New Zealand Journal of Environmental Law
Last Updated: 30 January 2023
Waste Management Law in New Zealand
Simon A Schofield*
Waste management in New Zealand traditionally has generated a great deal of policy but little legal discussion. In the legal realm, the issue continues to develop, administratively and legislatively, in a piecemeal fashion, maligned by any attempt to develop a holistic approach. This article comprehensively consolidates waste management law to date. It traverses the plethora of statutes, regulations, rules, bylaws, accords, strategies and guidance documents. It argues that waste, conceptually, is a flexible concept controlled by too many different organisations. It looks to the sources of environmental liability, finding a mismatch of jurisdictional issues. Is, for instance, a Litter Control Officer, Health Protection Officer, Hazardous Waste Officer, Regional Council Officer, District Council Officer or the neighbour(s) to prosecute for appalling waste management practices? Furthermore, the article considers the contaminated land liability of landfill on the polluter and the occupier. It proposes an adoption of international approaches to waste and contaminated land.
“Solid wastes” are the discarded leftovers of our advanced consumer society. This growing mountain of garbage and trash represents not only an attitude of indifference toward valuable natural resources, but also a serious economic and public health problem.
Jimmy Carter, 39th President of the United States, Message to Congress, 23 May 1977
*LLB(Hons)/BA(Hons), University of Canterbury. This article arises from an honours dissertation submitted to the University of Canterbury in 2009. The author would like to thank Lecturer David Round, University of Canterbury, and Associate Professor Kenneth Palmer, University of Auckland, for their helpful comments. The bulk of this article was written prior to the publication of H Wagener, “The Waste Minimisation Act 2008 and the Ability of Territorial Authorities to Manage Solid Waste Discharges” (2009) 13 NZJEL 295.
New Zealand Journal of Environmental Law
Waste management law has recently undergone wide-ranging change. The Waste Minimisation Act 2008 attempts to encourage “the people and organisations involved in the life of a product to share responsibility for (a) ensuring there is effective reduction, reuse, recycling or recovery of the product; and (b) managing any environmental harm arising from the product when it becomes waste”.1 It is surmised, nonetheless, that this may well have failed in addressing the life cycle of products. While in nature everything is usable waste, humans have undertaken to dispose of waste to land in particular as the cheapest option for disposal. Yet, all waste does not require disposal as waste is an amorphous concept which depends upon perception. An allowance for perception has not been adequately made. New Zealand’s waste management law, therefore, is part of an incoherent analytical framework. Statutes include the Environment Act 1986, Waste Minimisation Act 2008, Resource Management Act 1991, Hazardous Substances and New Organisms Act 1996, Health Act 1956 and the Litter Act 1979. This is against a background of rules, regulations, bylaws, accords, strategies and guidance documents which all deal with discrete and disparate topics. In addition, the contaminated land scheme is largely policy based, with the government burdened with liability for orphan sites. It soon becomes clear that the current waste management law is overloaded with discussion, buttressed by indifference, thwarted by considerable fragmentation and still lacking a unifying cradle-to-grave approach to waste. By contrast, the United States, United Kingdom and Australia all have logical waste legislation.
2. THE WASTE PROBLEM
Waste can be seen as an environmentally inefficient use of resources. Waste is not only unattractive but, without control, it will pollute air, water and land. Pollution can leave irreparable environmental damage, cause severe health problems and reflect poorly upon New Zealand’s reputation as an untouched environmental paradise. Even so, the truth is that everyone everywhere gen- erates waste. In recent decades the quantity of cheap consumer goods imported due to prosperity has seen a relative increase in waste. About 80 per cent of the products that the world produces are discarded after a single use.2 As well, waste is a by-product of the product production process. It was estimated that
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in 2006 New Zealanders sent approximately 3.156 million tonnes to landfill.3 The problem with waste is that the more the environment becomes just another economic disposal facility, the more it is difficult to appreciate it. Despite this, economics dictate that at least presently the objective of zero waste reaching disposal is unobtainable. Rather, the key is sustainability of development which meets the needs of the present without compromising the ability of future generations to meet their needs. Thus, prosperity in living standards can continue without contaminating the natural environment that everyone benefits from.
The issue presented by waste is well documented. The waste management mantra is for waste to be reduced, reused, recycled, recovered, treated and then disposed of in that order.4 This policy has found legislative form. The term “reduction” is defined as “lessening waste generation, including by using products more efficiently or by redesigning products”;5 while “reuse” means “the further use of waste or diverted material in its existing form for [its] original purpose ... or for a similar purpose”.6 By contrast, “recycling” is the “reprocessing of waste or diverted material to produce new materials” and “recovery” is the “extraction of materials or energy from waste or diverted material for further use or processing”.7 Further, “treatment” is defined as “subjecting waste to any physical, biological, or chemical process to change its volume or character so that it may be disposed of with no or reduced adverse effect on the environment”.8 As the last phase, “disposal” involves “the final (or more than short-term) deposit of waste into or onto land set apart for that purpose [or] the incineration of waste”.9 These processes are intertwined and interrelated. Parts of the waste hierarchy will not be applicable to every type of waste.
Economists argue that disposal is the most efficient way to deal with waste. Friedman postulates that business has “only one social responsibility [and that
a sustainable New Zealand (2002) at 8, available at <http://www.mfe.govt.nz/publications/ waste/waste-strategy-mar02/> .
5 WMA, s 5(1).
9 Ibid, s 6(1).
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is] to increase its profits”.10 A profit-orientated business model would dictate that landfill disposal is efficient. An alternative business model would recognise that the reality is far more complicated. Society proclaims merit in diverting waste from landfill. Sparkes captures this argument as reflecting “the practical reality that companies are increasingly being judged not just by the products and profits they make, but also by how these profits are made”.11 While economists retort that corporate social responsibility reflects free-market hostility, such a premise is flawed as such responsibility is now reflected in a number of investment portfolios.12 In addition, the true costs of disposal of waste have traditionally been ignored. Methods of disposal used have included burning, carrying away the waste into wastewater, or putting the waste into landfill. Local authorities, in terms of landfills, have usually only accounted for the costs of collection. The true cost of disposal, however, would consider the preparation, operating and aftercare.13 Today, a modern engineered incinerator, wastewater plant or landfill is a highly technical, expensive exercise. Also, recycling is currently running at lower rates than is desirable in an optimal market.14
2.2 A Waste Definition
The concept of waste has been the subject of much debate. There is an inherent difficulty in determining “when a material becomes waste and when waste becomes a good again”.15 One way of defining it is to list those substances that will constitute waste. However, this will suffer from inflexibility. The preferable approach would be to have a purposive definition which would resolve the tension existing between the prevention of waste as well as the regulation of that waste. This tension features in the colloquialism that one person’s trash may be another person’s treasure. In the United States, recyclable materials are not considered waste. This is because “to stigmatise recyclable secondary materials as waste [would seem to be] a catalyst for community opposition”.16 The European Union has taken a different approach. In Criminal Proceedings
(2007) at 562.
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against Vessoso and Zanetti, it was concluded that “the protection of human health and the safeguarding of the environment, would be jeopardised if the [law] were dependent on whether or not the holder intended to exclude all economic reutilisation by others of the” waste.17 In the United Kingdom in Mayer Parry Recycling Ltd v Environment Agency, Carnwath J added that the term “discard” was to be used broadly as “materials which have ceased to be required for their original purpose, normally because they are unsuitable, unwanted or surplus to requirements”.18 This means materials to be reused but not requiring a recovery operation are not treated as waste.
In Attorney-General’s Reference (No. 5 of 2000), this purposive definition was further developed.19 Lord Woolf CJ found that whether a waste disposal method is employed does not determine whether a substance is waste. Rather, whether the substance was “in fact waste [needed to be] determined in the light of all the circumstances”.20 The aim of the law was “protecting human health and the environment against the harmful effects of waste”.21 Scotford identifies five factors that are evidence of discarding.22 Firstly, that the treatment method for the substance is a standard waste treatment method. Secondly, the substance is commonly regarded as waste. Thirdly, the relevant substance is a production residue or by-product. Fourthly, the substance is a residue for which no other use than disposal can be envisaged. Fifthly, the substance is a residue where special precautions must be taken to protect the environment in using it. This flexible definition has been labelled as unsatisfactory because “a material can move in and out of categorisation as waste”.23 However, a workable definition for waste is “a very difficult if not impossible task”.24 Ultimately, the problem is that it is irrelevant “whether something is waste, but [it does matter] how it is controlled”.25
The New Zealand courts have oscillated over a purposive definition. In Manukau City Council v Attorney-General, Laurenson J found that wastewater came within the definition of waste and must be considered under a waste management plan. This was because for such a “plan, to be effective, [it] must
The Need for Enhanced International Understanding” (1993) 5(1) Journal of Environmental Law 91, at 96.
