Presenter:  James Winchester, Simpson Grierson

Presentation title:  The contaminants NES – are the legal risks greater than the health risks?

The Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011 – known as the Contaminants NES – has been in force since the beginning of 2012.  While there is a growing body of experience in its administration and the recent Hastings District Environment Court decision about its interpretation, there is still considerable uncertainty about how the NES works, the nature of the judgements that need to be made under the NES, and how it should be interpreted.  This uncertainty results in potentially significant liability risks for local authorities if they get it wrong (often unwittingly), which may in turn result in local authorities adopting information management and risk-minimisation practices which could undermine the intention of the NES.   This paper will look at areas of legal risk and uncertainty, practical ways for local authorities to reduce their potential liability, whether MfE guidance documents can and should be relied on, the inter-relationship of the NES with other local authority functions such as issuing LIMs/PIMs and resource consents, and reliance on certification by suitably qualified and experienced practitioners (SQEPs).  The paper will also critically assess whether the NES is achieving its desired purpose, whether industry initiatives such as accreditation for SQEPs would be likely to change the current legal risk and liability position, and whether it is it time for central Government to either revise the NES or provide greater clarity as to appropriate outcomes and practices.  If the NES (as it appears) is intended to apply in a mandatory and prescriptive way, how can national consistency for contaminated land be achieved with nationally inconsistent information?

Event: WasteMINZ Conference 2013

Date: Wednesday 23 October 2013