the consent conditions are not specific. It may be limited to site contamination issues, or generalized across the administration of the RMA.

Ministry Role in Contaminated Sites Management

There are a number of areas of contaminated site governance that the Ministry uniquely can provide. A comprehensive process could include guidance to determine the relative benefits of containment vs remediation in dealing with contaminated sites.

The Ministry should prepare a contingency strategy for the unlikely event it has to assume an operational role. As a contingency, the strategy need only outline key options. Detailed planning is likely to be dependent on circumstance and individual sites, and should be carried out at the time.

The strategy should address

  • the distinct operational and Ministry governance roles, preferably in a structural way. A crown entity should be further investigated as a model;
  • the structural separation of the project team to ensure dedicated resources and focus;
  • a formal project planning process, with appropriate accountability, clear sign-off and close-out processes.

I recommend that the Ministry focus on the provision of key guidance, legislative support, regulatory tools, environmental standards, audit process and support for advice and research. It should generally avoid operational roles.

Expertise

There is significant value in maintaining a pool of expertise available to the Ministry and more generally in New Zealand. Bodies such as the Peer Review Panel provide invaluable support to projects such as Mapua. There is considerable opportunity for the Ministry to maintain close contacts with external experts as it develop its guidance and regulatory projects.

I recommend that the Ministry continue to develop its guidance and regulatory advice in close consultation with New Zealand experts to build and maintain effective relationships with these key individuals.

Environmental audit

Independent environmental audit is a robust and effective means of managing contaminated site risks. The credibility and effectiveness of environmental audit depend heavily on the expertise and independence of the auditors appointed. Assuring and administering the appointment of environmental auditors requires considerable ‘in-house’ resources and expertise.

Given the ‘market’ for contaminated site management in New Zealand is likely to be small, there may not be the demand for a stand-alone capacity to evaluate, appoint and review candidates. It is possible that the bulk of appointees are likely to be auditors appointed in other jurisdictions, who may seek recognition in New Zealand under mutual recognition arrangements.

I recommend that the structure of any environmental audit system be designed first should a proposal to accredit or appoint ‘experts’ be pursued.

Future Action at Mapua

There are several ‘close out’ requirements for the Mapua site. Some are required under the conditions of the Consent. Many of these are already in hand within the Ministry.

The Dilapidation survey needs to be completed.

The Site Validation report needs to be finalised.

A site auditor should be appointed to assess the site.

The outstanding financial issues need to be resolved.

With the signing of the Financial Deed on 8 September 2008 the structure of the arrangements are set. There are some remaining financial transactions that are dependent on the Deed provisions. The means of resolving the outstanding transactions are set out in the Deed and should not be complex.

An active relationship with the community of Mapua should be re-established

The Ministry has previously been active in keeping the local community informed during the remediation, but is reported to be less visible now. The Ministry should review its community engagement strategy and reinvigorate its involvement with the community of Mapua. There are significant opportunities as the project is finalised.

The Ministry has previously undertaken to commission a ‘history’ of the site and its remediation. While the project is not yet formally closed off, and a ‘complete’ history may be premature, the Ministry should to resolve its intentions for this project.

I recommend that the Ministry’s Mapua Project Team develops a clear and well-communicated plan to deliver the Ministry’s remaining obligations with respect to the Mapua Site.

 

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Last updated: 11 December 2008