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Executive summary

This document is a summary of the feedback provided on the Ministry for the Environment discussion paper Working Towards a Comprehensive Policy Framework for Managing Contaminated Land in New Zealand. The discussion paper presented:

  • an overview of the policy measures that make up New Zealand’s existing contaminated land policy framework

  • an assessment of the framework to identify gaps and possible solutions

  • a proposed Ministry work programme drawing on the solutions identified.

The submissions showed a close degree of alignment with the discussion document. Submitters strongly supported the proposed key elements of a comprehensive policy framework and the proposed work programme, and their respective priorities.

Submitters were especially supportive of the high-priority opportunities for:

  • developing a national guideline and national environmental standard (hereafter referred to as standards), providing human health-based soil levels derived using a New Zealand risk-based methodology.

  • continuing to seek additional funding for the Contaminated Sites Remediation Fund (hereafter referred to as the Fund) to enable it to contribute to larger remediation projects.

The main themes from the submissions are summarised below.

National environmental standards

Submitters want a standard to reduce the current confusion and uncertainty over the most appropriate value or method to assess hazardous substances in or on land. Most submitters expect the standard to include:

  • numerical soil contaminant levels to be used as trigger levels in a tiered, risk-based assessment

  • ecological and human health levels

  • supporting methods (for deriving and assessing soil contaminant levels).

Nationally consistent land-use and subdivision rules for contaminated land were the most commonly suggested other issues to which a standard could be applied.

Capability and capacity

Capability and capacity relate to the resources and expertise that are available for managing contaminated land. They directly affect the quality of outcomes and even whether contaminated land is addressed at all.

Consultation confirmed that the capability and capacity of local government is one of the biggest barriers to the effective management of land. The resources and level of expertise devoted to contaminated land functions within councils were reported by many submitters to be variable. In general, submitters considered that councils in the main population centres have a good level of awareness and are often well resourced. Regional and district plans will usually have specific contaminated land rules that place controls on activities, including subdivision and land-use change. Outside the main population centres - with some exceptions - submitters reported that capability and capacity decline. Regional councils, while mostly having a reasonable awareness of the issue, devote relatively small staff and financial resources. District council awareness is more variable.

In part, this variability between councils can be explained by the:

  • limited resources/expertise available

  • uncertainty over roles

  • low priority given by a council to contaminated land compared to other issues (eg, roading, wastewater).

To help overcome this barrier, most submitters wanted increased clarity on roles and responsibilities, additional resources, and more training and education.

There was less agreement over whether there is a lack of capability within the consulting community. Comments from consultants suggest that, like councils, the main urban areas are reasonably well serviced by capable and experienced consultants, with capability quickly declining outside of these centres. Feedback from workshops held in less populous regions confirmed that the appropriate expertise is often not locally available. Training and education were seen by submitters as an important capability builder within the consulting community.

Roles and responsibilities

Many submitters (and workshop participants) considered that there is significant uncertainty among the main agencies (district and city councils, regional councils, public health agencies) about how they should work together and what their roles should be. This uncertainty was thought to lead to disagreement between agencies, roles not being undertaken, and a lack of resources and expertise being devoted to the councils’ contaminated land functions.

Submitters considered this uncertainty is caused by:

  • the inability of councils to require clean-up of contamination that occurred historically, before the Resource Management Act 1991 (RMA)

  • variable awareness of the new RMA functions, especially among district and city councils

  • the lack of clarity and strength of the RMA contaminated land functions (they are not a duty)

  • the number of agencies involved.

RMA definitions and controls

Consultation suggests that uncertain RMA definitions and interpretations are contributing to variable practice and disagreement among councils and practitioners.

Many stakeholders report difficulty interpreting the definition of contaminated land, specifically, what “a significant adverse environmental effect” is and what is “reasonably likely”. Because there is no standard, no case law nor specific guidance, councils and practitioners are likely to have different and sometimes conflicting understanding of the definitions. Different understanding of the definition by councils is also likely to affect the accuracy of national information collected on the number of contaminated sites (see ‘Identifying sites and information gathering’ below).

Many councils manage the effects of historically contaminated land on groundwater through discharge consents issued under section 15 of the RMA. Often referred to as passive discharge consents, they usually contain conditions requiring the consent holder to monitor and manage the effects of groundwater plumes. Although these consents are seen as important for requiring effects on the environment to be controlled and/or managed, there is uncertainty over their legality due to their “passive” nature.

Workshop and submission feedback shows that many councils, especially district and city councils, have a low level of awareness of their contaminated land functions. Some councils, while aware of them, may be choosing not to resource them sufficiently due to competing demands. Many submitters considered that these awareness and resourcing issues are related to the voluntary nature of the function, and that these issues would be largely resolved if it was changed to a mandatory duty.

Some regional councils also consider that their functions are unclear and could be interpreted to commit regional councils to monitoring contaminated land in all situations.

Liability

Liability is managed under the RMA by the requirement to avoid, remedy or mitigate any adverse effects on the environment. However, there is no clear liability for pre-1991 sites. Generally, in these cases the buyer of the land becomes liable by default for any contaminants present on the land (caveat emptor, or buyer beware).

