This part of the guide relates to Regulations 11 and 12 of the NES. These regulations require councils to place an emergency notification condition on relevant consent holders. Specifically, they require the consent authority to assess whether an activity could pose a risk to the drinking water supply in the case of an unintended event (eg, a spill or other accident). If the consent authority considers that such a risk exists, a condition must be placed on the consents that requires the consent holder to notify the drinking water supplier if such an event occurs.
6.1 Introduction
In terms of the emergency notification provisions of the NES, it is important to note that the following points differ from the other regulations.
- Regulation 11 states that Regulation 12 applies to activities with the potential to affect registered drinking water supplies that supply 25 or more people with drinking water for 60 or more days of a calendar year.15
- Regulation 12 relates to activities regulated by both district and regional councils.
Applications for water and discharge consents that are already required to be considered under the other regulations of the NES may also require an emergency notification condition. As a result, the emergency notification provisions of the NES relate to all types of consents, but they are not intended to deal with the normal day-to-day effects of these consents; only unintended events such as spills are addressed.
Regulation 12 in the NES covers circumstances where effects are not anticipated; for example, something that is not part of normal day-to-day running of a facility and that could lead to a significant adverse affect on water quality at the abstraction point for a drinking water supply.
This part of the NES requires the consent authority to consider the consequence for drinking water if an accident occurred on a site. Therefore any structural or procedural aspects of the activity that could result in contaminants entering the drinking water source need to be considered.
The potential for human error, equipment failure or extreme weather events needs to be considered, along with the risk management procedures of the site, when deciding if the condition is necessary.
Example: spill from an effluent pond
An effluent pond on a farm breaches its banks and effluent spills into the adjacent river. The farm is upstream of a drinking water treatment plant, which abstracts water from
the river.
Before the NES, the farmer may not have been aware that a spill from the pond could adversely affect the quality of drinking water delivered by the treatment plant downstream from the farm. They would also probably be unaware that they should contact the water treatment plant operator if a spill occurred; at least, such a requirement was not in force.
As the water treatment plant would not have been alerted by the farmer, increased determinand levels in the water would only be discovered when it was tested (or if another party, such as the council, was informed of the discharge). Water samples are usually sent to a laboratory for analysis, so there can be a significant time lag between taking a sample and receiving the results. By the time the results had been received, the contaminated water would have passed through the system and on to consumers.
Had the treatment plant been made aware of the spill in the first place, treatment could either have been increased or the water intake from the river stopped until the contamination had cleared.
6.2 Regulation 12(1)
[12] Condition on resource consent if activity may significantly adversely affect registered drinking-water supply
(1) When considering a resource consent application, a consent authority must consider whether the activity to which the application relates may –
(a) itself lead to an event occurring (for example, the spillage of chemicals) that may have a significant adverse effect on the quality of the water at any abstraction point; or
(b) as a consequence of an event (for example, an unusually heavy rainfall) have a significant adverse effect on the quality of the water at any abstraction point.
Regulation 12(1) describes circumstances in which a condition must be attached to a resource consent to satisfy the requirements of the NES. Specifically, it specifies two aspects a consent authority must consider when deciding whether a consent condition is required.
The first aspect, Regulation 12(1)(a), relates to the nature of the activity itself. The regulation requires that the consent authority consider whether an event that could have a significant adverse effect on source water quality at any abstraction point could occur during the normal operations at a site. The second aspect, Regulation 12(1)(b), is more indirect. The regulation states that the consent authority must consider whether an activity could affect drinking water as a consequence of an event (such as heavy rainfall).
6.3 Is an emergency notification condition required?
Figure 8 suggests a series of issues to consider when deciding whether an emergency notification is required for a specific resource consent.
Figure 8: Suggested issues to consider when deciding whether an emergency notification condition needs to be placed on a resource consent
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This is a summary of activities or events to consider when deciding whether an emergency notification is required for a specific resource consent. These points are described in greater detail in the text of this chapter following Figure 8 (pages 47 to 52).
6.3.1 Issue 1: Consider the nature of the activity
When deciding whether a condition needs to be added, the council officer needs first to consider the type of activity for which consent is being sought: could anything associated with that activity pose a significant risk to drinking water quality, in terms of the effects at an abstraction point?
