Court Decision: Three Kings Quarry Fill

On the 18th of May, 2011, Judge Smith signed the decision of the Environment Court relating to various appeals and the referred application for the proposed and disputed Fletcher Concrete & Infrastructure Ltd/Winstone Aggregates Ltd "cleanfill" at Three Kings Quarry Mt Eden.

In a nutshell, the decision upholds the original consents, grants the referred application, though all are subject to changed conditions. And there are significant changes to the conditions. Some of which raise questions which I address below.

Overall I thought it an unusual Environment Court decision. It's the first time I can recall reading an Environment Court decision that makes no, or virtually no, reference to law or case law. It has been judged and determined on the basis of material facts and expert evidence. There's at least one very good reason for that: it is a decision that will be very hard to appeal to the High Court. Environment Court decisions can only be appealed to the High Court on a point of law.

So. No points of law = Little possibility of an appeal. Interesting.

Another interesting aspect of the decision are the directions made by the court. Essentally the Judge, with his two commissioners, has redrafted the conditions that were circulated at the hearing. The redrafting reflects the Court's detailed decisions. The Court has directed that the parties to the Hearing (Winstones, Watercare Services Ltd., Envirowaste Services Ltd., Auckland Council, Three Kings United, South Epsom Planning Group, St Lukes Environment Protection Society) consider the redrafted conditions and "submit final wording" within 30 days. The court does not say how the parties will get together on this. However the court goes on to order: "if parties cannot resolve final wording", then the applicant must file "its proposed wording within a further 10 working days" and so can the other parties. "The Court will then make its final decision on the wording."

The detailed decision makes an interesting and accessible read - probably because it does not get into the black letter of the law and case law. Below I set out my more detailed notes on aspects of the decision, by decision paragraph number....

[37] acknowledges that consent conditions proposed by Matheson (Winstone's counsel) addresses a number of issue raised during the course of the hearing and we acknowledge is a significant change from the conditions of consent granted by the Council, or even those suggested in the first brief of evidence from Mr Sargeant... Thus Winstones acknowledged the need for changes in their approach in the course of the hearing. But their proposed conditions only became available in the last moments of the Environment Court hearing.

[45] Notes that it is up to Auckland Council to identify HAIL sites. (A comprehensive list of activities that carry a contamination risk is the so-called Hazardous Activities and Industries List (HAIL), compiled by the Ministry for the Environment (MfE).) In other words the decision here is that it is ultimately up to Auckland Council to be up with the play - for all of Auckland - as to what sites have (or have not) contamination risks. The obligation falls to Council, not to Winstones, in that regard.

[46] Cites fill figures that essentially support the "dilution is the solution to pollution" argument. That there will be so much "clean" cleanfill, that almost any amount of contaminated cleanfill, won't make a difference.

[54] Peculiar discussion about no more than minimal adverse effects, and a de minimus effect which Counsel accepted... could be disregarded... (cited Mayley v Manukau City Council). No clear decision here though...

[61 - 63] deals with cleanfill. It is appropriate to include maximum concentrations for contaminants..... The only argument related to whether it had the potential to alter the chemical constitution of the groundwater to such an extent that it could have an effect on either people or the environment.

[71] ... materials that can be put in the site are ones that occur in the Auckland region, and will almost always be natural materials... we have no reason to believe that they will be atypical of the material types occurring in the region... relevant to that consideration is our conclusion that it is the mass contaminant levels of the entire fill which will have the impact, not particular loads... (This is another statement of the "dilution is the solution" paradigm.)

[72] Our reasoning for this is that possible groundwater contamination from the fill is based upon the amount of water moving through the fill and that infiltrating on the site. In addition to that moving through the fill itself are the other waters being received at the dewatering well from th4e surrounding 600 hectares. In those circumstances, the dilution of any fill leachate by other groundwater has been variously estimated by differing witnesses between 18 to over 100. Thus, any contaminant in any leachate from tjhe fill would be futher diluted... (This text raises the interesting assumption that the de-watering is to continue in perpetuity, though it was initially done to lower the water table to allow quarrying. As if de-watering is a sort of de-facto leachate collection and treatment - through dilution - system, that is then discharged to the Manukau Harbour. Further minising the risk of this leachate seeping down into, or flowing over the lip of the crater and into, the aquifers underground.)