The degree to which this issue is posing a barrier to the clean-up of contaminated land is unclear, although feedback from submitters suggests that the barriers are associated with the:

  • difficulty holding polluters responsible for pre-1991, or even post-1991, contamination

  • ease with which polluters can transfer liability to innocent landowners

  • lack of any certainty over liability, which reduces the likelihood that sites will be identified and remediated.

Submitters favoured a retrospective hierarchical and/or a polluter-pays regime. In the absence of a historical liability regime, submitters supported an expanded and modified Fund.

Use of guidelines

There are many contaminated land guidelines that aim to help their users to assess and manage contaminants on land. However, feedback from many submitters suggests that their use is either incorrect or inconsistent. This inconsistency was felt to be caused by:

  • a lack of knowledge about how to apply the guidelines, or lack of awareness of the guidelines

  • the voluntary nature of guidelines

  • some of the older guidelines containing errors and not using consistent terminology or methodologies

  • the guidelines’ coverage of common soil contaminant levels being incomplete.

Other than revising the guidelines, many submitters suggested that all the guidelines be condensed into one overarching guideline containing a consistent methodology for derivation and a complete suite of common contaminant criteria.

A wide range of new guidance was suggested by submitters. The most commonly requested was guidance on cost-effective remediation options, and guidance on the roles and responsibilities of agencies and how they could best work together.

Identifying sites and gathering information

Regional councils have a function under the RMA to investigate land for the purposes of identifying and monitoring contaminated land. Many regional councils report that the main barrier to fulfilling this function is the difficulty gathering information and identifying the location of sites. Regional council submitters identified three main causes of these difficulties:

  • the costs and resources required to actively identify and investigate sites

  • landowners/occupiers are not compelled to report land contamination to councils - there is no incentive for landowners to come forward, and the threat of liability is a strong motive for landowners to avoid reporting sites, or even actively hiding sites

  • a decreasing awareness of the exact location of sites as the original landowners/occupiers sell or retire - this is especially a problem for establishing the location of the large number of historical sheep-dip sites.

Submitters agreed that collecting national information is important to monitor progress and inform policy development. Submitters also agreed that it was important to first improve how councils identify, collect and manage information.

Managing information

Councils have clear responsibilities through the Local Government and Official Information and Meetings Act 1987, the RMA 1991 and the Building Act 2004 to record and report hazardous substances in or on land. However, feedback from many submitters suggests that the accurate and consistent recording and reporting of this information is being hampered by:

  • poor communication between regional councils and district and city council databases

  • in some cases, the lack of an adequate land information database

  • an overly cautious approach by some councils to reporting information, due to fear of alarming landowners or potential landowners.

Submitters supported developing a model database and resources, and amending legislation to require landowners to report hazardous substances on their land.

Remediating sites

Many submitters considered remediation is hindered by lack of information on techniques, the relative expense of remediating land, and a strong public preference for removing contaminated soil from sites and disposing of it in landfills.

Variable disposal controls between regions and overly restrictive controls were also considered by submitters to be a barrier to remediation. Some considered that cleanfill definitions are too variable between regions and overly restrictive, resulting in large volumes of slightly contaminated soil being sent to landfill. Landfill waste acceptance criteria are often criticised for being inconsistent with contaminated guideline criteria. For example, landfill waste acceptance criteria are often more restrictive than contaminated land guideline trigger values for sensitive land uses.

Submitters also considered that the Contaminated Sites Remediation Fund needs to be expanded because it is too small to be able to deal with large projects. For example, there are individual sites that would by themselves completely use the available funding for the next three years. Some councils have also suggested that the funding be available to help councils identify potentially contaminated sites (eg, sheep dips).

Understanding soil contamination from common practices

Councils have been focused primarily on identifying land contaminated by industrial and commercial activities, and have put less effort into identifying and characterising land contaminated by common practices and activities.

Common contaminants (eg, PAHs1, lead and arsenic) in towns and cities from diverse sources (eg, roading, cars, fires, paint, pesticides and herbicides) can accumulate in soils to levels that can have significant effects. The distribution and range of concentrations of these contaminants is not well understood. However, it is known that in certain situations these contaminants can collect in soil to levels that may need to be managed. For example, lead from lead-based paint can collect in soils around old houses, arsenic can collect in domestic gardens from the overzealous use of weed killers, and PAHs may collect in soils near main roads, or from backyard burning.

Widespread farming and horticultural practices, including the use of fertilisers, agrichemicals and timber treatment preservatives (eg, treated vineyard posts), can result in contaminants collecting in soil to elevated levels. Farming practices such as fertiliser spreading and chemical sprays can result in levels of contaminants (eg, cadmium, arsenic) slowly building up in soils.

Guidance on ecological impacts

The RMA defines contaminated land as land that “has, or is reasonably likely to have, significant adverse effects on the environment”. The environment includes ecosystems, people and communities, natural and physical resources, and amenity values. There are many guidelines on how to assess the effects of soil contaminants on human health and on water environments. However, submitters noted that there is very little guidance on how to assess the significance of effects on the terrestrial ecology. They consider that this lack is causing inconsistency between councils setting soil contaminant thresholds to protect ecosystems and those choosing to protect human health only.

1 Polycyclic aromatic hydrocarbons

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