The regulation itself gives an example – the spillage of chemicals. The vast range of circumstances in which such a condition could apply are deliberately not specified in the regulation. Instead, it is left to the council’s discretion to consider the nature of the activity occurring at the premises. The question is whether that activity has any components, processes or parts that may lead to an event that would have a significant adverse effect on water quality at the abstraction point.
Several factors could be considered. For example, are there any hazardous substances used, stored or produced as waste products at the facility or premises? Could pathogenic micro-organisms be present? (This is particularly likely if an activity involves substantial quantities of human or animal waste. Examples could include septic tanks, pipes conveying sewage, or a dairy farm effluent pond.)
6.3.2 Issue 2: Are there any pathways to the water source?
The next thing to consider is whether there are any pathways by which any pathogenic or hazardous material mentioned can enter a waterway. When deciding whether to attach this condition, the distance of the activity from the drinking water source is very important. The closer the facility is to an abstraction point, the higher the risk of there being a pathway and the greater the likely need for the condition.
Consider also any preferential pathways by which the pathogenic or toxic material may enter a drinking water source. For example, the activity may be situated above an aquifer which is known or suspected to be fractured or porous, in which case the risk of contamination is higher than for an activity above a confining layer of an aquifer. Another preferential flow path to consider is stormwater drains: these often lead to waterways, which in turn may channel stormwater to a drinking water source. Both artificial and natural waterways should be considered with regard to this regulation.
6.3.3 Issue 3: Would an unintended event have a significant effect on a drinking water source?
The subclause contains the phrase “significant adverse effect”, which has deliberately not been defined in the regulation. The term ‘significant’ is used frequently throughout the RMA and is a concept with which most practitioners will be familiar. They are therefore expected to apply their knowledge, including consideration of relevant case law, when using this regulation, as for all other RMA consents and permits that include consideration of relevant case law.
For example, if the amounts of a hazardous material or a pathogenic material used or held at a facility are extremely small and site management procedures are good, then a significant risk to the drinking water supply source is unlikely. By contrast, it may be that there are large quantities of a material present, a material is particularly toxic, or organisms (eg, protozoa) are likely to be present. If the nearby treatment plant is known to lack the capacity to adequately remove that contaminant, these circumstances could constitute a significant adverse effect.
6.3.4 Issue 4: What is the potential for an unintended discharge?
Also consider any structural or procedural aspects of the activity that could result in contaminants entering the drinking water source. For example, if there is a containment bund around an area used to store pathogenic or hazardous material, then consider the likelihood of such a bund being breached. A recycling facility at which some hazardous material is stored would most likely store that material in a contained and bunded area. If such structures are in place, consider their adequacy. For example, could:
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a forklift drive through a containment bund
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a drum be spilt over a shallow-lipped bund
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the containment wall of an effluent pond be breached
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a heavy rainfall event cause a bund or effluent pond to overflow?
The potential for human error, equipment failure or natural events such as heavy rainfall need to be considered, along with the risk management procedures and structures of the site, when deciding if the condition is necessary.
Examples of aspects that could lead to unintended discharges
Facilities with treatment ponds or bund. Are the bunds and pond designed with enough capacity so they will not overflow during extremely heavy rainfall?
Facilities located on flood plains. What is the likelihood of the facility being breached so that hazardous chemicals, pathogens, sediment or dissolved organic matter may leak during a flood or heavy rainfall event?
Activities that generate or store sediment. What is the likelihood of sediment flowing off the site into a drinking water source if there is heavy rainfall?16
It is also important to consider whether facilities and activities have significant risk management controls and therefore do not require a condition under subclause 1(a), but do require one under 1(b). For example, a factory may have bunded all its chemicals and have good risk management procedures. However, these precautions may still be inadequate to prevent leaching of chemicals during a flood or very heavy rainfall event. If this is the case, then the condition would need to be added.
Figure 8 summarises the sections above and the issues to be considered when deciding whether an emergency notification condition should be placed on a consent.
6.4 Regulation 12(2)
(2) If the consent authority considers that the circumstances in subclause (1) apply, and it grants the application, it must impose a condition on the consent.
Regulation 12(2) states that if the consent authority considers that the circumstances in 12(1) apply and the application is granted, then a condition must be imposed on that consent. Therefore, the condition must be placed on a consent if the activity is likely to have an effect as a result of the nature of the activity 12(1)(a), or if an effect is likely only if an extreme event occurs 12(1)(b).
