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.

No comments:

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.

No comments: