Contamination Liability

A polluter, occupiers or current owners (even if innocent parties) can all potentially be liable for contamination and the cost of the remediation under the RMA. ⁴²⁸¹  Although where there are not significant effects, under the contaminated land regime liability is usually only triggered when an application is made for consent to a new land use activity or for the land’s rezoning, or if there is a discharge.

Under the RMA several options are available to councils for imposing liability;

Infringement notices ⁴²⁸²  result in relatively low level fines and may be suitable for minor cases of pollution; such as discharge of contaminant into air or onto or into land, or discharge of contaminants or water into water or onto or into land where contamination is likely to enter water; ⁴²⁸³  or where there are discharges of contaminants into environment from industrial or trade premises. ⁴²⁸⁴  If liability for the discharge is challenged by the recipient they can request a hearing in the district court. ⁴²⁸⁵

Abatement notices ⁴²⁸⁶  and enforcement orders (issued by the Environment Court) may be used to force compliance with RMA obligations and impose liability for the clean up of contaminated land. ⁴²⁸⁷

Before the Court can make enforcement order it needs to be satisfied that: ⁴²⁸⁸

1. there is an actual or likely adverse effect on the environment
2. that the adverse effect was caused by, or on behalf of, the respondent
3. that some specific action is needed in order to avoid remedy or mitigate the adverse effect
4. that the specific action (proposed) can be carried out by the respondent

Abatement notices are common where there has been a serious contaminant spill.  A notice will often include directives for emergency remedial works to be undertaken under the emergency works provisions in the RMA. ⁴²⁸⁹  These provisions provide for a fast track process for actions to be undertaken to remove the cause of, or mitigate any actual or likely adverse effect of the emergency. 

For more serious breaches of the RMA a polluter may also be prosecuted under criminal offences created under the act; ⁴²⁹⁰

Offences include breaching an abatement notice, enforcement orders, or failure to pay infringement fines. Penalties include; for an individual, imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000 or in the case of company (non-natural person) to a fine not exceeding $600,000.

Additionally the Health Act 1956 contains provision where there is a danger to public health, that an owner or occupier of land can be required by a medical officer or police officer to abate the nuisance. ⁴²⁹¹

Strict Liability and defences

The unlawful discharge of contaminants ⁴²⁹²  is a strict liability offence which means it is not necessary to prove that the defendant intended to commit the offence. ⁴²⁹³  There are two defences to strict liability available. ⁴²⁹⁴  The first is ‘necessity’, which requires the defendant to show the necessity of the action for the purposes of saving

or protecting life or health, or preventing serious damage to property or avoiding an actual or likely adverse effect on the environment; and, that their conduct was reasonable in the circumstances and that the effects of the action or event were adequately mitigated or remedied. ⁴²⁹⁵  The second defence is where the event was beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage. They will need to prove the action or event could not reasonably have been foreseen or been provided against by the defendant; and the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred. ⁴²⁹⁶

Case study: Remediation of the Tui Mine at Mt Te Aroha in the Waikato

Tui mine was mined for metals, including copper, lead and zinc operating from 1967 to 1973. When the mine became uneconomic, the owners went into receivership, and the mine was abandoned in 1975. The tailings, ore dumps and mine workings continually leached heavy metals and acid rock drainage contaminating the neighbouring streams, which flowed into two different catchments including the river running through the centre of the Te Aroha township. Reports on the mine tailings impoundment indicated the structure was at risk of ‘collapse in a moderate seismic event or an extreme weather event and such events could have resulted in over 90,000 m³ of mine waste liquefying and flowing down the Tui stream past the edge of Te Aroha.’ ⁴²⁹⁷

The Remediation Project took 2 years. It was designed to;

• Stably and securely contain the tailings
• Reduce levels of contaminants into the neighbouring streams
• Improve the safety and security of the site
• Improve the sites visual appearance
• Address the impacts of the mine, as far as practicable, on the taonga of the Te Aroha maunga (Mt Te Aroha) for iwi

The remediation project was a collaboration of central, regional and local government agencies working with iwi and the local community. It cost $21.7 million and 160,000 man hours went into the planning, management, engineering and construction processes.

Post-remediation monitoring undertaken for Waikato Regional Council has revealed significant improvements in the ecological health of both the Tunakohoia and Tui streams. ⁴²⁹⁸

The Contaminated Sites Remediation Fund

Contaminated sites which have been abandoned, or the person who caused the contamination cannot be identified, or the person who caused the contamination cannot be made to pay for remediation, are often referred to as ‘orphan sites.’ The responsibility to remediate orphan sites falls to local authorities or central government. In these instances regional councils can apply to the Government for funding assistance. The Ministry for the Environment has set up a contestable fund to assist regional councils to investigate, plan and remediate high risk contaminated sites.  

Hazardous Substances and New Organisms Act 1996 (HSNO) 

The purpose of the HSNO Act is to ‘protect the environment, and the health and safety of people and communities by preventing or managing the adverse effects of hazardous substances and new organisms’.

The HSNO is designed to regulate how hazardous substances are used across their life cycle. It focuses on the prevention of contamination by creating a regime of controls for how hazardous substances are contained, labelled, stored, used, transported or disposed of. ⁴²⁹⁹  In contrast the RMA allows local authorities to manage the effects of the use of hazardous substances.

The Act requires a register to be kept of set exposure limits for substances with toxic or ecotoxic properties, and creates enforcement provisions. The Act is implemented by the Environmental Protection Authority (EPA) and enforced by a handful of government agencies. ⁴³⁰⁰

Hazardous substance is defined as: ⁴³⁰¹

hazardous substance means, unless expressly provided otherwise by regulations, any substance—        

(a) with 1 or more of the following intrinsic properties:

1. explosiveness:
2. flammability:
3. a capacity to oxidise:
4. corrosiveness:
5. toxicity (including chronic toxicity):
6. ecotoxicity, with or without bioaccumulation; or

(b) which on contact with air or water (other than air or water where the temperature or pressure has been artificially increased or decreased) generates a substance with any 1 or more of the properties specified in paragraph (a)

Many substances have more than one hazardous property.

The Act incorporates the “Precautionary Principle” taken from international environmental law.

Precautionary approach: ⁴³⁰²

“All persons exercising functions, powers, and duties under this Act …. shall take into account the need for caution in managing adverse effects where there is scientific and technical uncertainty about those effects.”

Last updated at 11:02AM on November 27, 2015