IN THE MATTER of the Resource Management Act 1991 AND

IN THE MATTER of applications by Norske Skog Tasman Ltd, Carter Holt Harvey Pulp & Paper Ltd, and Water and Waste Services, for resource consents in relation to the Tasman Mill(s) at Kawerau.

Decisions of Hearings Commissioners appointed by the Bay of Plenty Regional Council and Whakatane District Council pursuant to section 34A of the Resource Management Act 1991

Commissioners: David Hill (Chairman) Alan Bickers Councillor Robin Ford Councillor Russell Orr

COMMISSIONERS : David Hill (Chairman) Alan Bickers Councillor Robin Ford BOPRC Councillor Russell Orr WDC

BOPRC OFFICERS: Aileen Lawrie Rob Donald Yves Denicourt Miriam Robertson Stephen Park Shane Iremonger Dr Bruce Graham Gavin Kemble Jon Williamson

WDC OFFICERS: Ann Nicholas Claire Battersby

COMMITTEE Martin Cole SECRETARY

APPLICANT : Norske Skog Tasman Ltd, Carter Holt Harvey Pulp & Paper Ltd, and Water and Waste Services

APPEARANCES: For the Applicant: Paul Majurey Brice Landman Peter Chrisp Mayor Malcolm Campbell John Mahanga Jim Newfield Henare Kapa Tony Johnson Neale Hudson Dr Christopher Hickey Dr Richard Allibone Dr Ian Boothroyd Tracey Freeman Alan Pattle Daryl Irvine Nevil Hegley Frank Boffa Dr Philip Mitchell

SUBMITTERS: Harry Lagocki Barry Marshall Alan Fleming NZ Forest and Bird Society Gordon Jackman Green Party of Aotearoa NZ Chris Staite Department of Conservation Dave Cronshaw SCA Hygiene Australasia Catherine Delahunty MP Green Party of Aotearoa NZ

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Gina Rintoul Tabled Beverley Hughes Te Runanga o Ngati Awa Colleen Skerrett-White Anthony Olsen Ngati Tuwharetoa (BoP) Jonathon Te Rire Tiipene Marr Nga Uri o Ngati Rangitihi Lindsay Marr David Potter (Sec) Te Rangatiratanga o Ngati Rangitihi Inc C Maanu Paul Te Rangatiratanga o Ngati Rangitihi Inc Ian Burt Christine Borlase Short Term Landfill submission Group Tairua Whakaruru Tomairangi Fox Kawerau A8D Block Malibu Hamilton Te Ngaru Roa aa Maui Barry Hall Hogg Rd Residents Bruce Laing SH30 / Mangaone Rd / Hogg Rd Residents Group Reuben Hansen SH30 / Mangaone Rd / Hogg Rd Residents Group

Introduction

[1] Bay of Plenty Regional Council (“ BOPRC ”) and Whakatane District Council (“ WDC ”) jointly appointed David Hill (Chair) and Alan Bickers to hear and decide the applications alongside Councillor Robin Ford for the BOPRC applications (only) and Councillor Russell Orr for the WDC application (only). [2] To avoid unnecessary artificiality (in that the landfill component of the application requires both regional and territorial authority resource consents which relate directly to the other consents sought) we have issued a common decision text (i.e. this Decision) with separately identified decisions respectively for the BOPRC and WDC applications (refer Schedules 1 and 2). [3] For the record we also note that although this decision is released after the Resource Management (Simplifying and Streamlining) Amendment Act 2009 commenced, as per section 160(3) of that Act, this application has been determined as if the amendments made by that Act had not been made. [4] The joint hearing of the applications was held in Whakatane at the offices of BOPRC on 10 days between the 3 rd and 14 th August 2009. Site visits by the commissioners were undertaken by land on the 2 nd August 2009 and by helicopter on the 11 th August 2009. [5] On the 14 th August the hearing was adjourned to the 25 th August 2009 for the purpose of recalling an applicant witness, Mr Johnson, and receiving statements on matters raised by commissioners, councils’ responses, and the applicant’s reply. The hearing was then further adjourned to the 3 rd September 2009 for the purpose of the commissioners’ deliberating as to whether any further evidence was required. [6] Commissioners met in Tauranga on the 3rd September 2009 and determined to close the hearing.

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[7] Commissioners make the following decisions. Decision 1 [8] Acting under delegated authority pursuant to section 34A and section 37(1)(b) of the Resource Management Act 1991, the late submission of Te Runanga o Ngati Awa is accepted because the extension of the submission period does not adversely affect any person, nor cause any unreasonable delay, and the applicant agreed. Decision 2 [9] Acting under delegated authority pursuant to section 34A and sections 104, 104B, 104D, 105(1), 107(2) and 108 of the Resource Management Act 1991, the applications made to the Bay of Plenty Regional Council for water and discharge permits are granted , subject to conditions. Decision 3 [10] Acting under delegated authority pursuant to section 34A and sections 104, 104B and 108 of the Resource Management Act 1991, the application made to the Whakatane District Council for land use consent is granted , subject to conditions. The Application [11] In 2000 the previous owner of the Tasman Pulp & Paper Mill, Fletcher Challenge Ltd, sold the mill to the Norwegian company, Norske Skogindustrier, who subsequently on-sold the Kraft pulp mill to Carter Holt Harvey in 2001 while retaining ownership of the newsprint mill. [12] Norske Skog Tasman Ltd (“ NST ”) and Carter Holt Harvey Pulp & Paper Ltd (“ CHH ”) formed Water and Waste Services to jointly manage water supply, wastewater treatment and solid waste disposal on the site. [13] The applications are made in the names of NST, CHH, and Water and Waste Services (an unincorporated joint venture of the two principal applicants). [14] The applications were jointly lodged with both councils on the 27 th April 2009 and publicly notified on the 30 th April 2009. Submissions closed on the 29 th May 2009 – at which time 36 submissions had been received. [15] A late submission, being the Cultural Impact Report from Te Runanga o Ngati Awa, was received on the 7 th July 2009. Neither the applicant, council, nor any other party objected at the Hearing to our accepting that late submission and, as noted in paragraph [8] above, we determined to accept it accordingly. [16] Section 42A RMA hearing reports (“ the Hearing Reports ”) were separately produced by BOPRC and by WDC. [17] The activities for which consents are sought are well described in the AEE, Hearing Reports and in evidence and, for convenience, are not detailed further in this decision. [18] Five BOPRC reports were produced, one each for the following consent applications: (a) Water take (consent number 65720); (b) Wastewater discharge (consent number 65722); (c) Stormwater discharge (consent number 65722); (d) Discharge to air (consent numbers 65721 and 65725); and

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(e) Discharge to land (consent number 65724). [19] The WDC Hearing Report was produced for the purpose of the North Valley Landfill operation application (consent number 24.2.09.39). [20] The applicant(s) for the respective consents are as follows: (a) Norske Skog Tasman Ltd & Carter Holt Harvey Pulp and Paper Ltd operating as Water and Waste Services, for consent numbers 65720, 65721 and 65722; and (b) Carter Holt Harvey Pulp and Paper Ltd for consent numbers 65724, 65725 and 24.2.09.39. [21] In terms of our decision we have referred to them collectively as “ the applicant ” as a convenience, and not sought to distinguish the parties. We have so distinguished them in the consents granted. [22] The consent duration sought is 35 years for all regional council consents – unlimited for the territorial land use consent – with a 10 year lapse period for the landfill construction and operation consents (consent numbers 65724 and 24.2.09.39). [23] The actual consents sought for the identified activities are as follows: (a) Consent Number 65720 – To take and use up to 170,000 m 3 water per day from the Tarawera River at a maximum rate of taking of 2,600 l/s (30-day moving average not to exceed 155,000m 3), discharge screening system wastewater and operate water intake structures. This discretionary activity consent is required under the following provisions of the RMA, the Regional Water and Land Plan (“ the RWLP ”); and the Regional Plan for the Tarawera River Catchment (“ the RPTRC ”): (i) Under section 13(1)(a) of the RMA, Rule 12.2.5(c) and 12.2.5(d) of the RPTRC, and Rule 71 of the RWLP to place, use, maintain and remove structures in, on, under or over the bed of the Tarawera River; and

(ii) Under section 13(1)(b) of the RMA, Rule 12.2.5(e) of the RPTRC, and Rule 71 of the RWLP to disturb the bed of the Tarawera River to maintain and remove intake structures; and

(iii) Under section 14(1)(a) of the RMA, Rule 14.4.5(e), 14.4.5(f), and 14.4.5(g) of the RPTRC, and Rule 43 of the RWLP to take and use water from the Tarawera River; and

(iv) Under section 15(1)(a) of the RMA, Rule 15.8.4(g), 15.8.4(m), and 15.8.4(n) of the RPTRC, and Rule 37 of the RWLP to discharge water containing sediment, weed and debris to the Tarawera River.

The land to which this consent applies is legally described as: • Lot 2 DPS 87801, Lots 1 & 2 DPS 90818, Lot 1 DPS 87786, Lot 1 DPS 84774, Lots 1 & 2 DPS 4706, Lots 3 & 4 DPS 12743, Pt Allot 332 Matata Parish, Allot 838 Matata Parish, Lot 2 DPS 16131, Lots 2, 4 & 5 DPS 27505 and Lots 1 & 2 DPS 85394 (Kawerau District).

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(b) Consent Number 65721 - To discharge contaminants to air arising from the Tasman Mill wastewater treatment system and solid waste disposal areas. This discretionary activity consent is required under s.15(1)(c) RMA and Rule 19 (z) of the RAP to discharge contaminants to air from any activity that cannot comply with the conditions set out in Permitted Activity Rules 1-17 and which is not a controlled activity or a prohibited activity. The land to which this consent applies is legally described as: • Lot 3 DPS 44413, Pt Allot 332, Matata Parish, Lot 2 DPS 16131, Lots 4 & 5 DP 27505, Allot 838, Matata Parish, Blocks V and IX, Rangitaiki Upper SD (Kawerau District) and Lot 4 DPS 2476. (c) Consent Number 65722 – (i) To take up to 20,000m 3 of water per day (with a maximum rate of taking not to exceed 250 l/s) for foam control purposes, and discharge industrial stormwater to ground and to the Tarawera River, and to operate stormwater discharge structures. This discretionary activity consent is required under the following provisions: (a) Under section 13(1)(a) of the RMA and Rule 12.2.5(c) and 12.2.5(d) of the RPTRP, and Rule 71 of the RWLP to Place, Use, Maintain and Remove Structures in, on, under or over the Bed of the Tarawera River; and

(b) Under section 13(1)(b) of the RMA and Rule 12.2.5(e) of the RPTRC, and Rule 71 of the RWLP to Disturb the Bed of the Tarawera River to Maintain and Remove Intake and Discharge Structures; and

(c) Under section 14(1)(a) of the RMA and Rule 14.4.5(e), 14.4.5(f), and 14.4.5(g) of the RPTRC, and Rule 43 of the RWLP to Take and Use Water from the Tarawera River; and

(d) Under section 15(1)(a) of the RMA and Rule 15.8.4(g), 15.8.4(m), and 15.8.4(p) of the RPTRC, and Rule 37 of the RWLP to discharge stormwater to the Tarawera River; and

(e) Under section 15(1)(b) of the RMA and Rule 15.8.4(p) of the RPTRC, and Rule 37 of the RWLP to discharge stormwater to land where it may enter water; and

(f) Under section 15(1)(d) of the RMA and Rule 15.8.4(p) of the RPTRC, and Rule 37 of the RWLP to discharge stormwater to land from an industrial premises.

(ii) To discharge process wastewater (via three structures) and stormwater at a rate of up to 220,000 m3 per day (generally at a rate not to exceed 2,700 l/s) from the Tasman Mill site to the

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Tarawera River at or about map reference NZMS 260 V15 3660 4397; This non-complying activity consent is required under Rule 15.8.4(l) of the RPTRC as the discharge cannot meet the minimum colour requirement for the relevant water class (being ‘Fish Purposes Lower Tarawera Class’ (‘ FPLT ’) and. in particular, Rule 15.8.4(h)(ii)(c);

(iii) To place, use, maintain and remove three wastewater discharge structures in, on or over the bed of the Tarawera River between map references NZMS260 V15 3567 4044 and V15 3706 4447. This discretionary activity consent is required under Rule 12.2.5(d) of the RPTRC.

The land to which this consent applies is legally described as: • Lot 2 DPS 87801, Lots 1 & 2 DPS 90818, Lot 1 DPS 87786, Lot 1 DPS 84774, Lots 1 & 2 DPS 4706, Lots 3 & 4 DPS 12743, Pt Allot 332 Matata Parish, Allot 838 Matata Parish, Lot 2 DPS 16131, Lots 2, 4 & 5 DPS 27505 and Lots 1 & 2 DPS 85394 and Lot 4 DPS 2476 (Kawerau District). (d) Consent Number 65724 – To discharge industrial solid waste to land. This discretionary activity consent is required under the following provisions: (i) Under section 9(3)(a) of the RMA and Rule 1C of the RWLP to carry out earthworks to re-contour an existing valley bed to construct an Industrial Waste Landfill; and (ii) Under section 14(1)(a) of the RMA and Rule 48 of the RWLP to dam, collect or divert stormwater from an industrial landfill; and (iii) Under section 15(1)(b) of the RMA and Rule 37 of the RWLP to discharge landfill leachate onto or into land where it may enter groundwater or surface water; and (iv) Under section 15(1)(a) of the RMA and Rule 37 of the RWLP to discharge contaminants or water into water; and (v) Under 15(1)(c) of the RMA and Rule 19(w)(i) of the RAP to discharge odours, particulate matter and natural landfill biodegradation gases to air; and (vi) Under section 15(1)(b) and (d) of the RMA and Rule 16.8.5(a) of the RPTRC to discharge industrial solid waste to land in circumstances which may result in contaminants (or any other contaminant emanating as a result of natural processes from the industrial waste) entering water. The land to which this consent applies is legally described as: • Davies-Onepu Block: Pt Allot 330, Matata Parish, Blk XII Rotoma SD (Whakatane District); • Booker Block: Pt Allot 331, Matata Parish, Blk XII Rotoma SD, Blk IX Rangitaiki Upper SD (Whakatane District).

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(e) Consent Number 65725 - To discharge contaminants to air arising from the production of wood pulp (including bleached and unbleached kraft pulp) and the operation of ancillary facilities including combustion. This discretionary activity consent is required under s.15(1)(c) RMA and Rules 19(d) and 19(q) of the RAP to discharge contaminants to air. The land to which this consent applies is legally described as: • Lot 1 DPS 90818, Block IX Rangitaiki Upper SD (Kawerau District). (f) The activity also requires a discretionary activity land use consent from the WDC in accordance with Rule 4.8.1.27 of the Proposed Whakatane District Plan, relating to the construction and operation of an industrial solid waste landfill. The proposed landfill has three elements: primary solids (unlined); secondary solids (contained but unlined); dregs (lined). The North Valley Landfill site is legally described as: • Pt Allot 330, 331 and 332 Matata Parish, Allot 838 Matata Parish, Lot 2 DPS 16131, Lots 4 & 5 DPS 27505, and Lots 2 & 3 DPS 4413, located at 3155 State Highway 30, Onepu. [24] The consents applied for will replaced the following existing regional council consents, all of which are due to expire in 2012: (a) Consent Number 24221 – to discharge stormwater; (b) Consent Number 24224 – to discharge treated wastewater; (c) Consent Number 24226 – to take water from the Tarawera River; (d) Consent Number 51056 – water take and outfall structures; (e) Consent Number 61435 – to discharge to air from the CHH Kraft Mill; and (f) Consent Number 61436 – to discharge to air from treatment ponds and landfill. [25] The land use application for the North Valley Landfill is for a new activity on the subject land – the existing Davies landfill (which also takes waste from the Whakatane Board Mill) is on land owned by CHH. The land is zoned Rural 2 in the WDC proposed District Plan – on which all relevant appeals have been disposed 1. [26] CHH has made application for a short-term landfill in the Booker block in the event that one is needed to bridge the gaining of consent for the present application. During the Hearing CHH made it clear that it would only proceed with the former application if the present one failed (in total or in time). [27] The “original” Tasman Mill was established on the Kawerau site in 1954, undergoing significant expansion in the early 1970s, and has a history of periodic plant upgrades and replacements ever since in response to technology changes, increasing demands for tighter emission controls, and the need to replace aging plant items.

1 Nicholas, addendum to Hearing Report, paragraph 3.2 Page 8 of 40

[28] The Tasman Pulp & Paper Company Limited (as it then was) last sought consent for the various water and discharge permits (wastewater discharge, take and use, stormwater discharge) in December 1994 in line with the requirements of the Tasman Pulp & Paper Company Enabling Amendment Act 1986 (see paragraph [49] following below). Those consents were finally issued in June 2003, with an expiry date of the 31 st of December 2012. [29] The discharges to air from the mill site were initially covered under the general ‘nuisance’ provisions of the Health Act, 1956, and then more specifically as a registered ‘chemical works’ under Part V of that Act. In the 1970s it came under the licensing regime of the Clean Air Act 1972, which was driven by the principle of applying the ‘best practicable means’ for pollution control. The Clean Air Act was repealed with the introduction of the Resource Management Act 1991. [30] The first resource consent for discharges to air from the pulp and paper mill was issued by the Bay of Plenty Regional Council in 1994. That consent carried a term of 7 years, with an application for renewal being lodged in 2001. The current air discharge consent was granted in 2002 and expires on the 31 st July 2012, with most of the requirements for emissions monitoring, ambient monitoring, and periodic technology reviews being effectively rolled- over from the previous consent. Activity Status [31] It was common ground between the applicant and the reporting planner that part of the application(s) was to be bundled and decided overall as a non complying activity. This included the wastewater discharge, the take and use of water for foam control, and the operation of the outfall structures 2. [32] There was no dispute that those various consents sought are sufficiently related. [33] The remaining consents were agreed to be discretionary activities. [34] The apportionment of activity status was not contested by any party. Section 104D Gateway Test [35] Section 104D(1) of the RMA presents a bar to consideration of an application if it fails to satisfy one of two “tests”. It states: … a consent authority may grant a resource consent for a non- complying activity only if it is satisfied that either— (a) the adverse effects of the activity on the environment (other than any effect to which section 104(3)(b) applies) will be minor; or (b) the application is for an activity that will not be contrary to the objectives and policies of— (i) the relevant plan… [36] In our view there is a clear doubt, as we discuss later in this decision, as to whether the application can satisfy the test in section 104D(1)(a) because it must rely upon the exceptional circumstance s provision of section 107(2)(a) to pass that other gateway test. [37] In order to fall safely for consideration then it must satisfy the “not contrary to” test of section 104D(1)(b) for those matters that are non complying. In that

2 Mitchell, evidence-in-chief, paragraph 2.5 Page 9 of 40

respect we note that both the applicant and the reporting officers conclude that the application meets that test. [38] Without rehearsing those arguments in full, we simply note that the key relevant plan is the 2004 Bay of Plenty Regional Plan for the Tarawera River Catchment (the RPTRC) which fully anticipates the activities for which consent is sought – albeit with tighter controls in some areas than those sought. However the gateway test is not a merits test in the sense of requiring a full section 104 consideration to determine whether it passes – that is a subsequent step, and there is no presumption that having passed the 104D test, an application will necessarily be granted. [39] We also note that Appendix 1 of the more recent 2008 Bay of Plenty Regional Water and Land Plan (the RWLP) defers to the RPTRC for the purpose of regulatory controls over that catchment. [40] We therefore find that the application satisfies section 104D(1)(b) and is able to proceed. Statutory matters taken into account [41] Pursuant to Section 113 of the Resource Management Act 1991 the following matters have been taken into account in making the decision set out above: Relevant Statutory Provisions (a) The following statutory provisions of the Resource Management Act 1991 have been taken into account in the assessment of this application: (i) Part 2; and (ii) Sections 104, 104B, 104D, 105, 107 and 108. Relevant Plan Provisions (b) The relevant planning documents considered were: (i) Bay of Plenty Regional Policy Statement (1999); (ii) Bay of Plenty Regional Air Plan (2003); (iii) Bay of Plenty Regional Plan for the Tarawera River Catchment (2004); (iv) Bay of Plenty Regional Water and Land Plan (2008); (v) Whakatane Transitional District Plan (1990); and (vi) Proposed Whakatane District Plan (amended by Decisions) (2009). Relevant National Regulations (c) The only relevant national regulation considered was: (i) Resource Management (National Environmental Standards Relating to Certain Air Pollutants, Dioxins, and Other Toxics) Regulations 2004. Summary of evidence and other information [42] The following information was considered: (a) The Applicant’s AEE, section 92 information, updates and supplementary reports and evidence;

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(b) Council’s peer review reports, s42A Hearing Report and staff responses to questions; (c) General submissions; and (d) Statement and response of submitters who appeared. [43] Reports and drawings etc included with the application were detailed in the AEE, respective s42A Hearing Reports, and in the evidence of witnesses, and are not repeated here. Those reports, drawings, etc that are relevant to the conditions imposed are recited in the respective consents granted. Matters not in contention [44] We note that a considerable number of matters associated with the application(s) were not in contention between councils and the applicant – and were well covered in the Hearing Reports and applicant’s evidence - and no expert evidence was adduced by submitters to challenge that status. These matters include the following (which we accept and do not therefore further discuss): (a) The minor adverse effect 3 caused by stormwater structures and discharges from the 3 stormwater ponds; (b) The minor adverse effect 4 caused by water take, use and discharge and associated structures in the 6.8 km stretch between the intake weir and the discharge (outfall) diffusers; (c) The extent of the mixing zone – from the upstream diffuser to 400 m downstream of the “last” diffuser; and (d) The minor adverse effect of air emissions, with the exception of Total Reduced Sulphur compounds (“ TRS ”) discharged from the Mill. Principal Issues in Contention [45] We note that the key issues for consideration were well articulated in the Hearing Reports, accepted by the applicant, and not generally contested by submitters who appeared. [46] We accept those matters and do not repeat them here except to the extent that they remained in contention. [47] We consider the following to be the principal issues in contention (whether identified by the applicant, submitters, officers or the hearing panel): (a) Whether the Tasman Pulp and Paper Company Enabling Act 1954 and its 1986 Amendment Act permitted the level of discharge claimed; (b) Whether the existing environment includes the consented discharges that are due to expire and are the subject of these applications; (c) Whether the RMA provides a presumption in favour of granting applications for renewals; (d) Whether the existing 2002 consents took into account (or vice versa ) the 2003 approved Tarawera River Catchment Management Plan; (e) Whether section 107 of the RMA permits exceptional circumstances to pertain for the duration of the consent;

