This report covers some of what transpired on Wednesday and Thursday 16th and 17th of March. The issues of interest in this post include:
1) Organochlorine contaminants and "cleanfill" acceptance criteria
2) Grilling to ascertain witness independence
3) Auckland residential soils contaminated sites
1. Organochlorine contaminants and "cleanfill" acceptance criteria
The Envirowaste expert witness cross-examined on this topic was Dr Northcott. (His evidence is available through my "evidence" blog)
In cross-examination by Matheson for the applicant (Fletchers/Winstone), Northcott confirmed that "the DDT levels currently permitted in Schedule 10 of the draft conditions of consent has the potential to have an impact on ecosystems and human health..." (This schedule is set out in the "Steps toward a Permit to Pollute (1)" blog)
At this point, Judge Smith got interested and asked, "is Auckland Council deliberately endangering the population...?"
Dr Northcott confirmed: "...it has that potential, under certain circumstances..."
Judge Smith asked Dr Northcott to enlarge on that.
Dr Northcott's answer included: "...my experience is of the way in which organochlorines are released and distributed in the environment..."
Around this point there was an interesting discussion about what earthworms do with DDT and other organochlorines. Dr Northcott explained that the problem is that animals (like earthworms, birds and humans) bio-accumulate organochlorines. (In my opinion this sort of expert information is critical because the dumpers tend to assume that "dilution is the solution to pollution" - ie the rest of the cleanfill will absorb the contaminants, or the water will dilute them. But the problem is that organochlorines behave differently. Animals absorb very tiny doses and then concentrate them.)
There was further discussion when Kirkpatrick cross-examined Dr Northcott. Judge Smith intervened to explore the point further. His comments included:
"...I want to understand... "there is a provision in a plan that allows for human health risks in Schedule 10 of this consent...".... "...how could this be?..."
This discussion strikes at the heart of the underground water issue. The Auckland Council has submitted that because the application complies with its Regional Plan (because Schedule 10 of allowable contaminants fits its definition), then it should be allowed to go ahead, subject to conditions. That is also the position of Fletcher/Winstones. However expert evidence is on the table that permitting a "cleanfill" to operate at the Schedule 10 levels "has the potential to have an impact on ecosystems and human health..."
I note at this point there is plenty of RMA caselaw which in effects states: "...compliance with the provisions of a plan is not necessarily sufficient compliance with the Act..." In other words plan provisions can be out of date, wrong, or not specific enough for the issue under scrutiny. In those cases, and to avoid adverse effects etc, then it is encumbent on the applicant to demonstrate there are no adverse effects - despite compliance with the provisions of the plan.
This same issue emerged when I challenged Watercare in regard to using Waikato water for drinking water purposes. At the time Watercare cited the New Zealand Drinking Water Standards as its goal, and that in meeting them it would comply. I sought expert evidence from around the world. One of my experts was Professor Okun from University of Carolina, and at the time an acknowledged expert. I quote here directly from that 1998 evidence:
Dependence on drinking water standards, when water is drawn from a source that receives discharges from a wide variety of industrial and agricultural enterprises, is recognized by public health authorities as being inadequate, particularly with regard to trace organic compounds. That is why new contaminants are continually being evaluated. It may take decades before sufficient information is available to include them in the regulations. Maximum contaminant limits in the United States and MAVs are developed through animal studies, based upon exposure to single contaminants, ignoring the probability that their effects may well be additive or even synergistic. The regulations are always far behind our knowledge.
The National Academy of Sciences in the United States prepared a nine-volume publication, Drinking Water and Health, which in Volume II (NAS 1980) stated: “Approximately 90% of the volatile organic compounds (in water) that can be analyzed by gas chromatography have been analyzed, but this represents no more than 10% by weight of the total organic material. Only 5 to 10% of the nonvolatile organic compounds that comprise the remaining 90% of the total organic matter have been identified.” While the numbers of identified compounds may have increased since 1980, the number of new compounds invented that find their way to water sources that receive wastewaters has increased at a much greater rate. There is much more interest and effort in developing new compounds for the chemical and pharmaceutical industries than in finding out how to monitor their presence and determine their health significance.
