Environmental / Resource Management

New NES for Contaminated Sites

New Zealand's clean, green image has taken a bit of a beating in recent years. This is largely the legacy of industrial, agricultural and horticultural practices that reflected ignorance of or indifference to the impact on the environment.

One of the more problematic issues we are left to deal with is that of contaminated sites. When land, that has historically been used for some activity that required the use of hazardous substances, becomes available for redevelopment, the issue becomes one of ensuring the new activity is safe for users.

The Government is addressing this issue in part through a new National Environmental Standard. The Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011 (NES) comes into force on 1 January 2012.

The NES applies to any activity:

  • relating to the removal or replacement of a fuel storage system ( = underground tanks for aviation kerosene, diesel, kerosene, lubricating oil or petroleum and ancillary equipment)
  • sampling or disturbing soil of land that has or has had an activity or industry described in the HAIL undertaken on it
  • subdividing land that has or has had an activity or industry described in the HAIL undertaken on it
  • changing the use of land that has or has had an activity or industry described in the HAIL undertaken on it.

The HAIL is the Hazardous Activities and Industries List, which is a compilation of activities and industries that are considered likely to cause land contamination resulting from hazardous substance use, storage or disposal.

An applicant for a resource consent for an activity covered by the NES can establish whether or not the land has, or has had, an activity or industry described in the HAIL undertaken on it either by:

  • using the most up to date information held by the territorial authority or regional council; or
  • undertaking a preliminary site investigation.

In either case the applicant must meet the costs involved. The first method has implications for local authorities asked to supply such information in terms of availability and the degree of reliance that may be placed on its accuracy.

Each of these activities covered by the NES is a permitted, controlled, restricted discretionary or discretionary activity under the RMA depending on its ability to meet the criteria set out in the NES.

Standards are set for the activities described above in accordance with the Methodology for Deriving Standards for Contaminants in Soil to Protect Human Health. The NES does not apply to a piece of land that has a detailed site investigation demonstrating that any contaminants are at, or below, background concentrations.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.

 

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