3 Robertson, Hearing Agenda, page 232 4 Robertson, Hearing Agenda, page 270 Page 11 of 40

(f) Whether a condition can be imposed on a consent that anticipates future commercially feasible technology capable of meeting those conditions; (g) Whether colour load in the discharge to the Tarawera River is causing a significant adverse effect; (h) Whether the amount / concentration of TRS discharged to air should and can be further reduced; (i) Whether the groundwater characteristics underlying the proposed North Valley landfill (primary solids) is sufficiently well understood as to not require a liner – or can be satisfactorily conditioned; (j) Whether the proposed landscaping of the proposed North Valley landfill will preserve the amenity of those who would otherwise overlook the works; (k) Whether the term of the consent should be limited; (l) Whether continued discharge into the river is essentially repugnant to Maori relationships with the Tarawera River. [48] We now turn to address each of those matters. Tasman Pulp and Paper Company Enabling Act 1954 (“the TPPCEA”) and Amendment Act 1986 (“the TPPCEAA”) [49] In his opening submissions, and a “theme” evident throughout the presentation of the applicant’s case, Mr Majurey submitted that the Mill was required by the government of the day to discharge all of its trade waste to the Tarawera River and was also exempted from the need to meet river discharge quality standards. 5 He also noted that the 1986 Amendment Act gave a “phasing out” date of 31 st March 1995 – at which time the Mill’s activities would be subject to the RMA provisions. [50] Because this matter is central, as we understood it, to the approach adopted by the applicant we have referred to the statute cited 6 and we note the additional points below: (a) While the TPPCEA does direct the amount permitted to be taken and that all discharges of trade waste were to be to the River, section 4 makes the latter discharge subject to the provisions of the Act including, in particular: (3) The company shall take such steps as may be necessary to ensure that trade wastes discharged into the river are discharged in such manner and are of such a nature as to comply with any conditions imposed by the Council, and from time to time notified by the Council to the company. [emphasis added] The Council referred to being the Pollution Advisory Council (“ the PAC ”) established by the Waters Pollution Act 1953. (b) Section 5 of the TPPCEA then prescribes the manner in which the Council may impose conditions on the discharge, vary those conditions if satisfied that is justified, and that the company commits

5 Majurey, opening legal submissions, paragraph 9 6 A copy of which was also helpfully provided to us by Mr Marr, a submitter. Page 12 of 40

an offence if it fails to comply or varies the quantity, rate or composition of its trade waste discharged without approval. (c) Section 6 provides that failure to furnish any information sought from the company by the Council was an offence. (d) Section 12 provides that prosecutions or proceedings could only be brought under the TPPCEA (and no other) with respect to nuisance or pollution by the trade waste discharge, and that the Health Act 1920 provisions relating to offensive trades did not apply. [51] While we are not privy to the manner in which the PAC exercised its function, nor do we need to be, we simply observe that the institutional framework was not as carte blanche as perhaps was suggested. [52] Furthermore, we note that under the TPPCEAA the roles of both the Minister of Works (who previously regulated water take and discharge points) and the PAC were transferred to the Bay of Plenty Regional Water Board. As indicated by Mr Majurey, exemptions were also provided to any water quality provisions of the Water and Soil Conservation Act 1967 that might require that the natural colour and clarity of the river not be changed to a conspicuous extent. [53] However it is of note that a number of subsections, e.g. 5D(2) and (3), actually provide the Board with a discretion, subject to company input, to require by written notice either improvements to the colour and clarity of the river, or to treat or manage the discharge so that the change in the colour and clarity is not conspicuous, if it determined that such action was “practicable”. That requirement was made subject to an appeal to the Planning Tribunal. [54] Both the Principal Act and the Amendment Act expired on the 1 st April 1995. At which time, as it happened, the provisions of the RMA then applied. In 1986, of course, the RMA reform process was not underway and Parliament could not have anticipated it being the successor statute. However clearly the provisions of the Water and Soil Conservation Act 1967, with its ability to require and set colour and clarity parameters, would otherwise have applied. [55] Three things are clear to us from this: (a) The ability of the company to discharge trade waste into the river has not, in fact, been institutionally unfettered over the life of the Mill – whatever the actual practice; (b) The Government of the day in 1986 clearly signalled that the company’s activities should return to “mainstream” regulatory control – albeit providing a 10 year transition period; and (c) For at least the last 23 years there has existed an institutional ability to require changes to the colour and clarity of the trade waste discharge subject to its practicability only. No other criterion seems to have been necessary – the desirability of such action, presumably, being taken for granted. [56] This finding is again relevant when we come to consider the question of the nature of the existing receiving environment next. Existing receiving environment [57] It is settled law that the existing receiving environment includes non-fanciful activities permitted by a plan, lawfully consented activities, and any unimplemented resource consents.

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[58] The matter to be settled in this instance is the extent to which, as Mr Majurey submitted 7, the existing receiving environment includes the past effects of the Mills’ operations including the consented discharges to air and water. [59] Mr Majurey 8 drew our attention to the High Court decision on Eyres Eco-Park Ltd , where the court found that the receiving environment includes “.. activities conducted there pursuant to an existing use right as such activities may be carried on as of right .”; and also 9 Contact Energy, where the Environment Court disagreed that : “…the environment should be treated as if lawful existing abstractions were discontinued .” [60] Mr Majurey agreed with Mr Cooney’s submissions for BOPRCthat the receiving environment should be considered practically in terms of the Waihi Beach seawall case - rather than the alternate Rotokawa geothermal case) – where the Court found that it would be unrealistic to ignore the existing seawall when considering an application for consent for a replacement seawall. In the Rotokawa case the Court went further to consider not only the effects of the existing consented activities (for which renewal was sought) but also future effects in the event that consent was refused. [61] We are not entirely persuaded by this line of reasoning because we think the present applications distinguishable from both cases cited. [62] In the Waihi Beach case, the seawall would continue to exist even if consent was refused, and therefore posed a direct future effect. That is not the case if, for example, discharge of present “conspicuous” colour load to the river was refused – in which case the only continuing effect would be from the discharge structures in the river (if they were not required to be removed). [63] In the Rotokawa case, the future effect of non-renewal could be continued subsidence in the event that no geothermal fluid was reinjected. In other words, there was a potential direct adverse effect arising from not reconsenting the activity. Again, that is not the case with respect to the Tarawera River - at least no evidence was presented to us that discontinuance would cause any continuing adverse effects to or on the River. [64] We certainly agree with Mr Majurey that recourse to a receiving environment as it may have existed prior to the Mills’ establishment is unwarranted. The River has the ecology and amenity it has and has had for some considerable time because of, in part, the discharges from the Mills. [65] While we can agree that the existing receiving environment includes the colour and clarity of the River as it is today, we do not agree that this constitutes an unimprovable baseline, in the sense of a permitted baseline. It is evident from the statutory history, the RPTRC, and the Mill’s own continuous improvement philosophy that the current existing receiving environment baseline is neither fixed nor “as-good-as-it-gets”. [66] As such we find the existing receiving environment, in principle, to be that which exists on the final day the present consents lapse. We see no need to project all of those effects beyond that date – other than those that will continue to occur because they are entrained in one way or another in or onto the sediments of the River or will continue to leach into groundwater.

7 Majurey - opening legal submissions, paragraph 61; closing legal submissions, paragraphs 5-10 8 Majurey – closing legal submissions, paragraph 5 9 Majurey – closing legal submissions, paragraph 6

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Renewal presumption [67] Mr Majurey submitted 10 that while we have a discretion to decline consent, this “… was not a tenable option for the Mill operation applications .” – apparently because of the Mills’ benefits to the community. Mr Cooney similarly submitted 11 that “ Looked at objectively, it does not seem conceivable that these consents should be refused .” [68] While we do not dispute those benefits, we do not find those grounds a suitable basis, alone, for determining what is or is not “tenable” under the RMA. Certainly the loss of community benefits as a consequence of closure is a potential adverse effect that we need to keep in our minds, in line with the cited authorities above, and we were constantly and transparently reminded by the applicant of the marginal economics of pulp mills globally in the present commercial climate. However marginal economics is not itself a determinative effect with respect to discharges of contaminants. Rather it is the significance of the contaminant discharge to or on the particular resource, the River. [69] However this raises the question as to whether the RMA contains a presumption (either explicit or implicit) in favour of granting a renewal consent. [70] Section 124 concerns the exercise of consents while waiting for a new consent application to be determined, and automatically permits the continuation of the activity as long as application is made at least 6 months prior to the expiry of the consent – as is the present case. [71] Furthermore, section 104(2A) states: When considering an application affected by section 124, the consent authority must have regard to the value of the investment of the existing consent holder. [72] However section 104(3) states: (3) The holder may continue to operate under the existing consent until— (a) a new consent is granted and all appeals are determined; or (b) a new consent is declined and all appeals are determined. [73] While there is no explicit presumption to grant an application for renewal, the RMA does provides a clear steer on the relevance of investment value. Therefore, while we are not completely at one with Mr Majurey on the matter of what is “tenable”, we do accept that the RMA does appear to tip the balance in favour of renewal, all else being equal. However, and we come to this later in this decision, there is certainly no presumption that any such renewed consent will be on the same terms and conditions as previously issued. Existing discharge consent and the RPTRC [74] The relevant discharge consent (02 4224) required of the applicant by the expiring previous enabling legislation in 1995 were finally issued on the 20 th June 2003, and expire on the 31 st December 2012.

