SETTING THE STANDARD FOR CONTAMINATED LAND

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1 SETTING THE STANDARD FOR CONTAMINATED LAND Jonathan Coakley, Senior Adviser Ministry for the Environment Environment House, 23 Kate Sheppard Place PO Box Wellington, New Zealand Introduction National Environmental Standards are regulations made under sections 43 to 44 of the Resource Management Act 1991 (RMA). Standards can be numerical limits, narrative statements, or methodologies that are in a legally enforceable form. Examples of possible standards include: Noise Contaminants Water quality, level or flow Air quality Soil quality in relation to the discharge of contaminants The Ministry for the Environment has developed 14 standards to date which apply to air pollutants, dioxins and other toxics. The Ministry is preparing other standards on: Contaminated land management, to give a national approach on what are acceptable levels of contaminants in soil to protect people, and Sources for human drinking water, covering the way water is managed in catchments before it enters water treatment plants. Recent amendments to the RMA, which clarify the role of local government in managing contaminated land, provide a driver to develop standards. Another important driver is recent amendments to the tax legislation enabling tax deductions for environmental expenditure, including expenditure to clean up contaminated land. This paper will discuss the Ministry s progress towards developing standards for cleaning up contaminated land. Background Regional and local authorities have responsibilities for managing contaminated land under the RMA; however there is no clear guidance in the RMA about standards that must be achieved in relation to cleaning up contaminated land. As a result, there is inconsistency in the way local government addresses the issue, resulting in uncertainty for landowners and industry. Recent amendments to the RMA have clarified the definition of contaminated land and local government responsibilities. Under the RMA, contaminated land is now defined as land of 1 of the following kinds: if there is an applicable national environmental standard on contaminants in soil, the land is more contaminated than the standard allows; or if there is no applicable national environmental standard on contaminants in soil, the land has a hazardous substance in or on it that (i) has significant adverse effects on the environment; or (ii) is reasonably likely to have significant adverse effects on the environment. 1

2 Regional councils are responsible for the investigation of land for the purposes of identifying and monitoring contaminated land. Territorial authorities are responsible for the control of any actual or potential effects of the use, development, or protection of land for the purpose of the prevention or mitigation of any adverse effects of the development, subdivision, or use of contaminated land. The Ministry has an established work programme to provide guidance to local government to assist them with their responsibilities for contaminated land. Recent policy initiatives in the area of contaminated land include publishing the Contaminated Land Management Guidelines series, progressing guidelines for sheep dip sites and former horticultural areas, and providing funding to regional councils through the Contaminated Sites Remediation Fund. The proposed standard The Ministry is well underway on a work programme to develop National Environmental Standards for contaminated land. The work on contaminated land standards involved investigating a range of options including a rigorous analysis of the costs and benefits of developing standards. The starting point for analysing options was to investigate implementing the Australian National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM), which includes acceptable levels of contaminants in soil originally developed under the Australian and New Zealand Environment and Conservation Council (ANZECC). Other options (e.g. developing NZ-specific standards, maintaining the current policy framework of guidelines and non-voluntary measures) have been assessed against implementing the NEPM. The proposed standard for contaminated land will be developed to protect people. If contaminated land is cleaned to the levels in Table 1, the risk to people is considered so low as to be acceptable. The proposed standard will provide a benchmark for territorial authorities in their functions of controlling the effects of the use, development, and subdivision of contaminated land. Councils may grant resource consents that allow higher levels of contaminants at a specific site, provided at least one of the following conditions is met: Testing shows the particular contaminant is tightly bound to the soil and is not available for uptake by people The site has been chemically or physically treated to reduce the availability or toxicity of the contaminants to people The site is paved or sealed so the contaminants cannot contact people. This is only acceptable if the paving or sealing ensures no contamination moves off-site, for example in groundwater. It is not necessary to test for all the contaminants listed in Table 1 on every site only those that are reasonably considered to be present at elevated levels. Testing should be done after considering the site history and likely presence of contaminants. The contaminant levels listed here are considered conservative and are developed for protecting people, not the wider environment. They are appropriate for decisions on cleaning up contaminated land, for example as part of a land use change, subdivision or development. The proposed contaminant levels are not intended to protect against off-site impacts, for example adverse effects on the environment from leaching, surface water and sediment movement from contaminated land. Regional councils will need to consider such off-site impacts of contaminated land as part of their planning and consenting functions. 2