6.5 Regulation 12(3)
(3) The condition must require the consent holder to notify, as soon as reasonably practicable, the registered drinking-water supply operators concerned and the consent authority, if an event of the type described in subclause (1) occurs that may have a significant adverse effect on the quality of the water at the abstraction point.
Subclause 3 outlines the nature of the condition that must be attached to any consent granted. The consent holder must be required to notify drinking water supply operators concerned and the consent authority as soon as practicable if an event occurs (as described in subclause 1) that may have a significant adverse effect on water quality at the abstraction point.
Let’s say a bund wall could be breached by an accidental collapse or a drum tipping over, and there is a likelihood the spillage could reach a waterway. If this is anticipated, a condition should be added to the consent requiring notification if such an event occurs. The consent holder for that activity must notify the drinking water supply operator downstream and the consent authority as soon as possible. In this instance, the consent authority is the council that granted the consent for the activity.
The intention of this part of the regulation is to enable drinking water treatment operators to take appropriate action as soon as they are made aware of an event upstream which could pose a risk to their drinking water supply. They may then, for example, be able to switch to another intake point, or shut off their intake until the flush of material has passed, or increase disinfection.
It may not be possible for the water to be treated, or for the water supply to be shut off in time. In this case, giving effect to this condition enables the treatment operator to notify the consumers as soon as possible. The drinking water assessor for the area could issue a notice to the public advising that water should be boiled to avoid health risk. In extreme circumstances (such as a spill of a toxic chemical which cannot be removed by boiling), a public health warning may be issued. In such extreme cases, alternative water supplies may need to be provided until the danger has passed.
The council could include contact details of the drinking water treatment plant that may be affected, either in the condition or as an advice note to the condition. This makes it very clear to the consent holder who they are required to contact. Most large suppliers are operated by territorial authorities, and so obtaining contact details for larger suppliers will be relatively simple for the consent authority. These contact details are best placed on the consent itself.
For smaller suppliers, the territorial authority may not be the treatment plant operator. For example, a camping ground or marae may be privately owned and operated. However, it should still not be too difficult to locate contact details for these individual plants; for example, the database distributed by the Ministry for the Environment includes owners’ names. It is not possible for the Ministry database to include contact details for treatment plant operators because these can change frequently with staff turnover. However, a treatment plant operator is usually quite easily identified, either by looking in the local phone book or by contacting the local district council or public health unit.
If there is any difficulty identifying or contacting the treatment plant operator when such a condition is being placed on a consent, the consent officers should talk to the drinking water assessor.
Placing a condition on a consent will not have a big effect on the consent holder. No expenditure on new equipment or labour is required. It should take little time and effort for the consent holder to notify the drinking water treatment facility and consent authority of any event that could compromise water quality at the abstraction point. Also, the consent holder will only have to act on the condition if an unintended event occurs.
6.6 Example condition
Consent conditions should be appropriate to the nature of the activity and sufficiently specific for the consent holder to know what is required. Following is an example of a condition that could be placed on a consent.
Example: consent condition
(a) If an event occurs on-site that may lead to solvents draining to the Waikino stream, the consent holder must notify the <insert treatment plant name> and <insert council name> as soon as reasonably practicable after the spill occurs.
Note: The <insert treatment plant name> Plant can be contacted on <insert phone number>. If this is not successful, the consent holder should contact the public health unit for the area on <insert phone number>.
<insert council name>17 should also be contacted via their 24-hour help line on <insert phone number>.
The above condition is an example of how the emergency notification condition could be written. The condition states who has to be notified and the contact number. Such conditions placed on consents should include details of how to notify the parties involved to allow quick action in an urgent situation such as after a spill.
The example above would need to be adjusted depending on the likely event on-site and the nature of the drinking water source located within the vicinity. Each council could also keep a list of the relevant names and contact details (if possible) so processing officers do not have to seek these out themselves whenever they impose the condition. Drinking water assessors and public health units should be contacted to help provide contact information.
15 This is a much lower population threshold than applies to parts of the regulation relating to resource consent and permitted activity rules in regional plans. The other regulations refer to supplies that cater to 501 or more people for 60 or more days of a calendar year.
16 This is important to consider because sediment reduces the efficiency of many drinking water treatment processes.
17 Note that in this case the district council is listed as the consent authority (which Regulation 12[3] requires be notified), not as the drinking water supplier. In some cases the drinking water supplier and local authority may be one and the same.
See more on...
6. National Environmental Standard Emergency Notification Conditions
May 2009
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