10 Majurey, closing legal submissions, paragraph 10 11 Cooney, legal submissions, paragraph 22 Page 15 of 40

[75] The colour load conditions imposed required a stepped down, 30-day moving average, of 80 tonnes per day 12 (“t/d”) initially; 70 t/d from the 1 st January 2004; to 31 t/d from the 1 st January 2006. The 2006 limit triggered a review condition in the event this was considered either to be “not practicable” or not achievable in the time. [76] The RPTRC was approved only 6 months after the discharge consent(s) was finalised, on the 11 th December 2003 and became operative on the 1 st February 2004. It contains a set of rules, 15.8.4(h), anticipating as a discretionary activity standard, stepped reductions in the colour load measured by the absorption coefficient at 440nm (among other requirements) below the reasonable mixing zone. [77] Under the RPTRC, rule 15.8.4(h)(ii) sets a different stepped down regime to that in the applicant’s discharge consent (beyond which the discharge becomes a non-complying activity), based on a 6 month mean concentration, of 50 platinum cobalt units to the 31 st December 2000; 30 platinum cobalt units from the 1 st January 2001; and 10 platinum cobalt units from the 30 th December 2005. [78] Other than the symmetry of steps these two sets seem to bear no relationship to each other and the RPTRC was clearly neither achieved nor achievable even as it became operative. However, that plan remains operative and its provisions must be given due weight in our decision. [79] One other factor contained in the relevant provisions of the RPTRC, on which the applicant placed some reliance, is the fact that the lower reaches of the river below the Kawerau Road bridge is classified FPLT (i.e. for Fish Purposes Lower Tarawera). In brief, the applicant argued that provided the colour created no adverse effects on or for the fish resource (or the aquatic ecology on which that depended more broadly) then it followed from the classification that its non-compliance with the colour standard was not a significant adverse effect. We discuss the details of the aquatic effects later in this decision but note here that we accept the logic of the applicant’s argument with respect to the FPLT classification. Colour load [80] In the context of the present hearing, the Hearing Report had recommended a draft condition requiring a further dissimilar step-down based on a 30 day moving average of: 31 t/d initially then, subject to peer review, 24 t/d from 1/1/2017; 19 t/d from 1/1/2024; 15 t/d from 1/1/2031; and 10 t/d from 1/1/2038. [81] We spent some time during the hearing on this matter as it was central to the concerns of most submitters and to BOPRC (as well as the applicant). In particular we were interested in understanding the current state of best practice in mill treatment for colour, and the underlying rationale for the reduction steps proposed. [82] The applicant noted on several occasions 13 that the colour load gains made over the past decade, in particular, were, in its opinion, one-off gains the magnitude of which are not able to be repeated. The 41% colour load reduction since 2003 being cited as a specific example.

12 1 t/d being equated with the colour effect of 1 t/d of platinum-cobalt. 13 See for example, Newfield, evidence-in-chief, paragraph 2.14 Page 16 of 40

[83] We should note at this point that all parties seemed to accept that the point of inconspicuousness with respect to colour difference in the River would be reached at around 10 t/d colour load – at which point this achieved the upstream g440 value of 1/m. [84] It also seemed to us generally accepted by the relevant expert witnesses that the casual observer would not notice a change in the colour of the river until a substantial reduction was achieved. Mr Hudson, based on a regression analysis graph 14 , concluded that there was effectively an almost logarithmic relationship between load and appearance and cited a 1986 investigation by Wilcock and Davies-Colley indicating that a 200-fold dilution of Kraft effluent was required to achieve the 50% Threshold Detection Limit. He noted 15 that current dilution is in the order of 15 times following mixing. [85] We also note that no-one explained to us in any satisfactory way the merit of the numbers attached to the proposed condition steps 16 . Based on Mr Hudson’s graph they would not seem to “rest” on any particular visual or amenity index 17 . However we appreciate that the step from 31 t/d to 10 t/d reflects the 200-fold dilution noted above in paragraph [84]. [86] The key evidence heard was presented by Mr Johnson, particularly his supplementary evidence. [87] Mr Johnson explained a key element of the system, being the difference between the closed liquor cycle (whereby, apart from accidental spills, the weak black liquor from the cooking and brown stock washing processes are recovered and recirculated) and the “soda loss” process (whereby liquor remaining in pulp after washing is carried forward through to the pulp machines, is not recovered, and therefore enters the effluent stream). As we understood the matter, it is this existing process configuration that makes this “problem” systemic – apart from any amplification that happens subsequently in the effluent treatment process. This also explained the significance of the “kappa” number – being the index of residual lignins at the process point of soda loss. [88] Mr Johnson also advised 18 that the scheduled loss of hardwood eucalypts for pulp processing will increase the existing colour load to the ponds by some 2.1 t/d. [89] Furthermore, he noted that the key regulatory figure is at the “pond out” discharge point and estimated that moving to 100% Pinus radiata production around 2011 would increase this average daily discharge factor by 2.5 t/d – i.e. from the 2008 daily operating average discharge of 23.7 t/d to 26.2 t/d of colour. He also reminded us that the actual variability in daily loadings at the treatment ponds and through the system was in fact much greater than this – introducing a colour load plot graph for 2008 19 showing occasions where the mean of 20.2 t/d was either doubled or halved. [90] Mr Johnson gave his opinion that there is no technically viable means of reducing colour load at and from the NST mill - currently estimated at 3 – 5 t/d - because it is representative of modern mill technology. We note that both

14 Hudson, evidence-in-chief, Figure 16 15 Hudson, evidence-in-chief, paragraph 5.1(d)(iv) 16 Although we note its apparent 1985 genesis in Donald, Hearing Agenda, page 190 17 One of the reasons for the applicant’s repeated statements that the conditions were invalid – see for instance Mitchell, evidence-in-chief, paragraphs 2.77 following. 18 Johnson, supplementary evidence, page 7 19 Johnson, supplementary evidence, page 6 Page 17 of 40

this figure and the smaller figure of 0.2 t/d from the Svenska Cellulosa Aktiebolaget (“ SCA ”) tissue mill (the three mills together constituting what are known as the Tasman Mills) are included in the figures quoted above in paragraph [89]. [91] Mr Johnson incorporated a 2008 graph from EKONO (an independent consulting engineering firm serving the North American Pulp & Paper industry) showing mean colour discharges from 19 mills (unspecified), the overall mean of which was 24.3 kg/t. He translated the annual Tasman mill discharge per tonne of production, concluding that at 15 kg/t colour the mill was at the lower quartile of those mills reviewed. [92] We note a number of similar comments from the applicant’s witnesses 20 to the effect that for a mill of its age and scale it achieves environmental best practice. While we do not wish to take issue on the point, we would observe that such evidence was stated rather than put before us. Indeed it was Mr Landman who noted that there had been a reduction of some 25% in the production of printing and writing paper in North America and Europe over the past 2 years; a loss of some 5 - 6 million tonnes of pulpmill capacity. We have no way of knowing whether the removal of some of those mills from the industry may recalibrate the index of good practice for mills of this age and whether that claim continues to hold good. [93] A number of options for colour reduction were identified by Mr Johnson 21 . These range from enhanced housekeeping options (for example, spill collection) to new processes (for example Activated Sludge tertiary treatment). As is to be expected the more reduction-efficient the technology the more expensive the cost – ranging in capex from $1m for spill collection with a 1 - 2 t/d colour reduction potential, to $20 – $50m for activated sludge treatment with a 9 t/d 22 colour reduction potential. [94] Mr Johnson observed that in order to confidently achieve the first step reduction alone of 7 t/d by 2017, as sought by the Hearing Report draft condition, all 5 options identified by him as being technically feasible would need to be committed – at an estimated total capex cost of between $44 and $69 million. [95] The applicant strongly implied that, on top of the $50+m imminently required for the rebuild / upgrade of the Recovery Boiler – apparently the efficient cause for advancing the applications at this time 23 - such a required capital outlay would, in the present and foreseeable market, call into question the commercial viability of the mill. [96] Clearly we need to recognise that prospect in our decision making although we note that, subject to our findings on adverse environmental effects, the commercial viability of an enterprise is not a priori determinative. [97] We return to this matter later in our conclusions following our consideration of the adverse environmental effects of the application, but note that the Hearing Report 24 instances a request for further information relating to colour and amenity considerations (among other matters) which it claims had not been “traversed” in the AEE. It is not apparent to us that this matter was explored in

20 See for example, Landman, evidence-in-chief, paragraph 3.14 21 Johnson, evidence-in-chief, Table 1 22 This number was modified by Johnson in his Supplementary evidence, page 26, to a range of 7 – 12 t/d colour reduction 23 Landman, evidence-in-chief, paragraph 3.19 24 Kemble, Hearing Agenda, pages 104 and 119-120. Page 18 of 40

evidence before the hearing either – despite clearly being at the heart of many submissions. Exceptional circumstances [98] Section 107 of the RMA restricts the ability of decision makers to grant discharge consents for a number of reasons. Subsection 1 states: (1) Except as provided in subsection (2), a consent authority shall not grant a discharge permit [or a coastal permit to do something that would otherwise contravene section 15] [or section 15A] allowing— (a) The discharge of a contaminant or water into water; or … if, after reasonable mixing , the contaminant or water discharged (either by itself or in combination with the same, similar, or other contaminants or water), is likely to give rise to all or any of the following effects in the receiving waters: … (d) Any conspicuous change in the colour or visual clarity: … (f) The rendering of fresh water unsuitable for consumption by farm animals: (g) Any significant adverse effects on aquatic life. [Emphases added] [99] The mixing zone has previously been established as starting at the most upstream river diffuser and continuing 400m downstream of the last diffuser – and the same mixing zone is proposed in the Hearing Report. [100] If any of the three emphasised effects are “likely”, then a consent may only be granted by the consent authority if, under subsection 2: it is satisfied— (a) That exceptional circumstances justify the granting of the permit; or (b) That the discharge is of a temporary nature; or (c) That the discharge is associated with necessary maintenance work— and that it is consistent with the purpose of this Act to do so.] [101] With respect to colour there was no disagreement that a conspicuous change actually occurs, that this is neither a temporary nor necessary maintenance matter, and therefore the applicant relies upon s107(2)(a), the exceptional circumstance provision, for the continuance of its discharge activity. [102] For completeness we also note that if we found that the application gave rise to s107(1)(f) and (g) effects, then the same reliance occurs. [103] What then are the exceptional circumstances ? [104] Mr Majurey submitted 25 that the exceptional circumstances exemption neither requires the effect to be “ temporary or eliminated ”. While he seemed to us rather too absolute on the point - in that we would find it difficult to accept the proposition that the RMA permits the carrying forward of contamination

25 Majurey, opening legal submissions, paragraph 67 Page 19 of 40

activity expedient in one generation to successive generations simply because of prior approval - his argument contained within it the more moderate justification that: (c) There may be opportunities for further incremental reductions in colour discharge, but it is not feasible, nor economic to cost effectively reduce colour to the section 107(1) standard (as informed by the regional planning instruments). (d) actual effects associated with the colour discharge are generally minor.26 [105] Mr Majurey adduces other grounds, in addition to those cited in the Hearing Report, (economic and social benefits to the region and the nation, the policy history of establishment by enabling legislation and its place in the genesis of section 107 RMA, etc) but we consider these two – provided they are substantiated – particularly persuasive. [106] Of course in making a finding on a jurisdictional bar we must be careful to avoid crossing over inadvertently to a section 104 RMA assessment. [107] To that end we note, as did Mr Majurey and Mr Cooney, that s107(3) provides: In addition to any other conditions imposed under this Act, a discharge permit or coastal permit may include conditions requiring the holder of the permit to undertake such works in such stages throughout the term of the permit as will ensure that upon the expiry of the permit the holder can meet the requirements of subsection (1) and of any relevant regional rules. [108] Indeed the Hearing Report recommended draft condition on colour fits squarely within the corners of this provision – although we acknowledge the applicant’s disagreement with that condition (and with Mr Cooney) based on its submission that the condition is essentially unlawful for want of reasonableness because the required steps are unrelated to any known, feasible and economic technology 27 . [109] We find that provided the adverse environmental effects of colour are found not to be significant, and a tangible commitment to technological improvements can be conditioned, then the exceptional circumstances claimed can be squared away with the purpose of the RMA, as required by section 107(2). Effects on the River Water quality [110] Data sources for the lower Tarawera River included those from NIWA’s National Rivers Water Quality Network (“ the NRWQN ”) dating from 1989 (8 sampling sites, plus an additional 4 sites in 2008 in the vicinity of the mill complex, and 6 sediment sampling sites); BOPRC’s routine river water quality monitoring programme dating from 1985; and the Water and Waste Services Joint Venture routine river run surveys dating from 1995. [111] Mr Hudson gave evidence, among other matters, on the optical properties of water samples taken and used as indicators of the state of the lower Tarawera (i.e. its optical quality). He used five variables being: visual clarity, absorption coefficient, chloroplatinate colour, colour hue, and euphotic depth.

