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.
Showing posts with label Envirowaste Services Ltd. Show all posts
Showing posts with label Envirowaste Services Ltd. Show all posts
Tuesday, May 31, 2011
Tuesday, March 15, 2011
How can a Blogger avoid Contempt of Court?
So there I was in the Environment Court this morning. Tuesday 15th March. And the Court was halfway through cross-examination of Mr Dolan who is an Envirowaste Services Ltd (ESL) expert witness. The day started with no house-keeping matters. Straight into cross examination of Dolan by Matheson – who is Fletcher’s/Winstone Aggregates legal counsel.
I took heaps of notes because the questions and answers were really interesting. But because I had missed some of the day before, I hadn’t totally caught up with the fact that the court room seemed rather empty. Nor why.
Then it dawned. The other ESL expert witnesses had been ordered from the Court by Judge Smith. They were not allowed to hear the questions being asked of the witnesses, nor their answers. And they were ordered not to talk among themselves at other times.
“What if they read my blog?” - I thought. Quite a few do, there’s a lot pf public interest, and I have set up a FaceBook page....
"What if I report the questions and answers – because I think it is in the public interest?"
"There has been no guidance from the Judge. I am a sort of informal reporter...."
There has been no ruling that media be excluded from the Court.
So here's a taste. WA’s lawyer cross examined Dolan:
Judge Smith then reminded Dolan, “you are Person ‘A’. Person ‘A’ must not talk with Person ‘C’. (BTW – you can see a little more about this part of the RMA – s.308 - in a recent blog below.)
Kirkpatrick again got to his feet and submitted, “....this does not stop communications between parties…”
I will stop there. Just wanted to give you a flavour.
Who says the Environment Court's not adversarial?
I took heaps of notes because the questions and answers were really interesting. But because I had missed some of the day before, I hadn’t totally caught up with the fact that the court room seemed rather empty. Nor why.
Then it dawned. The other ESL expert witnesses had been ordered from the Court by Judge Smith. They were not allowed to hear the questions being asked of the witnesses, nor their answers. And they were ordered not to talk among themselves at other times.
“What if they read my blog?” - I thought. Quite a few do, there’s a lot pf public interest, and I have set up a FaceBook page....
"What if I report the questions and answers – because I think it is in the public interest?"
"There has been no guidance from the Judge. I am a sort of informal reporter...."
There has been no ruling that media be excluded from the Court.
So here's a taste. WA’s lawyer cross examined Dolan:
Q: Who instructed you?Judge Smith got interested then:
A: It was verbal. Mr Lobb.
Q: Not in writing?
A: No.
Q: What did he say to you, and when?…
Q: How did you report to Mr Lobb?Judge Smith wanted to know why specific emails were not to hand, and persisted:
A: …
Q: You said you would look in your files.
A: I drafted a submission for Mr Lobb.
Q: Did you sign it?
A: No. Someone else signed it….
Q: You were asked – I know I didn’t order you – you said you would – I didn’t think I had to - to bring all ESL files with you today. What have you brought and not brought?And later, after Dolan spoke of mediation meetings with Watercare and with South Epsom Planning Group, Judge Smith asked:
A: Sorry your honour...
Q: …..were you aware that were statutorily barred from getting involved with a Third Party…?At this point Kirkpatrick, legal counsel for ESL stood up and submitted: “there is no basis for that question…”.
Judge Smith then reminded Dolan, “you are Person ‘A’. Person ‘A’ must not talk with Person ‘C’. (BTW – you can see a little more about this part of the RMA – s.308 - in a recent blog below.)
Kirkpatrick again got to his feet and submitted, “....this does not stop communications between parties…”
I will stop there. Just wanted to give you a flavour.
Who says the Environment Court's not adversarial?
"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:
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….
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:
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.
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.
Monday, March 7, 2011
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:
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.
Looks like an interesting and very important hearing.
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.
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Showing posts with label Envirowaste Services Ltd. Show all posts
Showing posts with label Envirowaste Services Ltd. Show all posts
Tuesday, May 31, 2011
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.
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.
Tuesday, March 15, 2011
How can a Blogger avoid Contempt of Court?
So there I was in the Environment Court this morning. Tuesday 15th March. And the Court was halfway through cross-examination of Mr Dolan who is an Envirowaste Services Ltd (ESL) expert witness. The day started with no house-keeping matters. Straight into cross examination of Dolan by Matheson – who is Fletcher’s/Winstone Aggregates legal counsel.
I took heaps of notes because the questions and answers were really interesting. But because I had missed some of the day before, I hadn’t totally caught up with the fact that the court room seemed rather empty. Nor why.
Then it dawned. The other ESL expert witnesses had been ordered from the Court by Judge Smith. They were not allowed to hear the questions being asked of the witnesses, nor their answers. And they were ordered not to talk among themselves at other times.
“What if they read my blog?” - I thought. Quite a few do, there’s a lot pf public interest, and I have set up a FaceBook page....
"What if I report the questions and answers – because I think it is in the public interest?"
"There has been no guidance from the Judge. I am a sort of informal reporter...."
There has been no ruling that media be excluded from the Court.
So here's a taste. WA’s lawyer cross examined Dolan:
Judge Smith then reminded Dolan, “you are Person ‘A’. Person ‘A’ must not talk with Person ‘C’. (BTW – you can see a little more about this part of the RMA – s.308 - in a recent blog below.)
Kirkpatrick again got to his feet and submitted, “....this does not stop communications between parties…”
I will stop there. Just wanted to give you a flavour.
Who says the Environment Court's not adversarial?
I took heaps of notes because the questions and answers were really interesting. But because I had missed some of the day before, I hadn’t totally caught up with the fact that the court room seemed rather empty. Nor why.
Then it dawned. The other ESL expert witnesses had been ordered from the Court by Judge Smith. They were not allowed to hear the questions being asked of the witnesses, nor their answers. And they were ordered not to talk among themselves at other times.
“What if they read my blog?” - I thought. Quite a few do, there’s a lot pf public interest, and I have set up a FaceBook page....
"What if I report the questions and answers – because I think it is in the public interest?"
"There has been no guidance from the Judge. I am a sort of informal reporter...."
There has been no ruling that media be excluded from the Court.
So here's a taste. WA’s lawyer cross examined Dolan:
Q: Who instructed you?Judge Smith got interested then:
A: It was verbal. Mr Lobb.
Q: Not in writing?
A: No.
Q: What did he say to you, and when?…
Q: How did you report to Mr Lobb?Judge Smith wanted to know why specific emails were not to hand, and persisted:
A: …
Q: You said you would look in your files.
A: I drafted a submission for Mr Lobb.
Q: Did you sign it?
A: No. Someone else signed it….
Q: You were asked – I know I didn’t order you – you said you would – I didn’t think I had to - to bring all ESL files with you today. What have you brought and not brought?And later, after Dolan spoke of mediation meetings with Watercare and with South Epsom Planning Group, Judge Smith asked:
A: Sorry your honour...
Q: …..were you aware that were statutorily barred from getting involved with a Third Party…?At this point Kirkpatrick, legal counsel for ESL stood up and submitted: “there is no basis for that question…”.
Judge Smith then reminded Dolan, “you are Person ‘A’. Person ‘A’ must not talk with Person ‘C’. (BTW – you can see a little more about this part of the RMA – s.308 - in a recent blog below.)
Kirkpatrick again got to his feet and submitted, “....this does not stop communications between parties…”
I will stop there. Just wanted to give you a flavour.
Who says the Environment Court's not adversarial?
"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:
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….
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:
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.
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.
Monday, March 7, 2011
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:
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.
Looks like an interesting and very important hearing.
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.
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