[74] given req for pre-approval for any known HAIL risk sites, we consider that the potential for casual loads to significantly change the mass parameters are de minimis (This is really at the heart of the decision. It imposes huge load on Council to identify HAIL sites, that is the reliance.)

[76] ... nevertheless we accept there is a very small risk that gross non-compliance by contractors could escape oversight....

[81] ... our overall conclusion is that the application by its nature is one which would avoid adverse effects on human health and the environment by the utilisation of cleanfill materials... conditions avoid any potential adverse effects and give a very high level of confidence that there will be no effect on human health or the environment...

[82] ..we conclude that the application is for fill within the parameters of TP153...

[83] ... in reaching this conclusion we have assumed that the application will be... including a condition to continue water extraction from the well on-site... (This is an interesting requirement. Judge Smith talked about this during the hearing. There were vague discussions. In this decision there is an unusual take on the environment is that which is existing, an odd sort of permitted baseline. Because there is de-watering now, that is "the environment"...)

[88] Conditions section of decision... Court requires that Council is able to undertake full sampling tests at the cost to the applicant at least twice a year at random intervals. It is intended this would comprise no more than two core samples (or composite samples) for testing... (On the face of it this is a fairly dramatic intervention by the Court, but it does depend on Auckland Council acting on it. As it must on HAIL site identification for example.)

[89] Relates to condition 19, and proposes three levels of MAV% triggers and related actions. There is considerable detail in how this would work. Basically it is all based on levels of contaminants that are found in the water drawn from de-watering, and tests relate to the NZ Drinking Water standards - rather than to the level of contaminants that may be permitted in the fill that is dumped there. This approach is linked to the court's interest (but not hard out requirement) in de-watering. It is this water that will be tested for contaminants. I suspect there will be considerable room for discussion and negotiation over this between parties. (BTW, I understand the original discharge consent that permits the dewatering water pumped by Winstones from the Three Kings Quarry and piped into the Manukau Harbour - has been "lost". This consent becomes critical when it is envisaged that pipe will be used to pump leachate into the Manukau - not just relatively clean dewatering water. Where is this consent? Does it permit Winstone's to pour landfill leachate into the Manukau...?)

[90] Startling comment: we agree with those who criticise the current conditions as suggesting you can obtain resource consent for breaching the conditions of consent...!!! This led to specific decisions to ensure conditions don;t have this effect.)

[94] ... Certification by the manager is required prior to the commencement of filling (Presumably council's manager. This would serve to get Auckland Council on board. Think about things. Before certifying....)

[101] Reference to original Council decision ...provided sampling regime and methods for managing the quality of the cleanfill are rigorous then the proposal will fall within the term "cleanfill"... It is also the Auckland Council that will need to be rigorous. So much depends on it carrying out its duties...

[104] Mr Matheson tells that his client is particularly concerned about trade competition and the potential for Envirowaste to appeal the substantive decision and thus delay the implementation of the consent. Given that concern we will address the application for a general fill resource consent on its merits... (This is an extraordinary admission it seems to me.)

[137] ...consents could be combined in a single consent for controlled fill... (The court moves away from the words "cleanfill" as was suiggested by various parties, and goes with "controlled fill".)

It will be interesting to see how the parties handle this decision. In particular the way the Court has chosen to incorporate the Winstone de-watering system into an informal leachate extraction and treatment system. This must have implications for the discharge - but no-one can find that permit. Yet.

Precautionary Principle Vs Erring for “Economic Wellbeing”

Thinking about cumulative effects, and the duties to avoid these in terms of the RMA. Here is the relevant bit of the RMA:

...the term effect includes … any cumulative effect which arises over time or in combination with other effects — regardless of the scale, intensity, duration, or frequency of the effect…

So I guess what that means, in terms of the purpose of the RMA, is that the general duty to avoid, remedy or mitigate adverse effects on the environment, includes a general duty to avoid, remedy or mitigate adverse cumulative effects on the environment.

The RMA definition relating to “cumulative effects” is “irrespective of scale and duration…”. I read – “irrespective of scale” – as meaning it doesn’t matter if the effect is “less than minor”, “minor”, “de-minimus”. When plugged into the RMA’s purpose, the word “adverse” is added. So that makes it a bit tricky.

However, it is acknowledged by all parties it appears – that there will be effects from the disposal of fill that contains contaminants not already associated with what was in the quarry at Three Kings. Natural basalt and scoria.