26 Majurey, opening legal submissions, paragraph 71 27 Majurey, closing legal submissions, paragraph 135 following Page 20 of 40

[112] Mr Hudson also evaluated organic loading in terms of the five-day Biochemical Oxygen Demand (“ BOD 5”); Dissolved Oxygen (“ DO ”) concentration, and nutrient status in terms of concentrations and loads of forms of nitrogen and phosphorus. [113] Mr Hudson’s evidence was comprehensive and not challenged by any other recognised expert. We accept his findings and simply paraphrase his summary conclusions here for convenience. [114] Mr Hudson 28 concluded that as a result of: (a) reductions in colour concentrations (21%) and load (41%) discharged from the Mill since 2002; (b) cessation of discharge from the SCA mill and changes in the use of the Rapid Infiltration Basins; and (c) reductions in concentration (33%) and load (60%) of organic matter in the Mill discharge, the water quality of the river downstream of the discharge has improved as follows: (d) DO concentrations have increased such that the average at Awakaponga is 7.5 mg/l – sufficient to support all life supporting requirements;

(e) River colour has improved – g440 values at Awakaponga have decreased by 58% since 1989; 9% since 2003; (f) Visual clarity at Awakaponga has increased 58% since 1989; with no change in average visual clarity since 2003. [115] When compared with the relevant water quality guidelines, Mr Hudson observed that: (a) The upstream BOPRCvisual clarity standard is not always met; (b) The 6-monthly average absorption coefficient value downstream of the mill discharge is not met – even allowing that the upstream value is not met 40% of the time; (c) The % change in clarity Ministry for the Environment (“ MfE ”) standard (upstream / downstream) is met; (d) There is a conspicuous change in colour downstream (Munsell colour scale); (e) The MfE visual clarity guideline for contact recreation (i.e. the 90% horizontal sighting range of 2.2 m) is not met; (f) The MfE euphotic depth guideline of 10% decrease is not met. [116] Mr Hudson concluded that the non-compliances with the respective guidelines was not significant when the morphological changes and flow characteristics of the modified lower river reaches were taken into account – and referred to the evidence of Drs Boothroyd, Allibone and Hickey as confirming this opinion. [117] Dr Hickey gave evidence on the toxicological (including ecotoxicological) aspects of chemical contaminants in the mills’ discharge, noting 29 that the most important cumulative stressors in the lower river were:

28 Hudson, evidence-in-chief, section 8 Page 21 of 40

(a) Geothermal and pulp and paper toxicants; (b) Nutrients and toxicants; and (c) Toxicants and deoxygenation. [118] Dr Hickey particularly noted concerns with the production and discharge of resin acids and phytosterols. He observed30 that resin acid concentrations in the river have decreased 50 – 70% over the past 10 - 15 years – although total resin acid concentrations are highly variable because of differing wood processing activities and natural pond treatment variability – and that chlorinated phenolics are now non-detectable at the discharge point. [119] Dr Hickey also reported on a range of toxicity tests; inorganic and organic analyses – including hydrogen sulphide, arsenic, zinc, and resin acids; sediment contaminant characterisation; and a weight-of-evidence analysis on mesocosm and in situ fish and macroinvertebrates. [120] Finally Dr Hickey made a human health assessment based on the effects of bioaccumulation of contaminants in watercress and fish and shellfish in the river. [121] Applying those findings, Dr Hickey’s overall conclusion 31 (drawing on Drs Boothroyd and Allibone’s evidence) on ecological effects was that: (a) Upstream water quality in the lower Tarawera River is compromised by input of geothermal contaminants; (b) Toxicity tests show intermittent effects from contaminated upstream water; (c) Algal toxicity tests show occasional slight effects associated with resin acids in the discharge; (d) Effects on river periphyton species diversity and macroinvertebrate abundance occur downstream of geothermal discharges; (e) Macroinvertebrate community measures all show increases downstream of the discharge point; (f) The extent and magnitude of adverse effects on fish physiology and spatial diversity and population is low; and this, in his opinion, indicated that river habitat and geothermal discharges (both diffuse and point source) were the major determinants of river ecology in the lower river. Freshwater fish [122] Dr Allibone gave evidence on the fish and fisheries of the Tarawera River. He noted that the river downstream of Kawerau has a gentle gradient, falling approximately 20m over the final 17 km to the sea, but is heavily modified below the mill discharge. This modification is due to channelization and flood stopbank and erosion control engineering, and the colonisation by the riparian grass Glyceria . [123] Dr Allibone considered this to have resulted in a lack of habitat variation – i.e. fast deep run habitat with no shallow riffles or large pools and backwaters. Furthermore, the substrate is composed of mobile pumice sands with no

29 Hickey, evidence-in-chief, paragraph 2.3 30 Hickey, evidence-in-chief, paragraph 2.10 31 Hickey, evidence-in-chief, paragraph 9.3 Page 22 of 40

cover for fish. This precludes all riffle dwellers and those fish species preferring a low water velocity habit. [124] Dr Allibone found that the majority of fish species normally present in Bay of Plenty rivers were present in the lower Tarawera. He described the sampling programme designed to determine whether any of the distribution effects that potential arise from mill discharges were evident. Dr Allibone identified 32 those effects as: (a) Avoidance; (b) Poor condition from restricted feeding or stress; (c) Absence of migratory species above the discharge; (d) Chronic health effects; and (e) Lack of spawning activity or juveniles. [125] Dr Allibone found no significant instances of these effects occurring. While acknowledging that fish abundance may be affected in the stretch from the discharge to SH30, he gave his opinion that, overall, the discharge effect is less than the habitat effect arising from habitat modifications in the middle reaches and the unavailability of low velocity feeding habitat. [126] With respect to shortfin eels in the lower river, Dr Allibone noted that their general health had improved over the past 10 years and was comparable with those examined from the adjacent Rangitaiki River – although the condition of those in the latter river was actually declining. [127] Dr Allibone noted that the discharge water temperature at its measured 2009 maximum of 32°C was close to the lethal temperature for some of the local fish species such as the common bully and inanga. Finding these fish species in numbers comparable with downstream sites, close to the high temperature area, in summer gave him confidence 33 that migration through this area was occurring with no acute mortality. [128] On the matter of colour Dr Allibone observed that the relevance of this relates primarily to limiting the feeding of visually feeding predators as dark water colour reduces their ability to sight prey. However he noted that many native fish supplement visual feeding with lateral line and olfactory cues. The only species he identified 34 whose feeding might be limited by colour is inanga, but these also require low velocity water for feeding habitat. This was shown by the fact that only one of the sites where inanga were collected were shallow, low water velocity areas with good light penetration. Dr Allibone concluded that this indicated that habitat was the limiting factor rather than colour. River ecology [129] Dr Boothroyd gave evidence on the general ecology of the Tarawera River, its aquatic macroinvertebrate habitat and communities, their distribution, abundance and health. [130] Dr Boothroyd confirmed the importance of the morphological changes made to the lower river and the mobile (unstable) substrate for habitat and associated invertebrate communities 35 . However he also noted that the

32 Allibone, evidence-in-chief, paragraph 5.2 33 Allibone, evidence-in-chief, paragraph 8.6 34 Allibone, evidence-in-chief, paragraph 8.8 35 Boothroyd, evidence-in-chief, paragraph 4.42 Page 23 of 40

downstream nearbank macrophyte bed habitats represented “… a healthier ecological condition than previously considered .”36 [131] Overall Dr Boothroyd found no significant changes in the biological indices used upstream and downstream of the discharge; no increase in the relative abundance of pollution-tolerant taxa downstream of the discharge; and no decrease in biodiversity associated with the discharge 37 . The only exception found directly associated with the discharge was a species of caddisfly, Aoteapsyche , which Dr Boothroyd postulated was using the organic carbon inputs from the discharge as a food source. He concluded that this was not detrimental to the ecology of the river system. [132] Dr Boothroyd’s overall conclusion 38 was that the discharge causes no significant changes in the ecological condition of these communities and their habitats in the lower river. Indeed he gave his opinion that “… the aquatic ecosystem of the lower Tarawera River is healthy and …better now than previous studies have found .” 39 And that these improvements were in response to Mill improvements in its discharge quality 40 (among a number of factors). [133] We note that the Hearing Report 41 confirmed the observed improvements in water quality and ecosystem health; the remaining matters in contention being around some of the draft conditions and/or provisions proposed. Odour and Total Reduced Sulphur compounds [134] While the applicant contended that the results of the periodic odour surveys conducted showed a decreasing incidence and concern over time by residents, a number of submitters challenged that conclusion asserting, essentially, that questionnaire and complaint fatigue better explained the result. [135] We were in no position to make a finding on this matter although we do accept that improvements to general air emission quality from the mill have been achieved over the past decade. Put simply, as did the applicant on several occasions, a mill of this ilk will periodically emit odours, some of which will be objectionable to a proportion of the general public. In our view, it is in just such areas that a careful management approach of continuous improvement repays dividends. [136] Similarly, while some submitters referenced odour effects from the treatment ponds and the landfill, we find it impossible on the evidence presented to us to determine whether those incidents derived from those sources or more generally from local geothermal discharges of hydrogen sulphide. [137] TRS discharges from the mill are the primary cause of odour nuisance problems in the vicinity. These compounds include hydrogen sulphide (H 2S), methyl mercaptan (MESH), dimethyl sulphide (DMS) and dimethyl disulphide (DMDS). Eight stacks discharge odour emissions from the CHH pulpmill – in addition to which are numerous sources of “fugitive” odour (e.g. tank surfaces, open doorways, and intermittent venting).