22 Ibid, at 380–381.
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include all waste”.26 To exclude a particular type of waste such as “sewerage and storm water [which] has incorporated with it an estimated seven per cent of total [solid] waste” would be “an exercise in futility”.27 Wastewater simply involved “solid wastes held in suspension”.28 The High Court in Carter Holt Harvey v North Shore City Council came to a similar conclusion.29 Asher J reasoned that the definitions of reusing or recycling incorporate the concept of waste. Waste was therefore designed to be in a “broad sense of material that is surplus to the owner’s requirements, and may become waste unless it is reused or recycled”.30 Hence, waste is “material that is no longer wanted by its owner and which, but for commercial or other initiatives ... would be discarded”.31 To limit the definition “would mean that [there would be no] control or monitor[ing] of recycling operations”.32
A more exacting definition of waste was adopted by the Court of Appeal. Wilson J in the appeal from Asher J stated that paper that had not been abandoned by its owner was not waste but was a good. He reasoned that waste is discarded when “the owner has abandoned all right to ownership ... in the material by some overt act such as leaving it in a public place [such] as a kerbside for collection and disposal by the Councils”.33 With respect, such reasoning is misleading. As Palmer notes, the issue of abandonment “does not really answer the principal issue as to whether or not this material should separately be considered to be waste”.34 It is clear that abandoning a good is discarding. But the converse, of not abandoning a good, should not mean that it has not been discarded. Why should residential paper be labelled as waste but not commercial paper? The commercial enterprise discarded of its paper not to the Council but to another commercial operation. Asher J, it seems, identifies the answer. If it were not for the operation, the substance would become waste. The monitoring of waste flows “must apply [equally] to waste that has been recycled, as much as [landfill] waste”.35
A flexible approach seems to have been adopted in the Waste Minimisation Act 2008 (“WMA”). In the Select Committee, waste was deemed to “be defined as anything no longer required for its original purpose, which, but for waste
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minimisation initiatives, would ... be discarded”.36 Waste minimisation in the Act is defined as the reduction of waste and the reuse, recycling and recovery of waste and diverted material. The term waste itself “means any thing disposed of or discarded; and ... includes any component or element of diverted material, if the component or element is disposed of or discarded”.37 It does not mention the unaccommodating term of abandonment. A much broader definition of waste for dumping at sea is found in the Resource Management Act 1991 (“RMA”).38
3. THE ADMINISTRATION AND MANAGEMENT OF WASTE
3.1 International Obligations
A number of international agreements regulate the production, transport and disposal of waste. In 1992, Agenda 21 was revealed as a blueprint at the United Nations Conference on Environment and Development providing a number of aspirational goals. Chapter 4 of Agenda 21 states that due to the mounting levels of waste products and materials, governments should reduce waste generation by encouraging recycling in industrial processes, reducing wasteful packaging of products and introducing more environmentally friendly products. Chapter 20 is directed towards environmentally sound management of hazardous wastes so as to prevent illegal trafficking. Chapter 21 provides for the management of solid waste and sewerage. At 21.4, it is provided unequivocally that:39
[W]aste management must go beyond the mere safe disposal or recovery of wastes ... and seek to address the root cause of the problem by attempting to change unsustainable patterns of production and consumption. This implies the application of the integrated life cycle management concept.
Governments are called upon to initiate and monitor programmes “to achieve sustained minimisation of waste generation”.40 Objectives should include “[t]o strengthen and increase national waste reuse and recycling systems”.41
International law has attempted to prevent the excesses of waste pollution. For example, the Stockholm Convention 2001 requires the phasing-out of
37 WMA, s 5(1).
38 Resource Management Act 1991 (“RMA”), ss 15A–15C. 39 Agenda 21, Chapter 21.4.
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production and consumption of the persistent organic pollutants and replacing with appropriate substitutes. The 1972 London Dumping Convention along with the 1982 United Nations Convention on the Law of the Sea now substantially make dumping at sea illegal. Only a limited range of largely harmless matter including dredged material, sewerage sludge, organic material, ships, platforms and other structures may be dumped under permit.42 The Noumea Convention 1986 provides a regional solution. Land-based sea pollution goes on largely unregulated.
The Basel Convention 1989 is by far the most significant international waste law.43 It applies to household and hazardous waste disposed of or intended for disposal.44 This aims to control and limit the movement of waste based upon a process of prior informed consent. As well as seeking to minimise waste produced and encouraging environmentally sound disposal facilities in a State’s own territory, the Convention looks to ban the export or import of waste to Non-Parties unless an Article 11 agreement has been concluded. The goal is to inhibit global free trade in waste.
3.2 Environment Act 1986
The Ministry of the Environment is the central government agency to administer waste management law in New Zealand under the Environment Act 1986. The Ministry’s role is different from the Parliamentary Commissioner for the Environment who provides an independent check on the environmental management and performance of public authorities in improving the quality of the environment. The Ministry for the Environment, by contrast, is to develop “policies for influencing the management of natural and physical resources and ecosystems” and to consider those environmental impacts “that are not adequately covered by legislative or other environmental assessment requirements currently in force”.45 In 2002, the Ministry produced the New Zealand Waste Strategy (“NZWS”).46 This non-legislative document was designed to cover solid, liquid and gaseous waste as part of achieving zero waste and sustainability. It sought to lower the social costs and risks of waste, reducing environmental damage from waste generation and disposal. The key policies were to have a sound legislative basis for waste, full-cost pricing, high environmental standards, adequate accessible information and the efficient use of resources by setting 30 targets. It remains a milieu for the Ministry.
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3.3 Waste Minimisation Act 2008
The WMA looks at waste management law from a product creation perspective and is especially focused on recycling.47 Its purpose is to encourage the minimisation of waste and decrease waste disposal in order to protect the environment from harm while providing environmental, social, economic and cultural benefits. Part 2 of the Act considers product stewardship. The Minister for the Environment, firstly, has to declare a product to be a priority product if the product will or may cause significant environmental harm when it becomes waste or there are significant benefits from its waste minimisation and management. This will follow public consultation. The Minister, secondly, must develop a product stewardship scheme. Product stewardship schemes involve take-back schemes (where a vendor has to receive used products from the purchaser); deposit/refund schemes (a purchaser receives a refund of a deposit if they return a product); labelling schemes (informing purchasers of waste implications); and product design schemes (a manufacturer must choose environmentally friendly materials or processes when making a product).48 A product stewardship scheme developed for a non-priority product may be accredited to be treated as a priority product. The Minister may revoke the scheme if satisfied that reasonable steps are not being taken to implement the scheme. Part 7 establishes the Waste Advisory Board. This advises the Minister on declaring priority products, product stewardship schemes, accreditation and regulations which may include prohibiting the sale of products.49
3.4 Non-Governmental Initiatives
A number of non-governmental organisations attempt to implement environ- mentally sound waste management practices. The Zero Waste New Zealand Trust is a charitable organisation designed to achieve zero waste through sustainability. A focus on creativity and resourcefulness will allow the Trust to continuously improve and advocate community development projects for waste minimisation. Zero Waste New Zealand Ltd is its commercial arm providing expert advice to organisations with sustainability audits. WA$TED! on TV3, with its slogan “save your planet, save your cash”, also gives advice to householders. Additionally, many community groups and businesses provide a number of waste services.
