Soil Contamination NES ^Featured

New Zealand now has an NES for Soil Contamination.  The Governor-General recently passed by Order in Council the Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011.  The NES will come into force on 1 January 2012, providing guidance on planning controls that direct the requirement for resource consent for activities on contaminated (or potentially contaminated) land, as well as mandating a set of national soil contaminant standards and best practice guidelines for investigating/reporting on potentially contaminated land.   

Background to the NES

The NES follows a series of attempts to introduce legislation and/or central government policy direction relating to soil contamination.  These include, for example, the 2005 amendment to s31(1)(b) of the RMA requiring territorial authorities to control the effects of use or development of land for the purpose of prevention or mitigation of contaminated land).  Past attempts to regulate this issue were not comprehensive (nor particularly effective) - following the 2005 amendments, a Ministry for the Environment (MfE) review found that the processes used by terrritorial authorities to identify and clean up contaminated sites were ad hoc and variable. 

In early 2010, a discussion document on the proposed NES was publicly released, and attracted 106 submissions.  Following review of those submissions, the NES was finalised. 

Policy Objective

According to the MfE's 'Users' Guide' to the NES, its policy objective is "to ensure that land affected by contaminants in soil is appropriately identified and assessed at the time of being developed and, if necessary, remediated or the contaminants contained to make the land safe for human use".  It seeks to achieve that objective by:

• providing a nationally consistent set of planning controls and soil contaminant values; and
• ensuring that land affected by contaminants in soil is appropriately identified and assessed before it is developed - and if necessary the land is remediated or the contaminants contained to make the land safe for human use.

How does it Work? 

The NES applies where a person wishes to undertake any of the specified activities on land where an activity or industry described in the Hazardous Activities and Industries List is being undertaken, has been undertaken, or is more likely than not to have been undertaken.  The HAIL list is therefore the 'trigger' for determining which land is covered by the NES.  Determining whether land falls within the HAIL list will no doubt generate significant discussion around the "more likely than not" test, which will be a case-by-case matter between landowners and council officers. It is important to note here that the NES applies to the "piece of land" affected by (or likely to be affected by) contamination rather than the entire property parcel.

The NES sets out two methods to be used to establish whether a piece of land is captured by the NES (i.e. whether it falls within the Hail list).  These are both by way of desktop study, being either: by review of information held by the relevant local authority; or by conducting a "preliminary site investigation" by a "suitably qualified and experienced practitioner".  "Suitably qualified and experienced practitioner" is not defined.

Once it is established that a piece of land is covered by the NES, there are certain activities which may require resource consent.  Those activities are:

• removal of underground fuel storage systems and associated soil;
• soil sampling;
• soil disurbance (including levelling, trenching or excavating);
• subdivision of land; and
• change in land use where, under the intended land use, exposure to soil is reasonably likely to harm human health.

Each of the specified activities covered by the NES may be undertaken as permitted activities, provided that they do not exceed stated maximum volumes, and that certain guidelines are met, controls are in place, reports completed, and reinstatement carried out within a set timeframe.  In the event that requirements for permitted activities are not met, the NES provides that these activities may be controlled, restricted discretionary or discretionary.  Matters over which control (or discretion) are reserved (or restricted) are specified in regulations 9 and 10 of the NES.  Importantly, to consider granting resource consent to a controlled or discretionary activity pursuant to the NES, the consent authority must receive a detailed site investigation measuring the soil contamination against the applicable standard, or soil guideline value.  If detailed investigations show the contamination does not exceed the SGV, then the activity to be undertaken is a controlled activity.  If the detailed investigation shows that contamination exceeds the SGV, then the activity to be undertaken is a restricted discretionary activity.  In the latter case, the applicant has two options to make the land safe:

• remediating it to reduce the concentration of contaminants;
• managing ot to prevent people being exposed to contamination. 

The matters over which discretion is restricted include: adequacy of site sampling; suitability of the land for the proposed activity; method, timing and standard of remediation; mitigation methods to address risk to human health; transport and disposal of soil; requirement for a financial bond; timing and nature of review of conditions of consent; and duration of consent.

Any activity covered by the NES which is not permitted, controlled or restricted discretionary falls to be a fully discretionary activity.  This includes where a detailed site investigation is not provided to the consent authority.

Important Points to Note

Some key points to note about the operation of the NES are:

• the NES only applies to land actually or potentially affected by contaminants due to current or historical land uses; 
• the NES only applies to certain changes in land use which take place after 1 January 2012 - existing uses of land are not covered;
• a land use or subdivision resource consent granted before 13 October 2011 (the date of publication of the NES in the Gazette) will prevail over the NES;
• the NES applies to fewer activities on production land as compared to residential land.

Comment

The key principle of the NES is that land which is not identified or suspected as contaminated will not be subject to the requirement to undertake expensive site investigations as a condition of obtaining resource consent.  This seems sensible.

The importance of demonstrating that a site has not been the subject of potentially contaminating land uses will mean that obtaining historical land use information will assume increased significance.  Purchasers of property will be well advised to require details of all historical land uses from vendors, and should seek appopriate warranties and/or indemnities accordingly.  The NES is likely to increase incidences of landowners trying to recover remediation costs from previous landowners, and vendors will accordingly seek to limit their ongoing liability.

Further, the NES will lead to increased demand for expert services, and this is likely to result in a number of consultants holding themselves out as a "suitably qualified and experienced practitioner".  The lack of definition in the NES as to exactly what constitutes a suitably qualified and experienced practitioner could lead to issues for applicants and territorial authorities alike.  The benefit of a wide interpretation will mean a larger available group of experts, and consequently, that site investigation reports can be prepared without delay and at the lowest cost to applicants.  However, consent authorities will wish to ensure that they can have confidence in the expert findings and so may push for a higher standard of expertise to be demonstrated.

Prospective purchasers of land - particularly in certain high risk areas - should be carrying out their own investigations into historical land uses of the target property in anticipation of the NES taking effect in 2012.  At the very least, this should include making due and diligent enquiries of the vendor, and reviewing council property files.  This will avoid any nasty (and potentially expensive) surprises.