Commissioner Howie joined the discussion at this point. He had noted Dr Northcott's assertion about the incompleteness of Schedule 10.
Commissioner Howie asked Dr Northcott, "what chemicals are missing?"
Dr Northcott replied "Lindane, Aldrin, Endo Sulphan, Chlordane, Hexa Chloro-Benzene. These were readily available in New Zealand. They are mentioned in Auckland Regional Council reports...."
Judge Smith asked, "but condition 8 'all other' captures them doesn't it?"
Dr Northcott replied, "they should be specifically mentioned..."
After further discussion, Commissioner Gollop asked Dr Northott, "isn't endochrine disrupting controversial?" (He was alluding to debates about effect of organochlorines on health.)
Dr Northcott replied, "No. Other regulators accept there is a risk. Have done so for 10 years."
2. Grilling to ascertain witness independence
At this point the cross-examination by Judge and Commissioners changed tack to exploring the independence of Dr Northcott. This was similar to their cross-examination of other expert witnesses supporting Envirowaste's (ESL) submissions in opposition.
Judge Smith: How did you get your instructions from ESL?
Dr Northcott: Took notes. Was approached by Chris Lobb. Phone conversation 22nd April 2010. Asked me if I was available to review materials and comment on DDT.
Judge Smith: Did you give written advice?
Dr Northcott: First related to Burden's work on groundwater.
Judge Smith: When?
Dr Northcott: Soon after, around September 2010.
Judge Smith: Were you aware that ESL was a trade competitor?
Dr Northcott: Yes.
Judge Smith: Were you aware that ESL sought a change from ARC to their own consent (in respect of Greenmount landfill)?
Dr Northcott: No.
Judge Smith: Is this of concern to you?
Dr Northcott: Yes, but I didn't know. I wasn't asked.
Judge Smith: I'm asking you now.
Dr Northcott: Yes I would be... But Greenmount's not the same as Three Kings because of the groundwater issue.
Judge Smith: I'm not asking you that...
Judge Smith: Should you have been informed by ESL about what else it was doing?
Dr Northcott: No. I was asked specifics on this case. I am independent.... my primary goal here is to provide evidence regarding groundwater resources.
3 Auckland residential soils contaminated sites
After further cross examination of Dr Northcott, the questions shifted to examinbe issues around Auckland's residential (and commercial) property soils, and risks associated with their disposal. The issue was in part - can Auckland soils be regarded as uncontaminated cleanfill.
Judge Smith: Do you agree risk of organochlorines affected by how much soil there is, and how much water it is exposed to, and permeability...?
Dr Northcott: Yes.
Then there was a detailed conversation about how long it takes water to flow through deep cleanfill, and how long it will take to leach out contaminants like DDT. There was also discussion about the leaching predictions of the computer model. And the difference that it makes using disturbed soil, vs compacted soil. This led to another line of questioning:
Judge Smith: Are you saying that every site in Auckland contains soil contamined with DDT and Arsenic? At levels that are a risk?
Dr Northcott gave an example of a typical residential driveway where DDT and other pesticides have been routinely used over the years they were freely available. He explained that soil or fill from around those sites will be contaminted with DDT.
Judge Smith wanted to know how Dr Northcott proposed testing every load that might come into the "cleanfill" from such sites.
Dr Northcott: Best thing is to make the acceptable levels lower, so that the risk is reduced, and so protect the aquifer.
I'll leave this here for now. But before I sign off I do note that I note a strong underlying assumption from Judge and Commissioners that "dilution is the solution to pollution" whether it be from water circulating through the landfill, or from the proximity of lots of truly clean cleanfill to absorb contaminants from the contaminated cleanfill that gets in there.
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