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3.5 Non-Statutory Initiatives
Business-orientated programmes supported by the government have also taken hold. For example, the Packaging Council of New Zealand (Inc) signed the 2004 Packaging Accord. This accepted that packaging waste was increasing and that a drive towards sustainability was required. The Accord states that the incorporated society is to report annually to all signatories “on the progress of the brand owner, retailer and packaging manufacturer sector action plans”.50 It was signed by the Minister for the Environment, the Packaging Council and other associated packaging industry representatives. The Accord did not, however, go so far as to create a legal or binding relationship. Another business initiative is the New Zealand Business Council for Sustainable Development. Without belittling such progress, voluntary schemes tend to be undermined by a lack of co-ordination. Nunan suggests that while the design of such schemes is to reduce costs to government and industry, the United Kingdom experience has prompted packaging regulation anyway.51
3.6 Territorial Authorities
Territorial authorities retain the most significant role in waste management law. They are to “promote effective and efficient waste management and minimisation within [their] district”.52 Under s 43 of the WMA, a territorial authority must adopt a waste management and minimisation plan. Such a plan must provide objectives and policies for achieving effective and efficient waste management and minimisation. This would include the “collection, recovery, recycling, treatment and disposal services for the district to meet its current and future waste needs”.53 Territorial authorities are also empowered to provide educational activities and grants under any conditions they think fit. They are to ensure that the collection, transport and disposal of waste does not, or is not likely to, cause a nuisance. The territorial authority is not limited to a strict cost recovery or user-pay principles for any particular service, facility or activity provided by the territorial authority in order to induce the appropriate incentive or disincentive. An important aspect to the waste management and minimisation plan is that the “Governor-General may, by Order in Council made on the recommendation of the Minister, direct a territorial authority to
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include, omit, or amend 1 or more provisions in its” plan.54 The Minister can also set performance standards for the implementation of the plan.55 This central government control would seem to provide for a degree of national uniformity. A territorial authority or any person on its behalf that provides a service to collect waste must do so “promptly, efficiently, and at regular intervals”.56 A Health Protection Officer under s 55 may serve a notice on a territorial authority if it is found that “the territorial authority has failed to collect waste from the premises promptly or efficiently” and the “failure to do so is causing, or is likely to cause, a nuisance”.57 The notice must state the associated premises, a waste description, the time by which the waste is to be collected and that a failure to comply is an offence. Furthermore, a territorial authority may review a waste plan but must undertake a waste assessment before completion of the review. This assessment must contain a description of the collection, recycling, recovery, treatment and disposal services currently available, a forecast of future demands for such a service, a statement of options to meet such demand and a statement of the territorial authority’s proposals for meeting such demands so that public health is adequately protected and waste management and
minimisation is to be promoted as effective and efficient.58
The territorial authority takes on a different role in making waste bylaws.59 The Christchurch City Council has four main waste bylaws which are generally to license those who collect and dispose of waste. Firstly, there is the Licensed Waste Handling Facilities Bylaw 2007. This licenses persons carrying out the collection and transportation of waste. Secondly, there is the Cleanfill Licensing Bylaw 2008. Thirdly, the Waste Management Bylaw 2009 provides for the maximisation of the recovery of receptacle resources. Any person using a kerbside collection must comply with the terms and conditions for that service including the correct separation of organic matter, recyclable materials and residual waste into approved containers. Fourthly, the Trade Waste Bylaw 2006 means all businesses and organisations that produce liquid trade waste must apply either for consent to discharge or are to register the discharge. Those entities that come within the permitted discharge as listed are registered. Those that are not permitted require consent. When granted, the trade waste consent may specify the type of pre-treatment required, maintenance, the type of substances to be discharged as well as the volume or rate of the discharge.
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3.7 Regional Councils
Provisions for waste management do not end with the territorial authorities. Regional councils have an extensive role under the RMA. Regional plans usually regulate water, air, coastal areas and the soil of land, and district plans generally regulate the use of land in terms of development and protection. The dividing line between the regional council and the territorial authority will not always be clear. Hazardous substances are considered in the territorial authority waste management and minimisation plan but will also form part of a regional plan in terms of an adverse effect on the environment. Under s 9 of the RMA, a use of land is prohibited where it contravenes a regional or district rule or an environmental standard. Use of land is defined as to “drill, excavate, or tunnel land or disturb land in a similar way” as well as to “deposit a substance in, on, or under land”. Section 15 provides that no person may discharge any contaminant into water or in circumstances that may result in the contaminant entering water. Nor may any person discharge a contaminant from any industrial or trade premises into the air or onto or into land unless that discharge is expressly allowed. Subsections 2 and 2A provide that no person may discharge a contaminant into the air, or into or onto land, from a place or any other source whether movable or not in a manner unless expressly allowed. This also applies to ss 15A–15C implementing the 1972 London Convention by prohibiting dumping waste at sea.60
National environmental standards (“NESs”) should have a strong role in imple- menting a consistent approach to waste management law in New Zealand. NESs have the status of regulations. A territorial authority or a regional council plan rule is only to prevail where the rule is more stringent than the applicable NES. A plan rule is also removed where a NES provision is duplicated. A resource consent that is granted prior to the making of a NES is to prevail except where a resource consent is reviewed. A bylaw must be removed if more lenient. Currently, one NES for air pollutants exists and there is a proposed NES for soil quality.61 The air pollutant standard provides that the burning of waste at a landfill or tyres, bitumen, wire coated with any material and oil are all prohibited except as otherwise in the circumstances detailed. An incinerator at a school or healthcare institution is prohibited unless a resource
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consent is obtained. High-temperature hazardous waste incinerators are also prohibited unless the incinerator is a crematorium or operates at three defined places in New Zealand. Prescriptions are moreover detailed for domestic wood burners and greenhouse gas emissions from landfills. The proposed NES for assessing and managing contaminants in soil is detailed below. In addition, there are regulations promulgated under s 360 of the RMA such as the Resource Management (Marine Pollution) Regulations 1998 which applies to the coastal marine area.
3.9 Environmental Performance
The Organisation for Economic Co-operation and Development (“OECD”) has produced environmental performance reviews on New Zealand’s waste practices. In 1996, it bemoaned that waste management has been “long regarded as not especially pressing in New Zealand because of the country’s predominantly rural nature, low population density and ready availability of landfill sites”.62 Deploring New Zealand’s lack of comprehensive legislation as a sheer lack of priority, waste issues were seen as “poorly analysed and, in many cases, disregarded”.63 Waste management was “hampered by a lack of reliable, comprehensive information on [waste] sources [and] generation at national level”.64 The owners of contaminated sites did not have any “obligation[s] to report to the authorities, and regional councils have only limited authority to investigate or to require clean-up”.65 Furthermore, regional “efforts need[ed] to be co-ordinated and harmonised”.66 Rural areas faced trouble with “[i]llegal dumps, often on private land, and old waste disposal sites”.67
The 2007 OECD environmental performance report showed little had changed. New Zealand’s “fragmented legislative and institutional framework for waste management has stymied efforts to take a cradle-to-grave approach to materials management”.68 Relevant “legislation mostly deals with the disposal end of the waste hierarchy, with recycling, recovery and minimisation dealt with solely” voluntarily.69 Although the introduction of territorial waste management plans was seen as a positive improvement, “a few [territorial authorities had]
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not produced plans at all”.70 It added that the “absence of [NESs] for disposal facilities has created an uneven playing field for landfill operators, and thus stunted the development of a market for waste management services”.71 While there were difficulties in “establishing stable recycling markets” in New Zealand, the problem of hazardous waste management was of more concern.72 Hazardous waste management involved unclearly divided responsibility. Reliance on local authorities was misguided because they “may lack necessary technical capacity” to deal with hazardous substances.73 The review recommended that New Zealand develop regulations to “introduce mandatory and comprehensive systems for tracking [hazardous wastes] transport, treatment and disposal”.74
Commentators have also rightly censured the fragmented legislative and institutional framework. In 2000, Boyle observed that the waste management industry was undergoing significant change to deal with waste in a more environmentally friendly manner. He contended that New Zealand’s waste management programme was “vague, lacking in direction and funding and will not succeed in reducing waste production or effectively managing waste”.75 Central government “must take responsibility for providing overall direction and ensuring ... consistent [regional] programmes”.76 Similarly, Davies has proffered four main problems with waste management governance in New Zealand. Firstly, the geographical variation of waste management practices “extended beyond planning and decision making [into] monitoring and enforcement”.77 Secondly, there was a lack of leadership from central government and the absence of strong legislation. It was questioned whether New Zealand should adopt an Environment Agency to provide a uniform national enforcement such as in the United Kingdom. Thirdly, the role of the private sector was undefined. The private sector was candid about ensuring that “consistent consenting standards were applied to waste facilities” as it was not in their interest to do so.78 The final problem concerned the place of non- governmental initiatives. The private sector bemoaned the fact that zero waste to landfills was unachievable. The not-for-profit community groups vigorously queried the concern for the environment due to a commercial motive of the private sector.
