Proposed National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health Evaluation under Section 32 of the Resource Management Act




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Proposed National Environmental Standard for Assessing
and Managing Contaminants in Soil
to Protect Human Health


Evaluation under Section 32
of the Resource Management Act

This report may be cited as: Ministry for the Environment. 2011. Proposed National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health – Evaluation under Section 32 of the Resource Management Act. Wellington: Ministry for the Environment.

Published in September 2011 by the


Ministry for the Environment
Manatū Mō Te Taiao
PO Box 10362, Wellington 6143, New Zealand
ISBN: 978-0-478-37257-1 (electronic)

Publication number: ME 1070

© Crown copyright New Zealand 2011

This document is available on the Ministry for the Environment’s website:


www.mfe.govt.nz

Contents



Contents iii

Tables v


Figures v

Executive summary vii

1 Introduction 1

1.1 Overview 1

1.2 The section 32 evaluation and report 4

2. Statement of the Issues 5

2.1 The legacy of contaminated land in New Zealand 5

2.2 Human-health effects 6

2.3 Current controls over contaminated land 7

2.4 Summary of the issues and gaps in current controls 14

3. The Options 15

3.1 Policy objective 15

3.2 Legislative and policy context 15

3.3 Evaluation of the policy objective under the RMA 16

3.4 Resource Management Act options 16

3.5 Comparison of alternative options 20

4. Proposed National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health 21

4.1 Introduction 21

4.2 Permitted activities 22

4.3 Controlled activities 22

4.4 Restricted discretionary activity 22

4.5 Discretionary activity 22

4.6 Consultation 22

5. Efficiency and Effectiveness of the National Environmental Standard 24

5.1 Measuring efficiency and effectiveness 24

5.2 Approach to measuring costs and benefits of adopting the NES 24

5.3 Costs and benefits 25

5.4 Implementation and support 31

5.5 Overall impact of the NES 32

5.6 Cost–benefit conclusions 34

5.7 Summary: efficiency and effectiveness 34

References 35

Appendix A: Post-consultation National Environmental Standard, as agreed by Cabinet 36

Appendix B: Section 32 of the RMA 41

Appendix C: Overview of Public Submissions 42



Tables

Table 1: Summary assessment of policy options 20

Table 2: Potential impacts for an individual council 25

Table 3: Potential impacts for landowners 27

Table 4: Estimated remediation costs 28

Table 5: Estimated reduction in exposure to contamination 30

Table 6: Estimated costs and benefits of the NES compared with the status quo 32

Table A1: How to determine which SCVs (health) are applicable 39

Table A2: Summary of soil contaminant values for inorganic substances (mg/kg) 39

Table A3: Summary of soil contaminant values for organic compounds (mg/kg unless shown otherwise) 39

Table A4: Land-use scenarios 40




Figures

Figure C1: Proportions of submissions, by sector 43

Figure C2: Breakdown of submitters’ positions 43





Executive summary


Land affected by contaminants in the soil needs to be identified, assessed and, if necessary, managed at the time of development to ensure it is safe for people to use. However, existing controls are either absent, inadequate or inconsistently applied. A national environmental standard (NES) is proposed that provides a suite of scientifically derived soil contaminant values that trigger an appropriate management action. It also prescribes nationally consistent land-use and subdivision rules that ensure land is fit for its intended use. This report provides an evaluation of the proposed NES under section 32 of the Resource Management Act 1991 (the RMA).
The evaluation found that the NES will enable economic use to be made of contaminated land while protecting the health of future residents. The impacts of the NES are expected to be greatest in those areas that have no explicit contaminated land rules or processes in place to address potential contamination and that are unlikely to develop any in the near future.
The NES is practicable and precisely targets the area of contaminated land policy that is presently weak. It is also designed to complement or give additional weight to the existing suite of central government initiatives.
A number of options were considered alongside an NES, including the status quo. All options were assessed against the following policy criteria:

provides certainty of policy content

creates administrative efficiency

promotes national consistency.


It was concluded there will be both costs and benefits of the NES. Having considered the available options, the NES is considered the most appropriate way of achieving the policy objective, with the main benefits being national consistency in human-health thresholds and improved administrative efficiency.
Overall, it is considered the NES is the most appropriate, effective and efficient means of achieving the objective of ensuring land affected by contaminants in soil is appropriately identified and assessed at the time of being developed, and, if necessary, remediated to make the land safe for human use.

1 Introduction

1.1 Overview


The Minister for the Environment proposes to introduce a National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health (the NES). This report provides an evaluation of the proposed NES under Section 32 of the RMA.

1.1.1 National environmental standards


The RMA enables the Minister for the Environment to prepare national environmental standards covering any matter referred to in sections 9, 11, 12, 13, 14 or 15 of the RMA. These standards have the force of regulation and are binding on local authorities. An NES may:

prohibit or allow an activity

restrict the making of rules or the granting of resource consents for specified matters

require certification of compliance with the regulations

specify the effect of the regulations on existing rules, and require local authorities to review existing resource consents within particular timeframes.