3 The soil contaminant levels have been taken directly from the Australian NEPM. Originally the levels were the result of extensive investigation and consultation through the joint Australian and New Zealand Environment and Conservation Council (ANZECC). The NEPM includes detailed support information on the derivation of the soil contaminant levels. Residential with access to soil Residential without access to soil Land use Recreation areas including parks Commercial and Industrial Contaminant Acceptable soil contaminant levels (mg/kg soil or %) Aldrin + Dieldrin Arsenic (total) Benzo(a) pyrene Beryllium Boron Cadmium Chlordane Chromium(III) 12% 48% 24% 60% Chromium(VI) Cobalt Copper Cyanides (complexed) Cyanides (free) DDT+DDD+DDE Heptachlor Lead Manganese Methyl mercury Mercury (inorganic) Nickel Polycyclic aromatic hydrocarbons (PAHs) PCBs (total) Phenol Total petroleum hydrocarbons >C 16 -C 35 aromatics >C 16 -C 35 aliphatics >C 35 aliphatics Zinc Table 1 - Proposed acceptable soil contaminant levels to protect people. The Ministry intends to work with industry groups to determine how the existing industry guidelines for timber treatment, oil industry, and former gasworks sites can work within the 3

4 framework of the proposed standard. It is likely that the existing industry guidelines will be particularly useful in site-specific assessments of contaminated sites. The Ministry s Contaminated Land Management Guidelines series will also serve to provide guidance on reporting, investigating, and information management of contaminated sites. Benefits of the standard The primary purpose of the proposed standard is to protect people from contaminated sites. The soil contaminant levels were calculated to ensure the protection of the most sensitive receptors on a particular site, for example children playing in residential areas. Sites that have soil contaminant levels exceeding the standard will need to be cleaned up to meet the standard or other action taken to manage the risk. The standard will provide the following benefits: Greater certainty for industry and landowners we expect the council will promote a level playing field for business and other landowners. Local government will use the standard in decision-making on contaminated land as part of their legal responsibilities. Businesses that choose to clean up contaminated land now receive an immediate tax deduction. The standard will help businesses and landowners when they make decisions on the clean up of contaminated land. Harmonisation with international practice New Zealand has played a key role in the development of the soil contaminant levels through ANZECC and more recently through the Environment Protection and Heritage Council. Adopting the same standards as the Australian authorities will enable New Zealand to take advantage of the expertise and knowledge of Australian practitioners, as well as create certainty for businesses that operate in both countries. Public consultation on the proposed standard The Ministry is currently preparing a discussion document on the proposed standard for release in November The discussion document will seek public feedback on the proposed standard, including a qualitative analysis of the costs and benefits of the standard. Following public consultation, the Ministry plans to coordinate a more detailed Cost Benefit Analysis of the standard including a section 32 analysis. Following this regulations will be drafted, subject to consideration by government. Conclusions The Ministry for the Environment is developing National Environmental Standards under the RMA for contaminated land. The standards will include acceptable levels of contaminants in soil to protect people. The standards will also provide greater certainty for local government, industry, and landowners when they are making decisions about cleaning up contaminated land. The Ministry will be seeking public feedback on the proposed standard over the coming months. Acknowledgements The Ministry acknowledges the input and assistance provided by the members of the Technical Reference Group Jo-Anne Cavanagh (Landcare Research), Nick Kim (Environment Waikato), Graeme Proffitt (Pattle Delamore Partners Ltd), Natalia Foronda (Ministry of Health), Simon Buckland (ERMA New Zealand), and Sally Gaw (University of Waikato) and the Policy Reference Group Simon Hunt (Caltex), Murray Parrish (Carter Holt Harvey), Robert Brodnax (Environment Waikato), Paul Dell (Environment Bay of 4

5 Plenty), Jenny Easton (Tasman District Council), Marcus Herrmann (Auckland City Council), Ken Robertson (VegFed), and Grant Kettle (Federated Farmers). The advice and feedback from these groups was valuable in providing a realistic picture of the impacts of the proposed standard. The members of the Regional Waste Officer s Forum have also provided useful feedback to the Ministry on the proposed standard. References 1. Resource Management Act ANZECC/NHMRC (National Health and Medical Research Council) (1992). Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites. 3. NEPC (1999). National Environment Protection Council (Assessment of Site Contamination) Measure. 4. Ministry of Health / Ministry for the Environment (1997). Health and Environmental Guidelines for Selected Timber Treatment Chemicals. 5. Ministry for the Environment (1999). Guidelines for Assessing and Managing Petroleum Hydrocarbon Contaminated Sites in New Zealand. 6. Ministry for the Environment (1997). Guidelines for Assessing and Managing Contaminated Gasworks Sites in New Zealand. 7. Ministry for the Environment (2003). Contaminated Land Management Guidelines No. 1 - Reporting on Contaminated Sites in New Zealand 8. Ministry for the Environment (2003). Contaminated Land Management Guidelines No. 2 - Hierarchy and Application in New Zealand of Environmental Guideline Values 9. Ministry for the Environment (2004). Contaminated Land Management Guidelines No. 3 - Risk Screening System 10. Ministry for the Environment (2004). Contaminated Land Management Guidelines No. 4 -Classification and Information Management Protocols (Draft) 11. Ministry for the Environment (2004). Contaminated Land Management Guidelines No 5 - Site Investigation and Analysis of Soils 5