These criticisms have force; however, they may have been overtaken
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by recent developments. Wagener is right to point out that the WMA “is an important step forward”.79 Firstly, the waste management plan variegation of territorial authorities will to some extent be remedied by s 48 of the WMA providing that the Minister for the Environment can direct a territorial authority to include, omit or amend one or more provisions in its waste plan. It is hoped that this will ensure a more uniform approach to waste management plans in general. In 2007, substantial inconsistencies between territorial authorities were revealed by the Controller and Auditor-General.80 While all territorial authorities had a waste plan, many were well overdue for review or were insufficiently detailed.81 Secondly, while New Zealand does now have an Environmental Protection Authority as provided for under the 2009 RMA amendments, this does not unify enforcement. Rather, the Environmental Protection Authority essentially has call-in powers to determine a resource consent or other matters when the matter is considered to be one of national significance. A central government initiative toward uniform environmental prosecution ought to be developed. Thirdly, environmental issues will always affect both private sector and public interest groups. These groups have different policy aims but both ought to be given the chance to air their views. Fourthly, a major factor influencing the commentators seemed to be a lack of national uniformity or co-ordination on any matter of waste management. It is submitted that this may be to some extent remedied when a NES for Assessing and Managing Contaminants in Soil comes into force. This is likely to satisfy the need for such national direction to amalgamate the fragmented situation.82
4. AN APPLICATION OF THE LAW
Waste management law is difficult to illustrate using abstract concepts. Case law does provide such an explanation. Five cases have been chosen to demonstrate its workings. The first three involve applications for resource consents for disposal, namely a landfill, an incineration plant, and a sewage treatment facility. These illustrate that public opposition to disposal facilities is usually provocative, systematic and relentless. They also demonstrate the overlapping jurisdictional matters over which territorial authorities and regional councils have to hurdle. The other two cases consider enforcement, and refer exclusively to landfills as this is the most common breach.
82 Mf E, Proposed National Environmental Standard for Assessing and Managing Contaminants in Soil, supra note 61.
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The principal waste management law enforcement statute is the RMA.83 Its enforcement mechanisms include a declaration by the Environment Court, abatement notices and infringement notices. A notice may be issued where an issuing enforcement officer believes that a person is in contravention or likely to contravene the Act, any regulations, any rules in a plan or a resource consent. Enforcement orders are civil proceedings in the Environment Court requiring a person to cease a certain activity or prohibit the person from commencing that activity. There are three levels (Grade I, II and III) of offences against the RMA. Grade I are self-contained offences against ss 9–15, any enforcement order or abatement notice. Grade II offences are strict liability. Grade III offences are generally full mens rea offences involving a wilful obstruction of due process. The grading of offences will often reflect the nature, severity and culpability of the offence.
The application for resource consent for the Kate Valley landfill in North Canterbury arose in Canterbury Too Good to Waste Inc v Canterbury Regional Council.84 Transwaste sought and obtained 25 consents for the landfill. Community groups appealed the decision. Smith J in the Environment Court considered each matter of the landfill separately. This included formation of the base of the landfill, placement of a liner, formation of access roads, drainage with sediment control measures, water supply, leachate control, gas control, site infrastructure, landscape planting, controlled placement of waste, cap placement, monitoring and aftercare. Extensive technical evidence was led to allow for the “development and operation of a modern, engineered regional landfill for disposal of residual municipal solid waste”.85 Conditions included a leachate collection system at a “toe bund”.86 Leachate was expected to flow down the hill along the liner surface (including a geosynthetic clay layer comprising plastic and clay) along leachate collection pathways. It would be collected, stored and removed. The objectors gave substantial emphasis to seismic activity which could contaminate the groundwater and the sea. However, a reasonable balance was sought. Smith J concluded that “the limitations imposed by the conditions [represent] an effective integration of the various matters provided for sustainable management”.87
Institutional fragmentation is shown in Quarantine Waste (NZ) Ltd v Waste Resources Ltd.88 Quarantine Ltd sought an order quashing a land-use consent to quadruple incineration activities undertaken by its competitor Waste Resources
86 Ibid, at .
87 Ibid, at .
88 Quarantine Waste (New Zealand) Ltd v Waste Resources Ltd  NZRMA 529.
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Ltd. Waste Resources Ltd operated an incinerator at Auckland International Airport to dispose of refuse from overseas aircraft. A resource consent was required to authorise the incineration of waste beyond the Auckland Inter- national Airport zone. The Manukau City Council had held that notification was not required. In the High Court, Quarantine Ltd argued that the incinerator may deal with toxic wastes and no assessment of environmental effects had been made. Blanchard J noted that the air discharge permit contained a condition prohibiting the incineration of refuse produced outside of the airport zone, except with the prior approval of the Auckland Regional Council. Thus, the effects on the environment caused by the air discharges should not be taken into account when a land-use resource consent was to be considered. Overall, Blanchard J deduced that the Council’s decision was not unreasonable because air discharges was a matter for the Regional Council not City Council.
Rider v Manawatu-Wanganui Regional Council again shows institutional fragmentation when a territorial authority had to apply to a regional council to discharge treated sewage into freshwater.89 In 2007, the Horowhenua District Council applied to the Manawatu-Wanganui Regional Council for resource consent to authorise the operation of the Shannon Sewage Treatment Plant. The consents were designed to upgrade the existing system including an oxidation pond, an engineered wetland, a pumped pipeline to Mangaore, a land application system and a contingency discharge to the Manawatu River. In 2007, it notified on this basis with four options including discharge into the Stansells Drain, discharge into the Mangaore Stream at all flows, a discharge to the Mangaore Stream when the flow was greater than median, and a discharge directly into the Manawatu River. A 2008 explanatory document only referred to the fourth option of discharging directly into the Manawatu River. Dwyer J found that a reasonable person would view the fourth option notification to apply only in circumstances when the other consented discharges and storage was not possible. The “notification process was fatally flawed by the potential confusion which it created”.90 This meant that another consent application had to be submitted to ensure proper notification.
Works Infrastructure Ltd was faced with a prosecution under s 15 of the RMA by the Taranaki Regional Council when bitumen leaked from drums that were transported to a farm dump.91 The bitumen was no longer usable and the bitumen drums were dumped into a pit. Council officers investigated, the drums were re-stored properly on the farm and the contaminated soil from the pit had been dug out. No permanent environmental damage was done. Nevertheless,
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Thompson CJ felt that the incident was not so insignificant that no responsibility should attach to it. It was accepted that transporting the drums or storage of them did not require a resource consent. Counsel for the defendant argued that as s 15(1)(d) required that the discharge had occurred from industrial or trade premises liability could not follow because the two sites (the farm and the industrial premises) must be contiguous to satisfy the preposition “from”. Thompson CJ, however, held that the land did not have to be contiguous because applying the word “from” was to be used in the plain sense “without placing any artificial restriction upon” it.92 All in all, a strong public interest factor required “bringing home to those who deal with potentially contaminating substances that [if a breach of the Act occurs], a conviction will follow”.93
While regional councils control contaminants, territorial authorities deal with uses of land. Hence using land as a landfill, an activity which usually requires a resource consent, will constitute an offence as alluded to in Palmer v Waimakariri District Council.94 Rule 22.4.2 of the Proposed Waimakariri District Plan dictated that landfills are a discretionary activity requiring a resource consent. To do otherwise would breach s 9 of the RMA. The material that was dumped was construction and demolition waste including wood and plastics. The defendant argued that as the material was inert, it was not waste because it was not a contaminant. Panckhurst J in the High Court concluded that the reference to contaminant in the definition of waste was self-contained. He referred to another part of the definition which referred to “all unwanted and economically unusable by-products”.95 He was prepared to find that this part was a standalone definition. There was no requirement for an adverse effect on the environment. What was required, rather, was for the council “simply to demonstrate the existence of a landfill containing solid waste” as defined.96
5. SPECIFIC TYPES OF WASTE
5.1 Classification of Waste
There are a variety of ways to divide waste into categories. One way is accord- ing to its source — namely, household, commercial, industrial, agricultural or mining waste. Another way is to describe the nature of the waste. For
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example, there are organic, paper, glass, steel and aluminium wastes which are substantially capable of recycling. Fabrics and ceramics can be also recycled. Plastic is more complicated and is divided into 7 different categories marked with a number inside of a triangle of arrows. Some can be recycled, while for others recycling is financially prohibitive. Construction and demolition waste involves concrete, bricks, plasterboard, steel and glass. This is relatively inert so has been usually dealt with in cleanfills which can be “a permitted activity in many regional and district council plans” not requiring resource consent.97 Cleanfills “are not well monitored” and it is estimated that there may be upwards of 300 cleanfills in New Zealand.98 This is of some concern. Most gaseous waste involves dust and smoke from fires and industrial processes.
