COVID-19: Environmental compliance

Friday, March 27, 2020

How does lockdown impact your responsibilities as a resource consent holder?

Relevant industries: Construction, Quarrying, Industrial, and Farming

With Alert Level 4 restrictions now in place – and only 48 hours to prepare for lockdown – questions arise for those operations that are not deemed “essential” and have been required to shut up shop over the lockdown period. Many of these operators are bound by on-going requirements to comply with resource consent conditions, some of which cannot be met over the lockdown period. For example, what happens if sediment control measures fail when no-one is onsite, or a nor-wester blows a dust storm across a deserted quarry?

Resource consent conditions often include obligations that rely on active participation from the consent holder or their agents. For example:

  • Manual or hand flocculation of sediment ponds;
  • Manually activated pumping from a low area where rainwater ponds to a sediment pond;
  • Watering of open areas (quarries or construction sites), to limit dust discharges;
  • Monitoring (of groundwater, surface water, wastewater, air discharges etc.) that require onsite sampling, and lab testing; and
  • Regular stakeholder or community group meetings.

Under the current state of emergency, any operation that is not deemed an “essential service” must cease all works, and all staff must stay home. The resulting scenario is a site that is essentially locked out where time lapse coupled with climatic changes may result in the consent holder being unable to comply with the conditions of their resource consent. What happens in a situation of non-compliance is a question that is being grappled with world-wide, and we have no direct guidance from New Zealand Government yet.

How to stay ahead of the game

Firstly, where possible, identify any upcoming monitoring or reporting obligations. If due to lockdown you won’t be able to meet these, then we recommend that you let your territorial or regional authority know early, and enquire how you are best to proceed. In Canterbury both District and Regional Council staff are working remotely and are continuing to address and respond to email correspondence – we have experienced that they are replying promptly.

Where there is no adverse environmental issue arising as a result of the non-compliance, we anticipate a pragmatic response from Councils. This may be an agreement to suspend the monitoring/ reporting requirements until the Alert Level 4 restrictions are lifted or confirmation that no enforcement action will be taken in the event that there is failure to meet certain consent conditions. We have seen Environment Canterbury adopt this approach following the earthquakes, and we expect to see it again here.

Where non-compliances have potential to generate adverse environmental effects, such as contaminated run-off entering surface water or entering neighbouring properties or dust being discharging beyond a property boundary, we recommend that you flag these possibilities early with Council who may be able to put a contingency plan in place under the emergency provisions in the RMA.

With no clear guidance on how Councils are expected to deal with non-compliance our advice is to use your best endeavours to identify risks and keep the line of communication open with Council – a proactive approach is your best protection should anything go wrong in your absence from site.

In the haste of preparing a worksite for lockdown, time may not have permitted operators to take all appropriate health and safety precautions such as securing heavy loads, erecting signage or ensuring correct storage measures were in place. In addition to Councils there may be other agencies that you need to notify of other hazards on site. This is particularly important in the current state of emergency where the Government has extensive powers including those to remove or secure dangerous structures or materials and requisition equipment and materials to aid assistance – so individuals may be entering your site for these purposes over the lockdown period.

And if the worst happens?

In the case of a major breach, the general rule of thumb is to immediately take what steps you can to mitigate the harm done. In the current lockdown period, your first port-of-call must be to the Council as they are the only one capable of physically taking steps to remedy any damage. You should also notify your insurer as soon as possible.

These are unprecedented times and we expect that regulators will show lenience, however consent holders should not rely on this as a failsafe. Instead, consent holders should take what steps they can to exhibit compliance with their consent conditions and keep an open line of communication with the relevant authority.

If you have any questions or concerns around your consent compliance over the lockdown period and beyond, please contact Katherine Forward or Jamie Robinson to discuss.

 

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.​