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Working Towards a Comprehensive Policy Framework for Managing Contaminated Land in New Zealand: Report on Submissions

Executive summary

1 Introduction

2 Overview of submissions

3 Key elements and work priorities

4 National environmental standards

5 Roles and responsibilities

6 Guidance

7 Liability

8 Accreditation

9 Capability

10 National information

11 Additional research areas

12 Additional opportunities

13 Workshop overview

Appendix A: Index of submitters

Abbreviations

References

7 Liability

When asked how significant a barrier the absence of a historical liability regime was, the dominant response was that it posed at least some form of barrier to the management and remediation of sites. The favoured solution was to adopt a retrospective hierarchical regime, or a polluter-pays regime. Some considered that more investigation was needed, while others were happy with the existing situation.

To compensate for the absence of a liability regime, most submitters considered that the Fund should at least be expanded. Other common suggestions were that the Fund should accept applications either directly from the public or from district and city councils, and be widened to be able to fund regional council identification and recording functions.

Significance of the issue

Twenty-eight (45%) submitters responded to this discussion point. Figure 5 provides a breakdown of the responses.

Seventeen submitters considered that the lack of a liability regime is a barrier (4) or a significant barrier (13) to the management/remediation of contaminated land. Issues identified included:

• it is difficult to hold polluters responsible for pre-1991, or even post-1991 contamination

• the ease with which polluters can transfer liability to innocent landowners

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

Although many of these submitters considered this issue to be significant, many also considered that any response should be carefully considered. Suggestions included establishing the extent of the barrier, drawing on previous Ministry work, and researching international regimes.

Seven submitters considered that the absence of a historical liability regime is not significant. Some felt that the default position under the RMA, where the existing landowner is liable for pre-1991 pollution, is a pragmatic approach. Others considered that remediation is more significantly affected by the availability of money and other barriers than by liability.

Table 14: Assessments of the significance of the absence of a historical liability regime, by submitter ID

Liability considered the best fit

Twenty-nine (47%) submitters responded to this discussion point. Figure 6 provides a breakdown of the responses.

The most favoured solution was to adopt a retrospective hierarchical regime (8) or a polluter-pays regime (8). Some recommended that the Ministry take legal action against polluters by requiring them to remediate, with some leeway given to historical activities that were Crown mandated (eg, sheep-dip sites).

Five submitters considered that liability should continue to rest with the landowner, given that the landowner benefits the most from a clean-up. Where liability or the ability of the landowner to pay is an issue, they felt that the existing Fund is an adequate mechanism to help local government and landowners to pay for remediation.

Five submitters felt that further investigation is needed and recommended reviewing a range of liability regimes.

Many of the above submitters also wanted an innocent landowner defence as part of any liability regime. A number of the submitters also commented on Crown liability. They stressed that the Crown needs to set a better example by cleaning up its portfolio of contaminated sites. Others also considered that the Crown should take responsibility for sites where the polluter cannot be found.

Table 15: Assessments of which liability regime is the best fit, by submitter ID

Modifications to the Fund

Thirty-eight submitters (61%) made suggestions as to how the Fund could be modified. Most (20) considered that the Fund should be expanded, arguing that it is insufficient to the cost of remediation. One submitter suggested a “superfund” made up of a mix of public funding and industry levy.

Twelve submitters considered that the Fund should be allowed to accept applications either directly from the public (6) or from district and city councils (6) rather than the regional council being the sole gateway for applications. Six submitters suggested that the scope of the Fund should be widened to fund regional council identification and recording functions.

Specific suggestions included assisting regional councils to:

• identify the location of widespread historical activities such as sheep-dip sites

• help councils deal with community outrage over contaminated land

• set up land information databases.

Others considered there should be better management of the Fund. Recommendations included modifying the administration to make the application and decision-making process more transparent and technically robust.

Table 16: Suggestions for modifications to the Contaminated Sites Remediation Fund, by submitter ID

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