Got me thinking about Auckland’s underground rivers.

What do we know for sure. Undisputed facts:

• We know that many rivers in New Zealand have been badly damaged because of the cumulative effects of farming in their catchments. The root cause of this damage is a mix of agricultural chemicals and farm animal effluent (almost wrote farmer affluent).


• The responsible regulatory authority in every case is a Regional Council. (Or Unitary Authority where that has replaced the Regional Council).


• Regional Council responsibilities include: monitoring the state of rivers; granting consents that affect rivers; monitoring the effects of consented activities and compliance with conditions and carrying out enforcement.


• The legislation which is there to protect rivers from adverse effects, and which prescribes the activities of both farmers and Regional Councils is the Resource Management Act.

So where is the systemic failure? Why are rivers getting worse and not better, or even staying the same (intrinsic values, ecosystems, etc etc). There are various other opinions and processes which are worth summarising:

• Even if farming as we know it was stopped in its tracks, leachate already in the ground would maintain the contaminant flow into rivers for a decade or two.


• There are hopes in a few minds that some sort of water allocation scheme will sort out the problem – ie that some sort of organised market will be the stone that kills the two birds of river pollution and getting the best use out of river water.


• There is huge pressure to convert more relatively low impact sheep farms to dairy farms – irrigated by takes from rivers that many claim are under stress already.

I think the systemic failure fundamentally arises because the regulators either don’t or can’t do their job in accordance with the environmental and ecological protection principles that are written into the Resource Management Act.

What I see in the Environment Court – time after time, when legal action is provoked – are the applicant’s technical experts strenuously and scientifically trying to “prove” that the adverse effects from the applicant’s proposed activity will be less than minor. And yet as even the most rudimentary knowledge of science will tell you, the problems that are at issue (pollution of commons like rivers, lakes, estuaries, seas, atmospheres…) are not described perfectly and analytically by any known scientific methods. At best science suggests probabilities that are riddled with uncertainties and gaps in assumptions, and at worst expert scientific evidence is sophistry designed to support the applicant’s project.

It appears that Environment Court Judges are generally keenly aware of this. Because they are aware, it appears to me that they really have only one option open to them. The Environment Court needs to:

Place great focus on Regional Council evidence relating to the ability of the commons at issue to handle the “less than minor” effects of the application; AND, use the hearing to fully explore the regulator’s processes and track-record in regard to the effects and resource at issue (by using the Court’s powers to obtain independent advice); AND, where there is a question-mark over whether granting the application will potentially damage the resource’s ability to meet the needs of future generations, then decline it by citing the precautionary principle.

I think this sort of Environment Court process would begin to deliver the “cumulative effects” aspiration of the Resource Management Act. The duty to avoid cumulative effects, is actually down to the Environment Court.

The Fletcher/Winstone “cleanfill” application is a classic example.

In my opinion the ARC/Auckland Council has paid very little attention to the state of Auckland’s underground rivers. Its evidence and related reporting did not provide information about other sources of contaminants that either are affecting, or have the potential to affect the quality of that resource. (Including road runoff, stormwater systems, leaking sewer systems, leachate from contaminated soils – residential and commercial, saline intrusion). ARC contaminant monitoring information appeared limited. Contaminants listed in relevant schedules appear out of date. This regulatory environment is an open-door policy for further cumulative effects.

I hold that where there is the potential for cumulative effects, then it is the Environment Court’s duty to scrutinise the combined effects of the activity applied for and the regulatory environment. And then – if necessary – impose a moratorium on future new activities until the relevant regulatory environment has caught up with its duties.

The Evidence For/Against Three Kings Quarry "Cleanfill"

Today's Thursday 17th March. If all goes according to plan legal counsel for Fletchers Infrastructure/Winstone Aggregates will complete the two week Environment Court hearing of its application to use Three Kings Quarry as a cleanfill/managed fill, by delivering the right of reply. I will report later on further developments.

But for now, I thought I would provide you with copies of evidence that has been provided to the Environment Court by various experts and parties to the hearing. Links to selected evidence files are later on below in this blog.

In a hearing of this size, complexity and challenge - there is vast amounts of paper, and it is beyond my resources to make all of it available here. Or even a small proportion of it. Every affidavit is rebutted by those who disagree with it for example. All of this material is available to the Court. The Judge and Commissioners indicate they have either read it all, or they have heard it. And of course witnesses have been cross-examined in Court.

