Hazardous substances have the potential to benefit New Zealand’s communities, the environment and the economy. They are found in our homes, at work, businesses, industry, horticulture and agriculture. However, hazardous substances can have adverse effects on the environment, including people and communities, if not managed appropriately.
This guidance note is intended to help RMA practitioners understand the role of the Resource Management Act 1991 (RMA) in relation to hazardous substances. To do so it is necessary to understand the roles of the Hazardous Substances and New Organisms Act 1996 (HSNO Act) and the Health and Safety at Work Act 2015 (HSW Act).
Historically, due to an explicit requirement in the RMA for councils to control the adverse effects of the storage, use, transportation and disposal of hazardous substances, RMA plans have contained controls on hazardous substances, including in relation to the nature of the hazardous substances themselves. For example, many RMA plans contained (and many still contain) a threshold approach (volume triggers) or the use of the Hazardous Facility Screening Procedure (HFSP), to determine whether resource consent is required for the use, storage, disposal or transportation of a particular hazardous substance. However, these approaches often duplicate the HSNO Act and/or the HSW Act controls. These approaches also generally fail to recognise that the storage, use and handling of hazardous substances is usually a subset of the risks and effects associated with an activity and the extent to which these are typically addressed by zoning provisions in the first instance.
The Resource Legislation Amendment Act 2017 (RLAA) removed the explicit function of regional and territorial authorities under section 30 and 31 to control the adverse effects of the storage, use, disposal and transportation of hazardous substances to ensure RMA controls do not duplicate controls in the HSNO Act and HSW Act. RLAA also introduced a procedural principle to ensure that council plans and policy statements include only matters relevant to the purpose of the RMA (ss18A). While councils do retain a broad power under the RMA to manage hazardous substances through their plans and policy statements to achieve the purpose of the RMA and to carry out the function of integrated management of natural and physical resources in their region/district, this should only be exercised where the potential environmental effects are not adequately addressed by other legislation.
In most cases, the HSNO Act and the HSW Act controls are adequate to avoid, remedy or mitigate adverse environmental effects of hazardous substances. However, in particular circumstances it may be appropriate that RMA controls are used, subject to robust s32 analysis to ensure that such controls are effective and efficient (refer to Areas where RMA controls may be necessary). The expectation is that controls on hazardous substances in RMA plans will be the exception rather than the norm.
The RLAA sent a clear message that councils should re-evaluate their current hazardous substances provisions to determine if they are necessary to deal with any potential environmental effects not covered by other legislation. Provisions that cannot be justified should be removed.
Despite controls under relevant legislation there will always remain a risk of loss of containment of hazardous substances. Legislation such as the HSNO Act and HSW Act is designed to address risk. Where hazardous substances are split into the environment councils can consider the appropriateness of enforcement action under the RMA. Section 17 of the RMA also states that every person carrying out an activity has a duty to avoid, remedy, or mitigate any adverse effects on the environment, whether or not an activity has resource consent or is permitted by a rule in a plan. This provision provides a ‘back stop’ where there are unanticipated effects arising from the use of hazardous substances. Even if permitted by a rule or a resource consent, actions can be taken against persons that use hazardous substances where this is resulting in adverse effects on the environment. Regional councils may also need to manage any residual contaminants within the environment in accordance with their functions of managing contaminated land and/or discharges, rather than to the management of hazardous substances per se.