5.2 Tyres, Used Oil, Electrical and Electronic Goods, and Batteries
Tyres, used oil, electrical and electronic goods, and batteries pose particular problems. Approximately 4 million tyres are disposed of annually, the majority landfilled. The most cost-effective method of disposal is fuel in cement kilns. Another alternative is rubber crumb to be used as a roading surface.99 About 9 to 16 million litres of used oil is unaccounted for each year. This could be also used at cement kilns. At an estimated 17 cents per litre, all used oil has a value and is all technically recoverable.100 An e-day held for e-waste (that is, electrical and electronic goods) was held on 5 October 2008 with 946 tonnes diverted from landfill at 33 drop-off sites around New Zealand.101 All e-waste was to be shipped to South Korea to be manually disassembled and recycled. There are also refurbishment businesses who sell second-hand computers. Furthermore, Fisher & Paykel run a recycling service for whiteware.102 Some batteries contain heavy metals such as mercury, lead and cadmium. Car batteries are generally recyclable. Household batteries can be disposed of in landfill. Button batteries in watches and bigger batteries such as those in mobile phones and laptops are more dangerous and should be recycled if possible.
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5.3 End-of-Life Vehicles
End-of-life vehicles have proven a rapidly growing waste management problem too.103 End-of-life vehicles involve many hazardous substances such as operating fluids, a battery, a LPG, petrol or diesel tank, and CFCs from air-conditioning units. A survey of New Zealand local authorities estimated that 25,000 vehicles nationwide are abandoned each year. In about a third of cases, the vehicle owner is traced and costs recovered. The annual cost to ratepayers is estimated at $6 million per year. In New Zealand, end-of-life vehicles are recycled via automotive dismantlers, scrap metal recyclers or local authority collection sites. The auto-wreckers bale or crush the vehicle.104 Sim Pacific Metals Ltd shreds the vehicle into fist-sized chunks and the steel is melted. About 75 per cent of each end-of-life vehicle by weight is recycled. The remaining material is landfilled. Central government ought to consider a NES for end-of-life vehicles or alternatively a product stewardship scheme as a priority product. Cassells has rejected the necessity for such a scheme, citing administrative requirements being too burdensome.105 A preferable approach is a modified version, as she suggests, of imposing “a de-pollution charge on incoming vehicles”.106
5.4 Liquid Waste and Rural Effluent
Liquid waste forms a deceptive portion of the waste stream. In terms of liquids, there is stormwater, trade waste and sewage which after treatment become sewage sludge and wastewater. Trade waste and sewage are discussed above.107 Sewage sludge or biosolids are either dispersed at sea, made into compost or disposed of at a landfill. Non-point source discharges of liquid waste such as animal effluent on farms are less regulated. The pollutants can be absorbed into the soil contaminating groundwater or run off into waterways nearby. This can lead to eutrophication, increasing nutrients in the water, which de- oxygenifies water suffocating freshwater life. In 2003, a Dairying and Clean Streams Accord was signed with a number of performance targets to prevent eutrophication of New Zealand’s waterways. One such target is that 90 per cent of dairy cattle are to be excluded from streams by 2012. Drummond has rightly
107 Rider v Manawatu-Wanganui Regional Council (EC Wellington, W080/09, 15 Oct 2009, Dwyer J).
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called for NESs to “bring some consistency to the management approach across regional councils”.108 Voluntary initiatives were “not translating into action”.109 Rural land “practices continue to be economically driven with little regard [for] the ... environment”.110 Regional variation is impeding any national cohesion.
5.5 Hazardous Waste
Hazardous waste has an unwieldy workable definition as any waste that:111
For the Hazardous Substances and New Organisms Act 1996 (“HSNO Act”), a hazardous substance is a substance with one or more properties of explosive- ness, flammability, oxidisation, corrosiveness, toxicity or ecotoxicity.112 It also includes a substance that on contact with air or water generates a substance with any of the properties hitherto referred. Regulations provide the degree at which a substance is no longer considered a hazard.113 Hazardous substances are classified based upon the present hazards into class, subclass and category.114 The HSNO Act is principally concerned with the importation and manufacture of hazardous substances. Hazardous waste that has not been imported or deliberately manufactured but is merely produced as a by-product of the production of another substance is not covered by the Act.115 This is problematic. The Ministry for the Environment has developed a New Zealand Waste List or
115 Environment Canterbury, Canterbury Hazardous Waste Management Strategy (Part 1: Policy Framework: 2006), at 23, available at <http://www.ecan.govt.nz/> .
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L-Code to help councils in determining waste as hazardous for resource consent and waste management purposes. This enables a consistent classification for record-keeping purposes and to enable best practice management of hazardous waste. WasteTRACK ensures the safe transportation of wastes to an approved treatment or disposal facility to ensure the proper treatment.116
5.6 Infectious Waste
Infectious waste is part of hazardous waste. The Land Transport Rule: Danger- ous Goods 2005 now contains the meaning of infectious substances as material “known, or reasonably expected, to contain pathogens. Pathogens are micro- organisms (including bacteria, viruses, rickettsiae, parasites and fungi) and other agents, such as prions, which can cause disease in humans or animals”.117 New Zealand Standard 5433:1999 provides for Transport of Dangerous Goods on Land. This refers to the New Zealand Standards Council who make independent standards under the Standards Act 1988. There are also standards in relation to a number of other activities in waste management. For example, NZS 4304:2002 deals with management of healthcare waste and NZS 4454:2005 prescribes compositional requirements for composts, soil conditioners and mulches. New Zealand has 20 waste incinerators which incinerate clinical, hazardous and quarantine waste.118 Quarantine waste is material brought into New Zealand in breach of the Biosecurity Act 1993.119 Healthcare and waste is dealt with through the Health and Safety in Employment Act 1992 (“HSE Act”).
5.7 Radioactive Waste
The Radiation Protection Act 1965 is an independent statute to deal with radio- active material. Radioactive material (and therefore radioactive waste) “means any article containing a radioactive substance giving it a specific radioactivity exceeding 100 kilobecquerels per kilogram and a total radioactivity exceeding 3 kilobecquerels”.120 Most radiochemistry and nuclear medicine waste is in liquid form. For medical radioactive chemicals, most of the radioactivity has disappeared through radioactive decay during its use. In New Zealand, solid
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radiation waste contamination levels will usually be sufficiently low for uncontrolled disposal. However, for high concentrations, the 1965 Act requires that every radiation licence will stipulate how to dispose of that waste in accordance with the conditions of the Director-General of Health.121 The current practice is for almost all sealed radioactive sources to be removed, immersed in concrete in 20-litre drums perhaps with appropriate lead shielding to achieve appropriate radiation levels. It is then stored. The National Radiation Laboratory notes “no attempt should be made to anticipate hazardous substances disposal practices and requirements ... in the future”.122 Some might disagree.
6. WASTE AND ECONOMIC MECHANISMS
6.1 Product Stewardship
The WMA envisages a range of economic instruments to create incentives and disincentives for waste minimisation and management. Firstly, s 23(1)(c) provides for advance disposal fees or take-back services or refundable deposits. Advance disposal fees are charges added to the product at the point of sale to cover the cost of waste minimisation and management. A take-back service is where the vendor of goods is required to take back worn-out goods from the purchaser. Voluntary examples include Telecom and Vodafone taking back old mobile phones to be dismantled and recycled. Deposit-refund schemes are a levy on top of an advance disposal fee to encourage recycling. When a product is returned, a refund is made to the returner. Secondly, under s 23(1)(f ) labelling requirements may be required explaining that a product is recyclable and how to dispose of it. Thirdly, under ss 23(1)(a) and (b) the government may regulate that a manufacturer has to design his or her product using environmentally friendly materials or processes. The Minister is only entitled to make such regulations if they are not satisfied that there is adequate infrastructure in place to provide reasonably practicable alternatives. The Minister must consider the Waste Advisory Board’s advice, ensure adequate consultation, and be satisfied that the regulations align with international law.