My main interest in this matter has been its potential effect on Auckland's Underground water resources and aquifers. There are other issues of significance including traffic effects, dust effects and so on. However I have concentrated on groundwater effects. So, here's some written evidence that is primarily around that issue. There are many documents other than these....

For Fletchers Infrastructure/Winstone Aggregates

Bernie Chote (General Manager)
Mr Burden (Geo Chemist, expert in environmental effects of landfills)
Mr Harding (Hydrogeologist and computer modeller of groundwater effects)

For Envirowaste Services

Mr Parker (Engineer, expert on Australian landfill policy and management)
Mr Mitchell (Engineer and Planner, expert in environmental effects and RMA)
Mr Northcott (Chemist, NIWA experience, expert in organochlorines in environment)

For Auckland Council

Mr Stapleton (GeoEnvironmental Engineer, expert in soil and landfill processes)

Local Submissions for South Epsom Planning Group

Pip Mules (Local resident)
Garry Law (Engineer and Manager Water systems, expert in water resource management)
Mr Triggs (Professor of Statistics at Auckland University)

Watercare Services Ltd

Mr Widdowson (GeoScientist at BECAs, expert in groundwater monitoring & risk assessment)

These are my selection. They are indicative. Happy reading.

"Why is Envirowaste Here?"

This question was posed by Judge Smith several times on Monday. He asked David Kirkpatrick – legal counsel for Envirowaste Services Ltd – “I want to know why you are here….”

He went on, “these are dangerous waters for a trade competitor….”

First, a little legislative background. The Resource Management Act was changed a year and a half ago by an unusual provision of the Resource Management (Simplifying and Streamlining) Amendment Act 2009. This provision was put in to deal with what has been known as “SuperMarket Wars”. Parliament did not want the RMA (or the Environment Court) to be the place where trade competition wars were fought.

The bits of the new RMA that are of interest go like this:

308A Identification of trade competitors and surrogates
In this Part,—
(a) person A means a person who is a trade competitor of person B:
(b) person B means the person of whom person A is a trade competitor:
(c) person C means a person who has knowingly received, is knowingly receiving, or may knowingly receive direct or indirect help from person A to bring an appeal or be a party to an appeal against a decision under this Act in favour of person B.

So. You get the picture. In this situation, we might say that Person B is Fletchers/Winstone Aggregates, Person A might be Envirowaste Services Ltd (ESL), and Person C might be anyone else who might appeal or be a s.274 party to the appeal (like Watercare). The law goes on….

308 B Limit on making submissions
(1) Subsection (2) applies when person A wants to make a submission under section 96 about an application by person B.
(2) Person A may make the submission only if directly affected by an effect of the activity to which the application relates, that—
(a) adversely affects the environment; and
(b) does not relate to trade competition or the effects of trade competition.
(3) Failure to comply with the limits on submissions set in section 149E or 149O or clause 6(4) or 29(1B) of Schedule 1 is a contravention of this Part.

This is where it gets interesting and intriguing. And this is what Judge Smith was concerned about, as David Kirkpatrick swung into action for ESL. What makes this intriguing is that there are three related applications at issue for the Environment Court – two were applied for before August 2009, and the application to discharge contaminants to water was made after August 2009 (ie after s.308 came into force), and was referred directly to the Environment Court.

So ESL cannot fall foul of this new law in regard to part of the hearing, but it could, potentially, in regard to the part that deals with discharges to water. The rest of the RMA law relating to s.308 (Act not to be used to oppose trade competitors), is fairly draconian. Costs can be sought in the High Court if the Environment Court declares Person A contravened the Act, and matters can be brought to court up to 6 years after the alleged contravention. All a bit of worry for an organisation like ESL, or anyone else caught by these provisions for that matter.

In its legal submissions ESL said this on Monday morning:

7.1 ESL is a large national waste management company. Serving the Auckland region it operates the Hampton Downs Sanitary landfill and the Greenmount Closed landfill at which it is soon to complete final cover works through the placement of fill. ESL acknowledges (and has done so from the start), that as a consequence of these particular commercial activities it is a trade competitor of WA, who operates the cleanfill and fill operations at Wiri North and Puketutu Island (former quarries)….