36 Boothroyd, evidence-in-chief, paragraph 4.44 37 Boothroyd, evidence-in-chief, paragraphs 5.5 – 5.8 38 Boothroyd, evidence-in-chief, paragraph 5.10 39 Boothroyd, evidence-in-chief, paragraph 6.14 40 Boothroyd, evidence-in-chief, paragraph 8.7 41 Kemble, Hearing Agenda, page 108 Page 24 of 40

[138] Ms Freeman 42 and Dr Graham 43 both accepted that the irregular venting of Non-Condensable Gases (“NCG ”) and Stripper Off Gases (“ SOG ”) from the lime kilns and elsewhere were the likely cause of peak odour concentrations detected periodically downwind of the site. Both recommended turning attention to reducing (i.e. by managing) the frequency and duration of these venting episodes as the most recent technology review showed little potential for significant “at-source” TRS reductions. [139] We agree that concentrating on these latter fugitive emissions will probably result in further beneficial reductions in nuisance odour effects. North Valley Landfill [140] The applicant has sought resource consents from both consent authorities to develop a landfill on land owned by it located to the north of the mill in the North Valley. The purpose of this landfill is to provide long-term solid waste disposal for the operation of the Tasman Mill complex beyond 2012. [141] The mill produces several solid waste streams, including incidental unprocessed hog fuel material (bark and other wood); non-recovered wood fibre (primary solids); wastewater treatment lagoon dredging and biosolids (secondary solids); chemical recovery inert materials (grits) and process chemical recovery wastes (dregs) and boiler ash from the hog fuel furnace. The total estimated waste generation is 144,000 tonnes per annum. 44 Primary solids 45 comprise 61% of the volume to be deposited and secondary solids 46 comprise 31%, with the balance being dregs (4%), grits (2%) and boiler ash (2%) 47 . The applicant proposes that the primary solids, grits and boiler ash would be deposited in the unlined primary solids landfill with secondary solids being deposited in a lined landfill. These areas are located within the main valley of the Davies-Onepu Block. Dregs would be deposited in a separate lined area to be located south-west of the Booker Block. 48 [142] Alan Pattle, a consulting engineer specialising in groundwater flow, gave evidence as an expert witness for the applicant. In his statement of evidence- in-chief, Mr Pattle described the topography of the site, geology and groundwater regime, surface water features and the proposed construction of the landfill with its unlined section for deposition of primary solids and lined section for deposition of secondary solids. The general area of the site (footprint) of the North Valley landfill is proposed to be 99 hectares, with the area proposed for deposition of material being approximately 54 hectares considered to have sufficient capacity to receive solid waste for up to 70 years. [143] Mr Pattle said that the unlined primary solids deposition area would be the eastern end of the site and the lined secondary solids area to the west. The latter had been designed to achieve liquid containment with its engineered lining. A bund would be constructed to separate the two areas which would have an initial height of 5 metres. A noise bund would be constructed in the

42 Freeman, evidence-in-chief, Figure 1 and paragraphs 9.14 – 9.16 43 Graham, Hearing Agenda, page 53 44 Pattle, evidence-in-chief, paragraph 11. 45 “Primary solids” are derived from the primary clarifier of the treatment plant and are dewatered through a series of presses. 46 “Secondary solids” are removed by dredging from the treatment ponds and are currently held in dewatering basins until liquids have been decanted. 47 Pattle, evidence-in-chief, paragraph 46. 48 Pattle, evidence-in-chief, paragraph 50. Page 25 of 40

area of the primary solids landfill closest to the nearest residence to contain operational noise. [144] Daryl Irvine, an environmental engineer, gave evidence as an expert witness and described the physical and chemical properties of the waste streams and the potential for the release of contaminants and odours to the environment. He stated that the primary solids were a mixture of raw wood fibre and other fine granular material. Primary solids contained about 55% of organic matter and the balance being mainly inert material. Heavy metal concentration was relatively low. Secondary solids contained 50% organic matter with slightly elevated levels of zinc, trivalent chromium and copper. Grits contained high levels of lime with very low levels of heavy metal contaminants. Dregs had a high pH, high levels of trivalent chromium, occasionally elevated hexavalent chromium, elevated levels of zinc and copper. Mr Irvine stated dioxin levels in the wastes to be disposed of to the primary solids landfill were less than minor. [145] In terms of biodegradability Mr Irvine stated that there was minimal potential for gas production (and hence odour). He provided an assessment of the leachate potential from the primary and secondary landfills, and as they contained low levels of contaminants considered they were suitable for discharge to the receiving environment and lining of the landfill would not be necessary. [146] A number of submitters who live in the SH30 / Mangaone and Hogg Roads area expressed concerns about the potential for the North Valley Landfill leachate, particularly from the proposed unlined primary landfill, to contaminate groundwater and thereby their water supplies. These submitters raised doubts about the ability of the applicant to maintain hydraulic security – i.e. complete separation from the aquifers currently accessed by residents’ bores for water abstraction. [147] Ann Nicholas, the Reporting Consultant for WDC as consent authority, had based her assessment of the application on natural character, visual context, ecological values, drainage and leachate, archaeological and cultural matters, traffic and noise (discussed below). [148] We note that there are both registered archaeological sites in the valley and also sites known to tangata whenua and indicated 49 to us. Accordingly there was discussion during the hearing as to what buffer radius of protection should be adopted for works in the vicinity of these sites. [149] According to Mr Pattle while 8 registered sites are within or close to the landfill footprint, none of the registered sites need be disturbed by works associated with the landfill 50 . A 10m buffer was considered adequate for this purpose – and Dr Mitchell proposed in reply that the exact buffer for any particular site could be left to be negotiated through the Protocol proposed to be developed as part of the Archaeological Plan. [150] On the other hand, some Maori submitters sought a 40m buffer because not all sites (particularly those not registered) are as clearly demarcated as, for example, many middens. [151] In her Addendum to the Hearing Report, Ms Nicholas adopted and proposed a 40m buffer, as did Mr Denicourt.

49 Ngati Awa Cultural Impact Assessment 2009 50 Pattle, evidence-in-chief, paragraph 39 and Figure 6 Page 26 of 40

[152] We are not persuaded that a uniform 40m buffer is justified and prefer the compromise suggested by Dr Mitchell whereby a standard 10m buffer is set, but room for negotiation left through the protocol development process. Hydraulic Security of Landfill – Groundwater effects [153] Mr Pattle stated that the hydrogeological effects of the landfill relate to the possible effects on groundwater quality from the percolation of landfill-derived leachate through the base of the landfill, the effects of increased rainfall infiltration into the ground in the active working area, and the effects from the landfill construction drainage works. [154] Leachate effects on groundwater were primarily a matter affecting the unlined primary landfill. Mr Pattle stated that the general quality of the leachate produced was expected to be relatively weak. Leachate from the dregs waste in the secondary landfill was likely to produce concentrations of chromium and, therefore, this would be collected and disposed of in the wastewater treatment system. [155] Mr Pattle stated that leachate having passed through the base of the landfill had 40 metres to travel before reaching the groundwater system and that there would be twice the volume of groundwater as leachate, which would seep to the Booker Stream. On the basis of analysis undertaken, he concluded that the ecology of the Booker Stream and Booker Wetland was unlikely to be adversely affected by any contaminants in the leachate. He did not consider that there were any potential adverse effects that would justify installation of a liner in the primary landfill site. [156] In respect of existing groundwater abstractions, such as those of the submitters in the SH30/Mangaone and Hogg Roads area, Mr Pattle did not anticipate any adverse effects from landfill leachate because the residents’ bore were not within the same groundwater catchment. Mr Pattle stated that, in his opinion, the Booker Stream groundwater catchment was hydraulically separate from the source of groundwater used by existing abstractions. He stated that there were no abstractions in the same groundwater catchment as the landfill but that if leachate did migrate to the SH30/Mangaone Road and Hogg Road areas that, in his assessment, the groundwater would comply with NZ Drinking Water Standards. [157] Mr Pattle stated that the landfill underdrains, provided for the purpose of intercepting any local or temporary pockets of groundwater, would not interfere with existing groundwater. [158] The runoff from active landfilling activities during rainfall events was proposed to be managed by the use of contaminant and sedimentation lagoons and in Mr Pattle’s view, the effects of sediment on the downstream environment will be limited to no more than occurs at the present time. [159] Harry Lagocki, an experienced soil scientist made submissions in which he expressed concern about the potential effects of leachate on the groundwater. His submissions were, however, of a general nature and were not specific to the application. [160] Christine Borlase submitted on behalf of the Short-term Landfill Group and expressed concerns about the hydraulic security of the landfill groundwater catchment. She sought monitoring to identify any potential contamination of the groundwater abstracted by the Mangaone Rd residents. Similar submissions were received from Barry Hall on behalf of the Hogg Rd Neighbours’ Group and Bruce Laing and Reuben Hansen on behalf of the

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SH30/Mangaone Rd Residents’ Groups. They sought lining of the primary solids landfill. [161] Yves Denicourt, Reporting Officer for BOPRC, noted that the proposal relies on the concept of hydrogeological security, but that Mr Pattle’s conclusions were based on limited information. Mr Denicourt initially considered that the boiler ash should be deposited in the secondary landfill but in his later report resiled from this position. Jon Williamson, a hydrogeological scientist with SKM, gave evidence as an expert witness, and had reviewed the AEE. He agreed that the leachate posed a relatively low ecological threat to down gradient receptors in the landfill catchment, but that there was significant uncertainty surrounding effects within the adjacent Mangaone catchment, particularly on domestic bores. Mr Williamson considered that the extent of investigation and testing was inadequate and recommended that a comprehensive Monitoring and Contingency Plan be developed for the landfill. [162] Ms Nicholas had relied on BOPRC’s report in respect of effects of drainage and leachate on groundwater and accepted its conclusions on these matters. [163] Mr Pattle presented written evidence in reply in which he advised that he had worked with Messrs Denicourt and Williamson on a Preliminary Monitoring and Contingency Plan with a Framework for Adaptive Management to safeguard the concerns raised. He described the extent of the Plan which would provide for the collection of leachate at the basegrade of the landfill using lysimeters so as to identify possible effects of the leachate and utilise monitoring bores to determine whether leachate was affecting groundwater abstraction bores to the north. In the event of any adverse effects being identified, the Plan would allow for remedial action (such as lining) to be implemented. In response to a question from the Committee, Mr Pattle stated that he was “99% confident” that the landfill catchment was hydrogeologically secure. [164] Messrs Denicourt and Williamson considered that, given the level of uncertainty expressed in the latter’s peer review report, that the risk management approach proposed by Mr Pattle was appropriate and they were satisfied with the proposed Monitoring and Contingency Plan. [165] We are satisfied on the basis of the evidence submitted for the applicant and the reports of the consent authorities’ officers and consultants that, subject to appropriate conditions of consent being imposed - including the Framework for Adaptive Management - that potential adverse effects of the landfill on groundwater are likely to be minor and, in the event they do arise, can be remedied. Landscaping around Landfill [166] Some submitters, Barry Marshall, Bruce Laing and Reuben Hansen, on behalf of the SH30/Mangaone Rd Residents Group, expressed concerns about the landfill “footprint” and its visual effects on the neighbouring environment. In particular, one resident, Mr Reid, who lives opposite the landfill site on SH30, was concerned with visual effects on future building platforms. 51 [167] We are clear that the “existing environment” embraces the possible future state of the environment, as it might be modified by permitted activities and by