1.1.2 The Proposed National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health


The objective of the NES is to ensure land affected by contaminants in soil is appropriately identified and assessed at the time of being developed, and if necessary is remediated or the contaminants contained to make the land safe for human use. The NES would provide nationally consistent sets of planning controls and soil contaminant values for assessing and managing contaminants in soil. The NES proposes having a:

permitted activity status (no resource consent required) for the removal or replacement of fuel storage systems, impacted soil, and associated subsurface soil sampling

permitted activity status (no resource consent required) for small-scale (no greater than 25 cubic metres per 500 square metres of affected land) and temporary (two months’ duration) soil disturbance activities

permitted activity status (no resource consent required) for sampling activities

permitted activity status (no resource consent required) for subdividing land and changing land use where a preliminary investigation shows it is highly unlikely the proposed new use will pose a risk to human health

controlled activity status (resource consent required1) for the development of land where the risk to human health from soil contamination does not exceed the applicable soil contaminant value

restricted discretionary activity status (resource consent required2) for the development of land where the risk to human health from soil contamination exceeds the applicable soil contaminant value

discretionary activity status (resource consent required) for the development of land where the activity does not meet the requirements to be a restricted discretionary, controlled or permitted activity.3


Details of the NES as approved by Cabinet are included in Appendix A and they are discussed further in the remainder of this report.

1.1.3 Background to the NES


New Zealand’s legacy of soil contamination is mainly associated with past activities and industries involving chemicals (hazardous substances), where spills, leaks and/or the disposal of wastes have led to the presence of contaminants in the soil. The historical activities that have led to soil contamination include the manufacture and use of pesticides, fertilisers and petroleum products, the production of coal and gas, mining, timber treatment, and livestock dipping.
Since the early 1990s, councils have identified approximately 20,000 sites that are affected or potentially affected by contaminants from industrial, domestic or agricultural activities. Many of the more seriously affected sites have been identified and managed. However, many other sites are yet to be properly assessed, and it is expected that many additional sites will be identified over the coming years.4
New Zealand is fortunate that the scale of soil contamination is low relative to more industrialised countries. However, whereas most other developed countries have enacted specific legislation for contaminated land decades ago, the awareness of contaminated land issues emerged relatively late in New Zealand such that the RMA, when enacted in 1991, did not specifically take them into account. It was not until the RMA amendments of 2005 took effect that contaminated land functions were assigned to local authorities.
In 1992, the Australian and New Zealand Environment and Conservation Council (ANZECC) published the Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites. These guidelines were the cornerstone policy document for contaminated land in both countries, and were adopted to varying degrees by some councils (eg, the former Auckland City Council, the former Waitakere City Council, Waimakariri District Council, Environment Southland, Northland Regional Council and Otago Regional Council).
The Ministry for the Environment has published a suite of technical guidelines on assessing and managing contaminated land. Industry-specific guidelines for timber treatment sites and gasworks sites were first published in 1997, and the Contaminated Land Management Guideline (CLMG) series commenced with the first guideline, Guidelines for Reporting on Contaminated Sites, published in 2001. Since that time there have been additional industry guidelines and a series of 10 guidelines in the CLMG series, some of which have been updated since their first publication. Section 2.3.7 of this report provides more details on the guidelines.
In 2006, the Ministry began a review to establish how best to achieve a comprehensive policy framework for managing contaminated land. The review looked at all the policy measures which made up New Zealand’s contaminated land policy framework including legislation, regulations, strategies, funds and guidelines. The existing framework was considered to have gaps which could be addressed by either national environmental standards or best practice guidance.
A discussion paper (Ministry for the Environment, 2006) to stimulate discussion on a comprehensive framework was released in 2006, with extensive consultation carried out in early 2007. A position paper (Ministry for the Environment, 2007a) released in late 2007 identified three initiatives as being of high priority:

the development of nationally consistent methods and numbers that protect human health, delivered via an NES and guidance

the development of nationally consistent land-use and subdivision rules, possibly delivered via an NES

the continuation of the Contaminated Sites Remediation Fund.


The scoping and development of the NES addressing the first two priorities above began in 2008, culminating in the release of a proposed NES discussion document in February 2010.

1.1.4 Consultation on the proposed NES


To meet the requirements of the RMA,5 the proposed NES discussion document was publicly notified on 6 February 2010 in the main national and regional newspapers, distributed to iwi authorities and made available to the public. Fourteen workshops were held during March, attended by around 460 people. Submissions closed on 19 April 2010. Matters raised by submitters and the responses to those submissions are outlined in section 4 and Appendix C.

1.1.5 Scope


The NES covers assessing and managing the actual or potential adverse effects of contaminants in soil on human health from the following activities:

soil/site investigations

the use, development and subdivision of land.
Although implementation of the NES will enable councils to consider the effects of contamination on the use and development of land, it does not prescribe standards to assess and manage the actual or potential adverse effects on other receptors, including:

the on-site and off-site ecology

the on-site and off-site effects on surface water

groundwater – including human drinking-water sources

amenity values.
Councils may impose additional controls to address any potential or actual effects on these receptors.
The focus of the policy objective is on making the land safe for human use. This focus recognises the quality of soil affected by contaminants has already been compromised, and so ensuring that human health is protected is a pragmatic approach to enabling a safe use of such land. As a result, the scope of the NES is restricted to protecting human health. This should not detract from the ongoing role of regional councils and territorial authorities to assess ecological and other impacts on a site-by-site basis in accordance with their functions under the RMA.

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