7.3 ….ESL denies that its participation in these proceedings raises issues of trade competition…. ESL is concerned trhat consents for “cleanfill” should not be granted where what is to occur is not a cleanfill…

7.6 ….ESL is concerned: to ensure the integrity of the regional planning framework for the management of landfills, and in particular cleanfills. In doing so, it simply wishes to maintain the level of the “playing field” being used by solid waste disposers in the Auckland region….

7.7 ….if, due to locational advantages or technical superiority, a more profitable landfill can be set up, then that is the market at work. But, this has to be on the proviso that they can also maintain the accepted level of environmental protection for such activities….

I will stop this blog about here – so it is manageable. But before I do so, I will record other related events that occurred at the hearing.

As Mr Kirkpatrick came to the end of his opening submissions for ESL, Judge Smith intervened. He appeared concerned that ESL’s expert witnesses might not be independent. Kirkpatrick noted that that issue or concern could be levelled at almost any expert witness in an Environment Court hearing. (I note here that someone pays the bills of all expert witnesses, and there is always the cynical view, but understandeable view, that he who pays the bill calls the tune…).

Judge Smith agreed with Kirkpatrick's comment saying, “yes, and it’s an issue the Court is not happy with…”

Judge Smith continued that he believed it appropriate to exclude ESL’s witnesses from the court, so they could not hear what was being said, or what questions were asked of other ESL expert witnesses cross examined before it was their turn.

Judge Smith also ruled that ESL witnesses should not discuss the matter with each other outside Court.

This was a dramatic day.

Judicial Report on Three Kings Site Visit

On Friday 11th March Judge Smith and his two Commissioners (Gollop and Howie) went on a site visit. So the hearing on Friday was cut short. Judge Smith gave a comprehensive verbal report about the site visit to the Environment Court on Monday morning, 14th March. I took notes and summarise the report here:

They started at Meola Reef, and were shown Meola Creek (he noted there were signs of sewage ingress there). Thye were advised that Meola Creek is is fed from underground gulleys and rivers, some of which start up round Three Kings. He observed that the catchment for those underground waters is many and varied – St Lukes, Sandringham Road, homes, businesses (some of which will have long gone). They were shown Bore Hole 7 – which is some 500 metres from the bottom of the Three Kings Quarry – and he noted they had been shown Bore Hole 6 which was accessible and which appeared to be much closer to the quarry itself.

Judge Smith expressed concern over their findings that at or close to Big King Reserve appeared to be contaminants stored on site by Auckland Council, at a small excavated area. (Discussion later revealed that this was leased land used previously by Parks Staff of Auckland City Council. Judge Smith was concerned to have noted what appeared to be leachates at that site, and that the floor of scoria would be permeable.

The site visit was shown the de-watering bore. The Judge noted that this was at RL –5. He asserted that he did not accept there was low permeability in the scoria around this bore. He expressed interest in the adjacent water treatment plant which appears to be unused. In his opinion it could be used to clean up the water, before returning it to the aquifer….

He noted that there were several quarry faces – some basalt, some scoria. He also noted that the Three Kings Quarry appears to have a dust supression systme in place – he noted the presence of sprinkler. He reported that he and commissioners did visit some local properties. Saw some dust.

They also went to Puketutu where they observed typical fill loads being received and processed. They saw an XRF test (this is a form of XRay and subsequent fluoresence test for various contaminants), the Judge noted that up to 30 truck loads appeared to be dumped on a skid pad. These were then mixed by the operator who scooped the results onto various parts of the landfill face. They noted the waste was mixed – concrete, asphalt, clay, soil. He noted that Puketutu was different from Three Kings – in that it is being rehabilitated for “rural pastoral purposes”.

That seemed a fairly comprehensive visit. Gives a flavour of where Judge Smith is coming from. Interesting that he takes it upon himself to advocate using a water treatment plant he finds along the way - to treat water from de-watering. And recharge the aquifer.

Steps toward a Permit to Pollute (2)

Today I attended the start of the Environment Court hearing of appeals and a directly referred application relating to the Three Kings Quarry landfill/"cleanfill"/fill application of Winstone Aggregates (division of Fletcher Concrete and Infrastructure Ltd), and Envirowaste Services, and Auckland Council (formerly Auckland City Council and ARC). Other submitters were present (see below). They are s.274 parties to the appeal.