51 Some of these sites referred to were on lots that had already been created, but others had yet to be subdivided. Page 28 of 40

resource consents which have been granted and are likely to be implemented. It does not, however, include the effects of resource consents that have not yet been applied for and/or may be made in the future. 52 On this basis, we find that visual effects on the consented building sites are a relevant matter for our consideration but not future proposed, unconsented sites. [168] Frank Boffa, an experienced landscape architect, gave evidence as an expert witness, concerning the context of the landfill site, its potential visibility and assessment of visual effects and proposed mitigation. Mr Boffa presented a series of visual simulations of the landfill, including the effects of proposed mitigation planting. He concluded that the landfill visibility would be well constrained and contained by existing landforms and vegetation and, over time, would be visually well integrated. He considered that with the proposed mitigation planting that the landfill would not be visible from Onepu Springs Rd, Hogg Rd or SH30. Mr Boffa did, however, state that his assessment had not included all of the consented building sites on Mr Reid’s property. [169] Ms Nicholas noted in her report that, to be effective, the proposed screen planting would take 8-10 years to establish and should, therefore, be undertaken as soon as possible. [170] In a supplementary statement of evidence, Mr Boffa advised that he had subsequently visited the Reid property and considered visual effects from four viewpoints identified to him by Mr Reid. He concluded that the proposed landfill will be effectively screened by the mitigation planting at these sites. [171] In an addendum to her original report, Ms Nicholas concluded that – (a) Adverse effects on sites of cultural and heritage value will be no more than minor and can be mitigated by the conditions proposed; and (b) In relation to her assessment of issues concerning amenity, noise, vibration, landscape and visual effects, protection of cultural and archaeological issues and traffic, that any actual and/or potential adverse effects could be addressed by appropriate conditions of consent. [172] Ms Nicholas did not oppose the requested lapse period of 10 years sought by the applicant. [173] We are satisfied on the basis of evidence submitted for the applicant and the reports of the consent authority’s consultant that, subject to the proposed mitigation planting being implemented as soon as practicable, the visual effects of the landfill from public areas and private dwellings will be less than minor. Noise [174] Nevil Hegley, an experienced acoustics engineer, gave evidence as an expert witness on the noise aspects of the proposed landfill, particularly in relation to effects on neighbours in relation to the Whakatane District Plan’s provisions. He discussed the effect of the proposed noise bund as a mitigation measure and concluded from his analysis that the noise from the proposed landfill would be within the requirements of the District Plan and would not have any adverse effects on the surrounding environment.

52 Reference: Queenstown Lakes District Council v Hawthorn Estate Ltd 12/06/06 CA45/05, paragraph 84. Page 29 of 40

[175] We accept Mr Hegley’s conclusions and note that these were not credibly challenged by any other party or witness. Traffic [176] During the landfill construction phase, some use of SH 30 is anticipated, but the increased traffic, which will use existing access to the site, was estimated to be very low (one heavy and two light vehicles per day on average). The applicant proposes that once construction of the landfill has been completed that all waste will be transported to the site using internal roads. 53 Hence, the proposed landfill will not result in increased traffic on SH 30, which is currently the main access to the site. 54 [177] Ms Nicholas concluded that, provided that internal roads were used to transport waste from the mill to the landfill, that the traffic effects would be minor. [178] A number of submitters sought a condition restricting the use of SH30 for landfill traffic. We do not hold such a condition to be lawful – in that the publicly generally has unrestricted access to state highways (subject to vehicle compliance etc) and that cannot be fettered through a resource consent. However we note the applicant’s intention to use internal roads and that is the basis upon which the application is made. We have included a review condition as a contingency in the event that this intention changes over the course of the consent. Term of consent [179] A number of submitters sought that the term of consent be confined to less than the 35 years applied for under the regional resource consents. [180] In that respect we note that prominent among submitters opposed to a full term of consent - for example Mr Marshall, a submitter who was concerned, among other things, that a 35 year term of consent would effectively lock out full public participation for that period even though this was, he contended, the prime reason why any advances had been made in the past, and Mr Hansen, a planning witness for local residents opposed to the landfill, who submitted for a 10 year consent term - were a number of Maori submitters. (a) Mr Paul, on behalf of Te Rangatiratanga o Ngati Rangitihi, submitted a preference for the Mill to be shut down immediately. At best Mr Paul submitted that all adverse discharges to land, air and water from the Mill cease by the end of 2014 or it be closed. He contended that river pollution had directly compromised their “right to development” and sought compensation for this by way of a levy imposed as a condition of any consent granted. (b) Mr Lindsay Marr from Matata sought clean, drinkable water from the River. (c) Mr Whakaruru of the TOHU Marae Trust, while not seeking closure of the Mill, submitted against a 35 year term noting that it was “… appalling to think that after all these years the only thing I see that hasn’t been repaired, rectified, or made safe is the mills wastewater conduit, ‘the Tarawera River ’.”

53 Pattle, evidence-in-chief, paragraph 21. 54 SH 30 will continue to be used by traffic from Whakatane bringing waste to the existing Davies Landfill, which is not part of this application. Page 30 of 40

(d) Mr Te Rire opposed consent being granted and mourned the loss of the waahi tapu, Waitahanui , as a result of the development of the existing primary landfill. This matter was further developed in the submission of Mr Fox who also noted the complete destruction of Lake Rotoitipaku, the geothermal resource of Okakaru and the spring Te Wai U o Tuwharetoa – but did not oppose the granting of consent provided the lessons learned are securely put in place. (e) Ms Hughes, for Ngati Awa, while acknowledging recent improvements, recommended a number of consent conditions and sought a consent term of 10 years with 3 yearly reviews in order to advance the restoration of the River and improve air quality. She deposited a copy of the Ngati Awa Cultural Impact Assessment (dated 6 July 2009) with the Hearing. (f) Mr Tiipene Marr provided a brief history of his family’s involvement over 700 years as kaitiaki of “ our sacred Awa ”, noting that the ability to conduct that responsibility presently is compromised by “ the pollution ”. He submitted that a 10 year term of consent with 3 yearly reviews was appropriate. [181] We return to this matter below in our evaluation of Part 2 RMA matters – particularly with reference to the section 6(e) relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga , matter of national importance, and the section 7(a) kaitiakitanga, other matter. [182] The Hearing Report recommended granting consents for the full term sought. [183] Mr Cooney addressed this matter in submissions. He submitted 55 that the only basis for a reduced term was an evidentiary one which could not be addressed through a section 128 review – citing the Court of Appeal ruling on Genesis Power Ltd v Manawatu-Wanganui RC . [184] Mr Majurey also submitted 56 that a full term was appropriate for the reasons that potential adverse effects were well known and understood; most would be of a minor nature; and both future adverse effects and improvements could be adequately and appropriately addressed through review conditions. In closing Mr Majurey adduced a further reason, being what he referred to as a “public interest” consideration in not visiting application renewal participation costs on an applicant, public authorities and the public generally necessitated by short term consents where this was not warranted. [185] We agree with and accept this line of argument, adding that the only other reason we might consider a shorter term is where we find that an activity should cease at a future point in time because the permitted adverse effects (in this case under the exceptional circumstance provision of section 107 of the RMA) are significant and there is no credible or reasonably foreseeable prospect of a remedy becoming available and ongoing mitigation is deemed to be inadequate. [186] We return to this matter in our conclusion below. [187] On the matter of the appropriateness of a review condition, we have given this considerable thought. We note that in their response, particularly in relation to the treatment system discharge, both officers and applicant had

55 Cooney, legal submissions, paragraph 38 56 Majurey, opening legal submissions, paragraph 75 Page 31 of 40

made significant modifications to their earlier proposed draft condition on the issue. [188] In summary, officers proposed a condition setting an effective objective of no conspicuous change in colour from that received upstream of the intake by the 1 st January 2045; a limit of 27 t/d of colour load by the 31 st December 2017; with 5 yearly status reports on (among other things) technically available options for colour reduction and a programme for implementation, peer reviewed with recommendations for amendment to conditions. [189] In response, Dr Mitchell proposed a variant whereby the existing limit of 31 t/d of colour load remains until the 31 st December 2017; the objective of no conspicuous change is removed; a 7 yearly status report would then be produced, peer reviewed etc; and the applicant would commit to implementing the following measures (subject to any review recommendations that might emerge in the intervening period): (a) Install spill control and recovery technology in the two Fibre Line areas within 2 years of consent commencement; (b) Install improved brownstock washing on either the No 2 or No 3 Fibre Line by the 31 st December 2019; and (c) Install improved brownstock washing on the remaining Fibre Line by the 31 st December 2026. These options being the “practicable” measures recommended by Mr Johnson in his evidence – and which would achieve between 2.4 t/d and 4.3 t/d reduction 57 . [190] We understand Dr Mitchell’s reasoning for a 7 yearly report to be based on practicality, in that technology in the sector is not evolving so rapidly that 5 yearly intervals is merited; and the objective proposed by officers was deleted, we understand, because the applicant seeks to continue to rely upon the section 107 exceptional circumstances because it considers there to be no reasonable ground for speculating that technology will be available to reduce the colour load to 10 t/d – and such a condition is therefore invalid. [191] Notwithstanding this difference, we note that there was agreement that a comprehensive, peer reviewed, review framework was both practicable and acceptable as a way forward – and that this should therefore be taken into consideration with respect to the term of consent. Findings of Fact [192] Section 113(1)(ae) of the RMA requires us to record the main findings of fact. For the record we note that these have been made in the context of the above sections and we have not sought to separately identify them. Section 105 [193] Section 105 of the RMA provides additional matters that a consent authority must consider. It states: 105 Matters relevant to certain applications (1) If an application is for a discharge permit or coastal permit to do something that would contravene section 15 or section 15B, the consent authority must, in addition to the matters in section 104(1), have regard to—

57 Johnson, supplementary evidence, page 26 Page 32 of 40

(a) the nature of the discharge and the sensitivity of the receiving environment to adverse effects; and (b) the applicant's reasons for the proposed choice; and (c) any possible alternative methods of discharge, including discharge into any other receiving environment. [194] The particular discharge to which this section relates is that into the River. [195] The applicant relies essentially on four matters in addressing this consideration: (a) The discharge has been into the existing receiving environment since 1954 - and has improved markedly over the past decade; (b) The present discharge is having no significant adverse effect on aquatic biology or water quality; (c) The only alternative, being discharge to land, is impractical for the volumes and rates concerned; and (d) The Company has a continuous improvement approach and encourages a review condition ensuring that the plant maintains currency with emerging technologies etc. [196] We accept the validity of those reasons with respect to a section 105 consideration. Section 107 [197] We have discussed this matter earlier in this decision (refer paragraph [98] following). We reiterate that we find that exceptional circumstances do exist with respect to the application, and it can therefore be granted, although we are not persuaded by the applicant’s argument that such can or should endure across time without limit. Section 104 matters [198] Section 104(1) of the RMA requires that before making a decision to grant (with or without conditions) or refuse an application under section 104B as an overall discretionary activity, we must: When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to– (a) any actual and potential effects on the environment of allowing the activity; and (b) any relevant provisions of— (i) a national policy statement: (ii) a New Zealand coastal policy statement: (iii) a regional policy statement or proposed regional policy statement: (iv) a plan or proposed plan; and (c) any other matter the consent authority considers relevant and reasonably necessary to determine the application. [199] The actual and potential effects on the environment were generally agreed and assessed in both the AEE and the Hearing Report. Where there was