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6.2 Waste Movement
Waste flight will occur when no economic inducements exist for disposal of waste as close as possible to its source. Waste will be naturally transported to the cheapest source of disposal. In 2006, the price per tonne of waste to landfill was
$21 in Taumarunui and $196 in Kawerau.123 The problem with such a system is that the cheaper the landfill, the more likely it is that the landfill does not meet environmental quality standards. To combat this problem, since 2002 there has been the closure of more than half of the then operating landfills.124 Waste is now travelling greater distances for disposal. In New Zealand, there appears to be no law which prevents domestic waste tourism. In theory, therefore, it is possible for New Zealand to have only one landfill. The only laws that do exist are to regulate the transportation of dangerous goods. The Land Transport Rule: Dangerous Goods 2005 Rule 8.1(1) provides that “dangerous goods must be loaded, secured, transported and unloaded safely, as appropriate to the nature, quantity and use of dangerous goods”. Civil Aviation Rule Part 92: Carriage of Dangerous Goods provides more stringent obligations for air transport. The Maritime Rules Part 24A: Carriage of Cargoes — Dangerous Goods sets out dangerous goods carriage at sea and associated responsibilities. WasteTRACK for hazardous substances mentioned above provides for national hazardous waste tracking.125
New Zealand is a signatory to three overlapping international agreements as to the movement of materials classified as hazardous waste which can include household waste.126 These are the Basel Convention 1989, the OECD Control System for the Transfrontier Movements of Wastes Destined for Recovery Operations 1992, and the Waigani Convention 1995. All three have obligations
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to obtain the consent of the country of destination and any transit countries before the commencement of any movement of waste. Under Article 1.3 of the Basel Convention, there is full recognition “that any state has the sovereign right to ban the entry or disposal of foreign hazardous wastes and other wastes in its territory”. Thus, each party must have a designated competent authority through which consents to export must be issued prior to the materials being exported. A company who wishes to export a material that might be classified as hazardous waste needs to ensure necessary consents are obtained. This would need to explain how the movement is consistent with the environmentally sound and efficient management of the waste. Both the OECD Control System and Waigani Convention are an exception under Article 11 of the Basel Convention. This means that if an importer is not a party to any of the three international agreements, the export of any hazardous waste as defined is prohibited.
6.3.3 Disposal levies
A waste disposal levy is economically designed to reduce waste going to a disposal facility. Territorial authorities tried to introduce such a levy through bylaws in Carter Holt Harvey v North Shore City Council.127 Asher J struck down the bylaws made under the Local Government Act 1974 because the levy was deemed ultra vires. The plaintiffs submitted that only the legislature had a power to tax.128 Asher J examined the empowering clauses of the 1974 Act concluding that the clauses allowed the Councils to recover costs and allocate costs from licensing.129 The Councils had no “right to impose general levies, not related to the costs actually incurred, but as a means of financing Council waste minimisation efforts generally”.130 Councils were empowered under the Local Government (Ratings) Act 2002 to fund waste initiatives from rates. Thus, the Council “cannot bypass the rating process, and fund waste initiatives through a bylaw in the nature of a tax”.131 Asher J concluded that as well as being ultra vires in terms of repugnancy, the waste bylaws were unreasonable and uncertain. The discretion for the levy was of an unlimited amount and did not restrict which licensees should pay the levy, how the levy was to be calculated, and the type of waste covered. The discretion to levy amounted to an unfettered power to tax. The government by forcing local government to take control of waste management overlooked local government’s limited powers. Asher J’s reasoning is impeccable.
In response, the legislature enacted Part 3 of the WMA to provide for a
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national waste disposal levy. The levy is to raise revenue for promoting and achieving waste minimisation and increase the cost of waste disposal to recognise that disposal imposes costs on the environment, society and the economy. The levy has been initially set at $10 per tonne subject to goods and services tax. Regulations detail the procedure.132 Registration of an operator of a waste disposal facility is required. Net tonnage (gross tonnage less any diverted material) is required to be submitted by a monthly or annual return (smaller facilities) but the levy is payable monthly. If a return is not filed, an estimate is made, with an invoice of the levy payable. Failure to pay the levy will result in debt collection procedures although waivers in exceptional circumstances and refunds are available. Tonnage will usually be calculated by a weighbridge. However, for smaller facilities a volumetric survey or a per capita waste disposal calculation will be accepted. Half of the levy will be distributed to territorial authorities to promote waste minimisation. The other half will be distributed by the Ministry for the Environment under the Waste Minimisation Fund.133 Only new projects which promote waste minimisation will be eligible for funds. This is promising as in the United Kingdom landfill tax has been abused to create new nature reserves rather than spend towards waste minimisation activities as there is nothing commercially appealing about waste minimisation.134
7. ENVIRONMENTAL LIABILITY IN ADDITION TO THE RMA
7.1 Common Law
Incinerators, sewage treatment plants, landfills can all create a nuisance to which a remedy may be available on top of the many waste management law statutory enforcement provisions.135 There can be noise, smell, fumes, traffic disturbance, leachate, methane or animal nuisances. Most of these are extensively mitigated or controlled by the granting of resource consent, but the granting of resource consent does not in and of itself create an exemption from tortious liability. An action in private or public nuisance may therefore still exist where there is an unreasonable interference with a person’s right to the use and enjoyment of his
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or her land. An assessment of unreasonableness will be predicated upon the time of day, the intensity and duration of the interference. However, disposal facilities are likely to be seen as having a social utility which necessitates a degree of toleration. The court will fix a threshold level of unreasonable interference based upon the locality. Moreover, the Rylands v Fletcher doctrine holds the “occupier of land strictly liable for damage caused by an isolated escape of something harmful that was brought on to or accumulated on the defendant’s land in the course of a non-natural use of that land”.136
7.2 Health Act 1956
Waste management is also attacked under the Health Act 1956. Under s 25 of the Act the Minister of Health may require any local authority to provide sani- tary works as the Minister may specify. Sanitary works may include drainage works, sewerage works, works for the collection and disposal of refuse and other offensive matter, cemeteries and crematoria. Local authorities may raise loans and can receive government grants. The Act prohibits nuisances and offensive trades. A nuisance has an inclusive definition as incorporating “any accumulation or deposit [which] is in such a state or is so situated as to be offensive or likely to be injurious to health”, “where any premises, including any accumulation or deposit thereon, are in such a state as to harbour or to be likely to harbour rats or other vermin” and “where the burning of any waste material, rubbish, or refuse ... produces [air pollution] as to be offensive or likely to be injurious to health”.137 Those provisions requiring refuse removal by authorities are now in the WMA.
7.3 Litter Act 1979
Another waste management oddment is offences under the Litter Act 1979. Litter control is the responsibility of Keep New Zealand Beautiful Incorpo- rated, with public authorities having some responsibilities for district litter control. Section 9 of the Act requires every public authority to provide in every public place such litter receptacles as may be necessary to keep the place free from litter. An analysis of the offence provisions against littering is found in Marlborough District Council v Baker.138 When Mr Baker was faced with paying $24 for the disposal of three cubic metres of rubbish, he said he was not going to pay it, drove his truck down the road and dumped the rubbish amongst some trees on council land. A Mr Hawkins, a litter officer, served Mr
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Baker with a letter requiring him to remove the rubbish. Mr Baker responded that there would be more. Mr Hawkins found the rubbish there two weeks later and removed it. For the first offence of littering, Keane J noted that there was satisfaction of the three prosecution elements. Mr Baker, who did not appear, did not establish that he had a reasonable excuse. On the evidence, the second offence, of failing to comply with a requirement of a litter control officer without lawful excuse, was also made out. Mr Baker was convicted and fined a total of $1054.50. While such an action may have been used for antisocial behaviour, it is unclear that there is a rationale for having a separate littering offence statute when the real purpose should be environmental protection.
7.4 Hazardous Substances and New Organisms Act 1996
Another layer of fragmentation is enforcement under the HSNO Act.139 There are compliance orders, infringement notices and prosecution. Prosecution will usually occur only where there is a high degree of culpability, a significant environmental impact, the incident response was belated, the party is uncoopera- tive, the public expects corrective action and there is robust evidence available to sustain a prosecution. Section 109 sets out the offences. Of particular note is s 109(1)(d)(ii), which provides that a person commits an offence when they knowingly, recklessly or negligently dispose “of any hazardous substance or new organism imported, manufactured, developed, or released in contravention of this Act”. The defences set out are reflected in s 69 of the WMA as referred to below.140
7.4 Waste Minimisation Act 2008
The WMA provides another set of administrative offences.141 These include contravening regulations which prohibit the sale of a priority product, or a producer breaching a product stewardship scheme. A person who knowingly contravenes a regulation relating to disposal of a prohibited product, manufacturing a product containing specified materials, or failing to meet a standard for waste minimisation will likewise commit an offence. As too, a disposal facility operator must provide information to the Ministry for reporting. A person may be liable for intentionally preventing an enforcement officer or auditor from carrying out his or her statutory functions or duties including refusing to give information or intentionally supplying false or misleading information. Interestingly, a territorial authority may be liable when
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a Health Protection Officer serves a notice on the authority for a nuisance. The court can impose an additional penalty of contravention for commercial gain.142 Section 69 sets out defences which include the offence was necessary to save or protect life or health, to prevent serious damage to property or to avoid actual or likely significant harm to the environment, and the conduct of the defendant was reasonable in the circumstances and the effects of the act or omission were adequately remedied or mitigated.