The hearing (Monday 7th March) took place in an Environment Court hearing room on the 8th Floor of the Court buildings in Albert Street. The room was pretty much packed. I counted seven lawyers/barristers/QCs. There were representatives there from the main parties mentioned above, plus from Watercare, Three Kings United Group, South Epsom Planning Group, and St Lukes Environmental Protection Inc.

Justice Smith was on the bench supported by Commissioner Gollop and Commissioner Howie (I think it was). There was some initial discussion about Memoranda that had been flying around. And some discussion about the timetable. It appears that Winstone Aggregate's evidence and application may take till Friday, then Auckland Council's evidence will be heard (they have 4 witnesses), then Watercare and the other submitters.

I will skip the detail of this, and quote some interesting material from the opening legal submissions which were made on behalf of Winstone Aggregates. Their legal advice is coming from Russell McVeagh. These submissions took up over forty pages. Here are some interesting extracts:

1.8 Winstone has continually been assured by its independent experts that its proposal will result in no adverse effects on the environment, but in an effort to assuage community concerns it has volunteered yet more consent conditions which go far beyond the usual expectations for an application of this kind...

1.9 This is in stark contrast to the behaviour of Envirowaste Services Ltd (ESL). As both the the primary opponent of Winstone's Proposal and its trade competitor, ESL has from the outset sought to frustrate the consenting process for Winstone. ESL has worked actively to gather opposition to Winstone's Proposal, and has generally behaved in an anti-competitive way, despite Parliament's disapproval of such behaviour.

....

1.11 Winstone is and always has been willing to accept appropriate conditions that will avoid, remedy or mitigate adverse effects. What Winstone does not accept is ESL's argument that Winstone's operation should be restricted by conditions so as to ensure that it has virtually no effects.... the approach seems to be a repeated lobbing of mud in the hope that some sticks.

1.12 Leaving ESL aside, Winstone accepts that there are several community groups who have a long history of being involved in various RMA processes relating to Three Kings Quarry.... The only other party, Water Services Ltd, has recently confirmed that it is happy with the consent conditions as proposed. Unlike ESL, Watercare was prepared to engage on the substance of the issue, and its independent advisor undertook his own analysis, and agreement was able to be reached between the experts as to what conditions were appropriate to ensure that, if ever required, the Three Kings aquifer would be available for the supply of potable water. (There is something decidedly farcical about a trade competitor, ESL, alleging adverse effects on future groundwater supplies, while at the same time the regional water provider, Watercare, is confirming it is generally comfortable with the proposed consent conditions.)

....

1.28 Reduced to its most fundamental issue, this case is about what level of contamination should be permitted in the proposed fill for the Three Kings Quarry. Contrary to allegations made by some parties, what is proposed is not a landfill, and the consent conditions clearly set out the type of material that can be deposited at the Three Kings Quarry....

....

3.2 ...legal issues to be commented on are:.... should management plans required by consent conditions be subject to "approval" by the consent authority, or is the consent authority's role limited to one of "certification"? (This is the sole issue remaining in dispute between Winstone and Auckland Council).

So. You get the drift. What I did learn from the submissions was this: No water discharge consent has been issued by the old regulator - the ARC. It turns out that the Winstone application to discharge contaminants to water - the one referred to in the posting: Steps Toward Permit to Pollute (1) and which was notified in 8th April 2010 - was not dealt with by the ARC as regulator.

Instead it was referred to the Environment Court for hearing and decision.

It appears that Sections 87C to 87I of the RMA allow applicants to make a request to the council for resource consent applications to be decided by the Environment Court instead of by the council. It appears that the ARC may have objected to this, and the applicant then appealed that objection to the Environment Court, which decided that the appeals to the original consents, and the new application to discharge contaminants to water, would all be heard together by the Environment Court.

It means that the issues to do with water, aquifers, groundwater and so on, as they relate to Winstone Aggregate's application for consent to discharge contaminants to groundwater (and so to aquifers) will be properly heard for the first time by this Environment Court.

So. That was interesting and important to understand.

Along the way, while these opening submissions were being read out by Winstone's counsel, there were some interesting discussions generally triggered by questions from the Bench. I don't want to upset the Court, so I won't attribute any of these remarks, but it is interesting to record some of the discussion points that arose.

"What are the effects? Groundwater effects - possible contamination. Including potential effects? Are they low risk, high impact? What does "minor" mean - if we are talking about effects. Is that a good test...?"