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disagreement about these effects we have discussed these above in this decision. [200] In assessing effects under section 104(1)(a) of the RMA, section 104(2) allows decision makers to disregard any adverse effect of an activity on the environment if the plan permits an activity with that effect. [201] In light of the fact that the Mill has been operating for many years and all relevant plans have been developed in full knowledge of the Mill’s activities, and therefore classification of permitted activities can reasonably be assumed to have taken that into account, we have disregarded adverse effects that are permitted under the various plans. Relevant provisions [202] The various Hearing Reports (as did the applicant’s planning witness Dr Mitchell) fully identified all relevant provisions of the regional and district planning documents (both operative and proposed). [203] These were not generally contested and we therefore accept those referenced objectives, policies and rules as the relevant provisions for our purposes under section 104(1)(b) of the RMA. [204] The relevant national regulation is: (a) Resource Management (National Environmental Standards Relating to Certain Air Pollutants, Dioxins, and Other Toxics) Regulations 2004 [205] The relevant plans are: (a) Bay of Plenty Regional Policy Statement (1999); (b) Bay of Plenty Regional Air Plan (2003); (c) Bay of Plenty Regional Plan for the Tarawera River Catchment (2004); (d) Bay of Plenty Regional Water and Land Plan (2008); (e) Whakatane Transitional District Plan (1990); and (f) Proposed Whakatane District Plan (amended by Decisions) (2009). [206] Iwi Management Plans and other relevant documents referenced are: (a) Tuwharetoa ki Kawerau Strategic Plan; (b) Ng āti Umutahi Whenua Management Plan; (c) Wähi Tapu Sites of Ngäti Awa; (d) Ngati Rangitihi Freshwater Policy (not formally recognised by Council); and (e) Ngati Awa Claims Settlement Act 2005. [207] We accept that there is nothing under those provisions that, either by themselves or in concert, is fatal for the application. Furthermore we accept the planning analysis of the various witnesses that, in summary and subject to conditions, the adverse effects likely to arise are able to be avoided, remedied or mitigated to an extent that either gives effect to or is not inconsistent with the provisions of the above statutory documents. [208] We have not considered any other matter under section 104(1)(c). [209] Section 104(2A) of the RMA requires consent authorities to have regard to the value of the investment of the existing consent holder when considering applications for renewals of consent – as per this application. The applicant

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has ensured that this matter has remained before us throughout the evidence presented. For example, Mr Majurey submitted that “The value of the investment … is an important beneficial factor to be given real weight”58 . Indeed if this were not the case, and the investment (both direct and indirect through the forestry sector) not so substantial and enduring, we have some doubt as to whether consent on the terms and conditions sought could realistically be contemplated. [210] Section 104(3) of the RMA directs that certain matters must not be considered (trade competitive arguments, effects on those who have given written approval) and consent must not be granted if, among other things, public notification should have occurred and it did not. For completeness we record that we have duly considered this section. Part 2 [211] The final task for decision makers is to consider whether, overall, the application promotes the purpose of the RMA – i.e. sustainable management. [212] A number of principles contained in sections 6 and 7 of the RMA were relevant. In particular we note the following: Section 6 (a) The preservation of the natural character of … rivers and their margins, and the protection of them from inappropriate … use … (c) The protection of areas of … significant habitats of indigenous fauna: (d) The maintenance and enhancement of public access to and along …rivers: (e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga. Section 7 (a) Kaitiakitanga: (aa) The ethic of stewardship: (b) The efficient use and development of natural and physical resources: (c) The maintenance and enhancement of amenity values: (d) Intrinsic values of ecosystems: (f) Maintenance and enhancement of the quality of the environment: (j) the benefits to be derived from the use and development of renewable energy. [213] We note for completeness that we do not consider the application overall to offend materially any of the sub-part provisions of sections 6 or 7 of the RMA. [214] We accept that the matter of river colour as a consequence of the treatment system discharge is offensive to a number of parties, and that this gives rise

58 Majurey, opening legal submissions, paragraph 42. Page 35 of 40

to genuine concerns about the health and welfare (both cultural and biological) of the river. However, the evidence does not support that concern – and certainly not to the extent that a decision to refuse consent necessarily ensues. [215] Similarly we accept that concerns about air discharges and odour, whether from the stacks or the treatment ponds, while genuinely held, do not, on the evidence, reach public health thresholds – and further improvements are to be made. [216] We are also required by section 8 of the RMA to take into account the principles of the Treaty of Waitangi. While it was clear from some of the Maori submitters that they considered a grievance had been done by the original enabling statute and activities subsequent to that, we do not consider any remedy for that to fall within our present jurisdiction and, therefore, not to be relevant to our consideration of this application. We are satisfied that the applicant and/or council officers have properly discharged any responsibilities they might reasonably be presumed to have under this requirement and, equally, Maori submitters have responded appropriately – including, for example, by the development of Ngati Awa’s Cultural Impact Assessment. Overall Broad Judgement [217] Put simply, the “overall broad judgement” required is whether, at the end of the day, granting the application better promotes the sustainable management of natural and physical resources than refusing it would. [218] The applicant’s case essentially was that renewal of the existing consents created no new adverse effects – although there was a transfer of effect to the new landfill. Indeed, with proposed conditions, those adverse effects that might be considered by others to be more than minor (and the applicant argued there were none, the exceptional circumstances matter excepted) are further reduced. Accordingly the application did promote the purpose of the RMA and should be granted in full. [219] Overall, we agree. With respect to the landfill activities (both land use and discharge), water take (currently), stormwater discharge, and general air discharge activities we agree. These activities can be conditioned such that the effects are consistent with the purpose of the RMA. [220] The single issue that remains at issue is the river discharge. We accept the expert evidence to the effect that the discharge has no significant adverse effect on the aquatic biology and that habitat in the lower Tarawera is more likely than not influenced to a more significant degree by historic river training works and other land use practices. However we are left with a clear impression from submitters that the amenity value(s) of the river remains compromised by its colour and reduced clarity, and that this “symbolic” degradation remains a significant issue. This is so notwithstanding the comparative absence of active recreational use of the lower river. [221] In our view, however, this matter alone is not sufficient to outweigh the considerable economic and social benefits provided throughout the forestry production sector by the Mill and its activities. [222] We also recognise that there has been a certain degree of accommodation to the discharge activities of the Mill – both air and water. This is not absolute and is not absolutely accepted by all. That we acknowledge. The Mill has, however, improved its discharge quality over recent time and has signalled

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the intention to continue to pursue quality improvements. That we must take at face value. [223] We are therefore satisfied that the application falls within the four corners of the purpose of the RMA and can be granted. We accept that a very limited term of consent could compromise the viability of the activity in the current international climate. However, in our view the exceptional circumstances protection of section 107 cannot be permitted to run regardless. The aspiration of today’s citizens for clear freshwater rivers and streams (heralded by the draft National Policy Statement for Freshwater Management and draft National Environmental Standard on Ecological Flows and Water Levels) being indicators of this. [224] Accordingly (and in terms of section 113(1)(b) of the RMA) we do not believe that a full term of consent is appropriate because the river discharge continues to give offence, to both Maori and pakeha submitters, even after 55 years of activity (and despite the acknowledged improvements to colour and clarity). We accept the applicant’s evidence on face value that the issue of colour is not a significant matter for most other jurisdictions but point out that if that is the case, then waiting for technological solutions to emerge from the sector in the absence of incentives seems counter-intuitive. [225] We believe that the “correct” RMA approach in this situation is to provide sufficient time for the applicant to have security of investment and development, to provide for structured reviews, but also to signal formally that solutions must be found. We therefore impose both an objective to reduce colour to a point of inconspicuousness, and limit the term of consent to 25 years. [226] We have also adopted a compromise review condition between that proposed by the applicant and that recommended by the reporting officers. This will serve to ensure that practicable advances in technology are keep in front of mind by both applicant and regulator alike throughout the term of the consent(s). [227] We considered carefully whether to impose this limitation of consent duration on the river discharge alone, or also on the air and land discharges and water take consents (as the “waste” products of the process go into one or other of these environmental media and any change to the waste discharged to water is likely to require changes in the inputs to at least one of the other environmental media – and most likely to landfill). [228] In the end we concluded that better resource management integration and practice will be achieved through by providing that the whole suite of consents relating to the Mill fall for re-determination together at one time in the future, and have therefore decided to impose the limitation on all regional consents sought – there is, of course, no limitation option on land use consents. Reasons for the Decision [229] In addition to the reasons discussed throughout, we make this decision for the following reasons: (a) In terms of section 107(1)(d) of the RMA, we find that exceptional circumstances exist such that consent can be granted despite the fact that the discharge produces a conspicuous change in colour and visual clarity downstream of the mixing zone.

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(b) In terms of section 105 of the RMA, we find that the applicant has properly considered those matters and we are satisfied on those points. (c) In terms of Section 104(1)(a) of the RMA, adverse actual and potential effects on the environment are likely from allowing the activity. However, we find that any adverse effects (other than those contemplated by section 107 above) will be mitigated by the proposed conditions and measures. (d) In terms of section 104(1)(b) of the Act, we find that the proposal is consistent with the relevant regional policy statement and the objectives and policies of the relevant regional and district plans. (e) In terms of section 104(1)(c) of the Act, we find that all other matters that are relevant in determining the application have been taken into account. (f) Finally we find that the proposal is consistent with Part 2 of the RMA, being the purpose and principles of the Act and we can and have imposed conditions of consent to ensure that the activity is managed in a way that avoids or mitigates its adverse effects on the receiving environment. Decisions [230] The following decisions are made by Commissioners Hill, Bickers and Ford for the Bay of Plenty Regional Council consents sought, and by Commissioners Hill, Bickers and Orr for the Whakatane District Council consent sought. [231] Decision 1 : Acting under delegated authority pursuant to section 34A and section 37(1)(b) of the Resource Management Act 1991, the late submission of Te Runanga o Ngati Awa is accepted because the extension of the submission period does not adversely affect any person, nor cause any unreasonable delay, and the applicant agreed. [232] Decision 2 : Acting under delegated authority pursuant to section 34A and sections 104, 104B, 104D, 105(1), 107(2) and 108 of the Resource Management Act 1991, the applications made to the Bay of Plenty Regional Council for water and discharge permits are granted , subject to conditions. [233] Decision 3 : Acting under delegated authority pursuant to section 34A and sections 104, 104B and 108 of the Resource Management Act 1991, the application made to the Whakatane District Council for land use consent is granted , subject to conditions.

Mr D Hill Chairman Date 15th October 2009

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SCHEDULE 1: BAY OF PLENTY REGIONAL COUNCIL (ENVIRONMENT BAY OF PLENTY) - CONDITIONS OF CONSENT

Pursuant to Sections 104, 104B, 104D, 105(1), 107(2) and 108 of the Resource Management Act 1991, the applications by Norske Skog Tasman Ltd and Carter Holt Harvey Pulp & Paper Ltd for water and discharge permits are granted subject to the following conditions:

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SCHEDULE 2: WHAKATANE DISTRICT COUNCIL - CONDITIONS OF CONSENT

Pursuant to Sections 104, 104B and 108 of the Resource Management Act 1991, the application by Carter Holt Harvey Pulp and Paper Ltd for land use consent is granted subject to the following conditions: