National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health

The National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health Regulations 2011 (NES) applies to certain activities undertaken on ‘pieces of land’ on which any activity in the HAIL is more likely than not to have occurred. It should be noted that a ‘piece of land’ is not the legal boundary of the site but rather the area impacted by the HAIL activity, and the certain activities also include non-land development activities 

The NES provides a nationally consistent set of planning controls for contaminated land and ensures contaminated land is identified, assessed, and (if necessary) made safe for human activity. The National Environmental Standard was created in response to the inconsistent or inadequate management of historical soil contamination that posed a risk to human health ⁴²⁴⁹ . The NES only applies to human health and does not include criteria for environmental protection.

The NES does not affect existing land uses, and only applies when certain activities are proposed to take place on land where there is reason to suspect that the land has been contaminated. Specifically land described by one of following; ⁴²⁵⁰

(a)  an activity or industry described in the HAIL is being undertaken on it;
(b)  an activity or industry described in the HAIL has been undertaken on it; and 
(c) it is more likely than not that an activity or industry described in the HAIL is  being or has been undertaken on it. 

The regulations stipulate that only 2 methods may be used for establishing whether or not a piece of land is as described above. ⁴²⁵¹  The first is by using information that is the most up-to-date information about the area where the piece of land is located held by the territorial authority. The second method is by relying on the report of a preliminary site investigation. If a HAIL activity has occurred on the site or there is evidence of contamination, a detailed site investigation may be required. These reports should be prepared by a suitably qualified and experienced practitioner with expertise in contaminated land.

The NES applies to the following activities (unless a detailed site investigation exists that demonstrates that any contaminants in or on the piece of land are at, or below, background concentrations): ⁴²⁵²

• Removing or replacing a fuel storage system;
• Sampling soil to determine whether it is contaminated;
• Disturbing the soil;
• Subdividing land;
• Changing the use of the piece of land, that because the land is as described below, is reasonably likely to harm human health.

The NES does not apply to production land unless the sampling or disturbance of the land will have an impact on residential buildings (there are four situations listed in the regulations) or the removing or replacing a fuel storage system. However all production land is covered where a proposed change in use will cause the land to stop being used as production land (such as rural- residential subdivision). ⁴²⁵³

Land about which a detailed site investigation has demonstrated that any contaminants in or on the land are at, or below, background concentrations are not subject to the regulations in the NES. ⁴²⁵⁴  Background concentrations are naturally occurring ambient concentrations in the area local of the land. ⁴²⁵⁵

The NES addresses territorial authority (district and city council) functions. ⁴²⁵⁶  The NES stipulates the requirements for when soil consents will be required as a tool for councils to manage the potential adverse effects of activities on human health and the environment that can arise from contaminated soil. Authorities may impose the obligation on consent applicants to remediate or manage the land to a suitable standard. ⁴²⁵⁷  The NES states when the above activities fall into either; permitted, controlled, restricted discretionary, or discretionary activities. ⁴²⁵⁸

Proposed Amendments to the NES for Assessing and Managing Contaminants in Soil to Protect Human Health

An interim review of the NES carried out by the Ministry for the Environment in 2014/15 found areas where implementation of the NES is creating inefficiencies and resulting in low risk sites and activities being required to comply with the NES. In 2016 the Ministry drafted a number of proposed amendments to the NES, including:

• Clarifying the HAIL and providing guidance
• Requiring a risk based approach when deciding if the NES applies to a site
• Remove consenting requirements for low risk activities
• Increase certainty of the consenting process and target controls more closely to effects
• Provide options for site specific management that are appropriate for the risk
• Updating Contaminated Land Management Guidelines 1 and 5

 The proposed amendments are currently being drafted by the Ministry for the Environment and are expected to be gazetted in 2018.

Last updated at 1:44PM on February 8, 2018