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.

Steps toward a Permit to Pollute (1)

I have written to Auckland Councillors and to Watercare (see below) stating that I am at a loss to understand how Winstone Aggregates obtained consent to dump “cleanfill” with elevated levels of contaminants in the Three Kings Quarry.

In this blog I explore the ARC officer’s report which formed the basis of commissioner decisions made late 2010. The report is dated 3 June 2010. You can download it here.

It appears that Winstone Aggregates first sought consent from Auckland City Council and Auckland Regional Council in 2009. A Joint Hearing was conducted in late October, early November 2009. Winstone Aggregates required a land use consent from Auckland City Council (change of land use, truck movements etc), and two resource consents from ARC. One of these permits (36221) relates to earthworks on the 14 ha site. The other is a permit (36222) to discharge contaminants onto or into land from a cleanfill. These permits were granted subject to conditions.

Then – and this is where it gets a bit murky – in Winstone Aggregates applied for a further consent from ARC. This was notified in 8th April 2010. This new permit (37770) appears to differ from 36222 (granted in 2009) in one crucial respect.

36222 related to the discharge of contaminants onto or into land from a cleanfill, whereas 37770 relates to the discharge of contaminants to land and / or water from a filling operation.

It appears therefore, that someone, somewhere, recognised belatedly that additional consent was required for the discharge of contaminated water. This appears to have been because some of the cleanfill: “may have contaminants above the natural background levels occurring at the site. The applicant indicated that typically this will be the case for about 15-20% of the materials received and the elevated concentrations in these materials will be about 20-25% high than natural background levels…”

The officer’s report relating to the new resource application contains the following information. And I quote:

6.6 The groundwater quality at the Three Kings Quarry dewatering bore is monitored on a regular basis…. The water is of potable quality…

12.1 Fill materials will be brought to the site in accordance with acceptance levels… based on levels that accord with the upper limit of the volcanic range for soil background levels throughout Auckland Region…. However it is noted that the actual background levels at Three Kings are lower or much lower than the upper volcanic levels throughout the Auckland Region….

12.3.5.2 The leaching of contamination from the materials used to fill the quarry has the potential to impact on the groundwater quality…

Table 4. Fill Acceptance concentration (Part 1). These are scans from the report.

Table 4. Fill Acceptance concentration (Part 2). TPH by the way are hydrocarbons. The way I read this it appears that up to 5,600 mg/kg can be dumped. Not sure how that works. That's more than 5 grams per kilogram. So more than .5% of hydrocarbons allowed. Almost enough to establish an oil well!

12.3.9.2 Groundwater modelling was carried out…. Based on all scenarios the final groundwater concentrations pf the majority of trace elements, for example, arsenic, cadmium, copper, chromium, nickel, lead and zinc, were lower than respective NZ drinking water maximum allowable values… the only exception to this was copper, with concentrations slightl exceeding… the trigger value, and this was caused by slightly elevated copper levels that are already present in existing groundwater concentrations.

There is no discussion in the report of the impact of these changes to groundwater on the aquifers that these groundwaters reccharge. There is a clear statement that copper levels are already elevated. This is the tip of the iceberg of cumulative pollution to aquifers. It is always the last straw that breaks the camel’s back. Just as the last dairy farm kills the river – even though by itself its adverse effects are said to be “less than minor”.


Auckland should not be condoning - in any shape or form - activities which permit new contaminants to add to the contaminant loading already building in our underground water resources. It has to be stopped.


And before this blog gets out of hand I will note some of the conditions attached to the permit that was granted. My understanding is that conditions should be meaningful and enforceable. Yet here ARC essentially allows Winstone Aggregates to carry out their own tests on test waters, to only check 1 in every 150 truckloads of fill dumped there, and to run the landfill without a liner (as there is in other major landfills around Auckland), and without a leachate collection system.

This is a bad joke for Auckland. Amounting to a permit to pollute.