8. CONTAMINATED LAND
8.1 Contaminated Land Definition
Contaminated land is an area of waste management law which, until recently, lacked any coherent national direction. Contaminated sites continue to raise serious health and environmental risks if not cleaned up. Financial and legal issues form a major impediment to such remediation. Closed landfills require the monitoring of leachate, groundwater, surface water, stormwater, landfill gas and soil settlement. Provision must also be made for stability and animal control. There is well in excess of a thousand closed landfills in New Zealand.143 Many have been converted into reserves or sports fields. In Christchurch alone, Environment Canterbury has identified landfill sites in Islington, Harewood, Linwood, Burnside and New Brighton in addition to those which have been remediated.144 While the Ministry for the Environment may champion itself for closing over half of the nation’s landfills since 2002, it has so far failed to deal with all of them appropriately.145
Contaminated land in the form of closed landfills poses particular risks. In the infamous Love Canal incident in the United States “20,000 tonnes of waste containing over 248 different identified chemicals were deposited” in an unfinished canal.146 A “housing estate and school were built on the site” and twenty years later, the landfill was found to be leaking toxic chemicals.147 In the United Kingdom, landfill gas flowed down coal seams to cause a household
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explosion.148 In Canada, a man was seriously injured when he started his car igniting methane gas which had permeated the surface of the landfill.149 New Zealand has not been immune from contaminated land either. The Fruitgrowers Chemical Company in Mapua of the Tasman District was contaminated with dichlorodiphenyltrichloroethane (DDT) during the production of agricultural chemicals.150 The Tui mine in the Waikato is also contaminated with waste ore and tailings. At times, the Tui stream has turned red when “oxidised iron particles in the adits, the entrances to the mine shafts, are disturbed”.151 Remediation will cost an estimated $18 million.152
The legislative framework for contaminated land management is hollow. Regional councils’ functions include “the investigation of land for the purposes of identifying and monitoring contaminated land” as well as duties in relation to hazardous substances including managing the discharge of contaminants to the environment.153 Territorial authorities are to prevent or mitigate “any adverse effect of ... development, subdivision, or use of contaminated land”.154 However, regional and district rules may exempt contaminated land from their coverage if the rule “provides how the ... adverse effects on the environment that the hazardous substance has are to be remedied or mitigated” or “... avoided” or the rule “treats the land as not contaminated for purposes stated in the rule”.155 In 2006 a third of local government plans did not mention contaminated land.156 The RMA defines contaminated land as “land that has a hazardous substance in or on it that has significant adverse effects on the environment or is reasonably likely to have significant adverse effects on the environment”.157 This definition is consistent with the Australian position which defines contaminated land as sites “at which hazardous substances occur at concentrations above background levels and where assessment indicates it poses, or is likely to pose, an immediate or long-term hazard to human health or the environment”.158 These realistic definitions indicate a full clean-up will not always be possible.
153 RMA, ss 30(1)(ca) & 15.
154 RMA, s 31(1)(b)(iia).
155 RMA, ss 68(11) & 76(5).
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8.2 Identification of Contaminated Land
In 2010 the Ministry for the Environment produced a document entitled Proposed National Environmental Standard for Assessing and Managing Contaminants in Soil.159 Under the proposed NES, the national Hazardous Activities and Industries List (“HAIL”) will be used to identify contaminated sites. This contains historical activities and industries that are more likely to have used or stored hazardous substances and therefore are more likely than other uses or activities to have caused contamination. This list does not mean, however, that the site will be contaminated. Another route is an indication on the land-use information registers of district and regional councils “as being potentially affected ... by contaminants in the soil”.160 HAIL lists landfill sites and waste storage, treatment or disposal as potentially contaminating activities. For Environment Canterbury in 2009, there were approximately 3000 sites registered on the Listed Land Use Register.161 When a site is placed on the Register, the territorial authority and possibly owner are notified. When there is a change in the use, development or subdivision of land, a site investigation will need to take place. However, the proposed NES will exclude existing uses, subdivision (which is not associated with a change in use), activities requiring minimal level of soil disturbance, alterations to existing buildings not disturbing the soil, and any activities on agricultural land associated with food.162 The latter exclusion from the requirement of a soil investigation is because it is argued that the joint Australia New Zealand Food Standards Code and the Health and Safety in Employment Act 1992 are more direct measures to determine whether land is safe for human use.163
Once there is an application for land-use change, development or sub- division of contaminated land, as identified by the HAIL list or otherwise, a preliminary site investigation by an appropriately experienced and qualified practitioner will take place to assess the need for further investigation of the site. If the land is considered to require further investigation a site investigation report will detail the land use which fits within the scope of Soil Guideline Values for human health for inorganic (Arsenic, Boron, Cadium, Chromium
available at <http://www.nhmrc.gov.au/_files_nhmrc/file/publications/synopses/withdrawn/ eh17.pdf> .
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III and IV, Copper, Lead and Mercury) and organic (Benzo(a)pyrene, Dichlorodiphenyltrichloroethane, Dieldrin, Pentachlorophenol, and Some Dioxins) substances as detailed in the NES. The report will also detail land use which is generally both appropriate and inappropriate. If the Soil Guideline Values for human health are exceeded by the contaminants, a remedial action plan or a management and monitoring plan are required. Usually, resource consents will be granted for remediation involving excavation, bore permits or discharges to groundwater. If the land is remediated, a site validation report means that the risk is acceptable for land use and no restrictions are imposed. If, however, the land is not to be remediated, a resource consent will be granted with appropriate restrictions in the form of an Ongoing Management and Monitoring Plan.
This proposed new NES for Assessing and Managing Contaminants in Soil is complemented by a number of other documents. Five guidelines for the reporting, risk assessment, site investigation and analysis of soils currently maintain the law in the area of contaminated land.164 These involve suggested reporting requirements, selection criteria from international procedures, how to risk-screen contaminated land, a consistent method of registration and release of information, and best practice for the sampling and analysis of soils.165 More specific documentation exists in relation to selected timber treatment chemicals, gas work sites, petroleum hydrocarbon sites, former sheep-dip sites and the safe application of biosolids to land.166
The proposed NES is a truly welcome improvement on the guidelines’ lack of legal force. Nevertheless, with over one hundred submissions, the proposed NES is likely to change. A number of issues arise. Firstly, it is unclear why it
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is necessary to wait for a land-use change, development or subdivision before there is remediation. Surely, a continuation of the current use could be just as problematic. Secondly, the exceptions to the land-use change, development or subdivision criteria would seem to require further detailed refining. Thirdly, there is no system of accreditation for contaminated land practitioners.167 Fourthly, it is unclear how orphan sites with the Contaminated Sites Remedia- tion Fund will interact with the proposed NES. Fifthly, New Zealand has limited itself to 12 substances although there is a more specific Australian system of contamination values which could be adopted.168 Sixthly, there is an unwieldy system for approximating exposure based upon rural residential land use of home-grown produce consumption up to 10 per cent and up to 50 per cent of the land. Hopefully, these issues will be resolved and developed before the NES becomes law.
The contaminated land process has been veiled in secrecy. A 2008 decision by the Ombudsman upon the Dominion Post application for the details of 3099 unverified HAIL sites in Hawke’s Bay has reversed this trend.169 The Hawke’s Bay Regional Council had refused because “this information could have significant adverse effects upon property values”.170 The Ombudsman found that the statutory basis for confidentiality relied upon by the Council was misguided.171 The Ombudsman considered that two district councils in the Hawke’s Bay already report unverified HAIL status on LIMs (Land Information Memoranda) and PIMs (Project Information Memoranda) and the Regional Council itself would release the information on a site-specific basis. A prudent purchaser would investigate the nature of the land prior to any sale. Moreover, the Privacy Act 1993 did not protect the Register as the public interest in making the information available outweighed its withholding. However, the disclosure did need to be made on the proviso that these were not confirmed contaminated sites.172 The Ombudsman found there was “a wider public interest in the public
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being apprised of the information about sites where there may be a potential for contamination, so that they [themselves can] assess” the risks.173
This lack of transparency continues to dog effective waste management law. Companies often reply that the waste produced as a result of their activities is confidential. Not only with contaminated land but with packaging of products and transportation of waste, it is argued that these activities should not be subject to any sort of regulation because it is the company’s property. It is submitted that this level of concealment is unnecessary. It is true that trade secrets with products or production processes are necessary for a healthy capitalism; however, a public interest defence is available.174 The public interest defence applies where the disclosure is justified in the public interest. Given the current public concern for the environment as well as the potentially detrimental effects, such knowledge may be in the public interest. At the very least, com- panies should deal with their waste efficiently and effectively in the waste hierarchy by describing the waste in general terms. It must be remembered that self-incrimination for companies has been legislatively excluded.175
Mandatory reporting and notification of contaminated land ought to be adopted. The proposed NES continues the system of land only being recognised as contaminated land by the HAIL investigation or the land coming to the attention of a regional authority through a RMA breach. This seems reactive. While it could be argued that contaminated land could be subject to a malicious identification, this could be avoided by not putting an identification on the Listed Land Use Register until there has been an RMA breach or being put on the HAIL. In most cases, an RMA breach will have occurred, it is just difficult to find out what it is. The Ministry for the Environment in 1995 noted international trends in Australia176 towards mandatory reporting.177 In 2006, it went further, noting that the location of historical sheep dip sites was being lost because of “a decreasing awareness of their exact location as the original landowners/ occupiers sell or retire”.178 Nor is it a requirement to notify contaminated land on the title. While normally Listed Land Use Registers will be transposed onto LIMs, there is no obligation to do so.179 Given that it is usually unclear whether land is contaminated or not, LIMs only report those parcels of land which are likely to have the presence of contaminants. The HAIL only involves
(1995) at 47.
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those potentially contaminated. Despite this, no one has supported “placing potentially contaminated sites on the title”.180
Section 17 of the RMA provides that any person is required to avoid, remedy or mitigate any adverse effects on the environment arising from an activity carried on by or on behalf of that person. This means that there “is no formal hierarchy of liability between the polluter, owner and occupier and any one, or all, are potentially liable”.181 Of course, environmental criminal liability can not be retrospective.182 However, historical contaminated land liability is reliant on imposing liability retrospectively to uses of land which at the time were likely to be lawful. In Voullaire v Jones, Jackson J clarified the matter by holding that no enforcement could be brought against the person alleged to have caused an adverse effect in relation to effects before the RMA came into force.183 This was conditioned by the fact that an enforcement order against the present owner or occupier of the site under s 314(1)(da) of the RMA would be effective because the contamination on the site is causing or is likely to cause adverse effects. The owner would then have an action in tort or contract against the polluter. In the United States following the Love Canal incident responsibility was placed upon the polluter.184 The United Kingdom and Australia also have a hierarchy.185
There is, therefore, no innocent owner or occupier defence to contaminated land liability. Lawful use is likewise not applicable. If a secured lender became an occupier as a mortgagee in possession, theoretically liability would follow although pragmatically no secured lender would dare contemplate such a task. Likewise, a bequest or gift of land could make the potential beneficiaries liable to pay for clean-up although beneficiaries could disclaim the gift or bequest which would make the estate or donor liable. For multiparty sites, s 17(2) of the Law Reform Act 1936 provides for just and equitable distribution of liability. The United Kingdom takes into account what the person ought to have known and what the person ought reasonably to have done to prevent the creation of contaminated land. Tort and contractual actions have a limitation period of six years under s 4 of the Limitations Act 1950. Many, if not all, historical contaminated land cases will fall out of this time limit. The United Kingdom,
183  NZEnvC 376; (1997) 4 ELRNZ 75.
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by contrast, has no time limit for enforcement orders but a six-year limit for criminal offences.186
8.4 Orphan Sites and Remediation
By not having an effective liability regime for contaminated land, Daya- Winterbottom has lamented that “it appears the Government may be ‘hoisted by its own petard’”.187 It has been forced to pay for contaminated land liability. In 1998 in Hamilton, for example, the Wete family’s backyard was contaminated with timber treatment chemicals.188 They were advised not to eat the fruit from their plum tree. At about the same time the Wetes were found to have high levels of arsenic and polychlorinated biphenyl in their blood, the timber treatment company absconded. The site became orphaned. When no location could be found for disposal of the soil, the Hamilton City Council and Environment Waikato had to purchase the properties. The Contaminated Land Management Fund is now available. It provides $1 million per year for New Zealand’s highest- risk contaminated sites and $1 million per year is available as a contestable fund for regional councils to investigate and clean up contaminated sites. The Fund is for known or potential risks to human health and environmentally sensitive areas. The Mapua and the Tui sites have been two big recipients. It is unclear how the proposed NES for soil will interact with orphan sites.
9. THE SOLUTION
Waste management in New Zealand must have concerted national-level legis- lation to unify the currently disparate law. Although improving, regional and territorial variation is rife. The most effective way to counter inconsistency would be through the implementation of the proposed NES for soil quality and national product stewardship schemes. The problem with using product stewardship schemes is that the focus is on recycling. While the objective is to be praised, recycling in New Zealand is substantially unregulated. For instance, in 2005 a sharp increase in glass imports led the country’s sole glass recycling company to drop the price of clear cullet from $92 per tonne to
$10.189 Moreover, the collection and transportation of waste is only subject to territorial licensing contracts and bylaws. As Carter Holt Harvey makes clear,
Performance Reviews: New Zealand (2007) at 56.
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central government cannot expect local government to achieve objectives as it lacks the power to be effective. Wagener laments that local authorities “may be hamstrung by lack of information that may adversely affect their ability to achieve the purpose of the [WMA]”.190 The same level of delegation is seen under contaminated land where innocent landowners face liability unless the Contaminated Land Management Fund is used for protection. The Ministry for the Environment keeps producing policy and guidance documents. New Zealand doesn’t even have a statutory definition of hazardous waste relying instead on a mixture of regulations.
Mention should be made of the international position. The United States has an Environmental Protection Agency which administers the Resource Conservation and Recovery Act 1976 (US) and the Comprehensive Environ- mental Response, Compensation and Liabilities Act 1980 (US). New South Wales has taken the lead in Australia with the Waste Minimisation and Manage- ment Act 1995 (NSW), the Waste Recycling and Processing Corporation Act 2001 (NSW) and the Contaminated Land Management Act 1997 (NSW). The United Kingdom, which had a similar disparity of waste management practices, introduced a duty of care. Section 33 of the Environmental Protection Act 1990 (UK) states that a person shall not “deposit controlled waste ... in or on land unless a waste management licence” authorisation has been granted.191 This is complemented by s 34 which requires all parties in waste management to take measures reasonable in the circumstances to (a) prevent other people contravening s 33; (b) prevent the escape of waste; (c) transfer waste only to correctly authorised persons such as a waste collection authority, waste management licence holders or registered waste carriers; and (d) ensure that an adequate written description of the waste is given to anyone to whom the waste is transferred.192 While “a national consistent approach to the problem of orphan site management is now clear” and has been continuously called for in New Zealand, such legislation is still left wanting.193
Gaps in New Zealand waste management law exist. The Waste Minimisation Act 2008’s premise of looking at the life cycle of a product was innovative. Unfortunately, the hands-off approach New Zealand takes to waste management has led to this being just another haphazard amendment to an already fragmented
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regime. While the economics favouring landfill fail to address an environmental conscience, an inflexible waste definition means that there is no recognition of waste as an amorphous concept. New Zealand’s many international law obligations combined with the Environment Act 1986, the Waste Minimisation Act 2008 and the Resource Management Act 1991’s division between district, regional and national rules seem unnecessarily complex. With the Health Act 1956, Litter Act 1979 and Hazardous Substances and New Organisms Act 1996 the law is left disorientated. In addition, domestic waste movement goes largely unregulated. The Waste Minimisation Act 2008 has, however, provided clarification of systems to fund waste minimisation and management practices through product stewardship and a national waste disposal levy. This money will avoid disposal facilities becoming another piece of contaminated land in the future. Even so, the position regarding contaminated land is unclear. Greater transparency and systemisation ought to exist in the notification process of contaminated land. It seems that New Zealand has been free-riding on the goodwill of corporate waste management practices, rather than tackling the problem head-on through a comprehensive strategy with effective legal controls to consider the true life cycle of waste. New Zealand has, thus, been lagging behind the rest of the world.