"There is an issue that Winstone Aggregates is resisting Envirowaste's ability to cross examine Watercare's experts.... EW is barred by statute in respect to the matter of trade competition...."

"Is there an option of just leaving the quarry empty. Let it fill up with water....?"

"What type of material could be disposed of. Concrete is mentioned. But it contains reinforcing steel... what about that? If you can slip contaminated material into a load of cleanfill - that would be much cheaper than paying $200/tonne at a landfill - but you only check 1 truck in every 150. You might intend a result, but it needs to be a reality...."

"Keen on the contract for the Waterview project. They are reliable. Reliable cleanfill. But what about others....?"

Looks like an interesting and very important hearing.

Reply from Mark Ford at Watercare

It was good to get a robust reply from Watercare today, in response to my letter to Watercare posted below at: Letter to Watercare Board and CEO

The letter to me from Mark Ford, (Watercare's CEO) is dated 7th March 2011, and says this:

Dear Dr Cayford,

Thank you for your recent letter. Watercare's interest in this issue is limited to the water-related aspects.

As you will be aware, Watercare takes its responsibilities for water quality very seriously. That's why - although we are not the statutory regulator - we commissioned expert opinion in this area.

To be clear on this, Watercare did not issue the consent. We have, however seized the opportunity to submit stringent conditions as the applicant sought to alter the quality of the fill.

Without getting into issues currently before the court, I'm advised that the consent conditions relating to water which are now proposed, are much more stringent than those proposed by the former regulator. You may well be familiar with those given your historical association with the former ARC.

If you want any further information on this matter beyond the documents available through the court, I suggest you make direct contact with the applicant or the regulator if you haven't already done so.

Yours sincerely,

KM Ford
Chief Executive

So. That's a good letter. I know Watercare is not the statutory regulator, but it is often the font of wisdom when it comes to water, so it's good that it has added to its knowledge by getting some expert information.

What is interesting though, is that no water discharge consent has been issued, despite what this letter says. Not even by the old regulator - the ARC. It was only after today in the Environment Court that I understood that the Winstone application to discharge contaminants to water - the one referred to in the posting: Steps Toward Permit to Pollute (1) and which was notified in 8th April 2010 - was not dealt with by the ARC as regulator.

Instead it was referred to the Environment Court for hearing and decision.

It appears that Sections 87C to 87I of the RMA allow applicants to make a request to the council for resource consent applications to be decided by the Environment Court instead of by the council. It appears that the ARC may have objected to this, and the applicant then appealed that objection to the Environment Court, which decided that the appeals to the original consents, and the new application to discharge contaminants to water, would all be heard together by the Environment Court.

Interesting. So it essentially means that Watercare's new expert evidence (described above in Mr Ford's letter) can form part of the Env Court hearing of the application to discharge contaminants to water. Which will be for the first time.

"Crap Tax" to buy off Puketutu Tangata Whenua?

You can tell, can't you, that this blog is going to be a crap one.

Having been immersed in North Shore City's sewage for the best part of 6 years while I was a councillor there, and having been involved as a commissioner consenting an extension to Watercare's current disposal to Pond 2 Landfill in the Manukau Harbour, I have learned a lot about what we do here in Auckland, and what they do in more civilised parts of the world.

The United Nations Environment Programme has spent time analysing this issue too. They have produced An Introductory Guide To Decision-Makers, entitled: Biosolids Management: An Environmentally Sound Approach for Managing Sewage Treatment Plant Sludge. The introduction to this guide is helpful and brief:

"...Throughout North America and Europe, the application of biosolids to land is continuing to increase. As shown in Table 1, current biosolids applications to agricultural land in Europe and North America has become significant.
Although biosolids disposal in a landfill site is common, it should not be viewed as a long term solution. This option is considered to be environmentally beneficial only when such disposal includes methane gas recovery for application as a fuel. Modern landfills are complex and costly facilities to build and operate. They must be carefully engineered and monitored to ensure protection of both groundwater and surface water. In many locations, accessible, long-term landfill capacity is limited. Engineering and siting requirements can make the construction of new landfills prohibitively expensive. Most importantly, landfill disposal does not take advantage of the nutrient value and soil-building properties of biosolids, and takes up landfill space that can be better used for other materials. However, landfill is the unavoidable choice when municipal sludge is contaminated with industrial waste and municipal authorities are unable to monitor and control industrial discharges...."

This table is salutory. Auckland puts 100% of our biosolids in a landfill. Quite close to Greece at 97%. But the OECD average (based on this country list) is 43%. We would quite like NZ to shoot up the OECD charts when it comes to GDP, but we're quite happy it seems, to languish at the bottom of the list when it comes to crap. Makes our slogan and brand "100% Pure" seem a bit hollow doesn't it? But it's the last sentence in that quote above that you need to stare at: "...landfill is the unavoidable choice when municipal sludge is contaminated with industrial waste..." Sydney is a great example of a city that has gone to great lengths to get industrial waste out of its sewers. Metals like Chromium, Mercury, Zinc, Lead and Copper are all banned from Sydney sewers. I've seen Sydney's biosolids mixed with green waste, composted, and used as soil conditioner. But we can't do that with our biosolids because we contaminate them. Here in Auckland we actually make money from dumping industrial wastes into our drains. Or to more precise, Watercare Services Ltd makes money from it. Under Auckland's ancient system of trade waste permits, polluters are able to tip their industrial wastes down the drain, pay a fee to Watercare, and she'll be right mate. Don't you worry about it anymore. We'll sort it out, and thanks for the fee. So Third World. So banana republic.....

The revenue stream that Watercare collects from Trade Waste fees is a nice little earner. Subsidises all sorts of other activities and that's probably a good thing. But it means that Watercare has an excuse not to do the right thing. It has to find a hole in the ground to put Auckland's crap - albeit processed, methane extracted, partly dried, and lime added.

The problem for Watercare, and for Auckland, is that the Pond 2 Landfill in Manukau Harbour is filling up, and so Watercare applied for consent on 10 November 2008 to put Auckland's biosolids in a quarry on Puketutu Island in the Manukau harbour. There's been lots of news about this in NZ Herald, and there are other blogs of mine about it.

Commissioners hearing the consent application declined it. Among their reasons were:

(a) There would be severe and irreversible adverse effects on the spiritual and cultural wellbeing and values of tangata whenua and their ancestral relationship with the island if this proposal was permitted to proceed;

(b) The proposal would have adverse effects on the natural character of the coastal environment and the cultural values of tangata whenua which are both matters of national importance of regional significance. These effects could not be adequately avoided, remedied or mitigated and in the case of iwi values would be irreversible;

(c) The properties of biosolids are far from favourable, and will restrict the landform to a very flat, distinctly unnatural appearance, with prolonged and intrusive aftercare likely to be required...

And so it goes on. Needless to say, Watercare has appealed this decision, and the matter is in front of the Environment Court. Mediation proceedings are underway...

In the background there have been a number of curious games underway. One of these has the ARC taking over the Island when the quarry has been filled up, and turning it into a Regional Park. This suggestion has the ARC getting the park for nothing. There is a little conflict of interest of course - because it's the ARC that's one of the consenting authorities for Watercare's biosolids disposal application.

The other game is one between iwi and Watercare. ARC has been kept a little bit in the loop about this, and I understand Watercare wants to come and talk to us about their updated plan in a few weeks. However all of this is happening far below the public radar, and I think it stinks.

Watercare is acting independently, unaccountably, though it will argue it is acting in Auckland's best interests. Across Auckland there is enormous pressure to resolve outstanding court appeals and environment court proceedings. (I think that some of these have lingered far too long and lawyers have got rich out of delays in resolution.)

But is it right that the process of transition to one Auckland Council should mean that an issue like the long term management of Auckland's biosolids should be rushed through in a quick expedient settlement? I don't think so. I think we need to clean up our act, and this is the time to be doing it.

However, and this is the nub of this blog, on Thursday 15 April, 2010, Watercare Services Ltd, Te Kawerau Iwi Tribal Authority Incorporated, and Makaurau Marae maori Trust Incorporated (the parties) signed a document entitled Puketutu Island Heads of Agreement.

Among other things the parties agreed that:

• Puketutu Island is to be owned by Tangata Whenua;


• There will be an operating licence fee of $2 per tonne (plus GST if any) of biosolids placed there, for 30 years;


• The operating licence fee is to be ring-fenced for Tangata Whenua;


• Parties to agree that Environment Court appeals to be resolved by consent order...

So that is the price of "...the spiritual and cultural wellbeing and values of tangata whenua and their ancestral relationship with the island..."

Two dollars for every tonne of crap dumped there. A maori crap tax.